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Date: Wed, 14 Feb 2007 10:53:27 +1100 From: Neil Foster Subject: Resurfice Corp. v. Hanke, 2007 SCC 7
Dear Colleagues; Having been away last week I have now had a chance to read Resurfice v Hanks and felt I had to support Richard's comment here. There is some very deep confusion in the judgement of the SCC on the causation issue. To briefly recap for those who haven't read it: Mr Hanks was injured in an explosion of an "ice-resurfacing" machine when he mistakenly put water in the gasoline tank. His action against Resurfice, the manufacturers of the machine, was based on an allegation of defective design - the water and gasoline tanks were right next to each other and easily confused. The trial judge found against him on the basis that it was not foreseeable that someone would do this, and on the causation issue because Mr Hanks conceded he knew the difference between the two tanks and hence, whether or not someone else was confused, Mr Hanks was not and hence the faulty design did not cause the injury. (1) On the foreseeability issue (assuming it is being discussed as relevant to "breach", it being presumably obvious that a manufacturer of a machine owes a duty of care to ultimate users), the Alberta CA overturned the trial judge because at one stage he suggested he was not even going to discuss the issue of design error, as the accident (he said) was caused by Mr Hank's foolishness. This was clearly not the right approach to the issue of foreseeability, which was whether or not someone might be confused about the tanks. But the SCC said that in the end the trial judge did adequately discuss the "design error" arguments, so he did actually deal with the correct issues (SCC [8]). So they effectively held that as a matter of fact the trial judge was entitled to find that the particular design was not confusing. It is worth noting that the SCC were entirely correct at [11] to dismiss the suggestion from the CA that "reasonable foreseeability" at the breach stage should include matters such as "seriousness of the injury" and "relative financial positions of the parties". On the conventional analysis in Australia at least "seriousness of injury" is not a matter that goes to foreseeability, but rather one of the four issues that is weighed up in the "calculus" of Wyong Shire Council v Shirt in determining overall whether or not there has been a breach of duty. And "relative financial positions" might be a matter to weigh in the initial determination of the existence of a duty, but shouldn't really come into the breach analysis. (2) On the causation issue the trial judge had effectively found that since Mr Hanks was not confused about the difference between the tanks, the alleged design flaws had not contributed to the accident. {I would have thought it pretty clear that this conclusion did not necessarily follow. Even if Mr Hanks knew the difference between the two tanks when he stopped to think about it (which is what his admission noted in SCC [14] seems to mean), this does not mean that the tanks were properly designed. If they were so placed that a busy employee who is not fully attentive might easily confuse them on the spur of the moment, then to my mind it might still be said that the design of the tanks contributed to the accident. There are innumerable comments from superior courts that making work equipment safe involves taking into account carelessness of workers!} The SCC acknowledged that the trial judge's approach was defective in SCC [17]. Carelessness of a worker does not automatically absolve a manufacturer. The example conceded by McLachlin CJ there is this: "If it is industry standard to design an iron with an automatic shut off switch, and an iron is manufactured without such a switch, the manufacturer of the iron is not absolved of liability merely because the plaintiff was careless in leaving the iron on, resulting in a fire and injuries to the plaintiff." I would agree, but add that "industry standard" is not the only test of negligence here, as some industries have very low standards! But in the end the SCC held that the trial judge was justified in saying that the accident "had nothing to do with the design or manufacture of the machine". The rest of the judgement, then, considers what "having nothing to with" means. From para [18] on we enter the realm of real confusion. The Alberta CA had overturned the trial judge, apparently, because (i) he had found that "but for" the carelessness of the worker the accident would not have happened; (ii) but the "but for" test is unworkable in some circumstances and the trial judge should have used a "material contribution" test. The fundamental problem here, it seems to me, is that apples are being criticised for being bad oranges. Even if proposition (i) is true, surely it might also be true that "but for" the bad design of the machine the accident might not have happened. All the "but for" test does is identify possibly relevant factors; a single factor found by the "but for" test does not exclude other factors! And when we come to proposition (ii) confusion is compounded by taking "material contribution" as an alternative to the "but for" test. I don't think this can be right. At least in the way that the phrase "material contribution" is used in Australia, it is simply a way of specifying a sort of threshold part in the causal "net" leading to the incident so that what is being referred to makes a "more than trivial" contribution to the occurrence. That is, something has made a "material-contribution-to-the-harm". In NSW in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Mason P distinguished this concept from that "material increase in risk" and said : "The law does not equate the situation where the defendant had materially increased the risk of injury with one where he had materially contributed to the injury." (at 42 NSWLR 316G) But when we see the discussion of the SCC it seems that they are referring to "material contribution" as if it means "material increase in risk". They want to define the "but for" test at para [23] as requiring a "substantial connection" between the injury and the conduct of the defendant. The word "substantial" here seems to "raise the bar" from the word "material". And the "material contribution" test is spoken of in para [24] as an "exception" to the "but for" test. The description of it in para [25] must mean that they are referring to the McGhee/Fairchild/Barker type of "increased risk" analysis (though none of these cases is cited). Sadly, as others here have noted, they go in later paras to further muddy the waters by treating Cook v Lewis as if it were one of these "increased risk" cases when it is in fact subject to a different analysis altogether (given by Richard in his NESS analysis, I think). Even the case in para [28], dealing with the question of what a specific person would probably have done in certain circumstances, is not an "increased risk" case but simply an example of ordinary probability considerations: see eg Finch v Rogers [2004] NSWSC 39 where causation was established on the basis of what the particular doctor on duty on a specific occasion would have done. Finally, it struck me as I read the judgement that some of the confusion evident at all levels in these proceedings may possibly be a side-effect of what I understand to be the abolition of common law workplace injury claims against employers in Canada. Presumably Mr Hanks is suing the manufacturer of this machine because he cannot sue his employer. But now that the courts in Canada no longer deal with workplace injury claims on a regular basis, a number of quite well-established common law principles are being forgotten (the cases on the need for workplaces and equipment to take into account carelessness of workers, for example.) But this may just be my particular bias intruding, of course!
Regards Neil
Foster
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