On February 24, 2015, the Tort Law Research Group hosted a panel presentation on factual causation in negligence, particularly as it is analyzed in medical malpractice cases. Two lawyers with considerable experience litigating these cases presented the results of their recent research into the topic.
Andrew Spurgeon, a partner at Ross McBride LLP in Hamilton, is currently an LLM student at Western Law and is focusing on factual causation, looking at how meaning could be given to the “robust, pragmatic, common-sense” approach urged by cases like Snell and Clements. In his presentation he discussed the ways in which lawyers, jurors and judges use evidence to establish facts. Kirk Stevens, a partner at Lerners LLP in Toronto, has been considering what aspects of cognitive psychology can tell us about approaches to factual causation. He raised challenging issues such as the utility of the NESS (necessary element of a sufficient set) test and the problem of pre-emption.Professor Andrew Botterell, the undergraduate chair of the Philosophy Department, was the commentator for the panel. He emphasized the importance of factual causation in providing an essential link between the plaintiff and the defendant. He noted that both presentations were concerned about the failure of tort law to achieve a just result in certain cases because of the causation analysis but that they came to very different conclusions about how best to solve this problem.