Date: Thu, 9 Nov 2006 17:36:59

From: David Cheifetz

Subject: Claimants' contributory fault, policy, and public authority "impecuniosity"

Michael,

There is duty, breach and causal link.

The analogy fits. Your distinction between actions against the consultant and a third person is an apt one. If it's correct, and it's correct to categorize the case as a "thin-skull" type, that's the end of a valid basis for complaining about the claimant's conduct.

I mention, in passing, that there's also an inevitability argument in my case - it was merely a matter of when, not if - but that's both factual and merely another way of phrasing the volenti point.

But there's also another "but" that's better in principle in an apportionment, not single "legal cause" context. It's a "but" because, I think, there's tension between the analyses underlying "thin-skull" and contributory fault. Or, maybe I think there is in this case because I'm too deeply into the area and can't see the forest, etc.

I think it isn't a complete answer in the third person situation now that jurisprudence (common law or statute) has junked last clear chance / ultimate fault style arguments. That's because the analysis - the take the injured person as one finds him/her/it, aka "crumbling skull" - is, in my view, one logical result of the old contributory fault absolute bar. The consequences of pre-existing contributory fault are as much an aspect of the claimant's condition as consequences which aren't due to "misconduct". (We've recognized that for seat-belts: see below).

Maybe, too, we have to differentiate between "ought to have" negligence and a conscious decision not to do that which you've been told you ought to do.

Let's go back to your example an assume we're dealing with the action against the motorist. In one example, our couch potato was "only" negligent in the way he/she attempted to carry out the doctor's prescription. In the other, he/she intentionally chose not to.

Or, in an example we're all more familiar with, the decision was not to wear a seat belt and the injuries would have been less if it had been worn. I don't think any of us know of a reported decision where a judge said the defendant has to take the plaintiff as he or she was (unseat-belted).

I don't see why I can't, in principle analogize the situation to the failure to wear a seat-belt. If I can, the argument is about the comparative extents of fault, not if there's contributory fault at all.

David

----- Original Message ----
From: "Jones, Michael"
Sent: Thursday, November 9, 2006 11:42:13 AM
Subject: RE: Claimants' contributory fault, policy, and public authority "impecuniosity"

Assuming duty, breach and causal link to damage, doesn't your defendant have to take the claimant as he finds him?

If my doctor advises me to take more exercise because I have a heart condition and tells me that if I don't then I'll probably have a heart attack, and I, being a couch potato, fail to heed his advice do have heart attack some time later, in my action against the doctor for negligently failing to prescribe medication to reduce my risk of heart attack, his advice and my negligent failure to take it, may be relevant. Possibly I'm contributorily negligent.

But if a negligent motorist drives towards me in such a way as to frighten me, provoking a heart attack, the motorist has to take me as he finds me. He can't object that if I had followed an exercise regime I would have been fitter and probably not have suffered the heart attack.

Does the analogy fit with your property damage claim?

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