Article Summaries. Issue 30.2, June 2014
Using NESS to overcome the confusion created by the ‘material contribution to harm’ test for causation in negligence
This article seeks to address the confusion in the debate surrounding the scope of the Wardlaw test of ‘material contribution to harm’. It argues that this confusion arises because, by asking whether or not the material contribution to harm test is an exception to the but-for test, the debate is asking the wrong question. The but-for test is conceptually inadequate as a test of causation so it prevents us from identifying the causal issues clearly. Instead, Richard Wright’s ‘NESS’ (Necessary Element of a Sufficient Set) test is more comprehensive than the but-for test so it enables us to articulate causal problems clearly and to refocus the debate on the right issues. This article applies the NESS test, in tandem with a clear definition of damage, to illustrate the solution to a range of causal problems and to delimit the scope of the Wardlaw test.
The curiosity of professional negligence
Medicine and law no longer represent a complete definition of professional status. In contemporary usage, the term refers to a worker more than an autonomous, skilled individual providing services to clients. Ambiguities regarding what constitutes a profession have created an opening for other groups to claim this status. This article explores the contemporary profession. It is contended that maintaining the service user’s trust has become an integral part of professional status. There are expectations as to standards of professional service. And yet, employing the service user’s perspective also reveals limitations particularly how the law’s technical analysis of tort liability may dash these expectations. Profession may give rise to obligations in favour of employers of professionals but the term is not necessarily as effective when service users seek to enforce expectations.
Motor insurers: in a class of their own
The recent decision of Coles v Hetherton is a difficult case concerning the payment of damages for negligently inflicted motor vehicle damage. In its recent judgment, the Court of Appeal has upheld application of time honoured rules of English tort law. The simplicity of refusing to take into account the role played by insurers in such a case has a superficial allure. But, while the judgment might be a sound and principled application of the rules of tort law, one is left with a very uneasy feeling upon realising that the court has affirmed a legal framework in which insurers of road vehicles can inflate the costs of repairing those vehicles, whilst then successfully making subrogated claims for damages, where the inflated sum is claimed back from insurer of the tortfeasor. This article argues that the Court of Appeal was ultimately correct in this instance to avoid addressing the contentious question of whether insurance coverage should explicitly influence tort liability. The issue is one which requires sustained discussion. In providing a commentary on Coles this short article aims to highlight some of the important aspects of the wider debate.