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Canadian Supreme Court on torts

Our friend Moin Yahya of the University of Alberta calls to our attention the case of Resurfice Corp. v. Hanke, decided Feb. 8, which reversed an appeals court and upheld an Alberta trial judge's dismissal of a case in which the operator of an ice-resurfacing machine sued the machine's manufacturer over an accident that followed the overfilling of its gas tank with hot water, causing an explosion. Excerpt (citations omitted):

While the Court of Appeal would have preferred a different approach to foreseeability, no error of law or palpable and overriding error of fact or mixed fact and law has been established in the trial judge�s approach or conclusion on this issue. There was evidence supporting his finding that H was not confused by the two tanks, notably H�s own admission, and the seriousness of H�s injury and the relative financial positions of the parties were not matters relevant to foreseeability.

With respect to causation, the trial judge did not need to engage in a contributory negligence analysis because he found, not only that H�s carelessness was responsible for his injuries, but also that the alleged design defects were not responsible for these injuries. Further, the Court of Appeal erred in holding that the trial judge should have applied the �material contribution� test to determine causation. The basic test remains the �but for� test. This test 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. The �material contribution� test only applies in exceptional cases where factors outside of the plaintiff�s control make it impossible for the plaintiff to prove that the defendant�s negligence caused the plaintiff�s injury using the �but for� test, and the plaintiff�s injury falls within the ambit of the risk created by the defendant�s breach of his duty of care owed to the plaintiff.

Prof. Yahya writes: "This case is significant because it is part of a continuing set of cases that have scaled back liability (after an earlier decade of expansion). Earlier, as Walter had noted on Overlawyered, they rejected social host liability for alcohol served at a party that resulted in an accident."



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.