PROFESSIONAL NEGLIGENCE CAUSATION: MAKING SENSE OF ATHEY v. LEONATI

Size: px
Start display at page:

Download "PROFESSIONAL NEGLIGENCE CAUSATION: MAKING SENSE OF ATHEY v. LEONATI"

Transcription

1 PROFESSIONAL NEGLIGENCE CAUSATION: MAKING SENSE OF ATHEY v. LEONATI ). These materials wer.e prepared by Brad Hunter, Pamela Kovacs and NicholasCaan of McKercher MCl(ercher&Whitmore lawfirm, Regina, Saskatchewan for the Saskatchewan Legal EducationSociety Inc. seminar,tort La.w Decisions Highlights,. June :2005..

2 (

3 TABLE OF CONTENTS I. Introduction 1 II. Athey: Facts and Judicial History, 2 A. Facts '.' 2 B. Judicial History Trial Division 2 2. Court of Appeal 3 3. Supreme Court of Canada III. Principles of Causation 4 N. Principles of Causation Meet Athey A. The Tests 5 1. But For Test 5 2. Material Contribution Test 6 3. Applying the Tests 6 (a) But For Test Suffices (i) Straightforward Cases.."... 7 (ii) Combined Force Cases 7 (iii) Tortious and Non-tortious Causes Cases 7 (b) Material Contribution Test Required (i) Multiple Sufficient Causes Cases (ii) Independent and Parallel Tortious Conduct Cases 9 4. Medical Malpractice Cases 10 B. Pre-Existing Conditions: The Thin Skull and Crumbling Skull Doctrines C. Standards of Proof: Past Events, Future Events, Hypothetical Events D. Contingencies E. Intervening Causes Non-tortious Intervening Causes Tortious Intervening Causes 16 v. Conclusion 17

4

5 CAUSATION: MAKING SENSE OF ATHEYV. LEONATI I. INTRODUCTION In an action for negligence, causation identifies the relationship that must be found in fact to exist between the tortious act ofa defendant and the injury suffered by the plaintifffor the plaintiffs claim to succeed. Within the tort system, defendants are liable for injuries caused or contributed to by negligence and plaintiffs are entitled to recover damages that place them into the same position they were pre-injury. Necessarily intertwined into discussions of causation are standards of proof, and pre-existing and intervening causes. Each bears upon whether causation is sufficiently proved and when a defendant will in fact be liable and a plaintiff entitled to damages. Unfortunately, damage assessment is sometimes confusingly dealt with at the liability assessment or causation stage, which has resulted in difficulty interpreting decisions. Athey v. Leonati [1996] 3 S.c.R. 458 (Athey) was thought by many to clarify existing principles of causation,l but some concern has also been expressed that the decision favours plaintiffs,2 does not adequately explain the basis of the material contribution test, 3 and in fact confused well-accepted remedial principles. 4 As of May 2005, the decision has been considered 521 times by Canadian courts, indicating its continued importance. The following comments will review principles of causation law, highlight what the Athey decision expressed, and identify cases and commentary that have interpreted and shed light on the Athey decision since Mitchell McInnes, "Causation in Tort Law: A Decade in the Supreme Court of Canada" (2000) 63 Sask. L. Rev. 445 [McInnes]. 2 Terence J. Collier, Susan E. Gunter, Deborah G. Neilson, Jennifer J. Earle, "Causation Sensation... An Updated Guide to Athey" Advocates' Soc. J.:. (Ontario) February 9, 2001 [Collier et al.]. 3 Gillian Demeyere, "The 'Material Contribution' Test: An hnmaterial Contribution to Tort Law: A Comment", Case Comment on Briglio v. Faulkner (2000) 34 U.B.C.L.Rev. 317 [Demeyere]. 4 Dennis Klimchuk & Vaughan Black, "Athey v. Leonati: Causation, Damages, and Thin Skulls" (1997) 31 U.B.C.L.Rev [Klimchuk & Black].

6 -2- II. ATHEY: FACTS AND JUDICIAL HISTORY A. FACTS Athey, a 43 year old man, had a history of minor back problems and worked as an autobody shop manager. In 1991, he was involved in two severe motor vehicle accidents within months of each other where he suffered back and neck injuries. He had pain in both, but responded well to physiotherapy and subsequently his doctor recommended that he return to an exercise program, which he subsequently did. During mild stretching, he suffered a herniated disc and required surgery. Post-surgery, he could not return to the same position he had prior to the accident and found lower paying employment. 5 B. JUDICIAL HISTORY 1. Trial Division (1994),44 A.C.W.S. (3d) 908 The trial judge held that although the accidents were not solely responsible for the disc herniation, they did playa minor causative role and thus awarded 25 percent ofassessed damages including past wage loss, future wage loss, non-pecuniary damages and special damages. There was a finding of fact that, on the balance of probabilities, the accidents contributed in some degree to the disc herniation. The judgment was problematic as the finding on a balance of probabilities that there was a causal link between the accidents and the herniated disc directly contradicted the ultimate finding that the causal link was established at 25 percent, which would not satisfy the burden ofproofrequired on an all or nothing balance of probabilities civil standard. 5 The defendants were represented by the same insurer, so all parties proceeded as though there was a single accident without apportioning fault as between the two accidents.

7 -3-2. Court of Appeal [1995] B.C,J. No. 666 Mr. Athey appealed and claimed that 100 percent ofhis damages should be awarded, following the material contribution test of causation, based on the finding of fact that the negligence of the respondents was a cause ofthe herniation. The Appeal was dismissed outright. 3. Supreme Court of Canada The court ruled unanimously that Mr. Athey was entitled to full recovery based on the finding offact at the trial level that there was a causal link between the accidents and the disc herniation. The issues under consideration were whether the Court of Appeal erred in: (a) Failing to hold that the trial judge's apportionment of causation was a reversible error; and (b) Limiting the scope of judicial review by not considering a theory of liability advanced by the appellant (the material contribution test). These issues directly raised a further question for the court, namely whether the loss could be apportioned between tortious (the accidents) and non-tortious (prior backtrouble) causes where both were necessary to create the injury. The Supreme Court ofcanada ruled that the Court ofappeal and the Trial Judge had both erred and that the disc herniation was a single and indivisible injury - it could not be separated and apportioned. Necessarily, any defendant found to have negligently caused or contributed to the injury was in turn fully liable. This was not a break from traditional causation principles, but rather identified that once causation is established, liability is established and can only be reduced or increased at the assessment of damages stage. Previous conditions, post-negligence events, and future contingencies all influence this stage. This is especially important in the medical context as plaintiffs frequently have underlying conditions affecting future income earning potential and the status of their health.

8 -4- Nevertheless, Athey created discussion because, on its face, a man witha pre-existing back condition received 100% damages for a disc herniation. The decision was criticized as plaintiff-friendly, but several fact-specific findings led to this outcome and need to be placed in proper context. This will be discussed below as will some ofthe major challenges that courts have grappled with post-athey. III. PRINCIPLES OF CAUSATION First, it is useful to identify principles of causation that were expressly identified in Athey: (a) Causation is established when the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury (para.13); (b) The general, but not conclusive, test for causation is the but for test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant (para. 14); (c) The butfor test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant's negligence "materially contributed" to the occurrence ofthe injury and a contributing factor is material ifit falls outside the de minimus range (para. 15); (d) The causation test is not to be applied too rigidly. It need not be determined by scientific precision but is best determined by ordinary common sense. Although the burden ofproof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof (para. 16); (e) It is not necessary for the plaintiffto establish that the defendant's negligence was the sole cause ofthe injury. As long as the defendant is part ofthe cause ofthe injury, the defendant is liable, even though the act alone was not enough to create the injury (para. 17); (f) Apportionment between tortious causes is permitted (para. 22);

9 -5- (g) Apportionmentbetween non-tortious and tortious causes is notpermitted. A defendantdoes not escape liability merely because other causal factors for which he is not responsible also helped produce the harm (paras. 19 and 23); (h) Apportionment is not equivalent to separating distinct and divisible injuries (para. 24); (i) Hypothetical or future events need not be proven on the balance ofprobabilities but are given weight according to their relative likelihood and only if they are a real and substantial possibility and not mere speculation (para. 27); (j) Past events must be proven, and once proven are treated as certainties (para. 28); (k) Independent intervening events reduce damages on the basis that plaintiffs are to be returned to their original position but not one that is better (paras. 31 and 32); (1) Defendants must take victims as they are found (Thin Skull Doctrine) (para. 34); (m) Defendants are not responsible for injuries that would have occurred regardless of the tortious act or omission (Crumbling Skull Doctrine) (para. 35); (n) The Loss of Chance Doctrine is neither approved nor disapproved (para 38). IV. PRINCIPLES OF CAUSATION MEET ATHEY At its most basic, causation connects the tortious act in question and the loss or damage suffered. It requires an act or omission by the defendant that in turn causes the plaintiff's loss, entitling them to be put into the position they were pre-injury, but not one that is better. The principles ofcausation identified aboveworktoestablish whetherliabilitywill attach, buttheyare notwithoutcontroversy. A. THE TESTS 1. But For Test The general determinant of causation is the butfor test: but for the defendant's action, would the plaintiff have been injured? If the answer is yes, then causation is not established and the defendant's actions did not cause the harm suffered by the plaintiff as the damage would have occurred regardless. If the answer is no, then causation is established as the defendant's actions caused the harm suffered. This test first came to light in Newis v. Lark (1571),2 Plow. 403.

