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Supreme Court of Canada Clarifies Law of Causation in Injury Claims

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In 2010 the BC Court of Appeal released reasons for judgement seeking to clarify the law of causation in negligence lawsuits.  The Supreme Court of Canada weighed in on this topic in reasons for judgement released today.
In today’s case (Clements (Litigation Guardian of) v. Clements) the Defendant was “driving his motorcycle in wet weather, with his wife riding behind on the passenger seat.  The bike was about 100 pounds overloaded.  Unbeknownst to (the driver), a nail had punctured the rear tire.  Though in a 100 km/h zone, (the driver) accelerated to at least 120 km/h in order to pass a car; the nail fell out, the rear tire deflated, and the bike began to wobble.  (the driver) was unable to bring the bike under control and it crashed“.  The crash caused a severe brain injury to the passenger.
The BC Court of Appeal dismissed the claim finding that the Plaintiff could not prove the Driver’s speed and overloading of the motorcycle caused the crash.  The Supreme Court of Canada, in a 7:2 split, found that errors were made at both the trial and appellate level and ordered a new trial.  In doing so the majority provided the following reasons on the “but for” test of causation in negligence claims:

[6] On its own, proof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss.  The plaintiff must also establish that the defendant’s negligence (breach of the standard of care) caused the injury.  That link is causation.

[7] Recovery in negligence presupposes a relationship between the plaintiff and defendant based on the existence of a duty of care — a defendant who is at fault and a plaintiff who has been injured by that fault.  If the defendant breaches this duty and thereby causes injury to the plaintiff, the law “corrects” the deficiency in the relationship by requiring the defendant to compensate the plaintiff for the injury suffered.  This basis for recovery, sometimes referred to as “corrective justice”, assigns liability when the plaintiff and defendant are linked in a correlative relationship of doer and sufferer of the same harm:  E. J. Weinrib, The Idea of Private Law (1995), at p. 156.

[8] The test for showing causation is the “but for” test.   The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ? in other words that the injury would not have occurred without the defendant’s negligence.  This is a factual inquiry.  If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

[9] The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.  SeeWilsher v. Essex Area Health Authority, [1988] A.C. 1074, at p. 1090, per Lord Bridge; Snell v. Farrell, [1990] 2 S.C.R. 311.

[10] A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss.  See Snell and Athey v. Leonati, [1996] 3 S.C.R. 458.  See also the discussion on this issue by the Australian courts: Betts v. Whittingslowe, [1945] HCA 31, 71 C.L.R. 637, at p. 649; Bennett v. Minister of Community Welfare, [1992] HCA 27, 176 C.L.R. 408, at pp. 415-16; Flounders v. Millar, [2007] NSWCA 238, 49 M.V.R. 53; Roads and Traffic Authority v. Royal, [2008] HCA 19, 245 A.L.R. 653, at paras. 137-44.

The Court also went on to address the “exceptional” cases where the “material contribution to risk ” doctrine can be used finding its use is appropriate only where:

(a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and

(b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

"Scientific Certainty" Not Necessary to Prove Causation in Disc Injury Claim

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Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, discussing the issue of causation in a disc injury claim.
In this week’s case (Valuck v. Challandes) the Plaintiff was injured in a 2007 head-on collision.  Fault was admitted by the offending motorist.  The Plaintiff was ultimately diagnosed with a disc protrusion at the L5-S1 Joint.

ICBC argued the disc protrusion was not caused by the crash or if it was it would have occurred even in the absence of the collision.  Mr. Justice Rogers disagreed and found that while it was not scientifically possible to say with certainty that the disc injury was caused by the crash, it certainly was an event that materially contributed to the injury.
Mr. Justice Rogers assessed non-pecuniary damages at $100,000 but then reduced this award by 40% to take into account the fact that the injury may have occurred even without the crash.  In discussing causation the Court provided the following reasons:

[59] There is a conflict in the evidence concerning the cause of the herniation of the plaintiff’s lumbar disc at the L5-S1 joint. According to Dr. Laidlow, the plaintiff’s disc was probably not injured in the collision. He bases his opinion primarily on the fact that the plaintiff’s complaints of low back symptoms did not start until several weeks after the accident. According to Dr. Laidlow, if the disc had been damaged in the accident then the plaintiff would have had symptoms in that area right after the event and that she would not have been able to ignore those symptoms. According to Drs. Shuckett and Craig, the impact likely caused some damage to the plaintiff’s lumbar disc and that damage materially contributed to the herniation that the plaintiff subsequently experienced a year and a half later.

