Category: Jurisprudence

Biting a hand that might, just a mite, because, well, yes, but not quite

and the “not quite” might result in some lawyer, or even some judge, who ought to, but doesn’t, know better concluding that the “not quite” means that the result of the trial is wrong in law.

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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.)

No remedy in medical negligence: fault without causation (1)

Briante v. Vancouver Island Health Authority, 2014 BCSC 1511, which I first discussed, here, a few days ago, is a stark reminder that, even in medical negligence, fault alone is not enough. The causation requirement, whatever it is held to mean, must still be satisfied. The action failed, ultimately, because, on the evidence, the fault of neither of the negligent nurse nor negligent physician, could validly be held  to satisfy the balance of probability requirement that the negligence have been necessary for the occurrence of the injury. There was no doubt that there was a least a possibility of  a connection, but that was not enough. Put another way, although the trial judge did not express the situation this way, the most the plaintiffs established was a less than 50% chance that, had the nurse or physician not been negligent, the injury would not have occurred. But that, as a matter of law, was not enough, if the governing test for causation was the but-for test (as it was).

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Worth Reading and Pondering: Briante v. Vancouver Island Health Authority, 2014 BCSC 1511

Some comments on the trial decision, which you’ll find here.

As usual, the focus is on the causation aspect. Based on the reasons as published, the causation issue in Briante was argued only on but-for grounds. It’s worth asking if there was at least one other approach.

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Is it something in B.C. water? air?

The “151” in the top line  of the graphic, below, is the number of cases in which Clements v Clements, 2012 SCC 32, [2012] 2 SCR 181  has been cited, in reasons on CANLII, in court or tribunal reasons since Clements was released in mid-2012. It’s 151 times in total, 136 by courts and 15 by tribunals. To be more accurate, it should be 150 since the 151 includes Clements itself at the SCC

The 2nd number in the top line -49 – is the total number of court reasons only since January 2014. It’s 54 if one includes tribunals. The court distribution is: BC 36, AB 3, ON 7, NS 3.

Clements stats Aug 2014

CanLII – Clements cites numbers Aug 2014