Date: Michael Jones

From: Wed, 14 Feb 2007 17:18:04 +0000

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

Fairchild was quite different from Cook v Lewis. In Fairchild the claimants had, without doubt, been the victims of a wrong committed by each defendant employer: here a breach of the contractual obligation to provide a safe system of work.

The assumption in Fairchild upon which everyone proceeded was that the mesothelioma was (very) probably caused by only one of the defendants. That was why it was different from a cumulative condition such as asbestosis. The claimants could not prove which one. Fairchild is on all fours with Cook v Lewis.

If you want to characterise the wrong committed by each defendant employer as a breach of contract, you still have to prove the causal connection to get beyond nominal damages for the breach (and there is still a concurrent tortious obligation to address). And in any event, even that analysis will not work for the claims brought against the negligent occupiers who were not employers.

Michael

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Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool
L69 3BX

Phone: (0)151 794 2821
Fax: (0)151 794 2829
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From: Robert Stevens
Sent: Wed 14/02/2007 16:52
To: Jason Neyers
Subject: Re: ODG: Resurfice Corp. v. Hanke, 2007 SCC 7

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.

Why is this a 'policy' judgment? What is meant by 'policy'? If it really was enough to show that the defendant has been guilty of culpable behaviour and the claimant has been the victim of culpable behaviour by someone (although not necessarily the defendant's behaviour) why bother with the causal rules as we find them? Why not just have the culpable pay a fine into a central fund, from which the victims of culpable conduct could obtain compensation?

Fairchild was quite different from Cook v Lewis. In Fairchild the claimants had, without doubt, been the victims of a wrong committed by each defendant employer: here a breach of the contractual obligation to provide a safe system of work. The question which then arose was the appropriate quantum of damages for the wrong and how that should be assessed. My view is that they reached the wrong quantification, but corrected this error in Barker v Corus.

In Cook v Lewis the plaintiff could not establish, on the balance of probabilities, against either defendant individually that they had committed a wrong against him. Why am I responsible for other people, with whom I have no relationship, firing into woods? If the claimant cannot show, on the balance of probabilities, that the defendant has committed a wrong, the defendant wins.

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).

I don't think anything in life has one sole necessary cause, unless you count God.

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