JUDGES JUST DECIDE THINGS

Another attempt to explain and rationalise the law of causation has been made by the Supreme Court.  Sienkiewicz v Greif.  I agree with Lady Hale:  I pity the practitioners as well as the academics who have to make sense of our judgments in difficult cases.


I utterly applaud this further nail in the coffin of those trying to defend mesothelioma actions and hopefully they will now take Lord Brown's hint:


mesothelioma claims must now be considered from the defendant's standpoint a lost cause


There was also some interesting comment about how judges, sometimes, just have decide questions of fact, in very difficult circumstances and must just do their best, and find certainty in the swamp of scientific uncertainty.  Sometimes they need to put their finger in the air, look to their consciences and just decide: (Lady Hale)


But as a fact finder, how can one ignore these statistical associations? Fact-finding judges are told that they must judge a conflict of oral evidence against "the overall probabilities" coupled with the objective facts and contemporaneous documentation: see, for example, Robert Goff LJ in Armagas Ltd v Mundogas SA (The "Ocean Frost") [1985] 1 Lloyd's Rep 1, 57. Millions of pounds may depend upon their decision. Yet judges do not define what they mean by "the overall probabilities" other than their own particular hunches about human behaviour. Surely statistical associations are at least as valuable as hunches about human behaviour, especially when the judges are so unrepresentative of the population that their hunches may well be unreliable? Why should what a (always middle-aged and usually middle class and male) judge thinks probable in any given situation be thought more helpful than well-researched statistical associations in deciding where the overall probabilities lie? As it seems to me, both have a place. Finding facts is a difficult and under-studied exercise. But I would guess that it is not conducted on wholly scientific lines. Most judges will put everything into the mix before deciding which account is more likely than not. As long as they correctly direct themselves that statistical probabilities do not prove a case, any more than their own views about the overall probabilities will do so, their findings will be safe.