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Factual Causation - Coggle Diagram
Factual Causation
Alternative liability theory
(Cook v Lewis)
3 components:
Only one causes harm
We cannot tell which one did it
Multiple independent wrongdoers who act at the same time
Presumption of fault against both Ds unless each wrongdoer can show on a balance of probabilities, they did not cause the injury
Each wrongdoer jointly and severally liable for the loss
BURDEN SHIFT: defendants have to show that they didn't cause the harm
rationale: It's not fair for the loss to lie with the plaintiff in this case
Case : Cook v Lewis
Material contribution test
(Clements)
A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.
a plaintiff may succeed by showing that the defendant’s conduct
materially contributed to risk
of the plaintiff’s injury, where
(b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury
(a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss
more than one defendant can have caused the harm!
Cases
Fowlow v South Lake Regional Health Centre (use of test not accepted)
Clements
NONE of them might have caused it, but if they contributed to the risk thats enough!
GO TO:
But For test
(Horsley)
requires plaintiff must show the injury would not have occurred BUT FOR the negligence of the defendant (Horsley :red_flag:)
The defendant doesn't have to be the only cause of the harm (Athey + Larsen :red_flag:)
IF causation cannot be proven on BOP: Snell v Farell test (the facts lie particularly within the knowledge of the defendant)
very little affirmative evidence on the part of the plaintiff will justify the drawing of an
inference of causation
In response, the defendant can say that they were not negligent, or prove that they didn't cause the harm
Cases
Ediger v Johnston
Wilson v Beck
Hansen v Sulyma
Horsley
divisible and indivisible injuries
divisible
each D should be liable only to the extent of the harm they created (BLACKWATER :red_flag:)
THIESSEN :red_flag: says:
Assess what the P would have recovered had their action be tried the day before the second accident
Assess global damages as of the date of the trial in respect to both accidents AND
Deduct the amount under a) from the amount under b) and award damages in the amount of the difference
Apportionment is allowed where injuries caused by two Ds are divisible
indivisible
There is no basis for a reduction of liability just because other preconditions exist – Ds are liable for all injuries caused or contributed to by negligence (ATHEY :red_flag:)
As long as the D is part of the cause of an injury, they are liable even if their act alone wasn’t enough to create the injury
Ds can still seek apportionment from each other later (this would be done through the Negligence Act)
For indivisible injuries, liability is apportioned based on fault