Apportionment of Damages for Contributory Negligence: The Causal Potency Criterion

The courts in several common law jurisdictions have adopted a causal potency criterion for
the purposes of apportioning damages for contributory negligence. It has recently been
suggested that Canadian courts should follow suit. This article explores the causal potency
criterion. It is argued that the criterion has been left unexplained with the result that it is an
empty concept. Moreover, no compelling justification has been offered in support of taking
causal potency into account. Accordingly, adopting the causal potency criterion would be
a retrograde step for Canadian tort law.