Date: Tue, 24 Feb 2004 12:33:58 -0500

From: Jason Neyers

Subject: NESS and Alternative Sufficient Causes

I post this on behalf of Ken Cooper-Stephenson:

Jason, You are right, but it remains a situation of multiple sufficient cause, in the sense that the other sufficient cause was an alternative cause, lying in the background. The background was "preempted" in Wright's sense, and is not a cause, but because that cause, if it would have been wrongful, was there waiting to happen, the "but for" test is philosophically not applicable to the cause which was operative. So it is a situation not of sufficient additional causes, but of sufficient alternative cause, where the alternative cause is not a cause but prevents the application of the but for test.

Richard and I agree on this. (My own take on all of this is explained in rather lengthy form in Personal Injury Damages in Canada 2 ed (1996). My terminology and analysis builds on the 1981 edition and, I think, pre-dates the "NESS" terminology, but agrees with it.)

Ken

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Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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