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MOTOR VEHICLE REPORTS Sixth Series/Sixi`Eme S´Erie Recueil De Jurisprudence En Droit Des V´Ehicules A` Moteur

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MOTOR VEHICLE REPORTS Sixth Series/Sixi`Eme S´Erie Recueil De Jurisprudence En Droit Des V´Ehicules A` Moteur MOTOR VEHICLE REPORTS Sixth Series/Sixi`eme s´erie Recueil de jurisprudence en droit des v´ehicules a` moteur VOLUME 4 (Cited 4 M.V.R. (6th)) EDITOR-IN-CHIEF/REDACTEUR´ EN CHEF Murray D. Segal, B.A., B.C.L., LL.B. Deputy Attorney General Province of Ontario ASSOCIATE EDITORS/REDACTEURS´ ADJOINTS Justice Rick Libman Ontario Court of Justice (Provincial Division) Toronto, Ontario John C. Pearson, B.A., LL.B., LL.M. Liz Rice, B.A., LL.B. Director, Crown Operations Barrister & Solicitor Central West Region Toronto, Ontario Ministry of Attorney General Ontario CARSWELL EDITORIAL STAFF/REDACTION´ DE CARSWELL Jeffrey D. Mitchell, B.A., M.A. Director, Editorial Production and Manufacturing Graham B. Peddie, LL.B. Product Development Manager Sharon Yale, LL.B., M.A. Julia Fischer, B.A.(HON.), LL.B. Supervisor, Legal Writing Acting Supervisor, Legal Writing Dionne Chambers, B.A., LL.B. Jim Fitch, B.A., M.A., LL.B. Senior Legal Writer Senior Legal Writer Peggy Gibbons, B.A.(HON.), LL.B. Natasha Major, B.A., LL.L. Senior Legal Writer Senior Legal Writer Anne Simpson, B.A., M.L.S., LL.B. Eden Nameri, B.A., LL.B. Senior Legal Writer Legal Writer Martin-Fran¸cois Parent, LL.B., Jackie Bowman LL.M., DEA (PARIS II) Content Editor Bilingual Legal Writer MOTOR VEHICLE REPORTS, a national series of topical law reports, is Recueil de jurisprudence en droit des v´ehicules a` moteur, une s´erie na- published 12 times per year. Subscription rate $362.00 per bound volume in- tionale de recueils de jurisprudence sp´ecialis´ee, est publi´e 12 fois par ann´ee. cluding parts. Indexed: Carswell’s Index to Canadian Legal Literature. L’abonnement est de 362 $ par volume reli´e incluant les fascicules. Indexa- tion: Index a` la documentation juridique au Canada de Carswell. Editorial Offices are also located at the following address: 430 rue St. Pierre, Le bureau de la r´edaction est situ´e a` Montr´eal — 430, rue St. Pierre, Mon- Montr´eal, Qu´ebec, H2Y 2M5. tr´eal, Qu´ebec, H2Y 2M5. ________ ________ © 2011 Thomson Reuters Canada Limited © 2011 Thomson Reuters Canada Limit´ee NOTICE AND DISCLAIMER: All rights reserved. No part of this publica- MISE EN GARDE ET AVIS D’EXONERATION´ DE RESPON- tion may be reproduced, stored in a retrieval system, or transmitted, in any SABILITE´ : Tous droits r´eserv´es. Il est interdit de reproduire, m´emoriser sur form or by any means, electronic, mechanical, photocopying, recording or un syst`eme d’extraction de donn´ees ou de transmettre, sous quelque forme ou otherwise, without the prior written consent of the publisher (Carswell). par quelque moyen que ce soit, electronique´ ou m´ecanique, photocopie, enre- gistrement ou autre, tout ou partie de la pr´esente publication, a` moins d’en avoir pr´ealablement obtenu l’autorisation ecrite´ de l’´editeur, Carswell. A licence, however, is hereby given by the publisher: Cependant, l’´editeur conc`ede, par le pr´esent document, une licence : (a) to a lawyer to make a copy of any part of this publication to give to a a) a` un avocat, pour reproduire quelque partie de cette publication pour judge or other presiding officer or to other parties in making legal submis- remettre a` un juge ou un autre officier-pr´esident ou aux autres parties dans sions in judicial proceedings; une instance judiciaire; b) a` un juge ou un autre officier-pr´esident, pour produire quelque partie de (b) to a judge or other presiding officer to produce any part of this publication cette publication dans une instance judiciaire; ou in judicial proceedings; or c) a` quiconque, pour reproduire quelque partie de cette publication dans le cadre de d´elib´erations parlementaires. (c) to anyone to reproduce any part of this publication for the purposes of « Instance judiciaire » comprend une instance devant une cour, un tribunal ou parliamentary proceedings. une personne ayant l’autorit´e de d´ecider sur toute chose affectant les droits ou les responsabiliti´es d’une personne. “Judicial proceedings” include proceedings before any court, tribunal or per- Ni Carswell ni aucune des autres personnes ayant particip´e a` la r´ealisation et son having authority to decide any matter affecting a person’s legal rights or a` la distribution de la pr´esente publication ne fournissent quelque garantie liabilities. que ce soit relativement a` l’exactitude ou au caract`ere actuel de celle-ci. 