Studies On The Compensation Of Loss-of-chance

In the area of damage law,there are always debates on the characteristics of theinterests of chance or on the compensation of loss of chance.Although loss-of-chancedoctrine has been adopted in various degree in common law system countries or othercountries like Germen and France,research on its rules and scope of application is farfrom conclusion.The existing laws and rules in China have not accept loss-of-chancedoctrine,however,cases arose from the loss of chances are not rare in our reallife.For example,a litigant loses the chance of success in a lawsuit because of thenegligence of his(her) lawyer, a patient is deprive of the chance for cure attributed tomedical malpractice,an employee loses his(her) opportunity to promote as a result ofphysical injuries,etc. These cases involved two vital important principles of damagelaw, one is damage and the other is causation.According to traditional theories in tort law, the establishment of compensationresponsibilities require a definite damage,but this requirement is too strict to theplaintiff who has lost his(her) chance which is uncertain probability. And thetraditional theories follow the principal of “all or nothing” rather than “partialcausation when inspecting the causation relationship between the defendant anddamage. Because of these limitation,the legal rights of victims in cases ofloss-of-chance are not well protected by law.In order to solve these problems in the field of loss-of-chance,some countriesalter the causation doctrine and some others turn to broaden the implication ofdamages.A break is necessary to the traditional theory in order to keep the balancebetween the stability and justice of law. On the basis of jurisdiction practices in theworld,we may find that the difficulties in defining and measuring lose-of-chancemainly lies in the following respects:First of all,what is the object of right in cases ofloss-of-chance; secondly,how to determine the causation between the damage and thefaulty behavior;thirdly,what is the capable way to measure the compensation of damage. This article is trying to solve the above problem about loss-of-chancedoctrine.The essay can be divided into four parts: the definition and dilemmas ofloss-of-chance doctrine, how to determine the causation and compensation of damagein cases of loss-of-chance,the method to apply the loss-of-chance doctrine in ourcountry.Firstly,the essay analyze the definition about loss-of-chance doctrine and itsrelated concepts,while have a discussion about the difficulties in applying thisdoctrine. Then the thesis centers in the causality of loss-of-chance cases and comparethe causation theories between common law system and civil law system. It is agreedthat the doctrine of “adequate causation”is much accord with fairness and justice incases of loss-of-chance. Afterwards,the essay discussed how to ascertain the damageby introducing approaches that courts apply to solve these cases. At last a suggestionwas provide to the tort of China.Under the premise of strict restriction,the adoption ofloss-of-chance doctrine to the judicial practice in our country could protect theinterests of the victims and safeguard fairness and justice.