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9 U. C. Dublin L. Rev. 46 (2009)
On Good Intentions and Poor Outcomes: A Critical Retrospective on Chester v Afshar

handle is hein.journals/ucdublir9 and id is 58 raw text is: University College Dublin Law Review

Kristof Zoltan von Csefalvay-Bartal*
Law as a social institution is singular in that it is called upon to
render authoritative judgment in matters where evidence itself cannot be
authoritative due to limitations on human reason and perception. It needs
to carry the burden of adjudicating upon occurrences in a universe that is
in many ways beyond the evidential and perceptive capabilities available
to it. Those tasked with adjudicating on questions of fact have to make
sense of that which they cannot perceive as such and for this the law has
created heuristics. These are not perfect, nor do they always deliver
flawless results. Most often the choice of heuristic to be applied is
deeply permeated by moral and meta-legal ideas.
In the case of Chester v Afshar,l the conflict was between
protecting a fundamental human interest of the claimant versus
maintaining adherence to the rule of factual causation, one of the most
widely-recognised legal heuristics. This critical analysis will, after
stating the pertinent facts, examine the case for the opposing concepts
and conclude that the House of Lords erred in law, fact and principle in
finding for the claimant. It is submitted that their Lordships erred in law
when seeking to interpret Fairchild v Glenhaven Funeral Services2
expansively as generally justifying the displacement of causation rules
where fairness so demanded and failed to recognize that Fairchild
concerned a special case due to multiple causation, a feature not present
in Chester. Further, it will be argued that their Lordships erred in fact in
basing their judgment on an erroneous conception of probability that
failed to distinguish between different and in fact incommensurable
concepts, namely probability and actual occurrences. Finally, it is
submitted that their Lordships erred in principle in giving preference to
'practical justice' as distinct from the adherence to 'traditional' rules of
causation without due consideration for the true importance and meaning
* BA, Jurisprudence Oxford. Cardiff (DipLp candidate). The author wishes to thank
Martin H. Matthews and Beth R. McDowell for their assistance with the article. The
author would also like to thank Mr John O'Dowd, Lecturer in Law, University
College Dublin for his comments. All errors are the author's own.
[2004] UKHL 41.
2 [2002] UKIIL 22.

[Vol. 9

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