An Ontario Court of Appeal decision will help clarify a long-standing debate in personal injury law, says Toronto litigator Richard Shekter.
“It clarifies to some degree the causation conundrum, which has been vexing lawyers and judges for 50 years,” says Shekter, partner with Shekter Dychtenberg LLP.
“It also provides a considerable degree of clarity to the kinds of questions that juries ought to be asked in the context of a jury trial and I think it will have a salutary effect on how trials are run,” he tells AdvocateDaily.com.
In the recent case, the court dismissed an appeal of a medical malpractice decision even after finding the trial judge had not given the appropriate questions to the jury.
The court said the jury should have considered whether a delay resulting from the defendants’ breach of the standard of care “caused or contributed” to the plaintiff’s injuries, rather than simply “caused” them.
“I like this decision,” says Shekter, “because it allows me to go to a jury and say, ‘Look, we can establish a failure on each of these people's parts. What we can't do is point to each one individually and say if they hadn't screwed up, this terrible result wouldn't have happened. But we can say that their combined negligence caused this. And it's up to you, ladies and gentlemen the jury, to figure out which defendants caused or contributed to the injury and the damages sustained by the plaintiff.'
“The fight, in this case, was over that language — 'caused or contributed,'” adds Shekter who comments generally and did not act on the matter.
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