Perda de chance no direito brasileiro e português

Abstract

The research aims to study the theory of loss of chance in Brazilian and Portuguese Law. The loss of chance is the situation where a person is placed in a random process that can achieve a profit or avoid a loss, and one third part interferes with the process and the victim did not reach the expected result, but we can not establish whether the loss of the expected advantage is a consequence of that behavioral or any other outer factor. One can only say that the victim lost an opportunity to achieve a favorable outcome. To attain that goal, it preliminarily defines the concept of chance and the origin of the theory, which emerged in the late 19th century in France. The text presents an overview of its application in French, Italian, English, German, Austrian and Spanish Law, and the analysis of some recent developments in European soft law. On this basis, the research evaluates the state of art in the Brazilian and Portuguese Law, based on the analysis of the case law and its acceptance of the theory, and the study of the criteria of causation and damage, in order to establish whether the loss of chance is repairable, on the legal framework of civil liability from those legal systems. As to Brazilian law, the research finds wide acceptance of the loss of chance by the judiciary and the legal researchers, although they occasionally criticize its application, mainly for political arguments, especially in the medical field. In this legal system, the loss of chance is valued both as a matter of alternative causality as an autonomous damage, the latter being the predominant position in judicial decisions. Concerning the Portuguese Law, there is a greater concern with the acceptance of the theory due the development and sophistication of the debate, which cares more about establishing how to fit the loss of chance on criteria established in the existing law. This base results in proposals that will go beyond simple characterization of the loss of opportunity as a matter of harm or causation, such as strictly normative analysis. The discussion in Portugal earns a different approach compared to Brazil due to the consideration of two instruments derived from the Austrian law, namely, the flexible system and the alternative causation. These elements makes the debate much more robust than the Brazilian doctrine, where there is total ignorance about them, despite the alternative causation not be a total unknown idea, as it is studied through the French doctrine perspective of partial causality. The quantification of the loss of chance can be given by two criteria, one for calculating the probability of success reduced by the conduct of the offender, multiplied by the value of the final advantage lost, and another by equitable analysis of the magistrate. Both methods requires the consideration of the value of the final damage, one of the factors that inhibit the consideration of loss of chance as an autonomous damage. If, on one hand, the application of alternative causation in Portuguese and Brazilian law collides with the requirement of adequate causality, which is only beatable by the adoption of an idea of flexible system, the fixation of loss of chance as a loss in itself and independent of the lost final advantage emerges as the most considerable option, given the current state of the law and the possibility of no compensation at all. The research adopts the scientific deductive method of research literature and jurisprudence.

Date of Award	20 Mar 2015
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Júlio Manuel Vieira Gomes (Supervisor)