Dear Colleagues,
Members of this list who need to know, or are interested in, the analogous Canadian law have likely realized that if AB were litigated in one the Canadian common law jurisdictions, and assuming a finding of duty and breach of duty and no other applicable defence, the facts of AB would be sufficient to trigger the application of the Resurfice material contribution test even though, as the Eng CA wrote in para. 154, "All that can be said in these cases is that radiation exposure is one of several possible causes." Causation, then, wouldn't necessarily be hurdle in a similar action in the common law jurisdictions of Canada .That is because, under Resurfice v Hanke as written, assuming duty and breach, all that is required is that the wrongful conduct be a possible cause.
I wrote "wouldn't necessarily be " because no one, yet, can have any idea as to the existence or scope of any "policy" limitations in the "because it would offend basic notions of fairness and justice to deny liability by applying a “but for” approach" (Resurfice para.25) justification the Supreme Court of Canada provided for its version of a material contribution test for what is required to satisfy the causation requirements of a tort cause of action.
A student at a Canadian law school wrote to me, recently, saying this about Resurfice:
"Hanke is indeed vague. But there is enough context to flesh out the concepts in a constructive and instructive manner. What Hanke does well is enumerate the scope and limitation within which the material contribution test can be applied; the conditions of application are such that the test will rarely be applied and only in the most exceptional of cases. Furthermore, Hanke's vagueness is warranted by the fact that its discussion was obiter, and that the material contribution test is in its infancy. In time, we will see further development of the general concept, and I think the end result will be a useful tool to settling legal quagmires in an equitable and reasonable fashion."
I don't know whether this view is an accurate reflection of what the student has been taught. I hope not, regardless of one's views on the merits of what the Supreme Court of Canada was trying to say in the Resurfice version of the material contribution discussion.
The student wrote to me because he'd read something I written published in 2005. I didn't have the heart to tell him that 1/2 of it had been rendered obsolete by what is written in Resurfice and the other half might as well have been. I suppose that's what comes of naming one's article after a character in a Lewis Carroll poem. I should have used "Boojum". I may, yet.
In truth, I thought that, by now, the Canadian scene would be the "interesting times" of the apocryphal Chinese curse. That seemed to be where Canadian jurisprudence was going in the initial period after Resurfice. Fortunately, it hasn't gone that way. Instead, what has happened is that trial and appellate courts have retreated to always applying but-for to find that the plaintiff has established (factual) causation, even in those cases where intellectual honesty requires the admission that, before Resurfice, the courts would have held that but-for could not be applied validly so found held the plaintiff had established causation using a pre-Resurfice (hence, pre-Fairchild, although Resurfice doesn't mention Fairchild or even McGhee) version of a material contribution test (the Athey version) which was understood to produce a finding of factual causation. I'm sure that
some Canadian judges, and others, have wondered, what it was about the facts of such cases, that made it impossible (unworkable) to validly use but-for invalid up until February 8, 2007, but not afterwards. If so, no judge has to yet mentioned that "wonder" in his or reasons.
I stated, at the Aberdeen conference in mid 2009, that Canadian case law had nothing useful to contribute to the sensible development of the jurisprudence in this area. Nothing has changed since then. I see no reason to be optimistic that that situation will change.
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David Cheifetz
Toronto, Canada
From: James Lee <j.s.f.lee@bham.ac.uk>
To: "obligations@uwo.ca" <obligations@uwo.ca>
Sent: Mon, November 22, 2010 12:55:09 PM
Subject: Causation and Limitation in the Court of Appeal
Dear Colleagues,
The Court of Appeal has today decided Ministry of Defence v AB & Ors [2010] EWCA Civ 1317 (http://www.bailii.org/ew/cases/EWCA/Civ/2010/1317.html), which involved claims by victims of British nuclear tests in the 1950s. It was an appeal from a careful and lengthy decision by Foskett J. The case is of interest because it is another example of consideration of the section 33 of the Limitation Act, and because of the approach which the Court of Appeal takes to the claimants’ chances of establishing causation. Causation is covered at paras 122-157. It is another case of navigating the principles of the various cases – Bonnington,
Wilsher, Fairchild, Barker et al, but the Court concluded:
- So, we conclude that there is no foreseeable possibility that the Supreme Court would be willing to extend the Fairchild exception so as to cover conditions such as we are here concerned with, which have multiple potential causes some of which have not even been identified. We reject as highly unlikely the suggestion that the Supreme Court might be prepared, on policy grounds, to extend the exception well beyond that which was contemplated at the time of Fairchild or Barker. We say that because, to effect such a change would be to upset completely the long established principle on which proof of causation is based. It is true that Fairchild itself
made a small inroad into that principle. The inroad is slight and there were strong policy reasons for it. But the inroad applies only to cases where the cause of the condition is known. It does not apply where the cause is unknown. Here the causes of the claimants' conditions are not known. All that can be said in these cases is that radiation exposure is one of several possible causes.
- It is the task of the courts to apply the law as it presently stands. If we thought that there was any realistic possibility that the Supreme Court would change the law so as to accommodate these cases within the Fairchild exception, we would have regard to that when we applied the broad merits test. But we do not. We think that possibility is so remote that it can safely be discounted.
That conclusion is very likely correct on the facts, but it is interesting that the Court of Appeal has taken that position now, when the Supreme Court heard two conjoined appeals last month in Sienkiewicz v Greif; Knowsley Metropolitan Borough Council v Willmore and we await judgment. That judgment will see the Justices deal with the questions of how “material” a material contribution to risk has to be (Knowsley) and the scope of the Fairchild exception, the “doubling of risk” approach and the effect of s 3 of the Compensation Act 2006 (Sienkiewicz).
Best wishes,
James
--
James Lee
Lecturer and Director of Careers
Academic Fellow of the Inner Temple
Birmingham Law School
University of Birmingham
Edgbaston
Birmingham
B15 2TT, United Kingdom
Tel: +44 (0)121 414 3629
E-mail: j.s.f.lee@bham.ac.uk