Date: Tue, 24 Feb 2004 19:13:25 –0500

From: Jason Neyers

Subject: Loss of a Chance et al

Dear Ken,

I understand your argument but I do not see how proving that something was a possible alternative cause is enough to justify the decisions in Walker and Hollis. In other words, how can proving that you did not cause something be enough to ground a tort that needs proof of actual causation? On the analysis you just proposed both Walker and Hollis are wrongly decided not correctly decided (but the original point I thought you were making was that they could be saved using a NESS-like logic).

The analysis proposed may prove that the defendant in those cases was objectively naughty but this does not and should not make them civilly liable.

Cheers,

Ken Cooper-Stephenson wrote:

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. For fuller explanation, see my lengthy treatment in Personal Injury Damages in Canada.

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

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