Date: Thu, 9 Nov 2006 18:25:24

From: Michael Jones

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

David,

I take your point about the seat belt, but I wonder how far back in time we would be prepared to go in identifying the claimant's fault? If, as a young man I had been in an accident as a result of my own negligence causing me to have the "thin skull" - let's say a "dodgy" leg liable to give way under me. 30 years later the negligent defendant causes me to fall down some stairs, but if my leg had not been "dodgy" I might have been able to avoid the injury or some of its severity - am I contributorily negligent? The seat belt is easier because it is obvious to all what the precaution is meant to avoid, and the harm it is designed to avoid has an immediacy with respect to the damage. On standard principles my "dodgy" leg is irrelevant to the defendant's liability; on your approach then perhaps my earlier negligence should be factored in?

Incidentally, I've just remembered the one English case which is (sort-of) similar to my doctor-patient example, though it is only a county court decision and therefore of no authority. In Pidgeon v Doncaster Health Authority [2002] Lloyd’s Rep Med 130 the claimant developed cervical cancer, having negligently been informed, incorrectly, that the results of the smear test were negative. She failed to have further smear tests (which should have identified the cancer and therefore treatment would have commenced much earlier than it did), despite frequent reminders. The patient was held to have been two-thirds contributorily negligent.

Michael

--------------------------------------
Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool
L69 3BX

Phone: (0)151 794 2821
Fax: (0)151 794 2829
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--------------------------------------------------------------
From: DAVID CHEIFETZ
Sent: Thu 09/11/2006 17:36
To: Jones, Michael
Cc: David Cheifetz
Subject: Re: 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.

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