Hello Rob and all,
Please see below in bold for a response.
Sandy
I freely admit that my view is contrary to that of most who have considered the question, and contrary to what little law we have on the point. My only defence is that I have yet
to hear any argument that convinces me.
So, the classic example is that of two (or more) hunters who each independently carelessly fire into a wood. One bullet hits the plaintiff, but it is impossible to show from which gun the bullet came. Are they both liable or neither? Sandy's arguments
for both are, in turn
1.
"It’s legitimate for the courts to stop people’s rights to compensation for a tort evaporating simply due to the number of wrongful actors involved. "
I don't think we can say that. It is true that if I wrong you I cannot escape responsibility by pointing at one or more other wrongs you suffer at the hands of other people. But
the question in issue is who is the wrongful actor? A civil wrong is not constituted by negligently firing into woods, or driving drunkenly around roundabouts, or telling people lies. It is constituted by injuring other people by negligently firing into woods,
hitting them with your car or telling them lies they believe.
In the example there is only one wrongful actor, we just don't know who he is.
I think, in agreement with Nick McBride, each defendant does commit a wrong in the Two Hunters case. Each breaches a (legal and moral) duty not negligently to impose unreasonable risk of physical injury upon each person by its action. I realise that
Rob (and others) will not accept this. If the premise is true, however, then neither should be able to point to the wrongs of others (just like in Baker v Willoughby) to avoid liability.
2.
"I also think this can be justified, sometimes, on the basis that each defendant either wrongfully caused the injury or wrongfully prevented the claim in respect of that injury."
I don't think there is anything wrongful, per se, in negligently preventing you from bringing a claim that would otherwise succeed. If D1 destroys information that P could have used
to bring a claim against D2, that is just bad luck.
The wrongfulness of the conduct in Two Hunters is in the wrongfulness of imposing the risk of physical injury by one’s action. The issue is then one of remoteness. Is causing the deprivation of a claim for physical injury too remote? In the original
Two Hunters cases – no: it is reasonably foreseeable that attribution of liability will be difficult where we all fire at the same time or in close proximity, using similar bullets. Even if the injury is not reasonably foreseeable, I prefer a more expansive
view of remoteness, whereby if the injury caused is similar in nature and extent to the one risked, where similarity is determined by reference to the interest protected, then it is recoverable. I fully accept that does not represent the current law.
3.
"It can also be justified on the basis that it prevents the causative defendant relying upon the other’s wrongful conduct so as to deprive the claimant of a right of compensation
in respect of a loss. Compare the analogous line taken in Baker v Willoughby, where C is still said to have suffered a loss at D’s hands during a period in which had D not behaved wrongfully, C would have suffered the lost earnings etc anyway.
(The explanation of this is not, as some suggest, that C has a right to be free of wrongful conduct and so the relevant counterfactual is ‘What would have happened had C not been wrongfully injured by anyone?' This is not an accurate statement of C’s right
against any particular D: C has a right against D that D not wrong C). I think we can also come up with cases of multiple omissions (such as those described in Jane Stapleton’s recent paper in the OJLS) where there simply is no causation by any of the
defendants to speak of – and yet we still should say each defendant is liable.
Or compare situations where there are multiple symmetrical minimal contributions to a causal process. Say 5,000 polluters pollute a river, each adding a tiny amount of pollutant to
the river. No individual contribution is necessary or sufficient for the existence of a public nuisance, let’s say. Nonetheless each is liable. Even if we say each is a NESS cause of the existence of the nuisance, the contributions may be so minimal as to
fall foul of a ‘material’ contribution requirement. Nonetheless, it’s justifiable to hold all liable (proportionally?) in order to prevent responsibility from evaporating simply because lots of people have behaved wrongfully."
All of these are examples of where D's actions have contributed to an outcome but not caused it. Both in morality and law, we can treat those who have merely contributed, but not
caused, as responsible. Two weeks ago I cast a vote in an election for a candidate who was successfully elected. I didn't cause his election, he would have been elected anyway (the majority was in the thousands). But I was one of those who contributed to his
election. Each of us who voted for him were in part responsible. Perfectly justifiable for the law, tracking morality, to hold responsible some people who have merely contributed but not caused.
That is not analogous at all to the hunter scenario where we cannot show on the balance of probabilities that there was any causal relation at all between any particular gunman and
the bullet wound.
Two points in response. One, you can make the contributions as minimal as you like and still there should be liability if all contributions are of the same size. The contributions become vanishingly small and yet there should still be liability. The
smaller the contribution, the more it approximates the Two Hunters.
Second, in multiple absence cases, the situation is very close to the Two Hunters. Consider a case where D1 negligently fails to provide a warning for a drug. D2, a doctor, negligently fails to check for any warning before administering the drug to
a patient. Patient suffers injury through ingestion of the drug. Neither D1 or D2 is a but-for cause individually: had the warning been present, it wouldn’t have been read; had the doctor checked for the warning, it wouldn’t have been there. Nor do they contribute
positively to the mechanism by which C is injured. I also don’t think NESS can handle these cases. The basic argument is that if you accept causation by D1 or D2 in this type of case, you can’t explain why the defendant in McWilliams v Arrol is not a cause.
And that is a fixed point for me: the employer in that case was not a cause. The upshot is neither D1 nor D2 is a cause: yet surely they should be liable. The case is then closely analogous to Two Hunters.
"Finally, I don’t think Rob’s view that if you can’t prove the D wrongfully injured you on the balance of probabilities, you have no claim is defensible on other, independent, grounds.
If D1 and D2 each wrongfully injure one of C1 and C2, and each risks C1 and C2 the injury caused, but it is evidentially impossible to pair up the claims, must each C really lose here? (No.)"
Say we have lots of hunters firing into woods, and many victims, and we cannot show from which gun each bullet came from. If one victim claims against one hunter should the claim
succeed?
If you cannot show that I injured you why should it? Why should my position with respect to you change because of the presence of other people, with whom I have no relationship, negligently
firing into the wood? Why should your claim against me succeed on the basis that I may have committed other similar wrongs with respect of other people?
Take this simple case. Two Hunters (D1, D2) fire one bullet each. One bullet strikes each victim (C1, C2). So neither C1 nor C2 can prove on the balance of probability which defendant wrongfully injured it, though it is known that each defendant has
wrongfully injured someone.
The argument is this. Each hunter has a moral obligation to compensate someone. They don’t know which person. What should they do? Not nothing. If I find your property, not knowing it’s yours, I should make some effort to find out whose property it
is. Each hunter cannot comply with its moral obligation of repair on its own. So it should enter into an agreement with the other hunters whereby each authorises the other to discharge its secondary obligation on its behalf. Liability can be justified on the
basis that the hunters fail to enter into such an agreement, which is an incident of their secondary obligation of repair.
Put another way, I have no problem clobbering wrongdoers, but am still unhappy with clobbering people we cannot prove are wrongdoers.
Rob