Date: Tue, 13 Feb 2007 22:49:53 -0700

From: Russell Brown

Subject: Resurfice Corp. v. Hanke, 2007 SCC 7

Dear Neil/David,

I agree with Neil. The SCC appears at paragraph 27 to be conflating material contribution with material increase of risk, turning material contribution into some all-embracing generic test where the but-for test is "unworkable".

Even if we're wrong and they remain distinct, neither test really explains the reference to Cook v. Lewis. Material contribution contemplates that the defendant actually does something to the plaintiff that may (or may not) have materially contributed to the injury. The only way we can understand the "innocent" defendant in Cook v. Lewis as having done so is by adopting Rand J.'s view (as explained by Allan Beever in "Two Steps out of the Mire") of the injury as being to the remedial right that was parasitic to the plaintiff's right to bodily integrity. It doesn't seem from the judgment, however, that McLachlin CJ had this in mind (Allan's piece having perhaps been judicially consigned to either or both of the "unnecessary" or "unhelpful" piles).

Rather, she seems to view the injury in Cook v. Lewis as the shooting of the plaintiff, to which the "innocent" defendant did not contribute.

The McGhee test doesn't help us resolve Cook v. Lewis either. The "innocent" defendant's shooting negligently in the plaintiff's direction does not materially increase the risk that someone else will shoot the plaintiff.

With best wishes,

Russ

>>> Neil Foster 02/13/07 10:12 PM >>>

Dear David;

I sort of guessed that you might be working late enough to read this post in the middle of the night in Canada!

I am perfectly willing to accept that I might have misinterpreted the trial judge's decision; as you say, I was taking the SCC's word for it. And you are right, once they said that there were no grounds for disturbing the trial judge's view that the design was not foreseeably flawed, then there was no real need to discuss causation.

I am still curious, though - do you agree with me that what the SCC are calling "material contribution" as an alternative causation test is not really what they mean? That is, they seem to invoking McGhee/Fairchild/Barker, which deal with "material increase in risk", rather than "material contribution" to the event. Or is this just a distinction used by the NSW courts?

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