(i) In the example (which I put at the bottom of this post) it is not
clear that 'factual' causation is established. What would have happened if
the plaintiff had been warned? If a warning would have made no difference
at all to the decision whether to go ahead, then the claim for the
consequential harm should fail at the first hurdle.

(ii) If 'factual causation' is established (because the patient would not
have gone ahead at all or would have gone ahead on another occasion when
probably all would have been well) There are then two quite separate
arguments being made as to why the claim should fail. Both seem to me to
be difficult.

First because the harm which has occurred is coincidental to the wrong
suffered (as Andrew argues) because the risk of the specific harm which
eventuated was not increased by this failure to warn. The failure to warn
which took place did increase the general risk of other harms which did
not occur from eventuating, but that is also true in the other examples
Andrew gave (driving the wrong way down the street, having an uncertified
officer) and is insufficient to prevent the harm from being coincidental.
This is an argument which in principle should have succeeded in Chester v
Afshar, but didn't.

However, if the patient in this example would not have gone ahead with the
operation at all if warned then this argument fails as all of the risks
incident to the surgery (including the one which eventuated) were
increased by the failure to warn. By contrast, there was no increase in
the risk of the cat being run over by the driving the wrong way down the
street.

Second it is argued that the harm which eventuated was outside of the
scope of the duty which the surgeon assumed towards the patient. This is
Lord Hoffmann's mountaineer example. The purpose of the duty to warn of
risk X (a knee failing, surgery going wrong in a particular way), is to
enable the patient to choose whether to run risk X. If risk X does not
materialise, we are outside the scope of the duty. Again, I think this is
an argument which should have succeeded, but didn't, in Chester v Afshar
because in that case she would have chosen to run the same risk anyway,
albeit on another occasion. The purpose of the duty is to enable the
plaintiff to choose whether to run the risk, not to choose the specific
date of the operation.

However, in this example I am doubtful whether such an argument should
succeed because you cannot disaggregate the risks being run. If there are
two risks, X and Y, each of which carry a 5% chance of serious injury, I
may be prepared to run either individually but not together. If therefore
the patient is only told of Y, but would not have gone ahead at all if
told of X as well, and then Y is the risk which eventuates, we are still
within the scope of the duty assumed. The surgeon must warn of X AND Y
together. Being told of risk X may be determinative of whether you are
prepared to run risk Y. This may be contrasted with the case of the
mountaineer where the duty to warn was solely concerned with the condition
of the knee, and not with the rockfall which eventuated which fell outside
of the scope of the surgeon’s competence. In Lord Hoffmann’s example the
risks can be disaggregated in a way which they cannot be in this example.

(iii) I don’t think arguments based upon autonomy take us very far. Of
course the surgeon must warn the patient so that she can make an informed
choice. That the patient has had, in some sense, her autonomy violated
doesn’t tell us whether a consequential harm is recoverable or not. The
question in issue is what consequences of that wrongful failure to warn is
the defendant responsible for? Nobody thinks that because she has been
denied an informed choice that the defendant is responsible for all of the
adverse consequences which would not otherwise have occurred, come what
may.

(iv) I don’t like “scope of liability for consequences” for two reasons.

First, scope of liability for the consequences of what? Wrongdoing or
action? (ie are we just talking about whether harm consequential upon a
wrong is recoverable, or are we also talking about whether a wrong has
been committed?)

Second, if I am under a liability to you, you have a correlative power
with respect to me. If I am under a duty t you, you have a correlative
right with respect to me. If D commits a tort with respect to P, D comes
under a liability to P because P has the power to go to court and get a
court order made against D. If the claim becomes time barred D is no
longer subject to this liability, although the obligation to pay damages
is still there, albeit that it is now unenforceable. All elements of all
causes of action capable of being made out determine the limits of
liability, properly so-called. Describing a rule as concerned with the
“scope of liability” doesn’t take us very far therefore.

Put another way, responsibility and liability are not synonyms, although I
know some writers have treated them as if they were . “Scope of
responsibility for wrongdoing” might be a better label for the rules which
currently go under the heading “remoteness” (in the Commonwealth) or
“proximate cause” (in the US) but it is more cumbersome and less familiar.

Robert







A patient consents to a surgical procedure.

A given risk, let's a 5 percent chance of partial paralysis, is determined
to be a
material risk, and that risk is not disclosed. The physician doesn't
discuss this
risk at all. There are no other problems with the quality of the patient's
consent.

The procedure is performed competently, but the patient suffers serious
injury.
However, the injury is not a matter of the relevant risk materializing.
The patient's loss concerns another risk which,
1) the patient was informed of (perhaps even signed a waiver regarding), or
2) an unforeseeable or previously unknown risk that the physician cannot
been have
expected to know about or disclose (perhaps the patient suffers hearing
loss or loss
of sight).

Is it appropriate to the proceed to the causation question in either of
these cases
(what a reasonable patient would have chosen in the circumstances), or are
these
kinds of losses to be treated as outside the scope of the physician's
wrongdoing?