Wed, 14 Feb 2007 16:12:13 +1100
Resurfice Corp. v. Hanke, 2007 SCC 7
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?
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
ph 02 4921 7430
fax 02 4921 6931
DAVID CHEIFETZ 14/02/07 3:55 >>> wrote (inter alia)
seem to have been led astray as to what the trial judge did or didn't
do by the SCC's descriptions. Unfortunately, there's a real chance
that those reasons are going to lead many lawyers and judges astray.
do not read the trial judge's conclusions the way you stated them
in the first sentence of item 2. He found that there was nothing
wrong with the design. He did not find that since Hanke was not
confused, existing design flaws had nothing to do with the accident.
read all 3 levels in Hanke (but not the trial transcripts).
I don't think the trial judge was confused at all based on my reading
of his reasons. One might want to take issue with whether he adequate
reviewed the evidence as to whether the design was adequate - the
standard of care issue - but that, as you indicate, has nothing
to do with causation. It seems that the SCC was satisfied, from
the review of all of the material it was given - which I assume
contained relevant excerpts from the transcripts - showed the trial
judge had reviewed the evidence, adequately. That's what they said
he did. They said that there was evidence to support his conclusions
of fact and mixed fact and law - this included the decision that
the design was proper. That, then, was the end that issue. The Alta
CA should never have interfered with that conclusion.
But, on account of the ... vagaries ... of Canadian material contribution
law, the Alta CA judges are not the only Canadian appellate court
judges (and trial court judges) to have recently suggested that
the mere fact that there's more than one potential cause is sufficient
to make but-for unworkable and trigger the application of material
contribution: see, for example Aristorenas
v. Comcare Health Services, 2006 CanLII 33850 at para 53.
Thus, it would seem that the 'material contribution' test is applied
to cases that involve multiple inputs that all have harmed the plaintiff.
The test is invoked because of logical or structural difficulties
in establishing 'but for' causation, not because of practical difficulties
in establishing that the negligent act was a part of the causal
no. Not even in Canada.
my view that we can't come to any reliable conclusions about the
current content or limits of the Canadian material contribution
test from what the SCC said in Hanke. I wrote, about 20
months ago, that the "content of the [Canadian] material contribution
doctrine has all of the substance of gossamer or the lace tatted
by Carroll's Beaver; and a thimble is all we need to contain it."
Things haven't improved in the months since. Depending on how one
looks at the Hanke paragraphs on mc, the SCC has just made
that thimble even smaller (if that were possible), or infinitely
big. But, heck: we're lawyers. We have 'negative capability'.
are bad enough that the judges of the appellate court of the province
in which I practise don't seem to be able to agree amongst themselves
on what the principles are and content of material contribution
is. If you're inclined to waste a few moments, compare what the
Ont CA said in Aristorenas to the prior Ont CA case in
Cottrelle, from which Aristorenas quoted.
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