10 -6- The butfor test proceeds on the balance of probabilities, meaning that the plaintiff must establish that it is more probable than not that the defendant's tort was the cause of the injury. This is often referred to as the all or nothing standard, as the defendant is fully liable ifthe butfor test is met but escapes liability if it is not. 2. Material Contribution Test Defendants escaping liability under the butfortest caused courts pause and in turn they decided that the test does not work in all cases. An exception to its general application developed in response to cases where a butfor analysis unfairly relieved defendants from liability. The standard example is Cook v. Lewis [1951] S.c.R. 830 where application of the but for test would have relieved two individual tortfeasors from liability after they simultaneously shot at the plaintiff. Using the standard test, it could not be proven who was the shooter as the plaintiffonly suffered one bullet wound. The court held that both defendants must be found liable as both contributed to the tort and allowing both to go free would create too large an injustice. This has also been referred to as alternative liability. 3. Applying the Tests In the Athey decision, it remains unclear which test was applied by the court in order to arrive at a conclusion of causation. Commentators have argued that the material contribution test is not well enough defined and that a simple butfor analysis would have sufficed under the Athey fact scenario without muddying the waters. 6 The butfor test remains the standard in negligence actions, butthere exists confusion over when it is appropriate to break away from the standard analysis. Athey has been criticized for not explicitly stating when a butfor analysis will not suffice: "the butfor test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendants 'materially contributed' to the occurrence ofthe injury.,,7 Demeyere questions what 6 See Klimchuk & Black supra note 4 at para. 9 and Demeyere supra note 3 generally. 7Athey at para. 15.

11 -7- the circumstances are, what standard is set by the test, and how it differs from the but for test?8 Other commentators focus on the classification of one-cause tortious claims from multiple-cause tortious claims. 9 Commentators Klimchuk and Black offer five fact scenarios that identify when each test should be applied: (a) But For Test Suffices (i) Straightforward Cases: There is one defendant, one average skulled plaintiff, and no unusual background conditions. (ii) Combined Force Cases: There are two or more defendants, neither ofwhich individually could be a tortfeasor without the other. Each thus contributes to the state of affairs causing the plaintiffs suit. Klimchuk and Black offer Lambton v. Mellish [1894] 3 Ch.D. 163 as an illustrating case. Here two street vendors playing organs produced sufficient noise to base a suit in nuisance, but neither street vendor was the sole contributor. It was the combined effect that resulted in the claim and but for each vendor's playing, there would not have been a tort. A butfor analysis suffices in this type of situation. (iii) Tortiousand Non-tortious Causes Cases: There is an identifiable tortious cause as well as other non-tortious causes that may have contributed to the plaintiff's injury. So long as the defendant's act is a cause of the plaintiff's damage, it need not be proven that the defendant is the sole or predominant cause of the injury. Klimchuk and Black suggest Bonnington Castings [1956] AC. 613 (H.L.) (Bonnington) is the appropriate example to illustrate this category and criticize the ruling in Athey that this type ofscenario makes 8Demeyere supra note 3 uses Briglio v. Fauklner (1999),69 B.c.L.R. (3d) 122 as a case in which application of the material contribution test was used incorrectly on the basis of the Athey decision. 9 See generally Collier et al. supra note 2,

12 -8- the butfor test unworkable. In Bonnington, the defendant inhaled particles from operating a hammer and from swing grinders operating near him while at work in a foundry. Under statutory duty, the dust from the swing grinders was to have been removed, but the dilemma was how to prove whether the plaintiff's resulting pneumoconiosis was a result ofthe hammers or the swing grinders? The ruling indicated that contribution by the tortious cause was beyond a de minimus range and thus materially contributed to the plaintiff's injury. Klimchuk and Black argue that a straightforward application of the butfor test would have resulted in the same finding. Put another way, but for the operation of the swing grinders, the plaintiff would not have had sufficient exposure to particles to contract the injury. (b) Material Contribution Test Required (i) Multiple Sufficient Causes Cases: Here it cannot be shown whether or not the act or omission was the butfor cause of the plaintiffs injury but there is evidence that the act or omission contributed to the injury. Klimchuk and Black offer McGhee v. National Coal Board [1972] 3 All E.R.1008 (H.L.) [McGhee] as the illustrating case. Here McGhee laid brick and contracted dermatitis following exposure to dust from kilns. The likelihood of injury increased the longer the skin was in contact with the dust and the defendant employer did not provide showering facilities, which was the basis for the action. It was impossible to prove, however, whether McGhee would have contracted the disease regardless of the availability of showering facilities. There was potential for the employer to escape liability as a butfor analysis revealed only that but for the lack of showering facilities, the risk of injury still would have existed. Essentially the test was silent in terms of assigning liability. The court held that the employer's omission did materially contribute to the risk that the injury would be suffered even ifit did not prove

13 -9- (ii) material contribution to the injury. This case was for a time held to mean that the burden of proof was reversed in such situations and the defendant was then required to prove that the negligence was not a cause ofthe loss. Snell v. Farrell [1990] 2 S.c.R. 311 (Snell) halted the reversal ofthe burden ofproof, but did allow for a more flexible approach to causation rules - a more pragmatic and common-sense approach. Snell also identified that when the facts lie particularly within the knowledge ofthe defendant, little affirmative evidence is required and without evidence contradicting the causation, an inference of causal connection is warranted. This was affirmed in Athey. Independent and Parallel Tortious Conduct Cases: Here, each defendant's contribution is individually sufficient in order for the tort to occur. Klimchuk and Black suggest the case of Corey v. Havener 65 N.B. 69 (Mass. S.J.c. 1902) applies. The plaintiff was injured when his horse bolted after the defendant's passed on either side of him while riding motorcycles. Each defendant could escape liability by claiming that his contribution was not necessary in order for the injury to have occurred - it would have occurred anyway due to the other rider. As in McGhee, the butfor test proved limited in its application and provided a defence that allowed escape from liability. Cook v. Lewis, supra also falls into this category. In summation, Klimchuk and Black would reserve material contribution causation cases "for circumstances where the but for test is frustrated by the facts, but the defendant's actions clearly played an important causal role in producing the plaintiff's injury." 10 They also argue thatathey falls underthe thirdcategorywhere the analysis is between non-tortious and tortious causal factors and thus need not be within thematerialcontributiontest at all. Theysuggestthatthenon-tortiousfactors 10 Supra note 4 at para. 18.

