BACK TO SCHOOL: Solicitors' Negligence ' Causation

• Published date: 21 September 2020
• Law Firm: Minden Gross LLP
• Author: Ms Sheila Morris

With the "back to school" season upon us (although it looks and feels very different this year), it is a good time to hit the books and review the latest developments in solicitors' negligence. This four-part series will examine the essential elements of solicitors' negligence with a specific focus on will-drafting lawyers. Cram now, and ace the test later

Causation: The Legal Test

The third installment in this series examines the element of causation. The starting point for causation is the "but for" test. It is a short-hand test to question whether, but for the lawyer's negligence, the loss would have occurred.¹ The burden of proof is a balance of probabilities.² The test will only be made out where there is a substantial connection between a party's loss and the lawyer's conduct. This ensures that a lawyer will not be held liable for a plaintiff's injuries when they are caused by factors unconnected to the lawyer, and/or are not the fault of anyone else.³ A plaintiff does not need to prove causation with scientific precision.⁴

When the loss is purely economic, there must be a close (proximate) relationship between the alleged wrongdoer (the tortfeasor) and the victim. Both English and Canadian jurisprudence has sought to...