Date: Fri, 15 Oct 2004 11:52:16 -0400

From: Jason Neyers

Subject: Afshar

Dear Colleagues:

After reading Asfar and other recent decisions (Lister comes to mind), I think that I have come to the conclusion that the current line-up of the House of Lords is the weakest private law version of the court that I can remember. With that "off my chest" some comments/questions:

a) To Lewis: why does the loss of autonomy have to be measured by the probability of something occurring rather than being a fixed sum? With that said, I don't think that your proposal would necessarily violate any legal principle because one can use probability as a "proxy" or "rough and ready guide" for measuring damage to autonomy and still claim that one does not give proportionate damages. If I remember correctly, that is an argument made by Stephen Perry in one of his articles in the UTLJ.

b) I wish that their Lordships would stop using the term "Corrective Justice" when they do not really know what it means (see e.g., Lord Steyn [21] who strangely groups CJ and policy together). CJ does not mean that every interference caused by another must be compensated, rather that only interferences with one's legal rights caused by another must be remedied.

c) I wish that the judges would figure out what they mean by policy. For example, Lord Walker says at [87-88] that he must use policy to say that causation is met in order to do justice. But if your goal is to design legal rules that do justice, aren't you just doing justice?

d) Can anyone explain why the courts started treating these cases as ones of negligence? It seems to me that they are better analyzed as consent to intentional torts cases. If they were analyzed in that way, would it not be clear that the plaintiff in Afshar should recover at least something? From my perspective, it seems like the courts are banging a square peg into a round hole.

Cheers,

Lewis KLAR wrote:

It would be useful if courts analyzed the matter in terms of redefining the injury. As Robert indicates, failure to warn of risks is deemed to be negligent not because it causes an injury to occur in a medical procedure, but because it causes the plaintiff to lose her choice to decide whether or not to undertake treatment. The injury which happened in the operation, did not occur because the doctor failed to warn her - the warning or lack of it really had nothing to do with it. (It is a causa sine qua non, not a causa causans, if I remember my Latin properly). The injury is thus really "loss of a choice". Viewed in this way, traditional tort law liability principles do not have to be mucked around with. There is duty, breach, damage (loss of choice), and cause.

Then we could move to assessment of damages for the injury. How much is a loss of a choice worth? Well, if the plaintiff would have definitely had the operation anyway, not much. Maybe some nominal damages for being denied the privilege of agreeing to the procedure. If the plaintiff definitely would not have had the operation, then the loss of a choice might be worth a great deal - what she suffered from the treatment as compared to her health status without the treatment. Then there is the mushy middle; that is the "probability" that she would have chosen one thing or another. I would argue that in dealing with assessment of damage we ought to operate on simple probabilities; that is, the damages are not all or nothing, but depend on the degree of likelihood of having treatment or not. For example, if there was a 60% chance of her opting for no treatment, she should get 60% of what a 100% denial would have given her and so on. I know that there are some who would argue that possibilities are only relevant when assessing damages for future hypotheticals and not for past hypotheticals, but I disagree. I think when assessing damages, possibilities should always be considered and treated accordingly, whether for past or future events.

--
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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