February 15, 2007
When reading cases, I often make snap judgments about what should be the right result before going through the relevant legal analysis (I suspect there are others who do the same). In tort actions, such gut instincts frequently nudge me towards principles of distributive rather than corrective justice. I would rather see a sympathetic and seriously injured plaintiff compensated than give the benefit of the doubt to a negligent defendant simply because circumstances do not allow strict proof of causation or because the chain of events is too remote.
However, the starting point is always the negligence of the defendant. No matter how serious the injury, it is impossible to justify ordering financial compensation to be paid by a party that has acted in a reasonable manner. This is even more so when the plaintiff was the author of his own misfortune. Hence, my gut reaction to the McDonald's coffee case from the U.S. was one of nausea. In that case, the plaintiff suffered third-degree burns when she spilled coffee on herself at a drive-through and was initially awarded $2.9 million by the jury because the defendant had served coffee that was "too hot" (the decision was appealed and ultimately settled for less than $600,000).
Last week, the SCC released its judgment in Resurfice Corp v Hanke, 2007 SCC 7 [Resurfice]. The torts claim arose out of a freak accident that occurred when the plaintiff mistakenly placed hot water into the gasoline tank of an ice resurfacing machine, causing an explosion when vaporized gasoline ignited from an overhead heater. The plaintiff's claim was that the manufacturer, Resurfice Corp., was negligent in designing the machine so that the gasoline tank was placed too close to the water tank.
The Alberta Court of Appeal had ordered that the case be sent back for another trial on the basis that the trial judge had erred in his analysis of forseeability and causation (see 2005 ABCA 383). In a short, 30-paragraph decision, the SCC unanimously overturned the Alberta Court of Appeal order and restored the trial judgment dismissing the action.
Foreseeability
The SCC upheld the trial judge's finding that it was not reasonably foreseeable that a machine operator would confuse the gasoline and water tanks, partially relying on the fact that the plaintiff himself admitted that he knew the difference between the two. Further, the SCC agreed with the trial judge that it was not reasonably foreseeable that this confusion would lead to a fire or explosion.
Further, the SCC rejected the attempt by the Court of Appeal to introduce policy considerations into the negligence analysis: "[f]oreseeability depends on what a reasonable person would anticipate, not on the seriousness of the plaintiff's injuries (as in this case) or the depth of the defendant's pockets." Normally, such distributive justice considerations may influence decisions but remain cloaked within the rhetoric of legal analysis used to justify the result. The Court of Appeal inexplicably brought these factors out into the open as reasons for overturning the trial judge's decision. As the SCC notes, it is difficult to see how such factors would be relevant in determining negligence.
Causation
A more interesting aspect of the case is the issue of causation. The Court of Appeal had held that the trial judge had erred by using the "but for" test and should instead have used the "material contribution" test. The "but for" test is the standard test used in proving causation in a torts claim and asks: but for the defendant's negligence, would the plaintiff have suffered the injuries claimed? However, caselaw has developed to account for situations when the "but for" test is unworkable, particularly where multiple independent causes may bring about a single harm or where causation depends on speculation of independent third party actors.
For example, in Walker Estate v York Finch General Hospital, [2001] 1 SCR 647, a patient received HIV infected blood when the hospital failed to properly inform a potential donor of the risks of HIV transmission. It was impossible to prove, on a "but for" basis, that the donor would not have donated blood if the hospital had provided this warning. However, the court relaxed the standard so that the hospital's actions, which materially contributed to the chain of events leading to the plaintiff's infection, were sufficient to attract liability.
In Resurfice, the Court of Appeal thought this "material contribution" test should be applied whenever there was more than one potential cause of an injury. However, the SCC noted that such an approach would do away with the "but for" test because "there is more than one potential cause in virtually all litigated cases of negligence."
Instead, the SCC upheld the primacy of the "but for" test as the general rule for proving causation except in special circumstances:
First, it must be impossible for the plaintiff to prove that the defendant's negligence caused the plaintiff's injury using the "but for" test. The impossibility must be due to factors that are outside of the plaintiff's control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff's injury must fall within the ambit of the risk created by the defendant's breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the "but for" test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a "but for" approach.
It is clear that the "material contribution" exception, under the test clarified by the SCC here, did not apply to the facts of this case. There were no intervening external factors or scientific difficulties that created barriers in proving causation on a "but for" basis. It was incumbent upon the plaintiff to testify and call evidence to convince the court, on a balance of probability, that the plaintiff would not have mistaken gasoline tank for the water tank but for the negligent design of the machine. The only sense in which the "but for" test was unworkable in this case was that the plaintiff could not prove that he had actually been confused by the tanks because he had admitted otherwise.
Since the introduction of the "material contribution" test, there has been some uncertainty as to when it is available or what it exactly means. In Resurfice, the SCC takes an important step in providing guidance on the use of this test, limiting it to exceptional situations. Personally, I feel this decision strikes a proper balance between corrective and distributive justice concerns. At least that is my gut reaction.
7 Comments
I respectfully disagree with Yu-Sung's conclusion that the Court in Resurfice v. Hanke has provided "guidance on the use of [the material contribution] test. In fact, I think the Court has muddied the waters a little more than they were after Athey and Walker.
Consider this statement from paragraph 27 of Hanke:
"One situation requiring an exception to the 'but for' test is the situation where it is impossible to say which of two tortious sources caused the injury, as where two shots are carelessly fired at the vitim, but it is impossible to say which shot injured him: Cook v. Lewis. ... Provided that it is established that each of the defendants carelessly or negligently created an unreasonable risk of that type of injury that the plaintiff in fact suffered (i.e. carelessly or negligently fired a shot that could have caused the injury), a material contribution test may be appropriately applied."
Putting to one side the question of whether there is a distinction between "carelessness" and "negligence", the Court is clearly equating "material contribution" to injury, with "material contribution" to risk, and those are two quite different things. Under material contribution, liability is imposed for something the defendant did to the plaintiff, whereas if material increase of risk is to be the threshold, then all a plaintiff needs to show is a breach of the standard of care (and a breach of a duty of care) and injury in the nature of the threat posed by the risk. The House of Lords approved of this in Fairchild v. Glenhaven Funeral Services Ltd., but until Hanke, no-one anticipated that material contribution would be genericized to include material increase of risk. The only difference now seems to be that, whereas the House of Lords was careful in Fairchild to make it clear that it is not a generally available test, there is no obvious limit to the use of material increase of risk in Canadian law (unless one considers "impossibility" to be any more useful of a threshold than "impossibility" has proven to be).
The reference to Cook v. Lewis is also curious, as it has been generally understood (including by McLachlin CJ in Hollis v. Dow Corning, where she signed onto Sopinka's dissent), as a case of "tortious destruction of the means of proof [where the evidence lies] peculiarly in the control of the defendant." The link of such conduct with material contribution seems tenuous, because the "innocent" defendant in Cook v. Lewis did not contribute, materially or otherwise, to the injury. (The caveat to this is that if we understand the "injury" in the way that Rand J.'s concurring reasons did, then that is indeed a way to understand this as being a case of material contribution). Moreover, Cook v. Lewis sits uneasily with the new "material increase of risk" version of material contribution, because, while it is true that the "innocent" defendant's negligent shooting in increased the risk that the plaintiff would be shot, it did not increase the risk that he would be shot by the "culpable" defendant.
There are other problems I see with Hanke that I'll refrain from plodding through, such as the rather odd inclusion - really, a non sequitur - of a breach of duty as one of two requirements for resorting to the "material contribution" test. Why not mention that the plaintiff also has to have suffered damage of some sort, or that the defendant must have breached a standard of care?
But lest this detract from my principal point, let me just reiterate - in Hanke, we seem to see the evolution of "material contribution" into a generic and comprehensive alternative applicable to all cases where the plaintiff cannot demonstrate actual causation to the but-for standard. As such, the requirement of causation is now virtually redundant, and indeed appears to have been expressly absorbed into Hanke by that normative, policy-laden duty of care inquiry.
Russ
Thank you for your insightful and nuanced reading of the case. Taking another look at the decision, I can understand some of your concerns, particularly in the SCC's conflation of material contribution to risk with material contribution to injury, which I agree are qualitatively different issues.
However, my impression is that the SCC did not intend to undertake such an ambitious project that you ascribe to it within the few paragraphs in which it deals with the issue: namely, providing one general test to be applied for all situations where the "but for" standard should be put aside.
This is particularly so because it was abundantly clear that a material contribution test did not apply in this case and the plaintiff failed to even make out the defendant's negligence. My understanding is that these obiter comments were made for the limited purpose of refuting the Court of Appeal's liberal use of the material contribution test in any situation where there is more than one possible cause.
Thus, the principles outlined were not a strict test that, if met, necessarily allowed the use of a relaxed standard, but only provided general guidance to identify cases that were clearly inapropropriate for this exception.
