Tuesday February 25
Causation, Remoteness, Damages
5 Elements of Negligence:
(You must go through all of them to be found liable in the tort of negligence)
2. Standard of care
• Must have caused the accident
• There are two sub issues:
1. What is the test for causation in this particular situation?
• This is a question of law
2. Can the plaintiff prove that the defendant’s negligent act caused injury?
• This is a question of fact
• The defendant only has to prove that the plaintiff was a cause of
injury, not the direct cause or the only cause
• A plaintiff can have two or more injuries that were not caused by the
same person. These have to be dealt with separately.
o eg. one person shoots someone in the arm, someone else
shoots them in the leg. The person who caused the injury to
the arm would have caused that injury, but not the injury to
The “But For” Test
• But for (without) the defendant’s negligence, would the plaintiff have suffered the
• Case: Bolton v. Stone
o Without the actions of the baseball player, would the plaintiff have suffered
the injury? No, it was the baseball player’s actions that were a cause of
• Case: Barnett v. Kensington Hospital Management Committee
o A night watchman at a small university was drinking tea, but laid down in a
closet when he wasn’t feeling well. They took him to a hospital after they
found him and told the doctor he wasn’t feeling well after drinking tea. The
doctor misunderstood and thought he was drinking, and sent the man
home. The man died from arsenic poisoning, and the family sued for
negligence because the reasonable doctor should have asked questions
before sending the man home. o The court said there was no liability because even if the man was
admitted to the hospital and went through all of the tests, they wouldn’t
know what was wrong with him until it was too late.
o It wasn’t that the hospital didn’t do anything wrong, but they were not held
liable because they weren’t a cause of the patient’s death.
• Case: Richard v. CNR
o Richard was on a ferry and went to sleep in his car. When someone
yelled that they were there, he got excited and drove his car off the boat.
He sued the company because they used to have a rope across the edge
and they didn’t have it there anymore. The court said that the man would
have been injured, even if there was a rope in place.
Material Contribution Test
• The “But For” test doesn’t always work, and instead we use the material
o Lambton v. Mellish
The plaintiffs sued the two carousel owners for playing their music
all day and driving them crazy. The carnival owners said that they
got off on the But For test because without them, the other owner
would have made everyone crazy.
The court said that the But For test fails with over-determination
(where there is too much causation)
Instead we ask if each carousel owner made a material
contribution to the injury. We hold them both liable because they
were both a cause of injury to the people living beside the
o Corey v. Havener
Two people are riding horses, and someone comes up behind them
on a motor tricycle, revving his engine to pass, making a huge
noise. At the same time, a bolt of lightning comes down on the
other side of the horse. The horse gets scared and bolts away,
killing the rider of the horse.
Was the person riding the motor tricycle a cause of the injury?
**(ON THE EXAM) The court said he was not liable. When there
is a natural cause (the lightning), over-determination does not
• It’s up to the plaintiff to prove on the balance of probabilities that something or
someone was a cause of their injuries.
• Case: Cook v. Lewis
o Two people were hunting, and two others were out at the same time.
They saw something in a bush and shot at it. They both shot at the same
time, and the plaintiff had his right eye shot out.
o Is anyone responsible for shooting out his eye? o There is no way to know which man shot out his eye, and they each
claimed the other man did it.
o The Supreme Court of Canada came out with a special rule: where the
plaintiff can prove that two defendants were negligent and one of them
must have shot them, they flip the burden of proof. It is up to the hunters
to prove or disprove who shot him.
In this case, neither could prove one way or the other, so they were
both held liable.
• Case: Fairchild v. Glenhaven Funeral Services Ltd.
o The plaintiff developed a rare cancer that you can only get by inhaling
asbestos fibres. Everyone who gets the disease dies. He sues the
people who he thinks may have given him this cancer. He worked for
three funeral homes during his career. Once you have the disease, you
can breathe in as much asbestos and it won’t make anything worse.
o The court said the but for test wouldn’t work because they would point to
the other business and say they caused it. Over-determination doesn’t
work because more asbestos in another funeral home wouldn’t have
made it worse.
o The highest court in England said he could sue them all through The
Fairchild Exception: Any time you materially increase the risk of injury,
the courts have the power to find that you factually caused the injury (even
though it couldn’t be scientifically proven.)
The Supreme Court of Canada’s Answer:
• Resurfice v. Hanke (2007)
o The But For test is the standard test
o The material contribution test is strictly limited to cases in which two
requirements could be met:
a) Impossible to prove the but for test because of scientific uncertainty
b) The plaintiff must establish that the defendant breached the
standard of care, exposed him to the unreasonable risk of injury
and that he actually suffered the injury (it’s not enough to be
exposed to a risk, they have to have suffered from it)
• Was the type of damage suffered by the plaintiff a foreseeable consequence of
the defendant’s actions?
• You can use the “mother test”: What would your mother say if you wanted to do
the thing the defendant did in the circumstances?
o If your mother would say that what actually happened could happen if you
did it, the damage is not too remote.
• The Wagon Mound (No.1)
o The chief engineer released oil into the harbour. The oil was lit on fire, but
no one had ever heard of this type of oil lighting on fire on water before.
o Was the damage by fire too remote? Was it reasonably foreseeable
that putting oil in the water would cause a fire? o The court said it was not reasonably foreseeable because no one had
ever heard of that oil burning on water before.
• Hughes v. Lord Advocate
o Some workers were working in a manhole, and went for a break to have
some tea. They put a tent over the hole and four caution lamps run by
paraffin wax. Two boys grab the lamps and go down in the hole. One of
the boys slips and drops the lamp, it ignites with methane gas in the hole,
and both are injured.
o Was the damage to the children a reasonably foreseeable
consequence of leaving the hole unattended?