14 -10- were the pre-existing back condition and the stretching exercises even though the Athey decision characterizes the stretching as the effect or injury and not the cause. 4. Medical Malpractice Cases Medical malpractice cases are a unique area in causation and are identified below as possible exceptions to the Crumbling Skull Doctrine. It is outside the scope ofthis paper to address fully the standards and specific rules thathave been bought into medical malpractice cases (specificallyfailure to warn and informed consent cases), but there are some basic principles that have been identified and shed light on the causation area. In Snell, it was identified that there are difficulties in proving causation for the medical malpractice patient. The physician is usually in a better position to know the cause ofthe injury than the patient and there was historically an argument that the burden of proof should thus be allocated to the defendant. This was not subsequently ultimately applied by the courts, but there was a definite recognition that proof need not be established to a scientific precision and that common sense interpretation of the facts would yield better results. In Walker Estate v. York Finch General Hospital [2001] 1 S.C.R. 647 (Walker Estate) the plaintiffs contracted HIV from tainted blood supplied by the Canadian Red Cross Society. The Court maintained that the appropriate test was whether the defendant's conduct materially contributed to the plaintiff's injury. In cases of negligent donor screening, it is difficult to prove what the donor might have done if he or she had been properly screened, making the butfor test unworkable. As commentators Browne and Dawe mention: "this case clarifies (somewhat) the application of the 'material contribution' test. Defense counsel might use Walker Estate as authority for the position that the 'material contribution' test is not merely a stop-gap measure whenever the plaintiff can not make out causation using the but for test. Rather the application for the material contribution test should be limited to narrow situations where the butfor test

15 -11- is simply not workable on the facts. In Walker Estate, the courtstated: 'the unique difficulties in causation make this area ofnegligence [donor screening] atypical.",ii B. PRE-EXISTING CONDITIONS: THE THIN SKULL AND CRUMBLING SKULL DOCTRINES Athey clearly affirmed the understanding that a defendant is required to take the plaintiffas they are found. In this instance, Mr. Athey had a twenty year history ofback trouble (his thin skull) and his original position going into the accidents included this reality. Necessarily, the defendants were liable for the full loss even though the back condition pre-existed. His pre-injury position included his existing back trouble. Often thought of as the exception to the Thin Skull Doctrine, the Crumbling Skull Doctrine recognizes that a tortfeasor is liable only for the damages caused by their tort and not for pre-existing conditions that would have manifested themselves anyway. Essentially, defendants are not required to over-compensate for that which would have occurred regardless ofthe tort and is outside the realm of their liability for damages. On the facts, there was no evidence that Mr. Athey would have been subject to a disc herniation simply because ofhis prior back pain. The disc herniation resulted from his involvement in the motor vehicle accidents. If there was evidence that he was likely to have herniated a disc at some point in the future, then the Crumbling Skull Doctrine would apply and limit the damages to that which directly followed the tort. In medical malpractice cases, some have suggested that the Crumbling Skull Doctrine should not apply as the "negligent treatment complained ofis a failure to act - as opposed to a positive negligent act. The point of the medical treatment sought is to alleviate that very 'crumbling skull' and application of the doctrine works as an injustice to the plaintiff.,,12 11 Peter N. Browne & Curtis Dawe, Biennial Review ofkey Developments (Key Rulings & Developments on Damages, Limitations, Standard ofcare and Causation): Athey v. Leonati: How to Effectively Deal With Thin Skulls, Crumbling Skulls andnumbskulls [paper] at 5 [Browne & Dawe]. 12 See generally Collier et.al supra note 2 at para. 20.

16 -12- c. STANDARDS OF PROOF: PAST EVENTS, FUTURE EVENTS, HYPOTHETICAL EVENTS The Court in Athey held that hypothetical events (such as how the plaintiff's life might have proceeded without the tortious injury) or future events need not be proven on a balance of probabilities but that past events must be proven to the civil standard and are then treated as certainties. In Athey, the disc herniation occurred prior to trial and was a past event which could not be addressed in terms of probabilities. In Rosvold v. Dunlop [2001] B.C.J. No.4 (C.A.) the court, applying Athey held: "the standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities. Possibilities and probabilities, chances, opportunities and risks must all be considered, so long as they are real and substantial possibility not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen.,,13 This discussion becomes important in the context ofincreasing or decreasing damage awards on the basis of relative likelihood and substantial possibility of occurrence for future and hypothetical events. As the Athey decision highlights: "had the trial judge concluded (which she did not) that there was some realistic chance that the disc herniation would have occurred at some point in the future without the accident, then a reduction of the overall damage award may have been considered... however, in the absence of such a finding, it remains speculative and need not be taken into consideration.,,14 As will be discussed below, many commentators question whether this was the appropriate finding on the facts. 13 Rosvold v. Dunlop supra at para Athey at para. 48.

17 -13- D. CONTINGENCIES Browne and Dawe point out that "determining tortious responsibility for the damage done, and assessing the ultimate responsibility for damages payable, although intertwined, often entail separate considerations ofcausal factors." 15 This is a requisite separation ofstages between assessing liability and assessing damages that courts sometimes overlap with confusing consequences for the jurisprudence. McInnes suggests that "if the evidence had established a 30% chance that Athey eventually would have suffered the same loss, even in the absence ofthe defendant's negligence, his damages would have been reduced accordingly" and cites Andrews v. Grand & Toy Alberts Ltd., [1978] 2 S.c.R. 229 at 253 (Andrews) as authority. He further suggests that "if the evidence had established a 30% chance that Athey's disability, caused by the defendant, would worsen in the future, his damages would have been increased accordingly" and cites Schrump v. Koot (1977),82 D.L.R. (3d) 553 (Ont. c.a.) as authority.16 Klimchuk and Black argue that a downward adjustment in damages was required in Athey in order to comply with the Supreme Court's ruling in Andrews where it was held that lost or future earnings damages should alsotakeinto accountcontingencies thatmayhave affectedfuture earnings (such as a bad back). This would not have affected the 100% causal liability of the defendants, it merely would have recognized that Athey did not have a good back to begin with and the defendants should not be responsible for a condition that may have affected him into the future. This is not to be confused with the causal analysis of the plaintiff under the Thin and Crumbling Skull Doctrines. 15 Browne & Dawe supra note 11 at McInnes supra note 1at para. 18.

18 -14- The decision in Athey declined imposition of a contingency deduction explicitly on the basis that a finding offuture disc herniation was too speculative on the facts, but the ruling is very fact-specific and does not preclude considering pre-existing conditions at both the causation and the damages stages. In Gardnerv. John [1997] O.J. No (Gen. Div.) the court required more extensive evidence that the subject injury materially contributed to the current injury given the pre-existing backinjury. In Athey, something more than "speculative" may have resulted in a decrease in damages and Andrews suggests that contingency deductions should consider future illness, not merely the chance that an identical injury would have been suffered by the plaintiff. "Although the principle that defendants must take victims as they find them benefits plaintiffs at the causation stage (by resulting in finding that the defendant caused a given injury, even though a plaintiffofaverage constitution might not have suffered any injury), at the damages assessment stage it benefits defendants.,,17 The Athey decision also mentions Graham v. Rourke (1990), 74 D.L.R. (4 th ) 1 (Ont. c.a.) (Graham) which identified that it is not appropriate to treat the plaintiff as thin skulled at the causation stage and then to not consider this same treatment at the damages stage as the result would be to treat the plaintiff as a normal healthy person when assessing future pecuniary loss. Klimchuk and Black argue that the Athey decision improperly applied this principal from Graham and also suggest that while the Athey decision was: "on firm ground in noting that on the question ofcausation, the causal status ofthe defendants' actions should be determined on an all or nothing (balance of probabilities) basis, that does not mean that once the causal hurdle is crossed and the damage assessment process begins, other causal candidates - here the pre-existing bad back and the health club incident - can no longer be relevant.,,18 They further go on to suggest that: 17 Klimchuk & Black supra note 4 at Klimchuk & Black supra note 4 at para. 29.

19 -15- "in Athey the defendants' actions were straightforward but for causes of the plaintiff's injury. The condition ofthe plaintiff's back, at the assessment ofliability stage, does not constitute a competing cause, but is instead one ofthe conditions that formed the context of the defendant's actions and shaped the contours of the consequences ofthose actions; this much is required by the Thin Skull Rule. On the other hand, as one of these conditions, the plaintiff's back is also an aspect of the original position to which the compensation principle requires the defendants to return the plaintiff. The plaintiff's literal or metaphorical thin skull gives no defence to liability, partial, or complete, but it can warrant a reduction in damages. The application of the but for causation test and adherence to well-accepted remedial principles would have resolved Athey more simply, more fairly and with a less confusing message for lower courts.,,19 A proper approach, in law, is evidenced by Chesherv. Monaghan (1999), Carswell Ont (April 12, 1999) (Ont. H.C.). Here the plaintiff suffered a knee injury while waterskiing and the physician at the hospital examined the leg, took x-rays and discharged the plaintiff. The following day, at a different hospital, surgery was ordered and the need for further vascular surgery was required due to a completely avulsed peroneal nerve and tear of the popliteal artery. Post surgery and after a long period ofhospitalization, the plaintiff's leg required amputation below the knee. A suit followed on the basis that negligence caused or contributed to the loss ofthe leg. It was held that damages were payable but they were reduced by 25 percent as this equated to the chance that the severity of the original trauma would have led to amputation anyway. E. INTERVENING CAUSES In Athey, it was held that the return to the exercise routine was not an intervening cause, but rather the product of the accidents and therefore not an independent intervening event. When the test for causation is met, then the loss must be compensated. The loss is the difference between the plaintiff's original position (including pre-existing conditions) and the position they are in following the tort. In between are intervening causes that may affect the plaintiff's final position, but once causation is established, and a defendant is found liable for the injury or contributed to the injury by 19 Ibid. at 30.

