Moore v. Castlegar & District Hospital (1998)
The BCCA decision in Moore v. Castlegar11 (“Moore”) started a dominant line of authority in BC that made proving causation more challenging for plaintiffs who did not have direct evidence. According to Moore, when the defendant leads expert evidence on the causation issue, the “common sense inference” referred to in Athey was no longer available.
In this case, the plaintiff was involved in a motor vehicle accident while intoxicated and received medical care in the hospital emergency department. The defendant physician cleared the plaintiff of injury after inadequate X-rays and physical examination, and the hard collar was removed. While being assisted out of bed, the plaintiff was found to be paralyzed with an undetected burst fracture of the cervical spine. The critical issue was whether the complete spinal cord injury was caused by the accident or the medical negligence. Experts opined that absent evidence of voluntary movement following the accident, the plaintiff likely suffered a complete spinal cord injury in the accident. The paramedic from the crash scene gave evidence that the plaintiff moved his legs on his own when rolling onto the spine board. The trial judge rejected that evidence, finding it unreliable. Without any reliable evidence, the trial judge found that the injury was likely sustained in the accident.
On appeal, the plaintiff relied on Athey for the proposition that while cord damage may have occurred in the accident, further damage while under the negligent care of the defendant, rendered the plaintiff quadriplegic, and it followed that the defendant’s negligence caused and contributed to the quadriplegia.12
The BCCA dismissed the appeal, sharing the trial judge’s view that when all parties have led evidence on the causation issue, it would be inappropriate to resort to an inferential analysis as argued by the plaintiff.13 The Court stated that where there is “affirmative medical evidence” led by the defence leading to a medical conclusion, it was not open to the court to apply the common sense reasoning urged in Snell.
Resurfice Corp. v. Hanke (2007)
In the case of Resurfice Corp. v. Hanke14 (“Resurfice”), the plaintiff was injured when a water hose was placed into the gas tank of an ice-resurfacing machine, instead of the water tank, causing an explosion. The plaintiff sued the manufacturer and distributor of the machine on the basis that the placement of the water hose in the gasoline tank was a foreseeable consequence of the design flaw and manufacture. The plaintiff alleged that the gas and water tanks were similar in appearance and placed too close together, causing confusion.
The trial judge dismissed the action, finding that the plaintiff knew exactly where each tank was, and that water is not to go into the gas tank. The trial judge concluded that the plaintiff made a mistake and that his carelessness was responsible for his injuries.15 The plaintiff failed to establish that it was reasonably foreseeable that an operator of the ice-resurfacing machine would mistake the gas tank for the water tank, and that the defendants caused the accident.16 The Alberta Court of Appeal ordered a new trial, finding that the trial judge erred by failing to consider the comparative blameworthiness of the plaintiff and the defendants, and in applying a “but for” test instead of a “material contribution to risk” test.17
