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“…451 However, the Court of Appeal's explanation for why the action should be dismissed does not stop at the statement that the case was "like many others in which, given the current state of knowledge, it is not possible to prove whether the negligent actions of a defendant caused harm." 452 The court added that the court did "not consider it either unfair or unjust … not to fix Mr. Clements with liability when Mrs. Clements The Clements reasons do not entail the conclusion that the Court of Appeal would have held the Resurfice material contribution doctrine would not have been applied, on the basis of fairness and justice, even if the court had found the plaintiff had satisfied the impossibility requirement. There is nothing in the Clements reasons that suggests the court necessarily considered the better conclusion for that circumstance.…”
Section: Resurfice Statesmentioning
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“…451 However, the Court of Appeal's explanation for why the action should be dismissed does not stop at the statement that the case was "like many others in which, given the current state of knowledge, it is not possible to prove whether the negligent actions of a defendant caused harm." 452 The court added that the court did "not consider it either unfair or unjust … not to fix Mr. Clements with liability when Mrs. Clements The Clements reasons do not entail the conclusion that the Court of Appeal would have held the Resurfice material contribution doctrine would not have been applied, on the basis of fairness and justice, even if the court had found the plaintiff had satisfied the impossibility requirement. There is nothing in the Clements reasons that suggests the court necessarily considered the better conclusion for that circumstance.…”
Section: Resurfice Statesmentioning
“…It is explicit enough in the court's statement that the action was "a case like many others in which, given the current state of knowledge, it [was] not possible to prove whether the negligent actions of a defendant caused harm." 471 was that the negligence of each of the two negligent hunters could be said to have destroyed the plaintiff's ability to prove factual causation, under the orthodox but-for test, against the other hunter. If traditional principles had been applied, the negligence that injured the plaintiff would have also "destroyed" the plaintiff's ability to lawfully obtain the remedy provided for injury caused by that negligence.…”
Section: Factors That Might Satisfy the Fairness And Justice Requirementmentioning