Abstract

The idea that a lost chance could be a harm generating recovery is relevant for cases of unclear causation. This article examines that idea explaining it as being conceptually based on the common linguistic separation between changes and final events. The idea of a lost change establishes changes as legal rights which constitute limits against tracing hypothetical consequences, where it is principally impossible to establish a causal connection between a damaging event and a finally suffered injury or loss. This article claims that both English and German law should generally accept the idea of a lost chance. It aims to show, however, that this is not due to epistemic or logical ('philosophical') reasons, but to normative legal considerations. The idea of a lost chance makes it possible to overcome structural difficulties of the present law which are shown by comparing the similar deficiencies of the totally different German and English legal answers to problematic cases of unclear causation