Sep 3, 2021
Brenda Agnew and Jan Marin are hosting today’s episode of Butter Torts, A Truly Canadian Legal Podcast. They welcome Richard Halpern as their guest, to talk about causation.
In his paper Causation on Trial, Richard states: “...It is decidedly too ambitious, and assuredly futile, to attempt to craft a flawless paradigm for addressing causation in all scenarios. After all, for decades and longer, every academic and every court that has set out to tackle the matter has failed in the endeavor. Indeed, these failed attempts have actually contributed more to the confusion and uncertainty surrounding causation than they have in resolving it…”
In this episode, Richard redefines the meaning of the legal test for causation and clarifies the subject of how to apply that test in challenging factual scenarios.
Key Takeaways:
[2:02] What is causation and why is it important to clients?
[4:35] What are the tests for causation?
[5:15] Richard explains why there is only one test for causation.
[5:49] Why is there so much said about Material Contribution to Risk?
[8:12] Richard shares an example of causation.
[11:30] What is the follow-up for Material Contribution? Richard shares the example of the 200-case.
[13:14] In cases of medical malpractice there are always many professionals involved and the lawyer needs to identify who caused the harm.
[13:55] Richard talks about the Ontario Court of Appeal Case Sacks vs Ross and how it exemplifies the matter of causation.
[16:51] What does counterfactual mean?
[18:32] What is the But-For Test about?
[21:57] Richard talks about the two liability questions that need to be proved.
[24:03] Richard exemplifies what it looks like when But-For and Counterfactual are removed from the vocabulary used with the client.
[25:48] Richard proposed to change the way things have been done so far.
[29:46] Richard addresses a common misunderstanding when it comes to causation.
[30:48] Richard extends his suggestions to get back to basics and start fresh.
[35:27] What are the benefits of approaching causation differently in terms of the outcome for the client?
[37:25] What is the role of clients who were affected by the current ways of treating causation in promoting a change in this matter?
[38:52] Richard talks about Clements vs Clements.
[42:40] Richard shares on the Loss of Chance and its relationship with the causal perspective.
[45:05] Richard explains why people should download and read his paper on causation.
Mentioned in this episode:
To learn more about the work we do at Gluckstein Lawyers, please visit Gluckstein Lawyers.
Learn more about Richard Halpern
Causation on Trial: A Call For Change In How We Think About Causation In Tort, by Richard Halpern
Necessity Efficiency in the Calls of Questions, Richard Halpern
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