Loss of Chance: When a Missed Opportunity Still Yields Compensation

By mr. Vincent Besters

The Entrepreneur Who Misses Out Through No Fault of Their Own

Imagine: you have spent months working on a tender for a lucrative government contract. Your advisor should have submitted the bid on time, but due to an error on their part, the tender was delivered too late. You were eliminated. Your competitor won the contract. The damage is evident, but how do you now prove exactly what you missed out on? After all, you can never know with certainty whether you would actually have won that tender.

This is the classic problem of the loss of chance doctrine: a legal principle of great practical significance for entrepreneurs in situations such as these.

What Is the Loss of Chance Doctrine?

The loss of chance doctrine provides a legal framework for situations in which, due to an attributable fault on the part of a third party — think of an accountant, advisor, estate agent or lawyer — a chance at a favourable outcome has been lost. The essence is that it is not the ultimate outcome that is treated as the head of damage, but the lost chance itself.

Traditionally, compensation requires causation: the damage must be a consequence of the fault. In cases of missed chances, however, that causal link can never be established with certainty, because the outcome was always uncertain. The loss of chance doctrine resolves this by incorporating that uncertainty into the quantum of compensation. You do not receive full compensation, but compensation proportionate to the chance you had.

A prerequisite is that there must be a real, non-negligible chance. A purely theoretical or speculative possibility is insufficient.

How Does the Court Assess the Value of a Missed Chance?

Pursuant to Article 6:97 of the Dutch Civil Code (Burgerlijk Wetboek), the court assesses damages in the manner most consistent with their nature. Where the quantum cannot be determined precisely, it is estimated. This provision gives the court latitude, in cases of loss of chance, to calculate compensation as a percentage of the maximum damage that could have been expected.

In practice, the court weighs factors such as the number of competitors, the quality of your submission, previous experience in comparable procedures, and the objective assessment criteria used by the other party. Were you the only serious candidate? Then the chance may be assessed as high. Were there ten equally matched tenderers? Then the compensation will be set proportionately lower.

The Supreme Court (Hoge Raad), in ECLI:NL:HR:2025:1388, has once again sharpened the framework for loss of chance claims. The Supreme Court confirms that the court enjoys considerable freedom in estimating the magnitude of the chance, but that such an estimate must be adequately reasoned. Furthermore, the judgment underscores that the loss of chance doctrine must not serve as an alternative for inadequately substantiated causation: the claimant must still demonstrate that the fault caused a real chance of success to disappear.

Loss of Chance versus Proportional Liability: Not the Same Thing

A common mistake is the confusion between loss of chance and proportional liability. Both doctrines respond to uncertainty regarding the causal link, but they operate on a fundamentally different level.

In cases of loss of chance, the defendant's liability is established. What is uncertain is the quantum of the damage: it is certain that a chance was lost, but uncertain how substantial that chance was. The uncertainty therefore lies on the damages side.

With proportional liability, the reverse is true. There, the damage is established, but it is uncertain whether the defendant is responsible for it. The court then apportions liability in proportion to the contribution to the probability that the damage was caused. This doctrine is applied with restraint and has been accepted primarily in situations where the causal link is structurally unprovable by the very nature of the subject matter.

The Practical Lesson for Entrepreneurs

As an entrepreneur who has missed a business opportunity due to a professional error by an advisor, you are not automatically left empty-handed from a legal standpoint. The loss of chance doctrine provides you with a genuine instrument to claim compensation, even if you cannot prove that you would certainly have been awarded the contract. What is essential is that you provide the court with sufficient points of reference from which to estimate the magnitude of your chance: gather quotations, correspondence, market information and prior experience that substantiate the serious prospect of success.

Do you have questions about agency or contractual liability?

Mr. Vincent Besters advises entrepreneurs on contract law, agency arrangements and liability issues. Feel free to get in touch for an initial consultation.

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