Date: Wed, 14 Feb 2007 16:12:13 +1100

From: Neil Foster

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

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?

Regards
Neil F

Neil Foster
Lecturer
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> DAVID CHEIFETZ 14/02/07 3:55 >>> wrote (inter alia)

****

You seem to have been led astray as to what the trial judge did or didn't do by the SCC's descriptions. Unfortunately, there's a real chance that those reasons are going to lead many lawyers and judges astray.

I do not read the trial judge's conclusions the way you stated them in the first sentence of item 2. He found that there was nothing wrong with the design. He did not find that since Hanke was not confused, existing design flaws had nothing to do with the accident.

I've read all 3 levels in Hanke (but not the trial transcripts). I don't think the trial judge was confused at all based on my reading of his reasons. One might want to take issue with whether he adequate reviewed the evidence as to whether the design was adequate - the standard of care issue - but that, as you indicate, has nothing to do with causation. It seems that the SCC was satisfied, from the review of all of the material it was given - which I assume contained relevant excerpts from the transcripts - showed the trial judge had reviewed the evidence, adequately. That's what they said he did. They said that there was evidence to support his conclusions of fact and mixed fact and law - this included the decision that the design was proper. That, then, was the end that issue. The Alta CA should never have interfered with that conclusion.

****

But, on account of the ... vagaries ... of Canadian material contribution law, the Alta CA judges are not the only Canadian appellate court judges (and trial court judges) to have recently suggested that the mere fact that there's more than one potential cause is sufficient to make but-for unworkable and trigger the application of material contribution: see, for example Aristorenas v. Comcare Health Services, 2006 CanLII 33850 at para 53.

[53] Thus, it would seem that the 'material contribution' test is applied to cases that involve multiple inputs that all have harmed the plaintiff. The test is invoked because of logical or structural difficulties in establishing 'but for' causation, not because of practical difficulties in establishing that the negligent act was a part of the causal chain.

Well, no. Not even in Canada.

It's my view that we can't come to any reliable conclusions about the current content or limits of the Canadian material contribution test from what the SCC said in Hanke. I wrote, about 20 months ago, that the "content of the [Canadian] material contribution doctrine has all of the substance of gossamer or the lace tatted by Carroll's Beaver; and a thimble is all we need to contain it." Things haven't improved in the months since. Depending on how one looks at the Hanke paragraphs on mc, the SCC has just made that thimble even smaller (if that were possible), or infinitely big. But, heck: we're lawyers. We have 'negative capability'.

Things are bad enough that the judges of the appellate court of the province in which I practise don't seem to be able to agree amongst themselves on what the principles are and content of material contribution is. If you're inclined to waste a few moments, compare what the Ont CA said in Aristorenas to the prior Ont CA case in Cottrelle, from which Aristorenas quoted.

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