What is the test for determining whether a defendant is liable for a plaintiff's disc herniation?
Manitoba, Canada
The following excerpt is from Liebrecht v. Egesz, 1999 CanLII 14085 (MB QB):
On the question of causation Major J. for the court (S.C.C.) in Athey v. Leonati (1996), 1996 CanLII 183 (SCC), 140 D.L.R. (4th) 235 restated the principle in the context of competing causes as follows: It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. (p. 239) The applicable principles can be summarized as follows. If the injuries sustained in the motor vehicle accidents caused or contributed to the disc herniation, then the defendants are fully liable for the damages flowing from the herniation. The plaintiff must prove causation by meeting the “but for” or material contribution test. Future or hypothetical events can be factored into the calculation of damages according to degrees of probability, but causation of the injury must be determined to be proven or not proven. … 3. …The trial judge must determine, on a balance of probabilities, whether the defendant’s negligence materially contributed to the injury. (pp. 245-246)
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