Date: Thu, 25 Dec 2003 15:09:14 -0500

From: David Cheifetz

Subject: Recent Causation Article, Oxford JLS

Dear Colleagues:

Members of this group, who don't already know about the piece, may be interested in a recent article in the Oxford Journal of Legal Studies: Porat, Stein and Cohen, Indeterminate Causation And Apportionment Of Damages: An Essay On Holtby, Allen, And Fairchild (2003) 23 OJLS 667

The abstract is:

"Holtby, Allen and Fairchild are both recent and revolutionary decisions that address an important aspect of the indeterminate causation problem that frequently arises in tort litigation. In Holtby and Allen, the Court of Appeal departed from the traditional binary approach, under which a tort claimant either recovers compensation for his or her entire injury or is altogether denied recovery-depending on whether his or her case against the defendant is more probable than not. Holtby and Allen substituted this approach by the proportionate recovery principle, under which the defendant compensates the claimant for a fraction of his or her injury that represents the defendant's statistical share in that injury. This article analyses this development within the particular domain of indeterminate causation, over which the proportionate recovery principle has been licensed to exercise control. The article claims that this development would constitute an improvement of the law from the perspectives of both optimal deterrence and corrective justice, if the courts properly formulate its scope. First, the proportionate recovery principle needs to be explicitly confined to cases that deal with recurrent wrongs. Second, determination of the defendant's share in the claimant's injury ought to be grounded on the (ex post) probability of causation, rather than the (ex ante) risk of inflicting that injury. Third, judges must not apply unarticulated intuitions in determining the magnitude of the relevant risk or probability: their decisions in that area would be better informed by the statistical principle of 'insufficient reason', also known as the 'indifference principle'. Fourth, courts are yet to relieve the doctrinal tension between the proportionate recovery principle, as recognised in Holtby and Allen, and the previous rejection of that principle by the House of Lords. Subsequently, the article analyses the House of Lords' decision in Fairchild- yet another instance of indeterminate causation in which proportionate recovery is preferable to the 'all or nothing' approach. In this case, the House of Lords allowed the claimants full recovery. This holding was grounded in the Law Lords' innovative approach to indeterminate causation, and the article unfolds the problematics of this approach. Finally, the article offers an adoption of yet another legal mechanism-the 'evidential damage doctrine'- that replaces liability under uncertainty with liability for uncertainty. The article demonstrates that the evidential damage doctrine satisfies the demands of both optimal deterrence and corrective justice, and that it would resolve the indeterminate causation problem better than would any of its competitors. Furthermore, application of this doctrine need not be limited to cases featuring a recurrent wrong. The article demonstrates these advantages of the doctrine by applying it to Holtby, Allen and Fairchild."

David Cheifetz
Fernandes Hearn LLP
Toronto, Canada

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