Can I Sue For Lost Opportunity?


Yes, you can sue for loss of an opportunity. In general, you can receive compensation for a lost opportunity suffered as a consequence of some contractual breach, injury or misleading conduct. This article will focus on lost opportunity damages arising from a breach of contract and misleading and deceptive conduct.

Defining Lost Opportunity

The definition of lost opportunity is simply its plain English meaning. It is an opportunity that no longer exists. However, it also refers to a category of damages or compensation available when some wrong occurs. A contractual breach, personal injury, negligence, misleading and deceptive conduct are all forms of wrongs. General damages aim to place the injured/harmed party in the position they would have been in if the wrong did not occurred. Lost opportunity damages go one step further. It compensates the party for a benefit or profit that was supposed to arise out of the contract or commercial deal.

Lost Opportunity for Breach of Contract

When a breach of contract occurs, a claim for lost opportunity may arise. This means the Courts can award damages if the breach of contract resulted in some loss of a chance to profit or gain some benefit from the contract.

Suing for this type of compensation means that one parties breach of contract causes the other party to loss some benefit. The Courts may find it appropriate to award the aggrieved party with damages, including damages for the lost opportunity suffered.

However, a reasonable connection between the breach and the profit or benefit must exist. This is discussed in example 2.

Lost Opportunity for Misleading and Deceptive Conduct

Misleading and deceptive conduct can result in lost opportunity damages being available in an award for compensation. However, the misleading and deceptive conduct must have been:

  • Relied upon by the innocent party in good faith,
  • The deceptive conduct must have been the material and direct cause of the lost chance, benefit or profit,
  • The lost chance, benefit or profit must have been a foreseeable consequence of the harming parties deceptive conduct.

Example 1

A property developer (PD) contracted a structural engineer (E) whom incorrectly certified the structure of the building. E was aware that one of the walls required more support, but in the interest of time E kept this information to himself. The construction of the building was complete. However, a few years later the main supports gave way. The building was demolished. E’s failure to notify PD of the mistake caused the material loss of profit. It was foreseeable that E’s deceptive conduct (failing to inform PD of this mistake) caused the buildings demolition.

Calculating Damages for Lost Opportunity:

When the Courts award compensation, many categories of damages are taken into account. There are many different categories of damages, e.g. nominal damages, compensatory damages, exemplary damages and aggravated damages. Lost opportunity damages are a type of compensatory damages. Therefore, this category of damages will increase the total sum of compensation payable to the injured or aggrieved person. At times, the sum of money for lost chance or benefit can be a significant amount.

However, the Court will not award compensation for every single lost benefit or profit someone has suffered. There must be a reasonable link between the breach and the lost opportunity. This is illustrated below in a personal injury context.

Example 2

David is a skilled worker who has worked in the construction industry for 20 years. David’s employment requires a lot of heavy manual labour. David got into a car accident as a result of another drivers negligence. Due to the injuries David has sustained, he cannot return to his employment. Because Davids injury has had direct impact on his ability to work in the construction industry, it is likely that the Court will award David damages for lost opportunity and lost wages, on top of any other damages available to him.

Final Thoughts:

You can sue for lost opportunity, so long as the basis of the claim is in contract, negligence, personal injury or misleading and deceptive conduct. It is a certain category of damages that goes that one step further. However, there must be a direct connection between the wrong and the lost benefit, chance or profit.

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