It's either also an alternative example or and overdetermined example as described by the judge - it's not clear which she thinks they are. My reading of the evidence makes it overdetermined. She refers to two factors each of which could, in her view, have been sufficient alone. The trial judge seems to think that that her description of the situation of the situation satisfies Hanke's impossibility. There's no discussion of the two prongs - just the assertion (see paragraph 39) that the example satisfies the requirements of material contribution as explained in Hanke.
That conclusion is probably why the trial didn't see additional submissions from counsel - if in fact she didn't. However, her view that she didn't have to has to be based on a view that Hanke's material contribution test (which she said was the applicable test) was contribution to injury not contribution to risk.
The O'Henry moment, of course, is that the statements in para 205 meant that that it was possible to determine what happened on a probable cause basis, which means that Hanke's material contribution test wasn't applicable in the first place. So Marszalek isn't properly a Hanke material contribution decision (not even an Athey material contribution decision) but a straight-forward application of the indisputably unambiguous robust-and-pragmatic-(Canadian)-common-sense-inference approach, albeit in the doctors' favour.
Round and round we go.
----- Original Message ----
From: DAVID CHEIFETZ
Sent: Friday, March 23, 2007 5:58:51 PM
Subject: ODG: Hanke v Resurfice - Après moi, le déluge
Dear Colleagues:
For those of you still about to teach causation to your students, or for those who were wondering when Canada would see the first consequences of the restatement of the material contribution test in Hanke v Resurfice, 2007 SCC 7 (CanLII) - whatever that restatement means (those of you with theories, form 5 lines starting at the door), you can stop wondering. It's started.
A. First, including Hanke, is a list of all of the cases reported on CanLII mentioning the SCC's decision. There are 8. All but one is a BC case.
1 . Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII) — 2007-02-08
Canada — Supreme Court of Canada
gasoline tank — causation — ice-resurfacing machine — material contribution test — injury
2. Jackson v. Kelowna General Hospital, 2007 BCCA 129 (CanLII) — 2007-02-28
British Columbia — Court of Appeal
respiratory distress — causation — vital signs — monitoring — morphine
3. Hutchings v. Dow, 2007 BCCA 148 (CanLII) — 2007-03-12
British Columbia — Court of Appeal
tortfeasors — depression — damages — injury — assault
4. Block v. Canadian Pacific Hotels Corporation, 2007 ABQB 166 (CanLII) — 2007-03-13
Alberta — Court of Queen’s Bench
cart — golf — brake — path — tee
5. Nason v. Nunes et al, 2007 BCSC 266 (CanLII) — 2007-02-28
British Columbia — Supreme Court of British Columbia
bridge — road — standard of care — negligent — ice
6. Simpson v. Baechler et al., 2007 BCSC 347 (CanLII) — 2007-03-13
British Columbia — Supreme Court of British Columbia
pedestrian — utility pole — relocation — vehicle — crosswalk
7. Bohun v. Sennewald et al, 2007 BCSC 269 (CanLII) — 2007-02-28
British Columbia — Supreme Court of British Columbia
tumour — biopsy — breast cancer — lump — radical mastectomy
8. Greenall v. MacDougall and HMTQ, 2007 BCSC 339 (CanLII) — 2007-03-09
British Columbia — Supreme Court of British Columbia
sexual assaults — alcohol dependent — psychological — injury — drinking
9. Marszalek et al v. Bishop et al, 2007 BCSC 324 (CanLII) — 2007-03-08
British Columbia — Supreme Court of British Columbia
nurses — dizziness — alcohol withdrawal — neurological — neck pain
B The cases that need to be looked at are
Jackson
Bohun
Marszalek
Greenall
The others merely cite Hanke, or say the facts are but for, and one (Simpson) cites Hanke only on the foreseeability point.
Jackson v Kelowna -- contains an explanation of the impossibility prong. The plaintiff’s failure to obtain evidence that might have been available - the experts weren't asked the key question (see para 23) - doesn't make the case one where it is impossible for the plaintiff to establish causation on a but-for basis because of factors outside the plaintiffs control. (Essentially, this is the insufficiency of evidence point that Gilian Demeyere made a few years ago about evidentiary problems.) Jackson stands for the proposition that the Hanke material contribution test does not apply to the "ordinary medical negligence case, where the difficulty in proving causation is the absence of any evidence to support either a finding or an inference that the respondents' [the defendants'] negligence caused the appellant's [plaintiff's] injury [where] [t]he required evidence is missing because the hypothetical question was not asked of the experts." [para 23]
Bohun - see para 70-71, 93-94, especially 9394. The BCSC applied the Hanke material contribution test to what has to be viewed as the standard delay in treatment resulting in less than a probable chance of a better result. That claim would have been dismissed before Hanke. The BCSC said that it succeeded under the Hanke material contribution test.
