Dear John and colleagues,
Given that there was only one defendant and no doubt only because of the way the case was presented to the Supreme Court, and the result, Clements itself doesn't
and didn't have to deal with the solidary (joint) or proportional (several) liability aspect of material contribution risk theory. Whether the Court ought to have is a different question. We have to assume the panel chose not to, right?
Given (1) that silence, (2) the fact that Clements refers to both Barker
and Fairchild without any reference to the Barker qualification of
Fairchild, and (3) and the presumption that the members of the Clements
panel understood the analysis and result in Barker, we have to conclude that, until the SCC says otherwise, liability under the
Clements version of material contribution to risk is solidary.
Given all of that and that the issue of the application of the
Clements version material contribution to risk could never have arisen
on the facts of Clements
as presented to the Court, so that the entire discussion of MCR was hypothetical, there is, in my view, no valid basis for arguing that
Clements
leaves it open for lower courts to adopt proportional (several) liability as the basis of liability under
Clements
MCR.
You might add to this argument from silence the fact that the SCC also didn't mention
Barker in Resurfice. However, it also didn't mention
Fairchild.
For what it is worth, I'd argue that, on the facts of
Clements as presented, NESS would not have done Ms. Clements any good either. That's at least because, as the British Columbia Court of Appeal recognized, the (expert) evidence was that Mr. Clements would have been unable to regain control even if he
was not speeding but driving at a speed close to the upper range the trial judge held appropriate. That evidence establishes the exculpatory counterfactual. The
speed at which he could have been able to recover was well lower but, of course, that's not how the (not metaphysical, of course) but-for counterfactual analysis is performed. Indeed, the expert evidence was that while "there
is a speed of travel above 37 kilometres per hour at which the puncture would not have resulted in a uncontrollable weave instability, it was impossible to determine that speed." (para. 23, BCCA reasons.) The top end of the appropriate speed range was "in
the range of 90 km/h" (para. 46, trial reasons). On that evidence, Mr. Clements negligence was always "in the air" and the case should have been dismissed at trial
on orthodox application of but-for.
It may be that the trial judge thought it was open to him (under arcane and probably wrong, even then, British Columbia law) to disregard the expert evidence completely
and decide the case based on his view of the facts and engineering issues. That's one possible explanation of the trial result.
Clements could have been (potentially) a Barker instance
had there been more than one alleged tortfeasor to the extent Ms. Clements was also involved in the loading of the motorcycle. The trial judge dismissed the contributory negligence argument against her but that conclusion was vacated, too, when the case was
sent back for a new trial. That creates the irony that, if Clements MCR does produce solidary liability, Ms Clements would be worse off, in B.C., under but-for than under MCR if she were also at fault. In B.C., where the BC
Negligence Act applies, concurrent wrongdoers are proportionally (severally) not solidarily (jointly) liable if the injured person is also at fault in relation to the occurrence of the accident.
For those who don't know,
Clements was, ultimately, settled. In brief, plaintiff's counsel found a better expert. I understand that counsel went (metaphorically) to Europe to find him.
I'm not surprised to read that some Canadian law students seem to misunderstand
Clements on material contribution to risk. They have good examples in the Canadian judiciary. I'll simply add that, despite
Clements, the situation is equally bad on the judicial front on the meaning of but-for, and (generally) it gets worse as one moves from east to west, peaking once one crosses the Rockies.
Cheers,
David Cheifetz
(Still a) MSt Candidate, Faculty of Law, Oxford
From: Kleefeld, John [john.kleefeld@usask.ca]
Sent: 19 March 2017 23:58
To: Wright, Richard; Vaughan Black
Cc: Jason W Neyers; obligations@uwo.ca
Subject: Re: Clements v Clements, Risk and Sindell
Dear colleagues:
It is an especially sunny day in Canada’s sunniest city, so it seems a shame to have to be troubled about factual causation at such a time. But Jason’s question is important,
as are the responses from those who have been following and have written about these questions for quite some time. In light of their responses (which seem to have ended up in two email threads), I’ll try to keep my comments to a few bullet points:
- Whatever might be the merits of hanging
Sindell-style liability (aka “market share liability” or “proportionate liability”) on
Clements, plaintiffs don’t need to. They can at least withstand a pleadings attack based on
Gariepy v Shell Oil, 51 OR (3d) 181, 2000 CanLII 22706. This was a classic “fungible goods” case, in which several manufacturers made polybutylene resin pellets
that other manufacturers in turn used to make allegedly defective polybutylene plumbing. At para 11, Cumming J, citing
Sindell, accepted that “where the specific manufacturer of a defective product used by a particular class member is unknown but the product by different manufacturers is the same, then liability may be able to be determined on a market share theory.”
See also, and more recently, Cuillerier v André’s Furnace, 2011 ONSC 5310 at para 29.
- One of the consistent things that the SCC has done in this area—perhaps the one consistent thing—is to focus on the case before it, and to some extent the preceding
ones. And generally to the exclusion of theory or with an eye to the kinds of cases that are yet to come. This is evident not only from the excerpt that David has pointed us to—para 46 of
Clements—but to its natural parent, Resurfice Corp. v Hanke, [2007] 1 SCR 333, 2007 SCC 7. I’m thinking especially of paras 24–28 of that decision, in
which we find the Court relying on Cook v Lewis and Walker Estate v York Finch General Hospital for the two branches of the “impossibility of proof” rationale that David has cited. Constructing a general theory from two cases is problematic;
unsurprisingly, it resulted in some backpedalling in Clements.
