Documentation:Torts/Causation in fact

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Causation in fact

Factual causation is the fourth of five elements of the tort of negligence. Once a plaintiff has proven that the defendant owed them a duty of care, that the duty was breached, and that they suffered damage, they must prove "that the damage was caused, in fact..., by the defendant’s breach."[1] As per the Supreme Court of Canada in Snell v. Farrel, "[c]ausation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former."[2]

The but-for test is the presumptive test for causation in the common law.[3] However, in some cases where the but-for test is not suitable, exceptional causation rules may be applied instead.[3][4]

But-for cause of damage

More about causation
To read more about causation, see this entry on causation in the Legal Theory Lexicon, which is cited throughout this page.[5]

The but-for test is the default causation test.[3] In Clements v. Clements, the Supreme Court of Canada explained the test for causation:

As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.[6]

This "test must be applied in a robust common sense fashion."[7]

"[T]he plaintiff must prove on a balance of probabilities that, but for the tortious conduct of the defendant, the plaintiff would not have sustained the injury complained of."[8] This means that "negligence was necessary to bring about the injury—in other words that the injury would not have occurred without the defendant’s negligence."[9]

The but-for test employs counterfactual reasoning, which means "'what-if' thinking".[5] For example, in Barnett v. Chelsea & Kensington Hospital, the defendant hospital was found not liable for the death of the poisoned plaintiff who had sought treatment, as their actions had not caused the death.[10] The court found that, despite a nurse and doctor refusing the deceased hospital admission, this did not cause the death because, even if the deceased had been admitted and treated, on a balance of probabilities he would not reasonably have been diagnosed with arsenic poisoning and treated in time to save his life.[10] Even but for the hospital's carelessness in turning away the deceased, he still would have died.

Problems with but-for causation

Too narrow

One problem with the but-for test is that it may be too narrow or under-inclusive and fail to capture cases where it seems there should be liability in negligence. This is the idea of overdetermination. Professor Lawrence Solum provides an example:

Suppose that Alice was a member of a firing squad, and that at the exact same moment that Alice’s bullet passed through Ben’s heart, another Bullet, fired by Cynthia, passed through Ben’s cerebral cortex and that this would have resulted in Ben’s death, even if Alice’s had not fired or her bullet had missed.[5]

Causation simplified with Richard Halpern
In this episode of Butter Torts, A Truly Canadian Legal Podcast, guest Richard Halpern talks about legal test for causation and how it applies in "challenging factual scenarios".[11]

Neither Alice nor Cynthia could be considered the but-for cause of Ben's death, as "[i]f Alice had not fired, Cynthia’s shot would have killed Ben" and vice versa.[5] However, "we would not be likely to say that neither Alice nor Cynthia’s shot was the cause."[5] So, in this case, though it seems that both Alice and Cynthia should be found liable, the but-for test would fail to capture this conduct.

This type of scenario presented a problem in Cook v. Lewis.[12] In Cook v. Lewis, the plaintiff was shot while hunting, but, because the defendants had both fired in his direction, it was unclear who had shot him.[12] At trial, although the jury found that the plaintiff was shot by one of the defendants, they could not say which one, so they found that on a balance of probabilities his injuries were not caused by either individual defendants' negligence.[13] Both the British Columbia Court of Appeal and the Supreme Court of Canada considered this finding to be "perverse".[14] This further illustrates the problem with the but-for test, as without knowing who actually shot the plaintiff, but-for causation cannot be established, even though it seems clear that there should not be an absence of liability.

Too wide

But-for causation has the potential to be over-inclusive and capture conduct that would broadly not be considered worthy of liability.

Professor Solum provides an example of the impact of coincidence:

Suppose the driver of a trolley is speeding. As a result the trolley is in just wrong place and time and a tree falls, injuring a passenger. If trolley had gone just a little faster or just a little slower, the tree would have missed the trolley and the injury would not have occurred. Given these circumstances, speeding was a but-for cause...of the tree injuring the passenger.[5]

In a similar vein, the but-for test has the potential to capture entirely unrelated conduct. For example, in Donoghue v. Stevenson, one could argue that but-for Donoghue's friend buying the ginger beer, Donoghue would not have been ill, suggesting that the friend would fulfil the test for causation in fact of Mrs Donoghue's illness.[15] One could similarly argue that but-for the driver who transported Donoghue to the cafe she would not have fallen ill, or but-for the inventor of ginger beer should would not have been sick. Of course, these examples are of no real cause for concern since causation is not the sole element of negligence liability: Donoghue's friend, her driver, and the inventor of ginger beer were not careless in relation to Donoghue and so not negligent causes of her illness.

Exceptional causation rules

Though the but-for test is the presumptive causation rule, in exceptional cases the courts may apply different causation rules, such as considering whether the defendant's conduct materially contributed to risk of injury or whether it caused the plaintiff to lose a chance at avoiding damage.[16][4]

Material contribution to risk of injury

In Clements v. Clements, the Supreme Court of Canada held that "[e]xceptionally ... a plaintiff may be able to recover on the basis of 'material contribution to risk of injury'".[16] This approach "removes the requirement of 'but for' causation and substitutes proof of material contribution to risk."[17]

The Court conceptualized this approach not as a test of causation in itself; "rather it is a policy-driven rule of law designed to permit plaintiffs to recover in such cases despite their failure to prove causation. In such cases, plaintiffs are permitted to 'jump the evidentiary gap'".[18]

This alternative to but-for causation is strictly construed. It "is only available in the rarest of circumstances."[19] It "only applies where it is impossible to say that a particular defendant’s negligent act in fact caused the injury."[20] To date, the test has not been successfully employed in Canada.

