Tort's Wrongs, Part 1: Loss of a Chance

Tort embodies the odd distinction of being one of the branches of law least recognisable by name, while actually being one of the top contributors to stereotypes of lawyers and the law. It is the law of civil wrongs, encompassing most cases of people suing each other for wrongdoing (as opposed to breach of obligations under contract). The ideas of 'ambulance chasing' and 'no win no fee' arise from tort law.

The basic idea behind tort law is to restore people who have been wronged against to their previous position (or as far as money will go to that end) at the expense of the one who wronged them. Judges insist that, with very few minor exceptions, tort law does not have a penal function; it is compensatory, while penalty is left to the criminal law. This should immediately strike one as somewhat odd. The fact that the compensation comes from the tortfeasor (the one who commits the tort) rather than anyone else must be punishment as it is a negative consequence inflicted due to the wrongdoing. I will try to show that the attempt to avoid penalising tortfeasors inevitably leads to a tort law which appears and is unjust and contradictory.

I will use three major examples of injustice before coming to my main point and drawing them together. My first will be liability for loss of a chance.

To establish liability in tort the facts upon which it rests must be shown to be true 'on the balance of probabilities,' which means more than 50% likely to be true. This can be contrasted with the standard of proof in the criminal law of 'beyond reasonable doubt,' which might mean something like 95% or 99% likely to be true. To receive compensation for my negligence, you will have to show on the balance of probabilities things like it being foreseeable to me that my actions might hurt someone like you and (at issue here) that my actions did, as a matter of fact, cause your harm.

This becomes very tricky in a number of cases. The first is where medical negligence damaging someone's chances to avoid a harm (loss of a chance) like in Hotson v East Berkshire, but only reducing those chances by less than 50%. Because then the chance that they caused the harm will be less that 50%, there is no liability. None at all. If they are 45% likely to have been the cause they will have to pay nothing, while if they are 55% likely to have been the cause they will have to pay the whole amount for it.

Another situation is cases where multiple factors may have caused the harm like in Fairchild v Glenhaven. Where each causes a bit of the harm this is no problem, but where only one of them did, the probabilities become tricky. A classic scenario will involve multiple employers negligently exposing an employee to asbestos, leading to him contracting mesothelioma. Causally, only one will have been responsibly for the harm, but each individual may be only be 30% or 40% likely to be responsible. Following the orthodox approach, none should have to pay anything. However, in this case the Law Lords responded to the patent injustice by creating an exception to the rule: If you add up all the tortious causes and they come to over 50%, then the tortfeasors together are liable for the whole amount, in proportion to the likelihood of each being responsible. This may look fair, but in Wilsher v Essex there was a new twist to the tale. Here multiple tortfeasors were not liable, and the best explanation appears to be that it is because the harm was not all caused by the same 'agent' i.e. asbestos fibres! This is almost universally recognised as patently absurd.

What becomes clear from these cases is a devotion to all or nothing liability. It may appear extremely odd that no-one has suggested apportioning liability in accordance with the percentage chance of having caused the harm. In the Hotson case, why not make the doctors liable in proportion to the chance of them having caused the harm? If someone is 45% likely to have caused harm, charge them 45% of the loss, and if 55% likely, charge them 55%. In the Fairchild and Wilsher cases, make each tortfeasor responsible for their share of the chance of harm they caused, rather than arbitrarily splitting between cases where full compensation will be awarded and where none will be. This instinctively appears the most just solution. So why is it not adopted?

The best answer appears to be because this would no longer be compensating based on actual causal responsibility for the harm. It will be penalising for wrongdoing (contributing to a risk of harm) and then using the proceeds to compensate the victims of this. This is truly penal in that it is sensitive to the degree of responsibility and sees causing risk as wrong, even if the risk did not in actual fact come about. It is recognising that people should not get away with such actions simply because of statistics in their favour.

A classic thought experiment is put forward to explain the results of the current approach (minus the Fairchild exception). It imagines a nuclear facility which negligently increases the risk of leukemia among nearby children, increasing the number of cases of leukemia so that 40% of cases are due to its negligence, and for any particular ill child there is a 40% chance that their leukemia is due to the negligence. On orthodox, Hotson principles, the facility is not liable for a thing. If on the other hand the percentage was 60%, it would be liable for the entire damages of every child with leukemia in the area. To me, the just thing to do would be to penalise it for causing the risk, forcing it to pay to each child with leukemia the percentage of its losses, 40% or 60%, in proportion to the chance of its responsibility. But tort law as it is just can not cope with this.

If it were to be remedied as I suggest, the system would appear much more just and would, for me, actually be more just. To the non-legal observer, it may seem incredible that this is avoided for the sake of keeping tort law 'non-penal.' However once you accept that the causal link is not sacrosanct, you start to unravel the foundations of the discipline. I will continue to explain why this is in my next post.