Feedback

 

2 (b) That's probably right. The facts indicate that, because of the poor test results, B did not apply for the job she originally wanted. But it is not certain that B would have been offered this job - at best she had a chance of getting it, and A's negligence may have caused her to miss that chance. Can damages be claimed for harm that consists of a lost chance?

This has been a difficult question for courts and the decisions are not all uniform in their approach. Generally, a plaintiff cannot recover damages for the loss of a mere chance because this would be seen as circumventing the 'but for' test of causation. However, the loss of a financial opportunity, or the loss of the opportunity to have preventative medical treatment, may be compensable in some circumstances.

It would need to be shown that, on a balance of probabilities, the lost opportunities are the result of the defendant's negligence. That is unlikey in the present case.

Naxakis v Western General Hospital (1999) 197 CLR 269.