-----Original Message-----
From: Robert Stevens
Sent: 15 May 2008 14:54
To: DAVID CHEIFETZ
Subject: Re: ODG: High Court touches on causation
Characterize the harm as "co-incidental" - if that characterization is relevant to the actionability of the impugned conduct, it determines the answer to the inquiry of whether the conduct is actionable, no?
An injury is coincidental if the defendant's conduct did not increase the risk of its coming about. If I am in a taxi during a storm, and the taxi driver negligently breaks the speed limit, and the car is hit by a falling tree which is blown over injuring me, my injuries are coincidental to the defendant's negligence. If he had not been speeding, we would have been at a different place on the highway and would not have been hit by the tree. However the risk of being hit by falling trees is not increased by speeding.
Why is the harm "co-incidental" when Ms. Chester might still have had the bad result from the operation properly performed even if she had the operation on a later day? The risk might have been small, but it was nonetheless relevant risk.
She might have had the bad result but the overwhelming likelihood is that she would not have done. The operation was like the spin of a roulette wheel. So on another day, the overwhelming likelihood is that all would have been well. So the failure to warn made a difference: but for the failure to warn she would have had a successful operation on another day (on the balance of probabilities). I agree that we don't stop at asking whether she would have had the operation. We ask what would have happened if she had had the operation on another day. On another day, her number would not have come up (probably).
I am certain Chester is wrong, but it is not wrong because the but-for test is not satisfied.
I think Kirby J is probably using 'material contribution' to mean 'materially increased the risk'. I think we are ad idem that his approach is wrong and that the majority are right.
