Resurfice Corp v Hanke: SCC Places Limits on Material Contribution Test

When reading cases, I often make snap judgments about what should be the right result before going through the relevant legal analysis (I suspect there are others who do the same). In tort actions, such gut instincts frequently nudge me towards principles of distributive rather than corrective justice. I would rather see a sympathetic and seriously injured plaintiff compensated than give the benefit of the doubt to a negligent defendant simply because circumstances do not allow strict proof of causation or because the chain of events is too remote.

However, the starting point is always the negligence of the defendant. No matter how serious the injury, it is impossible to justify ordering financial compensation to be paid by a party that has acted in a reasonable manner. This is even more so when the plaintiff was the author of his own misfortune. Hence, my gut reaction to the McDonald’s coffee case from the U.S. was one of nausea. In that case, the plaintiff suffered third-degree burns when she spilled coffee on herself at a drive-through and was initially awarded $2.9 million by the jury because the defendant had served coffee that was “too hot” (the decision was appealed and ultimately settled for less than $600,000).

Last week, the SCC released its judgment in Resurfice Corp v Hanke, 2007 SCC 7 [Resurfice]. The torts claim arose out of a freak accident that occurred when the plaintiff mistakenly placed hot water into the gasoline tank of an ice resurfacing machine, causing an explosion when vaporized gasoline ignited from an overhead heater. The plaintiff’s claim was that the manufacturer, Resurfice Corp., was negligent in designing the machine so that the gasoline tank was placed too close to the water tank.

The Alberta Court of Appeal had ordered that the case be sent back for another trial on the basis that the trial judge had erred in his analysis of forseeability and causation (see 2005 ABCA 383). In a short, 30-paragraph decision, the SCC unanimously overturned the Alberta Court of Appeal order and restored the trial judgment dismissing the action.

Foreseeability

The SCC upheld the trial judge’s finding that it was not reasonably foreseeable that a machine operator would confuse the gasoline and water tanks, partially relying on the fact that the plaintiff himself admitted that he knew the difference between the two. Further, the SCC agreed with the trial judge that it was not reasonably foreseeable that this confusion would lead to a fire or explosion.

Further, the SCC rejected the attempt by the Court of Appeal to introduce policy considerations into the negligence analysis: “[f]oreseeability depends on what a reasonable person would anticipate, not on the seriousness of the plaintiff’s injuries (as in this case) or the depth of the defendant’s pockets.” Normally, such distributive justice considerations may influence decisions but remain cloaked within the rhetoric of legal analysis used to justify the result. The Court of Appeal inexplicably brought these factors out into the open as reasons for overturning the trial judge’s decision. As the SCC notes, it is difficult to see how such factors would be relevant in determining negligence.

Causation

A more interesting aspect of the case is the issue of causation. The Court of Appeal had held that the trial judge had erred by using the “but for” test and should instead have used the “material contribution” test. The “but for” test is the standard test used in proving causation in a torts claim and asks: but for the defendant’s negligence, would the plaintiff have suffered the injuries claimed? However, caselaw has developed to account for situations when the “but for” test is unworkable, particularly where multiple independent causes may bring about a single harm or where causation depends on speculation of independent third party actors.

For example, in Walker Estate v York Finch General Hospital, [2001] 1 SCR 647, a patient received HIV infected blood when the hospital failed to properly inform a potential donor of the risks of HIV transmission. It was impossible to prove, on a “but for” basis, that the donor would not have donated blood if the hospital had provided this warning. However, the court relaxed the standard so that the hospital’s actions, which materially contributed to the chain of events leading to the plaintiff’s infection, were sufficient to attract liability.

In Resurfice, the Court of Appeal thought this “material contribution” test should be applied whenever there was more than one potential cause of an injury. However, the SCC noted that such an approach would do away with the “but for” test because “there is more than one potential cause in virtually all litigated cases of negligence.”

Instead, the SCC upheld the primacy of the “but for” test as the general rule for proving causation except in special circumstances:

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 an 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.

It is clear that the “material contribution” exception, under the test clarified by the SCC here, did not apply to the facts of this case. There were no intervening external factors or scientific difficulties that created barriers in proving causation on a “but for” basis. It was incumbent upon the plaintiff to testify and call evidence to convince the court, on a balance of probability, that the plaintiff would not have mistaken gasoline tank for the water tank but for the negligent design of the machine. The only sense in which the “but for” test was unworkable in this case was that the plaintiff could not prove that he had actually been confused by the tanks because he had admitted otherwise.

Since the introduction of the “material contribution” test, there has been some uncertainty as to when it is available or what it exactly means. In Resurfice, the SCC takes an important step in providing guidance on the use of this test, limiting it to exceptional situations. Personally, I feel this decision strikes a proper balance between corrective and distributive justice concerns. At least that is my gut reaction.