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A Critical Analysis of the Current Approach of the Courts and Academics to the Problem of Evidential Uncertainty in Causation in Tort Law

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A Critical Analysis of the Current Approach of the Courts and Academics to the Problem of Evidential Uncertainty in Causation in Tort Law A CRITICAL ANALYSIS OF THE CURRENT APPROACH OF THE COURTS AND ACADEMICS TO THE PROBLEM OF EVIDENTIAL UNCERTAINTY IN CAUSATION IN TORT LAW By Gemma Turton A thesis submitted to the University of Birmingham for the degree of DOCTOR OF PHILOSOPHY School of Law College of Arts, Humanities, and Law University of Birmingham October 2012 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. Abstract The primary aim of this thesis is to identify a coherent legal response to the particular causal problem of the ‘evidentiary gap’. In order to do this, it is necessary to understand how the ‘evidentiary gap’ relates to causation in negligence more generally, so the thesis addresses both the nature and function of the tort of negligence as well as the role played by causation within that tort. It argues that negligence is best understood as a system of corrective justice-based interpersonal responsibility. In this account, causation has a vital role so the test of causation must be philosophically sound. Causation, however, also occupies only a limited role so analysis must draw fully on the doctrines of damage and breach which bracket the causation inquiry, as well as notions of quantification of loss. The NESS test for causation is shown to be preferable to the but-for test because it is conceptually more adequate and therefore able to address causal problems that the but-for test cannot. This thesis rejects claims for proportionate recovery based on the notion of loss of a chance of avoiding physical harm in medical negligence, but proposes limited recovery for loss of a chance as an independent form of damage arising because of unique considerations of interpersonal responsibility in the doctor-patient relationship in cases of misdiagnosis/mistreatment of existing illness. It is argued that the Fairchild test of material contribution to risk of harm in cases of evidentiary gap is not consistent with corrective justice, and that this cannot be resolved by reconceptualising the gist of the action as the risk of harm. The Fairchild exception lacks coherence because of its instrumentalist basis, so should not be applied outside of the mesothelioma context. i Acknowledgments I would like to thank my supervisor, Claire McIvor, for all her help and support throughout the time it has taken to research and write this thesis. She has not only guided me academically but has also developed my confidence and self-belief. I owe her an enormous debt of gratitude. I would also like to thank Sarah Green for inspiring my interest in causation as an undergraduate student. I am grateful to the University of Birmingham for giving me the postgraduate teaching assistantship that made this financially possible, and to the University of Leicester for giving me a period of study leave. I have been fortunate to present papers on aspects of this research, so I would like to thank the School of Law and the Institute of Medical Law at the University of Birmingham, the School of Law at the University of Leicester, the European Association of Health Law, and the Obligations VI conference for allowing me this opportunity. A number of people have read work on aspects of the thesis, and I would particularly like to thank James Lee, John Hartshorne, and Jose Miola for this. I would like to thank a number of my friends who have been incredibly supportive (and patient), especially Martin George, Laura Brampton, Sophie Boyron, Sally Cunningham, Daniel Attenborough, and Paul O’Connell. I owe great thanks to my parents for their encouragement. Most of all, I would like to thank my sister, Samantha, for her love and encouragement throughout the years. She is an inspiration in herself and none of this would have been possible without her. ii Table of Contents Introduction .......................................................................................................................... 1 Chapter One: Theoretical and doctrinal framework ........................................................... 6 1. The theoretical basis of negligence................................................................................................... 7 1.1 The Aristotelian conception of corrective justice .................................................................. 11 1.1.1 Justice as a whole ............................................................................................................. 11 1.1.2 Justice as a part: corrective and distributive justice .................................................... 12 1.1.2.1 Distributive justice .................................................................................................. 13 1.1.2.2 Corrective justice..................................................................................................... 14 1.2 The moral basis of corrective justice: Aristotelian corrective justice and Kantian Right 17 1.2.1 Kantian Right ................................................................................................................... 19 1.3 Incoherence of consequentialist theories .............................................................................. 22 1.4 Moving beyond formalism to the legal system - combining Kantian Right and societal morality…. ......................................................................................................................................... 26 1.5 The place of causation in corrective justice-based interpersonal responsibility .............. 32 1.5.1 The pivotal place of causation in corrective justice.................................................... 32 1.5.2 The limited role of causation ......................................................................................... 35 2. The doctrinal framework ................................................................................................................. 38 2.1 The duty of care ........................................................................................................................ 39 2.1.1 Duty as the ‘central organising concept’ ...................................................................... 39 2.1.2 Identifying issues of interpersonal responsibility in the duty doctrine .................... 42 2.2 Actionable damage/the gist of the negligence action.......................................................... 48 2.2.1 Damage ............................................................................................................................. 49 2.2.2 Quantification .................................................................................................................. 49 2.3 Breach of duty ........................................................................................................................... 52 Chapter Two: Identifying the Proper Function of Causation ........................................... 55 1. The demands on causation .............................................................................................................. 57 iii 1.1 The limited role of causation in negligence .......................................................................... 57 1.2 The robustness of the philosophical account ....................................................................... 61 2. The philosophical account of causation ........................................................................................ 63 2.1 Hume: contiguity, priority, constant conjunction and necessity ........................................ 63 2.2 Mill: the addition of ‘plurality’ and ‘complexity’ ................................................................... 65 2.2.1 Complexity of causes ...................................................................................................... 66 2.2.2 Plurality of causes ............................................................................................................ 68 3. Tests for causation ............................................................................................................................ 70 3.1 Complexity and plurality of causes as necessary and sufficient conditions...................... 70 3.2 But-for and NESS in simple cases ......................................................................................... 72 3.3 Over-determined causation ..................................................................................................... 74 3.3.1 But-for, NESS and pre-emption ................................................................................... 75 3.3.2 But-for, NESS and duplication ..................................................................................... 76 4. Overcoming potential problems with NESS ................................................................................ 79 4.1 Defining key causal terms ........................................................................................................ 80 4.2 The problem of asymmetrical duplication ...........................................................................
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