.

The Israeli experience shows that once you adopt the loss of chance doctrine

you may end up with an indeterminate  rule of proportional liability, a rule

which threatens to undermine the very basic concept of private law as based

on  ex post causation rather than on ex ante risk creation.

In 1988 the SC embraced the "lost chance of healing" doctrine, reasoning

that the loss of chance should be recognized as a "new" kind of loss. Rules

of causation, so went the argument, are unaffected: P has still to establish

by the balance of probabilities that D caused this loss of chance.

But a loss of chance per se is not a  loss. The "lost chances of healing" is

obviously a "disguised" concept of proportional liability based on risk

creation. As such, it has no inherent limits. It can apply to every kind of

loss

Indeed, in 2003 the SC explicitly embraced a rule of proportional liability,

It allowed P to recover 20% of a P's loss on the ground that there was a 20%

probability that this loss was caused by D's negligence. Any limits to this

rule? not really. It applies, said the Court, in cases of inherent causal

uncertainty when justice requires proportional liability.

Lower courts soon embraced the new breakthrough. Proportional liability was

imposed not only across tort law but also in contract and in unjust

enrichment cases. P who establishes that there is 30% probability that D's

breach of contract caused a loss to P is entitled to a proportional award of

30.

But it does not end here. What should be the law where P establishes a

probability of 80% that D caused his loss? If liability is based on ex ante

risk creation rather than on ex post causation, then D should pay only 80%

of the loss. But Courts obviously do not like this outcome. After all,

proportional liability was meant to help Ps who cannot meet the balance of

probabilities requirement. It was not meant to harm Ps who can.

Given these difficulties, and many others, the SC decided in 2005 to

reconsider its decision. We still await the results of this reconsideration.

In the meantime, it appears that the SC tries to retreat. It avoids

proportional liability which exceeds the traditional "lost chances of

healing".

The real challenge is to set the right limits of proportional liability.

There are contexts in which it would promote justice, fairness and

efficiency. This unruly horse can be tamed and prove to be useful.  How

exactly? This is complicated but can be done. Hopefully, the SC would meet

this challenge.

Israel Gilead

Hebrew U

----- Original Message -----

From: "Sandy Steel" <as730@cam.ac.uk>

To: "'Robert H Stevens'" <robert.stevens@ucl.ac.uk>

Cc: "'Neil Foster'" <neil.foster@newcastle.edu.au>; <obligations@uwo.ca>

Sent: Friday, April 10, 2009 2:57 AM

Subject: RE: Causation/Loss of chance in medical cases

>