ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Indivisible Injuries’

Indivisible Injury Principle Applied Where Injuries Aggravated in Limitation Barred Event

March 28th, 2017

Helpful reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, showing the Plaintiff friendly scope of the Indivisible Injury principle.

In today’s case (Griffioen v. Arnold) the Plaintiff was involved in two vehicle collisions.  The first in 2011.  She sued the at fault motorist who admitted liability.  She was involved in a second collision in 2014.  She was a passenger in her husband’s vehicle.  He was at fault for the second crash but she chose not to sue and the limitation period to do so expired.  The second crash aggravated the injuries from the first.

The Defendant argued that the Plaintiff’s damages must be reduced to the extent that the second crash aggravated them.  The Court disagreed noting the principle of indivisible injury allows the Plaintiff to fully recover damages from the first Defendant who is then burdened to seek indemnification from other contributing tortfeasors.  In applying the indivisible injury principle in the Plaintiff’s favour Mr. Justice Bracken provided the following reasons:

[117]     In this case, the plaintiff elected not to sue her husband, who was the person at fault in the second accident.  She admits that he was at fault and that her right to bring an action is now statute-barred by the Limitation Act, SBC 2012, c. 13.

[118]     In Bradley v. Groves, 2010 BCCA 361 at paras. 32 – 34, the court said:

[32]      There can be no question that Athey [Athey v. Leonati, [1996] 3 S.C.R. 458] requires joint and several liability for indivisible injuries.  Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff.  They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.

[33]      The approach to apportionment in Long v. Thiessen [(1968), 65 W.W.R. 577 (C.A.)] is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility; Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial.  Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[34]      That approach is logically incompatible with the concept of an indivisible injury.  If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either.  It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.  This in no way restricts the tortfeasors’ right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.

[119]     In Pinch v. Hofstee, 2015 BCSC 1888, the plaintiff claimed compensation arising from a motor vehicle accident.  He was subsequently injured in a second accident and the injuries from the two accidents were found to be indivisible.  The court considered Bradley v. Groves, but found that any claim for the second accident was statute-barred by section 10(1) of the Workers Compensation Act.  Burnyeat J. held that the plaintiff could not recover full damages from the defendant in the first accident.

[120]     At para.60, Burnyeat J. stated:

[60]      I conclude that the Legislature has made it clear that the principles set out in Bradley, supra, do not apply where there is a statutory bar to recovery of what may be found to be indivisible damages.  Section 10(1) of the Act is but one example of the inability to recover indivisible damages arising out of a separate breach of duty of care.  A further example might be illustrated by a situation whereby proceedings relating to a first tortious act were not commenced within the limitation period and a second tortious act occurred. In those circumstances, I cannot conclude that damages would be available where an action was not commenced relating to the first act, a subsequent act caused injuries which were found to be indivisible from the first act, and a claim was advanced against the second tortfeasor for damages for the injuries caused both by the first and the second tortious acts.  Just as a claim for damages for a second tortious act could not “give life to” recovery of damages for a first act where a limitation period had expired so also s. 10(1) of the Act has taken away “any right and rights of action” available to Mr. Pinch and any recoverable “damages, contributions or indemnity” that might have been available to Mr. Pinch as a result of MVA #2.

[121]     In Sandhu v. Vuong, 2016 BCSC 1490, Master Baker followed Pinch v. Hofstee, and held that the defendant in one action could not commence a third party proceeding against a person liable for a second accident that happened in Manitoba because the accident there was statute-barred by a “no-fault” automobile insurance regime.

[122]     I do not agree that the situation here is the same as where an action is statute-barred as in both Pinch and Sandhu.  There was no right of action in British Columbia against the person liable for the second accident.  In Pinch, the Workers Compensation Act prevented an action and in Sandhu, the court held that as there was no right of action in Manitoba, there could not be a right in British Columbia.

[123]     In both Pinch and Sandhu, the plaintiffs were not simply beyond the time limit for commencing an action, but would be barred by statute from commencing an action even if they had done so within the statutory time limits.

[124]     It seems to me that it was open to the defendants in this case to commence a third-party action provided it was commenced within the time limit that started when the defendants became aware of their right to commence an action against the plaintiff’s husband.  That is, the time limits for the defendants may not be the same for a third party action as for an action by the plaintiff. 

[125]     The plaintiff obviously knew of her right to commence an action from the time of the accident.  The defendants were aware of their right to commence an action from the time they discovered they might be liable for some damages from the second accident.  I therefore find that Pinch and Sandhu are distinguishable from the facts of this case and in the circumstances, I am not prepared to apportion liability to the plaintiff’s husband in reliance on the principle of indivisibility and will apply the principle in Bradley.


