COURT OF CANADA
Ralph Robert Hanke
Ralph Robert Hanke
McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron
and Rothstein JJ.
(paras. 1 to 30)
McLachlin C.J. (Bastarache,
Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. concurring)
Resurfice Corp. v. Hanke,  1 S.C.R. 333, 2007 SCC
Resurfice Corp. Appellant
Ralph Robert Hanke Respondent
LeClair Equipment Ltd. Appellant
Ralph Robert Hanke Respondent
Indexed as: Resurfice Corp. v. Hanke
Neutral citation: 2007 SCC 7.
File No.: 31271.
2006: December 12; 2007: February 8.
Present: McLachlin C.J. and Bastarache, Binnie,
LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for alberta
Torts — Negligence — Product liability —
Foreseeability — Plaintiff badly burned when hot water poured into gasoline
tank of ice‑resurfacing machine caused explosion and fire — Plaintiff
alleging negligent design of machine — Whether trial judge gave adequate
analytical emphasis to evidence concerning placement and marking of gas and
water tanks — Whether trial judge erred in failing to consider policy factors
in determining foreseeability.
Torts — Negligence — Product liability — Causation
— Plaintiff badly burned when hot water poured into gasoline tank of ice‑resurfacing
machine caused explosion and fire — Plaintiff alleging negligent design of
machine — Whether trial judge should have considered comparative
blameworthiness of parties — Whether trial judge erred in applying “but for”
test rather than “material contribution” test to determine causation.
H, the operator of an ice‑resurfacing machine,
was badly burned when hot water overfilled the gasoline tank of the machine,
releasing vapourized gasoline which was then ignited by an overhead heater,
causing an explosion and fire. H sued the manufacturer and distributor of the
machine for damages, alleging that the gasoline and water tanks were similar in
appearance and placed close together on the machine, making it easy to confuse
the two. The trial judge dismissed the action. He found that H did not establish
that the accident was caused by the negligence of the manufacturer or
distributor. The Court of Appeal set aside the judgment and ordered a new
trial, concluding that the trial judge had erred in both his foreseeability and
Held: The appeal
should be allowed and the trial judgment restored.
While the Court of Appeal would have preferred a
different approach to foreseeability, no error of law or palpable and
overriding error of fact or mixed fact and law has been established in the
trial judge’s approach or conclusion on this issue. There was evidence
supporting his finding that H was not confused by the two tanks, notably H’s
own admission, and the seriousness of H’s injury and the relative financial
positions of the parties were not matters relevant to foreseeability. [10‑12]
With respect to causation, the trial judge did not
need to engage in a contributory negligence analysis because he found, not only
that H’s carelessness was responsible for his injuries, but also that the
alleged design defects were not responsible for these injuries. Further, the
Court of Appeal erred in holding that the trial judge should have applied the
“material contribution” test to determine causation. The basic test remains the
“but for” test. This test ensures that a defendant will not be held liable for
the plaintiff’s injuries where they may very well be due to factors unconnected
to the defendant and not the fault of anyone. The “material contribution” test
only applies in exceptional cases where factors outside of the plaintiff’s
control make it impossible for the plaintiff to prove that the defendant’s
negligence caused the plaintiff’s injury using the “but for” test, and the
plaintiff’s injury falls within the ambit of the risk created by the
defendant’s breach of his duty of care owed to the plaintiff.   [23‑25]
Referred to: Jordan
House Ltd. v. Menow,  S.C.R. 239; Stewart v. Pettie,
 1 S.C.R. 131; R. v. Mohan,  2 S.C.R. 9;
Housen v. Nikolaisen,  2 S.C.R. 235,
2002 SCC 33; Haida Nation v. British Columbia (Minister of
Forests),  3 S.C.R. 511, 2004 SCC 73; Athey v.
Leonati,  3 S.C.R. 458; Snell v. Farrell, 
2 S.C.R. 311; Walker Estate v. York Finch General Hospital,
 1 S.C.R. 647, 2001 SCC 23; Blackwater v. Plint,
 3 S.C.R. 3, 2005 SCC 58; Cook v. Lewis,
 S.C.R. 830.
Klar, Lewis. “Downsizing
Torts”. In Nicholas J. Mullany and Allen M. Linden, eds.,
Torts Tomorrow: A Tribute to John Fleming. Sydney,
N.S.W.: LBC Information Services, 1998, 305.
APPEAL from a judgment of the Alberta Court of Appeal
(McFadyen, Berger and Ritter JJ.A.) (2005), 53 Alta. L.R.
(4th) 219, 380 A.R. 216, 363 W.A.C. 216,  A.J.
No. 1480 (QL), 2005 ABCA 383, reversing a decision of
Wilson J. (2003), 333 A.R. 371,  A.J. No. 946 (QL),
2003 ABQB 616. Appeal allowed.
Daniel W. Hagg, Q.C., and Jeffrey R. Sermet, for the
appellant Resurfice Corp.
David J. Cichy, Q.C.,
and E. Jane Sidnell, for the appellant LeClair Equipment Ltd.
Jonathan P. Rossall, Q.C., and David D. Risling, for the
The judgment of the Court was delivered by
The Chief Justice — This
case involves a tragic injury that befell a young man, Mr. Hanke, when a water
hose was placed into the gasoline tank of an ice-resurfacing machine rather
than the water tank. When hot water overfilled the gasoline tank, vapourized
gasoline was released into the air. It was ignited by an overhead heater,
causing an explosion and fire. Mr. Hanke, who was employed by the City of
Edmonton to run the ice-resurfacing machine and look after the ice-rink, was
Mr. Hanke sued the manufacturer and distributor of the ice-resurfacing
machine for damages, alleging design defects. He contended that the gasoline
tank and the water tank were similar in appearance and placed close together on
the machine, making it easy to confuse the two.
After a lengthy trial, the trial judge dismissed Mr. Hanke’s action
((2003), 333 A.R. 371, 2003 ABQB 616). He found that Mr. Hanke had not
discharged the plaintiff’s burden of establishing that the accident was caused
by the negligence of the manufacturer or distributor. First, he had not
established that it was reasonably foreseeable that an operator of the
ice-resurfacing machine would mistake the gas tank and the hot water tank.
Second, he had not shown that the defendants caused the accident. The trial
judge concluded that the accident had been caused by Mr. Hanke’s decision to
turn the water on when he knew, or should have known, that the water hose was
in the gasoline tank, knowing full well, by his own admission, the difference
between the two tanks. He found as a fact that Mr. Hanke was not confused by
the placement and character of the tanks, and consequently that this had not
caused the accident.
On appeal, the judgment was set aside and a new trial ordered ((2005),
53 Alta. L.R. (4th) 219, 2005 ABCA 383). The Court of Appeal concluded that
the trial judge had erred in both his foreseeability and causation analyses.
The trial judge’s conclusion on foreseeability, the court found, was vitiated
by a number of errors, namely: failure to give “adequate analytical emphasis”
to certain evidence concerning the placement and marking of the tanks and other
workers who had made the same mistake (para. 20); and failure to consider
policy factors in determining foreseeability (para. 21). On causation, the
Court of Appeal held that the trial judge had erred by failing to consider the
“comparative blameworthiness” of the plaintiff and the defendants (paras.
15-16), and in applying a “but for” test instead of a material contribution
test (paras. 12-14).
The two issues that divided the Alberta courts — foreseeability and
causation — dominate the appeal before us. I will deal with each in turn.
Liability for negligence requires breach of a duty of care arising from
a reasonably foreseeable risk of harm to one person, created by the act or
omission of another: Jordan House Ltd. v. Menow,  S.C.R. 239, at
p. 247, per Laskin J. (as he then was). By enforcing reasonable
standards of conduct, so as to prevent the creation of reasonably foreseeable
risks of harm, tort law serves as a disincentive to risk-creating behaviour: Stewart
v. Pettie,  1 S.C.R. 131, at para. 50, per Major J. The
major elements of a tort action — duty, breach causing injury and cause —
reflect “the principle of moral wrongdoing which is the basis of the negligence
law”: L. Klar, “Downsizing Torts”, in N. J. Mullany and A. M.