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This sonnes ayant particip´e a` son elaboration´ n’assument quelque responsabilit´e publication is provided on the understanding and basis that none of Carswell, que ce soit relativement a` l’exactitude ou au caract`ere actuel de son contenu the author/s or other persons involved in the creation of this publication shall ou au r´esultat de toute action prise sur la foi de l’information qu’elle be responsible for the accuracy or currency of the contents, or for the results renferme, ou ne peuvent etreˆ tenus responsables de toute erreur qui pourrait of any action taken on the basis of the information contained in this publica- s’y etreˆ gliss´ee ou de toute omission. tion, or for any errors or omissions contained herein. La participation d’une personne a` la pr´esente publication ne peut en aucun cas etreˆ consid´er´ee comme constituant la formulation, par celle-ci, d’un avis No one involved in this publication is attempting herein to render legal, ac- juridique ou comptable ou de tout autre avis professionnel. Si vous avez counting, or other professional advice. If legal advice or other expert assis- besoin d’un avis juridique ou d’un autre avis professionnel, vous devez tance is required, the services of a competent professional should be sought. retenir les services d’un avocat ou d’un autre professionnel. Les analyses The analysis contained herein should in no way be construed as being either comprises dans les pr´esentes ne doivent etreˆ interpr´et´ees d’aucune fa¸con official or unofficial policy of any governmental body. comme etant´ des politiques officielles ou non officielles de quelque organ- isme gouvernemental que ce soit. 8 The paper used in this publication meets the minimum requirements of 8 Le papier utilis´e dans cette publication satisfait aux exigences minimales American National Standard for Information Sciences — Permanence of Pa- de l’American National Standard for Information Sciences — Permanence of per for Printed Library Materials, ANSI Z39.48-1984. Paper for Printed Library Materials, ANSI Z39.48-1984. ISSN 0709-5341 ISBN 978-0-7798-3035-0 Printed in Canada by Thomson Reuters CARSWELL, A DIVISION OF THOMSON REUTERS CANADA LIMITED One Corporate Plaza Customer Relations 2075 Kennedy Road Toronto 1-416-609-3800 Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164 M1T 3V4 Fax 1-416-298-5082 www.carswell.com E-mail www.carswell.com/email MOTOR VEHICLE REPORTS Sixth Series/Sixi`eme s´erie Recueil de jurisprudence en droit des v´ehicules a` moteur [Indexed as: Clements (Litigation Guardian of) v. Clements] Joan Clements, by her litigation guardian, Donna Jardine (Respondent / Plaintiff) and Joseph Clements (Appellant / Defendant) British Columbia Court of Appeal Frankel, Tysoe, Garson JJ.A. Heard: May 26, 2010 Judgment: December 17, 2010 Docket: Vancouver CA036882, 2010 BCCA 581 R.A. Easton, R.W. Morasiewicz for Appellant D.G. Cowper, Q.C., D. Byl, K.V. Aimetz for Respondent Torts –––– Negligence — Causation — General principles –––– Plaintiff and defendant were wife and husband respectively — Husband had many years experience riding motorcycles — Parties were on motorcycle trip together in rain, and when trying to pass another vehicle, rear tire rapidly deflated due to puncture, motorcycle went into wobble, fell to one side and capsized — Wife suffered severe traumatic brain injury as result — Wife brought successful action against husband for damages for negligence — Trial judge found that husband was negligent in travelling at excessive speed, and in allowing motorcycle to be overloaded by more than 100 pounds — Trial judge held that causal effect of factors eluded precise scientific proof, but common sense supported conclusion that they materially contributed to wife’s injuries, and she had been exposed to unreason- able risk of injury — Husband appealed — Appeal allowed — Once trial judge found that wife had failed to prove causation under “but-for” test, action should have been dis- missed — “Material-contribution” test was not test for determining factual causation, but rather provided basis for finding legal causation where there was possibility that negli- gent actions could have been factual cause — Upon failure of proving “but-for” test, wife was required to show that it was impossible to prove causation due to circular or depen- dency causation, and prove that husband breached standard of care, exposed her to unrea- sonable risk of injury, and that she suffered that type of injury — Case did not involve either circular or dependency causation — Given current state of knowledge, it was not possible to prove whether negligent actions of husband caused harm. Cases considered by Frankel J.A.: Barker v. Corus (UK) Plc (2006), [2006] I.C.R. 809, [2006] 2 A.C. 572, 89 B.M.L.R. 1, [2006] 3 All E.R. 785, [2006] UKHL 20, [2006] 2 W.L.R. 1027 (U.K. H.L.) — considered 2 MOTOR VEHICLE REPORTS 4 M.V.R.
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