Causation in the Air or Adventuring With Philosophers (Manqué): Part 2
When the Supreme Court of Canada uses a phrase it means exactly what the Supreme Court says it does, “neither more nor less”. (Some of you will know the text I’ve quoted from.)
But what if the source the Supreme Court cites as the authority for the meaning of that phrase explicitly denies the meaning that the Supreme Court gives it?
In this article, I look at the Supreme Court’s use of the concept of “corrective justice” in everybody’s favourite case: Clements v. Clements, 2012 SCC 32.
Once upon at time, in the last millennium, law students learned that “negligence in the air … will not do”. That maxim, as it happens, came from the pen of the same person (Frederick Pollock) who’d warned them against adventuring with philosophers.
One consequence of Clements is that, in some cases, negligence in the air will do as part of the basis for liability: “negligence in the air” meaning the negligence of a defendant held liable to a plaintiff which is not held to be, on the balance of probability, a factual cause of the injury in respect of which that defendant is held liable to that plaintiff.
What you’ll find below is a discussion of Clements use of “corrective justice” as justification for the material contribution to risk doctrine. It’s taken from an as-yet unpublished piece attempting to unravel and order some of the skeins of Canadian common law causation doctrine, in negligence, after Clements.
A moral one might take from Clements is that factual causation does not always matter enough to make it a precondition for liability. Clements asserts that corrective justice justifies this conclusion. Perhaps that is so. However, Clements provides neither empirical data nor analysis to support that conclusion and the version of corrective justice that Clements cites explicitly denies that conclusion.
A premise of Clements material contribution to risk is that the causation requirement of the cause of action in negligence may be satisfied by a tortfeasor’s negligent creation of increased risk of injury even if the evidence does not permit the conclusion, on the balance of probability, that that increased risk – the negligence of the tortfeasor – materialized into (was a factual cause of) the injury in respect of which the plaintiff then sues that tortfeasor. Put more concisely, the material contribution to risk doctrine declared by Clements does not require that the risk negligently created by a person materialize into injury for that person to be held liable for that injury. The justification that Clements offers for this “radical step that goes against fundamental principle” are the “goals” or “objectives” of negligence law which Clements lists as compensation, deterrence, fairness, and corrective justice.
Clements states that corrective justice is part of the rationale for the existence of the material contribution to risk doctrine.
Exceptionally, however, courts have accepted that a plaintiff may be able to recover on the basis of “material contribution to risk of injury”, without showing factual “but for” causation. … in cases where it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it. In these cases, the goals of tort law and the underlying theory of corrective justice require that the defendant not be permitted to escape liability by pointing the finger at another wrongdoer.
Clements does not explain the Court’s understanding of the meaning of the concept of “corrective justice” beyond whatever we might take from the Court’s first use of the phrase.
Recovery in negligence presupposes a relationship between the plaintiff and defendant based on the existence of a duty of care – a defendant who is at fault and a plaintiff who has been injured by that fault. If the defendant breaches this duty and thereby causes injury to the plaintiff, the law “corrects” the deficiency in the relationship by requiring the defendant to compensate the plaintiff for the injury suffered. This basis for recovery, sometimes referred to as “corrective justice”, assigns liability when the plaintiff and defendant are linked in a correlative relationship of doer and sufferer of the same harm: E. J. Weinrib, The Idea of Private Law (1995), at p. 156.
Practicing lawyers and judges reading Clements would be justified in assuming, from the manner by which Clements uses corrective justice as a justification for the material contribution doctrine, that it is generally agreed, amongst legal scholars, that corrective justice does support one or more explanations of the causation requirement in negligence which define the causation requirement in the manner defined by the material contribution to risk doctrine in Clements. However, that assumption would be a mistake. In addition, those practicing lawyers and judges would be justified in reading Clements to assert that the text Clements cites for corrective justice supports the material contribution to risk doctrine as explained in Clements. However, Clements is wrong about that, too. I do not suggest, of course, that is impossible for any form of a corrective justice theory to be used to justify a causation requirement based on a less than a probable connection between the defendant’s negligence and the plaintiff’s injury. It is to say, simply, that the justification is not, nor can it be found in, a valid reading of the conception of corrective justice that Clements cites: the explanation in Ernest Weinrib, The Idea of Private Law.
Nonetheless, given that Clements implies that the corrective justice, as explained by Ernest Weinrib, justifies and is consistent with the material contribution to risk doctrine, it is worth setting out passages from The Idea of Private Law that contradict this claim.
