EU Employment Law: From Rome to Amsterdam and Beyond
| DOI | http://doi.org/10.1111/j.1468-2230.2004.490_3.x |
| Published date | 01 March 2004 |
| Author | Ruth Nielsen |
| Date | 01 March 2004 |
REVIEWS
Ian Freckelton and Danuta Mendelson (eds),Causation in Law and Medicine,
Aldershot: Ashgate, 2002, xxxii þ524pp, hb d65.00.
The editorsof this collection of essaysconcede that it does‘notpurport to provide
an overarching ‘‘solution’’ to the complexities faced by the courts when dealing
with causation evidence’ (pxxxii).Why then does this book make a useful addi-
tion towhat is an already voluminous literature? First, itpays more thanthe usual
lip-service to the need for an approach which transcends the boundaries of law
and science.The editors (both lawyers) set the tonewith their willingness to en-
gage with the implications for the courts ofu ncertainties inthe origins of disease.
Among the contributions by medical scientists, Peter Greenberg’s perhaps reveals
the clearest sympathy for lawyers faced with con£icting evidence from rival ex-
pert witnesses. Secondly, since most of the contributors practise their respective
professionsin Australia, the book o¡ersan alternative perspective within a branch
of medico-legal studies largely dominated by American scholars. The numerous
citations to English, Canadian and US, as well as Australian, case-law con¢rm
that the problemof causation transcends jurisdictional boundaries as well as those
of academic disciplines.What exactly is this problem?
For conventional science, it is justifying the inductive leap from repeated ob-
servations of X followingY toa belief in the propositionthat ‘Ycauses X’. Lawis
no less preoccupied with what might be termed ‘cause in fact’ but it is also con-
cerned with the attribution of responsibility. When we state that (1) ‘Harold Ship-
man was responsible for over two hundred untimely deaths’, we are making a
very di¡erent statement from (2) ‘an in£uenza epidemic was responsible for mil-
lions of deaths in 1919’.The concept of responsibility carries so many normative
overtones that its use in statements like (2) is essentially metaphorical and frus -
trates a deeper understandingof the moral responsibility at issuewhen, for exam-
ple, we choose to drink and drive. As Tony Honore
Łwrites: ‘[c]ausation is an
essential tool for holding people responsible for the changes they make in the
world’ (p 8). Jane Stapleton provocatively claims that ‘causation is not a concept
at all’ (p 14), but her analysis is also concerned with changes (or ‘transitions’) in
the physical world. Science may elucidate the‘myriad of factors’ which precede a
transition butit cannot identify which of those factors are‘important’ in terms of
the attribution of legal responsibility. But the courts only get to hear cases in
which scientists cannot agree on the factual history of the claimant’s condition.
Since the courts cannot commission experiments, they ¢ll the‘evidentiary gaps’
by attaching importance to thos e factors which derive from the ‘moral and pol icy
goals o f the particular rule of obligation’ (p 18). The ‘negligent sportsmen’paradox
is used to illustrate her point: two hunters recklessly and simultaneously ¢re their
guns, injuring a third, but forensic science is unable to link the one o¡ending
bullet to either gun.The lawchooses to overcome the factual lacuna by treating
both hunters as responsible for the injury and jointly liable for the damages
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(2)MLR 339^348
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