We don’t analyze it in trial of the chance that P’s decision would have been different, we just ask whether P has proved the decision would have been different. P can prove this by showing the misstatement Kripps – was material to P’s decision a kind of material – contribution approach because making P prove it is impractical. Reasoning P’s disc would not have herniated, but for the accidents (caused by Ds’ – negligence) having weakened his already weak back. If the disc herniation would likely have occurred at the same time, without the injuries sustained in the accident, then causation is not proven. If it was necessary to have both the accidents and the pre-existing back condition for the herniation to occur, then causation is proven, since the herniation would not have occurred but for the accidents. Even if the accidents played a minor role, D would be fully liable because the accidents were still a necessary contributing cause. If the accidents could have been a sufficient cause, and the pre-existing back condition alone could have been a sufficient cause, then it is unclear which was the cause-in-fact of the disc herniation. The judge must determine, on a balance of probabilities, whether D’s negligence materially contributed to the injury. The findings of the judge indicate that it was necessary to have both the condition and the injuries from the accidents to cause the disc Although the accidents played a lesser role than the herniation in this case. problems, the accidents were nevertheless a necessary ingredient in bringing about the herniation (this contribution is assessed at 25%). This falls outside the de minimis range and is therefore a material contribution, sufficient to render D fully liable for the damages flowing from the disc herniation. Note This was a case of cumulative causation with a tortious cause and other, – causes. Nowlan v Brunswick Construction Ltee (1972)(NBCA) affd (1975)(SCC) Facts D contractor was negligent in constructing P’s house, which suffered – extensive rot due to leaks in the structure. D argued that no damage would have occurred, but for the architect’s poor design which had not provided for proper ventilation. Who won? Plaintiff (Nowlan) Holding Each tortfeasor/contract-breaker is jointly and severally liable for the – loss.
We don’t analyze it in of the chance that P’s decision would have been different, we just ask whether P has proved the decision would have been different. Kripps – P can prove this by showing the misstatement was material to P’s decision – a kind of material contribution approach because making P prove it is impractical. Reasoning – P’s disc would not have herniated, but for the accidents (caused by Ds’ negligence) having weakened his already weak back. If the disc herniation would likely have occurred at the same time, without the injuries sustained in the accident, then causation is not proven. If it was necessary to have both the accidents and the pre-existing back condition for the herniation to occur, then causation is proven, since the herniation would not have occurred but for the accidents. Even if the accidents played a minor role, D would be fully liable because the accidents were still a necessary contributing cause. If the accidents could have been a sufficient cause, and the pre-existing back condition alone could have been a sufficient cause, then it is unclear which was the cause-in-fact of the disc herniation. The trial judge must determine, on a balance of probabilities, whether D’s negligence materially contributed to the injury. The findings of the judge indicate that it was necessary to have both the condition and the injuries from the accidents to cause the disc herniation in this case. Although the accidents played a lesser role than the problems, the accidents were nevertheless a necessary ingredient in bringing about the herniation (this contribution is assessed at 25%). This falls outside the de minimis range and is therefore a material contribution, sufficient to render D fully liable for the damages flowing from the disc herniation. Note – This was a case of cumulative causation with a tortious cause and other, causes. Nowlan v Brunswick Construction Ltee (1972)(NBCA) affd (1975)(SCC) Facts – D contractor was negligent in constructing P’s house, which suffered extensive rot due to leaks in the structure. D argued that no damage would have occurred, but for the architect’s poor design which had not provided for proper ventilation. Who won? Plaintiff (Nowlan) Holding – Each tortfeasor/contract-breaker is jointly and severally liable for the loss.
Blom_Law_140_-_Torts_Fall_2013_Rachel_Lehman.docx