Assume that Clements material contribution to risk and Walker Estate material contribution to injury do not apply.
If, during argument or submissions on causation, a judge (motion, trial, appellate) suggested to you that, on the balance of probability, it was commonsense that the defendant’s fault (or the plaintiff’s contributory fault) was a factual cause of the plaintiff’s injury, would you risk asking the judge what “commonsense” meant?
Would you ask the judge if “commonsense” meant that the negligence was necessary for the injury to have occurred?
Would you ask the judge if “commonsense” meant that the negligence was merely sufficient for the injury to have occurred, even if it was not necessary?
If the judge gave you an answer as to which of the two the judge meant, would you ask the judge why he or she didn’t say that rather than use “commonsense“?
Would you be waiting? hoping? the judge would say something that amounted to “sufficient but not necessary”?
If the judge declined to answer, what would you say?
Would you suggest to the judge that since he or she is bound by SCC decisions (unless you’re in the SCC, where you might chose to phrase the statement a bit differently) “commonsense” has to mean “necessary”, so that there was no reason at all for the judge to have used “commonsense“?
After all, does the statement “it is commonsense that X is necessary for the occurrence of Y” tell us anything about why and how the judge concluded the evidence leads to the conclusion that, on the balance of probability, the occurrence of the defendant’s or the plaintiff’s faulty conduct was necessary for the occurrence of the injury?
We have to assume that “commonsense” is a label for something about the evidence that supposedly establishes a legally relevant relationship between the conduct to the injury. If it’s not, then “commonsense” is meaningless in this discussion.
What is that relationship? What is that something? Would you ask the judge to clarify what he or she is asking about?
Would you tell the judge that if it’s enough for a judge to say that it’s “commonsense” that X was probably a cause of Y, then why isn’t that enough for a jury. After all, a jury doesn’t have to explain. And, the law about which the judge instructs a jury on is supposed to be the same law the judge uses to instruct himself or herself.
Would you risk the judge suggesting you were verging on contempt (of court)? It’s easier if you’re older than the judge, of course.
I suppose it’s a good thing (for me) that so few people read this blog, even though I’m not saying anything I’ve not already said more explicitly in print.