GASPRO International Journal of Eminent Scholars

ABSTRACT

This paper on “Hart and Honore on Causation in Law: Implications for Medical Negligence”, ascertains the extent proofs of medical negligence adduce to the demand of justice. With the qualitative method of research, the paper analyzes the idea of causation in law as expressed by Herbert Lionel Adolphus Hart and Tony Honore in their book, Causation in the Law, and also examines proofs of negligence available in medical practice, such as resp ipsa loquitur and contributory negligence, which adduce to the sin qua non test and the NESS test. It is deduced that for Hart and Honore, attribution of responsibility in law goes beyond proving the fact of the case to imply a metaphysical element, the intent behind the conduct for which responsibility or culpability is attributed, or mens rea.  Hence they refute the minimalist position that the sine qua non test and the NESS test are sufficient for proving causation in law. Their argument is that these tests, premised on the distinction between proximate and remote causes, limit investigation into the chain of causation such that only those causes, probably, observable ones, are taken into cognizance in attribution of responsibility. This limitation, which, they argue springs from the difficulty in exhaustively investigating of all possible factors in the chain of causation, could impede providing sufficient account of cause in law. One of the implications of their position for medical negligence is that, limiting proof of negligence proximate causes, amounts to only arbitrary proof of negligence, which is inimical to the demand of justice. Another implication is that proofs of medical negligence could be improved if factors regarded as remote causes, which may include beliefs, are equally recognized in attribution of responsibility. Therefore, this paper recommends that law and medical practice should keep evolving measures that will make it feasible to examine all possible factors that could be causes to any event of negligence, for justice to be achieved.