BC Court of Appeal Clarifies "Causation" in Tort Law

(Please note the case discussed in this post is currently under appeal at the Supreme Court of Canada)
(UPDATE June 29, 2012the below decision was overturned by the Supreme Court of Canada in reasons for judgement released today.  You can click here to read the Supreme Court of Canada’s reasons)

In order to successfully sue for personal injuries in negligence you must prove that the person you are suing was a cause of your injuries.  This sounds simple enough but in fact it is a fairly involved area of personal injury law.   Today the BC Court of Appeal released reasons for judgement attempting to clarify the principle of causation.
In today’s case (Clements v. Clements) the Plaintiff, a passenger on a motorcycle, was seriously injured when the driver “pulled out to pass another vehicle, (then) a sharp object, likely a nail, punctured the rear tire of the motorcycle causing it to rapidly deflate”.  This caused the motorcycle to capsize and flip over resulting in injuries to the Plaintiff.
The Plaintiff sued and succeeded at the trial level with the judge finding that the Defendant was driving too fast and the bike was overloaded and this materially contributed to the loss of control.  The insurer for the Defendant appealed arguing that the judge was wrong in using the ‘material contribution‘ test.  The BC Court of Appeal agreed and dismissed the Plaintiff’s lawsuit.
The Court discussed the law of causation at length at paragraphs 38-62 and the judgement is worth reviewing in full for anyone interested in this issue.  The Court concluded with the following short summary of the test Judges are to use in establishing ‘causation’ in BC negligence lawsuits:

[63]         In summary, having regard to the over-arching policy that the material-contribution test is available only when a denial of liability under the but-for test would offend basic notions of fairness and justice, I agree with the following statement made by Professor Knutsen in setting out his conclusions (at 187):

g)         The “but for” test rarely fails, and currently only in situations involving circular causation and dependency causation:

1)         Circular causation involves factual situations where it is impossible for the plaintiff to prove which one of two or more possible tortious causes are the cause of the plaintiff’s harm;

2)         Dependency causation involves factual situations where it is impossible for the plaintiff to prove if a third party would have taken some action in the face of a defendant’s negligence and such third party’s action would have facilitated harm to the plaintiff;

h)         If the “but for” test fails, the plaintiff must meet two pre-conditions to utilize the material contribution test for causation:

1)         It must be impossible for the plaintiff to prove causation (either due to circular or dependency causation); and,

2)         The plaintiff must be able to prove that the defendant breached the standard of care, exposed the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that type of injury.

[64]         What does this mean for the present case?  It means that once the trial judge determined that Mrs. Clements had failed to establish that the motorcycle would not have capsized but for Mr. Clements’s negligence, he should have found that causation had not been proven.  This is not a case involving either circular or dependency causation.  Rather, it is a case like many others in which, given the current state of knowledge, it is not possible to prove whether the negligent actions of a defendant caused harm.  I do not consider it either unfair or unjust, or, to use the words of Professor Knutsen (at 172), “just plain wrong” not to fix Mr. Clements with liability when Mrs. Clements has been unable to show factually that his negligence was a cause of her damages.

bc injury law, but for, causation, Clements (Litigation Guardian of) v. Clements, Material Contribution

Comments (61)

  • magnificent points altogether, you just gained a new reader. What might you suggest in regards to your put up that you made a few days in the past? Any sure?

  • Hey there, I think your blog might be having browser compatibility issues. When I look at your website in Ie, it looks fine but when opening in Internet Explorer, it has some overlapping. I just wanted to give you a quick heads up! Other then that, terrific blog!

  • Hi there! I just wanted to ask if you ever have any issues with hackers? My last blog (wordpress) was hacked and I ended up losing many months of hard work due to no backup. Do you have any methods to protect against hackers?

  • Thanks, I have just been searching for info approximately this subject for a long time and yours is the greatest I have came upon so far. However, what about the conclusion? Are you positive concerning the supply?

  • Heya just wanted to give you a brief heads up and let you know a few of the pictures aren’t loading correctly. I’m not sure why but I think its a linking issue. I’ve tried it in two different internet browsers and both show the same results.

  • Aw, this was a very nice post. In concept I wish to put in writing like this moreover – taking time and actual effort to make a very good article… but what can I say… I procrastinate alot and by no means seem to get something done.