[93] This discussion returns us to the submissions of the parties on causation. The defendant submits that Ms. Johnston has not proven that “but for” the alleged delay she would not have had a recurrence of her breast cancer. In their submission, the most likely cause of the recurrence and spread is the breast cancer itself. They submit that at best, Ms. Johnston has established a lost chance, and that such a loss is not sufficient to establish causation: Laferriere v. Lawson, 1991 CanLII 87 (S.C.C.), [1991] 1 S.C.R. 541.
[94] I do not agree. This is not a “lost chance” case, but a causation case. This case meets the special circumstances that require an application of the material contribution test. In the language of Resurfice, it is impossible for Ms. Johnston to prove that Dr. Segal’s negligence caused her injury using the “but for” test. The impossibility is due to factors that are outside of her control. While it is known that the cancer metastasized to other parts of Ms. Johnston’s body prior to the first surgery in January 2002, it is impossible, due to the current limits of scientific knowledge, to know whether that migration took place before or after June 2001.
There's no explanation of the application of the impossibility prong other than what appears in para 94.
Marszalek - look starting at para 170, especially at para. 178 -182, 199, and 205. The trial seems to have thought that the parameters of Hanke's material contribution are still, somehow, to some extent, defined by Athey. Look at para 179 for the summary way in which the trial judge found both prongs of the Hanke test were satisfied so that material contribution was the test.
The judge applied the material contribution test but then held that the evidence did not establish material contribution. The judge also said, though, that Laferriere v Lawson applied so causation had to be proven on a probability basis. This might mean the judge though that Hanke's material contribution test is a test for proof that the conduct actual caused the injury.
You'll see from para 179 that the exposure to unreasonable risk finding was nothing more than the negligence finding. There's an assertion of impossibility of proof on a but-for basis etc, on the Walker example (the decision causation issue that Vaughan Black canvassed at Western last year - his paper will be appear in the book whenever that appears). The trial judge doesn't seem to have appreciated that Hanke's material contribution test is an augmented risk theory of causation, not contribution to injury.
Here are paras 178-182:
[178] Walker Estate v. York Finch General Hospital, 2001 SCC 23 (CanLII), 2001 SCC 23, 2001 SCC 23 (CanLII), [2001] 1 S.C.R. 647, involved negligent blood donor screening, where it was difficult or impossible for a plaintiff to prove hypothetically what the donor would have done had he or she been properly screened. In that context, Major J. stated that the “but for” test is unworkable where multiple independent causes may bring about a single harm, and that the proper test for causation in cases like that is whether the defendant’s negligence “materially contributed” to the occurrence of the injury.
[179] In this case, the evidence strongly suggests that Mr. Marszalek’s death cannot be attributed to a single cause. He died because he suffered a cerebellar stroke and he did not receive surgical treatment to reduce the swelling in his brain. He did not receive surgical treatment for a number of reasons, which I will address below. In this circumstance, it is not possible for the plaintiffs to prove what a particular person in the causal chain would have done had the defendants not committed a negligent act or omission, thus breaking the “but for” chain of causation. The defendants breached a duty of care owed to Mr. Marszalek, thereby exposing him to an unreasonable risk of death, and Mr. Marszalek died. In these circumstances, the material contribution test for causation is applicable.
[180] The defendants submitted that the evidence in this case establishes only that Mr. Marszalek lost a chance of recovery, that this chance was very small and in any event, that a loss of chance is not compensable at law. In Laferriere v. Lawson, 1991 CanLII 87 (S.C.C.), [1991] 1 S.C.R. 541, the Supreme Court of Canada extensively reviewed the theory of liability for loss of chance in the medical context, and held that causation must be established on a balance of probabilities and the loss of mere chance cannot be a compensable harm. The Court affirmed the causation principles outlined in Snell v. Farrell. This principle was restated in St-Jean v. Mercier, 2002 SCC 15 (CanLII), 2002 SCC 15, 2002 SCC 15 (CanLII), [2002] 1 S.C.R. 491. I note that these cases address medical liability under Quebec civil law. Outside of that context, the “loss of chance” doctrine has been the subject of considerable controversy, as noted by Major J. in Athey at paras. 37-38.
[181] In any event, the law is clear that a plaintiff must prove causation in accordance with the principles I have outlined above. A plaintiff may be able to prove causation in the medical context where the evidence supports a finding that a particular treatment would probably have produced a positive result. Damages would then be assessed according to the level of probability: see Laferrierre at p. 656.
[182] In this case, the evidence supports a finding that Mr. Marszalek had a better than 50% chance of recovery only if he had decompressive surgery by 12:00 noon on December 9, 1999. The defendants say that in the circumstances, his chance of obtaining surgery within that time period was highly unlikely, if not impossible. As I understand this argument, the defendants say that Ms. Lil cannot establish causation, on either the “but for” or the material contribution test.
Greenall - see starting at para 37. I've included this because it refers to Athey's de minimis explanation of the meaning of a contributing factor as if it is still somehow relevant to Hanke and it supports my view that, whatever the SCC intend to do in Hanke, they haven't accomplished it. Greenall also treats Hanke's material contribution test as if it's a contribution to injury, not contribution to risk test. Then, at para 39, seems to conflate the divisible/indivisible injury issue with the causation issue.
