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Indivisible Injury Assessment Where a Plaintiff is Partly At Fault

In 2010 the BC Court of Appeal made it clear that a Plaintiff’s compensation is not to be reduced if an injury suffered in part by the negligent conduct of a Defendant is ‘indivisble‘ from other causes.  But what about circumstances where a Plaintiff’s own conduct partly contributed to the indivisible injury?  How should damages be addressed then?  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing such a scenario.
In last week’s case (Demidas v. Poinen) the Plaintiff was involved in 5 collisions.  He was not at fault for 4 of these and sued for damages.  The plaintiff was at fault for the fifth collision.  All five collisions caused a “cumulative” injury with each impact “exacerbating the symptoms that remained from the previous one to a collective whole“.
In addressing the “imperfect exercise” in assessing damages in these circumstances Madam Justice Humphries provided the following reasons:

[50] Counsel for the plaintiff approached the fifth “at-fault” accident as a question of contributory negligence which would reduce the non-pecuniary award to some extent.  When questioned about this by the court, he could provide no cases to support such an approach.  Counsel for the defendant said this was not a matter of contributory negligence but did not have an alternative approach.

[51] The effect of the at-fault accident on the overall damage award is not a matter of contributory negligence, although the effect on the overall result may be similar.  It is a matter of ensuring that the defendants are responsible only for the loss and damage they caused to the plaintiff.

[52] None of the cases cited to me by the plaintiff deal with sequential accidents, and none have at-fault accidents in the midst of accidents for which the plaintiff can claim damages.  InMacGillivary, supra, the provincial court judge applied Long v. Thiessen, (1968) 65 W.W.R. 577 and assessed damages separately for each of three accidents.  Where the effects of the injuries are not divisible, as here, that approach is not appropriate as between tortfeasors (Bradley v. Groves 2010 BCCA 1507).  On the other hand, the defendants are not responsible for the injuries Mr. Demidas caused to himself, so the effects of that accident have to be accounted for.

[53] Mr. Demidas says all his symptoms from the June 2009 accident resolved quickly and he was back to where he was before the accident.  In support of his position that the at-fault accident had little long-term effect on him, Mr. Demidas points to Dr. Sharp’s statement that it seems the third accident “set [him] on the road to chronicity”.  However Dr. Sharp says that statement is speculative.

[54] I do not accept Mr. Demidas’ evidence that the June 2009 accident did not exacerbate his symptoms to any significant degree.  This accident was no less serious than the others and in fact resulted in more vehicle damage.  As well, it seems to have caused Mr. Demidas considerable trouble with his knee.  It is very unlikely the exacerbation of soft tissue symptoms would all subside quickly after this accident, whereas the symptoms from the other four accidents would continue to the present time.  Dr. Sharp said the succession of all five accidents “served as the instrumental cause for his chronic neck pain, upper back pain and chronic cervicogenic headaches.”

[55] The effect of the accidents is cumulative, each one exacerbating the symptoms that remained from the previous one to a collective whole.  Therefore it is not appropriate to simply take one figure and multiply it by four as the defendant suggests.

[56] While this is not a situation where damage is divisible and capable of individual apportionment, nevertheless the loss and damage caused by the accident for which Mr. Demidas is at fault must be considered and removed from the overall award so that the defendants are not held responsible for that amount.

[57] This is an imperfect exercise, dealing with intangibles and hypotheticals.  Although each accident was fairly minor, the recurrence of accidents contributed to Mr. Demidas’ ongoing symptoms.  However, those symptoms are not as severe as those in the cases cited to me by the plaintiff.  Considering the authorities presented to me, the injuries sustained in the four accidents, and adjusting the amount for the effects of the at-fault accident, I set non-pecuniary damages at $45,000.

Demidas v. Poinen, Indivisible Injuries, Madam Justice Humphries

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