Causation
Because causation is a prerequisite to liability, this notion cannot be considered in a vacuum; it traverses every type of case arising in tort. Thus, the cases examined in this section will necessarily overlap with concepts discussed elsewhere herein, under another topic.
In Italy, a two-step approach to causation is used: one focuses on the damaging event itself, and the other on the compensable damages. Though the names of these steps differ from their common-law counterparts, the concepts are roughly analogous to the two-step analysis used in common-law regimes, where causation has been divided into two inquiries: but-for, or factual causation, which purports to evaluate merely technical or evidentiary" [1] and legal causation, which seeks to distinguish those causes to which the law assigns responsibility. This dichotomy is not as clear-cut as it might appear, because, again - like the concept of causation within the various fields of tort liability - overlaps clearly exist between the two lines of inquiry. Additionally, "legal causation" is often merely a shorthand way of dealing with broader policy issues. Under common law systems, a legal cause is found if it is an injury's "proximate" cause, i.e., not too "remote" from the type of harm incurred. The distance implied by the metaphor, however, is not geographical but conceptual, and includes considerations of the gravity of the harm inflicted and its likelihood, even questions regarding insurability against the harm incurred. In effect, when courts examine "legal causation" they are dealing with the heart of tort liability, i.e., loss-spreading. [2] To do so, common law courts examine factors such as the intervening acts of third parties, [3] the acts of the claimant, [4] acts of nature, [5] foreseeability of the extent of damage, [6] or remoteness [7] to "break the chain of causation," thus eliminating the defendant's liability. In but-for causation, instead, courts tend to look more at probabilities, through the burden of proof, requiring that a preponderance of the evidence shows that "but for" the defendant's actions, the harm would not have occurred.
In Italy, the same bifurcation regarding causation is attained, by distinguishing between "material reconstruction and linking together of the events that produced the damage (i.e., material causation, relating to the damaging event) from the legal reconstruction of the facts and of the imputation (i.e., legal causation, connecting the event to the damage)." [8] We can identify an additional duality in the two functions of the causal nexus: that of linking the events between the defendant and the damage, and that of defining the scope of compensable damages. To that end, causation is generally governed by two series of Articles in the Civil Code: those dealing with damages in Articles 1223 et seq., from Chapter III, Non-Performance of Obligations, and those governing tort liability, culminating in Article 2056, which references the damages provisions, from Title IX, Unlawful Acts. None of these articles, however, explicitly mentions the concept of "causation," but rather, the code provisions denote it implicitly by a circuitous use of two techniques: presupposition and reference. It presupposes, i.e., that the interpreter knows the notion of causality in all the provisions that use the terms "cause," "caused," "effectuated," "committed," "brought about," "produced," and "derived" referring to damage [Articles 2043-2053]. It references Articles 1223, 1226 and 1227 for the compensation of damages. The reference is not exhaustive, however, because Articles 1223 et seq. presuppose that the problem of identifying the liable party is already resolved. [9]
In addition to these references, the authorities and case law have also anchored the notion of causation to Penal Code Articles 40 and 41, the first of which excludes criminal responsibility if the "harmful or dangerous event on which the existence of the offense depends was not a consequence of [the offender's] own act or omission." (Emphasis added.) Only in Penal Code Article 41 do we find an explicit reference to causation. It deals with concurrent causes, specifying that pre-existing, simultaneous or supervening causes "shall not exclude a causal relationship between [the offender's] act or omission and the event" further providing that "supervening causes shall exclude a causal relationship when they were in themselves sufficient to bring about the event." (Emphasis added.) These penal provisions influenced the development of civil liability, even if they were not conceived for the purpose of or capable of addressing issues particular to it, such as vicarious liability. The burden of proof for both civil and criminal matters mirrors those of common law jurisdictions: a preponderance of the evidence for the former, and beyond a reasonable doubt for the latter.
