No remedy in medical negligence: fault without causation (2)

I’ll outline, in subsequent postings, why, assuming the evidence was as outlined in the Briante v. Vancouver Island Health Authority, 2014 BCSC 1511  reasons, the case could not have succeeded under any other causation analysis that is now correct, or might arguably be, available, under current Canadian tort law; indeed, that allowing it to succeed would have been contrary to what the Supreme Court of Canada held, in Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181, at paras 7-8 is part of the foundational principles upon which Canadian tort law is based:

[6]      On its own, proof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss.  The plaintiff must also establish that the defendant’s negligence (breach of the standard of care) caused the injury.  That link is causation.

[7]       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.

(Emphasis in original.)

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