20 -16- negligence, then the defendant is 100% liable. Reduction ofthis liability only occurs outside ofthe causation analysis in remoteness or with contingency adjustments. This liability may also be spread among defendant's should they be non-severable. 1. Non-tortious Intervening Causes Even prior to Athey, it has always been understood that a subsequent non-tortious injury suffered by the plaintiff is a relevant fact and interrupts the chain of causation so as to end the defendant's liability for subsequent injuries occurring outside ofthe tortious act ofthe defendant. This follows basic tort principles that impose liability only for those acts actually caused by the defendant. 2. Tortious Intervening Causes Some confusion has followed the Athey decision on the basis of the holding that "the law does not excuse a defendant from liability merely because other factors for which he is not responsible also helped produce the harm... it is sufficient ifthe defendant's negligence was a cause ofthe harm.,,20 The principle applies when the injuries caused by a number offactors are indivisible as in the case of E.D.G. v. Hammer [2003] 2 S.C.R Alderson v. Alllaghan (1998),40 O.R. (3d) 136 (C.A.) interpreted Athey to mean that subsequent tortious events did not relieve the defendant from full responsibility. The case referred to the Negligence Act, but Collier et al. point out that the application ofthe Negligence Actis only appropriate where there are multiple tortfeasors, not where there are multiple tortious events. Non-apportionment between tortious and non-tortious causes is one of those confusing areas that have plagued Athey. As Browne and Dawe suggest "it is imperative for defence counsel to recognize the principle's narrow application and effectively distinguish between situations where the defendant 20 Athey at para. 19.

CAUSATION AND LOSSES. Professor Lewis N Klar, Q.C.

CAUSATION AND LOSSES. Professor Lewis N Klar, Q.C. CAUSATION AND LOSSES Professor Lewis N Klar, Q.C. (Based on Klar, Tort Law, 4 th ed at 457-466, and Klar Causation And Apportionment of Losses, Alberta Court of Queen s Bench Conference, November 14, 2008)

More information

FACT PATTERN ONE. The following facts are based on the case of Bedard v. Martyn [2009] A.J. No. 308

FACT PATTERN ONE. The following facts are based on the case of Bedard v. Martyn [2009] A.J. No. 308 FACT PATTERN ONE The following facts are based on the case of Bedard v. Martyn [2009] A.J. No. 308 The infant plaintiff developed a large blood clot in his brain at some time either before or during the

More information

LAW OF CAUSATION: A REVIEW AND THE AN UPDATE. By: LLP. N6A4G4 Phone: 519.640.6313. Presented in London on March 9, 2004. Andrew C. Murray.

LAW OF CAUSATION: A REVIEW AND THE AN UPDATE. By: LLP. N6A4G4 Phone: 519.640.6313. Presented in London on March 9, 2004. Andrew C. Murray. LAW OF CAUSATION: A REVIEW THE AN UPDATE AND at the Ontario Bar Association Conference Presented in London on March 9, 2004 held & Solicitors Barristers Box 2335 PO Andrew C. Murray By: LLP Lerners London

More information

Causation in Tort Since Resurfice: Overview

Causation in Tort Since Resurfice: Overview CAUSATION IN TORT AFTER RESURFICE PAPER 1.2 Causation in Tort Since Resurfice: Overview These materials were prepared by David Cheifetz of Bennett Best Burn, LLP, Vancouver, BC, for the Continuing Legal

More information

UPDATE ON CAUSATION. December 13, 2007

UPDATE ON CAUSATION. December 13, 2007 UPDATE ON CAUSATION December 13, 2007 Arthur R. Camporese Camporese Sullivan Di Gregorio Barristers and Solicitors 1700-One King Street West Hamilton, Ontario L8P 1A4 (905) 522-7068 (905) 522-5734 (Fax)

More information

CASE COMMENT. by Craig Gillespie and Bottom Line Research

CASE COMMENT. by Craig Gillespie and Bottom Line Research CASE COMMENT by Craig Gillespie and Bottom Line Research On June 29, 2012 the Supreme Court of Canada released Clements v. Clements, [2012] 7 W.W.R. 217, 2012 SCC 32, its latest in a series of judgements

More information

The Last Word on Causation From. the Supreme Court of Canada (Maybe?) Stephen R. Moore Blaney McMurtry LLP smoore@blaney.com

The Last Word on Causation From. the Supreme Court of Canada (Maybe?) Stephen R. Moore Blaney McMurtry LLP smoore@blaney.com The Last Word on Causation From the Supreme Court of Canada (Maybe?) Stephen R. Moore Blaney McMurtry LLP smoore@blaney.com The Last Word on Causation From the Supreme Court of Canada (Maybe?) Introduction

More information

But For Causation in Defective Drug and Toxic Exposure Cases: California s Form Jury Instruction CACI 430

But For Causation in Defective Drug and Toxic Exposure Cases: California s Form Jury Instruction CACI 430 But For Causation in Defective Drug and Toxic Exposure Cases: California s Form Jury Instruction CACI 430 By Matt Powers and Charles Lifland Since the California Supreme Court s 1991 decision in Mitchell

More information

Bar Vocational Course. Legal Research Task

Bar Vocational Course. Legal Research Task Bar Vocational Course Legal Research Task Below is an example of a 2,500 word legal research piece which is typical of the task required as part of the Bar Vocational Course. This particular piece is on

More information

HANKE V. RESURFICE CORP RECENT SUPREME COURT OF CANADA DEVELOPMENTS WITH RESPECT TO FORESEEABILITY AND CAUSATION

HANKE V. RESURFICE CORP RECENT SUPREME COURT OF CANADA DEVELOPMENTS WITH RESPECT TO FORESEEABILITY AND CAUSATION HANKE V. RESURFICE CORP RECENT SUPREME COURT OF CANADA DEVELOPMENTS WITH RESPECT TO FORESEEABILITY AND CAUSATION Introduction - The decision in Hanke v. Resurfice Corp ( Resurfice ) was released on the

More information

In an oft-applied passage, 2 Sopinka J. stated:

In an oft-applied passage, 2 Sopinka J. stated: AN OVERVIEW OF THE LAW OF CAUSATION by Craig Gillespie and Bottom Line Research & Communications 1 1 Introduction As counsel, we must frequently grapple with the law of causation, and apply it to our particular

More information

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 193/14

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 193/14 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 193/14 BEFORE: C. M. MacAdam : Vice-Chair J. Blogg : Member Representative of Employers A. Grande : Member Representative of Workers HEARING:

More information

Number: 93-1185 Date: August 19, 1993 Panel: Thomas Kemsley, Connie Munro, P. Michael O Brien Subject: Medical Malpractice Action (No.

Number: 93-1185 Date: August 19, 1993 Panel: Thomas Kemsley, Connie Munro, P. Michael O Brien Subject: Medical Malpractice Action (No. WORKERS COMPENSATION REPORTER Decision of the Appeal Division Number: 93-1185 Date: August 19, 1993 Panel: Thomas Kemsley, Connie Munro, P. Michael O Brien Subject: Medical Malpractice Action (No. 2) Introduction

More information

THE SUPREME COURT OF CANADA AND THE LAW OF CAUSATION

THE SUPREME COURT OF CANADA AND THE LAW OF CAUSATION THE SUPREME COURT OF CANADA AND THE LAW OF CAUSATION Stephen R. Moore Blaney McMurtry LLP 416.593.3950 smoore@blaney.com and Bianca Matrundola Blaney McMurtry LLP 416.597.4877 bmatrundola@blaney.com The

More information

S.116 Of The Courts of Justice Act Can Defendants Impose A Structured Settlement on the Plaintiff? Robert Roth

S.116 Of The Courts of Justice Act Can Defendants Impose A Structured Settlement on the Plaintiff? Robert Roth S.116 Of The Courts of Justice Act Can Defendants Impose A Structured Settlement on the Plaintiff? Robert Roth Historically, at common law, a plaintiff was not obliged to accept a structured settlement,

More information

This is the author s version of a work that was submitted/accepted for publication in the following source:

This is the author s version of a work that was submitted/accepted for publication in the following source: This is the author s version of a work that was submitted/accepted for publication in the following source: Stickley, Amanda P. (2012) Long term exposure to asbestos satisfies test for causation. Queensland

More information

Unintentional Torts - Definitions

Unintentional Torts - Definitions Unintentional Torts - Definitions Negligence The failure to exercise the degree of care that a reasonable person would exercise that results in the proximate cause of actual harm to an innocent person.