Linden, eds., Torts Tomorrow: A Tribute to John Fleming (1998), 305, at
The trial judge found that it was not reasonably foreseeable that an
operator of the ice-resurfacing machine at issue would mistake the gas tank and
the hot water tank, and thus place (or allow to remain) a water hose in the gas
tank, thereby generating vapourized gasoline that might be ignited by an open
flame, leading to an explosion and fire. The trial judge based this conclusion
on the evidence, including the different size of the two tanks (one was much
taller than the other), and on the fact (as found by him) that the gas tank had
a label on it that said “Gasoline Only”. He emphasized Mr. Hanke’s admission
that he knew the difference between the two tanks, and found that he was not
confused between them.
The Court of Appeal’s first criticism on the foreseeability issue was
that the trial judge failed to give sufficient “analytical emphasis” to various
aspects of the plaintiff’s evidence. It is true that, having found that the
accident was due to operator error, the trial judge stated, “[t]hus, in this
case I do not get to the point of reviewing alleged design error or failure to
warn” (para. 65). However, he went on immediately to review all the design
errors alleged by the plaintiff and to state why he rejected the allegations
(para. 65). He dealt with the allegation of the similar caps, the location of
the hot water tank adjacent to the gas tank, the alleged similarity between the
two tanks and the issue of warning signs, disposing of each one in turn.
The plaintiff submits that the trial judge discounted the evidence of
expert witnesses called by the plaintiff on the design of gas delivery systems
and the behaviour of workers. It is true that the trial judge placed no
reliance on these witnesses. However, a trial judge is not obliged to consider
the opinions of expert witnesses if he can arrive at the necessary conclusions
on issues of fact and responsibility without doing so: R. v. Mohan,
 2 S.C.R. 9, at pp. 23-24.
The plaintiff also submits that the trial judge should have placed more
weight on the evidence of two other workers who said they had made similar
mistakes in the past, while operating similarly configured machines. The trial
judge discounted this evidence on the basis of his finding that in this case
there had been no confusion. It is said that this was wrong because the
evidence on the absence of confusion was far from conclusive. However, a trial
judge is not obliged to accept all of the evidence. What is essential is that
there be evidence to support the findings of fact he or she makes. The Court
of Appeal can interfere with findings of fact only if the trial judge has made
a palpable and overriding error with respect to them: Housen v. Nikolaisen,
 2 S.C.R. 235, 2002 SCC 33, at para. 10. There was evidence that
supported the trial judge’s finding that Mr. Hanke was not confused, notably
his own admission. The trial judge’s finding of no confusion therefore cannot
The Court of Appeal’s second criticism of the trial judge’s rejection of
reasonable foreseeability was that the trial judge failed to consider policy
matters, namely the seriousness of the injury and the relative financial
positions of the parties. The Court of Appeal erred in suggesting that these matters
are relevant to foreseeability. Foreseeability depends on what a reasonable
person would anticipate, not on the seriousness of the plaintiff’s injuries (as
in this case) or the depth of the defendant’s pockets: Haida Nation v.
British Columbia (Minister of Forests),  3 S.C.R. 511, 2004 SCC 73,
at para. 55.
I conclude that, while the Court of Appeal would have preferred a
different approach to foreseeability, no error of law or palpable and
overriding error of fact or mixed fact and law has been established in the
trial judge’s approach or conclusion. The Court of Appeal erred in interfering
on this ground.
The trial judge stated that “[t]he onus is on the Plaintiff to establish
that the damage was caused by the negligence of one or both of the Defendants
to some degree” (para. 10). He also said: “I must find causation against these
defendants before considering contribution” (para. 46). He went on to
conclude: “The Plaintiff has failed to establish that the injuries were caused
by negligent design. . . . That being the case, it is not necessary for this
Court to consider the apportionment of fault under the rules of contribution .
