Date: Sat, 4 Oct 2008 16:12

From: David Cheifetz

Subject: Factual Causation - Cook v Lewis misapplied

Dear Colleagues,

Those of you teaching tort law might find this case useful in discussing the parameters of the rule in Cook v. Lewis (and Summers v Tice). You won't, though, get any help from any discussion in the case.

Parragh v. Eagle Ridge Hospital and Health Care Centre, 2008 BCSC 1299 is a notable misapplication of the Canadian reverse-onus rule for proof of factual causation on a but-for basis. Look at paras 1, 38, 39, 83 and 85. I suspect it's headed for appeal. Ultimately, the action was dismissed.

Two plaintiffs had hernia operations at the same hospital on the same day, performed by the same group of doctors and nurses. Both plaintiffs developed necrotizing fasciitis. The trial judge held, on the balance of probability, that the bacterium which led to the infections came from one of the doctors or nurses or one (or more) of the hospital cleaning staff responsible for that OR. By the time the action got to trial, the doctors had been let out on consent. The only defendants were 3 named nurses and the hospital. The case against the hospital was on the basis of vicarious liability for the nurses and cleaning staff.

The trial judge held that the conduct of all 3 nurse defendants would be deemed to be a factual cause, even though the judge had held that there were 5 people whose conduct could have been the cause. It isn't clear if that conclusion included the cleaning staff person(s). It seems not because the trial judge referred to "operating room personnel" (para 85). There's no indication that the judge gave any consideration to the fact the conclusions necessarily meant that the doctors were equally likely sources.

There were even more nurses in the OR at the relevant times, and who were not named, but that's a red-herring since the hospital was named.

The trial judge must have concluded that the defendants had not adduced sufficient evidence to the contrary to rebut the Cook inference. This isn't discussed but is implicit in the holding that Cook applied to produce the finding of causation. If the defendants didn't (and couldn't) adduce sufficient evidence to rebut the inference resulting from the reverse-onus, it was for the same reason that the plaintiff's couldn't establish but-for on an orthodox basis - the tests done didn't find the bacterium on anybody -  but the trial judge didn't mention that.  

The trial judge wrote:

[85] The fact is, however, that the plaintiffs contracted the disease while in the operating room.  Although everyone involved tested negative for the presence of the bacterium, one of them must have been a carrier and that person's test results simply fell within the margin of error Dr. Grant described.  Viewed from this perspective, the case is similar to Cook v. Lewis ...   

I suspect that if the case had been of a different type where, on one view of the facts, the plaintiff's conduct was a possible cause, then the trial judge would have seen the problem of applying Cook given the absence of the doctors.  

The action was, however, dismissed on the basis of that there was no evidence of any breach of the standard of care.

In another red-herring, Parragh also makes the too-common (in Canada, at least) error of getting the actual facts of Cook v. Lewis wrong. In Cook, it was not the case that both hunters fired toward the injured person. It was one or the other.

The reasons are also notable for what seems (to me) to be an intentional judicial decision to avoid any discussion of Resurfice and the material contribution test, probably because (1) based on the reasons the plaintiffs argued only for causation to be found on the basis of a common sense inference:  

[78]  The plaintiffs argue that this case is precisely the kind of case Sopinka J. had in mind in making the observations just noted.  They argue first that for two patients to contract the same rare disease, in which the only thing they have in common is having undergone an operation in the same operating room, gives rise to the inference that they contracted the disease during their respective operations.  They argue that on the application of common sense, an inference of causation should be drawn.

and (2) the judge's findings that there was evidence which could have been introduced relevant to the factual issues but wasn't. The judge didn't comment on who should have, but it was evidence open to the plaintiff to obtain which could have been helpful to the plaintiff.

Regards,
David Cheifetz

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