Clements’ Conundrums (Coda)

Our task [as lawyers] must be to understand factual causation as it actually is. We should not be looking for a heuristic model of factual causation that generates liability in accordance with our instinctive feelings, unconcerned whether the model is accurate or not. Simply, lawyers cannot say that C was the cause of E when it was not, or that C was not the cause of E when it was. To do so is, literally, to part company with reality. It is sometimes said that a philosopher is someone from whom a tragedy is a good theory destroyed by the facts. If so, then a lawyer is someone for whom a tragedy is a favoured legal outcome prevented by the truth.

Allan Beever, Rediscovering the Law of Negligence (Oxford, Hart Publishing, 2009) at 416 (words in brackets added).

The Supreme Court wrote in Clements v. Clements, 2012 SCC 32:

[12] In some cases, an injury — the loss for which the plaintiff claims compensation — may flow from a number of different negligent acts committed by different actors, each of which is a necessary or “but for” cause of the injury. In such cases, the defendants are said to be jointly and severally liable. The judge or jury then apportions liability according to the degree of fault of each defendant pursuant to contributory negligence legislation.

[13] To recap, the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that the defendant caused the plaintiff’s injury on the “but for” test. This is a factual determination. Exceptionally, however, courts have accepted that a plaintiff may be able to recover on the basis of “material contribution to risk of injury”, without showing factual “but for” causation. As will be discussed in more detail below, this can occur in cases where it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it. In these cases, the goals of tort law and the underlying theory of corrective justice require that the defendant not be permitted to escape liability by pointing the finger at another wrongdoer. Courts have therefore held the defendant liable on the basis that he materially contributed to the risk of the injury.

[34] In Resurfice, this Court summarized the cases as holding that a material contribution approach may be appropriate where it is “impossible” for the plaintiff to prove causation on the “but for” test and where it is clear that the defendant breached its duty of care (acted negligently) in a way that exposed the plaintiff to an unreasonable risk of injury. As a summary of the jurisprudence, this is accurate. However, as a test it is incomplete. A clear picture of when “but for” causation can be replaced by material contribution to risk requires further exploration of what is meant by “impossible to prove” (Resurfice, at para. 28) and what substratum of negligence must be shown. I will discuss each of these related concepts in turn.

….

[39] What then are the cases referring to when they say that it must be “impossible” to prove “but for” causation as a precondition to a material contribution to risk approach? The answer emerges from the facts of the cases that have adopted such an approach. Typically, there are a number of tortfeasors. All are at fault, and one or more has in fact caused the plaintiff’s injury. The plaintiff would not have been injured “but for” their negligence, viewed globally. However, because each can point the finger at the other, it is impossible for the plaintiff to show on a balance of probabilities that any one of them in fact caused her injury. This is the impossibility of which Cook and the multiple employer mesothelioma cases speak.

….

[46] The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada:

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.

 (2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, 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.

 

I set out a number of different scenarios, starting a bit later in this note. Those of you so inclined can decide for yourself which test for causation applies.

You might consider, too, to what extent there’s a damages assessment issue involved. In negligence, causation of injury does not entail causation of compensable loss (damages). Recall this from Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 32, 1996 CanLII 183:

[32] … The essential purpose and most basic principle of tort law is that the plaintiff must be placed in the position he or she would have been in absent the defendant’s negligence (the “original position”). However, the plaintiff is not to be placed in a position better than his or her original one. It is therefore necessary not only to determine the plaintiff’s position after the tort but also to assess what the “original position” would have been. It is the difference between these positions, the “original position” and the “injured position”, which is the plaintiff’s loss. …

(Emphasis in original.) Your conclusion may affect your view on whether the Supreme Court accomplished its purpose (whatever you believe that purpose to have been).

As you consider the scenarios, bear in mind that, as set out, the Clements’ bright-line test for when the material contribution doctrine applies requires that the negligence of each of the multiple tortfeasors amount to a but-for cause if the negligence of all of the other tortfeasors had not occurred. That is the only way in which one can have the situation in which a plaintiff

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.

(Emphasis added.) Some of you will recognize this as the factual causation problem sometimes described as the “indeterminate wrongdoer” or “indeterminate defendant” problem.

Some of you might also ask: but what if it’s not a case where “The plaintiff would not have been injured ‘but for’ [the negligence of the group] viewed globally”? What then?

Wasn’t that part of what it seemed that Resurfice‘s explanation of material contribution was intended to cover - for those cases where it would be contrary to basic notions of fairness and justice to dismiss the action merely because the plaintiff couldn’t establish factual causation on the balance of probability (assuming that defendant had not disproved factual causation on the balance)?

Are we back to a version of the pre-Resurfice situation where (so it was said), to succeed at all, a plaintiff had to get a finding that a defendant’s negligence-related causation had been established on the balance of probability, regardless of the test that was used? Bear in mind that between Athey and Resurfice it was assumed that there were two methods to establish factual causation on the balance of probability. But now, if only in exceptional cases, it seems sufficient if the finger points at a group of which the negligent defendant is in some sense a “part”, even if it doesn’t point at a particular defendant? At least so long as there’s probably nothing else that could be a but-for cause if one removed the conduct of all of the group. So, the difference is that where once you had to be able to point the finger specifically at one or more persons, individually, now it’s enough, in some cases, to point the finger at a group collectively.

In any event, consider these variations.

1. P is involved in successive motor vehicle accidents which are the fault of the other drivers. The evidence is that each accident, alone, is capable of being a but-for cause of the injury and loss the plaintiff will sustain as a result of each accident. P’s significant injury is a recognized psychiatric condition. That condition renders P unable to return to work as a very successful plaintiffs’ personal injury lawyer in El Dorado.

2. P is also at fault in or both of the successive accidents.

3. Two or large trucks each travelling very quickly collide and then, in a factually indistinguishable tandem, strike P’s vehicle. The evidence is that an impact between each of the trucks, alone, and P’s vehicle would have been been a but-for cause of P’s injuries.

4. The same two trucks struck a parked gasoline tanker almost in unison. The tanker explodes after the second impact. The evidence is that either impact would have been a but-for cause of the explosion. The fireball engulfs P’s vehicle (and P.)

5. The next multi-vehicle, winter snowstorm, white-out related pileup on the 401 in the Windsor-London corridor, or on the 400 in the Barrie-Toronto corridor.

6. Two hunters, one bullet strikes P. P is killed.

7. Two hunters, two bullets strike P. Each bullets enters P’s eyes. Both a fatal. The extent of damage to P’s cranium is such that there is no valid way of determining which bullet hit P first.

8. Scenarios 6 and 7, assuming contributory fault (negligence) on P’s part, too.

9. P decides to go for a walk between two oases in a desert. W1 poisons the water in P’s second canteen. W2, not knowing what W1 did, pokes a small hole in that canteen. By the time P realizes he the second canteen is empty, he is too far away from the oasis to get back. He dies of thirst. It’s a very hot desert. He would have died, in any event, had he drunk the poisoned water.

10. P has mesothelioma. A sufficient number of years ago, P inhaled asbestos at high school and university.

11. P has mesothelioma. A sufficient number of years ago, P inhaled asbestos at high school and university. Those exposures are held to have been due to negligence. He also inhaled as a result of his hobby of collecting an restoring old vehicles with original parts. He didn’t take any precautions.

12. The scenario in 11 but add another known, substantial enough, exposure which is not the result of anybody’s negligence or P’s own contributory fault.

13. Z was fatally poisoned by W. Before the poison kills Z, an aneurysm in Z’s brain (unrelated to the poisoning) ruptures. (It’s also not related to the other bullet from #6 which, although it missed P, hit Z in the heart. That injury would have killed him, too, eventually.) Z is is taken to the hospital where there is negligence in his treatment. The death certificate identifies the cause of death as the ruptured aneurysm.

13. P works at brick manufacturing facility. (Assume worker’s compensation legislation doesn’t apply). He’s exposed to brick-dust during work, of course. There’s no employer’s negligence here. But the employer’s washing / showering facilities are totally inadequate. P develops a skin condition known to be caused by exposure to brick dust. (Yes, I am asking you to consider what we are to understand what McGhee v. National Coal Board means, in Canada, after Clements).

14. Do the facts of Bowes v Edmonton (City) 2007 ABCA 347 fall within the material contribution doctrine as now defined in Clements? What if the dissenting judge was right that they did not fall within the Resurfice material contribution explanation?

Now, three questions, a bit of philosophy and a bit of “for what it’s worth” to end this.

Question 1: what does “fault” mean in para. 46(2) if it means more than contributory fault? For example, assume the independent witness Z the plaintiff needs to establish but-for factual causation is currently in Lower Slobovia raising Shmoos, unwilling to return to Canada to testify, unwilling to testify voluntarily there, and the Slobovian authorities aren’t prepared to co-operate to compel Z to testify.

What if the problem preventing the plaintiff from adducing the required evidence (whatever it is) isn’t the “fault” of the defendant, either?