Notice the very limited and general terms in which the SCC describes its own coverage of the issue (all italics are my own):
"Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases." (para. 20)
"Broadly speaking, the cases in which the “material contribution” test is properly applied involve two requirements." (para. 24)
"These two requirements are helpful in defining the situations in which an exception to the “but for” approach ought to be permitted. Without dealing exhaustively with the jurisprudence, a few examples may assist in demonstrating the twin principles just asserted." (para. 26)
The SCC does not say anything to displace any of the tests for specific circumstances found in Snell, Walker Estate, Cook, etc. I presume all of these distinct tests remain intact. The judgment simply provides a summary of general principles to aid in identifying which cases may fall into these exceptions and relies upon previous and future jurisprudence to sort out the specific tests and consequences of each individual circumstance.
This may lead to some expansion of the use of a relaxed standard in situations not covered by previous precedents, but I believe courts will be mindful of the exceptional nature of the material contribution test emphasized by the SCC and only apply it to cases where it "would offend basic notions of fairness and justice to deny liability by applying a 'but for' approach".
I agree with Russell's Brown's view.
Hanke is yet another "immaterial contribution" to the collection of Canadian cases dealing with material contribution. There was no meaningul content in the Canadian doctrine of material contribution before Hanke - assuming there was any, at all, other than a way to permit judges and juries to duck hard decisions that might produce the dismissal of an action.
There's not significantly more now, after Hanke. That I hold this view shouldn't come as a surprise to those who've read my spilled ink on the subject.
The "general principles" that the SCC proffers after paragraph 20 "merely" conflate the questions involved in the empirical issue of causal contribution and the normative issue of legal responsibility. The SCC's new test doesn't determine when factual causation exists. It determines when liability "may be imposed", for normative reasons. The SCC should have written "will be imposed."
The general principles do more than make causation virtually redundant where the Hanke "unreasonable risk" based version of material contribution applies. They make it completely redundant. Negligence is, by definition, the creation of unreasonable risk. Do we now have categories of negligence that trigger this new doctrine, only some of which create an unreasonable risk which is unreasonable enough to trigger the doctrine? Should we be unearthing our typologies of negligence? Does anybody remember where they buried their crypt containing the corpse of "negligence - gross negligence" distinction?
I appreciate the SCC's consideration in sparing us the pages of discussion of doctrine that one finds in, say, the House of Lords decisons in Barker v. Corus, Fairchild v. Glenhaven, Chester v. Afshar and Gregg v. Scott. Still, if the SCC was going to undertake to make any comments at all, it should have been done better; or not at all.
On the other hand, Hanke will provide plenty of work for lawyers in need of billable work. And more opportunity for academics and others to spill more ink. The SCC may, ulitmately, have the last word on the subject (remember what Humpty Dumpty said to Alice); however, it's seemingly forgotten Twain's reminder about not arguing with anyone who buys ink by the gallon.
David Cheifetz
In reply to
(1) Mr. Soh's: "The SCC does not say anything to displace any of the tests for specific circumstances found in Snell, Walker Estate, Cook etc. I presume all of these distinct tests remain intact. The judgment simply provides a summary of general principles to aid in identifying which cases may fall into these exceptions and relies upon previous and future jurisprudence to sort out the specific tests and consequences of each individual circumstance."
Well, no. There were only two tests in Canada for factual causation: but-for and (whatever it meant) material contribution. It is not correct to describe Snell, Walker Estate, Cook or any other case as establishing "tests for specific circumstances".
and
(2) Mr. Soh's: "This may lead to some expansion of the use of a relaxed standard in situations not covered by previous precedents, but I believe courts will be mindful of the exceptional nature of the material contribution test emphasized by the SCC and only apply it to cases where it “would offend basic notions of fairness and justice to deny liability by applying a ‘but for’ approach”."
Again, no. You're doing what the SCC did - confusing what ought to be with what is; conflating "legal cause" with "factual cause". Fairness and justice have nothing to do with proof of what actually happened - with proof of factual causation. There's a clear trail of bread-crumbs between what was said in Hanke and McLachlin CJ's speech at the John Fleming memorial symposium. The speech is “Negligence Law — Proving the Connection” in Mullany and Linden, eds., Torts Tomorrow, A Tribute to John Fleming (Sydney, LBC Information Services, 1998).
Hanke posits a brand new test, content to be determined at the expense of future litigants, within the guidelines of the two general principles outlined. It's not a "relaxed standard", unless you're equating relaxed with absence of proof of a scientifically-valid connection. It's supposed to be a standard for rare, exceptional cases. One problem is that the "unreasonable risk" requirement is satisfied by definition every time there is negligence. Another problem is that the "impossibility" standard as explained in Hanke is so broad as to encompass every situation. That's likely not what the Court meant. Nonetheless, it's what it wrote. "Everything" is rather an unsual example of rare or exceptional, no?
