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Any breach of care by an insured must be identified and reviewed


August 31, 2007   by Canadian Underwriter


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Causation is the link that must be established between a defendants wrong and the plaintiffs loss; the plaintiff must prove that but for the defendants negligence any harm would not have occurred, Anthony Fletcher, lawyer, Filmore Riley LLP, told attendees during at seminar the Canadian Independent Adjusters Associations general meeting and conference in Winnipeg, MB.
However, over the last decade, the Supreme Court of Canada has introduced something of a more plaintiff-friendly standard for cause-in-fact, which is not meant to replace the but for test but is uniquely positioned to subsume the traditional measure, Fletcher said. Where the but for test may prevent the plaintiff from establishing causation to the long held standard, they might still succeed by meeting a lower standard requiring only that the defendant materially contributed to the creation of their injury.
This type of change is generally not good news for the insurance industry.
The very introduction of a secondary potentially singular test for causation expands the potential for plaintiffs to succeed in negligence actions, Fletcher said.
Because of this, loss investigations must also take on a different scope, in that it is no longer enough to analyze causation just from a but for perspective as any breach of care which creates even a potential for risk to another party must be identified and reviewed, Fletcher notes, in addition restrictions on the plaintiffs capacity for meeting the but for test requires deliberation.
In appropriate, yet largely unidentified, circumstances, the contest in negligence actions may well become the two tier test for the applicability of the material contribution test of causation rather than simple adherence to the traditional but for standard, Fletcher said.


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