BC Chief Justice – Indivisible Injury Assessment Applies for Charter Damages as Well

November 16th, 2016

Today the Chief Justice of the BC Supreme Court published reasons for judgement finding that the ‘indivisible injury’ assessment that developed under tort law is equally applicable when damages are being assessed for a Charter breach.

In today’s case (Henry v. British Columbia) the Court awarded the Plaintiff over $8 million in damages for a wrongful conviction and some 27 years of incarceration.  Prior to trial the Plaintiff settled with other Defendants.  The Province sought to have those settlements deducted from the awarded damages arguing they all covered a single indivisible harm.  Chief Justice Hinkson agreed and in ordering that the principles of ‘indivisible injury’ assessment apply to Charter damages provided the following reasons:

[33]        The plaintiff alleged that but for the separate actions or inactions of the City employees and provincial Crown counsel, he would not have been convicted and incarcerated for almost 27 years, and that but for the action or inaction of Canada he would have been released far sooner than he was.

[34]        In tort law, where there are multiple causes of injuries, the Court must determine whether the injuries are divisible or indivisible when assessing whether double recovery principles will apply: Athey v. Leonati, [1996] 3 S.C.R. 458 and E.D.G. v. Hammer, 2003 SCC 52. I see no reason why such an approach is not equally applicable to an award of Charter damages.

[35]        While the allegations against the Settling Defendants and non-settling defendants were based upon different allegations of fault, the relief sought was essentially the same: compensation for a wrongful conviction and some 27 years of incarceration. I find that the results alleged to have occurred from the causes of action pleaded against the City and the Province were indivisible.

[36]        While the ambit of the compensation sought from the City defendants and the Province was broader than that sought from Canada, the compensation sought from Canada was in large measure subsumed in the award the plaintiff recovered against the Province. Thus, these claims are also indivisible.

[37]        I am mindful of the fact that the plaintiff was obliged to proceed to trial by all of the original defendants and obliged by the Province to proceed to judgment before recovering any damages from it. The Alberta Court of Appeal in Bedard rejected that factor as a basis for not deducting settlement proceeds from damages awarded at trial. At para. 13, the Court confirmed the prevailing principle that the plaintiff cannot receive more in damages than the court awarded at trial.

[38]        In Hogarth v. Rocky Mountain Slate Inc., 2013 ABCA 57, leave to appeal ref’d [2013] S.C.C.A. No. 160, the point was made even more starkly:

[164]    The effect of Bedard is that the risk of a Pierringer agreement falls on the plaintiff. If it settles and “under-recovers” from the settling defendant, it will not be able to make up that shortfall from the non-settling defendants. On the other hand, if it “over-recovers” from the settling defendant (as in Bedard) it will not be allowed to keep the windfall.

[39]        I conclude that Hogarth correctly summarizes the effect of the decisions in Dos Santos and Bedard. In the result, I find that at least some of the settlement funds paid by the Settling Defendants to the plaintiff must be deducted from the damages that I have found the plaintiff is owed by the Province.  


Court Questions Whether “WCB Defence” Applies to Indivisible Injuries

May 16th, 2016

Last year Mr. Justice Burnyeat reasoned, in Pinch v. Hofstee, that a Plaintiff’s damages for indivisible injuries must be reduced to the extent that one of the events causing/contributing to the injury arose from a matter where tort litigation is barred by the Workers Compensation Act.

Last week ICBC asked a Court to uphold this reasoning in a separate lawsuit but Mr. Justice Kent declined noting the Pinch ruling was “highly debatable“.

In last week’s case (Kallstrom v. Yip) the Plaintiff was involved in a total of 6 collisions which gave rise to indivisible injuries of chronic pain and depression.  While dealing with the consequences of her injuries the Plaintiff also made a claim with WorksafeBC and received some compensation.  The Defendants argued that damages must be reduced to the extent of the workplace incident’s contribution to the Plaintiff’s condition.  Mr. Justice Kent disagreed and noted as follows:

[371]     I do not agree that any reduction in damages is required.  There are several reasons for this.

[372]     First, this is not a defence that has been formally pleaded in any of the actions.  The facts relating to, and the legal basis for, such a technical and unique defence are required to be pleaded and this has not been done.

[373]     In any event, Pinch neither applies to nor governs the present claim.  It was the subject matter of an appeal and cross-appeal, but the case was settled and thus no definitive ruling on this interesting (and highly debatable) point of law has yet been made by the Court of Appeal.  It must be noted that other decisions of this Court have treated a subsequent workplace accident aggravating a pre-existing injury as a situation of indivisible injury for which the defendant in the first accident remains 100% liable:  see e.g., Kaleta v. MacDougall, 2011 BCSC 1259.