Regarding joint tortfeasors, Article 2055 establishes joint and several liability, where doubt as to the degree of fault attributable to each tortfeasor is resolved with the proportion being presumed to be equal. A tortfeasor who compensates a victim in full has a claim against the other tortfeasors for the percentage of fault attributed to them.
Article 1227 Civil Code establishes rules regarding comparative negligence. Before stating its contents, it should be noted that Article 1227 is actually a rule governing contracts, since it is found in the fourth book of the Civil Code, but is applied also to tort law, by reference through Article 2056 regarding measure of damages in tort. Crossing the realm from that of contract law to that of tort by speaking in terms of contributory negligence is found only in limited cases in common law jurisdictions (with some difference between the US and England), but is the norm in Europe. [10] Under common law theories, the doctrine of the duty to mitigate damages is used more widely in contractual disputes. Article 1227 reads: "If the creditor's negligence has contributed to cause the damage, the compensation is reduced according to [a] the seriousness of the negligence and [b] the extent of the consequences arising from it. ..." It thus does not contemplate the use of a strict contributory negligence rule, the common law doctrine still used in a few US states, which acts as a complete defense to negligence by entirely excluding liability if the victim contributed even minimally to his own injury. [11]
It is interesting to note that the determination of compensability when a plaintiff's contributory negligence is involved varies depending on whether the defendant acted intentionally or merely negligently. In Italy, though some uncertainty remains as to whether intent and negligence share the same status in general terms of determining liability and its consequences, [12] they have never been on the same plane vis-à-vis contributory negligence. The rule in Italy and in many other civil and common countries is that the defendant's intentional tort negates the defense of contributory negligence and any diminution of plaintiff's compensation. [13] "The rationale for this general rule...is that it would usually be unfair and inconsistent with public policy to allow the tortfeasor who acts with intent to make use of the contributory negligence defense in his favor." [14] This rule applies in Italy, therefore, in the intentional tort of seduction with the promise to marry[15] and in fraud. [16]
The case "Court of Cassation, Third Civil Division, 1 February 1991, n. 981" ties many of these notions together, addressing the issues concerning the interrelation of causation and comparative negligence. It also deals with foreseeability and intervening causes, and thus the issue of when the chain of causation can be interrupted, thereby relieving the defendant of liability. The case holds that natural causes cannot be "gradated on a percentage basis" in connection with a concurrent human cause, as the rule of Article 2055 establishes between joint tortfeasors, but that rather causation issues in tort cases involving both natural and human causes are to be determined under Articles 40 and 41 of the Penal Code.
This case was cited with approval by the Court of Cassation's Third Civil Division, n. 16525/2003, [17] where a minor child was hospitalized and then suffered a heart attack (a hypovolemic shock due to bleeding caused by the disconnection of an artery) that left her in a vegetative state. The doctors had mal-positioned the endotracheal tube and did not notice the bleeding until the child had lost one third of her blood. The parents claimed the hospital was liable for not having avoided the heart attack and for not having monitored the patient properly. The parents sought compensation for biological and moral damages. The doctors claimed that the brain damage was due to a large cyst located in the mediastinum, which caused frequent respiratory crises to the child, and that it was not caused by the heart attack she suffered under their care. The coroner established that the heart attack played a decisive role in causing the brain damage. In upholding (in part) the decision from the court below, and relying inter alia on Article 2055, the Court stated, the judgment stated:
This Court has observed that, under the principles of Articles 40 and 41 Penal Code governing causation in tort, only when the environmental conditions or natural factors characterizing the physical reality that influence the behavior imputable to the author are clearly sufficient to determine the damaging event independently of the weight of the imputable human behavior, is the author of the act or omission relieved entirely of the causal effectiveness of the event (...) [The judge cannot] gradate the defendant's percentage of liability for the cause imputed to multiple causal effectiveness (and thereby reduce proportionately the amount of the compensation due) based on the degree of efficiency of the natural cause(s), not imputable to him. (...) Based on these principles, therefore, because the trial Court, based on the technical consultancy carried out, held that the surely was negligence of the medical staff in producing the damaging event, it was irrelevant to establish whether such damage to the health of the minor child was facilitated by the respiratory pathology she already suffered from.The relationship between causation and the apportionment of damages in the case of the victim's contributory negligence is codified in the two provisions of the Civil Code, Articles 1227 and 2055, constituting together one of the necessary elements of tort, causation of damages. One theory suggests that Article 1227 sets up the general rule about tortfeasor liability in proportion to his or her degree of fault - or lack of care - and its consequent damages, while Article 2055 creates a protection for the victim in the case of multiple tortfeasors, allowing the plaintiff to sue the richest of them. [18]
