The Supreme Court of Canada has ordered a new trial for a Prince George woman seeking a settlement from ICBC for the severe brain injuries she suffered in a motorcycle accident.
Joan Clements was sitting on the passenger seat behind her husband, Joseph, when they hit wet weather during an August 2004 trip from Prince George to Kananaskis, Alta.
According to the ruling, the bike was overloaded and unknown to the couple, a nail had punctured the back tire. When Joseph accelerated past the speed limit to overtake another vehicle, the nail fell out, deflating the tire and Clements lost control of the bike.
Whether her husband's actions caused the accident is at issue. The case could affect the way negligence cases are dealt with, and hinges on the "but for" causation, which requires that but for a defendant's negligence, a plaintiff would not have been injured.
"It's actually a fairly important legal point," said Prince George lawyer Dick Byl, who is representing Clements. "The underlying legal issue is causation - what caused what - and that's something that's troubled the Supreme Court and various courts of appeal, for a long time. It's a tricky legal issue."
Clements found herself suing her husband after she was unable to get a satisfactory settlement from ICBC but the couple remains together, Byl said.
A Vancouver trial judge ruled in 2009 that it was impossible to prove "but for" causation, citing a lack of scientific reconstruction evidence.
Despite this, the trial judge went on to find Joseph Clements negligent, based on how much of a "material contribution" to the risk of injury his actions had made.
In 2010, the Court of Appeal for British Columbia overturned that judgment and dismissed the case, on the basis that "but for" causation had not been proved and the "material contribution" test did not apply.
However, the Supreme Court ruled by majority that the trial judge ruled in error, stating not only that the "material contribution" test was inapplicable but also that scientific precision was not necessary to prove "but for" causation.
The "material contribution" test is only applied in cases where it is unclear which of a number of defendants was responsible and where required to provide "compensation, fairness and deterrence."
It's the first time Byl has seen one of his cases reach the Supreme Court level.
He expects it will be another year before a trial is held and it will take place in B.C. Supreme Court in Prince George. However, there is also a chance ICBC will agree to an out-of-court settlement before then, Byl said.
ICBC declined to comment because the matter remains before the court.