[374]     Further, I do not agree that the employer’s conduct is properly labelled as tortious in this case.  It is not necessarily a tort for an employer to be difficult and demanding.  Similarly, the distraught actions of a mother witnessing a near-death incident involving her child may also not amount to an actionable tort, particularly where the result is mental distress without accompanying physical injury. Pinch involved negligence on the part of the Workers Compensation Act-immunized worker.  Further, Kaleta involved an on-the-job injury while lifting heavy product, i.e. no third-party negligence.

[375]     In the result, I hold that the “WCB defence” does not apply and no reduction in damages is required on that account.


Indivisible Injuries Cannot Get Around the Worker/Worker Defence to Recovery

October 19th, 2015

Update May 16, 2016 – the below decision was apparently appealed and a settlement was reached prior to judicial disposition.  For a case calling the below reasoning “highly debatable” you can click here.

________________________________

Adding to this site’s archives addressing the law of indivisible injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether the principle of indivisible injury allows a claimant to collect damages for a claim that is otherwise barred by the Workers Compensation Act.  In short the Court ruled that this cannot be done.

In today’s case (Pinch v. Hofstee) the Plaintiff was injured in a 2010 collision and sued for damages.  In 2013 the Plaintiff was involved in a second collision which proceeded through WorkSafeBC as both motorists were in the course of their employment at the time.

At the trial for the first collision the Court found that both crashes resulted in indivisible injury.  The general rule with indivisible injuries from two non at-fault events is that the Plaintiff can seek full compensation for these from a single tortfeasor.  In finding this general rule does not apply in the case of indivisible injuries contributed to by an event caught by the worker/worker bar Mr. Justice Burnyeat provided the following reasons:

[53]         Having concluded that the injuries suffered were indivisible, the question that arises is whether Mr. Pinch is in a position to claim against Mr. Hofstee for the injuries suffered by him in MVA #2.  Despite my conclusion that the injuries suffered by Mr. Pinch in MVA #1 and MVA #2 were indivisible, I nevertheless conclude that Mr. Pinch is not in a position to claim damages against Mr. Hofstee arising out of the injuries that were incurred as a result of MVA #2.  I am satisfied that the effect of s. 10 of the Act precludes seeking damages arising from what are said to be indivisible damages.

[54]         Section 10(1) of the Act makes it clear that the provisions of that Part of the Act are “…in lieu of any right and rights of action, statutory or otherwise, founded on a breach of duty of care or any cause of action…”  [emphasis added].  Therefore, s.10(1) refers not only to “rights of action” but “any right…founded on a breach of duty of care or any other cause of action…”  I am satisfied that the “right” to claim for recovery for indivisible damages is a right that is precluded by s. 10(1) of the Act, being a right which is separate and distinct from a right to commence an action.  In this regard, s. 10(1) provides not only that the provision of the Part of the Act is in lieu of “any right and rights of action…” founded on the breach of duty of care that Mr. Pinch may have against an employee or an employer but also that “no action in respect of it lies” and that “any right…founded in a breach of duty of care” is precluded.  I am satisfied that this precludes any right that Mr. Pinch may have which is founded on a breach of duty of care by Mr. Hofstee.

[55]         The purpose of this section of the Act is to remove from the jurisdiction of the court the ability to deal with the rights of employees such as Mr. Pinch and the liability of employers when personal injuries are suffered in the course of employment. In this regard see DiCarlo v. DiSimone (1982), 39 O.R. (2d) 445 (H.C.) and Mitrunen v. Anthes Equipment Ltd. (1984) 57 B.C.L.R. 287.  In Mitrunen, Gould J. dealt with an action against Dominion Construction Company Limited which was an employer and Anthes Equipment Ltd. that was not.  After citing with approval the decision in DiCarlo, supra, in deciding that he was not bound by the unreported decision in Middleton v. Chen (C810663‑October 25, 1982), Gould J. determined that the Act governed and that it relieved the non‑employer defendant for liability for damages caused by the fault of the employer defendant.  On appeal, (1985) 17 D.L.R. (4th) 567, Seaton J.A., on behalf of the Court made this statement:

Section 10 first, in s-s (1), takes away the plaintiffs right of action against his employer and against co-employees. Subsections (2) to (5) deal with compensation and the bringing of an action against others. Subsection (6) talks about the worker, his dependant or the board bringing an action against some person other than an employer or worker. Subsection (6) thus leads logically to s-s (7) which, in its beginning words, clearly encompasses actions against those not employers or fellow workers. What it then says is that in that action if it is found that the death was due partly to a breach of duty of the employer or worker, then no damages are recoverable for the portion of the loss or damage caused by the negligence of the employer or worker. It does not say no damages are recoverable against the employer or worker; it is simply no damages are recoverable. On the face of it that must mean against anyone. The subsection, as I have mentioned, deals with an action brought against some person other than an employer or worker and it deals with actions brought by workers, dependants or by the board. It does not appear to deal with actions against employers or workers; they are covered by s-s (1).