Negligence law holds the defendant liable for the harm that materializes from the creation of an unreasonable risk.
. . .
For liability under corrective justice, the defendant’s negligent conduct must have materialized in injury to the plaintiff. Without injury at the actor’s hands, there is no sufferer to whom the actor is liable. And without the causal connection of suffering to the wrongful creation of risk, there is no actor responsible for the suffering and thus no one from whom, as a matter of corrective justice, the sufferer can recover.
Two doctrines of the common law deal with the effects of the defendant’s wrongdoing on the plaintiff. The first is the distinction between nonfeasance and misfeasance: for the plaintiff’s injury to be actionable, it must be the consequence not of mere failure to act but of the defendant’s risk creation. The second is the requirement of factual causation: for the defendant’s creation of risk to be actionable, it must result in injury to the plaintiff. These doctrines mirror each other in relating doing to suffering. The first prevents liability for the plaintiff’s suffering apart from the defendant’s action. The second prevents liability for the defendant’s action apart from its consequences for the sufferer.
Through the first of these doctrines, the distinction between misfeasance and nonfeasance, the common law recognizes that for the injured person to recover, the suffering must be the consequence of what the defendant has one. Except under special circumstances, defendants are not liable unless they have participated in the creation of the risk that materialized in the plaintiff’s injury. Suffering by the plaintiff that does not result from the defendant’s action has no significance for corrective justice.
The exceptions that Weinrib refers to are not exceptions from the causation requirement. They are exceptions from the common law’s general rule that nonfeasance is not actionable. In the instances described, a duty of care does exist, and conduct in breach of that duty which is a factual cause of recognized injury is actionable. The description of the fourth group of exceptions is significant for present purposes. “The fourth group is comprised of situations where the defendant’s failure to act takes place in the context of the defendant’s risk-creating activity.” Weinrib refers to the Supreme Court of Canada decisions in Horsley v. MacLaren and Crocker v. Sundance Northwest Resorts, where the negligent conduct was nonfeasance, as “particular examples” of the rule that “defendants are not liable unless they have participated in the creation of the risk that materialized in the plaintiff’s injury.”
Any doubt about Weinrib’s view of the necessary role of factual causation in a corrective justice explanation of negligence law, at least as expressed in The Idea of Private Law, should be eliminated by the contents of the paragraph which follows the last quoted paragraph.
As for the second of these doctrines, some scholars have called the factual causation requirement into question. This assertion of “the decline of cause” takes its cue from cases where difficulties of proving cause have led courts to lighten or reverse the plaintiff’s evidentiary burden. To the extent that these cases still allow defendants to exculpate themselves by disproving their causal role, they merely modify the evidentiary mechanisms regarding causation without negating its systemic importance for tort liability. Nonetheless, these cases have spurred the suggestion that the wrongful creation of risk may suffice for liability even in the absence of factual causation. Some have even claimed that this suggestion is consistent with corrective justice. Let me here briefly indicate why it is not.
Clements does not attempt to suggest that the material contribution to risk doctrine does nothing more than “merely modify the evidentiary mechanisms regarding causation” while retaining rather than “negating its systematic importance for tort liability”. I think it reasonable to assume that the majority in Clements would have seized on this passage in The Idea of Private Law if the majority thought it could be used, properly, to justify their reliance on corrective justice as justification.
Weinrib, in Private Law, reviews two of the arguments against the need for factual causation. The first is an argument based on morality. Since all of the tortfeasors are morally culpable, the fortuity of factual causation should not allow a negligent person to escape liability just because, in the particular case, that person’s negligence did not materialize in the injury. In the Cook v. Lewis, two-hunter, example, it was chance that one but not the other of the two shots struck the injured person. Weinrib explains that this argument, “by focusing on the culpability of the defendant, … leaves the plaintiff’s injury out of account”. It looks at the “why this defendant?” question – “Why can this plaintiff recover from this defendant?” – but not the “why this plaintiff?” question – “Why can this plaintiff recover from this defendant?”
The second of the arguments is the more important for present purposes. It is an argument based on the idea of modifying the definition of compensable injury so that a concept of factual causation of injury on the balance of probability is retained. The compensable injury becomes the risk of occurrence of the injury, not the injury. “On this version, liability flows from the probability that the injury will occur: this probability … counts as the injury required by corrective justice.”
