Case Study: Clements V Clements

Unjustifiable and inequitable as well as fair and modest are words used to describe the controversial and unfortunate situation, which is the Clements v Clements case. This case is of great significance which revolves around a severe motorcycle accident that took place from 2009 to 2012, which resulted in the plaintiff, Mrs Clements suffering severe traumatic injuries. The verdict still remains undecided in the Supreme Court of Canada based on the improper use of the But For Test and The Material Contributions Test. The abundance of information presented in the three court systems depict why is why it is such a difficult case to solve. The information that will soon be presented, more clearly describe some of the actions that occurred in court
One being the fact that Mr Clements expert evidence was required to be considered an equitable resource. This is not a correct court procedure and the judge was completely at fault for requiring this information. As it states “The but for causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.” (SCC 9) By the following quote it is easy to depict the overall error the judge made which results in this situation not being a fair and justified case. The trial judge’s second error was to insist on utilising the Material Contributions Test. There are certain situations in which it is appropriate to use the test, but this case was not one of them. The fact that Mrs Clements could not produce a “but for” test should have been enough for the trial judge to make a reasonable decision, and depict who was ultimately at fault. The Material Contribution Test is only to be used in special and unordinary circumstances, but it this case it should not have been used as an equitable resource. “The But for causation and liability on the basis of material contribution to risk are two different beasts. But For causation is a factual inquiry into what likely happened. The material
One of them being the fact that the plaintiff, Mrs Clements could not identify the defendants breaches via the “but for” test. Mrs Clements was purely basing her claims off the negligence of Mr Clements, which is not a proper court procedure. A stated by the judge “ On its own, proof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss. The plaintiff must also establish that the defendant’s negligence caused the injury. That link is causation.” (SCC 6) This means that the evidence Mrs Clements presented was not truly enough for Mr Clements to receive the punishments he did. To have an effective claim, the plaintiff must effectively prove that the defendant’s negligence and breach of duty of care is directly compatible to the injuries caused. Another aspect of the case that I don’t believe is fair, is the request for a retrial. If a new trial is set into place, there is nothing that will eventually come of it, and justice will not be obtained by anyone. Everything that was said in the previous trial will be said in the new trial, there will be no new evidence and no “but for” test will be proven. It will not be an effective means of determining who is at fault in this situation. If anything, the plaintiff will be coached by a dishonest