(at para. 14)

[56]         The statement of Seaton J.A. is clear – “No damages are recoverable”.  I am satisfied that the decisions in Mitrunen, supra, relieve a non‑employer defendant such as Mr. Hofstee from liability for damages caused by his or her fault.

[57]         Section 10(2) reinforces this interpretation as it describes the ability of Mr. Pinch to “claim compensation” or “bring an action”.  I cannot conclude that the ability to “claim compensation” expands the right of Mr. Pinch to claim against Mr. Hofstee that which he could not claim directly against the driver of the vehicle involved in MVA #2.

[58]         Section 10(7) of the Act also re-enforces this interpretation of s. 10(1) of the Act as it is clear that “no damages, contributions or indemnity are recoverable for the portion of the loss or damage caused by the negligence of that employer or worker…”  If no “damages, contributions or indemnity” are recoverable by Mr. Pinch against the other driver involved in MVA #2, I cannot conclude that the indivisible damages caused by the negligence of the individual who caused MVA #2 would be recoverable against Mr. Hofstee.

[59]         Section 10(7) of the Act is broad enough to exclude the ability of the Mr. Hofstee to claim contribution or indemnity against the driver involved in MVA #2: Storey v. Canada Post Corp. (2006) 55 B.C.L.R. (4th) 131 (C.A.) at paras. 42‑45.  It could not have been intended by the Legislature that there be an exception to the general rule that no damages were recoverable and that a claim for contribution was not available, but that the full amount of the damages from MVA #1 and MVA #2 would be available against Mr. Hofstee despite the fact that he would not be in a position to look to the driver involved in MVA #2 for contribution.  I conclude that the effect of s. 10(7) of the Act was intended by the Legislature to protect not only those who were immune from suit under the scheme created by the Act from exposure to joint liability but also those who were not in a position to call upon another tortfeasor for contribution.

[60]         I conclude that the Legislature has made it clear that the principles set out in Bradley, supra, do not apply where there is a statutory bar to recovery of what may be found to be indivisible damages.  Section 10(1) of the Act is but one example of the inability to recover indivisible damages arising out of a separate breach of duty of care.  A further example might be illustrated by a situation whereby proceedings relating to a first tortious act were not commenced within the limitation period and a second tortious act occurred.  In those circumstances, I cannot conclude that damages would be available where an action was not commenced relating to the first act, a subsequent act caused injuries which were found to be indivisible from the first act, and a claim was advanced against the second tortfeasor for damages for the injuries caused both by the first and the second tortious acts.  Just as a claim for damages for a second tortious act could not “give life to” recovery of damages for a first act where a limitation period had expired so also s. 10(1) of the Act has taken away “any right and rights of action” available to Mr. Pinch and any recoverable “damages, contributions or indemnity” that might have been available to Mr. Pinch as a result of MVA #2.

[61]         I propose to deal with the damages suffered by Mr. Pinch as a result of MVA #1 as if MVA #2 had not occurred.  However, despite finding that the damages suffered in the two accidents were indivisible, I will then assess separately those damages which I can attribute only to MVA #2.  I do so in order to comply with s.10(7) of the Act which requires that I determine “…the portion of the loss or damages caused by…[the negligence of the driver in MVA #2]…although the…worker is not a party to the action”.  While it may seem inappropriate to determine the loss or damage caused by the driver involved in MVA #2 where a determination has been made that the damages arising out of MVA #1 and MVA #2 are indivisible, where the driver involved in MVA #2 is not a party to these proceedings, and where there has been no finding of liability for MVA #2, I will nevertheless do so because that is what is required under s. 10(7) of the Act.


Plaintiff Ordered To Produce Past Settlement Details in Potential Indivisible Injury Claim

May 4th, 2015

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff to disclose details of previous settlements in a personal injury prosecution.

In last week’s case (Dholliwar v. Yu) the Plaintiff was injured in three collisions.  The Plaintiff settled his first two claims.  In the third claim the Defendants requested details of the previous settlements and the Plaintiff did not produce these arguing the details were privileged.  The Court found the claims had overlapping and possibly indivisible injury claims and thus the details needed to be produced.  In reaching this decision Master Scarth reasoned as follows:

[10]         The cases set out the following principles which are applicable to this application:

a.               The public interest in the settlement of disputes generally requires “without prejudice” documents or communications created for, or communicated in the course of, settlement negotiations to be privileged:Middelkamp v. Fraser Valley Real Estate Board (1992), 71 B.C.L.R. (2d) 276 (C.A.).

b.               A final settlement agreement is covered under the Middelkamp blanket protection for settlement communications: B.C. Children’s Hospital v. Air Products Canada Ltd., 2003 BCCA 177, confirming a general policy of non-production of all documentation relating to settlement negotiations.

