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Loss of chance is a legal principle that allows a person to seek compensation for the loss of a real and valuable opportunity — even when the ultimate outcome was never guaranteed. In professional negligence, the doctrine recognises that a negligent professional can destroy something worth compensating: the genuine chance of a better result.
Standard causation law asks a binary question. Did the defendant’s negligence cause the harm? To answer yes, a claimant generally needs to establish causation on the balance of probabilities — meaning it was more likely than not that the professional’s failure caused the loss.
That standard works well in many situations. It works less well when a professional’s negligence doesn’t eliminate a certain outcome but destroys a genuine probability. If a treatment had a 45% chance of success and that chance was removed by a doctor’s negligent failure to act, has the patient lost nothing — simply because 45% falls below the threshold?
The loss of chance doctrine tries to answer that question honestly. Where the lost opportunity itself is the damage — rather than a specific guaranteed outcome — courts in some contexts will compensate the claimant for the value of what was taken from them.
The important qualification is that Australian courts have drawn a careful line between personal injury contexts and commercial or economic contexts. That line shapes whether the doctrine is available to you — and it is the central issue any claimant in this area needs to understand.
The definitive Australian statement on this doctrine came from the High Court in Tabet v Gett (2010) 240 CLR 537.
Leila Tabet was a child who suffered brain damage following negligent medical treatment. The central argument was that the doctor’s failure to order a CT scan had deprived her of a chance of a better neurological outcome. The question before the High Court was whether that lost chance — independent of whether better treatment would definitely have helped — was itself a compensable form of damage.
The majority said no. In Australia, loss of a chance of a better medical outcome is not independently recoverable. A claimant in a personal injury context must still establish, on the balance of probabilities, that the negligence caused the adverse outcome. A lost chance below 50% is insufficient to ground a claim, no matter how real it was.
That is the medical and personal injury position. It differs meaningfully from how courts treat lost commercial opportunities.
In Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, the High Court accepted that loss of a real and substantial commercial opportunity is a recognised head of damage in Australia. The chance need not have been certain — it need not even have been more likely than not. It simply has to have been real, not speculative, and to have had genuine value.
This matters enormously for professional negligence claims against solicitors, financial advisers, and accountants. When a professional’s negligence causes a client to lose a commercial opportunity — a business transaction, an investment position, a legal claim — courts can assess what that opportunity was worth and award damages accordingly.
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 confirmed a related principle: where courts must assess hypothetical past events or contingent future events, they reason on a chance basis rather than applying a binary yes/no standard. Damages can reflect the probability that a particular outcome would have occurred.
Personal injury and medical negligence: Causation must be established on the balance of probabilities. Loss of a chance below 50% is not independently compensable. Tabet v Gett is the controlling authority.
Commercial and economic loss: Loss of a real and substantial chance is recoverable. Courts assess the value of the lost opportunity probabilistically, discounting for the chance it would not have materialised. Sellars governs this space.
This distinction is not a technicality. It determines whether a claim can succeed at all in many professional negligence cases.
Your lawyer failed to file proceedings before the limitation period expired. Your underlying claim may or may not have succeeded — but the failure eliminated the chance entirely. Courts assess what the lost claim was worth, discounted by the probability it would have succeeded. The solicitor’s negligence is the cause of the lost opportunity, and that opportunity had real value.
You were not properly advised about a reasonable settlement offer, or the offer was not communicated in time. The chance to resolve the matter on better terms was lost. Where that chance was genuine, damages can reflect the difference between what was likely achievable and what you ultimately received.
Suitable advice might have directed your funds to investments with real growth prospects. The chance to build a stronger financial position was removed by negligent advice. In the right circumstances, loss of chance reasoning applies to the gap between where you ended up and where a competent adviser would have put you.
This is the most contested ground. Post-Tabet, simply showing that earlier diagnosis would have given a better chance is not enough in Australian medical negligence law. You generally need to establish, on the balance of probabilities, that the failure caused the worse outcome — not just that it reduced your chances. If causation can be established at that level, a full claim may follow.
Tax concessions, business restructure windows, asset protection strategies — all of these can be time-sensitive. If your accountant’s negligent advice caused you to miss an opportunity with genuine commercial value, loss of chance principles may support a damages claim for what that opportunity was worth.
Loss of chance claims require careful analysis. To succeed, a claimant generally needs to establish four things:
The defendant’s negligence caused the loss of that chance — standard causation rules apply. The professional’s failure must be the reason the opportunity was lost.
The chance was valuable and quantifiable — courts cannot award damages for a chance unless they can assess what it was worth. The more concrete the lost opportunity, the more accurately it can be valued.
Actual loss results — the lost chance must translate into real, measurable damage. Courts discount damages to reflect the probability that the opportunity would have materialised.
Whether all four elements are present in a given situation is a question of fact — and one that requires specialist analysis of the specific circumstances. Self-assessment at this stage rarely gives an accurate picture of a claim’s strength.
Where a lost chance is compensable, the damages are not awarded at full value. They are discounted to reflect the probability that the opportunity would have produced the assumed outcome.
If a lost legal claim had a genuine 60% prospect of success, the damages for loss of that chance will reflect 60% of what the claim was worth — not the whole of it. Courts engage in a realistic probabilistic assessment of the hypothetical: what would likely have happened, how probable was it, and what would it have been worth.
