Date: Tue, 25 Jun 2002 12:09:36 +1200

From: Allan Beever

Subject: Fairchild Discussion

Hi Jason, I'm generally with you on this one. It seems to me that the kind of uncertainty in McGhee is not the kind of uncertainty in Cooke v Lewis and that it is crucial to distinguish these. As I read McGhee, the issue is scientific uncertainty and the inability to get scientific experts to answer the relevant legal question, ie was the D's negligence a cause of the P's injury on the balance of probabilities. In the absence of scientific certainty, this must rely on "common sense" or more accurately hunches about causation. If scientific uncertainty is the problem, though, then it is crucial that the scientists' hunches are consulted and not lawyers' or judges', as the guesses of scientists will at least be educated ones.

Cook v Lewis is a different sort of case. Though in fact one could interpret this case as one of scientific uncertainty ­ ie insufficient forensic evidence ­ that isn't the issue that presents itself in that case. Rather, the question there is about the nature of legal causation (by which I do not mean legal cause). In this case, we know for certain that one D did not cause the injury (though I'm not sure that we actually are certain in Cook, but that is another matter). The issue then is how can it be appropriate to impose liability on such a person.

In Fairchild, the HL seems to me to be confused about this distinction. Perhaps Fairchild raises both issues, but McGhee is surely about the former, not the latter. Hence, they interpret McGhee in the light of the result they want in Fairchild, but this is bad news. They at least come close to eliminating factual causation as an element in some (albeit few) cases of negligence. So, I too prefer Hutton's understanding of McGhee.

From my perspective, the worst judgment must be Hoffman's. He seems to disconnect causation from reality entirely making it a completely contextual issue of policy. Perhaps that is unfair, but what can it mean in this context to say that causation differs depending on the purpose of the enquiry? Is causation one thing in negligence and another in battery? If it is, what could causation be?

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