Date: Wed, 19 Sep 2007 01:58

From: Lara Khoury

Subject: Causation in the NZCA

Dear David

Thank you for your comments on Ambros.

I first have one brief comment about your last sentence:

If you are right, not only is the CA mistaken, but it also read me completely wrong.

However, the absence of discussion of Athey’s material contribution may also be explained by the impression one gets that the CA felt – rightly or wrongly - that the material contribution (to the occurrence of injury) approach was not central to the resolution of the case. Indeed, in addition to Athey not being mentioned, the reference to material contribution in the UK context is very brief and not relied on in the final analysis. The CA’s insistence that the causal process involved in this case was alternative also points in that direction (see para 102 amongst others).

With regard to Snell, the CA appears to refer to this case mainly to support a distinction it is trying to make about the shifting of ‘evidential’ vs ‘tactical’ burdens of proof (discussed starting at para 57, and becoming relevant for the case at bar at para 81-82). However, you are right to stress that there are important nuances about Snell (and Canadian law) that are not made, especially at para 59 where the basis of the inference in Snell is truncated; and at paras 63-64 where Snell’s ratio is broadened and referred to as the “SCC’s approach”.

That leaves the question of whether the facts of the case warranted a discussion (and application) of the material contribution approach (in the Athey’s or the Resurfice’s sense ...) ...

Best regards,
Lara

********************************************************
Lara Khoury
Professeure adjointe Assistant Professor
Faculté de droit Faculty of Law
Université McGILL University
3644, Peel
Montréal (Québec)
H3A 1W9
CANADA
(+1) 514.398.6610 / (+1) 514.398.3233 (fax)

--------------------------------------------------------------------------------
From: DAVID CHEIFETZ
Sent: Tuesday, September 18, 2007 5:25 PM
Subject: Re: ODG: Causation in the NZCA

Dear All

From the Canadian perspective:-

The NZCA did a fine job citing Lara, but managed to get the current state of Canadian law wrong. Or handled it curiously.

I put it this way because there's no mention of Athey v Leonati or material contribution in Canada, even material contribution is discussed in the UK context. Rather, factual causation in Canada is treated as if it's all a matter of how to properly apply Snell. Since the NZCA had Lara's text, they had to know about Athey.

There's also no mention of Resurfice.

Canadian jurisprudence (the NZCA doesn't distinguish between common law and Quebec law) is treated as if factual causation is always to be proven using Snell's robust and pragmatic inference approach which permits the trier of fact to draw a valid inference of factual causation in cases of uncertainty even if the expert won't. There's no mention of material contribution in the Canadian context post Athey, and as I said no mention of Athey. There is an extended discussion of what Sopinka J meant in Snell as to when inferences may be drawn in the absence of positive scientific evidence and where facts (at least in the medical malpractice context) are particularly within the knowledge of the defendant as well as a mention of Lawson v Laferriere's rejection of loss of chance.

It's at least plausible the NZCA thought that Athey's material contribution approach is substantively no different than Snell's robust and pragmatic approach; that it's just a labeling difference. If they did that, I assume it's a view they took from their reading of Lara's text.

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