Date: Fri, 28 Jun 2002 16:08:24 +1200

From: Allan Beever

Subject: More on Fairchild on McGhee

I have some questions concerning this case. If anyone is interested in them, I would be keen to read responses.

(1) If it is right to say that the medical evidence in McGhee was such that the Lords could not come to the conclusion that on the balance of probabilities the D caused the P's injury, then

(2) This means either that on the balance of probabilities the D was not the cause of the P's injury or the probabilities were evenly balanced. Hence,

(3) McGhee was wrongly decided.

(4) Ie, McGhee should not be used to argue for liability in Fairchild (which could be justified on other grounds in any case, it seems to me).

If (2) does not imply (3), then in what sense is causation a necessary element of the cause of action?

Isn't it the case that (2) is actually false and that (1) is misleading? (1) is just the view that the medical evidence did not justify the conclusion that the D caused the P's injury on the balance of probabilities, it should not be read as saying that that conclusion cannot be reached. Ie the medical evidence was inconclusive. One could not say that it showed that the D was the cause, but nor could one say that the D was not the cause. In such circumstances, it is surely essential for the court to make an assessment of the likelihood. It cannot be right to deal with this sort of uncertainty by finding automatically for either party. Finding for the P in such cases, as seems to be part of the ratio in Fairchild (or at least one could interpret it that way), irrationally privileges the position of the P who is injured in circumstances where there is medical uncertainty over that of a P who is not (cf. the understanding of res ipsa loquitur according to which the burden of proof is reversed). Note that a P may be injured in an area were there is medical certainty, but the P cannot prove her case, because there is insufficient evidence in those particular circumstances, for instance. If the risk of uncertainty falls on the D in Fairchild and McGhee (as interpreted in Fairchild), why should it not be the case that the D must always show that he was not the cause of the P's injury?

In any case, if (2) is right, then the D has proven on the BoP that he was not the cause of the P's injury (unless the probs are evenly balanced) and hence this goes even further than the old understanding of res ipsa loquitur. Isn't this tantamount to denying that causation is an essential element of the cause of action?

Cheers
Allan

PS I have argued in the UTLJ that McGhee was wrongly decided, though not on these grounds. If this were all that there were to it, I would be happy with McGhee and with Lord Hutton's interpretation of it.

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