Dear Jason,
I agree with your reading of
Clements and its application to a Sindell-type situation.
For what it’s worth, particularly in relation to the Chief Justice’s reference to UK jurisprudence, the problem lies in the confusion of material contribution
to injury (a species of But For causation – see Bonnington Castings v Wardlaw) and material contribution
to risk (which dispenses with individual But For causation – see
Fairchild, Barker, Sienkiewicz).
Although the SCC in Clements refers to these as sometimes being confused (CJ at [15]), they in fact represent totally different lines of reasoning in English law, and need to be kept analytically separate.
I think that Clements is really a material contribution to injury case, and so I agree with the SCC that it is not an appropriate subject of the exceptional material contribution to risk analysis. In brief, liability would have likely have been imposed by an English court on the facts of Clements on the basis of material contribution to injury (see, eg Bailey v MOD, Williams v BHB), but NOT on the basis of material contribution to risk. The latter test should only be applied where proof of causation is impossible in principle, not where a particular claimant lacks sufficient evidence in any given instance. Material contribution to injury, on the other hand is, this side of the pond at least, applicable where the court is satisfied that the defendant’s breach made a difference to the outcome, but where that contribution cannot be quantified - a better fit for Clements, I would say.
All best,
Sarah
Sent: 19 March 2017 19:21
To: obligations@uwo.ca
Subject: ODG: Clements v Clements, Risk and Sindell
Dear Colleagues:
I was just looking at Clements v Clements again for the first time in a few years and it occurred to me that given the way that the SCC frames the test of causation for material contribution to risk, there would be liability on the facts of Sindell v Abbott Laboratories if that occurred in Canada. Each individual plaintiff would be able to establish (a) she suffered loss that would not have occurred “but for” the negligence of the drug companies taken globally in the marketing the drug; and (b) the plaintiff through no fault of her own would be unable to show that any one of the possible tortfeasors was a but for cause of her injury, because each company could point to the others as a cause of the injury. This process of reasoning could be repeated by each of the potential plaintiffs (which could number in the thousands or more). The SCC test appears to be even easier for the plaintiff than that in Sindell since there is no requirement that all the potential tortfeasors be before the court or even that the tortfeasors chosen to be sued represent a substantial percentage of the possible tortfeasors.
I just wanted to check that others would agree with this analysis and that I haven’t missed anything in Clements or any subsequent SCC case that would foreclose this type of analysis.
Sincerely,
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)