Requirements to use material contribution to risk of injury[6]
1. Plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss
2. Plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone
Loss of chance for practitioners
This podcast featuring Emma-Louise Fenelon, Sarah Lambert KC, and Dominic Ruck Keene discusses "what practitioners need to know when they encounter loss of chance cases."[21]

Loss of chance

The loss of chance doctrine "suggests that plaintiffs may be compensated where their only loss is the loss of a chance at a favourable opportunity or of a chance of avoiding a detrimental event." The doctrine "is the subject of considerable controversy". [22] The doctrine originated in contract law, namely the pioneering case of Chaplin v. Hicks[23] and incrementally expanded into causation considerations in tort law.[24]

This exceptional causation rule "is used to determine causation and assess damages in cases where the claimant has lost the opportunity to pursue a course of action, which they contend would have been pursued and had a “chance” of achieving some (usually monetary) benefit", such as in "'lost litigation' cases".[4]

Per the Ontario Court of Appeal in Jarbeau v. McLean, "[w]here a plaintiff can only establish that but for the solicitor’s negligence he or she lost a chance to avoid a loss, a claim for breach of contract may permit recovery for the value of that chance."[25]

Criteria to recover damages for lost chance in an action for breach of contract[26]
1. The plaintiff must establish on the balance of probabilities that but for the defendant’s wrongful conduct, the plaintiff had a chance to obtain a benefit or avoid a loss.
2. The plaintiff must show that the chance lost was sufficiently real and significant to rise above mere speculation.
3. The plaintiff must demonstrate that the outcome, that is, whether the plaintiff would have avoided the loss or made the gain, depended on someone or something other than the plaintiff himself or herself.
4. The plaintiff must show that the lost chance had some practical value.

Discussion questions

Causation in Australian tort law
In the Australian podcast Law of Torts, host Kim Bailey discusses causation and the Civil Liability Act.[27]

  • How can the problems with the but-for test be addressed? Does the test for negligence as a whole present any solutions?
  • Do you think that it is appropriate for courts to use alternatives to but-for causation? Why or why not?

Quiz


  1. ↑ Mustapha v. Culligan, 2008 SCC 27 (§17.1.3) at para 3.
  2. ↑ Snell v. Farrell, 1990 CanLII 70 (SCC) (§16.1) at para 27.
  3. ↑ 3.0 3.1 3.2 Suen, Ching (14 September 2019). "Material Contribution: Bridging the Evidentiary Gap". LSE Law Review Blog. (§16.2).
  4. ↑ 4.0 4.1 4.2 Burnett, Gill (6 April 2020). "The Doctrine of Loss of Chance: Recent Developments". DAC Beachcroft. (§16.3).
  5. ↑ 5.0 5.1 5.2 5.3 5.4 5.5 Solum, L (27 June 2021). "Legal Theory Lexicon 020: Causation". Legal Theory Lexicon.
  6. ↑ 6.0 6.1 Clements v. Clements, 2012 SCC 32 (§16.2.2) at para 46.
  7. ↑ Clements v. Clements, 2012 SCC 32 (§16.2.2) at para 9.
  8. ↑ Snell v. Farrell, 1990 CanLII 70 (SCC) (§16.1) at para 15.
  9. ↑ Clements v. Clements, 2012 SCC 32 (§16.2.2) at para 8.
  10. ↑ 10.0 10.1 Barnett v. Chelsea & Kensington Hospital, [1968] 2 WLR 422 (§16.1.4).
  11. ↑ Agnew, Brenda; Marin, Jan (3 September 2021). "Causation Simplified with Richard Halpern". Butter Torts: A Truly Canadian Legal Podcast.
  12. ↑ 12.0 12.1 Cook v. Lewis, 1951 CanLII 26 (SCC).
  13. ↑ Cook v. Lewis, 1951 CanLII 26 (SCC) at 837.
  14. ↑ Cook v. Lewis, 1951 CanLII 26 (SCC) at 837–838.
  15. ↑ Donoghue v. Stevenson, [1932] UKHL 100 (BAILII) (§13.1).
  16. ↑ 16.0 16.1 Clements v. Clements, 2012 SCC 32 (§16.2.2) at para 13.
  17. ↑ Clements v. Clements, 2012 SCC 32 (§16.2.2) at para 14.
  18. ↑ Clements v. Clements, 2012 SCC 32 (§16.2.2) at para 14 citing MacDonald v. Goertz, 2009 BCCA 358 at para 17.
  19. ↑ Krushelnitzky, Ryan; Gibson, Peter (31 July 2012). "Material Contribution: The "Unicorn" of Canadian Law". Canadian Underwriter.
  20. ↑ Clements v. Clements, 2012 SCC 32 (§16.2.2) at para 15.
  21. ↑ Law Pod UK (28 November 2021). "Loss of Chance with Sarah Lambert QC and Dominic Ruck Keene". Audio Boom.
  22. ↑ Athey v. Leonati, 1996 CanLII 183 (SCC) (§16.3.1) at 37–38.
  23. ↑ Chaplin v. Hicks, (1911) 2 KB 786.
  24. ↑ Wei, Jeremy Liang Shi; Low, Kee Yang (July 2014). "Recognising Lost Chances in Tort Law". Singapore Journal of Legal Studies: 98.
  25. ↑ Jarbeau v. McLean, 2017 ONCA 115 (§16.2.2) at para 28.
  26. ↑ Jarbeau v. McLean, 2017 ONCA 115 (§16.2.2) at para 26, citing Folland v. Reardon, 2005 CanLII 1403 (ONCA).
  27. ↑ Bailey, Kim (1 Sep 2021). "Topic 7 - Causation". LAW114 - Law of Torts – via TuneIn.
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