Relevant considerations in the determination of causation include foreseeability, as seen in Agraria Morelli-Utilgas, S.r.l. v. Internal Affairs Administration. However, as was also seen in that case, the relationship of foreseeability to the determination of causation is not always clearly defined. One authority states, "... foreseeability plays a role as it is understood as regularity of the consequences coming from the caused event, turning to an evaluation of remoteness of damages. In this, common sense and policy arguments certainly play a role, but usually in a cryptic way." [19] Similarly, these authors continue, "temporal proximity may [also] play a role [in determining causation] but it is not decisive," leading this authority to conclude that some "scholars are unsatisfied with the legal framework for causation" and that an examination of the cases shows that it may lead to unacceptable results." [20] Like the Italian Civil Code, the French Code Civil's tort provisions - despite using the verb "to cause" repeatedly - lack a definition of causation. Just as the Italian courts have borrowed from a contract provision of the Italian code, the French courts have relied on the Code Civil's Article 1151, [21] outlining damages for intentional breach, extending its application to tort, according to which only those losses that are the "immediate and direct consequence" of the defendant's actions are compensable. Some French legal scholars share their Italian counterparts' dissatisfaction with the concrete results, leading one authority to analogize the French law determining causation to a "lottery." [22]
Loss of Chance
In Italy, claims for loss of chance i.e., that cause of action that is premised on the idea that a defendant's actions have deprived a claimant of something tangible, i.e., "a real, if indeterminate, prospect" [23] are often determined on questions of causation. [24] The cause of action for loss of chance has been recognized in French law[25] for some time, first appearing in 1897 in a case against a lawyer for having missed the chance of filing an appeal, thereby denying the client the opportunity to have prevailed. [26] It has been said that the use of perte d'une chance is used in France to avoid the problems of causation. In one case, medical doctors were found liable for having omitted to prescribe a compulsory blood test for German measles to a woman who later gave birth to a child who had disabilities typical of those resulting from rubella being contracted at the beginning of pregnancy. The notion of perte d'une chance allowed the court to find a causal link between the defendant(s) and the lost chance to avoid injury, despite the lack of a direct link between the omission and the injury. [27]Soon thereafter, in 1911, an English court awarded damages to a beauty contestant who lost her chance of winning a prize because of the defendant's breach of contract with a third party in Chaplin v. Hicks. [28] Since then, however, the English courts have not laid down a clear-cut rule regarding the extent of liability that can be recovered in loss-of-chance cases. Though an early case, Kitchen v. Royal Air Force Association, [29] awarded damages for a legal malpractice case based on the lost chance of bringing a civil action, in Hotson v. East Bershire, [30] the House of Lords denied recovery to a plaintiff who alleged he would have had a 25 percent chance of having recovered from an injury if the hospital's medical staff had not erred. In a straightforward causation analysis, the court refused recovery based on the lack of probability stated in the claim. In reversing the trial judge, who had awarded a sum based on the percentage of the probability, Lord Bridge wrote, "[u]nless the plaintiff proved on a balance of probabilities that the delayed treatment was at least a material contributory cause of the avascular necrosis, he failed on the issue of causation and no question of quantification could arise." [31] The familiar floodgates argument likely played a part in determining the outcome in this decision, where courts are concerned that "lost-chance recovery will lead to a multiplicity of new claims, giving rise to fresh evidential difficulties and complicating the relationship between different heads of damage." However, the House of Lords stopped short of declaring an across-the-board rule that would exclude recovery by proving loss of chance in a negligence action. [32] In fact, in a more recent case, Allied Maples Group Ltd. V. Simmons & Simmons, [33] discussed also infra, plaintiffs won against their solicitors in another legal malpractice case; the court held it was sufficient that they show they had a "substantial chance ... of successfully negotiating" with a third party had they been properly advised by counsel.