. .” (para. 58).
The trial judge based these conclusions on the evidence. He emphasized
Mr. Hanke’s admission that “when he looked at the unit from behind he knew
precisely which was the water tank and which was the gasoline tank” (para. 41),
as well as his admission that “he was fully familiar with the fact that hot
water should not be introduced into the gasoline tank” (para. 42). He noted
that the caps on the two tanks as designed and delivered had been different,
and had been replaced by similar caps by the City. He also noted the absence
of evidence from Mr. Binette, who had prepped the machine before Mr. Hanke’s
arrival. Although he stated that he did not get to the point of “reviewing
alleged design error or failure to warn”, as noted above (para. 8), he also
went on to consider the alleged design errors, disposing of each in turn (para.
65). He concluded that “there is no evidence that would show to the balance of
probabilities that this event was caused by the defendants” (para. 54).
The Court of Appeal stated that the trial judge had erred in failing to
conduct a proper contributory negligence analysis and thus in not considering
the comparative blameworthiness of the plaintiff and the defendants (paras.
15-16). The Court of Appeal also found that the trial judge erred in applying
a “but for” test for causation instead of a material contribution test (paras.
1. Comparative Blameworthiness
The appellants argue that the Court of Appeal erred in suggesting
that “comparative blameworthiness” is a necessary component of the causation
analysis. The suggestion attributed to the Court of Appeal is that a court
must approach causation not simply by asking whether the defendant’s negligent
act caused the loss, but by looking globally at all possible causes.
It is true that the trial judgment contains some passages that suggest
that the carelessness of Mr. Hanke automatically absolves the respondent
manufacturer and distributor of liability. That is not the case. An example,
put to us in oral argument, illustrates the point. If it is industry standard
to design an iron with an automatic shut-off switch, and an iron is
manufactured without such a switch, the manufacturer of the iron is not
absolved of liability merely because the plaintiff was careless in leaving the
iron on, resulting in a fire and injuries to the plaintiff. However, I am
satisfied that the trial judge found not only that Mr. Hanke’s carelessness was
responsible for his injuries, but also that the alleged design defects were not
responsible for Mr. Hanke’s injuries. For example, the trial judge noted that
“the accident was caused by operator error and had nothing to do with the
design or manufacture of the machine” (para. 56). In light of this finding
there was no need for the trial judge to engage in a contributory negligence analysis.
2. The Test for Causation
The Court of Appeal found, correctly, that the trial judge had applied a
“but for” test in determining causation, stating, “[t]he thrust of the
reasoning is that ‘but for’ the Appellant putting or leaving the hose in the
gasoline tank, the explosion would not have occurred” (para. 12). Referring to
the observation in Athey v. Leonati,  3 S.C.R. 458, at para. 15,
that the “but for” test “is unworkable in some circumstances”, the Court of
Appeal concluded that this was such a case and that the trial judge should have
used a “material contribution” test instead of the “but for” test (para. 14).
The Court of Appeal erred in suggesting that, where there is more
than one potential cause of an injury, the “material contribution” test must be
used. To accept this conclusion is to do away with the “but for” test
altogether, given that there is more than one potential cause in virtually all
litigated cases of negligence. If the Court of Appeal’s reasons in this regard
are endorsed, the only conclusion that could be drawn is that the default test
for cause-in-fact is now the material contribution test. This is inconsistent
with this Court’s judgments in Snell v. Farrell,  2 S.C.R. 311; Athey
v. Leonati, at para. 14; Walker Estate v. York Finch General Hospital,
 1 S.C.R. 647, 2001 SCC 23, at paras. 87-88, and Blackwater v. Plint,
 3 S.C.R. 3, 2005 SCC 58, at para. 78.
Much judicial and academic ink has been spilled over the proper test for
causation in cases of negligence. It is neither necessary nor helpful to
catalogue the various debates. It suffices at this juncture to simply assert
the general principles that emerge from the cases.