More information

LEXIS NEXIS WEBINAR 17.9.13 ASBESTOS UPDATE THE SHIFTING SANDS OF CAUSATION

LEXIS NEXIS WEBINAR 17.9.13 ASBESTOS UPDATE THE SHIFTING SANDS OF CAUSATION LEXIS NEXIS WEBINAR 17.9.13 ASBESTOS UPDATE THE SHIFTING SANDS OF CAUSATION INTRODUCTION: 1. The issue of causation has long been and continues to be a difficult one for industrial disease claims, and,

More information

UNDERSTANDING THE WORKERS COMPENSATION SYSTEM ADVANTAGES AND DISADVANTAGES

UNDERSTANDING THE WORKERS COMPENSATION SYSTEM ADVANTAGES AND DISADVANTAGES UNDERSTANDING THE WORKERS COMPENSATION SYSTEM ADVANTAGES AND DISADVANTAGES Presented By: Sonia Lanteigne and Michael McGovern Legal Counsel, WorkSafeNB October 8, 2015 TODAY S AGENDA History of workers

More information

Clinical Negligence Lecture by Terence Coghlan QC given on 20.7.10. Several, or Cumulative causes of injury: is the Def liable for all the injury

Clinical Negligence Lecture by Terence Coghlan QC given on 20.7.10. Several, or Cumulative causes of injury: is the Def liable for all the injury Clinical Negligence Lecture by Terence Coghlan QC given on 20.7.10 1 Several, or Cumulative causes of injury: is the Def liable for all the injury suffered, or only that caused by his negligence? (A canter

More information

2005-C -2496 CHARLES ALBERT AND DENISE ALBERT v. FARM BUREAU INSURANCE COMPANY, ET AL. (Parish of Lafayette)

2005-C -2496 CHARLES ALBERT AND DENISE ALBERT v. FARM BUREAU INSURANCE COMPANY, ET AL. (Parish of Lafayette) FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 0 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 17th day of October, 200, are as follows: PER CURIAM: 2005-C -249 CHARLES ALBERT AND

More information

Demystifying the Law of Causation: Resurfice Corp. v. Hanke* Causation is one of the essential elements in a plaintiff successfully establishing

Demystifying the Law of Causation: Resurfice Corp. v. Hanke* Causation is one of the essential elements in a plaintiff successfully establishing Demystifying the Law of Causation: Resurfice Corp. v. Hanke* Introduction Causation is one of the essential elements in a plaintiff successfully establishing negligence. However, trying to come to grips

More information

Defendant has a duty to act as a reasonable person would in like or similar circumstances to avoid causing unreasonable risk of harm to others.

Defendant has a duty to act as a reasonable person would in like or similar circumstances to avoid causing unreasonable risk of harm to others. NEGLIGENCE (Heavily Tested) (Write On the Bar): In order for Plaintiff to recover in Negligence, she or he must plead and prove: DUTY, BREACH OF DUTY, ACTUAL CAUSATION, PROXIMATE CAUSATION, AND DAMAGES.

More information

FIRE ON THE ICE: RECENT DEVELOPMENTS IN THE LAW OF NEGLIGENCE REGARDING CAUSATION

FIRE ON THE ICE: RECENT DEVELOPMENTS IN THE LAW OF NEGLIGENCE REGARDING CAUSATION Aaron L. Sherriff FIRE ON THE ICE: RECENT DEVELOPMENTS IN THE LAW OF NEGLIGENCE REGARDING CAUSATION 2 Aaron L. Sherriff TABLE OF CONTENTS I. THE CGL POLICY... 3 II. NEGLIGENCE... 3 III. MR. HANKE... 4

More information

A PRIMER REGARDING CONTRIBUTORY NEGLIGENCE

A PRIMER REGARDING CONTRIBUTORY NEGLIGENCE A PRIMER REGARDING CONTRIBUTORY NEGLIGENCE By Stuart Ross and Bottom Line Research & Communications 1 Introduction We all deal with allegations of contributory negligence in response to the claims of a

More information

February 20, 1978. You inquire concerning section 4 of 1977 House Bill 2490, an amendment. Dear Commissioner Bell:

February 20, 1978. You inquire concerning section 4 of 1977 House Bill 2490, an amendment. Dear Commissioner Bell: February 20, 1978 ATTORNEY GENERAL OPINION NO. 78-81 Mr. Fletcher Bell Commissioner of Insurance Kansas Insurance Department 1st Floor - State Office Building Topeka, Kansas 66612 Re: Motor Vehicles--Insurance--Rights

More information

REPORT TO THE ROYAL COMMISSION ON WORKERS COMPENSATION IN BRITISH COLUMBIA

REPORT TO THE ROYAL COMMISSION ON WORKERS COMPENSATION IN BRITISH COLUMBIA REPORT TO THE ROYAL COMMISSION ON WORKERS COMPENSATION IN BRITISH COLUMBIA Application of Legal Causation Principles Assessment of Permanent Partial Disability Pensions Deeming of Employment Opportunities

More information

CHAPTER 16 THIRD PARTY / OUT-OF-PROVINCE CLAIMS

CHAPTER 16 THIRD PARTY / OUT-OF-PROVINCE CLAIMS CHAPTER 16 THIRD PARTY / OUT-OF-PROVINCE CLAIMS #110.00 INTRODUCTION A worker who suffers injury or disease as a result of employment may be entitled to compensation from sources other than the Workers

More information

STATE OF MINNESOTA IN COURT OF APPEALS A13-1110. Faron L. Clark, Respondent, vs. Sheri Connor, et al., Defendants, Vydell Jones, Appellant.

STATE OF MINNESOTA IN COURT OF APPEALS A13-1110. Faron L. Clark, Respondent, vs. Sheri Connor, et al., Defendants, Vydell Jones, Appellant. STATE OF MINNESOTA IN COURT OF APPEALS A13-1110 Faron L. Clark, Respondent, vs. Sheri Connor, et al., Defendants, Vydell Jones, Appellant. Filed January 21, 2014 Affirmed Hooten, Judge Cass County District

More information

FEATURE ARTICLE Evidence of Prior Injury. Admissibility of Evidence of Prior Injury Under the Same Part of the Body Rule

FEATURE ARTICLE Evidence of Prior Injury. Admissibility of Evidence of Prior Injury Under the Same Part of the Body Rule FEATURE ARTICLE Evidence of Prior Injury Admissibility of Evidence of Prior Injury Under the Same Part of the Body Rule By: Timothy J. Harris Broderick, Steiger, Maisel & Zupancic, Chicago I. Introduction

More information

Alternative Burdens May Come With Alternative Causes

Alternative Burdens May Come With Alternative Causes Portfolio Media. Inc. 860 Broadway, 6th Floor New York, NY 10003 www.law360.com Phone: +1 646 783 7100 Fax: +1 646 783 7161 customerservice@law360.com Alternative Burdens May Come With Alternative Causes

More information

Negligence: Element III: Proximate Cause. Chapter 15

Negligence: Element III: Proximate Cause. Chapter 15 Negligence: Element III: Proximate Cause Chapter 15 Introduction Proximate Cause. 1) the causation question (cause in fact): Did the defendant cause the plaintiff s injury? 2) The policy question ( a cut-off

More information

Reed Armstrong Quarterly

Reed Armstrong Quarterly Reed Armstrong Quarterly January 2009 http://www.reedarmstrong.com/default.asp Contributors: William B. Starnes II Tori L. Cox IN THIS ISSUE: Joint and Several Liability The Fault of Settled Tortfeasors

More information

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT Filed 10/11/13 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT ED AGUILAR, Plaintiff and Respondent, v. B238853 (Los Angeles County

More information

Employer s Liability in a Practical Context

Employer s Liability in a Practical Context Contents Table of Statutes Table of Secondary Legislation Table of Cases Chapter 1: Employer s Liability in a Practical Context 1.1 Introduction 1.2 The parties to an employer s liability claim 1.3 An

More information

TORT AND INSURANCE LAW REPORTER. Informal Discovery Interviews Between Defense Attorneys and Plaintiff's Treating Physicians

TORT AND INSURANCE LAW REPORTER. Informal Discovery Interviews Between Defense Attorneys and Plaintiff's Treating Physicians This article originally appeared in The Colorado Lawyer, Vol. 25, No. 26, June 1996. by Jeffrey R. Pilkington TORT AND INSURANCE LAW REPORTER Informal Discovery Interviews Between Defense Attorneys and

More information

Chapter 4 Crimes (Review)

Chapter 4 Crimes (Review) Chapter 4 Crimes (Review) On a separate sheet of paper, write down the answer to the following Q s; if you do not know the answer, write down the Q. 1. What is a crime? 2. There are elements of a crime.