Another way to ask the question is: what did the Court mean by “neutral factors” in para. 21 of Clements: “To allow recovery where the injury was the result of neutral factors would neither further the goals of compensation, fairness and deterrence, nor comport with the theory of corrective justice that underlies the law of negligence.”

In referring to the plaintiff’s “fault”, did the Supreme Court have in mind (even though it did not mention it) the concurring (minority) explanation for the result in Cook v. Lewis, [1951] S.C.R. 830 at 832, 1951 CanLII 26 in the reasons of Rand, J.?

What, then, the culpable actor has done by his initial negligent act is, first, to have set in motion a dangerous force which embraces the injured person within the scope of its probable mischief; and next, in conjunction with circumstances which he must be held to contemplate, to have made more difficult if not impossible the means of proving the possible damaging results of his own act or the similar results of the act of another. He has violated not only the victim’s substantive right to security, but he has also culpably impaired the latter’s remedial right of estab­lishing liability. By confusing his act with environmental conditions, he has, in effect, destroyed the victim’s power of proof.

Is the defendant’s negligence a “neutral factor” (in the sense “neutral factors” is used in Clements, para. 21?) Destroying the plaintiff’s power of proof is not the same as causing the injury.

Or, to point to real case, what if the missing witness in B.S.A. Investors Ltd. v. DSB, 2007 BCCA 94  was necessary for the plaintiff’s case and the fact the witness’ evidence was not available was not the “fault” of the plaintiff?

Second, does the plaintiff have to sue all of the members of the group whose negligence, viewed globally is a but-for cause? I’ve complained, before, elsewhere, that we seem to relive the mistakes made in U.S. jurisprudence without any recognition we’re walking down paths already trodden. Regardless of its rationale, the Clements restated version of material contribution is an echo what the U.S. calls alternative causation, albeit without the reverse onus. The US version of alternative causation is what we call the rule in Cook v. Lewis (those of you still in law school who took torts should still know why – the rest of us may remember why) albeit the U.S. version isn’t limited to two tortfeasors and (I think in most states) applies only where the plaintiff sues all tortfeasors whose negligence could have been the alternative cause.

Third: what is the extent of liability amongst the multiple tortfeasors where the basis of causation is the Clements-Resurfice material contribution to risk doctrine? Clements affirms that it is joint and several liability where the negligence of each of the tortfeasors is a necessary cause of the injury.

[12] In some cases, an injury — the loss for which the plaintiff claims compensation — may flow from a number of different negligent acts committed by different actors, each of which is a necessary or “but for” cause of the injury. In such cases, the defendants are said to be jointly and severally liable. The judge or jury then apportions liability according to the degree of fault of each defendant pursuant to contributory negligence legislation.

But that paragraph segues into para. 13 which introduces the material contribution to risk doctrine with no mention of the extent of liability issue. I’ll quote it again for convenience.

[13] To recap, the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that the defendant caused the plaintiff’s injury on the “but for” test. This is a factual determination. Exceptionally, however, courts have accepted that a plaintiff may be able to recover on the basis of “material contribution to risk of injury”, without showing factual “but for” causation. As will be discussed in more detail below, this can occur in cases where it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it. In these cases, the goals of tort law and the underlying theory ofcorrective justice require that the defendant not be permitted to escape liability by pointing the finger at another wrongdoer. Courts have therefore held the defendant liable on the basis that he materially contributed to the risk of the injury.

So, if it’s an exceptional doctrine, should we be considering whether to have an exceptional rule for the extent of liability? Say proportional liability? See, for example, Barker v. Corus UK Ltd., [2006] UKHL 20 at paras. 25-43, [2006] 2 A.C. 572, summarized at para. 43:

[43] In my opinion, the attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability creates. The defendant was a wrongdoer, it is true, and should not be allowed to escape liability altogether, but he should not be liable for more than the damage which he caused and, since this is a case in which science can deal only in probabilities, the law should accept that position and attribute liability according to probabilities. The justification for the joint and several liability rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused the same harm. But when liability is exceptionally imposed because you may have caused harm, the same considerations do not apply and fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm.

