Dear Colleagues,
Once upon a time in Canada, not too long ago, if a trial judge was faced with a situation where he or she found that the separate, independent, acts of two or more people were both sufficient factual causes for the accident, and if that judge were cognisant of the seemingly paradoxical problems resulting from attempting to apply the but-for test, the trial judge had a solution. He or she would have quoted this passage from Athey v Leonati, 1996 CanLII 183 [1996] 3 SCR 456, at para. 15: "The but for test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence materially contributed to the occurrence of the injury" (internal footnotes omitted) and used the Athey material contribution test as the doctrinally correct approach for the conclusion that that the condut of each of the two or more
people was a factual cause.
One advantage of being able to quote that passage was that the trial judge was required to assume that it made sense, so that if the but-for test was "unworkable", whatever that meant, that conclusion entailed that the material contribution test (whatever that meant) applied.
However, Canadian common law judges (seemingly) can't do that any more, because of Resurfice. All they (seemingly) have for factual causation is the but-for test. One result is this recent decision. The result is correct, but ...
Brown v. Britsky, 2010 ABQB 445
[1] Two pick up trucks travelling in opposite directions on a highway collided somewhere near the centre line, killing the driver and passenger in one truck and injuring the driver and three passengers in the other. At issue was who was at fault in this head on collision
....
[82] I am left, therefore, with the evidence that I do accept. Both the vehicles were partially over the centre line when the accident occurred. I cannot conclude that by a wrongful act, the driver of either vehicle put the other into a position of difficulty in which he was forced to make a decision which turned out to be wrong. Thus, while I have reviewed the agony of collision and “faked left” decisions cited to me by counsel for the Ouellette parties, they are not helpful in resolving this case.
[83] However, I can conclude that in the absence of any good reason, if a driver crosses the centre line of an undivided two lane highway when another vehicle is approaching, that driver is negligent. As a consequence, since I cannot conclude that either driver had any valid reason to be where they were on the highway at the time of the collision, I conclude that both drivers were
negligent.
[84] I turn next to the question of whether there was a causal connection between the negligence of both parties and the ensuing accident. In my view, causal connection has been demonstrated on the evidence. Had either party remained on his own side of the road, I find it probable that the accident would not have occurred. Had Mr. Ouellette remained on his side of the road, he could have avoided the collision even if Mr. Britsky had crossed the centre line. The same is true with respect to Mr. Britsky. The basic test for determining causation is the "but for" test. I find that "but for" the negligent acts of both of the drivers the accident would not have occurred: Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 [2007 SCC 7].
[85] Having found that the negligence of both drivers caused the damage suffered, the next matter to be decided is the degree of fault to be assigned to each driver.
The conclusion that the conduct of both drivers was a factual cause is, of course, correct. It's a good thing that an appeal is from the result, not the reasons. In fairness to the trial judge, though, what could she say? After all, the SCC had specifically declared, in Resurfice, that the but-for test applies to multi-cause injuries (para 21: "First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries.").
It'll be interesting to see what the Alberta Court of Appeal says about the analysis, if the case is appealed and if factual causation is in issue.
Cheers,
David Cheifetz