McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee
This test is sometimes used by the common law, but never by civil law.
The reasonable foreseeability test:
This is of course used in common law. It has a minor role in civil law.
The adequate causation theory: This is the favourite test in France and Quebec.
It tries to isolate the factors which, in a normal course of affairs, are of a nature to cause the injury.
It looks at the idea of normality: Does this kind of injury normally flow from this kind of action?
While reasonable foreseeability is subjective, seeing things from the defendant’s point of view, adequate causation is objective.
Causa proxima: the event closest in time to the injury. Neither system uses this.
If you can determine cause by ordinary common sense, there is no need to refer to these theories.
These theories have little impact on the way courts actually assess causation: It is usually pragmatic, common sense, based on the judge’s discretion.
To start, the common law uses the but-for test.
If this doesn’t work, it tries the reasonable foreseeability test.
If this doesn’t work, it uses the “material contribution” (“more than trivial”) test.
In Alphacell v. Woodward (1972), Lord Salmond said one should use ordinary common sense rather than abstract metaphysical theories.
The Impact of the Burden and Standard of Proof
The burden of proof: Whoever institutes an action must prove her case (actori incumbit probatio)
This is the first rule of evidence in civil law (a.2803), and it’s a common law rule too.
The standard of proof: The existence of causation must be more probable than its non-existence (>50%). (a.2804)
Taken together, this means that if the chances of causation are exactly 50-50, the plaintiff loses.
St-Jean v. Mercier, 2002 SCC 15. (CB1p520)
St-Jean was hitchhiking when he was hit by a car and severely injured. When he was brought to hospital, Dr. Mercier didn’t know he had spinal cord injuries and didn’t immobilize him. He suffered spastic paralysis in his legs. St-Jean argued that this was due to lack of immobilization; Mercier argued that this was due to the impact of the accident itself.
Should there be a presumption of causation in favour of St-Jean?
Gonthier J. described presumption of causation as a tool of evidence, and discussed various situations in which they are relevant. However, he said that the only time the burden of proof of causation should be reversed is in Cook v. Lewis-type situations, where the defendants’ own wrongdoing prevented the plaintiff from establishing causation, so both defendants can be held solidarily liable. He said that the creation of a risk was not sufficient to create a presumption of causation.
The plaintiff had gone to law school in the meantime, and pleaded this case himself! (And he lost. )
Although this was a civil law case, the Alberta Court of Appeal recently held it to be binding in Alberta. Therefore it could lead to a rejection of the “creation of risk” argument in Common law.