Sentences with phrase «factual causation»
"Factual causation" refers to the direct relationship between an action or event and its actual result. It means that a particular event or action was the direct cause of a certain outcome or consequence. In other words, it is establishing that if the action or event did not occur, the desired result would not have happened either. Full definition
Once upon a time, but not so long ago, Canadian tort law contained a test for proof of factual causation in tort known as the material contribution (to injury) test.
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That doctrine, whatever else it means, is NOT an alternative method for establishing factual causation on the balance of probability.
It states that the but - for test is the primary test for factual causation.
As some of you know, my particular (legal) research interest is factual causation in tort, particularly negligence.
In such a case, sure we can prove factual causation between your bullet and his head.
Our task [as lawyers] must be to understand factual causation as it actually is.
So if factual causation is not about proving that, but for the negligence, the injury would not be suffered, what is the practical use of the concept in negligence law?
Let's assume factual causation is what the trial judge had in mind in para 23.
He had found the plaintiff had established factual causation applying the but - for test.
After a two - week trial in a medical malpractice claim, the jury found cause - in - fact [factual causation] was established on the balance of probability.
In most cases, Canadian tort law requires a finding of factual causation on the balance of probability.
The but - for test is the only approved method of establishing factual causation on the balance of probability.
(At least so long as we're speaking just about factual causation, and not remoteness aka factual cause.)
Remoteness and standard of care have nothing to do with factual causation — cause in fact — whether some antecedent factor is or is not a cause of some consequence.
a most intriguing SCC contribution, albeit still confusing, application of the risk - based / factual causation problem.
Maybe it would be open on the evidence for the trier of fact to make that inference, but it wouldn't amount to a hill of beans, even a campfire's worth, unless the inference was of a necessary connection in which case «substantial» is meaningless, if the issue is factual causation which is clearly what's referred to in para. 10 of Clements.
And, it's at least plausible that some judges of the Supreme Court of Canada (even some in Ontario and elsewhere) might find the suggestion that Athey material contribution was never a separate test for proof of factual causation just a wee bit controversial.
I'm trying to gather anecdotal information as to whether the SCC decision in Resurfice v Hanke, 2007 SCC 7 and the «material contribution» doctrine mentioned in the case are helping plaintiffs get before - trial settlements — by using the Resurfice «material contribution» notion to get them past difficulties in proving factual causation using the «but - for» test — which are settlements that they might not have been able to get before Resurfice.
Whatever factual causation actually means in the «real» world outside of the cloisters of law — take my word for it, the situation is worse than implied in either the English or French versions of para. 20 in Resurfice — it can be reasonably said that most judges and juries somehow got and get to the correct decision on what caused what.
Some people, perhaps even some judges, at least those outside of British Columbia, might now find the suggestion that «materially contributed» contributed under Athey is sufficient for proof of factual causation under the balance of probability, if that's what the trial judge meant, controversial.
As I read it, this paragraph implies that the defendant somehow sought to use the evidence at the first trial, in the second trial, as evidence against factual causation, leading to a ruling from the judge that the evidence was not admissible because it was not relevant.
I'll provide what I think you'd accept as a precise answer to the question as you posed it, bearing in mind that I think your question is about legal responsibility, not merely factual causation.
But there are cases after Snell in which the SCC rejected the proposition that causation could be established even if the plaintiff could not show factual causation on the balance of probability: Arndt, Stewart v. Pettie, St. Jean v. Mercier.
So all of the cases decided between Athey in late 1996 and Resurfice in early 2007, where factual causation was decided on an Athey material contribution basis, were decided as they were as the result of the provincial trial and appellate court judges» misunderstanding of Athey?
I think you misread the reasons when you suggest that they indicate factual causation will be dealt with as material contribution.
[126] The «but for» test is the general test for factual causation: the plaintiff must prove on a balance of probabilities that but for the defendant's negligence, she would not have suffered her injuries.
The Athey material contribution test is now formally defunct as a method for establishing factual causation on the balance of probability in tort actions, even if the SCC did not expressly say that.
The judge was writing about factual causation.
Factual causation as short hand for proving but - for causation of the damage.
But, then, if factual causation in law is all about imposing responsibility, it's not so much conflating — because that implies error the way the term is usually used — as failing to adequately define the various steps involved in the process of imposing liability.
Those of you familiar with my first major article on factual causation in negligence will understand the Snark reference.
Whatever Athey material contribution meant before Resurfice (2007) and before Clements, it was (then) understood as an alternative method for establishing factual causation on the balance of probability.
There are BCCA decisions which suggest that where the parties have lead expert evidence on the issue of factual causation — certainly where both sides do, perhaps even where just one side «leads» the evidence, the robust and pragmatic approach can not be used.
In August 2009, a federal appeals court ruled with Union Carbide, claiming the victims lacked evidence of «factual causation.»
In causes of action based on negligence, «factual causation», what the trial judge was focusing on, is only one part of the causation requirement.
This requires proof of causation both in terms of actual, factual causation and proximate, or legal causation.
In order to do so, the plaintiff must present proof of causation both in terms of actual, factual causation and with regard to «proximate,» or legal, causation.
There's at least a half - dozen, maybe more, cases released since March 2007 in which the lawyers have argued about factual causation, and the judges have written reasons dealing with factual causation issues, not mentioning the SCC's decision in Resurfice v Hanke 2007 SCC 7 and clearly argued and decided based on the case law predating Resurfice.
I received, this morning, 3 packages which, when opened and emptied, yielded an about 14 ″ (about 35.56 cm) stack of offprints containing my recent too - long article «Factual Causation in Negligence After... [more]
We should not be looking for a heuristic model of factual causation that generates liability in accordance with our instinctive feelings, unconcerned whether the model is accurate or not.
[39] While he was likely also referring to the other part of the Snell mantra, which also quoted, that factual causation «essentially a practical question of fact which can best be answered by application of ordinary common sense» [40] there was no need for that principle given his findings of fact.