Does ‘lucrum cessans’ encompass loss of chance damages? : a comparative analysis

Abstract

This dissertation comprises an evaluation on whether lucrum cessans encompasses loss of chance damages, particularly in Maltese jurisdiction. While the focus is on Maltese jurisdiction, foreign jurisdictions were also taken into consideration. Contrary to foreign jurisdictions, Maltese courts seem to have ignored the loss of chance doctrine even if it had referred to ‘loss of chance’ or ‘loss of opportunity’ numerous times. Up till today, however, the court has only acknowledged this concept and has not yet awarded any compensation under this proposed new head of damages. Thus, this dissertation evaluates possible routes which Malta may take in compensating for loss of chance damages. This research shows that while there are situations where one may argue that lucrum cessans is already compensating for loss of chance damages, it is doubtful whether such a statement can be held as valid since the court has failed to expressly refer to this doctrine except in one judgment. Having said this, as will be discussed, a relationship can be established between lucrum cessans and loss of chance damages. However, the literature suggests that it may be more beneficial to compensate for these damages autonomously. Notwithstanding this position, this dissertation also considers possible compensation for loss of chance damages under article 1045 and article 1047 (2). However, due to the restrictive criteria of both articles, this may still lead to some victims not being compensated due to not satisfying the particular criteria of these articles. Yet, it is questionable whether such articles are restrictive or whether the restrictive interpretation was developed as a result of court practice. Nevertheless, in the event that amendments are introduced, the author stresses the need to have some strict criteria to avoid irrational cases which may distort the scope of having such damages being compensated.