On Good Intentions and Poor Outcomes: A Critical Retrospective on Chester v. Afshar

Abstract

Law needs to render authoritative judgment on the cases that come before it - what, however, can be done when causal indeterminacy prevents a complete knowledge of the causal relationship between negligence and loss? How far does an approach that examines extraneous values and interests benefit the decision? In Chester v. Afshar, the conflict was between protecting a fundamental human interest of the claimant versus maintaining adherence to the rule of factual causation, one of the most widely-recognised legal heuristics. This critical analysis will, after stating the pertinent facts, examine the case for the opposing concepts and conclude that the House of Lords erred in law, fact and principle in finding for the claimant. It is submitted that their Lordships erred in law when seeking to interpret Fairchild v. Glenhaven Funeral Services expansively as generally justifying the displacement of causation rules where fairness so demanded and failed to recognize that Fairchild concerned a special case due to multiple causation, a feature not present in Chester. Further, it will be argued that their Lordships erred in fact in basing their judgment on an erroneous conception of probability that failed to distinguish between different and in fact incommensurable concepts, namely probability and actual occurrences. Finally, it is submitted that their Lordships erred in principle in giving preference to ‘practical justice’ as distinct from the adherence to ‘traditional’ rules of causation without due consideration for the true importance and meaning of the causa sine qua non requirement.

Keywords: tort, causation, neurosurgery, negligence, professional negligence, indeterminacy, chester v. afshar

JEL Classification: K13