Halifax Personal Injury Lawyer Blog

"What Caused My Injury?"

A defendant is only responsible for compensating a plaintiff for injuries caused by the defendant’s negligent conduct. Proving what injuries were, or were not, caused by the defendant’s conduct is often the biggest battle in many personal injury trials. See for example, Causation in Personal Injury Claims.

There has been some legal debate as to how the Supreme Court of Canada’s decisions in Athey v Leonati and the more recent decision of Resurfice Corp v. Hanke relate to one another.

Clarification

Last week the British Columbia Court of Appeal released a decision that helps clarify the application of these two landmark decisions on the law of causation.

In Farrant v. Laktin the plaintiff was injured in a car collision in 2004. Mr. Farrant had pre-existing issues with spinal degeneration which were symptomatic at the time of the car crash. After the collision his symptoms deteriorated.

At trial, the court rejected the plaintiff’s arguments that his ongoing pain was due to the car crash. However, the British Columbia Court of Appeal found that the trial judge did not apply the proper legal test for causation and ordered a new trial.

The Court of Appeal provided the following summary of the law of causation which is helpful reading for any personal injury lawyer (or plaintiff with a pre-existing condition or injury):

[8] To justify compensation for his disabling pain, the plaintiff must establish a causal connection between the defendant’s negligence and that pain.

[9] The general test for causation, established in Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17, is the “but for” test: “but for” the accident, would the plaintiff have suffered the disabling pain? In Athey, the Court also stated that a plaintiff need not establish that the defendant’s negligence was the sole cause of the injury. If there are other potential non-tortious causes, such as the plaintiff’s spinal degeneration in this case, the defendant will still be found liable if the plaintiff can prove the accident caused or materially contributed to the disabling pain, beyond the de minimus range.

[10] In Resurfice Corp. v. Hanke, 2007 SCC 7, 1 S.C.R. 333, the Supreme Court affirmed the “but for” test remains the basic test for determining causation, but developed the concept of “material contribution” in a different manner than that used in Athey, formulating a “material contribution” test as an exception to the “but for” test, a matter that is not relevant to this appeal. The Court replaced the Athey definition of “material contribution” to the plaintiff’s injury with the concept of “a substantial connection” between the injury and the defendant’s conduct. These developments were usefully summarized by Mr. Justice Smith, writing for the majority, in Sam v. Wilson, 2007 BCCA 622 at para. 109:

“Material contribution”, as that phrase was used in Athey v. Leonati, is synonymous with “substantial connection”, as that phrase was used by McLachlin C.J.C. above in Resurfice Corp. v. Hanke. This causal yardstick should not be confused with the “material contribution test”. As McLachlin C.J.C. explained in Resurfice Corp. v. Hanke, at paras. 24 - 29, the “material contribution test” applies as an exception to the “but for” test of causation when it is impossible for the plaintiff to prove that the defendant’s negligent conduct caused the plaintiff’s injury using the “but for” test, where it is clear that the defendant breached a duty of care owed the plaintiff thereby exposing the plaintiff to an unreasonable risk of injury, and where the plaintiff’s injury falls within the ambit of the risk. …

[11] Thus, in applying the “but for” test, the trial judge was required to consider not just whether the defendant’s conduct was the sole cause of the plaintiff’s disabling pain, but also whether the plaintiff had established a substantial connection between the accident and that pain, beyond the de minimus level.

Want More Information?

I have been representing victims of serious personal injuries for more than 20 years. I wrote Crash Course:The Consumers Guide to Car Accident Claims in Nova Scotia to help educate car accident victims and their familes so they have a better chance of receiving full and fair compensation.

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The Ontario Court of Appeal recently released its reasons in Degennaro v. Oakville Trafalgar Memorial Hospital. The Court of Appeal confirmed a $3 million compensation award for chronic pain stemming from a slip and fall injury.

As far as I can tell, the decision is the largest compensatory damage award from chronic pain in Canada.

