Clements v. Clements (2012), 431 N.R. 198 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2012] N.R. TBEd. JN.031
Joan Clements, by her Litigation Guardian, Donna Jardine (appellant) v. Joseph Clements (respondent) and Attorney General of British Columbia (intervener)
(34100; 2012 SCC 32; 2012 CSC 32)
Indexed As: Clements v. Clements
Supreme Court of Canada
McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.
June 29, 2012.
Summary:
Joan Clements was riding on the passenger seat on a motorcycle being driven by her husband. The weather was wet. The bike was about 100 pounds overloaded. Unbeknownst to Mr. Clements, a nail had punctured the bike’s rear tire. Mr. Clements accelerated to at least 120 km/h (in a 100 km/h zone), in order to pass a car. As he crossed the centre line, the nail fell out, the rear tire deflated, and the bike began to wobble. Mr. Clements was unable to bring the bike under control, and it crashed, throwing Mrs. Clements off. She suffered a severe traumatic brain injury. She sued Mr. Clements, claiming that her injury was caused by his negligence in the operation of the bike. Mr. Clements’ negligence was not disputed. The only issue was whether his negligence caused Mrs. Clements’ injury.
The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 112; 2009 BCSC 112, found that Mr. Clements’ negligence in fact contributed to Mrs. Clements’ injury. However, the court held that Mrs. Clements “through no fault of her own is unable to prove that ‘but for’ the defendant’s breaches, she would not have been injured”, due to the limitations of the scientific reconstruction evidence. The court applied the “material contribution” test, and found Mr. Clements liable on that basis. Mr. Clements appealed.
The British Columbia Court of Appeal, in a decision reported at 298 B.C.A.C. 56; 505 W.A.C. 56, set aside the judgment against Mr. Clements on the basis that “but for” causation had not been proved and the “material contribution” test did not apply. Mrs. Clements appealed.
The Supreme Court of Canada (LeBel and Rothstein, JJ., dissenting), allowed the appeal and ordered a new trial. A “material contribution” test was not applicable in this case. The Court returned the matter to the trial judge to be dealt with on the correct basis of “but for” causation. LeBel and Rothstein, JJ., found no basis in the trial judge’s judgment for inferring that the overloading of the bike and excessive speed could have been the “cause” of the accident in the context of the “but for” test. Nor was it appropriate, on policy grounds, to send the matter back for a new trial.
Torts – Topic 54
Negligence – Causation – Test for (incl. “but for” test and “material contribution” test) – The defendant’s negligence in driving an overloaded motorcycle too fast was not disputed – The only issue was whether his negligence
caused
the plaintiff’s injury – The trial judge held that a material contribution approach sufficed – The Court of Appeal held the usual “but for” test applied – The Supreme Court of Canada discussed the basic rule of “but for” causation, and the material contribution to risk approach, and stated the following conclusions as to the present state of the law in Canada: “(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss ‘but for’ the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required. (2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred ‘but for’ the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or ‘but for’ cause of her injury, because each can point to one another as the possible ‘but for’ cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.” – See paragraph 46.
Torts – Topic 54
Negligence – Causation – Test for (incl. “but for” test and “material contribution” test) – The defendant’s negligence in driving an overloaded motorcycle too fast was not disputed – The only issue was whether his negligence
caused
the plaintiff’s injury – The trial judge held that a material contribution approach sufficed, having rejected the defendant’s expert evidence that the accident would have happened regardless of the excess speed and excess weight – The Court of Appeal held the usual “but for” test applied, and set aside the judgment against the defendant on the basis that “but for” causation had not been proved – The plaintiff appealed – The Supreme Court of Canada allowed the appeal and ordered a new trial – “The trial judge made two errors. The first error was to insist on scientific reconstruction evidence as a necessary condition of finding ‘but for causation’. … The trial judge’s second error was to apply a material contribution to risk test. The special conditions that permit resort to a material contribution approach were not present in this case. This is not a case where we know that the loss would not have occurred ‘but for’ the negligence of two or more possible tortfeasors, but the plaintiff cannot establish on a balance of probabilities which negligent actor or actors caused the injury. … [T]he trial judge used language tantamount to finding actual ‘but for’ causation … We cannot be certain what the trial judge would have concluded had he not made the errors … [T]he appropriate remedy in these circumstances is an order for a new trial” – See paragraphs 47 to 54.
Cases Noticed:
Wilsher v. Essex Area Health Authority, [1988] A.C. 1074; 87 N.R. 140 (H.L.), refd to. [para. 9].
Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 9].
Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 10].
Betts v. Whittingslowe, [1945] HCA 31; 71 C.L.R. 637, refd to. [para. 10].
Bennett v. Minister of Community Welfare, [1992] HCA 27; 176 C.L.R. 408, refd to. [para. 10].
Flounders v. Millar, [2007] NSWCA 238; 49 M.V.R. 53, refd to. [para. 10].
Roads and Traffic Authority v. Royal, [2008] HCA 19; 245 A.L.R. 653, refd to. [para. 10].
MacDonald v. Goertz et al. (2009), 275 B.C.A.C. 68; 465 W.A.C. 68; 2009 BCCA 358, refd to. [para. 14].
Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 15].
Browning v. War Office, [1962] 3 All E.R. 1089 (C.A.), refd to. [para. 16].
Mooney v. British Columbia (Attorney General) et al. (2004), 202 B.C.A.C. 74; 331 W.A.C. 74; 2004 BCCA 402, refd to. [para. 16].
Cook v. Lewis, [1951] S.C.R. 830, refd to. [para. 18].
Walker Estate et al. v. York Finch General Hospital et al., [2001] 1 S.C.R. 647; 268 N.R. 68; 145 O.A.C. 302; 2001 SCC 23, refd to. [para. 24].
Fairchild Estate v. Glenhaven Funeral Services Ltd. et al. (2002), 293 N.R. 1; [2002] UKHL 22; [2002] 3 All E.R. 305, refd to. [para. 29].
Barker v. Corus (UK) plc (2006) 351 N.R. 102; [2006] 2 A.C. 572; [2006] UKHL 20, refd to. [para. 29].
Sienkiewicz v. Greif Ltd., [2011] N.R. Uned. 37; [2011] UKSC 10; [2011] 2 All E.R. 857, dist. [para. 29].
Authors and Works Noticed:
Weinrib, Ernest, J., The Idea of Private Law (1995), p. 156 [para. 7].
Counsel:
Dick Byl and Kimi Aimetz, for the appellant;
Robert A. Easton, Ryan W. Morasiewicz and Greg A. Cavouras, for the respondent;
Jonathan Eades, for the intervener.
Solicitors of Record:
Dick Byl Law Corporation, Prince George, British Columbia, for the appellant;
Miller Thomson, Vancouver, British Columbia, for the respondent;
Attorney General of British Columbia, Vancouver, British Columbia, for the intervener.
This appeal was heard on February 17, 2012, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada. The judgment of the Court was delivered in both official languages on June 29, 2012, with the following reasons for judgment and dissenting reasons:
McLachlin, C.J.C. (Deschamps, Fish, Abella, Cromwell, Moldaver and Karakatsanis, JJ., concurring) – see paragraphs 1 to 54;
LeBel, J., dissenting (Rothstein, J., concurring) – see paragraphs 55 to 63.