In the United States, a majority of jurisdictions have rejected the claim, even if it has been allowed in a certain line of cases following a pronunciation in obiter dictum in Hicks v. U.S: [34] When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable.
In Italian doctrine and jurisprudence, loss of chance constitutes an "unjustified injury" for purposes of Article 2043 and also is considered a "self-standing head of damage," [35] and thus could also be considered under the point of view of damages. [36] Suffice it to say, for our purposes, that there are no bright-line rules regarding the determination of damages for loss of chance, and that courts are forced to examine each claim on a case-by-case basis. [37] Assessability and quantification of damages will not be the focus of our examination, but rather, because loss-of-chance issues constitute a sub-category of causation, it will be examined here. [38]
Today, loss of chance is unanimously recognized as fully compensable in Italy. [39] It has been defined as "the impossibility to pursue the eventual attainment of a future objective, which surely - with its realization - would have brought about a change and improvement in the quality of life, at least in an internal and personal viewpoint ... the damage of 'no longer being able to do' [something]." [40] Loss of chance claims originate in a wide range of legal areas, leading to potential liability in pre-contractual, contractual and tort situations.
In Italian jurisprudence, as in the French and English, courts have had to struggle with a difficult tangle, sorting out causation issues from damages issues, often not with great success. As Lord Justice Stuart-Smith wrote, in Allied Maples Group Ltd v. Simmons & Simmons, "It is necessary to consider as a matter of law what it is necessary to establish as matter of causation, and where causation ends and quantification of damage begins." [41] The task for the courts involves placing the uncertainty (what would have happened if...) that inevitably arises in loss-of-chance cases. They must determine "if that uncertainty [is] to be factored in at the level of causation, meaning that the plaintiff will not be able to recover unless he or she can prove on a balance of probabilities that the chance would have materialized. Or is it rather to be taken into account in the assessment of the quantum of damage, on the assumption that a loss which has occurred is worth more than a loss whose occurrence is uncertain?" [42] English courts seem to draw the line at recovering for loss of a chance in physical injuries, but do provide compensation in other situations. [43]
One Italian authority notes, "a birds-eye view of the cases presented in the courts shows a sort of confusion regarding the exact identification of the concept of 'chance' and very often an incoherence between the dogmatic premises and the practical implications as applied, in the reasoning of the single holdings." [44] The degree of proof necessary to prove causation exist is discussed in the loss-of-chance case "Court of Cassation, 19 December 1985, n. 6506" which "marks the birth" [45] of this cause of action in Italy.
As noted above, some criticism of the way the reasoning in loss-of-chance cases has surfaced. One author, in commenting on Baroncini v. ENEL writes:
[T]he Court carries out a true contradiction of terms because, on the one hand, it holds that chance is an actual part of the patrimony and the relative injury is compensated as consequential damages. On the other hand, it subordinates its compensability to the condition that it has a probability of positive concretization exceeding the probability of negative concretization, producing that unacceptable contamination between the moment of the an debeatur and the moment of quantum debeatur, stigmatized in doctrine. (...) The decision in any case represents the first signal of the passage by the Supreme Court to an ontological notion of chance. [46]Regardless of the linearity of the court's reasoning, what is clear is that with this case, the Court of Cassation established the compensability of having "lost the possibility of having attained a result; such possibility 'entered into the patrimony' of the claimant from the moment in which he suffered the wrongful behavior. [47] As noted above, many loss-of-chance cases involve situations arising from medical malpractice claims; [48] in Italy there are several cases that involve misdiagnoses or late or even omitted diagnoses that led to the death of the patient. A review of these cases is beyond the scope of this short text, but the principles presented in other factual settings largely mirror those in the medical cases, as will be seen in the case "Court of Cassation, Third Civil Division, 6 February 1998, n. 1286 dealing with the field of legal malpractice, in which the medical-malpractice standard for loss of chance cases is mentioned.
