Date: Wed, 19 Sep 2007 08:55

From: Neil Foster

Subject: Causation in the NZCA

Dear David, Lara et al

I don't have a particular interest in supporting the NZCA given the traditional rivalries between our countries (and we might even have to thrash them in the 20-20 Cricket soon!) But I think, David, you are expecting a bit more from them than they really need to give. I accept that if you are going to cite the decisions of other courts you ought to do your best to get them right. But the case certainly didn't call for an extensive and entirely consistent overview of Canadian causation law. (And if they had been reading your stuff on Resurfice on the web they would have realised that task is probably fruitless!)

My own reaction to the case (and thanks again, Jason, for mentioning it) is that it is an excellent overview of common law principles of causation, and since we are currently up to that issue in my Torts course I will recommend it to students for that purpose. It seems to me that the court has done a lot of reading in the area and mostly get their potted version right. Obviously Australian cases will warrant more discussion than Canadian, but they seem to me to get the Australian cases mostly right (including the continuing uncertainty about things like "loss of chance" in medical cases.)

My only quibble with the judgment is a point that I think some others also get wrong. At para [27] they say that "material contribution" is a departure from "but for". I emphatically disagree - the two doctrines deal with quite different issues. The "material contribution" doctrine was developed by way of contrast, not with the "but for" test, but with the view that there could only be a "single" cause of some event. "Material contribution" properly understood simply says - even if you have four or five "but for" things that led to the injury (one of which is the defendant's action), then the defendant's action can be a cause even if it is not the "main" cause and even if it doesn't make a "substantial" contribution - so long as it makes some contribution which is more than trivial.

This view, not the view expressed by the NZCA at [27], is supported by Bonnington Castings Ltd v Wardlaw [1956] AC 613. The plaintiff's disease in that case was caused by inhalation of dust. The majority of the dust he had inhaled came from a machine which (in 1956 at least) it was not careless to have used (actually the case was one based on breach of statutory duty, so to be more precise it was not a breach of the statute to use that machine because there was no known way of capturing the dust). A smaller proportion (less than half) of the dust came from machines which were used contrary to the statute (as there was a guard that would have prevented the dust escaping).

The main part of the judgment interestingly deals with and rejects the same argument that was raised (and rejected) 51 years later in the NZCA. The plaintiff in Bonnington relied on a previous decision of the English CA which said that where there was a statutory breach, and an injury which "could" result from the breach, then the onus of proof would shift to the deft to disprove causation. The House of Lords rejected this. But in doing so they articulated the principle that something could be a cause so long as it made a "material" (ie non-trivial) contribution to the harm. Here the evidence was that the condition was caused by the accumulation of dust. Part of that dust, it was acknowledged, came from the unlawfully used machine. Hence there had been a material contribution.

As Lord Reid summarised the situation on p 620: the plaintiff "must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury". I think this quote is what may have led some to think that the decision contrasts "but for" with "material contribution". That is not what his Lordship means. The word "caused" in that quotation has the sense "solely cause" or "strongly caused" or something similar. The contrast is not between "causation" simpliciter and "material contribution", but between a large contribution to the cause and a minor, but still material, contribution.

The rest of Lord Reid's judgment fits in with this view. At no point is there any suggestion that this an exception to the "but for" principle. The dust from the unlawfully guarded machine was (if I can venture to use NESS terminology) a necessary part of the sufficient set of events that led to the harm, even if it was only a small element of that set in relation to the other dust. Lord Reid says at 622:

"It is therefore probable that much the greater proportion of the noxious dust which he inhaled over the whole period came from the hammers. [The lawful machine.] But, on the other hand, some certainly came from the swing grinders [the unlawful machine], and I cannot avoid the conclusion that the proportion which came from the swing grinders was not negligible". Hence it made a "material contribution".

I hope I may be excused from reciting Bonnington in such detail, but I think it is important because it cannot be said to stand for the proposition that the NZCA asserts in [27], that "the ‘but for’ test could not be met as in all likelihood the claimant would, had there been no guilty dust, have contracted the disease from the innocent dust". With respect, this proposition finds absolutely no support in Bonnington. It was accepted that the so-called "innocent dust" outweighed the "guilty", but the House as far as I can see never even commented about the possibility of disease occurring in the absence of the "guilty dust".

I have to say that the error is understandable because other courts and some text writers also assert that the "but for" test could not be met in Bonnington. I think, with respect, that this is where a lot of the confusion lies in Resurfice.

This aside, as I say, my view is that on the whole the Ambros judgment is good and seems to accord with the common law in Australia.

Regards
Neil F

Neil Foster
Newcastle Law School
Faculty of Business & Law
MC159c, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> David Cheifetz 19/09/07 11:56 >>>

Lara,

I know they misread you, if they took you as their source for the way I stated things in the last paragraph. That's why I phrased the last sentence as I did - "I assume it's a view they took from their reading". I should have made it clearer I wasn't saying that that's in your text. It's not. Sorry about that.

Regardless of whether Ambros merits any discussion of material contribution (in whatever flavour) how does the NZCA read your text, cite it as much as it did - usually get it right (I think) where it's used explicitly: I didn't check - and not realize there was, at least verbally, more to Canadian common law factual causation than Snell's robust & pragmatic approach, whatever one is to make of Sopinka J's discussion of inferences, and Laferriere's rejection of possibilistic causation. Should we count the number of times you mentioned Athey and Walker? However, the NZCA mentions only Snell and Laferriere. I was trying to guess where the NZCA came with the idea that one could describe Canadian factual causation law effectively mentioning only Snell and Laferriere. It could only be by misreading something they were given to read in the original or correctly reading something that somebody gave them that was wrong. Does anybody know if the NZCA uses clerk / research lawyers?

And, you can't take Laferriere without Gonthier J's explanation in Mercier of what he meant so the rejection of loss of chance is Mercier explaining Laferriere.

Not that it matters a whit, but my reading of Ambros is that, however they got there, the NZCA thinks that Snell summarizes the substance of how one proves factual causation in Canadian tort law. If they didn't misread you, then what else did they misread? Or who did they rely on for their misunderstanding of Canadian law as it was before Resurfice.

Or, maybe I'm entirely out to lunch (breakfast now in NZ, right?) Maybe they chose not to mention Athey and Walker, and Resurfice, because they'd read Resurfice and couldn't understand how the SCC got from the Athey and Walker world (good, plain, common sense 'burgers and root beer') to the Resurfice world (legal fictions and metaphysics). And here I thought the SCC meant what it said when it said it didn't like fictions and metaphysics.

Their discussion of material contribution in the UK context make it clear they understood that whatever it might have been before Fairchild and Barker, it is now a risk concept. That makes their review of Canadian jurisprudence even odder.

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