Hanke's facts, by the way, fit the impossibility standard as explained by the SCC.
It is hard to understand what the SCC is trying to do. If, as Yu-Sung suggests, the Court has restored "balance" (presumably by reining in the material contribution test), why does the court use language that - if taken seriously - seems to adopt the House of Lords' Fairchild test of material increase of risk? It is possible, I suppose, that the reference to risk was inadvertent. After all, it seems to run counter to the Court's own statement, not five years ago, in St-Jean v. Mercier: "it is insufficient to show that the defendant created a risk of harm and that the harm subsequently occurred within the ambit of the risk created."
The other possibility is that suggested by David - that this is a part of a distributive shift in the law of torts, and I tend to agree with him that McLachlin C.J. has conveniently laid out a trail of "bread crumbs", starting with her speech at the Fleming memorial symposium. It's difficult - if, again, we take what the Court actually said in Hanke seriously - to see this as anything but a substantial shift in negligence law, because it equates risk with harm for the purpose of causation. Just how significant this is becomes obvious when one considers that the introduction of risk is the basis upon which the Supreme Court of Canada, since Bazley v. Curry, has imposed vicarious liability. In Bazley, McLachlin J. (as she then was) wrote:
"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."
Obviously, vicarious liability, as a species of strict liability is not the same thing as Hanke's suggestion that we impose liability for risk. But it seems that the Court is expressing, first in vicarious liability and now in the general law of negligence’s causal element, a new and considerably relaxed risk-based understanding of harm.
All this is not to say that causation is dead. Rather, it is to say that the SCC has, perhaps inadvertently, said it is dead. Those are two different things and the real problem is perhaps not that the Court has transformed the law of causation, but that it has gotten itself into a pickle after Athey and Walker and is trying to make things better but isn't doing so carefully enough. In other words, while Yu-Sung's assessment may reflect the Court's intended expression, David and I are demonstrating the ramifications of the Court's actual expression.
One last point - I found Yu-Sung's reference to "balance" between "corrective and distributive justice concerns" a little puzzling, at least with respect to cause-in-fact which entails a purely factual, not normative, inquiry. Putting aside the question of whether distributive justice has any place in tort law (I'm thinking here of Binnie J.'s comments in Jacobi v. Griffiths), I would have thought that any such balancing is confined to the duty and remotness inquiries.
Russ and all:
I suggest that those who think Hanke has clarified anything about the meaning of "material contribution" - and that Hanke hasn't muddied the but-for waters, too - go over to the "new" CanLII and do a search on hanke /s resurfice. Go to the advance search page. Limit the search to cases from and after Jan 1/07 - you can use Feb 8/07 if you want.
Then read the cases. After you've decided what they mean and how they all fit together - and published your analyses for your LLM theses - we'll give you an easier task: squaring the circle. (Well, those of you who don't already have LLMs. The rest of you - paraphrasing what John Lennon once said - can rattle your metaphorical jewellery.)
Were I a torts professor, I might give a prize to the first student who can identify a the probable source of McLachlin CJ's material-contribution test general pronouncements. I might even be open to haggling about the prize even though I'm not. (I've a slew of off-prints from various articles dying to be given away - including Quantum Uncertainty which, somehow, made it into the black hole of spilt ink. You'll understand how devasted I was over that.) So, marshall your resources and take the risk of guessing. It might contribute to the general understanding.
Regards,
David Cheifetz
Two weeks have passed so I'll answer my own question - the probable source of the material contribution principles in Resurfice v Hanke is a decision very familiar to British Columbia lawyers; remarkably absent from the jurisprudence east of the Rockies. It is:
Haag v Marshall (1989) 39 B.C.L.R. (2d) 205, 61 D.L.R. (4th) 371, 1 C.C.L.T. (2d) 99, [1990] 1 W.W.R. 361, 1989 CanLII 236 at paras. 20-26, per Lambert, JA. The text that you're about to read should sound very familiar, especially para. 23. The emphasis is mine.
Haag is one year before Snell and six years before Athey. Haag is cited in Snell but you won't find it again in SCC jurisprudence. But even Haag doesn't go as far as to say that contribution to risk can, in some cases, be a sufficient basis for finding caustation even if one can't infer the connection because the evidence doesn't exist. Even if it had, Snell and later SCC cases (before Resurfice, none of which were referred to in Resurfice) say you can't.
Now we have Resurfice.
For those of you who plan and joining the private bar, this sort of problem is why you'll get to charge those hourly rates that you hope you'll be able to charge to support you in the lifestyle you'd like to become accustomed too. (Well, at least those of you who don't have other legal means of accomplishing that.)