It is interesting to note the recurrence of the legal-malpractice situations in the fact patterns in Italy, France and England in cases where liability is found for loss of chance, indicating the emergence of a typical claim. Loss-of-chance cases differ from cases of straightforward negligence in professional malpractice, where the need to evaluate the preliminary question as to "what would have happened if ..." that characterizes a loss-of-chance claim is replaced by an all-or-nothing finding of liability based on a preponderance of evidence used to determine causation. [49]
One case regarding loss of chance in the medical field, arising in the course of a criminal prosecution, [50] addresses the issue of how the importance of the protected interest and the degree of negligence found impact on the causal nexus. [51] Plaintiff's deceased, Melis, was wounded by cut glass while repairing a shutter, was hospitalized and operated on by a first doctor, who sutured the wound. Shortly thereafter a hemorrhage erupted and he was examined by a second doctor, who dismissed him without further tests, recommending bed rest. That night his condition worsened so he was taken to a different hospital, where it was discovered that a large glass fragment had remained in his thorax, causing the rupture of the diaphragm and of the peritoneum. The patient died shortly thereafter. The two doctors were found guilty of negligent homicide, and appealed to the Court of Cassation, arguing that the causal nexus between their negligence and Melis's death had not been proven. They claimed there was no proof that a timely operation, correctly performed, could have cured the wound. The court rejected the argument, holding that in cases regarding a health professional's negligence - where the health professional did not carry out precautions and tests capable of determining a needed surgical operation on an injured person - the causal nexus between the health professional's negligence and a death following it always exists when said operation, even if it was not certain to have cured the wound, had a good probability of doing so. In fact, the criteria of the certainty of the results can be substituted by the probability of such results (and of the appropriateness of the conduct to produce them) when human life is at stake. Thus even a low probability of success of an immediate and prompt surgical operation (which was not performed) is sufficient; the causal nexus exists whenever such an operation was not possible because of the negligence of the health care worker who tended the patient. This case evinces the principle that the requisite causal nexus is not always identical, but changes depending on the importance of the interest protected and on the gravity of the negligence.
A similar rule underlining the heightened importance of the defendant's actions when the stakes at risk are human life in the American case Gardner v. National Bulk Carrier. [52] The deceased's widow sued the company that owned the ship, the Bulkcrude, where her husband had worked when he was lost at sea. He was discovered missing when he failed to report for duty. The ship was searched, "but the master took no further steps to find the missing seaman. Indeed, he did not alter the speed or course of the Bulkcrude either during or after the search." [53] The lower court had found "as a fact that turning back would have entailed no risk. The only thing that would have been lost in attempting to rescue was time; the Bulkcrude might have reached its destination a half day late, at the most." [54] In holding the company liable, the Court of Appeals announced:
We hold that the burden of the risk involved in the master's inaction must be cast by the law on him and the ship, and not on the helpless man in the water. If the rescue doctrine is not to be utterly stultified, this must be the rule. The grave obligation of rescue is not to be satisfied merely by a search of the vessel. A master who abandons a missing seaman while there is yet a reasonable opportunity to save him, acts at his own risk. In the circumstances of this case, the inaction of the master established a neglect of the duty of rescue a neglect from which a contributing cause of the seaman's death is fairly and conclusively drawn by law. [55]Also in this case, therefore, the certainty of the negligence and the importance of the injured interest brought about a relaxation of the rules of causation in tort. Generally, US courts demand the standard of proof of a "preponderance of the evidence" to indicate that defendant's action caused the damage. Here, the Court held that defendant's actions constituted "a contributing cause" of the victim's death, "fairly and conclusively drawn" as a matter of law. Furthermore, it shifted the burden of proof to the defendant to demonstrate the presence of a different, extrinsic cause that interrupted the causal nexus between his negligence and the damage. [56]
[1]Deakin, Johnston & Markesinis, Markesinis and Deakin's Tort Law, 186.