Diane Degennaro was visiting her son who was a patient at the Oakville Trafalgar Memorial Hospital. A nurse at the hospital offered Ms. Degennaro a bed to sleep in while she was staying with her son. When Ms. Degennaro sat on the bed it collapsed and she fractured her sacrum (the pointed bone at the base of the spine).

As a result of the injury, Ms. Degennaro developed fibromyalgia and suffered serious chronic pain.

The trial judge awarded compensatory damages totaling more than $3 million.

Chronic pain cases are notoriously difficult to win. When the plaintiff is successful the damage awards are rarely of the magnitude seen in the Degennaro case.

Congratulations are due to Ms. Degennaro and to her trial counsel, Alfred Kwinter and her appellant counsel Paul Pape.

Expert evidence forms the core of any personal injury claim. In almost every personal injury case the plaintiff must provide scientific evidence, usually if the form of testimony from teatingg doctors and other health care providers about issues surrounding causation of the plaintiff’s injuries.

Personal injury claims often boil don to a so-called "battle of the experts" and the judge or jury is forced to decide which evidence they feel is more reliable or reasonable.

Interpreting Scientific Evidence Challenging

Recently Justice Thomas Cromwell of the Supreme Court of Canada delivered the Macfadyen Lecture on “The Challenges of Scientific Evidence”.

One of the topics Justice Cromwell discussed was the role of the trial judge as a “gate keeper” to ensure the accuracy of the expert evidence presented to the court.

Justice Cromwell specifically expressed concern about the lack of expert impartiality.

“One area of concern has been the lack of objectivity and independence of experts. For example, the Goudge Report noted that Dr. Smith failed to understand his duty of impartiality. He testified that he has received no training or instruction in this regard. Indeed he thought his role was to advocate for the Crown and to “make a case look good”.”

Defence Medical Exams: Hired Guns?

Justice Cromwell’s concerns are well founded. Our court rules allows for so-called "Independent Medical Examinations". Any time a plaintiff puts his or her physical well being at issue, the defendant is entitled to require the plaintiff to be examined by a medical expert (or experts) of the defendant’s choice.

I prefer to call these exams Defence Medical Examinations. While these defence experts are supposed to be impartial, it is clear that some defence experts see it as their job to minimize a plaintiff’s claim.

Case in point is the recent decision of Leslie v. S & B Apartment Holding Limited.

In that case, the plaintiffs suffered serious burns after a fire in their apartment building. They claimed the landlord was negligent in not having appropriate smoke detection and alarm systems in place in the building. The plaintiffs claimed to have suffered from post traumatic stress as a result of their injuries.

The defendant hired a psychiatrist by the name of Dr. Ruben who disputed that the plaintiffs suffered from post traumatic stress disorder as a result of the fire.

The plaintiffs’ treating psychiatrist used criteria established by the American Psychiatric Association documented in the Diagnostic and Statistical Manual of Mental Disorders (DSM).

Defence Expert Makes Up His Own Tests

On the other hand, the defendant’s expert, Dr. Ruben, testified that he did not use the DSM criteria. He testified that he made up his own tests to determine Global Assessment of Functioning when diagnosing patients.

Justice Scaravelli pointed out his concerns with the defence expert’s approach when he stated at paragraph 91 of his decision:

“I find that Ms. Leslie’s preexisting psychological condition was exacerbated by the accident and that she subsequently developed PTSD. As treating psychiatrist, I accept Dr. Fraser’s evidence that Ms. Leslie’s condition was improving prior to the fire. This was the result of prescribed medications and lifestyle changes on her part. In diagnosing PTSD, Dr. Fraser’s GAF score was based on DSM criteria adopted by the American Psychiatric Association. In doing so Dr. Fraser identified symptoms that arose post fire. On the other hand there is no evidence that Dr. Ruben’s own method of determining GAF has been tested or accepted in the field of psychiatry.”

It is reassuring to see the court protecting the interest of plaintiffs and rejecting the evidence of defence experts who simply make up their own tests in order to justify an opinion that is clearly not impartial.