Part of a loaf is better than none, no? Part of a loaf is just as consistent with – not just as “not inconsistent with” – Clements‘ statements explaining the rationale for imposition of liability permitted by the doctrine (assuming all of the other requirements of the cause of action are satisfied):

at para. 7 -

[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. …

and para. 32 -

[32] As I will discuss further below, to allow the defendants to each escape liability by pointing the finger at one another would have been at odds with the fairness, deterrence, and corrective justice objectives of the law of negligence.

and at para. 41 -

[41] In these circumstances, permitting the plaintiff to succeed on a material contribution to risk basis meets the underlying goals of the law of negligence. Compensation for injury is achieved. Fairness is satisfied; the plaintiff has suffered a loss due to negligence, so it is fair that she turns to tort law for compensation. Further, each defendant failed to act with the care necessary to avoid potentially causing the plaintiff’s loss, and each may well have in fact caused the plaintiff’s loss. Deterrence is also furthered; potential tortfeasors will know that they cannot escape liability by pointing the finger at others. And these goals are furthered in a manner consistent with corrective justice; the deficit in the relationship between the plaintiff and the defendants viewed as a group that would exist if the plaintiff were denied recovery is corrected. The plaintiff has shown that she is in a correlative relationship of doer and sufferer of the same harm with the group of defendants as a whole, if not necessarily with each individual defendant.

(I appreciate that some of you who, paraphrasing John Lennon, have the required ”jewellery” to rattle will know that Clements uses corrective justice in a way that likely raises (at least) the eyebrows of some. And might not pass the exam. That’s at least because, for example, deterrence has nothing to do with corrective justice as explained by the source the Court cited for the concept. As an aside, that sort of problem is likely part of the reason common law judges once declined to cite living authors.)

And, consider this rationale for another exceptional doctrine – vicarious liability – that can result in liability.

[31] However, effective compensation must also be fair, in the sense that it must seem just to place liability for the wrong on the employer. Vicarious liability is arguably fair in this sense. The employer puts in the community an enterprise which carries with it certain risks. When those risks materialize and cause injury to a member of the public despite the employer’s reasonable efforts, it is fair that the person or organization that creates the enterprise and hence the risk should bear the loss. This accords with the notion that it is right and just that the person who creates a risk bear the loss when the risk ripens into harm. While the fairness of this proposition is capable of standing alone, it is buttressed by the fact that the employer is often in the best position to spread the losses through mechanisms like insurance and higher prices, thus minimizing the dislocative effect of the tort within society. “Vicarious liability has the broader function of transferring to the enterprise itself the risks created by the activity performed by its agents” (London Drugs, per La Forest J., at p. 339).

Bazley v. Curry, [1999] 2 S.C.R. 534 at para. 31, 1999 CanLII 692 (emphasis added).

Where the Clements-Resurfice is applied, we don’t actually know – not even probably know, that is – as against any of the tortfeasors, that the risk that that tortfeasor created ripened into harm, do we? If we did, then we wouldn’t need the doctrine.

Now the “for what it’s worth” - a bit more on the “common sense” and science mantra.

Given the different purposes of the law and science, it is true that science’s answers need not be law’s. Nonetheless, consider these comments about common sense, or science, or both, in addition to the quotation that began this note.

Science is a way to teach how something gets to be known, what is not known, to what extent things are known (for nothing is known absolutely), how to handle doubt and uncertainty, what the rules of evidence are, how to think about things so that judgments can be made, how to distinguish truth from fraud, and from show.

Richard Feynman, quoted in Lauwrence M. Krauss, Quantum Man: Richard Feynman’s Life in Science (New York, Norton & Co., 2011) at 1

Common sense is a very poor guide to scientific insight for it represents cultural prejudice more often than it reflects the native honesty of a small boy before the naked emperor.” Stephen Jay Gould , “The Problem of Perfection, or How Can a Clam Mount a Fish on Its Rear End” in Stephen Jay Gould, Ever Since Darwin: Reflections in Natual History (New York, Norton & Co., 1979) 102 at 109 (paperback). Gould, at 110, quotes from Darwin, The Origin of Species (6th ed., c. 6)

When it was first said that the sun stood still and the world turned round, the common sense of mankind declared the doctrine false; but the old saying of Vox populi, vox Dei, as every philosopher knows, cannot be trusted in science.

But, then, the science of law is not the science of science, right? (After all, how many lawyers have been heard to say that they went into law because they weren’t good at science?) In the late 19th century, a leading common law tort scholar wrote: “The lawyer cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause.” Frederick Pollock, The Law of Torts (Philadelphia, The Blackstone Publishing Co., 1887) at 25.

Plus ça change, plus c’est la même chose.

All Sgt. Friday might have wanted is the facts, but law gets to define what the relevant facts are, too.

That’s as much as I plan to say on the subject, here, for the foreseeable future, bearing in mind the now valid – at least in the U.K. – judicial admonition that “‘[n]ever say never’ is a wise judicial precept”. (National Westminster Bank plc v. Spectrum Plus Limited, [2005] UKHL 41 at para.41)

DC

 

 

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