[2]These conceptual divisions are common also to other areas of tort law, such as economic loss, and categories of damages.
[3]Lamb v. Camden London Borough Council [1981] Q.B. 625. In this case the House of Lords denied liability to a claimant who sued contractors who had caused flooding to her house, which she was required to vacate. The fact that squatters later moved in and caused damage could not be attributed to the builders, but to the plaintiff herself, as it was principally her responsibility to prevent such damage, or to insure against it.
[4]McKew v. Holland and Hannen and Cubitts (Scotland) Limited [1969] 3 All ER 1621. If the plaintiff's own negligence can be categorized as breaking the chain of causation, by, e.g., placing himself in a position of danger, defendant is exonerated. This is apparently only the case where plaintiff's actions "caused fresh damage to himself as a result of taking an unreasonable risk... [thus constituting] a novus actus interveniens which freed the defendants from all liability for it." (Lord Watkins in Lamb v. Camden London Borough Council [1981] Q.B. 625, commenting on McKew.) Since the Law Reform Act of 1945, contributory negligence in the UK follows the rule used by a majority of states in the US, known as "comparative negligence." Under this rule, plaintiff's negligent actions leading to injury in concurrent causation with the defendant's negligent act will not be a complete bar to recovery, but merely diminish the amount of damages awarded in proportion to the percentage of negligence attributed to such action.
[5]Carslogie Steamship Co. v. Royal Norwegian Government [1952] AC 292, where a storm was held to have broken the chain of causation.
[6]The Wagon Mound (No. 1) and (No. 2) cases, together, seem to stand for the principle that for damage to be compensable, that particular type of property damage not just any type of property damage must have been foreseeable. Deakin, Johnston & Markesinis, Markesinis and Deakin's Tort Law, 208.
[7]The American case, Palsgraf v. Long Island Railroad Co., 162 NE 99 (1928), denied liability for damage suffered by a plaintiff injured when a package fell onto railroad tracks where she was waiting for a train, due to the negligence of railroad employees who were helping a passenger holding the package descend from a train. Unknown to the defendant's agents, the package contained fireworks which exploded and caused a scale to fall onto plaintiff, injuring her. Cardozo, writing for the majority, held said damage was too remote for the defendant to be found liable, in a theory that helped established the doctrine of proximate cause but also touched upon notions of the duty of care.
[8]A [1]lpa et al., La responsabilità civile, 316. [9]Ibid. [10] "Contributory negligence is a principle of a very wide and general application, which has to be taken into consideration in any case of liability." U. Magnus & M. Martín-Casals (eds), Unification of Tort Law: Contributory Negligence, (The Hague: Kluwer Law International, 2003), 259. Both the Principles of European Contract Law (PECL or Lando Principles) and the UNIDROIT Principles on International Commercial Contracts (PICC) contain provisions on contributory negligence: Art. 9:505 PECL, Art. 7.4.4 and 7.4.8 PICC, ibid. [11]Interestingly, the harsh rule that any contributory negligence by the plaintiff excludes recovery is rooted in Roman law, but has long been abandoned by European jurisdictions. Ibid. 260. [12]See, generally, P. Rescigno, Manuale di diritto private, ed. G.P. Cirillo (Milan: Kluwer Ipsoa, 2000), 629. "In the ambit of civil responsibility for tort, unlike that of criminal liability, as a general rule there are no normative differences between intent and negligence, even if there are no lack of cases of civil wrongs in which, in order to find liability, a finding of intent is indispensible. This leads to the equalization of intent and negligence on the plane of tort liability." [13]P. Cendon, Il dolo nella