Causation

Causation

1. 1) What test governs the situation

   • But For Test: The Standard Test; Run fully though first; Pl Must show on Balance of Probability
     • 1) Is it an Established Exception to the But-for Test
       • if no
         • Test for factual causation Based on a Robust, pragmatic approach
           • Would the injury occured were in not for the negligence of defendants actions
             • If No (meaning the pl would not have been injured)
               • Causally Effective
             • If Yes; Not causally effective; (injury would have happened anyway)
               • Kauffman v Toronto Transit Comission (OnCA) 1960; Type of handrail was NOT the cause of injury
                 • negligence claim brought in not testing handrail
               • Barnett v Chelsea & Kensington Hospital [1969]; Arsenic poisoning, same result (death) would have occured w/o neg.
                 • Neg Claim brought b/c doc didn't see patient
               • Richard v CNR (PEISC) 1970; Plaintiffs rash act reson for backing into water not negly untying rope
             • Snell; Clements said you can use common sense and other things to get it to that balance of probabilities
           • Snell/ Clements
       • If Yes
         • Established Exception to But-for
           • 1)Multiple Negligent Defendants
             • If: 1) 2 Negligent Defendants; 2) One of them MUST HAVE caused Loss; 3) Impossible to prove; --> Burden will flip
               • Cook v Lewis (SCC) 1951; 2 shots @ same time, 1 bullet to the head
           • 2) The learned Intermediary rule
             • Products unavalable directly to consumers must have thier dangers told to the intermediary (eg a docto) to releive the manufacturer of duty/cause
               • Hollis v Dow Corning Corp (SCC) 1995; manufacturer didnt tell doc therefore manufacturer liable
                 • Subjective test when dealing with Manufacturers Duty To Warn
           • 3) Informed Consent
             • Would a reasonable person have consented had they been adequately informed
               • If They wouldnt have consented; Negligence is a cause
                 • Hollis v Dow Corning Corp (SCC) 1995; Wouldnt have consented to boob if she knew it could rupture
               • If they still would have consented, not a cause
               • Reasonable person in situation (Obj./Subj test) upheld time and again
                 • Hopp v Lepp (SCC) 1980
                 • Reibl v Hughes (SCC) [1980]
                 • Arndt v Smith (SCC) 1997; though verdict was split
                 • In order to limit self serving pl. complaints
     • 2) Does it fall outside the scope' Usefulness of the But-For
       • If But-For Produces a fair result then end analysis
       • If But-For does not produce a Fair result
         • Material Contribution to injury Test
           • Did the def. neg. (w relation to providing standard of care) contribute to injury outside de minimus range
             • Athey v Leonati SCC 1996 for de minimus
             • Subjective Element
           • Limited by Hanke; Only available if meets 2 conditions
             • 1) Pl. Must establish it impossible to prove causation using but-for; and impoibility is due to uncontrollable factors (eg scientific knowledge
             • 2) Pl must est that def breached SOC and injuries are within the risk created by this breach
             • hanke v Resurfice Corp [2007] SCC
               • Cook v Lewis and Walker; Hanke said fit criteria
                 • Walker estate v York Finch General Hospital 2001 SCC; When appropriate SOC was applied, Robert wouldnt have given blood, Since it wasnt applied he did
                   • Negligent failure to provide proper SOC caused HIV transmission
           • Problems with MCT
             • Courts unclear whether its to risk or to injury
               • If injury its covered under But-for
               • If risk its covered under Materially increased risk
           • Clements said risk is better
           • Contributing factor material if falls outside deminimus range (Athey; Walker Estate)
         • Materially Increased Risk
           • 2 theories re: Burden of proof
             • If def. Neg increased risk AT ALL of particular injury, and pl gets that injury, burden of proving causation shifts to def (to prove he didnt cause
               • Mcgee v National Coal (HL) 1972; Per Lord Wilberforce
             • Legal burden of proof (on balance of prob) rests with the pl. however inference of risk= causation is drawn, unless def. has proof of the contrary
               • Snell v Farrell (SCC) 1990
                 • Quoting Wilsher v Essex Area Health (HL) 1987
                 • causation burden shifts to defendant ONLY WHEN defendant has exclusive knowledge
           • Clements v Clements SCC 2012
           • Contributing factor material if falls outside deminimus range (Athey; Walker Estate)
         • Proportionate cause and loss of chance
           • When Breach of SOC provides only a portion of an unavoidable loss; or a loss of change (eg would have had 25% chance to live if i didnt fuck up the surgery) must only be responsible for that amount
             • sindell v abbott Laboratories (AmSC) 1980
             • Janiak v Ippolito SCC 1985
             • Holtby v Brigham
           • Clements v Clements SCC 2012
     • Snell
     • Clements

2. When Parallell injury occurs before Court

   • Not liable for what would have happened anyway that you didnt cause
     • Penner v Mitchell 1978 CA
   • Still liable for what you cause regardless if intervening act renders your tort obscolete
     • baker v willoughby [1970] HL
     • dillon v twin state gas; only compensated if fall would have left crippled; value of between crippled and death;; not compensated if fall would have left him dead

3. Pl. only has to establish that Def actions was A cause not the biggest cause

   • Pl Only has to prove it on the balance of probabilities

4. When Multiple Causes

   • Must state breach of SOC and Injury; And divide separate breaches and injuries
     • IF INDIVISIBLE
       • Independant insufficient Causes
         • If tortious conduct is cause and non-tortious conduct is a contributing cause, D liable
           • But For Test: If injuries would have occured w/o tort, no causation if injuries would have occured with the tort--> causation
             • Athey v Leonati SCC 1996
               • Accident and then stretching after caused slip disc; def held accountable b/c wouldnt have happened w/o accident and just normal stretching
               • 25% is outside deminimus range; less than that is unclear
           • Thin skull rule applies: Take victims as they are
             • Athey v Leonati SCC 1996
           • Crumbling skull rule applies: Not liable for effects that would have been caused by a precondition anyway
             • Liable for additional but not preexisting damage: must return victim to how he was/ would be no net gain or loss
               • Athey v Leonati SCC 1996
         • Ambiguity to extent each caused a tort will hold both parties equally responsible
           • Nowlan v Brunswick Construction SCC 1975 re: Architect and carpenter
         • Use Clements; Pragmatic Robust But- For
       • Independant Sufficient Causes
         • Both create a tort on thier own that creates an indistict overall tort
           • Basically the material contribution test
             • Responsible for ones tort, even though it would fail but-for tesr
               • Lambton v Mellish 1894