Dear Rob, Sandy et al;

A few comments.

Rob wrote:

****

Is Gett v Tabet a case where the plaintiff cannot show that she has

suffered a wrong, similar to the chemical leak? I would argue no. The duty

owed by the surgeon is not the standard Donoghue v Stevenson duty, that we

owe to all others who we can reasonably foresee could be injured by our

conduct, to care with respect to them. Rather he owed a duty which he had

voluntarily assumed by accepting the patient that he would take care in

carrying out the treatment. This is (observably) not the same as the

Donoghue duty, as it is not just a duty not to injure. If she had paid she

would have a claim for breach of contract. The breach of this voluntarily

assumed duty should be actionable to the extent that she has suffered

loss: here the lost chance of avoiding brain damage.

****

That is indeed the crucial question- has there been some actual wrong? The way I view the beauty contest/litigation cases is that the claimant has lost "the opportunity of adjudication" from a third party, so that there is an actual loss. But what have they lost in this type of case? As I read the evidence, the breach of duty that was found (and upheld by the CA though acknowledging it was a very close thing) was the failure to order a CT scan on 13 Jan. The crucial episode that caused damage occurred on 14 Jan. The question was, what difference would it have made if the duty had not been breached? The trial judge found that, because there were a couple of possible courses of action that might have followed the ordering of a CT scan (including the chance that even if ordered it might not have actually been carried out before the crucial episode), he was not satisfied on the balance of probabilities that the episode would have been avoided- see para [222] of the CA judgment. (While he estimated a 40% chance of a better outcome, the CA at [245] actually said that if they had supported his approach, they would have re-estimated it as 15%. This, as Harold has commented to me, may make a difference in decisions about a possible appeal.)

Rob then argues that the relationship of the doctor and patient, voluntarily assumed, adds something extra to the equation. As I understand it, what he is suggesting is that while a mere stranger would not be liable for a negligent action where the chance of a better outcome was 40%, the doctor is. Presumably this is because what the doctor has given is an undertaking equivalent to a contractual undertaking to exercise due care, and any failure in care is a an actionable wrong. The only question then is giving some value to the harm.

(Is this similar to the suggestion in ICI v Rothwell (or whatever it is called now) that while the pleural plaques were not "damage" for the purposes of negligence, they could have been sued for as breach of the implied duty of care under contract?)

It is an attractive suggestion, but I don't recall this view being accepted previously outside a clear contractual context.

Sandy, thanks for your interesting comments which I did get to the end of! You say

***

And if we then say, more substantively, that "assumption of responsibility"

explains recovery for pure economic loss, and recovery for loss of chance of

avoiding economic loss, and recovery for loss of chance of avoiding physical

injury then we are, I think, pushing it a little. Though as I said, some

subscribe to a view along those lines : Goldberg and Zipursky in the article

I cited; and Perry (1995, ed. Owen, Philosophical Foundations of Tort). But

this line still leads to the problem of why recovery should ever be more

than proportionate in this context.

***

That is, you seem to be suggesting that all recovery should be proportionate to the evidentiary chance, even where it is above 50%.

I am not sure that Rob's view lead to this. Rob would be entitled to say- the loss is complete when there has been a failure of due care, which the doctor undertook to exercise. If the plaintiff suffers loss, they are entitled to have their loss valued which includes the chances they lost of a better outcome. But if as it happens the chance of a better outcome was more than 50%, then they don't need to sue for "failure to fulfil an assumed undertaking"- what they will be suing for is the fact that they suffered actually provable harm and under the law in that area, once the chance of provable harm is more likely than not they can recover for the full harm. At least that is the way I understand Rob's point.

Regards

Neil

Neil Foster

Senior Lecturer & LLB Program Convenor

School of Law

Faculty of Business & Law

University of Newcastle

Callaghan NSW 2308

AUSTRALIA

ph 02 4921 7430

fax 02 4921 6931

>>> Sandy Steel <as730@cam.ac.uk> 04/10/09 9:57 AM >>>

Thanks for the response.  

So we agree that

(i) Loss of chance represents an epistemic uncertainty regarding some state

of the world.

