Key Takeaways from Hemmings v. Padmore (SCC 2026)
1. Factual causation and remoteness are NOT the same thing
- Courts must analyze them separately.
- Just because a defendant’s negligence contributed to an injury does not automatically mean they are legally responsible for that injury.
- First ask: Did the negligence cause the injury?
- Then ask: Is the injury close enough and foreseeable enough to impose liability?
2. The “but for” test remains the primary test for causation
- Would the injury have happened but for the defendant’s negligence?
- If the answer is no, causation is established.
- The defendant’s negligence does not have to be the only cause, just a necessary cause.
3. Plaintiffs do not need scientific certainty
- Causation does not require perfect expert evidence.
- Courts can use common sense and reasonable inferences.
- A plaintiff can succeed even when experts disagree or cannot give definitive answers.
4. The burden of proving causation remains with the plaintiff
- Even when a defendant offers an alternative explanation, the plaintiff must still prove causation on a balance of probabilities.
- Defendants do not have to prove their alternative theory.
5. Complex cases may require a “counterfactual” analysis
- Courts may need to ask:
- “What would have happened if the defendant had met the standard of care?”
- This will be especially important when:
- There are multiple defendants
- There are competing expert opinions
- Significant time passed between negligence and injury
- The medical issues are complex
6. Remoteness is really about foreseeability
- A defendant is only liable for injuries that were a reasonably foreseeable consequence of their negligence.
- The injury must represent a real risk, not a remote possibility.
7. The exact sequence of events does NOT need to be foreseeable
- A defendant does not need to predict precisely how an injury will occur.
- What matters is whether the general type of injury was foreseeable.
Example:
- A doctor need not predict every step leading to a surgical complication.
- It may be enough that serious surgical complications were a foreseeable risk.
8. Courts should focus on the actual injury
- The SCC cautioned against defining injuries too broadly.
- It is not enough to say “physical injury” was foreseeable.
- The court should look at the actual category of injury that occurred.
9. Remoteness is not simply a fairness exercise
- Judges should not decide liability based only on what feels fair.
- The test remains rooted in reasonable foreseeability and legal principle.
10. Medical negligence cases will often turn on what the practitioner reasonably knew at the time
- Foreseeability is assessed from the defendant’s perspective at the time of the alleged negligence.
- The court asks:
- What information was available then?
- What risks would a reasonable practitioner have appreciated at that time?
Why this case matters
In practical terms, this may become one of the leading SCC authorities for lawyers dealing with:
- Medical negligence
- Personal injury
- Multiple defendants
- Competing expert opinions
- Causation disputes
- Failure-to-warn/informed consent claims
The biggest message from the Court is simple:
“Proving that negligence contributed to an injury is not enough. Lawyers must separately prove (1) factual causation and (2) that the injury was a reasonably foreseeable consequence of the negligence.”
For plaintiff and defence counsel alike, this is likely the most important causation/remoteness clarification from the SCC since Clements.