[60] I found Dr. Laidlow’s evidence to be particularly useful here. Dr. Laidlow said, and I accept, that a spinal disc comprises a containment vessel made up of fifteen to twenty layers of fibrous material and of viscous disc material lying within the containment vessel. The fibrous layers of the wall can, over time, suffer tears. The tears can be spontaneous or, rarely, they can be caused by trauma. The tears may heal over time, or they may not. Tears may occur without causing any symptoms at all. Enough tears may, at some point, be present in the disc wall so that the wall begins to fail. If that happens then the disc might bulge out. The bulging can intrude on pain sensitive tissues and pain may result.

[61] At some further point, enough tears may be present in the fibrous layers to compromise the wall itself and the wall breaks. In that event, the viscous inner disc material will escape from the disc. The escaped material is termed a protrusion and the condition is known as a herniated disc. The protrusion may impinge on surrounding tissues, causing local pain. The protrusion may also impinge on the nerve roots that exit the spine at the site of the hernia. In that case, symptoms usually include pain radiating along the area enervated by that particular nerve.

[62] Dr. Laidlow testified that an accident such as the one in which the plaintiff was involved would likely have caused damage of some kind to her spine. Dr. Laidlow was not willing to say for sure such damage included tears in the wall of the plaintiff’s lumbar disc. In his view, such damage was possible, but that he could not say for sure one way or the other. Given the several weeks’ delay between the trauma of the accident and the onset of the plaintiff’s low back pain, and the year and half that passed between the accident and the herniation, Dr. Laidlow felt that the accident could not be said to be a material contributing factor in the herniation.

[63] Although Drs. Schuckett and Craig did not say so in so many words, the gist of their evidence was that they thought that the accident probably did weaken the disc and thus materially contributed to the herniation that occurred on the Labour Day weekend of 2008.

[64] Dr. Laidlow cannot be faulted for testifying that there is no way to know if the accident in fact caused one or more tears to the wall of the plaintiff’s lumbar disc – no images exist to show the state of her disc in intimate detail immediately before or immediately after the accident, and no physical examination short of a biopsy could have illuminated that issue for him.

[65] I have concluded that the evidence in this case does not admit a scientifically certain answer to the herniation question. Scientific certainty is not necessary, however. As the Supreme Court of Canada said in Athey v. Leonati, [1996] 3 S.C.R. 458 at paragraph 16:

…Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is “essentially a practical question of fact which can best be answered by ordinary common sense”. …

[66] After taking into account all of the medical evidence and the all of evidence of the plaintiff and her witnesses, and after applying a soupcon of common sense to the mix, I have concluded that the accident did cause some damage to the containment wall of the plaintiff’s L5-S1 disc and that that damage was a material contributing factor in the herniation that occurred at the end of August 2008. It follows that I find that the defendant is liable for damages caused by that herniation.

BC Court of Appeal Clarifies "Causation" in Tort Law

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(Please note the case discussed in this post is currently under appeal at the Supreme Court of Canada)
(UPDATE June 29, 2012 – the 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 Court of Appeal Discusses Causation in Negligence Claims

Written by admin on . Posted in Civil Procedure, Uncategorized. 62 Comments on BC Court of Appeal Discusses Causation in Negligence Claims

The law of ‘causation’ was discussed extensively in reasons for judgment released today by the BC Court of Appeal.
Today’s case (Chambers v. Goertz)  involved the appeal of the trial judge’s findings of liability.  At trial the court found a taxi driver partially responsible for a crash for leaving his high-beams on which made it difficult for another motorist to see various Plaintiffs crossing a street.  The other motorist then struck the Plaintiffs causing injuries. (Click here to read my post on the trial judgment).
The taxi driver appealed this finding arguing that “the trial judge erred in law in finding that his conduct was a ‘contributing cause’ of the plaintiffs injuries“.
This appeal was dismissed and the trial judgment was upheld.  In dismissing the Appeal the BC Court of Appeal discussed the law of Causation in personal injury actions, specifically what the law requires for there to be a compensable relationship between the wrong act and injury to the victim.
The Court summarized this area of law as follows:

[18] The Supreme Court’s other use of “material contribution” is seen in Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, [1997] 1 W.W.R. 97, where Major J., writing for the Court, held in the following passage that causation will be established if it is shown that the defendant’s negligence “materially contributed” to the occurrence of the plaintiff’s injury:

The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury:  Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.);McGhee v. National Coal Board, supra. A contributing factor is material if it falls outside the de minimis range: Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske(1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff’d [1989] 2 S.C.R. 979.

