What is the defence of failing to explain why a test for penetration has failed?
Alberta, Canada
The following excerpt is from Feist v. Gordon, 1990 ABCA 251 (CanLII):
This defence does not assist the appellant. It is not an answer to a finding of negligent penetration. Nor do the medical reports of unexplained failures of the test convert to a statistical margin of error acceptable in law. As pointed out by Sopinka, J. in Farrell v. Snell, medical experts determine causation in terms of medical certainties and not by the legal concept of negligence. To say that failures of the test are not medically explained does not make them inconsistent with negligence in law.
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