More information

CAUSATION, CONTRIBUTION AND CHANCE

CAUSATION, CONTRIBUTION AND CHANCE CAUSATION, CONTRIBUTION AND CHANCE Selena Plowden & John Snell, Guildhall Chambers 9 th June 2011 Causation the basic but for test Breach of duty is irrelevant if no harm caused. Burden of proof is on

More information

WELLINGTON CITY COUNCIL Appellant. COLIN JAMES DALLAS Respondent. French, Winkelmann and Asher JJ

WELLINGTON CITY COUNCIL Appellant. COLIN JAMES DALLAS Respondent. French, Winkelmann and Asher JJ IN THE COURT OF APPEAL OF NEW ZEALAND CA148/2014 [2015] NZCA 126 BETWEEN AND WELLINGTON CITY COUNCIL Appellant COLIN JAMES DALLAS Respondent Court: Counsel: French, Winkelmann and Asher JJ D J Heaney QC

More information

Five Easy Enough Pieces: The Nuts and Bolts of Factual Causation in Negligence after Clements

Five Easy Enough Pieces: The Nuts and Bolts of Factual Causation in Negligence after Clements TORTS 2013 PAPER 2.1 Five Easy Enough Pieces: The Nuts and Bolts of Factual Causation in Negligence after Clements These materials were prepared by David Cheifetz, Barrister, Vancouver, BC, for the Continuing

More information

NO. COA11-780 NORTH CAROLINA COURT OF APPEALS. Filed: 6 March 2012

NO. COA11-780 NORTH CAROLINA COURT OF APPEALS. Filed: 6 March 2012 NO. COA11-780 NORTH CAROLINA COURT OF APPEALS Filed: 6 March 2012 TIMOTHY ROSE, Employee, Plaintiff, v. North Carolina Industrial Commission I.C. No. 898062 N.C. DEPARTMENT OF CORRECTION, Employer, SELF-INSURED

More information

SUPREME COURT OF MISSOURI en banc

SUPREME COURT OF MISSOURI en banc SUPREME COURT OF MISSOURI en banc KENNETH SUNDERMEYER, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE FOR ELVA ELIZABETH SUNDERMEYER, DECEASED, Appellant, v. SC89318 SSM REGIONAL HEALTH SERVICES D/B/A VILLA

More information

(1) A person to whom damage to another is legally attributed is liable to compensate that damage.

(1) A person to whom damage to another is legally attributed is liable to compensate that damage. Principles of European Tort Law TITLE I. Basic Norm Chapter 1. Basic Norm Art. 1:101. Basic norm (1) A person to whom damage to another is legally attributed is liable to compensate that damage. (2) Damage

More information

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA IN THE COMMONWEALTH COURT OF PENNSYLVANIA Clyde Kennedy, : Petitioner : : v. : No. 1649 C.D. 2012 : Submitted: May 17, 2013 Workers Compensation Appeal : Board (Henry Modell & Co., Inc.), : Respondent

More information

Personal Injury Law: Minnesota Medical Malpractice

Personal Injury Law: Minnesota Medical Malpractice Personal Injury Law: Minnesota Medical Malpractice Medical Malpractice Terms Statutes of Limitations Minnesota Medical Malpractice Laws Medical malpractice includes many forms of liability producing conduct

More information

SMOOTHING THE ROUGH JUSTICE OF THE FAIRCHILD PRINCIPLE. (Published in (2006) 122(4) Law Quarterly Review 547-553)

SMOOTHING THE ROUGH JUSTICE OF THE FAIRCHILD PRINCIPLE. (Published in (2006) 122(4) Law Quarterly Review 547-553) SMOOTHING THE ROUGH JUSTICE OF THE FAIRCHILD PRINCIPLE (Published in (2006) 122(4) Law Quarterly Review 547-553) THE long-awaited decision of the House of Lords in Barker v Corus (UK) Plc. [2006] UKHL

More information

RE: 1562860 ONTARIO LTD. c.o.b. as SHOELESS JOE S Plaintiff v. INSURANCE PORTFOLIO INC. and CHRISTOPHER CONIGLIO. Defendants v.

RE: 1562860 ONTARIO LTD. c.o.b. as SHOELESS JOE S Plaintiff v. INSURANCE PORTFOLIO INC. and CHRISTOPHER CONIGLIO. Defendants v. COURT FILE NO.: 4022A/07 (Milton) DATE: 20090401 SUPERIOR COURT OF JUSTICE - ONTARIO RE: 1562860 ONTARIO LTD. c.o.b. as SHOELESS JOE S Plaintiff v. INSURANCE PORTFOLIO INC. and CHRISTOPHER CONIGLIO Defendants

More information

S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET #96-0089 OPINION

S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET #96-0089 OPINION RICHARD P. BELLANT, PLAINTIFF, 1998 OPINION #328 S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET #96-0089 STATE OF MICHIGAN, DEPARTMENT OF CORRECTIONS, SELF INSURED, DEFENDANT.

More information

No. 04-3753 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 427 F.3d 1048; 2005 U.S. App. LEXIS 22999

No. 04-3753 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 427 F.3d 1048; 2005 U.S. App. LEXIS 22999 RONALD WARRUM, in his capacity as Personal Representative of the Estate of JOSEPH F. SAYYAH, Deceased, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. No. 04-3753 UNITED STATES COURT

More information

IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL

IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL SARAVIA V. HORMEL FOODS NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED

More information

The Policy Insurance Law Section Council Illinois State Bar Association

The Policy Insurance Law Section Council Illinois State Bar Association The Policy Insurance Law Section Council Illinois State Bar Association Illinois Supreme Court Holds Insurer to Burden of Proving That Its Policy Limitation Applies: Two Deaths Are Not a Single Occurrence

More information

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS IN THE SUPREME COURT OF TEXAS 444444444444 NO. 11-0425 444444444444 PETROLEUM SOLUTIONS, INC., PETITIONER, v. BILL HEAD D/B/A BILL HEAD ENTERPRISES AND TITEFLEX CORPORATION, RESPONDENTS 4444444444444444444444444444444444444444444444444444

More information

Introduction Page to the Appellant s PDF Factum:

Introduction Page to the Appellant s PDF Factum: Introduction Page to the Appellant s PDF Factum: Note: When you bind your factum, all pages (except for the cover and index) starting with your chronology, should always be on the left-hand side. The righthand

More information

ASSEMBLY BILL No. 597

ASSEMBLY BILL No. 597 AMENDED IN ASSEMBLY APRIL 14, 2015 california legislature 2015 16 regular session ASSEMBLY BILL No. 597 Introduced by Assembly Member Cooley February 24, 2015 An act to amend Sections 36 and 877 of, and

More information

PERSONAL INJURY CLAIMS

PERSONAL INJURY CLAIMS PERSONAL INJURY CLAIMS Frequently Asked Questions 1. Can I make a claim? If you have been injured because of the fault of someone else, you can claim financial compensation through the courts. The dependants

More information

Assume that the following clause was included in the retainer agreement between SK Firm LLP and the Corporation (the Relieving Clause ):

Assume that the following clause was included in the retainer agreement between SK Firm LLP and the Corporation (the Relieving Clause ): ETHICAL SCENARIO #3 I. FACT PATTERN A Saskatchewan law firm ( SK Firm LLP ) acts on behalf of an out of province (e.g. national) corporation (the Corporation ). SK Firm LLP s role has been solely to file

More information

Submissions on Civil Liability Reform

Submissions on Civil Liability Reform Submissions on Civil Liability Reform The Coalition of British Columbia Businesses October 2002 Introduction: The following submissions are made on behalf of the Coalition of British Columbia Businesses.