c.               To establish an exception to settlement privilege, the applicant must show that a competing public interest outweighs the public interest in encouraging settlement. An exception should only be found where the documents sought are both relevant, and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice. Relevance alone is not sufficient to override the settlement privilege. See Middelkamp; Dos Santos v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, para. 21.

d.               An exception to settlement privilege may be necessary to prevent injustice through excessive compensation to the plaintiff: Dos Santos, para. 29, citing Pete…

[26]         It has yet to be established here that the injuries arising from the third accident are indivisible from those in the first and second. However, on the basis that indivisibility is at issue, and that there is potential for over-compensation, it is appropriate to require disclosure of the settlement documents at this time. I accept the submission of the defendants that such disclosure is necessary, in that it may assist in the settlement of the plaintiff’s claims arising from the third accident. Disclosure at this time is consistent with the previous decisions of this Court in Pete and Murray. I am satisfied that the defendants here do not seek a purely tactical advantage, as the Court found in Phillips v. Stratton, 2007 BCSC 1298, but rather, they wish to have the information necessary to assess their exposure, both for purposes of settlement and in the preparation of their case for trial. 

[27]         In Dos Santos at para. 34, the Court stated that “significant weight should be given to the just disposition of pending litigation in determining whether the documents sought come within an exception to settlement privilege.” In my view, to find that the documents should be disclosed at this time is consistent with this approach.

[28]         To the extent that disclosure at this time raises concerns with respect to the fettering of the trial judge’s determination of damages, the parties may wish to agree that, as in Gnitrow Ltd, v. Cape plc, [2000] 3 All E.R. 763, the terms of the settlements not be disclosed to the trial judge until a determination of the damages payable by the defendant has been made: at para. 21.

[29]         In the circumstances, I conclude that it is appropriate to make an order for production of the documents which set out the terms of the settlements of the plaintiff’s claims arising from the two previous accidents.

[30]         The defendants are entitled to their costs in the cause.


Previous Similar But Recovered Injuries Are Not Indivisible

March 21st, 2014

Interesting reasons for judgment were released this week by the BC Supreme Court, Campbell River Registry, addressing whether previous similar but recovered injuries are indivisible for the purpose of damage assessment.  In short the Court held that they are not.

In this week’s case (Lawson v. Kirk) the Plaintiff was injured in a 2010 collision.  The Defendant “ has admitted liability for the accident and -quite refreshingly – has admitted the plaintiff was injured in the accident.”.  The Plaintiff has similar injuries fro a previous collisins although these were recovered prior to the 2010 collision.  In finding such injuries divisible Mr. Justice Johnston provided the following reasons:

[45]         Ms. Lawson has agreed that the injuries she suffered in her 2007 accident were very similar to those suffered in this accident, and that her complaints in late 2009, arising out of the 2007 motor vehicle accident, were very similar to complaints she had in 2012 and 2013, following this accident. That raises the question of divisible or indivisible injuries.

[46]         I conclude that, for the purposes of causation, the injuries from the two accidents are divisible. Although Ms. Lawson had very similar complaints of discomfort arising from the same areas of the neck and back, I accept her evidence that her symptoms from the first accident had resolved by the time of the second accident. From the point of view of damage assessment, I find there was no measurable risk that the injuries caused in the first accident which would have resulted in ongoing losses in any event, so that pre-existing risk need not be taken into account in assessing the damages flowing from this defendant’s negligence. See Moore v. Kyba, 2012 BCCA 361 at para. 43.

[47]         I say that for these reasons:

·       Ms. Lawson was able to do all of the housework while she and Mr. Furnseth lived in Fort St. John from December 2009 to May 2010;

·       In that same period, Ms. Lawson drove the considerable distance between Fort St. John and Campbell River and back again two or three times with no difficulty;

·       When she returned to Campbell River in late May 2010, Ms. Lawson resumed her duties at the bakery, with no difficulty;

·       Ms. Lawson took up the second job at a fitness center in June 2010, again without difficulty;

·       Ms. Lawson participated in a soccer tournament on the Canada Day weekend in 2010 without difficulty.

[48]         I have accepted Ms. Lawson’s evidence that she was able to do the above activities without difficulty. I have discounted Mr. Furnseth’s evidence that, while the two were in Fort St. John, he and Ms. Lawson engaged in activities such as riding off-road vehicles because Ms. Lawson did not testify to those activities.

[49]         The view of the evidence most favourable to the defendant would be that Ms. Lawson’s injuries arising out of this accident acted upon a plaintiff who was perhaps more susceptible to injury as a result of the earlier accident, that is to say, in which Ms. Lawson’s damages should be assessed on the basis that the “thin skull” reasoning as opposed to a “crumbling skull” reasoning.


