Wed, 14 Feb 2007 10:16:18 -0500
Resurfice Corp. v. Hanke, 2007 SCC 7
... If McLachlin CJ had been at last June's "Emerging Issues"
conference at Waterloo (has anybody thanked Jason, recently, for
the work he did arranging it?) I'm sure she would not have so slighted
Alan Beever's article. Those, here, who were there will remember
that recommended Alan's "Two Steps" to the assembled multitude.
I think the context came through that I was speaking particularly
to the judges in the audience. That view hasn't changed.
v Lewis as a case of impossibility? Remember that the shot
was bird-shot. Maybe bird-shot isn't like bullets in the sense that
once can compare marks on the bullet to marks on the barrel of the
rifle and say the bullet came from this weapon. Maybe the nature
of bird shot is such that even if one had every bit of evidence
that could be gathered, except videos which showing the path of
each bird-shot pellet from muzzle to end-location, it's still impossible
under current levels of scientific knowledge to determine which
weapon was the source of the pellet(s) that struck Lewis.
means, under this assumption, it could have been more than just
one weapon if there was more than one pellet. There'd be different
pellet impact sites, of course. Sounds almost like different mesothelioma
sites in one's lungs, no?
guessing that in this view of the facts, in the application of some
sort of material increase in risk test to Cook, you wouldn't
look at the 2nd hunter in any part of the inquiry into the significance
of the first hunter's conduct, so it's not a counterfactual. Maybe
that's part of what the Chief Justice had in mind. You'd ask, at
least: did the negligent conduct (the breach of the standard of
care conduct) of this hunter by shooting towards P create an unreasonable
risk etc. If the answer to that was yes, you' part of the way towards
satisfying the new mc criteria, whatever they are, that that hunter
was a factual cause. If there was another hunter, you'd ask the
same question. If there was a third, you'd ask the same question.
You could have as many yes answers as there are hunters.
you're dealing only with the creation of unreasonable risk, because
this hypothesis is premised on the assumption that science won't
provide you sufficient evidence to make the "eureka" connection,
you can have as many hunters as existed in the group who satisfy
the test. Then, since the injury manifested, you have ... Fairchild,
explanation makes sense but, for it to be meaningful, law has to
allow P cause of action against X for conduct damaging P's ability
to prove a cause of action against Y. That's more than just a version
of spoliation, I think. There's more on that sort of analysis in
a Porat & Stein paper, Indeterminate Causation, in
the 2003 Oxford Journal of Legal Studies.
resigned to the fact I'll have to spill more ink.
From: Russell Brown
Sent: February 14, 2007 12:50 AM
Subject: Re: ODG: Resurfice Corp. v. Hanke, 2007 SCC 7
agree with Neil. The SCC appears at paragraph 27 to be conflating
material contribution with material increase of risk, turning
material contribution into some all-embracing generic test where
the but-for test is "unworkable".
if we're wrong and they remain distinct, neither test really explains
the reference to Cook v. Lewis. Material contribution
contemplates that the defendant actually does something to the
plaintiff that may (or may not) have materially contributed to
the injury. The only way we can understand the "innocent"
defendant in Cook v. Lewis as having done so is by adopting
Rand J.'s view (as explained by Allan Beever in "Two Steps
out of the Mire") of the injury as being to the remedial
right that was parasitic to the plaintiff's right to bodily integrity.
It doesn't seem from the judgment, however, that McLachlin CJ
had this in mind (Allan's piece having perhaps been judicially
consigned to either or both of the "unnecessary" or
she seems to view the injury in Cook v. Lewis as the
shooting of the plaintiff, to which the "innocent" defendant
did not contribute.
McGhee test doesn't help us resolve Cook v. Lewis
either. The "innocent" defendant's shooting negligently
in the plaintiff's direction does not materially increase the
risk that someone else will shoot the plaintiff.
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