responsabilità extracontrattuale, (Turin: Giappichelli, 1976), 44; and Magnus and Martín-Casals, Unification of Tort Law: Contributory Negligence, 276. [14]Magnus and Martín-Casals, 274, citing the Israeli report in the same volume. [15]See Court of Cassation, 8 July 1993, n. 7439. [16]See Court of Cassation, Penal Division, 17 March 1993 [1993] Rep. Foro it., Truffa, 10. [17]Court of Cassation, Third Civil Division, 4 November 2003, n. 16525. [18]F.D. Busnelli, E. Bargellii & G. Comandé, "Contributory Negligence under Italian Law," in Unification of Tort Law: Contributory Negligence, ed. U. Magnus & M. Martín-Casals, (The Hague/London/New York: Kluwer Law International, 2003), 119-120. [19]F.D. Busnelli & G. Comandé, "Causation under Italian Law," in Unification of Tort Law: Causation, ed. J. Spier, (The Hague/London/Boston: Kluwer Law International, 2000), 82. [20]Ibid. 82-83. [21] "Even in the case where the non-performance of the agreement is due to the debtor's intentional breach, damages may include, with respect to the loss suffered by the creditor and the profit which he has been deprived of, only what is an immediate and direct consequence of the non-performance of the agreement." [22]See H. Groutel, "A propos de loi du 5 juillet 1985: des décisions diversement appréciables," RCA, September 2003, Chronique 5. [23]Deakin, Johnston & Markesinis, Markesinis and Deakin's Tort Law, 200. (Emphasis in original.) [24]B. Markesinis, M. Coester, G. Alpa & A. Ullstein, Compensation for Personal Injury in English, German and Italian Law, A Comparative Outline, (Cambridge: Cambridge University Press, 2005), 5, note 9. [25]Perte d'une chance, denoting the probability of obtaining a certain result or hoped-for advantage. "Under French law, even if it cannot be established that the fault of the defendant caused the damage actually suffered by the plaintiff, the plaintiff can validly argue that the fault of the defendant deprived him or her of a chance to avoid the actual damage. The loss of a chance constitutes a separate head of damage which in practice corresponds to a fraction of the actual damage." JCP 1983.II.20056, D 1984.Jur.305; Bull.civ. 1985.I.298; Bull. civ. 1990.I.39. [26]Cass. 17 July 1889, Receuil Sirey 1897, I, 399. [27]Cass. civ. 1re, 16 July 1991. [28]Court of Appeal [1911] 2 K. B. 786, available at http://www.btinternet.com/~akme/chaplin.html. "[W]e have a breach attended by neglect of the defendant to give her a later opportunity; and when we get a breach of that sort and a claim for loss sustained in consequence of the failure to give the plaintiff an opportunity of taking part in the competition, it is impossible to say that such a result and such damages were not within the contemplation of the parties as the possible direct outcome of the breach of contract. I cannot think these damages are too remote, and I need say no more on the question of remoteness." (Emphasis added.) [29] [1958] 2 All ER 241. [30]AHA [1987] AC 750. [31]Ibid. 782 [32]Ibid. 786. [33] [1995] 1 WLR 1602. [34]368 F 2d 626, 632 (1966). [35]C. von Bar & U. Drobnig, The interaction of contract law and tort and property law in Europe: a comparative study, (Munich: Sellier, European Law Publishers, GmbH 2004), 84. [36]Damages resulting of a finding of liability for loss of chance under Italian law can be considered either lost profits or consequential damages. One source observes, "Generally we can observe a tendency by the courts, both on the merits and with regard to standing, to frame the phenomenon of the injury regarding chance as lost profits in cases of the lost possibility of winning a trial because of a lawyer's liability and in those of the lost chance of survival in the field of medical malpractice claims. Instead, an ontological interpretation seems to prevail (chance as an autonomous good and injury of it as a consequential damage) in the areas regarding promotions/hirings "by choice" by the employer." F. Caringela & D. Dimatteo, Studi di diritto civile: Obbligazioni