Damages Must Flow From Aggravations of Pre-Existing Injuries

June 13th, 2013

Reasons for judgement were released this week by the BC Court of Appeal confirming that judges must award damages when pre-existing conditions are aggravated in part due to a tortious cause.

In this week’s case (Sangha v. Chen) the Plaintiff was involved in a 2005 intersection crash.  Both the Plaintiff and Defendant were at fault for the incident.   The trial judge assessed damages on the basis that the Plaintiff sustained a two year soft tissue injury.  At the time of trial the Plaintiff had on-going chronic pain which was rooted in chronic depression which pre-dated the accident.  However, the Court found that the collision physical injuries “aggravated his previous depressed state” but did not assess damages for the on-going worsened depression finding that the Plaintiff “would have suffered his current symptoms in any event“.

In finding that this was in error and that damages needed to be assessed to reflect the collision caused aggravation of pre-existing depression the BC Court of Appeal provided the following reasons:

[26]        With respect, it does not appear to me to have been open to the judge to find, as she did in para. 110 that Mr. Sangha “would have suffered his current symptoms, in any event”, having found earlier in that same paragraph that “his physical injuries aggravated his previous depressed state”. Further, her conclusion that Mr. Sangha would have suffered his current symptoms appears to be inconsistent with her view expressed in para. 111 that “at most the injuries suffered in the accident aggravated the plaintiff’s mood symptoms”. Given that the “mood symptoms” are exactly those symptoms encompassed within the pre-existing condition of depressive illness, para. 111 appears to allow for attribution of at least a portion of Mr. Sangha’s current symptoms to the physical injuries sustained in the accident.

[27]        I recognize that one must not parse a trial judge’s reasons for judgment with too much exactitude, and so I have turned to the evidence relied upon by the trial judge, the medical report of Dr. Riar, in her determination that all of Mr. Sangha’s current malady derives from his pre-existing condition. Nowhere in that report does Dr. Riar entirely dissociate the current condition of Mr. Sangha from the accident, so as to support the judge’s conclusion that Mr. Sangha would have suffered his current symptoms, in any event. While Dr. Riar clearly considered that the preponderance of Mr. Sangha’s current symptoms derive from the pre-existing mental illness, Dr. Riar also said “I feel that the accident in question aggravated his mood symptoms, which in turn fed into his pains, and they have continued like that all along” and “The only thing the accident did was complicate his situation somewhat more”. Questioned about this, Dr. Riar affirmed this view of the reflection to at least a small degree, of the physical injuries in Mr. Sangha’s current malady:…

[29]        The correct approach to pre-existing conditions is discussed in Athey v. Leonati, [1996] 3 S.C.R. 458, under the rubric of “crumbling skull:

            The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award: Graham v. Rourke, 74 D.L.R. (4th) 1; Malec v. J. C. Hutton Proprietary Ltd., 169 C.L.R. 638; Cooper-Stephenson, supra, at pp. 851-852. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.

[30]        I also refer to Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R., 2005 SCC 58.:

[78]      It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey. …

[31]        I respectfully conclude that the judge erred in failing to reflect, in her damages award, her conclusion of fact that “the physical injuries aggravated his previous depressed state” and “the accident did cause at least some of” the psychological symptoms. To what extent the damages should have been adjusted to account for these conclusions I cannot say. That question is one particularly within the purview of a trial judge. Accordingly, in my view, the award of damages must be set aside and the issue of quantum of damages must be remitted to the Supreme Court of British Columbia for fresh assessment.


Indivisible Injury Analysis Applicable For Both Causation and Quantum of Damages

August 30th, 2012

The BC Court of Appeal released reasons for judgement this week further addressing the law of indivisible injuries.

In this week’s case (Moore v. Kyba) the Plaintiff was member of the Canadian Navy and suffered an interscapular injury in a 2007 motor vehicle collision.   A year before this he injured his right shoulder in a shipboard fall and lastly suffered a bicep tear during a fall in 2008.

He sued for damages claiming the collision injury permanently disabled him from his naval career.  ICBC argued that no injury was caused and that this man’s disability was related to the falls.  The Jury accepted the Plaintiff’s claims and awarded $823,962 in damages for loss of earning capacity.  ICBC appealed arguing the trial judge gave the Jury improper instructions addressing indivisible injuries.  The Appeal was dismissed with the Court providing the following summary of the law:

[32] Much judicial ink has been spilled concerning the characterization of multiple injuries as divisible or indivisible, and the impact of that characterization on the determination of causation and assessment of damages in a negligence case.

[33] The legal principles underlying these concepts are clear, but explaining them to a jury “is no easy task” (see Laidlaw v. Couturier, 2010 BCCA 59 at para. 40).  Nor is their application in varying particular factual contexts always straightforward.