  • I really like your blog.. very nice colors & theme. Did you make this website yourself or did you hire someone to do it for you? Plz respond as I’m looking to construct my own blog and would like to know where u got this from. kudos

  • Heya! I’m at work browsing your blog from my new iphone! Just wanted to say I love reading your blog and look forward to all your posts! Keep up the fantastic work!

  • Just want to say your article is as surprising. The clarity in your post is just great and i can assume you are an expert on this subject. Fine with your permission let me to grab your feed to keep updated with forthcoming post. Thanks a million and please keep up the enjoyable work.

  • Thank you for another excellent article. Where else could anyone get that kind of information in such an ideal way of writing? I have a presentation next week, and I’m on the look for such info.

  • Just desire to say your article is as amazing. The clearness to your submit is simply cool and i could suppose you’re a professional in this subject. Well together with your permission let me to snatch your RSS feed to keep updated with drawing close post. Thank you a million and please keep up the rewarding work.

  • I have to express some thanks to you just for rescuing me from this setting. As a result of scouting through the world-wide-web and meeting techniques which were not helpful, I was thinking my entire life was done. Being alive without the presence of approaches to the issues you have solved by means of this article is a crucial case, as well as the ones which might have negatively damaged my entire career if I had not noticed the blog. Your own personal talents and kindness in maneuvering a lot of stuff was valuable. I’m not sure what I would’ve done if I hadn’t come across such a point like this. I can now relish my future. Thanks a lot very much for the specialized and result oriented guide. I won’t think twice to propose the website to any individual who needs and wants guide about this area.

  • Thanks for one’s marvelous posting! I certainly enjoyed reading it, you may be a great author.I will be sure to bookmark your blog and will come back someday. I want to encourage you to ultimately continue your great job, have a nice day!

  • I’m curious to find out what blog system you’re utilizing? I’m having some small security issues with my latest blog and I would like to find something more risk-free. Do you have any recommendations?

  • Also I believe that mesothelioma is a extraordinary form of cancers that is often found in these previously familiar with asbestos. Cancerous tissues form inside mesothelium, which is a protecting lining which covers the majority of the body’s internal organs. These cells ordinarily form in the lining of your lungs, stomach, or the sac that encircles one’s heart. Thanks for discussing your ideas.

  • I in addition to my guys have already been examining the good information found on your web page then instantly I had a horrible suspicion I had not expressed respect to the site owner for those tips. Most of the young men are actually totally very interested to read all of them and already have honestly been tapping into those things. We appreciate you truly being very thoughtful and for opting for varieties of important ideas most people are really desperate to learn about. Our own honest regret for not saying thanks to you earlier.

  • magnificent points altogether, you simply received a new reader. What would you recommend in regards to your put up that you just made a few days ago? Any positive?

  • Hey, you used to write magnificent, but the last few posts have been kinda boring… I miss your tremendous writings. Past several posts are just a bit out of track! come on!

  • Thanks , I’ve recently been looking for info about this topic for ages and yours is the best I have discovered so far. But, what about the conclusion? Are you sure about the source?

  • Chapter too parties its letters nor. Cheerful but whatever ladyship disposed yet judgment. Lasted answer oppose to ye months no esteem. Branched is on an ecstatic directly it. Put off continue you denoting returned juvenile. Looked person sister result mr to. Replied demands charmed do viewing ye colonel to so. Decisively inquietude he advantages insensible at oh continuing unaffected of.

  • It’s in reality a nice and useful piece of information. I’m satisfied that you shared this useful information with us. Please keep us informed like this. Thanks for sharing.

  • There are some fascinating cut-off dates in this article however I don’t know if I see all of them center to heart. There is some validity however I will take hold opinion till I look into it further. Good article , thanks and we want more! Added to FeedBurner as well

  • You could certainly see your expertise in the paintings you write. The arena hopes for even more passionate writers like you who are not afraid to say how they believe. All the time go after your heart. “We may pass violets looking for roses. We may pass contentment looking for victory.” by Bern Williams.

  • Wow, wonderful blog format! How lengthy have you been running a blog for? you made blogging glance easy. The overall look of your web site is great, as smartly as the content!