- As usual, I find I can turn to my students for evidence of the problems. On final exams, I usually include a scenario that has either a
Sindell-style component or a variation on Cook v Lewis. Sometimes, the
Sindell-style liability will be confounded with other causes, whether tortious or non-tortious. The most sophisticated answer I’ve ever had argued for the
Sindell-style tortfeasors being severally liable as among themselves, but jointly and severally liable as a group with the other “ordinary” tortfeasors. (!) And plenty of unsophisticated answers too, but things seemed reasonably OK until
Clements came along. Now I’m getting answers that suggest Clements has opened up all sorts of possibilities to find defendants jointly and severally liable. Consider a short-answer question, one of several that I might pose with a request to say
whether you agree, disagree, or partly agree/disagree with the proposition:
Dave, Dana and Darin shoot in Paula’s direction, with one of them—we don’t know who—injuring her. Dana, who has the most money, could have to
pay for all of Paula’s damages.
- Typically, students will say that this is like
Cook v Lewis, and that the 3Ds would be jointly and severally liable unless they could prove lack of intent or negligence; a passing answer should also explain that “jointly and severally liable” means that Dana could indeed have to pay the whole judgment,
but would be able to seek contribution for any amount that she pays over her one-third several share. A more sophisticated answer would pick up on a class discussion about the fairness of this approach to defendants; a student might explain how, with two defendants,
the onus reversal didn’t really deviate that much from a “balance of probabilities,” since there is a 50% likelihood that one of the defendants wasn’t the shooter; once you started adding defendants, though, things shifted: with three defendants, there’s a
1/3 chance of being correct, with 10 defendants, a 10% chance, and so on. Such answers would at least raise a concern about joint and several liability in the circumstances and argue that there might be a case for several-only liability instead. The point
I want to make is that since Clements, such discussions have entirely evaporated: students who recognize the difference in the fact pattern point to the “two or more tortfeasors” language in the case and flatly say something like: “Since
Clements this has not posed a problem.” This I find rather alarming and unthinking, and drives me to support the kind of arguments that David and Richard are making.
John Kleefeld
Associate Professor, College of Law
2017 Teaching Fellow, Gwenna Moss Centre for Teaching and Learning
University of Saskatchewan
email: john.kleefeld@usask.ca
From:
"Wright, Richard" <rwright@kentlaw.iit.edu>
Date: Sunday, March 19, 2017 at 4:36 PM
To: Vaughan Black <Vaughan.Black@dal.ca>
Cc: Jason W Neyers <jneyers@uwo.ca>, "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Re: Clements v Clements, Risk and Sindell
Without re-reading Sindell, my recollection is that it was considered that the adenocarcinoma was a "signature" disease caused solely, at least in the relevant circumstances, by exposure to DES, and
that all suppliers of DES had behaved tortioiusly (through either negiigence of strict liability). So, yes, read literally and without possible qualification, the material contribution to risk exception in
Clements would apply to each supplier of DES.
That exception simply restates the alternative liability doctrine stated in
Summers v. Tice (and Cook v. Lewis), which was argued but rejected in
Sindell, on the ground, if I recall correctly, that not all possible suppliers of the DES were before the court (a requirement not initially stated in
Summers and difficult to support). It seems clear that the Sindell court, and other courts, including the
Fairchild court, were not willing to extend the Summers doctrine, involving full liablity, to situations involving lots of defendants and lots of plaintiffs. So both courts instead turned to proportional liability, with
Sindell requiring (again, not clear why, especially given proportional liability based on market share) joining of an undefined "substantial" portion of the market.
Note that, under a market share based calculation of a statistically-based "balance of probability", Eli Lilly possibly could have been held to have caused abd be held fully liable for every one of the adenocarcinoma
injuries, since there apparently was evidence that it contributed, directly or indirectly, to more than half of the market. As I have noted before, the
Sindell court avoided this paradox (one of several) created by treating the "balance of probability" as a statistical measure rather than, properly, as a minimal degree of belief, by referring to the number of suppliers rather than the market share of
the various suppliers.
One last note, as I have stated before: individual causation could easily be proved in
Clements using the NESS criterion, which the Court failed to see given its continued myopic focus on but-for, which is the source of almost all of its difficulties in this area. More will be said, briefly, at the Obligations conference in Vancouver in
early May. - RWW
On Sun, Mar 19, 2017 at 2:41 PM, Vaughan Black <Vaughan.Black@dal.ca> wrote:
But are there not other (non-tortious) causes of the
Sindell plaintiffs' adenocarcinoma apart from the DES the defendants manufactured? And wouldn't the presence of those non-tortious causal candidates make
Clements material contribution contribution unavailable?
vb
Dear Colleagues:
I was just looking at
Clements v Clements again for the first time in a few years and it occurred to me that given the way that the SCC frames the test of causation for material contribution to risk, there would be liability on the facts of
Sindell v Abbott Laboratories if that occurred in Canada. Each individual plaintiff would be able to establish (a) she suffered loss that would not have occurred “but for” the negligence of the drug companies taken globally in the marketing the
drug; and (b) the plaintiff through no fault of her own would be unable to show that any one of the possible tortfeasors was a but for cause of her injury, because each company could point to the others as a cause of the injury. This process of reasoning could
be repeated by each of the potential plaintiffs (which could number in the thousands or more). The SCC test appears to be even easier for the plaintiff than that in
Sindell since there is no requirement that all the potential tortfeasors be before the court or even that the tortfeasors chosen to be sued represent a substantial percentage of the possible tortfeasors.
I just wanted to check that others would agree with this analysis and that I haven’t missed anything in
Clements or any subsequent SCC case that would foreclose this type of analysis.
Sincerely,