[34] The relevant principles were clearly set out in Athey v. Leonati, [1996] 3 S.C.R. 458.  Their elaboration in Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, and by this Court in T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670 at paras. 22-37, B.P.B. v. M.M.B., 2009 BCCA 365, Bradley v. Groves, 2010 BCCA 361 and Laidlaw are also helpful.

[35] The basic principles at play in this analysis are that a “defendant is not liable for injuries which were not caused by his or her negligence” (Athey at para. 24), and “the defendant need not put the plaintiff in a position better than his or her original position” (Athey at para. 35).  These two principles, which deal with the concepts of causation and assessment of damages, were distinguished in Blackwater (at para. 78):

It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey.

[36] Thus, whether a defendant is liable to a plaintiff for an injury is a matter of causation; the amount of compensation the defendant must pay is a matter of assessment of damages.

[37] The concepts of divisible and indivisible injury are relevant at both stages of the analysis.  At the stage of determining causation, the characterization of the plaintiff’s injury or injuries as divisible or indivisible is relevant in determining what the defendant is liable for.  As explained in Athey (at paras. 24-25):

The respondents submitted that apportionment is permitted where the injuries caused by two defendants are divisible (for example, one injuring the plaintiff’s foot and the other the plaintiff’s arm): Fleming, supra, at p. 201. Separation of distinct and divisible injuries is not truly apportionment; it is simply making each defendant liable only for the injury he or she has caused, according to the usual rule. The respondents are correct that separation is also permitted where some of the injuries have tortious causes and some of the injuries have non-tortious causes: Fleming, supra, at p. 202.  Again, such cases merely recognize that the defendant is not liable for injuries which were not caused by his or her negligence.

In the present case, there is a single indivisible injury, the disc herniation, so division is neither possible nor appropriate. The disc herniation and its consequences are one injury, and any defendant found to have negligently caused or contributed to the injury will be fully liable for it.

[Emphasis added.]

[38] In this case, in determining causation, the jury had to determine whether the appellant caused injury to the respondent, and if so, whether the rotator cuff injury, the interscapular pain, and the bicep tear were divisible injuries or an indivisible injury.  If they were divisible, the appellant could only be found to be liable for the interscapular pain caused by the motor vehicle accident.  If they were indivisible, the appellant would be liable for that indivisible injury. ..

[41] At the stage of assessment of damages, the question is what compensation the plaintiff is entitled to receive from the defendant.

[42] If the injury is divisible, then the plaintiff is entitled to be compensated for the injury caused by the defendant.  In this case, if the interscapular pain was a divisible injury, then the respondent was entitled to compensation for his loss flowing from that injury.

[43] If the injury is indivisible, then the plaintiff is entitled to be compensated for the loss flowing from the indivisible injury.  However, if the plaintiff had a pre-existing condition and there was a measurable risk that that condition would have resulted in a loss anyway, then that pre-existing risk of loss is taken into account in assessing the damages flowing from the defendant’s negligence.  This principle is called the “crumbling skull” rule.  As explained in Athey (at para. 35):  “This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.”

[44] For a recent example of a reduction in damages to reflect a pre-existing condition, see Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2012 BCCA 331.

At the conclusion of the reasons the Court of Appeal attached the trial judge’s jury charge which is worth reviewing.  For access to my archived posts addressing indivisible injuries you can click here.


$80,000 Non-Pecuniary Damage Assessment For Aggravation of Pre-Existing Back Pain; Indivisible Injuries Discussed

April 11th, 2012

Reasons for judgement were released last week assessing damages for a permanent aggravation of pre-existing back and neck injuries as a result of a collision.

In last week’s case (Delgiglio v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was involved in a 2009 collision.  His vehicle was struck by an RCMP cruiser that ran a red light.  The Defendant motorist claimed the crash happened due to faulty brakes but the Court rejected this suggestion and found the officer fully at fault.

The Plaintiff suffered from various pre-existing injuries including chronic back pain.  Despite this he was able to work.  Following the 2009 collision his injuries were aggravated and disabled the Plaintiff from his occupation as a truck driver.  The Plaintiff’s disability was expected to continue.   In assessing non-pecuniary damages at $80,000 Madam Justice Gropper made the following findings:

[91] The evidence supports, and I have found, that Mr. Del Giglio suffered a re-aggravation of his neck and lower back pain in the January 2009 accident. He has reached a plateau in his recovery. He has not returned to his baseline level of activity which he enjoyed before the accident. He has not returned to his pre-accident level of pain. Though initially optimistic, Mr. Del Giglio’s physicians are all of the view that his prognosis is “guarded at best.”

[92] Mr. Del Giglio has suffered pain and loss of enjoyment of his life. The injuries have had a serve impact. I accept that Mr. Del Giglio’s pain has been distressful and have affected his emotional state. Despite Dr. Monk’s not having diagnosed depression, Dr. Purtzki did find such symptoms, which are anticipatable, given the reduction in the activities, including the ability to work, which Mr. Del Giglio has experienced.

