Date: Mon, 24 Jun 2002 15:53:14 -0400

From: Jason Neyers

Subject: Fairchild Discussion

Dear Colleagues,

Vaughan Black and I started a discussion about Fairchild by personal e-mail and in the spirit of getting debate going on the ODG we have decided to post the discussion:

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QUESTION: JN

Vaughan, what did you think of Fairchild?

RESPONSE: VB

Well for what it's worth . . . thought that Fairchild was a pretty good judgment. It's far preferable to the SCC cases on the material contribution test in that it (1) defines with some precision the areas in which that test should be available (though of course leaving things open to develop by analogy) and (2) makes a pretty fair stab at articulating what the test means.

There are also some useful statements disparaging those silly comments judges make to the effect that "causation is just a matter of comment sense" -- which always struck me as little more than a judicial refusal to explain what they were doing.

Now if they could just stop saying "causation is a matter of policy", which, since they hardly ever explain quite what they mean by "policy", is an equally silly statement, then we might start to get somewhere.

vb

Response: JN

Dear Vaughan,

Very interesting. I think that I have the exact opposite conclusion on most issues except for policy where I agree totally.

I prefer the SCC approach in that material contribution (or its more refined cousin NESS) is the test of factual causation that applies across the law. The "but for" test is the simplification of this that works in most cases but it is only a simplification, like Newtonian physics is for quantum mechanics. Hence there does not need to be a test for when to use material contribution as opposed to "but for" except a rule of thumb: If you get a negative with "but for", test it with NESS.

I also think that the judges are right to say that proof of causation (measured to NESS) in situations of causal uncertainty is a common-sense proposition: hence if you prove that the defendant's negligence materially contributed to the risk that X would occur and X did occur, it is open to the trier of fact to draw the inference that in this state of imperfect medical knowledge the defendant materially contributed to the injury of the plaintiff.

The problem with some of the Lords is that they seem to treat statements of doctors who are basing their premises on scientific measures of knowledge (i.e. near certainty) as if they controlled the law's separate approach to the matter (balance of probabilities).

For those reasons, I prefer Lord Hutton who basically says that what has hitherto been open to the judge (inference of fact) should now be done routinely (inference of law).

JN

RESPONSE: VB

Jason,

Insofar as statements such as "causation is just commonsense" serve to remind us that causation in law is different from causation in science (e.g. Farrell v. Snell) I have not problem with them. But an increasingly common deployment of so-called commonsense -- one that corresponds with what Thoreau had in mind when he wrote that common sense always takes the hasty and superficial view -- is one which seeks to juxtapose commonsense with philosophy. Thus the famous and oft-cited quotation from Alphacell -- "we're not doing philosophy here; we're doing law" (or something to that effect, I'm quoting from memory). And while I quite agree that judging differs from philosophizing, the main use to which the Alphacell quotation is put seems little more than a refusal to engage in rigorous thought. It's not unlike responding to the problem that a term like "reasonable doubt" is difficult to define by simply deciding that the only instruction to juries in murder cases should be something like "find the accused guilty if, according to your common sense, you think he deserves to spend the rest of his life in prison".

I think that where we differ is that I just don't see MC as a version of NESS, at least not the way MC is applied by the SCC in Walker. There it's not just a response to evidentiary uncertainty. Maybe we could clarify matters with a simple case: do you think Barnett v. Chelsea Hospital was rightly decided, or do you see it as a case where MC should have been applied to find liability? I think it was rightly decided, despite the fact that one could say that the defendant's carelessness materially increased the risk of the sort of harm that Barnett suffered. (Perhaps you think that's not so in that Barnett, by the time he got to the hospital, was already dead man walking, and so could not be subjected to any further risk of death.)

VB

RESPONSE: JN

Dear Vaughan,

Thanks for your response.

I do think that Barnett is right but on the lines that he was a dead man walking. There is no causal uncertainty in that case because it is one of pre-emptive causation (to use Wright's term (R. Wright, "Causation in Tort Law")).

I would save the "commonsense argument" for a true case of causal uncertainty where I agree with Lord Bridge that if it looks like causation and smells like causation, then in the absence of other evidence, and on the balance of probabilities, one may infer that there was causation (i.e. that the negligence of the defendant materially contributed to the injury suffered by the plaintiff). Do you have another case to test our differences?

JN

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