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Date: Fri, 8 Aug 2008 00:14

From: Michael Jones

Subject: Factual Causation Follies - Bailey v The Ministry of Defence & Anor (EWCA)

 

Dear David,

Is this correct?

I'm sorry, I don't know whether it is correct, because I don't understand the question/premise.

My (simplistic) understanding of the complex medical evidence, reduced to its basics, was that the claimant's weakened state had two causes, the negligence and the pancreatitis. So I don't understand the statement that "the trial judge was not prepared to find that A and B, together, were probably sufficient". So far as I can tell, A and B were sufficient, and Wilsher was irrelevant.

  

Regards,  
Michael

--------------------------------------
Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool  
L69 3BX

Phone: (0)151 794 2821
Fax: (0)151 794 2829
--------------------------------------

  

--------------------------------------------------------------------------------
From: DAVID CHEIFETZ   
Sent: Wed 06/08/2008 23:32 
To: Jones, Michael; Neil Foster; Sarah Green 
Subject: Re: Factual Causation Follies - Bailey v The Ministry of Defence & Anor (EWCA)

Dear Michael:

We could add: And we know from the trial findings that the trial judge was not prepared to find that A and B, together, were probably sufficient. Neither he nor the Court of Appeal were prepared to use Wilsher to do that. If we assume that the causal mechanisms would be the same - weakness preventing B from dealing normally with vomiting - the question is why. I assume that's because he rejected the specific mechanism that the plaintiff offered as to explain the connection between negligence, B's weakened state, and her aspiration of vomit. Having done that, he was not prepared to - not permitted by English law to? - make a decision based on a "common sense" but-for inference that A and B were probably sufficient, in the absence of any other evidence upon which that inference could be made (CA [28], trial 55]). In other words, common sense was not enough. Is this correct?

 

 


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