More information

V o l u m e I I C h a p t e r 4. The Scope of Compensation Coverage in British Columbia: Determining Work-Relatedness

V o l u m e I I C h a p t e r 4. The Scope of Compensation Coverage in British Columbia: Determining Work-Relatedness V o l u m e I I C h a p t e r 4 The Scope of Compensation Coverage in British Columbia: Determining Work-Relatedness Contents Causal Connection between Employment and Injury, Death or Disease... 5 Current

More information

IN THE DISTRICT COURT OF WYANDOTTE COUNTY, KANSAS PLAINTIFF S PROPOSED JURY INSTRUCTIONS

IN THE DISTRICT COURT OF WYANDOTTE COUNTY, KANSAS PLAINTIFF S PROPOSED JURY INSTRUCTIONS IN THE DISTRICT COURT OF WYANDOTTE COUNTY, KANSAS KC Plaintiff ) ) Plaintiff, ) ) v. ) Case No.: 06 CV 1383 ) Defendant Doctor ) ) Defendant. ) PLAINTIFF S PROPOSED JURY INSTRUCTIONS Plaintiff submits

More information

2013 IL App (3d) 120130-U. Order filed September 23, 2013 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2013

2013 IL App (3d) 120130-U. Order filed September 23, 2013 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2013 NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). 2013 IL App (3d) 120130-U Order

More information

RECENT MEDICAL MALPRACTICE CASES By Judge Bryan C. Dixon 1. MERE TELEPHONE CONVERSATION WITH TREATING DOCTOR DOES NOT ESTABLISH DUTY TO PATIENT

RECENT MEDICAL MALPRACTICE CASES By Judge Bryan C. Dixon 1. MERE TELEPHONE CONVERSATION WITH TREATING DOCTOR DOES NOT ESTABLISH DUTY TO PATIENT RECENT MEDICAL MALPRACTICE CASES By Judge Bryan C. Dixon 1. MERE TELEPHONE CONVERSATION WITH TREATING DOCTOR DOES NOT ESTABLISH DUTY TO PATIENT Jennings v. Badgett, 2010 OK 7 Facts: Plaintiffs are parents

More information

BILL 198 AND THE THRESHOLD. L. Russell Hatch Blaney McMurtry LLP 416.593.3920 rhatch@blaney.com

BILL 198 AND THE THRESHOLD. L. Russell Hatch Blaney McMurtry LLP 416.593.3920 rhatch@blaney.com BILL 198 AND THE THRESHOLD L. Russell Hatch Blaney McMurtry LLP 416.593.3920 rhatch@blaney.com BILL 198 AND THE THRESHOLD In October 2003, the Ontario government passed Bill 198 as the successor to Bill

More information

Case Survey: Villines v. North Arkansas Regional Medical Center 2011 Ark. App. 506 UALR Law Review Published Online Only

Case Survey: Villines v. North Arkansas Regional Medical Center 2011 Ark. App. 506 UALR Law Review Published Online Only THE COURT OF APPEALS OF ARKANSAS HOLDS THAT SUMMARY JUDGMENT IS IMPROPER WHEN QUESTIONS OF MATERIAL FACT ARRISE IN MEDICAL MALPRACTICE ACTIONS In Villines v. North Arkansas Regional Medical Center, 1 the

More information

LOUISIANA PERSONAL INJURY ACCIDENT BASICS

LOUISIANA PERSONAL INJURY ACCIDENT BASICS LOUISIANA PERSONAL INJURY ACCIDENT BASICS The Concept of Negligence If you have been injured, only an experienced Louisiana personal injury accident attorney can evaluate the unique facts and circumstances

More information

5.50E PRE-EXISTING CONDITION INCREASED RISK/LOSS OF CHANCE PROXIMATE CAUSE (10/2014) NOTE TO JUDGE

5.50E PRE-EXISTING CONDITION INCREASED RISK/LOSS OF CHANCE PROXIMATE CAUSE (10/2014) NOTE TO JUDGE 5.50E PRE-EXISTING CONDITION INCREASED RISK/LOSS OF CHANCE PROXIMATE CAUSE (10/2014) NOTE TO JUDGE In a series of cases, including Fosgate v. Corona, 66 N.J. 268 (1974); Evers v. Dollinger, 95 N.J. 399

More information

APPORTIONMENT OF LIABILITY: UNIFORM APPORTIONMENT OF TORT RESPONSIBILITY ACT AS COMPARED TO RESTATEMENT THIRD, TORTS

APPORTIONMENT OF LIABILITY: UNIFORM APPORTIONMENT OF TORT RESPONSIBILITY ACT AS COMPARED TO RESTATEMENT THIRD, TORTS APPORTIONMENT OF LIABILITY: UNIFORM APPORTIONMENT OF TORT RESPONSIBILITY ACT AS COMPARED TO RESTATEMENT THIRD, TORTS Presented by: Douglas G. Houser Bullivant Houser Bailey, P.C. Portland, Oregon -2- Where

More information

TORT LAW SUMMARY LAWSKOOL UK

TORT LAW SUMMARY LAWSKOOL UK TORT LAW SUMMARY LAWSKOOL UK TABLE OF CONTENTS INTRODUCTION 5 DEFENCES 6 Consent (Or Volenti Non Fit Injuria) 6 Illegtality (or Ex Trupi Causa) 7 Contributory Negiligence 8 NEGLIGENCE 11 Duty of Care 11

More information

PROOF OF CAUSATION BY MATERIAL CONTRIBUTION BUT FOR BY ANOTHER NAME? the meaning and scope of 'a material contribution' to injury.

PROOF OF CAUSATION BY MATERIAL CONTRIBUTION BUT FOR BY ANOTHER NAME? the meaning and scope of 'a material contribution' to injury. PROOF OF CAUSATION BY MATERIAL CONTRIBUTION BUT FOR BY ANOTHER NAME? 1. In tort the onus is on a claimant to show that the defendant's wrongdoing caused him actual damage. In a claim for personal injury

More information

Illinois Supreme Court Requires Plaintiff to Apportion Settlements Among Successive Tortfeasors

Illinois Supreme Court Requires Plaintiff to Apportion Settlements Among Successive Tortfeasors Illinois Supreme Court Requires Plaintiff to Apportion Settlements Among Successive Tortfeasors By: Joseph B. Carini III & Catherine H. Reiter Cole, Grasso, Fencl & Skinner, Ltd. Illinois Courts have long

More information

IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE SUPREME COURT OF BRITISH COLUMBIA IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Between: And Toor v. Harding, 2013 BCSC 1202 Amrit Toor and Intech Engineering Ltd. Date: 20130705 Docket: S125365 Registry: Vancouver Plaintiffs Thomas

More information

A Litigator s View of the Special Employer Doctrine

A Litigator s View of the Special Employer Doctrine A Litigator s View of the Special Employer Doctrine By: Richard M. Williams, Esq. Published By: Employee Benefit Plan Review July 2013 INTRODUCTION It is a well-established principle of common law that

More information

v. Record No. 080751 OPINION BY JUSTICE BARBARA MILANO KEENAN June 4, 2009 LOUIS N. JOYNES, II, ET AL.

v. Record No. 080751 OPINION BY JUSTICE BARBARA MILANO KEENAN June 4, 2009 LOUIS N. JOYNES, II, ET AL. PRESENT: All the Justices LEO WILLIAMS v. Record No. 080751 OPINION BY JUSTICE BARBARA MILANO KEENAN June 4, 2009 LOUIS N. JOYNES, II, ET AL. FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Dean W. Sword,

More information

Professional Practice 544

Professional Practice 544 February 15, 2016 Professional Practice 544 Tort Law and Insurance Michael J. Hanahan Schiff Hardin LLP 233 S. Wacker, Ste. 6600 Chicago, IL 60606 312-258-5701 mhanahan@schiffhardin.com Schiff Hardin LLP.

More information

LITIGATION OF PRODUCTS LIABILITY CASES IN EXOTIC FORUMS - PUERTO RICO. Francisco J. Colón-Pagán 1

LITIGATION OF PRODUCTS LIABILITY CASES IN EXOTIC FORUMS - PUERTO RICO. Francisco J. Colón-Pagán 1 LITIGATION OF PRODUCTS LIABILITY CASES IN EXOTIC FORUMS - PUERTO RICO By Francisco J. Colón-Pagán 1 I. OVERVIEW OF PUERTO RICO LEGAL SYSTEM A. Three branches of government B. Judicial Branch 1. Supreme

More information

The Truth About CPLR Article 16

The Truth About CPLR Article 16 The DelliCarpini Law Firm Melville Law Center 877.917.9560 225 Old Country Road fax 631.923.1079 Melville, NY 11747 www.dellicarpinilaw.com John M. DelliCarpini Christopher J. DelliCarpini (admitted in

More information

JAMES MILLER STRESS - EMPLOYERS BEHAVING BADLY? SEPTEMBER 2002

JAMES MILLER STRESS - EMPLOYERS BEHAVING BADLY? SEPTEMBER 2002 JAMES MILLER STRESS - EMPLOYERS BEHAVING BADLY? SEPTEMBER 2002 Reynolds Porter Chamberlain Chichester House 278-282 High Holborn London WC1V 7HA Direct Tel: 020 7306 3517 Fax: 020 7242 1431 Direct Email:

