|From:||Alain Roussy <email@example.com>|
|Date:||01/12/2015 15:39:36 UTC|
|Subject:||RE: 'But for' or material contribution? Causation problem involving Zoolander|
Well, on the topic of videos, this might be of interest. A few students and I have just recently produced six videos to be used in Torts classes. They are in French, but don’t let that scare you. In five of the six cases, the videos are voiceless and French is used only for the title, subtitles, etc. In the sixth case (Donoghue v Stevenson), it is also voiceless, but French is used to visually show the conversation between actors (à la old style Charlie Chaplin movies). Having said that, the videos will soon be translated into English so I could send the links again at that time if there is interest.
Four of the six videos follow the same type of pattern. First, the actual events of the case are shown (with some artistic leeway). Then, a number of variations are shown to stimulate class discussion of the “what if” variety. In other words, we play with the facts a bit. The Donoghue video shows only the facts, without variations. The “Assault, battery, etc.” video is different. It is a series of 13 very short sketches that try to show differences between a number of concepts, including assault, battery, negligence, provocation, self-defence, motive, capacity, duress, etc.
Anyways, here they are:
Boutcher v Stewart : https://youtu.be/r4MFp81-3CA
Bird v Holbrook : https://youtu.be/y9LjPQi4aL4
Donoghue v Stevenson : https://youtu.be/qAsgoUGqCyE
Professeur | Professor
Section de common law | Common Law Section
Faculté de droit | Faculty of Law
Université d'Ottawa | University of Ottawa
57 Louis Pasteur
Ottawa, ON K1N 6N5
Tél. | Tel. : 613-562-5800 (7914)
Téléc. | Fax : 613-562-5124
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Admittedly striking wide of the point here, I can't resist an opportunity to talk video teaching tools.
For a short but enjoyable conversation starter on causation, I like the New Yorker "Dress for the Moment" ad from 2009:
Related to causation insofar as it demonstrates foreseeability and the problem of hindsight bias, I also like South Park's Captain Hindsight (mind the language):
(site blocked in some countries)
--though often I use that item to talk about breach and proof in medical malpractice, where hindsight bias is especially problematic.
I appreciate Janet's reference to Sliding Doors (1998), which I have not seen, but now will. Sometimes when introducing causation in class I use a trailer from The Butterfly Effect (2004). It provides a starting point to distinguish philosophical causation, scientific causation, and legal causation. Students also like to discuss Ashton Kutcher, so that's a plus.
Richard J. Peltz-Steele
Professor, UMass Law School
333 Faunce Corner Road
North Dartmouth, Mass. 02747 USA
"Bruce Pardy" <firstname.lastname@example.org>
To: "Martin Olszynski" <email@example.com>, firstname.lastname@example.org
Sent: Monday, November 30, 2015 8:30:33 PM
Subject: RE: 'But for' or material contribution? Causation problem involving Zoolander
Hi Martin and all
First time I’ve seen that particular clip – yikes. It seems to me that material contribution is applicable here only if one considers the four idiots to be acting independently and not as joint tortfeasors when they participate in their game of spraying each other with gasoline. But that seems like a joint activity carried out in concert for a common purpose, making them joint tortfeasors. If so, the but-for test should work fine. In a negligence action brought by, for example, the owners of the gas station, the defendants would be the four idiots. The plaintiff would allege two instances of negligence: first, the spraying of gasoline and second, the lighting of the lighter. The first was done by the four joint tortfeasors. The second was done independently by one of the four. Both the spraying of the gasoline and the flame from the lighter were necessary to produce the resulting fire and explosion. Therefore, but-for should work in both instances: But for the negligent spraying of the gasoline, would the gas station have been destroyed? Answer: no. Therefore, the negligent acts of the four joint tortfeasors is a cause of the loss. But for the flame from the lighter, would the gas station have been destroyed? Answer: no. Therefore, the negligent act of the individual who lit the lighter is a cause of the loss. Therefore, both the joint tortfeasors together and the individual tortfeasor for his individual act are jointly and severally liable to the plaintiff for the loss. The proportioning of liability between the defendants is not a matter of concern for the plaintiff and does not affect the causation test to be applied. If one were to conclude that the spraying of the gasoline was not a joint activity but one undertaken by each of the four individually, then okay, apply a material contribution test – but by playing a negligent game entered into by all together, they look like joint tortfeasors to me.
Would be interested to hear other thoughts.
Faculty of Law
Kingston ON Canada
At the beginning of this term, a colleague relied on a (in)famous clip from the film Zoolander (the gasoline fight/explosion) to illustrate the basic elements of a negligence action. Having now come to the end of the fall term, some thoughtful students appear to have sensed that they may have found a case for the proper application of the 'material contribution' test for causation as per the SCC's teaching in Clements v Clements (2012).
I am inclined to agree but couldn't help thinking that we would benefit from canvassing some of you, so I've included the clip below (starting around the 1:10 minute mark):
University of Calgary Faculty of Law
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