Malec v JC Hutton established the framework for this kind of reasoning. Courts must engage with contingencies honestly, not reduce every uncertain question to a binary all-or-nothing outcome.
Expert evidence frequently plays a role in quantification. A legal expert may assess the strength of the lost claim. A financial expert may quantify the value of a missed investment opportunity. A medical expert may assess the significance of a delayed diagnosis. The quality of that evidence can be as important as the legal principles themselves.
The Civil Liability Acts operating in each state also impose caps and modifications on damages, particularly in personal injury contexts. The interplay between those provisions and loss of chance principles adds another layer of complexity that requires specialist advice.
In most Australian states, professional negligence claims must be commenced within three years of the date you became aware — or should reasonably have become aware — of the negligence. In some states, a six-year period applies to non-personal injury claims. The specific period depends on your state and the nature of the claim. Missing this deadline can permanently extinguish your right to claim. If you believe a professional’s failure has cost you a real opportunity, do not delay — contact our team for a free assessment as soon as possible.
Tabet v Gett is the controlling High Court authority on loss of chance in Australian negligence law. The majority rejected the proposition that loss of a chance of a better medical outcome is independently compensable, affirming that causation in personal injury cases must be established on the balance of probabilities. It remains essential reading for any professional negligence case where the claimant’s harm is characterised as personal injury.
Sellars established that the loss of a real and substantial commercial opportunity is a recognised head of loss in Australia. Unlike the medical context, courts do not require the claimant to prove the opportunity would more likely than not have materialised — only that it was genuine and had real value. This is the foundational authority for loss of chance claims in solicitor and financial adviser negligence.
Malec addressed how courts should assess damages where a claim depends on what might have happened under different circumstances. The High Court confirmed that courts must engage in a probabilistic assessment of hypothetical events — they cannot simply apply a balance of probabilities standard and award nothing where the chance falls below 50%. The case underpins the quantification methodology in all loss of chance damages assessments.
If you’ve been told that your case is complicated because the outcome was never certain, that does not end the inquiry. The law recognises that uncertainty about outcomes does not necessarily mean uncertainty about liability.
The more important questions are: what was the nature of the opportunity that was lost? Was it commercial in character — a legal claim, a financial position, a transaction? Or is it better characterised as a personal injury case, where Tabet applies? Those distinctions shape the entire approach to your claim.
Many professional negligence claims — particularly those involving solicitors, financial advisers, and accountants — turn on loss of chance principles, and they are regularly pursued and resolved successfully in Australian courts. Understanding which category your situation falls into is the first step.
The specialists at Fair Go Australia understand the doctrinal line between Tabet and Sellars. If a professional’s failure has cost you a real opportunity — whether you can currently quantify it or not — a free case evaluation is the right place to start.
Loss of chance is a legal principle that allows someone to claim compensation for a lost opportunity, rather than requiring them to prove a guaranteed outcome was taken from them. In professional negligence, it most commonly applies where a professional’s failure removed a genuine commercial or legal opportunity — such as the chance to succeed in litigation or pursue a profitable investment. The doctrine is more restricted in personal injury and medical contexts following the High Court’s decision in Tabet v Gett (2010) 240 CLR 537.
The position after Tabet v Gett is that loss of a chance of a better medical outcome is not independently compensable in Australia. You generally need to establish, on the balance of probabilities, that the negligence caused the adverse outcome — not just that it reduced your chances. This is a demanding standard, but if causation can be established at that level, a full claim may follow. Every case turns on its specific facts, and specialist advice is essential.
Standard causation requires proof that the negligent act more likely than not caused the harm — a greater than 50% probability. Loss of chance is a different approach: instead of asking whether the negligence caused a specific outcome, it asks whether the negligence caused the loss of a valuable opportunity. In commercial contexts, Australian courts allow recovery for a real and substantial chance even if it was less than 50%. The distinction matters because it determines whether a claim can succeed at all.
Damages are assessed by estimating the probability that the lost opportunity would have materialised and applying that probability to the full value of the outcome. Courts follow the framework in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, engaging in a realistic probabilistic assessment rather than a binary all-or-nothing calculation. Expert evidence — legal, financial, or medical — often has as much bearing on the quantum as the legal principles themselves.
Yes — solicitor negligence cases are among the most common contexts in which loss of chance reasoning applies in Australia. Where a lawyer’s failure has caused a client to lose a legal claim — through a missed limitation period, failure to file, or failure to advise properly — courts assess what that lost claim was worth and discount for the probability it would have succeeded. The approach is grounded in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 and is well established in Australian jurisprudence.
The High Court in Tabet v Gett (2010) 240 CLR 537 held that the loss of a chance of a better medical outcome is not an independently compensable head of damage in Australian law. The majority rejected a proportional recovery approach that had been adopted in some other jurisdictions. In medical and personal injury contexts, causation must be established on the balance of probabilities. Tabet does not govern commercial or economic loss claims, where Sellars v Adelaide Petroleum NL remains the controlling authority.
Loss of chance is one of the more technically demanding areas of professional negligence law. The specialists at Fair Go Australia can assess your situation, identify the correct doctrinal framework, and tell you honestly what your options are — at no cost to you.
Our goal is to help people in the best way possible. this is a basic principle in every case and cause for success. contact us today for a free consultation.
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