Abstract
The authors consider the application of the ‘but for’ test for causation in complex multiple tortfeasor cases, and argue that to the extent the test appears unworkable, the problem is not the test but its overly strict, granular application. The ‘but for’ test is intended as a helpful proxy or a convenient tool to detect whether there is a relationship between the tortious acts of a wrongdoer and the injuries of the victim sufficient to justify compensation. When applied to multiple tortfeasors on a one-by-one basis, however, it can instead become an unduly restrictive, technical requirement that frustrates the underlying goals of negligence law. The authors explore the history and purpose of the law of causation in Canadian tort law, as well as scenarios where the ‘but for’ test appears to break down because of the ‘circular causation’ problem, then propose that the ‘but for’ test be applied in a ‘robust and pragmatic’ manner to negligent conduct, rather than individual defendants. Applying the ‘but for’ test in this manner, the authors submit, would ensure a connection between defendants’ wrongful acts and the injuries for which the plaintiff seeks recovery sufficient to justify compensation, without creating an opportunity for defendants to escape liability by pointing the finger at other tortfeasors.
MacKenzie, Brooke and Wood, Alexi, Common-Sense Causation: How a Robust and Pragmatic Application of the ‘But For’ Test Can Solve the Circular Causation Problem in Cases of Multiple Contributing Tortfeasors (August 7, 2018). Forthcoming in Annual Review of Civil Litigation, 2018 (Todd L Archibald and Randall Scott Echlin, eds) (co-authored with Alexi Wood).
First posted 2018-08-22 05:48:48
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