Black Holes, Aether – Excerpt 3 NESS and Sufficiency: A Better Test Than But-For

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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Stumping The Great Karnak (even were he still alive)

Rothstein J. wrote for the Supreme Court  in F.H. v. McDougall, [2008] 3 SCR 41 at para. 46, 2008 SCC 53

If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test.

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Black Holes, Aether – Excerpt 2: Generic examples of the application of the factual causation principles

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 – Excerpt 1

The quoted paragraph is the last paragraph of the first part of “Black Holes, Aether”. The title of that part is: “Introduction: Negligence In The Air May Do.”

Part 2 of this article outlines the facts and result of Clements. Part 3 lays out the new explanation of the “impossibility” requirement provided in Clements: the requirement that it be impossible to validly use the but-for test to prove or disprove, on the balance of probability, that the negligence of any of the defendants whose negligence is alleged to have been a cause of the plaintiff’s injury was a cause. Part 4 discusses some of the issues that will have to be clarified in the meaning and application of the Clements’ explanation of the impossibility requirement. Part 5 discusses the significance of Clements to the other requirements of the material contribution to risk doctrine: “ambit of risk” and “fairness and justice”. Part 6 sketches some of the issues that will arise in claims for contribution where the basis of causation is material contribution to risk. Part 7 is a brief foray into the relationship between factual causation, material contribution to risk, and corrective justice. Part 8 deals with the status of the Athey material contribution to injury test after Clements. Part 9 discusses aspects of but-for doctrine as a result of Clements; particularly, the Supreme Courts affirmation that the Snell robust, pragmatic, commonsense approach to the application of the but-for test is the only method of properly applying the but-for test. The part also contains a brief discussion of a better test for factual causation on the balance of probability – one based on sufficiency rather than necessity: the NESS test. Part 10 sets out examples, by category. The categories show what should be the result of the factual causation inquiry if the current law is properly applied to the findings of fact made by the trial court. Part 11 contains general remarks about flaws in the Supreme Court’s approach to the issue of factual causation and brings the discussion to an end.

BLACK HOLES, AETHER, AND NEGLIGENCE IN THE AIR

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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