Date: Tue, 18 Sep 2007 22:24
From: David Cheifetz
Subject: Causation in the NZCA
From the Canadian perspective:-
The NZCA did a fine job citing Lara, but managed to get the current state of Canadian law wrong. Or handled it curiously.
I put it this way because there's no mention of Athey v Leonati or material contribution in Canada, even material contribution is discussed in the UK context. Rather, factual causation in Canada is treated as if it's all a matter of how to properly apply Snell. Since the NZCA had Lara's text, they had to know about Athey.
There's also no mention of Resurfice.
Canadian jurisprudence (the NZCA doesn't distinguish between common law and Quebec law) is treated as if factual causation is always to be proven using Snell's robust and pragmatic inference approach which permits the trier of fact to draw a valid inference of factual causation in cases of uncertainty even if the expert won't. There's no mention of material contribution in the Canadian context post Athey, and as I said no mention of Athey. There is an extended discussion of what Sopinka J meant in Snell as to when inferences may be drawn in the absence of positive scientific evidence and where facts (at least in the medical malpractice context) are particularly within the knowledge of the defendant as well as a mention of Lawson v Laferriere's rejection of loss of chance.
It's at least plausible the NZCA thought that Athey's material contribution approach is substantively no different than Snell's robust and pragmatic approach; that it's just a labeling difference. If they did that, I assume it's a view they took from their reading of Lara's text.
----- Original Message ----
From: DAVID CHEIFETZ
To: Jason Neyers
Sent: Tuesday, September 18, 2007 2:11:37 PM
Subject: Re: ODG: Causation in the NZCA
There are more cites to Lara Khoury's "Uncertain Causation in Medical Liability" than to any other individual's work. Kudos.
Jason: thank you for the reference.
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