The Future?
A difficult issue that has arisen recently is the case where the defendant neither factually causes the harm, nor increases the risk of its occurrence. In Chester v Afshar 4 All ER 587 (HL), a doctor negligently failed to warn a patient of risks inherent in an operation, specifically cauda equina syndrome. The patient had the operation and a risk materialized causing injury. It was found that even if the patient had been warned, the patient would still have undergone the operation, simply at a different time. The risk of the injury would be the same at both times. Accordingly, the doctor neither caused the injury (because but for the failure to warn, the patient would still have gone ahead with the operation), nor increased the risk of its occurrence (because the risk was the same either way). Yet the House of Lords, embracing a more normative approach to causation, still held the doctor liable. Lawyers and philosophers continue to debate whether and how this changes the state of the law.
Read more about this topic: Causation (law)