I am sheepish. I won a case that perhaps I ought not to have. My client

slipped and fell fracturing her ankle. She was picking up her child from

a day care center. The direct route to the front door was blocked by a

car. That route was down three steps to the front door. The car park ran

the length of the building, but as the building was at a lower grade

than the parking lot, there was a retaining wall bounded by a railway

tie that ran the length of it. Between the retaining wall and the

building ran a sidewalk that was used as a ramp for those in

wheelchairs.

My client stepped off the retaining wall, did a banana peel slip and

fell onto the sidewalk. The injury occurred when her ankle twisted on

the railway tie.

A large plate glass window was opposite the sidewalk. That breached the

building code ( an exit route cannot have a plate glass window beside it

since it could blow out in a fire). I led evidence of this. My opponent

objected saying it was irrelevant. I said my opponent could not rely on

a negligently placed alternate route.

A jury agreed. The OCA agreed that I should not have led the evidence,

but that the result would have obtained in any event, so I won. The link

to the case follows: Zavitz v London Bridge.

http://www.canlii.org/en/on/onca/doc/2003/2003canlii57420/2003canlii5742

0.html

This is what they said:

We agree with the appellant that the evidence of Mr. Surowiak concerning

the walkway and its failure to meet the fire safety requirements of the

Building Code should not have been admitted. In our view, it was

irrelevant.

[2] That said, we are satisfied that its admission occasioned no

substantial wrong or miscarriage of justice. The irrelevance of the

impugned evidence would have been apparent to the jury having regard to

defence counsel's closing address and the trial judge's charge, in which

he questioned, at two points, the value of that evidence and what it had

to do with the case.

[3] Moreover, the position of the defence at trial was that the

retaining wall provided a safe means of access into the building and

hence, the availability of an alternate route via the walkway was at

best, a marginal factor.

-----Original Message-----

From: Katy Eloise Barnett [mailto:k.barnett2@pgrad.unimelb.edu.au]

Sent: Monday, January 25, 2010 7:34 PM

To: Robert Stevens

Cc: Wright, Richard; c.e.webb@lse.ac.uk; robert.stevens@ucl.ac.uk;

obligations@uwo.ca

Subject: RE: Duty, and Breaking Eggs

In answer to an earlier question, allergic reaction to eggs only rarely

results in anaphylaxis.

Here's another question. I'm allergic to tree nuts - if I eat them I get

an anaphylactic reaction. Consequently, I *always* take my adrenaline

auto-injector wherever I go. This is regardless of whether someone has

assured me that there's no nuts in food, because as this case shows,

it's

always possible for mistakes to occur.

If this poor man knew he suffered an anaphylactic reaction to eggs,

should

he have carried an adrenaline auto-injector with him, even if he thought

that there would not be eggs in the food? In that case, is there an

issue

of contributory negligence? It would depend, I suppose, whether the

reasonable person who suffers from anaphylaxis is like me and takes her

adrenaline with her everywhere she goes.

Another question: how effective is the frequent disclaimer on food "may

contain traces of nuts"? I have never come across a more irritating

disclaimer. I'm allergic to tree nuts but not peanuts. I've talked with

other people who are allergic to nuts, and we've agreed that we

generally

"risk it" when a product says "may contain traces of nuts" otherwise our

diet would become very limited indeed - just about everything has the

disclaimer, and it seems to mean "it's not our fault if, on a

million-to-one-chance, a peanut accidentally falls in the vanilla

ice-cream mix and gives you an allergic reaction". I've never had a

problem yet...although as I say, I carry my injector with me all the

time...

Katy

> Sorry for biting again, on Richard's last point.

>

> I do not accept that Mackie's view, which I endorse, leads to these

obviously incorrect results.

>

> So, taking just the last example. It would be logically correct to say

that without BOTH the failure to brake AND the nonworkability of the

brakes the harm the plaintiff suffered would ot have occurred, so that

both of them, together, are a cause of the harm suffered. The mistake

(in

> my view) is to think that that means that either individually

constitutes

> a cause of the injury, which they do not as the injury would have

happened

> regardless of either one of them. (The same point holds good in

relation

to all the other examples.) So, Mackie's view does not lead to the view

that the nonwrokability of the brake, alone, is a cause.

>

> Mackie, of course, was a philosopher and so that answer, for his

purposes,

> suffices. For us, as lawyers, a different problem arises. Is it a

problem,

> legally, that we canot say as a matter of logic at the time of tral as

against either the mechanic or the driver individually that their

negligence was a cause of the harm suffered as we know that the harm

would

> have been suffered anyway, because of the negligence of the other

person?

>

> Not at all. The correct question is to ask whether the defendant has

wronged the plaintiff. Whether D has committed a wrong vis a vis P is

wholly unaffected by whether someone else has committed a wrong, or

would

> have committed a wrong if D had not. In this case, what potentially

made

the mechanic's conduct a breach of a duty owed to the plaintff (failure

of

> the brakes) never occurred, whilst the opposite is true of the driver.

Put

> another way, it simply does not matter as a matter of law that the

injury

> would have happened anyway. If I punch you on the nose I am a

wrongdoer

and it doesn't matter that someone else does too, or would have done if

I

> had not.

>

> So, if two people set fire to my house both are wrongdoers, and both

are

also jointly liable for any consequential loss. If a loss would not have

been suffered but for the comission of one or more wrongs, each

wrongdoer

> is (jointly) liable for this loss, even if the loss would have been

suffered because of the wrong of someone else. This is a rule of law,

and

> lawyers have virtually nothing of interest to say to philosophers

about

what 'causation' means.

>

> For me, if you think your legal analysis requires you to argue that X

can

> cause Y even where Y would have happened regardless of X, something

must

have gone wrong with the legal analysis.

>

> best

> Rob

>

>> Regarding the latter (on which I have written a lot), i will only say

> here

>> that Mackie's aggregation approach to finding but-for causation is

> almost

>> universally considered unacceptable.  Among other things, it would

lead

> to

>> treating the preempted poisoning as well as the preemptive shooting

as

> causes of the victim's death in the shooting of poisoned person

>> hypothetical, to the strange conclusion that the aggregate fire was a

> cause (contributed) although neither fire individually was, and to

treating both the failure to brake and the nonworkability of the brakes

as

>> causes (exactly opposite to Rob's conclusion) in the braking

> hypothetical.

>

>

>

>

>

>

>