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Date: Michael Jones From: Wed, 14 Feb 2007 16:04:00 +0000 Subject: Resurfice Corp. v. Hanke, 2007 SCC 7
Every time a defendant acts carelessly he creates an unreasonable risk of causing harm - by definition. Creating the risk cannot "prove" the causal link between the negligent conduct and the damage, otherwise no-one would ever have to prove causation, merely duty + breach of duty. Most of the cases where one wants to argue material contribution (whether to "damage" or to "risk") are simply about a burden of persuasion. Despite the plaintiff’s inability to prove a "but for" causal link between the harm and the defendant's carelessness, can we persuade the court that the defendant should be held responsible? Sometimes (often?) the burden of persuasion is not resolved by appealing to a particular test, or a particular formulation of a test. As often as not, it turns on (sometimes intuitive) notions of fairness or "justice". Assuming that in Cook v Lewis it really was impossible to establish which defendant shot the plaintiff, and both defendants were careless, we are left with two options: (1) claim fails because plaintiff simply cannot prove causation by any particular defendant (though we know for sure that one of them must have shot him); or (2) claim succeeds and both defendants are held responsible (though we know for sure that one of them did not shoot him - assuming there was no intermingling of the pellets, in which case both shot him). The choice between these options is a policy judgment - and most people opt for (2) because it seems less unfair than (1), when the defendants were both culpable and the plaintiff was innocent. For all the factual differences, and the convoluted analysis in Fairchild, the same policy judgment is being made in Fairchild. I just don't see how any this works in Resurfice Corp. v. Hanke where it was perfectly clear who the relevant defendant was and how the accident happened. Either the machine had a design defect or it didn't (nothing to do with causation). If it didn't, end of claim. If it did, the question is whether it was the design defect that caused (as a question of fact) the injury. Not necessarily the sole cause, since accidents can (and frequently do) have more than one cause (lack of attention by A; stupidity by B; recklessness by C, may all have been the necessary constituents of a particular concatenation of events). On the face of it (and in the abstract), if there was a design defect in placing two similar tanks containing different fluids together this was presumably because there was a risk that someone who was not paying sufficient attention to what he was doing would mix them up. [If the manufacturer was entitled to assume that everyone always paid attention the accident could never happen, and the machine is therefore not defective]. It should not then lie in the mouth of the manufacturer to say that carelessness by the employee was the sole cause of the accident - it clearly was not (PROVIDED you have decided that the machine was defective). If the employee deliberately put the hose in the wrong tank then that should be treated as a break in the chain of causation. As I understand the case and the comments on it that have appeared here so far, Hanke failed because the conclusion was that there was no design defect. Whether that is the correct conclusion, bearing in mind the need to protect from harm both the alert and the inattentive employee, both the naturally cautious and consistently stupid variety of employee, is another matter.
Michael --------------------------------------
Phone:
(0)151 794 2821
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