The argument construes the plaintiff’s exposure to risk as the loss that corrective justice corrects. To be sure, exposure to risk, to the extent that it depreciates the value of the body considered as a capital asset, might be considered a factual loss, a change for the worse in the plaintiff’s condition. But such loss is an inadequate basis for liability. Corrective justice requires not factual but normative loss consisting in wrongful infringement of the plaintiff’s right.
For risk exposure to count as an actionable loss under corrective justice, the prospect of bodily injury, rather than actual bodily injury, would have to constitute the violation of the plaintiff’s right. Conversely, the right would have to consist not in actual bodily integrity, but in the absence of the prospect of injury. But the absence of the prospect of injury cannot count as a right under the … corrective justice [adopted in this text]. …
Accordingly, traditional tort law reflects corrective justice in refusing to treat risk as an independent kind of harm. Risk is always the risk of something. In corrective justice, that something encompasses the right that defines the plaintiff’s claim. Risk refers to the possibility of a normative loss. It is not itself the normative loss.
So, while it is true that Weinrib, The Idea of Private Law, in the conclusion to the chapter titled “Negligence Liability”, contains the statement “[c]entral to the linkage of plaintiff and defendant is the idea of risk, for risk imports relation”, neither that phrase nor anything else in the text ought to be understood as support for the material contribution to risk as causation thesis.
Beyond that, the material contribution to risk doctrine as explained in Clements does not satisfy the requirements of corrective justice, if we are to take the Court’s explanation of the meaning of corrective justice at face value. The Court explained that corrective justice “assigns liability when the plaintiff and defendant are linked in a correlative relationship of doer and sufferer of the same harm”. However, the material contribution to risk doctrine as explained in Clements does not require there actually have been any factual causation relationship – the meaning of “correlative relationship” – between the doer and sufferer of the same harm. It requires only that factual causation be legally significant amount of possibility less than a probability and it permits the imposition of liability in some cases where it may be the case – arguably is necessarily the case – that neither the negligent conduct or even the conduct other than the negligent aspect of a person held liable was a cause of the injury. 
There are, however, interpretations of the concept of “corrective justice” than that used by Weinrib in The Ideal of Private Law. “Used in a broad sense, it refers to a [diverse] range of theories that emphasize the concepts of rights, duties, and fairness in explaining tort law”. Clements seems to use “corrective justice” in this broader sense. Clements states that the material contribution to risk doctrine advances negligence law’s “goals” or “objectives” “of compensation, fairness and deterrence, in a manner consistent with corrective justice;” “[t]o deny [the plaintiff] recovery, while allowing the negligent defendants to escape liability by pointing the finger at each other, would not have met the goals of negligence law of compensation, fairness and deterrence, in a manner consistent with corrective justice”; and, that “to allow the defendants to each escape liability by pointing the finger at one another would have been at odds with the fairness, deterrence, and corrective justice objectives of the law of negligence.”
Ultimately, whether Weinrib would agree with the Supreme Court’s use of his text and view of the meaning of corrective justice as justification for the Court’s explanation of the Clements version of a material contribution to risk doctrine matters, now, only to those who care about the validity of Clements’ claims that this or that item of scholarship justifies the Clements analysis of that doctrine. But, if we assume the meaning of “corrective justice” matters to the meaning of the material contribution to risk doctrine, then judges may have to return to the issue of what the Supreme Court meant by “corrective justice” when they attempt to answer questions about the meaning of that doctrine whose answer is not clear in Clements. In any event, what is significant, for this article, is that Weinrib, The Idea of Private Law is not an authority for the material contribution to risk doctrine. Whether a concept of corrective justice could be used to support that some version of that doctrine is beyond the scope of this article, except for the few comments I have made in this Part.
The criteria by which success or failure to meet objectives such as fairness and corrective justice is judged are necessarily subjective. Either there is or is not compensation is objective. The criteria by which the adequacy of the compensation is measured are objective or subjective, depending on the head of damages. While one’s decision as to the extent of success or failure of the deterrence goal might be subjective, as might be one’s decision on the value of those consequences, it would be possible to study the effect of the material contribution to risk doctrine on particular industries, after the fact, or to estimate the consequences of increased liability from that doctrine in advance, and take this evidence into account in deciding whether it would be appropriate, in the particular case, to apply the material contribution to risk doctrine. It might appropriate to consider whether to limit the doctrine by reference to the mechanism of the injury and considerations of net social benefit. None of this was done in Clements, nor even mentioned, undoubtedly because the Supreme Court concluded that the material contribution doctrine did not apply. All of this will have to be done in future litigation.
