The Other Side of Bradley: Indivisible Injuries and Damage Deductions

In 2010 the BC Court of Appeal released welcome reasons for judgement (Bradley v. Groves) which made it easier for individuals to recover damages for “indivisible” injuries.  In short the Court confirmed that if two or more incidents caused an indivisible injury you could sue any of the party’s responsible for causing the harm and recover the whole of the loss.
There is, however, a downside to the benefits of Bradley v. Groves.  If you sustain an indivisible injury and receive compensation for it from one tortfeasor a subsequent tort feasor may be able to reduce their liability by the amount of the previous settlement or judgement.  This argument was considered in reasons for judgement released this week by the BC Supreme Court.
In this week’s case (Thomas v. Thompson) the Plaintiff sued for damages from a 2005 motor vehicle collision.  The trial judge found that some of the Plaintiff’s injuries were indivisible from those sustained in a 2002 collision.   The Plaintiff settled his claim for damages from the 2002 collision for $10,000.  Following trial the Defendant argued that the damage assessment for the 2005 collision should be reduced by $10,000 to take into account the previous settlement.
The Court noted that damages were assessed taking the Plaintiff’s pre-existing issues into account and that it would not be just to re-open the trial to allow for such a result.  Implicit in the Court’s judgement is that if the right evidence is tendered at trial such a deduction could be allowed.  Mr. Justice Brooke provided the following illustrative reasons:

[7] I did not accept the evidence of the plaintiff that he had made a full recovery from the 2002 accident. In assessing non-pecuniary damages for the effects of the accident of June 27, 2005, I took the plaintiff in the position he then occupied; that is, as continuing to make recovery from the earlier injuries. I did not treat him as if he were whole at the time of the second accident. Thus, I reject the submission that the settlement funds paid to the plaintiff following the first accident be deducted from the award for the damages sustained in the second accident. There is no double recovery.

[8] I refer to the decision of the British Columbia Court of Appeal in Bradley v. Groves, 2010 BCCA 361 where the plaintiff had been injured in a second accident which aggravated injuries sustained in the first accident. At paragraph 38 the Court said this:

Without a finding of divisibility, the appellant’s arguments cannot succeed. The trial judge found as a fact that the plaintiff’s injuries from the first accident and the second accident were indivisible. The defendant and the other motorist both caused and contributed to the plaintiff’s soft tissue injuries. He also found those injuries were not separable. There is no basis on which to interfere with these findings of fact. Flowing from them is the conclusion of joint and several liability.

[9] On all of the evidence before me, I found that the plaintiff’s injuries in the first and second accident were indivisible.

[10] While I accept that I have discretion to reopen the trial, I am not satisfied that it is right and just to do so.

For an example of this deduction argument succeeding see the 2008 BC Court of Appeal decision of Ashcroft v. Dhaliwal.