Date: Thu, 14 Oct 2004 15:22:53 -0400 (EDT)

From: David Cheifetz

Subject: Chester v Afshar

The HL decision is 3-2 in the patient's favour, affirming the trial and appellate result. The majority reasons are a rehash of Chappel v Hart.

On first blush - I should be working on a file, not reading the HL reasons -

the substance of the majority reasoning seems to be that she should succeed on policy reasons required to remind the medical profession of the importance of complying with the duty to warn, notwithstanding that causation couldn't be satisfied. Putting this another way, the HL seems to have held that protecting patient autonomy and the right to chose is more important than doctrinal coherence because otherwise the duty to warn would be meaningless in many cases where it mattered. That is, she had the right to decide for herself. The doctor's failure to warn deprived her of that right in the circumstances, maybe she would not had the operation, she certainly wouldn't have had it when she did, therefore he won't be permitted to say the breach of the duty is not a legal cause in fact. The HL, as it did in Fairchild, made reference to the need to relax causation rules in appropriate cases. The HL rationale seems to amount to presumptive causation such as the Supreme Court of Canada used in the Hollis v Dow failure to warn case.

David Cheifetz
Bennett Best Burn LLP, Toronto, Canada

Jason Neyers wrote:

Dear Colleagues:

The House of Lords decision in Chester (Respondent) v. Afshar (Appellants), which deals with causation in medical failure to warn cases, has just been released. It will be interesting to see what they did with the issue.

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