Date: Thu, 27 Jun 2002 09:12:51 -0300 (ADT)

From: Vaughan E Black

Subject: More stuff on causation

Jason (et al.), sorry for not responding before this to your point on Barnett. I have been at my cottage for a couple of days and there's no email there. I know that some regard it as strange to be out of email range, but I figure I'll put of attending to an internet hookup at the cottage until after I manage to get running water.

I think your explanation of Barnett (dead man walking) only works if we assume there was no substantial doubt about the fact that he was going to die anyway. If there was some doubt, then as far as I can see the pre-emptive-causation explanation just ducks the question. Perhaps the case I should have asked about was Blackstock v. Foster, which I see as basically the same case as Barnett, except that in Blackstock there is rather more attention paid to the uncertainties. Again I think the case was correctly decided, and for the right reasons. You?

More generally, while NESS provides a nice way to group b-f causation and Corey v. Havener causation under one single explanatory banner (and for that reason is appealing), I still don't see how it encompasses the m-c test -- at least as m-c is understood by the Supreme Court of Canada in Walker or (rather differently) in the passage from Fairchild helpfully quoted by James Watthey. In the latter, especially in para. 42, we get an explanation of m-c causation that I like -- namely, while it cannot be justified on its own terms, and may result in a finding of causation when in fact there was none, it is sometimes a fair test as a surrogate for b-f causation. That is, b-f causation is the only form that can be justified in principle, but sometimes its unworkable so we need a stand-in. This point is expressed elsewhere in Fairchild where the m-c test is described as amounting to rough justice.

As for policy, I agree that there are passages in Fairchild that make some effort to articulate what that might be in these circumstances, but they don't go very far and leave a lot of obvious counter-arguments unaddressed. I guess my underlying complaint about the reference to "policy" in Fairchild relates to what Canadian courts might make of it. In my understanding, the start of bringing "policy" into the discussion goes back to Alphacell. In that case it was at least plausible to claim that "policy" required a different approach to interpreting the word "cause" in a strict liability office than in applying the test for causation in tort. (Though why the H of L had to say that we need not turn to "metaphysics" has always baffled me, since to the best of my knowledge no one have ever claimed that we should -- though of course I am not familiar with the arguments that learned counsel may have made before their lordships.) Ever since then we have had Canadian courts saying that cause-in-fact is a matter a policy, but they have not told us what that policy might be. And Fairchild will doubtless encourage more of this.

The most that the Supreme Court of Canada has done to elucidate "policy" as it relates to cause-in-fact is to say that it varies according to the underlying duty. But in all the cases the underlying duty is simply the duty of care in negligence and I fail to see how that has a variable nature. The duty in negligence is just the duty to act reasonably in the circumstances, and that has only one nature. What the SCC really seems to mean, is that the "policy" (and thus the underlying causal test) varies according to the supposed character of the defendant. Thus doctors are "good guys" so they deserve a test which makes it hard to prove causation (Arndt), but manufacturers of breast implants are "bad guys" and its fair to adopt a test which makes it easy to prove causation.

It's all a little like tort law for the post-Sept. 11 world, where we already know the good guys and the bad guys. The prisoners at Guantanamo are "known" to be terrorists so they cannot deserve either the protections of the Geneva Convention or those given to criminal defendants. (Though perhaps some would call these protections "legal technicalities".) Similarly asbestos manufacturers and tobacco companies are bad guys so we needn't trouble ourselves with technicalities such as whether their carelessness actually made any difference to the plaintiff before the court.

vb

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