Legal Blog

Causation – Contract & Tort

Benhaim v. St-Germain 2016 SCC

Doctors were negligent because they failed to properly review a chest x-ray and therefore failed to catch lung cancer at an earlier stage. The patient died and the estate sued. The trial judge agreed that there was negligence, but was not convinced that, but for the delay in diagnosing the cancer, the patient would have survived. The trial judge found that, based on the evidence, even at the earlier stage, the cancer was likely incurable and the patient would have died regardless. The Québec Court of Appeal overturned. The Supreme Court reinstated. It held that causation was a question of fact, which needed a palpable and overriding error to be reversed. Palpable means that the error is obvious; overriding means that it goes to the very core of the outcome of the case. Put another way, the error is not “a needle in a haystack, but a beam in the eye”. The Supreme Court agreed that a trial judge “may”, but was not forced to, make an adverse inference when causation was in doubt because of the actions of the defendant precluded proof of causation with certainty. The trial judge was alive to that discretion, but did not wish to make the adverse inference. The Court noted that statistics were probative, but their value would vary according to factors such as methodology, trends revealed, and the resemblance between their underlying conditions and the position of the plaintiff.

Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.