Paul Perrell analyzed the Supreme Court’s jurisprudence governing the manner in which that Court would change established common law. “In a series of cases, the justices of the Supreme Court of Canada … decided … that: ‘major revisions of the law are best left to the legislature’ and … the judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society’.” Perrell’s conclusion, stated in the title of his article, is that “The Supreme Court of Canada’s Incremental Change Test Does Not Work.” Perhaps the Supreme Court agrees and this one reason why it did not mention its contrary decisions or the incremental change test. In any event, Canadians, and the Canadian legal system, deserves a better explanation for the material contribution doctrine than what the Supreme Court provided in Clements and Resurfice.
 See Part 3, above. [Part 3 is the full article’s summary of the meaning of “impossibility” as now explained in Clements. An earlier version of that part appears in my Advocate’s Quarterly “Causation in Negligence: Material Contribution and But-For After Clements” (2012) 40 Adv. Q. 275, Part 2. An even earlier version of some of the content of that discussion appears in the Postscript to my article about Resurfice. That article is available on SSRN at http://ssrn.com/abstract=2129615.%5D
 Clements v. Clements, 2012 SCC 32 at para. 16 [Clements].
 Ibid. at paras. 19, 21, 41.
 Ibid. at para. 32.
 Ibid. at paras. 19, 21, 32 and 41. For present purposes, I assume that fairness means something that corrective justice does not, without making any attempt to identify what that something else might be.
 Clements, supra note 2 at paras. 7, 13, 19, 21, 32 and 41.
 Ibid. at para. 13.
 Ibid., para. 7
 See Arthur Ripstein and Benjamin C. Zipursky, “Corrective Justice in an Age of Mass Torts” in Philosophy and the Law of Torts, ed. Gerald J. Postema (Cambridge: University Press, 2007) 214 at 214-17 [Ripstein and Zipursky, “Corrective Justice”].
 See Ripstein and Zipursky, “Corrective Justice”, ibid., for a discussion of some theories of this type.
 Ernest J. Weinrib, The Idea of Private Law (Cambridge, Mass.: Harvard University Press, 1995) [Weinrib, Private Law] cited in Clements, supra note 2 at para. 7.
 Weinrib, Private Law, ibid. at 145.
 Ibid. at 153-54 [internal footnotes omitted].
 Ibid. at 153-54 n. 16.
  S.C.R. 441, 1971 CanLII 24. Weinrib, Private Law, supra note 11 at 154 n. 16, describing Horsley as a case of the “duty of the operator of a boat to rescue a person who has fallen overboard”
  1 S.C.R. 1186, 1988 CanLII 45. Weinrib, Private Law, supra note 488 at 154 n. 16, describing Crocker as a case of the “duty of a resort operator to control participation in potentially dangerous resort entertainment”.
 Weinrib, Private Law, supra note 488 at. 153 [emphasis added].
 Ibid. at 154-55 [internal footnotes omitted; emphasis added]. The cases the text refers to by “these cases” are Summers v. Tice, 199 P. 2d 1 (Calif. S.C. 1948) and Sindell v. Abbott Laboratories, 13 Cal. 3d 588, 607 P.2d 924 (Cal. Sup. Ct. 1980) cert. denied, 449 U.S. 912 (1980). The omitted footnote to the penultimate sentence contains a list of articles in which the argument is made.
 Ibid. at 155-58.
 Ibid. at 156.
 Ibid. at 155 [emphasis in original].
 Ibid. [emphasis in original].
 It should be recalled that this approach was adopted by the House of Lords in Barker v. Corus,  UKHL 20.
 Weinrib, Private Law, supra note 11 at. 157-58 [words in brackets added]. For the philosophically minded: the balance of the second quoted paragraph, starting with the complete version of the last quoted sentence, is:
“But the absence of the prospect of injury cannot count as a right under the Kantian gloss of corrective justice. Rights are juridical manifestations of the will’s freedom. The absence of the prospect of injury is not in itself a manifestation of the plaintiff’s free will. In this respect, risk of bodily injury decisively differs from bodily injury itself: a human being has an immediate right in his or her body because it houses the will and is the organ of its purposes. The prospect of injury is, at most, something that may affect the embodiment of the plaintiff’s free will in the future. Therefore, security from this prospect does not rank as a present right.”
