What if it had been the gander?

Van v. Howlett, 2014 BCSC 1404 

[138]     The defendants argue that taking a “robust and pragmatic approach” to causation (see Clements v Clements, 2012 SCC 32; [2012] 2 SCR 181), I should find that Ms. Van’s failure to wear a seatbelt did at least worsen her injuries.  If I do not do so, submit the defendants, it effectively prevents the defendant from ever proving contributory negligence in cases of this nature.  I do not agree.  The expertise available to the defendants to assist in investigating causation was no different from that available to the plaintiff in this or any other case of a motor vehicle collision.

[139]     The “robust and pragmatic approach” commended by the Supreme Court of Canada in Clements is not intended to facilitate an end run around the evidence.  The Supreme Court made it clear in that case that the test for causation remains a “but for” test, and I am quite unable to find on the evidence before me that but for her failure to wear a seatbelt, Ms. Van would not have suffered to the same extent or at all the injuries for which she seeks compensation.  On the contrary, I find that her head, facial and rib injuries, and all of their consequences that are relevant to this enquiry, would have occurred in any event due to the unusual mechanics of this accident.  Like the situation considered by the Court of Appeal in Schenker v Scott, , 2014 BCCA 203, “[g]iven the mechanics of this accident and the nature of the injuries suffered, this is not a case where a seatbelt defence could be made out by relying on common sense inferences” (para 43).

[Emphasis added.]

Many (civil) defence counsel will claim that, historically, the highlighted sentence describes exactly how the robust pragmatic approach to proof of factual causation has been used for the plaintiff.  If that approach wasn’t necessarily necessary, or common, before Resurfice when, regardless of what the Supreme Court asserted in Clements,  the Athey version of a material contribution test was used as an alternative method for holding that the plaintiff had proven factual causation on the balance of probability in circumstances, what about now?
As I first wrote (in a published piece, somewhere) about 5 years ago, what does it tell us that, in the years since Resurfice, we’ve not seen one judge state, in print, that a decision that a plaintiff had established factual causation on the balance of probability, made by applying the Athey version of the material contribution test as that version was understood before Clements, would  not have been made  – the judge would have found the plaintiff had not established factual causation on the balance of probability – had  the but-for test been applied.
The point I was trying to make, then, was that nothing had changed except the terminology.
Once upon a time, a now-deceased judge of a court that no longer exists stated that, in deciding matters of fact, such as whether the negligence of a defendant was a cause of a plaintiff’s injury, “[t]mere application of  ‘common sense’ cannot conjure up a proper basis for inferring that an injury must have been caused in one way rather than another”. ( See Fairchild v. Glenhaven Funeral Services Ltd.,Fairchild v Glenhaven Funeral Services Ltd & Ors [2002] UKHL 22 at para. 150 quoted with approval in Aristorenas v. Comcare Health Services, 2006 CanLII 3385, 83 OR (3d) 282 at para. 63 (ONCA).
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