Date: Fri, 7 Mar 2008 08:41

From: Michael Jones

Subject: Causation, Multiple Sclerosis and Trauma

Incidentally, on science and proof the Irish and English High Courts reached opposite conclusions (on what seems to be the same evidence and same legal rule) on a link between whooping cough vaccine and brain damage (Best v Wellcome [1993] 3 IR 462 and Loveday v Renton, The Times 31 March 1988).

In Loveday it was concluded, taking into account a big national study, that it was possible that there was a causal link between whooping cough vaccine and brain damage in young children, but that it was not probable. Loveday was a test case. Since the answer reached by the judge was that it could not be shown, on a balance of probabilities, that there was a causal link, there was no prospect of demonstrating in any individual case that there probably had been a link.

Best concerned a batch of faulty vaccine (rather than the standard vaccine). Given that, the Court was prepared to accept medical evidence that, given the temporal connection between administration of the vaccine and the child's fits, there was probably a causal connection.

Seems to me that quite a few of these cases are working on "post hoc ergo propter hoc" causal reasoning, which is very common in lay thinking about the matter. Chairing social security tribunals dealing with appeals concerning industrial injuries, I often come across appellants who, following an accident at work, sincerely believe that all their medical problems after the accident can be attributed to the effects of accident, even those with an onset some years after the event (including one who thought that his diabetes was caused by his accident 3 or 4 years previously). But believing it doesn't necessarily make it so ...

Michael

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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: Barbara Legate
Sent: Thu 06/03/2008 17:47
Subject: RE: Causation, Multiple Sclerosis and Trauma

I have been involved in such a case. The MS issue arose in both exacerbation of the condition and cause of the inciting event, which was falling down a poorly lit and banistered flight of stairs. The case settled following pretrial. My theory was that the banister was not there for the able bodied but for those who needed steadying. So the absence was a cause of the loss. On the facts, there was an immediate exacerbation of disability. I was unable to obtain an Ontario doctor to support exacerbation of MS although I became aware of a few who are prepared to make the link. My view is that it is fact driven.

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