Continued from Causation in Negligence (Part 1)
Clements is significant for a number of reasons.
First, and most obviously, Clements clarifies the law with respect to the application of the material contribution test in substitution for the “but for” test in negligence cases.
Second, the decision reaffirms the “but for” test as a factual inquiry, in which “scientific evidence of the precise contribution” (Clements, para 9) made by the defendant’s negligence is unnecessary. Rather, inferences may be drawn from the facts themselves.
Third, David Cheifetz has argued that, implicitly, the decision in Clements has narrowed the scope of the Resurfice material contribution test and rendered the Athey material contribution test obsolete.
Finally, although the material contribution test presents, in comparison with the “but for” test, a lower bar over which plaintiffs must pass in order to succeed in negligence, the criteria determining the application of the material contribution test nonetheless introduces some additional complications for plaintiffs.
An understanding of these complications is aided by knowledge of corrective justice.
Early in the decision, the SCC explained corrective justice as the basis of recovery underlying negligence law:
“Recovery in negligence presupposes a relationship between the plaintiff and defendant based on the existence of a duty of care—a defendant who is at fault and a plaintiff who has been injured by that fault. If the defendant breaches this duty and thereby causes injury to the plaintiff, the law ‘corrects’ the deficiency in the relationship by requiring the defendant to compensate the plaintiff for the injury suffered. This basis of recovery, sometimes referred to as ‘corrective justice,’ assigns liability when the plaintiff and defendant are linked in a correlative relationship as doer and sufferer of the same harm” (Clements, para 7).
Corrective justice is consistent with the requirement that there be multiple tortfeasors in order for the material contribution test to apply. Indeed, in such a situation the goals of negligence
“are furthered in a manner consistent with corrective justice; the deficit in the relationship between the plaintiff and the defendants viewed as a group that would exist if the plaintiff were denied recovery is corrected. The plaintiff has shown that she is in a correlative relationship of doer and sufferer of the same harm with the group of defendants as a whole, if not necessarily with each individual defendant” (Clements, para 41).
Corrective justice begins with a plaintiff and defendant as doer and sufferer of the same harm; however, where there are multiple defendants, corrective justice requires the court, in circumstances where the material contribution test applies, to view the defendants as a group that, as a whole, is in a correlative relationship with the plaintiff.
In this way, the recovery, by the plaintiff, against any of the defendants, will indeed correct the wrong that has been committed in a way consistent with corrective justice.
However, before the material contribution test can be employed consistently with corrective justice, each defendant must be proven negligent in order to be grouped together with the others in a correlative relationship with the plaintiff. This is because, were one or more defendants not negligent, then the group, as a whole, could not represent the doer of the harm suffered by the plaintiff.
This requirement (of showing negligence for multiple defendants) presents a unique challenge to plaintiffs.
Because the material contribution test may be applied only where two or more tortfeasors have been negligent, plaintiffs hoping to recover in negligence due to defendants’ material contribution to the risk of personal injury must establish that not one, but at least two defendants owed a duty of care that was then breached.
In other words, even though the causation requirement may be lowered by the application of the material contribution test, such application also necessitates proof of negligence on behalf of multiple defendants, something that is not demanded by the “but for” test.