Date: Thu, 15 May 2008 17:15

From: Robert Stevens

Subject: High Court touches on causation

You are certainly not alone (see Jenny Steele, 'Breach of Duty Causing Harm' (2007) CLP; R Stevens, Torts and Rights (2007), 167-169). I agree Ms Chester was a mountaineer.

But, I think the 'no recovery for coincidental loss' rule is separate. In SAAMCO the loss was not coincidental, just as the mountaineer ran a greater risk as a result of the doctor's negligence.

Put another way, Chester v Afshar is doubly wrong. It was coincidental harm and it was outside of the purpose of the duty.

R

Quoting Adam Kramer:

I don't think I'm alone in this, but I think of Chester as a SAAMCO scope of duty problem. The purpose of the duty to warn was to give a choice as to whether to have the operation. The harm didn't result from the deprivation of that choice. Ms Chester was therefore a mountaineer.

Robert Stevens
Professor of Commercial Law
University College London

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