It is clear that the Terminally Ill Adults (End of Life) Bill currently before Parliament raises potentially very wide societal and ethical issues. The purpose of this article, however, is to deal with a very narrow point of tort law which may be engaged by the legislation while scrupulously avoiding comment on those other aspects.

The point at hand, which surfaced during debates in the Lords at the very end of January, is whether an election by a terminally ill adult to end their life would be regarded as a new act that would break the chain of causation of loss (novus actus interveniens) flowing from tortious harm caused prior to such a choice? The example provided in the recent debate is that of an individual who is terminally ill, suffering from mesothelioma, caused by negligent exposure to asbestos.

The concern - assuming the legislation was in force -  is that an election (within the framework of conditions and controls in the bill) by such a person in favour of an assisted death could break the chain of causation of the harm (the mesothelioma or other terminal condition) and consequently bar a claim by dependants under the Fatal Accidents Act 1976 that would otherwise be pursued after that person’s death.

Credit is due to both Michael Rawlinson KC and David Green of 12 King’s Bench Walk for raising this with Peers before the recent debate. The topic was explored via amendments tabled by Lords Harper (formerly a Minister at the Department for Work and Pensions) and Sandhurst KC. Potential solutions might include some form of carve out from the novus actus bar in respect of elections for assisted death following a tort giving rise to a terminal disease or for the issue to be closely monitored (should the bill pass) and separately reported on before the legislation took effect and, possibly, with an option to review and amend at a later date. A short explanatory note relating to this option records that:

“As the Bill is currently drafted it is probable that when a victim of an occupational disease such as asbestos cancer opts for an assisted death, their dependants will probably lose their right under the Fatal Accidents Act 1976 to sue the alleged tortfeasor said to have caused the disease, unless the Bill specifically provides otherwise (which currently it does not).”

Given that the amendments were withdrawn and therefore not subject to a vote, neither was carried forward. It does however look highly likely that the topic will need to be more fully examined in the Lords over the coming weeks. Although the Terminally Ill Adults (End of Life) bill extends to England & Wales only, similar legislation is moving forward in Scotland*, strongly suggesting that the causation point also ought to be addressed there. It is possible that it could be considered at the stage 3 proceedings on the Assisted Dying for Terminally Ill Adults (Scotland) Bill which are due to take place next month.

There are no easy answers to the point, other perhaps than to say that it would be very much an unintended consequence of the bill if, should it pass, it acted to bar claims in the circumstances described above. Although making a specific statutory exception to the novus actus doctrine in the case of terminal asbestos-related diseases might be superficially attractive, one wonders if such an approach might risk creating further grey areas of its own in the law of causation as it relates to mesothelioma? As has already been seen in this field, looking as far back as the Fairchild decision in 2005, exceptionalism in causation can create further difficulties of its own.

The anomaly raised by Rawlinson and Green is important. Judges will have to follow the language of any new statute and may not have the flexibility that the common law could afford. For example, in Corr v IBC Vehicles [2008] the claimant’s husband committed suicide following an accident at work that caused severe depression. She brought a claim against his employer under the Fatal Accidents Act. The House of Lords - the case was decided a year before the Supreme Court was established - held that the suicide was not a novus actus and therefore allowed the claim. Lord Scott concluded that “If Mr Corr had not suffered from the clinical depression brought about by the accident, he would not have had the suicidal tendencies that led him eventually to kill himself… the chain of causal consequences of the accident for which Mr Corr’s negligent employers are liable was not broken by his suicide [which] was not, in my opinion, a novus actus interveniens.”

Although the suicide in Corr is not entirely analogous to an assisted death envisaged by the new bill, the decision nevertheless illustrates that a flexible approach to what appears to be a rigid rule of causation can deliver a fair and just outcome. The current question is whether such an approach can, should the bill succeed, be reduced to a clear and practical statutory provision that would apply in instances of negligently caused terminal diseases?

[* The Fatal Accidents Act 1976 does not apply in Scotland, where the right of dependants to make a claim following a wrongful death is now governed by the Damages (Scotland Act) 2011 which repealed and replaced the Damages (Scotland) Act 1976.]