| From: | Vaughan Black <Vaughan.Black@Dal.Ca> |
| To: | Sarah Green <sarah.green@st-hildas.ox.ac.uk> |
| obligations@uwo.ca | |
| Date: | 25/01/2016 19:21:05 UTC |
| Subject: | Re: Causation in the Privy Council |
The argument that the doubling-the-risk test should be rejected because "a doubled tiny risk is still very small" is not especially convincing. It is true that if the defendant's actions increase the risk of the claimant suffering harm H from one in a million
to three in a million that may not seem like a big deal. And it may be a reason for concluding that the defendant has not fallen below the standard of care. But if that the defendant has fallen below the standard of care and if the harm (the three in a million
chance) has occurred, then why not conclude that, on a balance of probabilities, the defendant caused it?
Dear colleagues,
In Williams v Bermuda Hospitals Board at https://www.jcpc.uk/cases/docs/jcpc-2014-0110-judgment.pdf, the PC grapples with the thorny issue of material contribution to injury.
The acknowledgement that the Court of Appeal in Bailey v MOD was wrong to describe material contribution to injury as an exception to the But For test is welcome, as is the recommendation that the doubling of the risk test should only ever be used with caution.
The dismissal of the Bermuda Hospital Board’s appeal , however, on facts which did not require a material contribution to injury analysis is not good news, particularly for medical practitioners and their insurers. An orthodox But For analysis along Barnett lines should have been applied, under which a different result would have been reached – the evidence (patchy thought it was) suggested that the claimant’s fate was sealed before the defendant contributed to the ongoing risk.
Best wishes,
Sarah
Sarah Green
Lord Hoffmann Fellow in Law
St Hilda's College
Oxford
OX4 1DY
01865 286661
https://www.law.ox.ac.uk/people/sarah-green