Date: Wed, 14 Feb 2007 00:45:24 -0500

From: David Cheifetz

Subject: Resurfice Corp. v. Hanke, 2007 SCC 7

Good evening, Neil

Not quite middle of the night: it's only 12:30 a.m. EST - still early by my standards - when I saw your message and it'll be 12:45 am when I press send.

Yes, if the later paragraphs on material contribution mean at least what they seem to mean, the SCC has begun the process of moving Canada's version of material contribution, from whatever it meant before to some sort of doctrine of doctrine of imputed factual causation in the McGhee/Fairchild/Barker based on risk creation. Whether that's what the Court meant to say is another question. If that's where they're going, they'll have to overrule a recent decision or two, including portions of everybody's favourite - Snell v Farrell; but, then, as the HL essentially said in recently in Spectrum Plus, and Sean Connery long ago in the Thunderball remake: "never say never".

Regards,

-----Original Message-----
From: Neil Foster
Sent: February 14, 2007 12:12 AM
To: DAVID CHEIFETZ
Cc: David Cheifetz
Subject: Re: ODG: Resurfice Corp. v. Hanke, 2007 SCC 7

Dear David;

I sort of guessed that you might be working late enough to read this post in the middle of the night in Canada!

I am perfectly willing to accept that I might have misinterpreted the trial judge's decision; as you say, I was taking the SCC's word for it. And you are right, once they said that there were no grounds for disturbing the trial judge's view that the design was not foreseeably flawed, then there was no real need to discuss causation.

I am still curious, though- do you agree with me that what the SCC are calling "material contribution" as an alternative causation test is not really what they mean? That is, they seem to invoking McGhee/Fairchild/Barker, which deal with "material increase in risk", rather than "material contribution" to the event. Or is this just a distinction used by the NSW courts?

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