Date: Jason Neyers

From: Wed, 25 Feb 2004 12:53:26 -0500

Subject: Loss of a Chance et al

Ken,

I think that we are in agreement on everything except whether or not using the alternative (MC or NESS) means that it is the Red Cross/Dow who is the cause as opposed to the donor/doctor.

Take the following example: X fails negligently to put brake in a car and Y fails negligently to use the brakes and hits Z. Can Z sue X or Y or both as factual causes of the harm? In his newer article, Wright seems to suggest that only Y is a factual cause since Y's failure pre-empted the causal significance of, although X may have been a possible cause if things had turned out differently.

Assuming Wright is correct, this seemed to suggest to me that in Walker/Hollis the causal significance of the negligence of the Red Cross/Dow was pre-empted in the same way by the donor/doctor as the failure of X was pre-empted by the failure of Y in the example above. Your e-mails seem to suggest the opposite: i.e., that negligence of Red Cross/Dow pre-empted the donor/doctor.

What am I doing wrong?

Cheers,

Ken Cooper-Stephenson wrote:

Jason,

With respect, you may not understand the argument. And I think you attribute to me points I was not making. I do not wish to be misunderstood as asserting what you suggest I am asserting. I am absolutely not suggesting that "proving that you did not cause something [is] enough to ground a tort that needs proof of actual causation". I was suggesting that the so-called "material contribution" test should be restricted to cases where there were present or potentially present two "sufficient" causes, each of which was, or would have been, necessary without the other. Call this NESS, if you wish. In more detail, and leaving aside the point that Major J. in Walker eventually justified causation on the basis of the but-for test by a finding of the (hypothetical) fact that the proper information would have made a difference in the conduct of the donor.

The point is that if the donor would negligently have donated blood even with the proper warnings, the "but-for" test cannot be used because the donor's potential negligence is an "alternative wrongful event" which would have been sufficient by itself to cause the harm had the other sufficient prior cause not happened (the negligence of the Red Cross). This does not make the donor's potential negligence a cause of the harm, but the existence of that potential cause in the background, means simply that the "but-for" test is philosophically unsound as a criterion to determine whether the negligence of the Red Cross was a cause.

Obviously the Red Cross's conduct is an event which is one of the conditions sufficient to result in the plaintiff's harm. It was a cause of the harm, but not a necessary (but for) cause. In these cases the two sufficient causes may sometimes both be considered causes (e.g. if they occur simultaneously, or their effects strike simultaneously. Where the causes occur sequentially, the dominant view is the "devaluation" theory (see e.g. Fleming) so that the first cause which was sufficient to bring about the harm on its own (necessary without the other sufficient cause) is treated as the cause.

In both Walker and Hollis the first sufficient cause was the Red Cross's negligence (Walker), or the failure of Dow to release the risk information (Hollis); and these events meant that the second events never came about, the events being potential negligence on the part of the donor (Walker) or potential negligence on the part of the doctor (Hollis). Because these alternative events would have been sufficient (necessary without the initial negligence of Red Cross or Dow) the but for test can not be used as the test of whether the Red Cross or Dow's negligence was a "cause" of the harm. If the but for test is used in such circumstances, (as La Forest rightly points out in Hollis) there will be two sufficient negligent acts (or potential negligent acts) and neither will be held to be the cause of that harm: yet the plaintiff was obviously harmed by (because of) one or other or both of these negligent acts and potential negligent acts.

Some other test must be used, and, for what it is worth, the courts have called this the requirement that an event have been a "material contribution" to the harm, being a prior event which was part of the circumstances preceding the harm which, in the absence of the alternative sufficient events, would have been a necessary causes).

Sorting this all out requires much more than these few paragraphs (but may not need the elaborate categorization of such causes which can be found in the German literature).

--
Jason Neyers
January Term Director
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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