Everything is Foreseen and the Negligence is Given
University of Haifa - Faculty of Law; University of Oxford - Faculty of Law
October 18, 2012
Hebrew University Law Journal, Vol. 35, pp. 359-434, 2005
The article critically evaluates the reasoning of the Supreme Court in the Clifford rehearing, emphasizing the judicial expansion of tort liability, especially in the context of medical treatment. Part A criticizes the court's reasoning with regard to the defendant's lack of reasonable care. First, the court used a utilitarian-economic rhetoric, but misapplied the economic methodology. Second, the court found that not-implementing a superior medical technique, i.e. one that least discomforts the patient, was a strong indication for carelessness, although there is no necessary or substantial link between the two. Third, the court understated the importance of common professional practice in determining the medical standard of care. Fourth, the court overemphasized the significance of drug package inserts in establishing the standard of care.
Part B criticizes the court's reasoning with regard to questions of causation and remoteness. It first addresses Ms. Justice Beinish's view in the appeal (laconically embraced by Mr. Justice Orr in the rehearing) that a sequence of events and a final outcome that were totally unforeseeable may be deemed legally foreseeable for the purposes of legal causation. Justice Orr's alternative view was that the sequence of events in the present case could be severed in two: initially, a slight - foreseeable - injury was caused; later on, the patient's condition deteriorated, and the eventual - unforeseeable - injury ensued. Based on this factual assumption he applied what he perceived as an established interpretation of s. 76(1) of the Civil Wrongs Ordinance that allows imposition of liability for unforeseeable SECONDARY injuries. My critique is threefold. First, the sequence of events that led to the ultimate injury was non-severable. The factual assumption underlying the court's decision was, therefore, unfounded. Second, the seminal and sole case from which the court derived its construction of s. 76(1) does not truly support this construction. Third, whether or not this interpretation is supported by precedent, it seems inconsistent with the legislative intent and the theoretical foundations of liability for negligence.
Note: Downloadable document is in Hebrew.
Number of Pages in PDF File: 76
Keywords: tort law, remoteness, economic analysis
JEL Classification: K13
Date posted: April 6, 2007 ; Last revised: October 19, 2012
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