Tue, 13 Feb 2007 22:49:53 -0700
Resurfice Corp. v. Hanke, 2007 SCC 7
agree with Neil. The SCC appears at paragraph 27 to be conflating
material contribution with material increase of risk, turning material
contribution into some all-embracing generic test where the but-for
test is "unworkable".
if we're wrong and they remain distinct, neither test really explains
the reference to Cook v. Lewis. Material contribution contemplates
that the defendant actually does something to the plaintiff that
may (or may not) have materially contributed to the injury. The
only way we can understand the "innocent" defendant in
Cook v. Lewis as having done so is by adopting Rand J.'s
view (as explained by Allan Beever in "Two Steps out of the
Mire") of the injury as being to the remedial right that was
parasitic to the plaintiff's right to bodily integrity. It doesn't
seem from the judgment, however, that McLachlin CJ had this in mind
(Allan's piece having perhaps been judicially consigned to either
or both of the "unnecessary" or "unhelpful"
she seems to view the injury in Cook v. Lewis as the shooting
of the plaintiff, to which the "innocent" defendant did
McGhee test doesn't help us resolve Cook v. Lewis
either. The "innocent" defendant's shooting negligently
in the plaintiff's direction does not materially increase the risk
that someone else will shoot the plaintiff.
Neil Foster 02/13/07 10:12 PM >>>
sort of guessed that you might be working late enough to read this
post in the middle of the night in Canada!
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.
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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