Date: Tue, 24 Feb 2004 08:29:58 -0500

From: Jason Neyers

Subject: Loss of a Chance et al

I post this on behalf of Ken Cooper-Stephenson:

Ken Cooper-Stephenson wrote:

I am hoping that, on second try, this contribution to recent ODG discussions will reach everyone:

ODG Colleagues,

I am also of the view that Cottrelle is only very tangentially relevant to Fairchild.

(1) Loss of a Chance

Although I have not read Gregg v. Scott (and I am in an airport lounge at the moment with time to kill), I view Cottrelle as simply (or not so simply) another "loss-of-a-chance" case, to be compared with Hotson and Laferriere. (These, I noticed a week or two ago, were given some detailed treatment by Madame Justice Jackson in a Sask. C.A. case a short while ago - now reported in the C.C.L.T.s - a lawyer's negligence case to which loss of a chance doctrine has always been applied.

Although Sharpe J.A. was right to find that at the moment in Canada the SCC requires a more-likely-than-not finding of but-for causation, I think this may well give away to "simple probability" or "probabilistic cause" reasoning in some cases in the future, so that awards can reflect the percentage chance that the negligence would have avoided the loss. (Laperriere is argued on the basis of Civil Law without much reference to the wealth of Common Law cases.) The problem is, however, as I discussed in some considerable detail in Personal Injury Damages in Canada 2 ed. (1996), that once that approach to factual causation is opened up, it is very difficult theoretically and philosophically to check it. All factual causation cases can philosophically be characterized as "loss of a chance" or "creation of a percentage risk" cases, and thus all cases are potentially open to an award reflecting the percentage chance that the defendant caused the plaintiff's loss.

The philosophical problem is, of course, compounded because once a loss has been proved damages are assessed on a "simple probability" basis reflecting the chance that the loss would have been suffered or will be suffered. That is very clear in both England and Canada after Davies v. Taylor and Mallet v. McMonagle, as recognized in Canada in Janiak v. Ippolito and by Major J. in Athey.

All of this, it should be noted, still uses the "but-for" test, but with a different standard of proof -- "simple probability" rather than "balance of probabilities".

This solution to factual causation should be clearly distinguished from the "reverse onus" solution, or the "inference of causation" solution, which use "but-for" albeit with a reverse onus or inference, giving the plaintiff all the damages or none of them: a very different result.

(2) Fairchild

What a totally disappointing case and so poorly reasoned on entirely distorted issue statements and factual premises (see e.g. Lord Bingham, who states the issue as if there were only two defendants -- like a Cook v. Lewis situation.) Be that as it may -- and I intend to write on this someday -- I think the problem in Fairchild ought to have been analyzed on the basis that the damages would reflect the percentage possibility that the defendant was the factual cause of the plaintiff's loss -- which might combine "multiple necessary (but for) cause" reasoning with "single-but-unidentifiable-which-one (but-for)" type causal reasoning.

On this, I would speculate:

(a) Neither side in Fairchild was disposed to argue "simple probability" reasoning (which I view as the basis of "market share" liability such as in Sindell (slightly modified), which would not involve contribution between tortfeasors. The plaintiffs wanted full damages. The defendants were scared of Sindell-type reasoning and thought they could win on but for reasoning on a balance of probabilities, which, in my view they should have done (unpopular though this would have been, but for the wrong reasons) (I noticed that the SCC in 1990 allowed a claim in the tort of conspiracy in asbestos litigation to.) The problem behind Fairchild (and worldwide?) was, likely, that there was a "conspiracy of silence"?

(b) The doctors were simply not pressed with the correct questions or required to answer them. Reading behind the judgments, it seems to me that likely the doctors were not pressed with the questions phrased as Sopinka J. would have had them phrased as he explained in Snell v. Farrell. "Doctor, in your view, is it more likely than not that the plaintiff was contaminated by this defendant for whom the plaintiff worked for 7 years (or whatever it was, I am still in the airport), rather than this other defendant or employer for whom the plaintiff only worked 6 months -- given the intensity of the exposure in each case? The response "I don't know" would, in my view, in most instances, be an entirely unsatisfactory one and a complete avoidance of responsibility. (Even "Blue Bus" statistical likelihood would seem to me to be called for here.)

But I doubtless need to go back to the judgments on this -- I was not there.

(3) Material Contribution

What a theoretical disaster, and not confined to Canada: the High Court of Australia, if I recall rightly, used this test in the case of the University professor who was forced to retire early (March was the name of the case?), and it was all started with untidy wording in an old English case. Anyway:

I can well appreciate that the judges may like to go to material contribution as a refuge when they get into causation difficulties ... but briefly:

(a) I think Sharpe J.A. was right to analyze the case on "but for" reasoning, but it is a very disappointing treatment of "loss of a chance", given the potential arguments.

(b) I think Major J. was right to go to but for reasoning in Walker as an alternative ground and perhaps as part of the ratio (see his summary?) unless he was postulating that the donor would have negligently still donated blood -- in which case he was right to use such reasoning, since there would then be a multiple sufficient cause situation where the but for test does not work philosophically (i.e. as it does not in Baker v. Willoughby)

(c) (Aside from the use of the term for de minimis cases) in my view the "material contribution" test should only be used in cases where there is multiple sufficient cause, and each of the SCC cases where that test is used -- at least in the two most prominent ones Hollis and Walker -- does in fact involve the problem of multiple sufficient cause.

In Hollis La Forest J. almost sees this and explains it, because he sees rightly that there was an "alternative sufficient negligent cause" lying in the background if the defendants had communicated the right information to Dr. Birch. But that sufficient cause was never brought into play because Dr. Birch was not given the information (or may not have been given it). Here is a sufficient negligent cause (the drug company) and an alternative sufficient cause in the background, which in these cases makes the but for test philosophically unsound, because that test cancels out both causes, blaming the cause on each other and leaving no cause at all.

In Walker, as explained, the alternative sufficient cause is the donor's negligence. Again, since the right information was not given to the donor, he could not be negligent with respect to his response to it, but the fact that that negligence was sufficient by itself would, on but-for reasoning, negate causation from the Red Cross. However, Major J., by using the correct standard for the breach question, held that but for had been proved on a balance of probabilities, and that the donor would have responded to prevent the harm.

All for now. What a pleasant way to spend my time in Toronto Airport on the way back to Saskatoon from my brief vacation in Barbados during our mid-semester break!

I think my intellectual batteries have been charged, and I am hoping that the charge will hold for a while.

Regards to all.

Ken Cooper-Stephenson

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