Two provincial courts rely on tort law professor’s research

Photo by Aimee Burtch

Professor Erik Knutsen wrote the paper, "Clarifying Causation in Tort," which was published in the Dalhousie Law Journal (Vol. 33, No. 1, p. 153, Spring 2010).

Professor Erik Knutsen has received the attention of both the British Columbia Court of Appeal and the Ontario Superior Court for his insightful view of causation, a key tort concept. His paper “Clarifying Causation in Tort” was extensively cited and relied upon by the BC Court in its judgment of the case Clements v. Clements (2010 BCCA 581), and again in the more recent Ontario judgment of Goodman v. Viljoen (2011 ONSC 821). In both cases, the judges refer to Knutsen’s clarification of when one type of causal analysis should be replaced with a test to establish the cause of a defendant’s injury.

Specifically, Knutsen distinguishes between the circumstances in which a “but-for” causal analysis is called for and when it should be replaced with a “material contribution” test, as first outlined in Hanke v. Resurfice Corp. (2007 SCR 7) in order to determine causation -- the relationship between the conduct of the accused and the resulting injury.

The “but-for” test asks the question: But for the defendant’s negligent behaviour, would the plaintiff have suffered some injury? This is contrasted against the “material contribution” test, under which the plaintiff must prove, on a balance of probabilities, that the defendant’s breach of the standard of care materially contributed to the plaintiff’s injury. Under either test, the end goal is the establishment of causation of the injury by the defendant.

The Clements  case centred on a motorcycle accident involving the plaintiff and her husband, the defendant, who was driving at the time of the crash. While the trial judge found the defendant driver was negligent in driving too fast on an overloaded motorcycle, he was not satisfied that, but for the excessive speed and overloading of weight, the motorcycle would have crashed in any event. In an attempt to determine the causation issue, he applied the material contribution test, asking: Did the plaintiff show that the defendant driver’s breach of the standard of care contribute to the plaintiff’s injury?

On appeal, the court found this was not an appropriate case for the use of material contribution analysis, and cited Knutsen’s paper in support of this decision. Justice Frankel wrote that “Professor Knutsen’s view, with which I agree, is that a judge can resort to the material contribution test in only two situations: what he refers to as ones involving circular causation (where it is impossible to prove which one of two or more possible tortious causes are the cause of the plaintiff’s harm) and dependency causation (where it is impossible for the plaintiff to prove if a third party would have taken some action in the face of a defendant’s negligence, and such action by a third party would have caused harm to the plaintiff). In all other cases, causation must be determined on the but-for test.”

He then emphasized Knutsen’s reminder that in the vast majority of cases, the but-for test is feasible, saying “There is generally nothing unfair about the fact that a plaintiff is unable to prove that the negligence of a particular defendant was a cause of his or her injuries.”

Knutsen says his paper was born “out of a desire to have a helpful tool for judges, lawyers and academics to talk about causation in a way that clears up a lot of questions, so we can at least have a discussion from some kind of common knowledge base. It is really nothing more than trying to clarify what is really happening in all these cases, so that people can at least have productive conversations about it.”

He first heard about the Clements citation from a former Queen’s Law student living in BC, who wrote to tell him he had come across Knutsen’s name in the judgment.  Knutsen says he was surprised that it was being referenced already, since the article had been released only in electronic form at that point. “I didn’t expect them to cite as much as they did, either; that was exciting.”

The Goodman  judgment also substantially references Knutsen’s article, finding that the case at hand did not meet the circular causation scenario set out in the paper and thus was not an appropriate forum for the material contribution test. However, while Knutsen is pleased his work is simplifying the conversation around this tricky issue, he says the courts have not yet touched on what he sees as the more important issue. “I was most interested in making some headway in delay-of-treatment cases, or evidentiary sufficiency cases.”

Delay-in-treatment cases involve injuries that occur as a result of a defendant medical practitioner’s failure to take timely action in treating an injury or illness; evidentiary insufficiency issues arise when outside forces remove the plaintiff’s ability to show strong evidence of causation. “Those to me are the real bug-bears that really could use some thinking about.”

When asked how he sees this paper helping to shape BC tort law in the future, Knutsen was humble but optimistic: “If, at the very least, you can have an intelligent conversation about causation, a discussion about the facts of the case and whether there is or isn’t causation in a way beyond what we were doing before, then I am happy. Before, nobody knew what was going on all the time. As an academic writer, you have to take a step back and think ‘How does this all fit together?’ I hope this paper at least clarifies the conversation.”