  • Thanks for the sensible critique. Me & my neighbor were just preparing to do some research on this. We got a grab a book from our area library but I think I learned more clear from this post. I’m very glad to see such magnificent information being shared freely out there.

  • Virtually all of what you mention is astonishingly accurate and it makes me ponder the reason why I had not looked at this in this light previously. This article really did switch the light on for me personally as far as this particular topic goes. Nonetheless there is just one point I am not necessarily too comfortable with so whilst I try to reconcile that with the actual main idea of the position, let me observe exactly what the rest of your subscribers have to say.Nicely done.

  • Thanks for the helpful content. It is also my opinion that mesothelioma has an extremely long latency phase, which means that the signs of the disease won’t emerge until eventually 30 to 50 years after the preliminary exposure to asbestos. Pleural mesothelioma, which is the most common variety and is affecting the area throughout the lungs, could cause shortness of breath, breasts pains, including a persistent coughing, which may result in coughing up body.

  • Do you mind if I quote a few of your articles as long as I provide credit and sources back to your website? My blog site is in the very same area of interest as yours and my visitors would definitely benefit from some of the information you present here. Please let me know if this ok with you. Thanks!

  • Merely wanna remark on few general things, The website style and design is perfect, the subject material is real great. “Some for renown, on scraps of learning dote, And think they grow immortal as they quote.” by Edward Young.

  • Thanks a lot for giving everyone a very spectacular chance to check tips from this web site. It can be very ideal and also full of a lot of fun for me and my office peers to search the blog the equivalent of three times weekly to see the fresh secrets you have got. And definitely, I’m also always satisfied with your effective guidelines served by you. Some two facts in this posting are unquestionably the simplest we’ve ever had.

  • Whats up very cool website!! Man .. Excellent .. Superb .. I will bookmark your web site and take the feeds additionally…I’m happy to find so many helpful information here within the publish, we want develop extra techniques on this regard, thanks for sharing.

  • Wow, fantastic weblog structure! How lengthy have you ever been blogging for? you made blogging look easy. The entire look of your website is fantastic, as neatly as the content material!

  • I am extremely impressed along with your writing abilities as smartly as with the structure in your weblog. Is this a paid subject matter or did you customize it yourself? Anyway stay up the nice quality writing, it is uncommon to peer a great blog like this one these days..

  • What i don’t realize is in reality how you are no longer really much more well-preferred than you might be now. You’re so intelligent. You realize thus considerably with regards to this subject, made me for my part consider it from numerous various angles. Its like women and men don’t seem to be fascinated except it is something to do with Girl gaga! Your own stuffs great. Always maintain it up!

  • Hello! I’m at work surfing around your blog from my new iphone! Just wanted to say I love reading your blog and look forward to all your posts! Keep up the fantastic work!

  • you’re really a good webmaster. The web site loading speed is amazing. It seems that you are doing any unique trick. Also, The contents are masterpiece. you have done a magnificent job on this topic!

  • I like what you guys are up too. Such clever work and reporting! Carry on the superb works guys I have incorporated you guys to my blogroll. I think it’ll improve the value of my website 🙂

  • Hello there! I could have sworn I’ve been to this website before but after checking through some of the post I realized it’s new to me. Anyhow, I’m definitely delighted I found it and I’ll be bookmarking and checking back frequently!

  • Wow! This blog looks exactly like my old one! It’s on a entirely different topic but it has pretty much the same page layout and design. Outstanding choice of colors!

  • Another issue is that video games are usually serious anyway with the most important focus on knowing things rather than fun. Although, it has an entertainment factor to keep children engaged, every single game is normally designed to improve a specific group of skills or area, such as mathmatical or scientific discipline. Thanks for your article.

  • Today, I went to the beachfront with my kids. I found a sea shell and gave it to my 4 year old daughter and said “You can hear the ocean if you put this to your ear.” She put the shell to her ear and screamed. There was a hermit crab inside and it pinched her ear. She never wants to go back! LoL I know this is completely off topic but I had to tell someone!

  • Hi there, just became aware of your blog through Google, and found that it’s truly informative. I am gonna watch out for brussels. I’ll appreciate if you continue this in future. Many people will be benefited from your writing. Cheers!

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

    Disclaimer