I also agree that

(ii) ""Negligence in the air" isn't enough to prove a wrong". (There are

however three interrelated concepts under the "no negligence in the air"

idea: that the tortious aspect of the conduct must be a factual cause of

some harm; that the harm is not pre-empted; and that (roughly) the harm is

within the risk: Wright (1985) Cal.L.Rev)

So turning to the proposed explanation of the cases where the law imposes

liability for loss of chance:

"Negligence "in the air" isn't enough to prove a wrong. You need to be able

to show that it was your rights which were violated, which the patient can

do as against the doctor who has assumed responsibility towards her, but

those who live in the vicinity of the chemical factory cannot"

But the no "negligence in the air" point does not map onto the point that

loss-of-chance liability can be explained by instances where there has been

a rights-infringement and loss-of-chance damages are awarded as

consequential losses. (Obviously, the negligence in the air point (in its

first two meanings) is an application of the principle that the right must

have been infringed: but the principle is obviously broader, applying

outside negligence, and outside wrongs which require causation of some harm,

e.g. trespass). I don't see why an "assumption of responsibility" meets the

negligence in the air point, it does not establish (absent a contract) an

infringement of right where the duty imposed by the assumption of

responsibility is breached (it does not establish causation)

If the response to that is: well, that shows how flimsy the distinction is

between bringing the claim in contract and tort for loss of a chance, then

we can't say that liability is "explained" by where there is an infringement

of right since we acknowledge in the response that that is a distinction

(between bringing in contract where we have a nominal breach and

infringement of rights and tort where we don't) without a difference.

And if we then say, more substantively, that "assumption of responsibility"

explains recovery for pure economic loss, and recovery for loss of chance of

avoiding economic loss, and recovery for loss of chance of avoiding physical

injury then we are, I think, pushing it a little. Though as I said, some

subscribe to a view along those lines : Goldberg and Zipursky in the article

I cited; and Perry (1995, ed. Owen, Philosophical Foundations of Tort). But

this line still leads to the problem of why recovery should ever be more

than proportionate in this context. If we say in principle C should recover

in full where he can show D wronged him on the BoP, then do we treat the

loss-of-chance claim as a subsidiary claim? I don't think this is met by

Rob's point, elaborated in his Torts and Rights (2007), that we have to

distinguish with regard to Smith v. Leech Brain between an infringement of

right and the quantification of consequential loss. I think this distinction

can be accommodated by a better concept of causation, like NESS, which

relegates Baker v. Willoughby/Jobling-like problems to valuation of damages.

But I don't see why putting this doctrinally as matter of damages should

hide the fact that damages are reduced to account for the probability that

due to a non-tortious factor it might have happened anyway.

Secondly, Rob wrote:

"The last point [whether consequential damages had to be proved in the US to

be reasonably likely to occur] is an issue of remoteness and is the same in

England. Where you seek recovery for consequential loss you have to satisfy

Hadley v Baxendale."

I would be wise not to disagree with that! But I didn't mean to dispute

anything about remoteness. It is one thing whether damages are too remote

(whether they are not within Hadley limbs (1) and (2)). It is another thing

whether, even if they are not too remote, what standard of proof will be

applied in determining whether the defendant caused them. In the US, I

think, one must show with regard to future loss (and past loss - no weird

distinctions based on third parties' actions as far as I know) that the type

of damage is reasonably foreseeable (remoteness), but also that is more

likely than not that the D caused it. Whereas in England, one can claim for

the loss of chance of obtaining some past/future benefit. That effectively

means that a lower standard of proof is applied to some future loss (one can

obtain damages for a harm less than 50% likely to occur).

Finally, sorry for rambling on, but one last point. I disagree with the

conclusions Rob draws from his analysis of the factory-chemical example:

"If I negligently release a noxious chemical which 100,000 people inhale, if

25 years later there are 150 cases of lung cancer when without the release

there would have been only 100, all of those who suffer from the disease can

show that I have caused them to lose the chance of avoiding the disease but

none can show that I have injured/wronged them as on the balance of

probabilities each would have suffered the disease anyway".

Ex ante, Rob argues, the risk exposure each of the 100,000 suffers is

1/2000. Ex post, only the 150 who suffer actually lose a chance of 1/3:

"Only the 150 people who develop the disease suffer a lost chance (1/3) of

avoiding the cancer they have". This is supposed to show that the increased

risk of avoiding harm in the future is not the same as the loss of chance of

avoiding a harm.

This is true, but it is only true because we have more data when we know

that the 150 people have suffered cancer; we have a better idea as to the

probability that the defendant has caused the individual C's harm. We know

that 100 were doomed anyway and that 50 got cancer through the D's agency.

We do not know who belongs in which class. It is therefore impossible to say

that all those who suffer the cancer "actually" lost a chance (Rob does not

use this word, but it is a contrast implied in his analysis)- some of them

didn't - they were doomed: all we have is just a better approximation for

each of the 150 that the defendant caused their cancer. There would thus be

no inconsistency for the law to award damages for loss of chance before the

harm actually occurs: some people are doomed; some are not. We are in

exactly the same situation when the harm occurs; we just have better

probabilities.

I'll be amazed if anyone makes it to the end of this,

Cheers,

Sandy