Dear Neil,
I think I've misunderstood your point.
I think the SCC's
description amouns to the so-called indeterminate defendant problem which, as I understand it, is always triggered by non-cumulative multiple omissions.
If it CANNOT be shown on the evidence that the negligence of any of them amounts to a but-for cause, but the evidence is enough to show that conduct of all of them "considered globally" - seemingly the court's word for cumulatively - amounts to a but-for cause, isn't that an orthodox but-for instance? They can't have meant that situation.
Or, if it would be enough to allow a but-for conclusion against one them if that person were the only negligent person and the evidence doesn't identify any set of facts that could be a "neutral" but-for cause - the court's term at [21], then we have orthodox alternative causation. Putting aside the instance where the multiple omissions are cumulatively necessary, aren't they always alternative but-for causes (in the orthodox meaning of but-for) if they're the only instantiation?
Look at paras. [39] and [40] of Clements
[39] What then are the cases referring to when they say that it must be “impossible” to prove “but for” causation as a precondition to a material contribution to risk approach? The answer emerges from the facts of the cases that have adopted such an approach. Typically, there are a number of tortfeasors. All are at fault, and one or more has in fact caused the
plaintiff’s injury. The plaintiff would not have been injured “but for” their negligence, viewed globally. However, because each can point the finger at the other, it is impossible for the plaintiff to show on a balance of probabilities that any one of them in fact caused her injury. This is the impossibility of which Cook and the multiple employer mesothelioma cases speak.
[40] The cases that have dispensed with the usual requirement of “but for” causation in favour of a less onerous material contribution to risk approach are generally cases where, “but for” the negligent act of one or
more of the defendants, the plaintiff would not have been injured. This excludes recovery where the injury “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell, per Sopinka J., at p. 327. The plaintiff effectively has established that the “but for” test, viewed globally, has been met. It is only when it is applied separately to each defendant that the “but for” test breaks down because it cannot be shown which of several negligent defendants actually launched the event that led to the injury. The plaintiff thus has shown negligence and a relationship of duty owed by each defendant, but faces failure on the “but for” test because it is “impossible”, in the sense just discussed, to show which act or acts were injurious. In such cases, each defendant who has contributed to the risk of the injury that occurred can be faulted.
Given that the Court has explicitly said that the evidence must be enough for a valid but-for finding if there were only one negligent person and no other alternative but-for cause, doesn't [39], bearing in mind the inclusion of the two hunter problem - Cook- necessarily describe alternative causation and nothing else?
If the SCC meant something other than alternative causation, then what, bearing in mind the court said the evidence, as a whole, as to be enough that it could be capable of pointing a but-for finger at somebody except that it doesn't point the finger at any one of the somebodies on the balance of probability.
I think that [43] was intended to mean the same as [46(2)] ,and [46(2] the same as the earlier paragraphs, but, in any event, the pointing-finger shtick doesn't make sense, to me, unless the
negligence of each of the multiple tortfeasors would be a but-for cause if the conduct of the others had not occurred and there is no other alternative but-for candidate. If that's an accurate statement, then I don't see how it is not satisfied by multiple (not cumulative) omissions.
I used double omissions as an example but use the two fire problem instead. If that scenario satisfies the test, then why doesn't the two-plants example? (We'll stipulate that omissions - that nothing - can be a factual cause (g)).
Cheers,
David
From: Njf663 <Neil.Foster@newcastle.edu.au>
To: David Cheifetz <david.cheifetz@rogers.com>
Cc: "obligations@uwo.ca" <obligations@uwo.ca>
Sent: Saturday, September 15, 2012 8:42:50 AM
Subject: Re: ODG: Canadian negligence law - a small causation conundrum
Dear David,
You've caught me just as I'm about to try to teach
causation in negligence so I am tempted to think I understand something about the area...
With respect I disagree with your suggestion that this para is always satisfied in cases where, as you put it, "each would be a but-for cause in the absence of the others ". As I read the earlier discussion in Clements, of which this is only meant to be a summary, the majority are rather dealing with a situation where the negligence of the "group of possible defendants as a whole" has caused the harm, but where it is NOT possible to say that any one of them on their own was a "but for" cause. In other words, harm has been probably caused by one out of A,B and C but it is not possible to say which one. In that type of case, and that type of case alone, do they think that "material contribution to risk" can establish causation. They make this clear at [43]:
" By contrast, the material contribution to risk approach applies where “but for”
causation cannot be proven against any of multiple defendants, all negligent in a manner that might have in fact caused the plaintiff’s injury, because each can use a “point the finger” strategy to preclude a finding of causation on a balance of probabilities".
They are "all negligent" but causation cannot be made out on a " but for" basis against any individual one.
(Please note that I am not agreeing with the SCC that this is a good doctrine, but this is what I think they are saying.)
Regards
Neil
Neil Foster
Associate Professor,
Newcastle Law School,
Assistant Dean, Teaching and Learning,
Faculty of Business and Law,
University of Newcastle
Callaghan NSW 2308 Australia
02 49217430
http://works.bepress.com/neil_foster/To clarify - their "no" meant that they could not see any instance of alternative or duplicative double omissions to which the Clements threshold wouldn't apply.
DC
Dear Colleagues:
I posed the substance of the following questions to a smaller group of colleagues whose response was "no".
If we take the Supreme Court of Canada at its word, do the requirements for qualifying impossibility under material contribution to risk, as set out in
Clements v. Clements, 2012
SCC 32 at para. 46(2),
http://www.canlii.org/en/ca/scc/doc/2012/2012scc32/2012scc32.html mean that all instances of double omissions must now be treated as instances where the causation question is to be decided under the material contribution to risk doctrine as it is explained in
Clements? If so, then how can that test be an exceptional test?
The
text of para. 46(2) is
"[46(2)] Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more
tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible
tortfeasors in fact was the necessary or 'but for' cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone."
If we begin with the classic two-plant example, or move to instances judges are more
familiar
with such as two
negligent drivers of motor vehicles where each driver fails to obey a traffic signal, or move to a more complicated situation in medical negligence where each physician (or nurse) fails to do something, then so long as we stipulate that each would be a but-for cause in the absence of the others, it seems to me that [46(2)] applies.
I can't see an instance of multiple
tortfeasors double omission to which the
Clements' threshold wouldn't apply, regardless of whether the omissions are an instance of
duplicative causation or alternative causation.
I also can't see any Canadian judge taking the Supreme Court at its literal word on this small conundrum and paradox, but that's a different problem.
I'd welcome the views of
anybody
inclined to comment, on list or
off.
Cheers,
David Cheifetz