]      In Snell v. Farrell, supra, this Court recently confirmed that the plaintiff must prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury. …

[17] It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury.  There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring.  To borrow an example from Professor Fleming (The Law of Torts (8th ed. 1992) at p. 193), a “fire ignited in a wastepaper basket is … caused not only by the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the cleaner to empty the basket and so forth”.  As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury.  There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.

This proposition has long been established in the jurisprudence.  Lord Reid stated in McGhee v. National Coal Board, supra, at p. 1010:

It has always been the law that a pursuer succeeds if he can shew that fault of the defender caused or materially contributed to his injury.  There may have been two separate causes but it is enough if one of the causes arose from fault of the defender.  The pursuer does not have to prove that this cause would of itself have been enough to cause him injury.

[Emphasis in original]

[19] As this passage illustrates, every injury has multiple necessary or “but for” factual causes.  The function of tort law is to identify those for which the defendant should be held responsible.  Thus, in Snell v. Farrell, [1990] 2 S.C.R. 311, 72 D.L.R. (4th), 4 C.C.L.T. (2d) 229, Sopinka J., writing for the Court, said, at 326,

Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.

[20] For purposes of determining whether a breach of duty was a “but for” cause of particular harm, there are no degrees of causation – specific conduct was either necessary for the harm to occur or it was not.  However, not every cause necessary for the harm to occur can reasonably be considered a candidate for liability.  For example, in this case, the accident would not have occurred but for the taxi company dispatcher’s sending Mr. Ahmad to respond to Ms. McDonald’s call, but no one would suggest that the dispatcher should be found liable for what happened.  Therefore the law takes cognizance only of those causes that play a significant role in bringing about the outcome.

[21] This concept has been expressed in different ways.  As I have noted, in Athey v. Leonati, the Court said at para. 15 that “causation is established where the defendant’s negligence ‘materially contributed’ to the occurrence of the injury”, and that a “material contribution” is one that “falls outside the de minimis range”.  To similar effect the Court said, inSnell v. Farrell, at 327, that proof of causation requires “a substantial connection between the injury and the defendant’s conduct”.  “Substantial connection” was also used to describe this idea in R. v. Goldhart, [1996] 2 S.C.R. 463 at 480, 136 D.L.R. (4th) 502, 107 C.C.C. (3d) 481, where the Court said,

The happening of an event can be traced to a whole range of causes along a spectrum of diminishing connections to the event.  The common law of torts has grappled with the problem of causation.  In order to inject some degree of restraint on the potential reach of causation, the concepts of proximate cause and remoteness were developed.  These concepts place limits on the extent of liability in order to implement the sound policy of the law that there exist a substantial connection between the tortious conduct and the injury for which compensation is claimed. …

[22] Clearly, the “material contribution” test discussed in Resurfice Corp. v. Hanke has nothing to do with the circumstances of this case.  Here, it was not impossible for the plaintiffs to prove causation.  Rather, whether the breaches of duty of the parties played legally significant causal roles in the outcome was in each case a question of fact to be answered by rational inference drawn in the usual way from the evidence.  Causation is essentially “a practical question of fact which can best be answered by ordinary common sense”:  Snell v. Farrell at 328, citing Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475 at 490 (per Lord Salmon).

[23] It was this conventional “but for” test of causation that the trial judge applied when she held that Mr. Ahmad’s breach of duty was a “contributing cause” of the accident and that he was therefore liable.  Her use of the phrase “contributing cause” signifies that she found as a fact that Mr. Ahmad’s conduct played an important enough role in the combination of events necessary for this occurrence to fix him with liability for the consequences.  This was the correct approach in the circumstances and I would reject the submission that she erred in adopting it.