Category: Tort
Biting a less dangerous (for me) hand
The trial judge wrote in
Skrepnek v Krochak, 2014 ABQB 358
[100] Sopinka J. for the Supreme Court in Snell held that factual uncertainty in that case did not automatically defeat the claim but that a “robust and pragmatic approach to the facts” could enable an inference to be drawn even though medical or scientific expertise could not arrive at a definitive conclusion: Snell at para 22. He continued at para 32, stating that “[w]hether an inference is or is not drawn is a matter of weighing the evidence”. This does not negate, however, the “but for” test. It still applies but can be satisfied by the drawing of a causal inference to a balance of probabilities from the circumstances in which risk arose and harm materialized: Clements v Clements, 2012 SCC 32 at para 8, [2012] 2 SCR 181. See also Brown J. (as he then was), “Cause-in-Fact at the Supreme Court of Canada: Developments in Tort Law in 2012-2013” (2014) 64 SCLR (2d) 327 at 337.
[Emphasis in bold added].
Your assignment, if you chose to read the case, and comment, here, is to decide whether the trial judge identified “the circumstances” other than (1) “the risk” and (2) the fact that the “harm materialized” which made this case one in which “the circumstances,” other than the fact of the risk and that it materialized, together with the facts that there was a risk of harm and that it materialized – that the plaintiff was injured from that risk – were sufficient to support an inference made on the balance of probability that the negligence was a necessary cause of the injury.
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).
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.
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.]
The 4th Monkey Still in Abstenia 