 Ibid. at 168.
 See also Ripstein and Zipursky, “Corrective Justice”, supra note 486 at 245: “In short, all of the considerations put forward as reasons for attenuating the causation requirement in tort law are more plausibly viewed as reasons for supplementing the legal system with public compensatory and deterrent systems, for tort law without causation will be both ineffective and arbitrary to the core.”
 Clements, supra note 9 at para. 7, quoted supra at the text accompanying note 485.
 See Part 3.
 Ripstein and Zipursky, “Corrective Justice”, supra note 9 at 246 n. 4 [word in brackets added]. Some of these interpretations are said, by their proponents, to be consistent with causation based on possibility less than probability. Some would see irony in the fact that Weinrib, Private Law, supra note 488 at 156-58, specifically acknowledges this and discusses some of interpretations in order to reject them.
 Clements, supra note 2 at paras. 19, 21, 41.
 Ibid. at para. 32.
 Ibid. at para. 19; also paras. 21, 32 and 41. For present purposes, I assume that fairness means something that corrective justice does not, without making any attempt to identify what that something else might be.
 Clements, supra note 2 at para. 19 [words in brackets added].
 Ibid. at para. 32.
 Canadian jurisdictions do not have employment-related asbestos disease litigation as it exists in the United Kingdom, Australia, and the United States because of workers’ compensation legislation that prevents most workers from suing most employers. Instead, the employees have a statutory right to claim against a fund. Eligibility does not require proof of fault. It requires a compensable injury in some relevant sense caused by the employment, however “caused” is defined by the legislation) by the legislation. That legislation does not apply to people who are not employees, so Canadian asbestos or other toxic substance litigation will usually relate to exposures that are not employment related. Estimates soon after Fairchild were that the cost the insurance industry of mesothelioma claims that would not have succeed before Fairchild would be £6 to £8 billion. See The [London] Telegraph, May 17, 2002, “Legal Victory for Asbestos Victims”, online: <http://www.telegraph.co.uk/news/uknews/1394443/Victory-for-asbestos-victims.html>, accessed October 7, 2012. That estimate now seems low. A March 1, 2008 article states that total payments, in the United Kingdom, to settle mesothelioma claims related to asbestos exposure had reached approximately $1 billion per year. See Darren Smith, Julia Dodds, and Claire Hamm, “Who Pays the Bill for Asbestos Claims: Recent Developments in Asbestos-Related Disease Liability in the UK” in Life Sciences Legal Update, online: <http://bit.ly/VK88m3> accessed October 6, 2012.
 Seemingly one of the considerations in Walker Estate v. York Finch General Hospital,  1 S.C.R. 647, 2001 SCC 23 since the Walker Estate version of material contribution to injury is limited to personal injury claims arising out the negligent screen of blood donors.
 Recall that the Clements explicitly leaves open the application of the material contribution doctrine to circumstances other than those defined in the Clements reasons: supra note 2 at para. 44. McLachlin C.J. wrote: “This is not to say that new situations will not raise new considerations. I leave for another day, for example, the scenario that might arise in mass toxic tort litigation with multiple plaintiffs, where it is established statistically that the defendant’s acts induced an injury on some members of the group, but it is impossible to know which ones.” This statement should be understood as expressing the unanimous opinion of the Court since the dissenting judges explicitly agreed with the “the substance of her analysis of the law of causation”, did not add any qualifications, and specifically dissented only on the remedy. See ibid. at para. 55.
 Paul M. Perrell, “Changing the Common Law And Why The Supreme Court of Canada’s Incremental Change Test Does Not Work” (2003) 26 Adv. Q. 345 at 346 [internal footnotes omitted]. The Supreme Court cases cited in this passage are Watkins v. Olafson,  2 S.C.R. 750 at 584, 1989 CanLII 36 and R. v. Salituro,  3 S.C.R. 654 at 670, 1991 CanLII 17.
 In the five years preceding Resurfice, and the 5 years after leading to Clements, the House of Lords delivered five, long, complex, judgments totalling more than 275 pages containing in-depth consideration of the issues involved in adopting a material contribution to risk doctrine, with extensive references to United Kingdom, Commonwealth, United States, and other jurisdictions’ law.
Good spot. The echo is clear to anybody paying enough attention.
None of this surprises me. It seems to be an extension of the policy considerations applied to vicarious liability in Bazley to another situation where the judges feel that fairness calls for “effective compensation”.