Thursday, April 4, 2013


Ediger v. Johnston, 2013 SCC 18 restores a multi-million damages award to a B.C. girl whose health and future were severely compromised by a birthing-room error. In a ruling today, the court restored a $3,224,000 damages award to Cassidy Ediger, who is now 15 years old and suffers from permanent spastic quadriplegia and cerebral palsy. The Court held:

 The Legal Test for Causation

[28] This Court recently summarized the legal test for causation in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181. Causation is assessed using the “but for” test: Clements, at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at paras. 21-22. That is, the plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred: Clements, at para. 8. “Inherent in the phrase ‘but for’ is the requirement that the defendant’s negligence was necessary to bring about the injury — in other words that the injury would not have occurred without the defendant’s negligence” (ibid. (emphasis deleted)).

[29] Causation is a factual inquiry (Clements, at paras. 8 and 13). Accordingly, the trial judge’s causation finding is reviewed for palpable and overriding error (H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 53-56).

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