[12] Causation in law is an expression of the relationship that must be found to exist between the tortious act of the defendant and the injury to the plaintiff in order to justify the defendant compensating the plaintiff. It is established when a plaintiff proves, on a balance of probabilities, that his or her injury was caused or contributed to by the defendant. (Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311 at 326-327, and Cleary v. Courtney, 2010 NLCA 46 (CanLII), 2010 NLCA 46.) In most cases, a plaintiff proves causation by establishing that "but for" the tortious conduct of the defendant, the plaintiff's injury would not have occurred. (Snell; Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458; Resurfice v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7, [2007] 1 S.C.R. 333; and Cleary.)
[13] An exception arises when a defendant breaches a duty of care owed to a plaintiff and thereby exposes that plaintiff to an unreasonable risk of injury which the plaintiff has actually sustained, and it is impossible for the plaintiff to prove causation on the "but for" test due to factors outside of his or her control but within the control of the defendant. In these exceptional circumstances, the law permits a plaintiff to use the "material contribution" test to prove causation, for the reason that it would offend basic notions of fairness and justice to deny liability. (Athey and Hanke.)
[14] Determination of causation is "essentially a practical question of fact which can best be answered by ordinary common sense". (Snell at 328, citing Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475 at 490.) The plaintiff always has the burden of proving the necessary causal connection between his or her injury and the defendant's conduct. However, the law does not require that causation be established with certainty. Causation is established if a plaintiff proves, on the evidence, that it is more likely than not that the defendant caused the plaintiff's injury. (Snell at 328 – 330.)
[15] A trial court can take a robust and pragmatic approach to the evidence, and may draw inferences of causation even if positive or scientific proof of causation has not been adduced. (Snell at 330; and Athey at paragraph 16.) Whether an inference is or is not drawn is a matter for a trial judge to decide upon considering and weighing the evidence. Where there is evidence supporting causation, and a defendant has not adduced contrary evidence, the defendant runs the risk of the court drawing an inference adverse to the defendant's position. (Snell, at 329-330.) A robust and pragmatic approach to the evidence is a way of considering the evidence. It is not to be confused with speculation and conjecture, which are concepts not based on evidence.
1 comment:
Wow ... A terrific analysis!
Post a Comment