Loss of a Chance and Breach of Fiduciary Duty – The Requirement of Certainty of Loss
(2016) 28 SAcLJ 825
Equity necessarily requires that the plaintiff’s losses be made certain when awarding equitable compensation for losses flowing from breach of equity’s proscriptive duties against unauthorised conflict and unauthorised profit. This article suggests that the method of making certain these losses must be consistent with equity’s normative commitments in relation to the fiduciary’s obligation of undivided loyalty. Two approaches are discussed: the first according to a method of probabilistic reasoning; and the second explicitly by reference to equitable discretion and according to equity’s presumed standards of conduct expected of the fiduciary.