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Causation - Where Absence of Evidence is D's Fault. Hacopian-Armen Estate v. Mahmoud
In Hacopian-Armen Estate v. Mahmoud (Ont CA, 2021) the Court of Appeal considered the situation where there was an absence of evidence on causation due to the defendant's fault:[92] Finally, although it is not raised as a discrete ground of appeal, the appellant is critical of the trial judge’s reference to the principle expressed in Goodwin v. Olupona, 2013 ONCA 259, 305 O.A.C. 245. At paras. 152-54, the trial judge observed:The defendants submit that there is no proof that LMS was present on May 25, 2009 when an endometrial biopsy should have been performed. They, therefore, argue that there is no evidence which would establish a link of causation necessary for this case.
The reason that there is no evidence is attributable to the fact that Dr. Mahmoud did not perform an endometrial biopsy which would have provided the necessary evidence.
As stated above, where there is a gap in the evidence as regards establishment of causation which is caused by the defendant's own negligence, this cannot be used to shield the defendant from any responsibility. The inability to prove the causal link between the defendant's negligence and the plaintiff's damages, if a direct result of the defendant's failure to act appropriately, cannot be used to shield the defendant: Goodwin (Litigation Guardian of) v. Olupona, supra, Ghiassi v. Singh, supra, Adams v. Taylor, supra.
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