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guides - loss of chance
You did everything right. You trusted them to act in your best interests, but something went wrong. Don’t let a dismissive
“it wasn’t guaranteed anyway” stop you from seeking justice.
Australian law has a specific — and sometimes surprising — position on whether you can claim compensation for a lost opportunity, even when the outcome was never certain. Understanding the difference could be the most important thing you do before deciding whether to pursue a case.
Loss of chance is a legal doctrine that allows a court to award compensation for the loss of a real and valuable opportunity — not just a certain outcome. Rather than requiring proof that a better result would definitely have occurred, the court assesses the probability of that outcome and awards damages proportionate to the value of the chance that was lost.
In plain terms: if a professional’s negligence cost you a genuine opportunity, you may only need to prove the opportunity was real and had measurable value.
Specificity matters in this area of law. The High Court treats medical matters very differently from commercial ones.
Rule: Tabet v Gett [2010] HCA 12
The Court rejected loss of chance for medical claims. You must prove on the “balance of probabilities” that the harm would not have occurred but for the breach.
Rule: Sellars v Adelaide Petroleum NL (1994)
Loss of a commercial chance is compensable where the chance had real and substantial value. You don’t need to prove you would definitely have won, just that the opportunity was genuine.
1. Your solicitor missed a limitation period
If they let your filing deadline expire, the court assesses the probable value of the lost claim. You don’t need to prove you would have won; you prove the claim had real value that was extinguished by negligence.
2. Your financial adviser failed to act
If they failed to execute a transaction you ordered and the investment performed strongly, that lost commercial opportunity can be compensable under the Sellars framework.
3. Your accountant failed to lodge a tax election
A missed tax saving is a measurable financial opportunity. Its loss is directly attributable to the accountant’s failure.
4. Medical Negligence (The Contrast)
If a doctor delays diagnosis, the question is not “did my chances improve?” but rather “did the delay cause the harm?”. This is a harder legal test requiring expert causation strategy.
Courts apply the Malec v JC Hutton Pty Ltd (1990) approach: they assess the probability of what might have happened and discount the award to reflect uncertainty.
Example: If your lost legal claim had a 70% prospect of success and was worth $200,000, a court might value the loss at 70% of that total ($140,000).
Professional negligence claims in Australia generally must be commenced within three years of discovery. Missing this deadline can permanently extinguish your right to claim. If you’re unsure if your window is still open, get a free assessment now.
Fair Go Australia works exclusively on professional negligence claims, Australia-wide, on a no-win, no-fee basis. There is no financial risk in getting advice.
We respond to all enquiries within 1 business day.
Common questions
In commercial and legal contexts, yes. You must prove the chance was real and substantial, not speculative. In medical negligence, the standard is stricter (balance of probabilities).
They held that “loss of chance” is not an available basis for damages in medical negligence. You must prove the doctor’s error actually caused the injury, not just reduced your odds of recovery.
The court multiplies the potential value of the outcome by the percentage probability of it occurring (e.g., 60% chance of a $300k win = $180k award).
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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