Date: Wed, 25 Feb 2004 15:25:15 –0500

From: Jason Neyers

Subject: Loss of a Chance et al

I post this on behalf of Ken Cooper-Stephenson:

Jason,

Your hypo. is one of two "additional" causes, whereas Walker and Hollis are cases of "alternative" causes. In Walker and Hollis the second potential cause was never brought into play: neither the donor in Walker nor the doctor in Hollis was negligent (in the respect which we are discussing), because they were never forwarded the info. on which they were expected to react carefully: their negligence and that potential cause remained hypothetical and simply could not be a cause because it did not happen at all. Where both defendants were negligent, the case is one of "additional" sufficient cause (your hypo.), and then the dominant view is the "devaluation" theory (the first of the two is the cause), although, as Fleming once noted, I argued for both causes being treated as causes -- as concurrently operating to cause the harm.

In short, your hypo. involves "additional" causes; Walker and Hollis involve "alternative" causes where the second sufficient event never happened and simply could not be considered as a cause, leaving the event that happened as the cause.

Ken

From: Jason Neyers
To: Ken Cooper-Stephenson
Subject: Re: ODG: Loss of a Chance et al
Date: Wed, 25 Feb 2004 12:53:26 -0500

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?

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

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