Library:
Supreme Court of Canada Considers “But For” Test
Published in the February 2007 issue of Litigation Notes - View Article
Mr. Hanke operated an ice- resurfacing machine for the City of Edmonton. One day, he was filling the machine’s water reservoir but mistakenly inserted the hose into the gas tank. The gas tank overfilled and vaporized gasoline escaped. It was ignited by an overhead heater causing an explosion and fire which badly burned Mr. Hanke. He sued the manufacturer and distributor of the machine, alleging design defects. His action was dismissed by the trial judge but restored by the Alberta Court of Appeal. The matter then went to the Supreme Court of Canada.
The appeal was based on two basic negligence concepts, foreseeability and causation. On the subject of foreseeability, the trial judge had found that it was not reasonably foreseeable that the operator of an ice resurfacing machine would mistake the gas tank and the water tank. His conclusion was based on the difference in size of the two tanks, as well as on Mr. Hanke’s own evidence to the effect that he knew which tank was which and was not confused between them.
The Court of Appeal criticized the trial judge for discounting the evidence of expert witnesses on the design of gas delivery systems and the behaviour of workers. The Supreme Court of Canada ruled that the trial judge had no obligation to place reliance on these witnesses and that indeed a trial judge need not consider the opinions of experts when he is capable of arriving at the necessary conclusions himself. The Court of Appeal also considered that the trial judge should not have discounted the evidence of two other workers who said that they had made similar mistakes in the past, while operating similarly configured machines. The Supreme Court of Canada considered that the trial judge was justified in discounting the evidence of these witnesses based on his conclusion that there had been no confusion in this case, which was supported by Mr. Hanke’s own evidence. The Supreme Court of Canada repeated the principle that the Court of Appeal can interfere with findings of fact only if the trial judge has made a palpable and overriding error with respect to them, which had not occurred in this case.
On the subject of causation, the trial judge found the plaintiff had failed to establish that the injuries were caused by negligent design and that consequently he was not required to consider issues of contributory negligence. The Court of Appeal held that he had erred in failing to conduct a proper contributory negligence analysis and in applying a “but for” test for causation instead of a material contribution test. The Supreme Court of Canada upheld the trial judge, confirming that it is necessary to establish that “but for” the negligence of each defendant the accident wouldn’t have occurred. Only once this has beendone may negligence be apportioned.
Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII)