Vancouver Injury Lawyer
For a wrongdoer to be liable for negligence, the negligent act must have caused your injury. Sometimes that’s very clear. The defendant’s car rear-ends your vehicle and you suffer a neck injury as a result; it’s obvious that the defendant’s negligence caused your whiplash. Other times it’s less apparent. Often, there is more than one potential cause of the injury.
Two Supreme Court of Canada cases have tried to clarify this complicated area of law.
In one, Ralph Hanke was badly burned when he mistakenly placed the water hose into the gas tank of the ice surfacing machine he was operating at an ice rink. When hot water overfilled the gas tank, vapourized gas was released into the air, causing an explosion and fire. Ralph sued the maker and distributor of the machine, claiming the similar-looking water and gas tanks were placed close together and it was easy to confuse the two.
The Supreme Court of Canada said that the main test of causation is the “but for” test. You have to show that the injury would not have happened “but for” the negligent act or omission of the defendant. This test is intended to ensure that you only receive compensation where a “substantial connection” exists between the defendant’s conduct and your injury. So a defendant won’t be liable if your injury may be “due to other factors not connected to the defendant and not the fault of anyone.”
The court ultimately dismissed Ralph’s lawsuit, using the “but for” test of causation. If Ralph hadn’t put the water hose into the gas tank, the explosion wouldn’t have occurred. Ralph knew which tank was which, and his own unfortunate carelessness caused his injuries, not design defects of the ice machine.
In the second case, the Supreme Court of Canada confirmed that a defendant’s negligent act doesn’t have to be the only cause of your injury, so long as it’s a material contributing factor.
Jon Athey was a 43-year old autobody repairman and bodyshop manager with minor back problems. He was involved in two motor vehicle accidents two months apart that left him with a stiff back and neck. Some months later, he went to a gym on his doctor’s advice, where he injured his lower back during warm-up exercises. He had to be hospitalized for three weeks for disc herniation surgery. While he recovered reasonably well, he couldn’t return to his former job, and had to get another physically easier position.
At trial, the BC Supreme Court decided that the two accidents only played a minor role in causing Jon’s disc herniation, and it fixed the causation factor at 25% – reducing Jon’s compensation to 25% of what he would otherwise receive.
But the Supreme Court of Canada disagreed: a defendant’s wrongful act doesn’t have to be the sole cause of the injury for that defendant to be fully liable. In this case, there was one indivisible injury – the disc herniation. Any defendant who negligently caused or contributed to it was fully liable. The accidents were a “necessary ingredient” in bringing about Jon’s disc herniation, and he recovered full compensation of $221,516.
If you’re injured as a result of another person’s wrongful or negligent act, your lawyer can advise you.
Janice Mucalov, LL.B. for Gertsoyg & Company. This column provides information only and must not be relied on for legal advice. Please call Gertsoyg & Company at (604) 602-3066 for a free legal consultation concerning your particular case.