Free Report

I have prepared a report that I provide to all my clients who have to undergo a Defence medical Exam to help them prepare. It's called "Ten Tips to Surviving Your Defence Medical Exam". If you would like a copy, contact me and I will email it to you free of charge.

Pre-Existing Injuries

It is rare that a person injured in a car accident, medical malpractice claim, or some other accident doesn't have some pre-existing health problems or conditions that may - or may not - play a part in the injuries that are the subject of litigation.

What Caused the Injuries?

A defendant will not be found liable (responsible) for a plaintiff's injuries unless the plaintiff can prove that the defendant actually caused an injury to the plaintiff.

So defendant lawyers spend a great deal of time investigating whether the plaintiff ever had any pre-existing injuries or health problems that may be the cause of the plaintiff's injuries.

"But For" Rule

The Supreme Court of Canada, in a case called Resurfice Corp. V. Hanke ruled that the appropriate test for the court to use when determining causation is the "but for" test. In other words, "but for" the defendants actions, would the plaintiff have been injured.

Like many rules, a number of exceptions have developed as various courts have considered the myriad different circumstances that can arise in complicated personal injury claims.

Justice Coady of the Supreme Court of Nova Scotia recently provided some clarity in his reasoning in Kremer v. Walker.

In his decision Justice Coady stated:

CAUSATION:

[22] The issue of causation in this action is complicated by a number of factors. Those factors include (1) various ongoing health problems, (2) pre-existing injuries from the 1990 truck accident, (3) the effects of long term obesity on Mr. Kremer’s body, (4) the second motor vehicle accident in 2007 and (5) the lack of professional medical evidence and (6) Mr. Kremer’s credibility.

[23] It is well established that a plaintiff bears the burden of establishing causation. In this case Mr. Kremer must satisfy the court that the July 21, 2007-accident caused injury. He must do so on a balance of probabilities.

[24] In Resurfice Corp. V. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7 the Supreme Court of Canada ruled that the “but for” test is the appropriate test for causation. McLaughlin, J. stated at paragraphs 20 through 25:

20 Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases.

21 First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.

22 This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para.14, per Major J., “[t]he 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.” Similarly, as I noted in Blackwater v. Plint, at para.78, “[t]he rules of causation consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities.”

23 The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p.327, per Sopinka J.

24 However, in special circumstances, the law has recognized exceptions to the basic “but for” test, and applied a “material contribution” test. Broadly speaking, the cases in which the “material contribution” test is properly applied involve two requirements.

25 First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a “but for” approach.

[25] The Supreme Court commented on this decision in Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5 (CanLII), 2010 SCC 5 at paragraph 93:

I agree with the Court of Appeal that the trial judge applied the wrong legal test for causation. When he wrote his reasons in 2004, the trial judge did not have the advantage of this court’s judgment in Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7. That decision clarified the law of causation, holding that absent special circumstances, the plaintiff must establish on the balance of probabilities that the injury would not have occurred but for the negligence of the defendant: Hanke, at paras. 21-22; Athey v. Leonati, 1996 CanLII 183 (S.C.C.), [1996] 3 S.C.R. 458 at para.14.

[26] The “exceptional circumstances” approach was commented on at paragraph 95 of the Fullowka decision:

The appellants submit in the alternative that this case falls into the class of exceptional situations discussed in Hanke in which the test for causation should be relaxed to the “material contribution” standard. I cannot accept this submission. As Hanke made clear, the sorts of special situations for which the material contribution test is reserved generally have two characteristics. First, it is impossible for the plaintiff to prove that the defendant’s negligence caused the injury under the “but for” test, and second, it is clear that the defendant breached a duty of care owed to the plaintiff and thereby exposed the plaintiff to an unreasonable risk of injury of the type which the plaintiff ultimately suffered: Hanke, at para. 25.

[27] For these reasons this plaintiff must discharge his onus using the “but for” test. This case does not attract either exception.