First, the basic test for determining causation remains the “but
for” test. This applies to multi-cause injuries. The plaintiff bears the
burden of showing that “but for” the negligent act or omission of each
defendant, the injury would not have occurred. Having done this, contributory
negligence may be apportioned, as permitted by statute.
This fundamental rule has never been displaced and remains the primary
test for causation in negligence actions. As stated in Athey v. Leonati,
at para. 14, per Major J., “[t]he general, but not conclusive, test for
causation is the ‘but for’ test, which requires the plaintiff to show that the
injury would not have occurred but for the negligence of the defendant”.
Similarly, as I noted in Blackwater v. Plint, at para. 78, “[t]he rules
of causation consider generally whether ‘but for’ the defendant’s acts, the
plaintiff’s damages would have been incurred on a balance of probabilities.”
The “but for” test recognizes that compensation for negligent conduct
should only be made “where a substantial connection between the injury and the
defendant’s conduct” is present. It ensures that a defendant will not be held
liable for the plaintiff’s injuries where they “may very well be due to factors
unconnected to the defendant and not the fault of anyone”: Snell v. Farrell,
at p. 327, per Sopinka J.
However, in special circumstances, the law has recognized exceptions to
the basic “but for” test, and applied a “material contribution” test. Broadly
speaking, the cases in which the “material contribution” test is properly
applied involve two requirements.
First, it must be impossible for the plaintiff to prove that the
defendant’s negligence caused the plaintiff’s injury using the “but for” test.
The impossibility must be due to factors that are outside of the plaintiff’s
control; for example, current limits of scientific knowledge. Second, it must
be clear that the defendant breached a duty of care owed to the plaintiff,
thereby exposing the plaintiff to an unreasonable risk of injury, and the
plaintiff must have suffered that form of injury. In other words, the
plaintiff’s injury must fall within the ambit of the risk created by the
defendant’s breach. In those exceptional cases where these two requirements
are satisfied, liability may be imposed, even though the “but for” test is not
satisfied, because it would offend basic notions of fairness and justice to
deny liability by applying a “but for” approach.
These two requirements are helpful in defining the situations in which an
exception to the “but for” approach ought to be permitted. Without dealing
exhaustively with the jurisprudence, a few examples may assist in demonstrating
the twin principles just asserted.
One situation requiring an exception to the “but for” test is the
situation where it is impossible to say which of two tortious sources caused
the injury, as where two shots are carelessly fired at the victim, but it is
impossible to say which shot injured him: Cook v. Lewis,  S.C.R.
830. Provided that it is established that each of the defendants carelessly or
negligently created an unreasonable risk of that type of injury that the
plaintiff in fact suffered (i.e. carelessly or negligently fired a shot that
could have caused the injury), a material contribution test may be
A second situation requiring an exception to the “but for” test may be
where it is impossible to prove what a particular person in the causal chain
would have done had the defendant not committed a negligent act or omission,
thus breaking the “but for” chain of causation. For example, although there
was no need to rely on the “material contribution” test in Walker Estate v.
York Finch General Hospital, this Court indicated that it could be used
where it was impossible to prove that the donor whose tainted blood infected
the plaintiff would not have given blood if the defendant had properly warned
him against donating blood. Once again, the impossibility of establishing
causation and the element of injury-related risk created by the defendant are
In this case, the Court of Appeal erred in failing to recognize that the
basic test for causation remains the “but for” test. It further erred in
applying the material contribution test in circumstances where its use was
neither necessary nor justified.
I would allow the appeal, set aside the order of the Court of Appeal and
restore the trial judgment, with costs throughout.
Appeal allowed with costs.
Solicitors for the appellant Resurfice Corp.: Bryan &
Solicitors for the appellant LeClair Equipment
Ltd.: Miller Thomson, Calgary.
Solicitors for the respondent: McLennan Ross, Edmonton.