Indivisible Injuries With Pre and Post “Minor Injury” Crashes

What do BC Courts do with an indivisible injury claim where the injury arose in the pre ‘minor’ injury caps era and was aggravated after the ‘minor’ injury law came into force?

The first case to address this question found that, in line with the reasoning of Bradley v. Groves, the initial tort feasors can be held liable for the whole of the indivisible loss.

In the recent case (Rabbani-Nejad v. Sharma) the Plaintiff was injured in three collisions.   She sued for the first two and liability was admitted.  Both these claims preceded the ‘minor’ injury cap.  The third crash occurred in the ‘minor’ injury cap era and no lawsuit was started.

The Court found all three crashes contributed to some extent to her injuries.  The Court found the first two crashes caused an indivisible injury.  The third crash caused some new injury in addition to aggravating the indivisible injury.  To the extent of the latter the court found the Defendants were liable for the full extent of the losses from the indivisible injuries including the aggravation from the third crash.  In reaching this conclusion Mr. Justice G.C. Weatherill provided the following reasons:

[3]             On July 22, 2019, the plaintiff was involved in a third accident (“MVA #3”) during which the vehicle she was occupying was again rear-ended.  While there is no pleading in respect of MVA #3, the plaintiff relies on the decision of our Court of Appeal in Bradley v. Groves, 2010 BCCA 361 for the proposition that the plaintiff is entitled to claim the entirety of her loss from all three collisions in this proceeding…

[77]         In this case, the defendants have conceded that the injuries suffered by the plaintiff in MVA #1 and MVA #2 are indivisible.  Accordingly, the defendants are jointly and severally liable to her for the damages arising from the injuries she suffered as a result of those accidents: Bradley, at para. 32.

[78]         With respect to the injuries sustained by the plaintiff as a result of MVA #3, I accept the plaintiff’s evidence that the left-side lower back pain and pain in her left arm were caused by MVA #3 and are divisible from the injuries she sustained as a result of MVA #1 and MVA #2.  Her evidence in this regard is corroborated by an ICBC Physiotherapy Initial Report prepared two days after MVA #3 indicating she was treated only for pain in her lower left hip and back region.  There is no indication that she received any treatment for her neck on that occasion.  I accept the plaintiff’s evidence that her divisible MVA #3-related injuries, including the aggravation of her neck pain, resolved within two months.

[79]         I find that MVA #3 also aggravated the plaintiff’s injuries from MVA #1 and MVA #2.  In other words, MVA #3 made worse what MVA #1 and MVA #2 created in a manner that cannot be distinguished from the injuries suffered in those earlier MVAs.  Accordingly, MVA #1 and MVA #2 remain the cause of the entirely indivisible injuries suffered by the plaintiff under the “but for” test: Bradley, at para. 37; Scoates v. Dermott, 2012 BCSC 485 at paras. 164–165.