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Date: Fri, 21 Jun 2002 11:02:21 -0400 From: Jason Neyers Subject: Fairchild released
Dear Colleagues, Three Announcements/Reminders: 1. We now have almost one hundred members on the ODG from 8 countries. 2. Remember that when you hit "reply" to an ODG e-mail, the reply will be to the ODG (and hence to everyone) rather than to the originator of the e-mail. 3. Those of you interested in causation in tort will have a field day with the new HL decision in FAIRCHILD v GLENHAVEN. (see http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/jd020620/fchild-1.htm) The decision, in which all the Lords wrote lengthy judgments, deals with the issue of causal uncertainty and the approach that English law should take in response: a factual presumption, legal presumptions, differing standards of proof, etc. Although the Lords agree in the result (the injured plaintiff wins), the ratio of the case is unclear given the various judgments. In any event, the decision is interesting for at least 5 reasons: a) 4 of the Lords agree that Lord Bridge’s analysis of McGhee in Wilsher is incorrect and should no longer be accepted. b) Law from almost every major common law and civilian jurisdiction is cited, including even citation from classical Roman sources. c) Their Lordships differing views as to the interrelationship between remoteness rules and factual causation rules. d) Their Lordships differing views about the relevance of medical evidence and the ability of the finder of fact to depart from this evidence. e) Their Lordships differing views about the primacy of the “but for” test and what departure from that test in other cases (of causal over-determinacy) allowed them to do in Fairchild itself (a case of causal uncertainty). For what its worth, after a first reading the judgment of Lord Hutton seems the most persuasive, (but maybe because it is closest to the Canadian position in Snell v. Farrell) and that of Lord Hoffman the least, though I’m sure there will be many conflicting views. Happy Reading,
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