Date: Thu, 9 Nov 2006 11:55:23 -0800 (PST)

From: David Cheifetz

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

Michael,

I'm not sure there's a cut-off point in the "how far back question" for contributory fault factual causation that can be chosen (necessarily defined by?) only on some logical application of principle, any more than there's one for causation in the liability factual causation analysis. I'll put it in the positive. I believe there's no such logically necessary cut-off point. Jane Stapleton said it very nicely in "Legal Cause-in-fact and the Scope of Liability for Consequences" (2001), 54 Vand. L. J. 941 at 975: "at its most curious, science does not rank historical factors in terms of 'significance', for there are no criteria on which to do so without the purpose of the project first being set. It is the lawyer's purpose in allocating legal responsibility that is driving this notion of significance."

That's because, as any number of people have said any number of times, "every event or occurrence is the result of many conditions that are jointly sufficient to produce it". (I'm quoting John Fleming's version from any of his versions of his text). Law decides which of those events is or isn't significant. That significance, however, has nothing to do with factual causation and everything to do with (using scare quotes) "policy" decisions we make that we have to make to permit the system to expeditiously, practicably, decide the issue. We have to have a cut-off somewhere. So then, the question becomes: what are the factors that determine law's "significance". A good point about the immediacy aspect where seat belts are involved. That's a good example of a significance test, I think. There is an "immediacy" aspect in my case as the recommendations were intended to eliminate the possibility of exactly what later happened.

Your weak-leg example is another way of asking the "novus actus" question. I think, in the contributory fault context, in principle it's not why your leg was weak but that it was weak. There's an immediacy aspect if the weakness is an ongoing problem that I know or ought to know about. That's how I'd weigh whether the condition is significant enough to be considered relevant in law. It's clearly relevant to the purely factual question of why you fell.

So, I think it wouldn't be correct to say that you were careless about your own safety if there was no basis for saying that knew or ought to have known that your leg was weak so that you shouldn't have been walking down those stairs without holding on to something. Or, you should have ridden down the stairs in the lift-chair which you'd installed recently. However, you couldn't because it wasn't working because of some reason which you knew about but were too lazy to get repaired.

In my case, I think it's more likely that the case will settle in away that everybody can live with if I can move my opponents to conceding we're into a fight about "how much fault they have to bear" - which is then a fight about the significance of what they did or didn't do that they'll have to let a judge delve into and decide; even more so, I'd think, if there's reason to conclude they didn't properly or at all consider the earlier recommendations.

David

----- Original Message ----
From: "Jones, Michael
To: DAVID CHEIFETZ
Cc: David Cheifetz
Sent: Thursday, November 9, 2006 1:25:24 PM
Subject: RE: 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.

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