This is Part 9.c of “Black Holes, Aether“. As usual, the footnotes have been renumbered and modified to make the excerpt sufficiently self-contained.

There is a test for factual causation which better, broader, and far easier to use than the but-for test. It is better and broader because the test is capable of identifying all known instances of factual causation. It is easier to use because it does not require the judge or jury to undertake the metaphysical “what would have happened if” counterfactual analysis which is the defining characteristic of the but-for test. The test is known by the acronym “NESS”. The acronym stands for Necessary Element of a Sufficient Set.[1] As the acronym indicates, the NESS test is based on the premise that there is a set of factors which cumulatively make up a cause of the injury and the defendant’s negligence is a necessary element of that set. One seminal distinction between the NESS test and the but-for test is that the “is the negligence of this defendant a cause the plaintiff’s injury” question is answered by asking if the set of factors that necessarily includes the negligence is sufficient to have been a cause of the injury. If the answer to that question is yes, then the negligence of the defendant is a factual cause. The consequence is that the NESS test allows the existence of more than one sufficient causal set. It contemplates the existence of multiple sufficient causes. The “pointing finger” problem that troubled the Supreme Court in Clements does not arise except in the limited situation of cases where the causal alternatives are true alternatives – alternatives in the sense that if any one was a factual cause then all of the others were, in fact, not.

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This excerpt is the complete text of Part 10 of  “Black Holes, Aether”. The footnotes have been renumbered. Full cites added where needed to make the excerpt as self-contained as plausible.

10.       EXAMPLES BY CATEGORY

I outline, in this Part, how factual causation law is to be applied after the judge or jury has made the required findings of fact on the issue of whether the evidence permits the conclusion that, on the balance of probability, a wrongdoer’s negligence was or was not a part of the set of events that was a factual cause of the injury.

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BLACK HOLES, AETHER, AND NEGLIGENCE IN THE AIR

CAUSATION IN NEGLIGENCE IN CANADA AFTER CLEMENTS

is the title to my next (and likely last) piece of any significance on factual causation in Canadian tort law. I’ve just begun to reread the last draft for typographical errors, syntax problems, clarity, style,  and anything else that needs to be fixed before it’s finished. When that’s done, the piece will be posted on SSRN. That will happen later this month. The paper “weighs” in at a mere (approximately) 65,000 words without footnotes, 95,000 words including footnotes. I’m going to post excerpts from the paper over the balance of this month.  The Table of Contents will be posted as a fixed page that you can reach by clicking, here, or on the link at the top right under the Pages heading.

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a meaningless label or an admission that the judge or jury was unable to decide what the evidence means so opted to blame all of the defendants so that the plaintiff could recoup from the defendant(s) with assets.

Divisible injuries are those capable of being separated out and having their damages assessed independently. Indivisible injuries are those that cannot be separated or have liability attributed to the constituent causes.

Bradley v. Groves, 2010 BCCA 361 at para. 20.

What follows is why the label is meaningless or an instance of sticking one’s hand into a wrongdoer’s pocket.

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