e responsabilità, (Milan: Giuffrè Editore, 2007), 272. [37]The same idea is found in the early English case, Chaplin v. Hicks, cited supra, "I cannot lay down any rule as to the measure of damages in such a case; this must be left to the good sense of the jury. They must of course give effect to the consideration that the plaintiff's chance is only one out of four and that they cannot tell whether she would have ultimately proved to be the winner. But having considered all this they may well think that it is of considerable pecuniary value to have got into so small a class, and they must assess the damages accordingly." [38]The choice of examining the issue here finds support from the literature: "Correctly, the recent writings of scholars, recalling the results that have emerged in the French experience and the considerations of Pietro Trimarchi [the author cites A.M. Princigalli, "Perdita di chance e danno risarcibile," in Riv. crit. dir. priv., 1985, 315, 324], brings the issue within the framework of legal causation." Alpa et al., La responsabilità civile, 584. [39]A. Baldassari, "Fonti," in Gli interessi protetti nella responsabilità civile, in Vol. I of Il diritto civile nella giurisprudenza, ed. P. Cendon (Turin: UTET, 2005), 66. [40]Ibid. [41] [1995] WLR 1602. [42]van Gerven, et al., Tort Law, Common Law of Europe Casebooks, 226. [43]Deakin, Johnston & Markesinis, Markesinis and Deakin's Tort Law, 200. [44]Caringela & Dimatteo, Studi di diritto civile, 272. [45]G. Pascuzzi (ed), "Dal falso 'Interno metafisico' alle sventure del signor Baroncini: le prime sentenze sul danno meramente economico," in Lex Aquilia 10 (Bologna: Zanichelli, 2005), 4. The article's premise is that in the span of a few years various causes of actions arise in Italy: damage from the reduction of patrimonial integrity, damage from loss of chance, and damage from inexact information, which together constitute the first cases in pure economic harm in Italy. [46]Caringela & Dimatteo, Studi di diritto civile, 272-73. [47]Alpa et al., La responsabilità civile, Parte generale, 586. [48]See, e.g., Court of Cassation, 13 May 1882, n. 3020 in Arch. Giur. Circolaz., 1983, 37. [49]Often professional liability cases turn on questions regarding a negligent misrepresentation, such as the landmark English case of Hedley Byrne & Co. Ltd. v. Heller & Partners [1964] AC 465. It overturned the previous law which denied liability for harm from negligent statements, holding that in certain circumstances, claimants could be awarded damages for pure economic harm, unaccompanied by any physical damage, if the plaintiffs reasonably relied on the statements because of a special relationship between the parties. The topic of pure economic harm will be examined separately, infra. [50]Court of Cassation, Penal Division IV, 7 January 1983. [51]As noted supra, judges avail themselves to the criteria dictated by Articles 40 and 41 of the Criminal Code in matters of causation, even in questions of civil liability. On this case, see Zeno-Zencovich, "La responsabilità civile," 303-04. [52]310 F.2d 284 (1962). [53]Ibid. 285. [54]Ibid. 286. [55]Ibid. 288. [56] "It was less than a duty to rescue him, but it was a positive duty to make a sincere attempt at rescue. The duty is of such nature that its omission will contribute to cause the seaman's death. The duty arises when there is a reasonable possibility of rescue. Proximate cause is tested by the same standard, i. e., causation is proved if the master's omission destroys the reasonable possibility of rescue. Harris v. Pennsylvania R. R., 50 F.2d 866, 869 (4th Cir. 1931). Therefore, proximate cause here is implicit in the breach of duty. Indeed, the duty would be empty if it did not itself embrace the loss as a consequence of its breach. Once the evidence sustains the reasonable possibility of rescue, ample or narrow, according to the circumstances, total disregard of the duty, refusal to make even a try, as was the case here, imposes liability." Ibid.