More information

CAUSATION IN MEDICAL NEGLIGENCE CASES

CAUSATION IN MEDICAL NEGLIGENCE CASES CAUSATION IN MEDICAL NEGLIGENCE CASES A paper written by C.E. Hinkson, Q.C. and M.G. Thomas of Harper Grey LLP for the Trial Lawyers Association of British Columbia CAUSATION IN MEDICAL NEGLIGENCE CASES

More information

SUPREME COURT OF LOUISIANA

SUPREME COURT OF LOUISIANA SUPREME COURT OF LOUISIANA No. 98-C-1403 WILLIS THOMAS Versus TOWN OF ARNAUDVILLE PER CURIAM* This is a workers compensation case. The workers compensation judge found plaintiff failed to establish a work-related

More information

Executive summary and overview of the national report for Denmark

Executive summary and overview of the national report for Denmark Executive summary and overview of the national report for Denmark Section I Summary of findings There is no special legislation concerning damages for breach of EC or national competition law in Denmark,

More information

Hale Timeline. Bushes blocking sidewalk. Looks into street. Decides to leave sidewalk. Trips over concrete

Hale Timeline. Bushes blocking sidewalk. Looks into street. Decides to leave sidewalk. Trips over concrete Hale Timeline Bushes blocking sidewalk Looks into street Decides to leave sidewalk Trips over concrete Salinetro Timeline MD no ask if pregnant/when last period Terminates pregnancy/fetus dead X-rays Hypo

More information

Province of Alberta LIMITATIONS ACT. Revised Statutes of Alberta 2000 Chapter L-12. Current as of December 17, 2014. Office Consolidation

Province of Alberta LIMITATIONS ACT. Revised Statutes of Alberta 2000 Chapter L-12. Current as of December 17, 2014. Office Consolidation Province of Alberta LIMITATIONS ACT Revised Statutes of Alberta 2000 Current as of December 17, 2014 Office Consolidation Published by Alberta Queen s Printer Alberta Queen s Printer 5 th Floor, Park Plaza

More information

WORKERS COMPENSATION SUBROGATION AND THIRD PARTY SETTLEMENTS. B. Industrial Revolution and Workers Compensation Statutes

WORKERS COMPENSATION SUBROGATION AND THIRD PARTY SETTLEMENTS. B. Industrial Revolution and Workers Compensation Statutes I. HISTORICAL BACKGROUND A. Common Law WORKERS COMPENSATION SUBROGATION AND THIRD PARTY SETTLEMENTS Before the advent of workers compensation statutes, the only protection afforded to victims of work place

More information

IN THE MATTER OF the Insurance Act, R.S.O. 1990, c.i.8, as amended, and Ontario Regulation 668.

IN THE MATTER OF the Insurance Act, R.S.O. 1990, c.i.8, as amended, and Ontario Regulation 668. IN THE MATTER OF the Insurance Act, R.S.O. 1990, c.i.8, as amended, and Ontario Regulation 668. AND IN THE MATTER OF the Arbitration Act, S.O. 1991, c.17 AND IN THE MATTER OF AN ARBITRATION BETWEEN: STATE

More information

Common Myths About Personal Injury and Wrongful Death Cases 1. By B. Keith Williams

Common Myths About Personal Injury and Wrongful Death Cases 1. By B. Keith Williams Common Myths About Personal Injury and Wrongful Death Cases 1 By B. Keith Williams There are several myths about accident cases and the attorneys that handle them. It is important to keep these myths in

More information

2015 IL App (1st) 141985-U. No. 1-14-1985 IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

2015 IL App (1st) 141985-U. No. 1-14-1985 IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT 2015 IL App (1st) 141985-U No. 1-14-1985 NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

More information

CASE EXAMPLES CONTRACTUAL INDEMNITIES & OBLIGATIONS TO INSURE

CASE EXAMPLES CONTRACTUAL INDEMNITIES & OBLIGATIONS TO INSURE CASE EXAMPLES CONTRACTUAL INDEMNITIES & OBLIGATIONS TO INSURE NSW Arabian Horse Association Inc v Olympic Coordination Authority [2005] NSWCA 210 New South Wales Court of Appeal, 23 June 2005 Facts The

More information

SUPREME COURT OF NOVA SCOTIA Citation: Webber v. Boutilier, 2016 NSSC 5

SUPREME COURT OF NOVA SCOTIA Citation: Webber v. Boutilier, 2016 NSSC 5 SUPREME COURT OF NOVA SCOTIA Citation: Webber v. Boutilier, 2016 NSSC 5 Date: 20160105 Docket: Hfx No. 241129 Registry: Halifax Between: Cindy June Webber v. Plaintiff Arthur Boutilier and Dartmouth Central

More information

More than you bargained for -

More than you bargained for - More than you bargained for - The effect of British Columbia s Universal Automobile Insurance on American, and other out-of-province, Insurance Policies 1. INTRODUCTION When motorists venture into the

More information

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS Filed 5/5/15 Jensen v. Krauss CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

More information

The Supreme Court of Canada and the Law of Causation Revisited Again

The Supreme Court of Canada and the Law of Causation Revisited Again The Supreme Court of Canada and the Law of Causation Revisited Again Kerry Nash and Stephen Moore With Additional Comments by Roderick Winsor Blaney McMurtry LLP The Supreme Court of Canada and the Law

More information

DISCUSSION PAPER. At issue is how treatment injuries should be characterized. Specifically, is a treatment injury compensable because it:

DISCUSSION PAPER. At issue is how treatment injuries should be characterized. Specifically, is a treatment injury compensable because it: DISCUSSION PAPER 1. TITLE Status of Treatment Injuries 2. ISSUE For the purposes of this discussion paper, a treatment injury is a subsequent injury that arises as a direct consequence of treatment for

More information

Understanding How Termination and Severance Pay will be Offset Against Disability Benefits**

Understanding How Termination and Severance Pay will be Offset Against Disability Benefits** August 2013 Labour & Employment Law Section Understanding How Termination and Severance Pay will be Offset Against Disability Benefits** Hugh R. Scher and Caroline Schulz The relationship between disability

More information

Administering Medical Only Claims: Confusing Guidance Offered by Commonwealth Court in Orenich and Brutico

Administering Medical Only Claims: Confusing Guidance Offered by Commonwealth Court in Orenich and Brutico Administering Medical Only Claims: Confusing Guidance Offered by Commonwealth Court in Orenich and Brutico By: Andrew E. Greenberg, Esquire 1 The Pennsylvania Self-Insurers Association As reported in the

More information

IN THE COURT OF APPEALS OF INDIANA

IN THE COURT OF APPEALS OF INDIANA FOR PUBLICATION ATTORNEYS FOR APPELLANT: DAVID L. TAYLOR THOMAS R. HALEY III Jennings Taylor Wheeler & Haley P.C. Carmel, Indiana ATTORNEY FOR APPELLEES: DOUGLAS D. SMALL Foley & Small South Bend, Indiana

More information

Chapter 7 Tort Law and Product Liability

Chapter 7 Tort Law and Product Liability Chapter 7 Tort Law and Product Liability Chapter Outline 1. Introduction 2. The Basis of Tort Law 3. Intentional Torts 4. Negligence 5. Cyber Torts: Defamation Online 6. Strict Liability 7. Product Liability

More information

CAR ACCIDENT GUIDE TABLE OF CONTENTS

CAR ACCIDENT GUIDE TABLE OF CONTENTS CAR ACCIDENT GUIDE TABLE OF CONTENTS Page Introduction... 1 First Step... 1 Finding and Hiring a Lawyer... 1 Financial Arrangements... 2 Your Claim... 3 Documenting Your Claim... 5 Parties to the Claim...

More information

STATE OF MICHIGAN COURT OF APPEALS

STATE OF MICHIGAN COURT OF APPEALS STATE OF MICHIGAN COURT OF APPEALS TROY COSMETIC CENTER MARKETING, L.L.C., RENAISSANCE AMBULATORY CENTER, and DR. AENEAS GUINEY, UNPUBLISHED June 1, 2006 Plaintiffs-Appellants, v No. 266909 Oakland Circuit

More information

CAUSATION UNDER THE CLA

CAUSATION UNDER THE CLA CAUSATION UNDER THE CLA Causation under the Civil Liability Act Introduction Over the years the courts have toyed with the concept of causation, and how it should be determined. Following the Ipp report

More information