This is because cause is a legal not a factual matter. Legal principles - informed by policy and moral considerations - not physical or scientific principles tell us which historical events are relevant for the attribution of responsibility for harm.
Therefore engaging in an analysis of when the but-for test doesn't permit the courts to attribute responsibility for harm doesn't get us very far in explaining when the courts are able to do this. Again, it's a bit like having a bunch Newtonian physicists trying to disregard quantum mechanics because it can't be explained by Newtonian calculations. It is precisely because Newtonian principles can't explain the quantum world that different - and more fundamental - principles have to be used.
----- Original Message -----
From: DAVID CHEIFETZ
Sent: Sun Apr 06 07:45:17 2008
Subject: Re: Canadian Causation Conundrum: Resurfice & Athey
Dear Colleagues
Amidst the deafening silence, I'll provide one approach to determining a formally valid answer to my (somewhat restated) questions: Does Resurfice contemplate another test other than but-for for cause-in-fact? Does the Athey material-contribution-to-injury test still exist?
The approach is as follows.
1. Can we identify cases decided in favour of the plaintiff on an Athey material-contribution basis before Resurfice that would not be decided in favour of the plaintiff now? We are not concerned with “why”, yet, just the result. Remove from the set of cases all of the cases, if any, which we now believe would be decided against the plaintiff. Call the larger set of cases that remains “Set A”.
2. Examine Set A (cases in which the plaintiff succeeded) for any cases that would now be decided in favour of the plaintiff by applying the Resurfice material-contribution contribution test. They are supposed to be “exceptional cases” so there should not be that many. Remove those cases. Call what is left “Set B”.
3. Examine Set B. On what basis would the finding of cause-in-fact be made in favour of the plaintiff, now, in each of those cases? If the answer is the but-for test, then the rhetorical question is: “what changed about the facts that makes the but-for test validly applicable, now, when it was not validly applicable before February 8, 2007?".
If there are no cases left, then the Athey version of the material-contribution-to-injury-test no longer exists. However, if there is at least one case where you have a finding that cause-in-fact exists which is a finding that is not valid under but-for as it is presently understood, then there has to be another meaning of the but-for test or another test for the existence of cause-in-fact, if this issue was correctly decided in the plaintiff’s favour.
I don't think Resurfice provides an answer to the first question because, with all due respect, I see nothing in the reasons to indicate that the panel thought the issues through adequately. They might well have. But, if they did, they chose to not help the profession at all.
Similarly, Resurfice is no help on the second, unless one assumes that the court's failure to explicitly write something like "the Athey version of material-contribution is no longer good law" means anything more than that the court didn't write something like that explicitly. I doubt the panel considered that anybody would parse their analysis to this extent.
I think an explanation (but not answer) lies in Lewis Klar's judges "will strive to fashion a just solution in this type of case to allow a wronged plaintiff to recover. Courts will not allow wronged plaintiffs to fall between the cracks due to the formal requirements of proving cause” (Tort Law, 3d, at 400).
