What is the value of a lost opportunity?
 
In commercial litigation, wrongdoing does not always deprive a party of a guaranteed benefit. Often, the loss lies in something less certain: the opportunity to obtain a benefit or avoid a loss. The law addresses these situations through the doctrine of loss of chance (or loss of opportunity). Although loss of chance claims most commonly arise in professional negligence cases, the doctrine is not confined to that context. Courts have applied similar reasoning in cases involving lost commercial opportunities, contractual negotiations and situations where the outcome depended on the hypothetical conduct of third parties. Rather than requiring the claimant to prove that the lost benefit would certainly have been obtained, the court assesses the value of the opportunity that has been lost.
 
The Legal Framework for Loss of Chance
 
The modern approach to loss of chance was developed in the English courts and has since been applied in many Commonwealth jurisdictions, including Malaysia.
 
In Kitchen v Royal Air Forces Association [1958] 2 All ER 241, the Court of Appeal recognised that a claimant may suffer actionable damage where negligence causes the loss of a chance to pursue litigation, even though the outcome of that litigation cannot be known with certainty. The court held that damages should reflect the value of the lost opportunity, assessed by reference to the prospects of success of the underlying claim.
 
The principles were subsequently refined in Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602, where the Court of Appeal clarified that a distinction must be drawn between what the claimant must prove on the balance of probabilities and what may properly be assessed as a lost chance. While the claimant must prove that it would itself have taken the relevant course of action, the court may evaluate, on a percentage basis, the likelihood that third parties would have acted in a way favourable to the claimant.
 
Following Allied Maples, courts have also cautioned against claims founded on speculative or layered contingencies. In Sports Connection Sdn Bhd v Asia Law Corporation [2017] SGCA 25, the Singapore Court of Appeal emphasised that while damages may be awarded for the loss of a genuine opportunity, the law does not recognise claims based on what has been described as a “chance upon a chance”. In that case, the court rejected a claim for loss of opportunity where the alleged loss depended on multiple hypothetical steps, each of which was itself uncertain. The court held that the doctrine requires the claimant to establish the existence of a real and measurable opportunity, rather than a chain of speculative possibilities.
 
In Mount v Barker Austin [1998] PNLR 493, the appellant commenced legal action against his former solicitors for alleged negligence in handling his claim against a bank. The issue centred on whether the solicitors’ failure to properly manage the appellant’s claim resulted in the loss of chance for him to recover damages in his original claim. Unfortunately for the appellant, he was disappointed twice, in that the negligence of his first solicitors in prosecuting his claim against the bank was followed by negligence of a similar kind on the part of the second solicitors in pursuing his claim against the first solicitors. In both instances, the cases were struck out as a result of the inaction of the solicitors resulting in the appellant’s loss of chance to recover damages in his original claim against the bank. Undeterred by these setbacks, the appellant took matters in his own hands and represented himself for a claim against the second solicitors for negligence.
 
In assessing his claim, the court emphasised that a previous action that had been struck out did not automatically entitle the claimant to damages. The claimant still bears the burden of proving that the original action had a real and substantial prospect of success. This required the court to evaluate the merits of the original action to determine whether any actionable loss had been suffered. In short, it depends entirely on the strength of the appellant’s original claim against the bank for the appellant’s loss of chance claim against the solicitors to succeed.
 
Upon assessing the evidence, the Court of Appeal held that there was no real prospect of the appellant succeeding in the claim against the bank. The Court of Appeal decided that the appellant suffered no loss in his original claim despite the solicitors’ negligence in conducting his case. In this regard, the Court of Appeal further concluded that both of the appellant’s previous solicitors were negligent not only in allowing the appellant’s claims to be struck out but also in failing to properly advise the appellant as to the worthlessness of his claim against the bank. This case emphasised the principle that the doctrine of loss of chance does not compensate for the loss of a speculative or hopeless claim. Rather, it compensates only for the loss of a genuine opportunity of obtaining a tangible benefit.
 
Loss of Chance Claims are Not a Shortcut for Recovery
 
A similar approach has been adopted in Malaysia. In Tetuan Amin-Tan & Co (suing as a firm) v Tetuan Harjinder & Associates (sued as a firm) [2025] 9 MLJ 969, the High Court dismissed the plaintiff’s claim against the defendant for amongst others, loss of a right to pursue action and their purported right to recover claim against another party. The plaintiff had initially engaged the defendant for a civil recovery suit against its former partners and legal assistants for alleged breach of fiduciary duty. The civil recovery suit was however struck out due to the defendant’s negligence in failing to comply with court deadlines. The plaintiff contended that the defendant’s negligence deprived it of the opportunity to recover from the former partners and legal assistants.
 
In dismissing the claim, the High Court held that the plaintiff had not demonstrated that the initial claim had real prospects of success. The High Court emphasised that the plaintiff cannot use the present action as a shortcut and an effortless route to recovery when the merits of the initial claim had not been properly canvassed and ventilated. Upon assessing the evidence, the Court found no compelling material to establish a genuine prospect of recovery. The Court further held that the losses claimed by the plaintiff were purely speculative.
 
When Loss of Chance Arises Upon Striking Out of a Claim
 
The timing of accrual of the cause of action for loss of chance to sue was considered by the Court of Appeal in Pang Yeow Chow (practising at Messrs YC Pang, Chong & Gordon) v Advance Specialist Treatment Engineering Sdn Bhd [2015] 1 MLJ 490. In this case, the respondent appointed the appellant as solicitors for a claim against a debtor. The claim was however struck out on 29 May 2006 as the appellant failed to attend trial. This original claim later became time-barred on 12 November 2006. The respondent claimed that its cause of action in negligence accrued only upon the expiry of the limitation period of the original claim, when its opportunity to sue was irretrievably lost.
 
The Court of Appeal rejected the respondent’s argument and held that the cause of action accrued immediately upon the striking out of the original claim i.e. on 29 May 2006. The Court of Appeal further explained that when an action is struck out, two categories of loss may arise: 

Practical Lessons
 
The authorities demonstrate that loss of chance claims require careful evidential preparation.
In practice, parties pursuing such claims should be prepared to demonstrate: