Week Three: Causation
Please read in advance of class:
- Athey v. Leonati [1996] 3 SCR 458
- Resurfice Corp. v. Hanke, 2007 1 SCR 333
- Clements v. Clements, 2012 SCC 32
- Shongu v Jing, 2016 BCSC 901
- T.S. v. Gough, 2022 BCSC 264
- Anderson v. Molon, 2020 BCSC 1247
To succeed in a personal injury claim, the plaintiff must prove the tortious conduct caused his or her compensable injury.
Not as simple as it seems:
“Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates.”
- The Honourable Chief Justice Beverly McLachlin
(as she then was) in Resurfice, infra
Defining causation in the Supreme Court of Canada:
- Athey v. Leonati [1996] 3 SCR 458
- Resurfice Corp. v. Hanke, 2007 1 SCR 333
- Clements v. Clements, 2012 SCC 32
Defining the test for causation: the “but for” test versus the “material contribution test”
- THE GENERAL RULE: the plaintiff must demonstrate that “but for” the defendant’s negligence, the injury would not have occurred.
- Only in certain, exceptional circumstances, the “material contribution” test permits the plaintiff to prove only that the negligent action “materially contributed to the risk of harm”.
Identifying complex causation issues in personal injury:
- The challenge of medical science;
- Pre-existing injuries or health conditions;
- Multiple tortious and non-tortious events;
- Divisible and indivisible injuries.
The psychology of persuasion: proving causation in a complex chronic pain case– Shongu v Jing, 2016 BCSC 901
Causation in medical malpractice claims: Baglot v. Fourie, 2019 BCSC 122
Causation in historical sexual assault and battery: Anderson v. Molon, 2020 BCSC 1247
Psychological injuries as a special case (legal causation): Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 and its applications.