[93] On the other hand, Mr. Del Giglio has been able to maintain his musical career, a vocation that he clearly thrives upon. That is a factor which I will take into account.

[94] A further factor is that Mr. Del Giglio is aging and some deterioration in his cervical spine is, in Dr. McKenzie’s words, “not uncommon.”  I accept that he would have had some increased pain at some point, but the accident accelerated the onset…

[97] Having reviewed the cases provided, I conclude a fair and reasonable award for non-pecuniary damages is $80,000.

In addition to the above this case is worth reviewing for the Court’s discussion of indivisible injuries at paragraphs 73-86 of the reasons for judgement and the arguments of defence regarding the effects of a release for a previous collision contributing to an indivisible injury.


Unfairness of Indivisible Injury Assessment Remedied Through Apportionment, Contribution and Indemnity

April 10th, 2012

The law in BC has developed to permit a Plaintiff who sustained ‘indivisible injuries‘ caused by multiple defendants to seek full compensation from any of the at fault parties.  Useful reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this reality and finding that any unfairness arising from such a result can be remedied through apportionment, contribution and indemnity as between the Defendants.

In last week’s case (Scoates v. Dermott) the Plaintiff suffered injuries in 4 separate collisions.  The first was the most serious causing multiple orthopaedic injuries.  The subsequent collisions were more minor in nature causing an aggravation of injuries.   After canvassing the law of indivisible injury compensation at length Mr. Justice Smith provided the following reasons and interestingly went on to note that an indivisible injury can be divisible with respect to specific heads of damage:

[161] Counsel also argues that it would be unfair to the Defendant Carse to hold him jointly and severally liable for all of the injuries the Plaintiff has suffered.  In Bradley, the Court of Appeal recognized that such an unfairness may result from a finding of indivisible injury, but can be remedied through the rights defendants have against each other (at para. 36):

It may be that this represents an extension of pecuniary liability for consecutive or concurrent tortfeasors who contribute to an indivisible injury.  We do not think it can be said that the Supreme Court of Canada was unmindful of that consequence.  Moreover, apportionment legislation can potentially remedy injustice to defendants by letting them claim contribution and indemnity as against one another.

[162] I therefore conclude that the second accident contributed to an indivisible injury and the defendant Carse is jointly and severally liable to the plaintiff.  I will deal with the question of apportionment later in these reasons.

[163] The third and fourth accidents each caused a temporary aggravation in the plaintiff’s generalized pain. It is not possible to identify a precise date when the aggravation from each of the third and fourth accidents ended and the plaintiff’s pain returned precisely to a previous baseline.  The subjective nature of pain and the physical and psychological factors that contribute to it are simply too complex for such an assessment.  In my view, that is precisely the scenario the Court of Appeal was addressing when it said in Bradley (at para. 34):

If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either. It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.

[164] Bradley discusses the concept of indivisibility in a physical sense – injuries to the same part of the body that cannot be divided into distinct parts.  But there appears to be no reason in principle that a physically indivisible injury may not be divisible for the purpose of specific heads of damage.  The basic rule remains that defendants cannot be held liable for losses they played no part in causing.

[165] The third and fourth accidents temporarily increased the plaintiff’s pain and suffering and must be seen as contributing to an indivisible injury for purposes of assessing non-pecuniary damages.  But those accidents played no part in the plaintiff’s loss of income, inability to return to his former occupation or his loss of earning capacity.

[166] By the time of the third accident, the plaintiff had not worked for approximately 18 months and it was clear that he would never be able to return to work as a paramedic.  A vocational consultant, Mr. Carlin, said in November 2009, that the plaintiff was not competitively employable for full time work and that his return to the work force in any capacity was “problematic”.  Although Mr. Carlin’s report was not written until November 2009, it was based on an interview and tests conducted June 18, 2009 – 10 days before the third accident.

[167] Similarly, Dr. Stewart said in September 2009 that it was unlikely the plaintiff would return to the workforce to any significant degree.  That was also based on an examination that predated the third accident.  The report was written after the third accident, but makes no reference to it.

[168] Accordingly, I find that the plaintiff’s income loss and loss of earning capacity are divisible in regard to the second and third accident.  Similarly, there is no evidence that the last two accidents have played any causative role in the plaintiff’s need for future therapies and other items that will be considered under the cost of future care.

[169] I therefore find that the defendants Nicole Braddick, Beverley Braddick and Melanie Jones contributed only to the plaintiff’s non-pecuniary damages and their joint and several liability to him is limited to those damages.  Similarly, the plaintiff’s past income loss must be divided between the periods before and after the second accident.  The defendant Carse is jointly and severally liable only for the losses incurred in the latter period