Not a Chance: Comments on Waddams, The Valuation of Chances

Vaughan Black

Abstract


In "The Valuation of Chances" Stephen Waddams advances arguments to persuade Canadian courts to be more receptive to the doctrine of loss of chance. He maintains that the courts should show greater willingness to assess instances of causal uncertainty on the basis of simple probabilities, rather than by an all-or-nothing balance of probabilities approach. Under simple probabilities, plaintiffs who are only able to show that it was 25% likely that the defendant caused their loss would still obtain judgment for a 25% valuation of that loss. While many (but not all) of Waddams' arguments strike me as appealing, they all raise a further issue. On the assumption, which Waddams appears to share, that not all instances of factual uncertainty should be assessed on a probabilistic basis, where should we draw the line between the two modes of responding to uncertainty?

Keywords


Torts

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