Tag: Joint and Several Liability

BC Supreme Court – No "Joint and Several Liability" For Stanley Cup Rioters

Reasons for judgement were released yesterday by the BC Supreme Court,  Vancouver Registry, addressing if an individual causing property damage in a riot can be ‘jointly and severally’ liable for damage caused by others in the riot.
In this week’s case (ICBC v. Stanley Cup Rioters) British Columbia’s government monopoly auto insurer, ICBC paid out numerous claims after vehicles were damaged and destroyed in the 2011 Stanley Cup Riot in downtown Vancouver.
ICBC sued numerous individuals.  As with any lawsuit, collecting damages is a concern and some of the Defendants had deeper pockets than others.  ICBC argued that Defendants should be jointly and severally liable (a legal principle that allows a Plaintiff to collect all the damages from one of many responsible parties, typically the one with the deepest pockets, and leaving it to that Defendant to chase down and collect the fair share from other liable parties.).
Mr. Justice Myers rejected this argument finding that the Defendants were individually responsible for the damages they caused but the principles of joint and several liability were not triggered in this riot.  In reaching this conclusion the Court reasoned as follows:

[31]     In its notice of civil claim, ICBC pleaded:

499.     Each and all of the Defendants, named and unnamed, having participated in the Riot, are joint tortfeasors, along with others who participated in the Riot, and who joined in a common unlawful purpose of rioting contrary to criminal and common law, and thereby caused or contributed to the losses of the Plaintiff, and are liable to the Plaintiff for any or all of the damages caused by the Plaintiff herein.

The proposition is that the unlawful riot was a common design.  Every one who participated in it is a joint tortfeasor and therefore liable for all the damage done in the riot.

[32]     It is to be borne in mind that this was not a planned or deliberate riot.  There was no ringleader; it was not instigated by a person or group of people.  It was spontaneous.  Under these circumstances, it appears to me ICBC’s proposition is too broad.

[33]     First, it is too broad on a geographical level:  every one participating in the riot on Seymour Street would be jointly liable for damage done by participants on Howe Street.

[34]     Second, it is too broad from a conduct point of view.  For example, someone who has refused to leave the riot in order to take photographs would be equally liable for the destruction of a vehicle by someone else even if they never encouraged that destruction, much less laid hands on the vehicle.

[35]     Third, it is too broad because it does not recognise that the assistance rendered to the principal tortfeasor must be substantial.

[36]     Fourth, it begs the difficult factual distinction between whether there was one riot or several.  (Although the riot has been referred to in the singular, and I will continue to use the term, it is imprecise for the purposes of determining joint liability for a tort.)

[44]     As I stated, this was not a directed or coordinated riot.  Nor did it involve gangs spontaneously coalescing and then moving from location to location in unison.  As I set out above, I do not accept that participation in the riot, in itself, establishes joint and several liability for torts committed during the riot.  As noted by Lords Neuberger and Sumption in Sea Shepherd, joint tortious liability must be kept within reasonable bounds.  The analysis must be more fine-tuned than looking at the riot as a whole.  For most of the defendants, the question that must be asked is whether they acted in concert with the common end of destroying a vehicle and whether the destruction occurred as a result (above, para. 27).

[45]     Another way of expressing the question is to ask whether a defendant was part of the group that destroyed the vehicle and was his participation more than trivial.  That has to be examined vehicle by vehicle, defendant by defendant.  A defendant may be liable for damage to more than one vehicle if he took part in damaging those vehicles; that does not make him liable for all of the vehicles.

[46]     Several people spontaneously arriving at a vehicle and some of them cheering when another damages the vehicle does not amount to a common design.  There is no case where the law has gone that far.  Cheering or observing is not sufficient participation upon which to found joint liability.

[47]     People “piling on” a vehicle in order to damage or destroy it may be joint tortfeasors if it is apparent they acted together pursuant to a common design to do the damage.  In a riot context, I do not think it necessary that the plan be explicitly laid in advance between them.  They may also be concurrent tortfeasors if the damage they caused is impossible to apportion.  In that case, each is liable for the full amount of the loss.  They may also both be liable as principal tortfeasors (per Lord Toulson at para. 19 ofSea Shepherd).

[48]     There are several instances where a defendant did something to a vehicle that did not harm it (for example, attempting to remove a gas tank cover) and the vehicle was destroyed at a later point, there being no evidence as to the link between the defendant’s initial action and the ultimate destruction.  In that case, I do not think there can be any liability.  That can be viewed as an instance where, to use Lord Neuberger’s framework (above, para. 25), no assistance was provided to the tortfeasors who are primarily liable; i.e., those who caused the damage.  It can also be viewed as the defendant having only a similarity in design but being an independent actor not causing damage per Scrutton L.J. in The Koursk (above para. 27).

Joint TortFeasor Payments Fully Deductible From Lessor's Vicarious Liability Obligations

BC’s Motor Vehicle Act and Insurance (Vehicle) Act limit the vicarious liability of vehicle lessor’s to $1 million.  Reasons for judgement were released this week by the BC Court of Appeal clarifying this obligation when a personal injury claim is worth over $1 million and other responsible tort feasors have paid the first $1 million in damages.  In short, the BC Court of Appeal held that once payments from other tortfeasor’s are made up to $1 million lessor liability is fully extinguished.
In this week’s case (Stroszyn v. Mistui Sumitomo Insurance Company Limited) the Plaintiff was involved in a serious motor vehicle collision and settled his injury claim for $1.6 million.  ICBC, who insured the responsible driver, paid the first $1 million being the full extent of the Third Party insurance available.  The Plaintiff sought to collect the balance from the lessor, Honda Finance Inc., who was the registered owner of the Defendant’s vehicle and vicariously liable for the tort.
The BC Court of Appeal held that ICBC’s payment fully satisfied any exposure Honda had.  In reaching this conclusion and clarifying the protections given to vehicel lessor’s in BC the Court provided the following reasons:

[24]         I see no basis in law for considering only a portion of the ICBC payment to have been made on behalf of Honda. In my view, each of the insureds in this case can regard the whole of the payment made by ICBC to have been made on his, her or its behalf and to have reduced its liability to the petitioner to the full extent of the payment. In the absence of a statutory provision limiting the lessor’s liability, all three would remain jointly and severally liable for the balance of the petitioner’s damages. However, the I(V)A having limited the lessor’s liability to $1 million, it is my view that the payment of $1 million to the petitioner on behalf of all insureds, including the lessor, completely discharges the lessor’s liability and leaves the other defendants jointly and severally liable for the balance of the damages.

[25]         This must certainly be the case where the liability of Ms. Chen and Honda is entirely vicarious. Vicarious liability is discharged to the extent of any payment made in satisfaction of a plaintiff’s claim for damages. This is not a case where liability can be apportioned by degrees of blameworthiness, or severed.

Vehicle Lessor Liability Limit Over and Above That of Motorist

UPDATE – November 7, 2014 – the below decision was overturned in reasons released this week by the BC Court of Appeal
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Important reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the limit of exposure for vehicle lessor’s when their vehicles are involved in an at-fault collision.
Provisions of the BC Motor Vehicle Act and Insurance (Vehicle) Act expose lessor’s to $1,000,000 of liability when their vehicles are involved in a collision.  The BC Supreme Court was asked to interpret these provisions in the case of a $1.6 million dollar claim.
In this week’s case (Stroszyn v. Mitsui Sumitomo Insurance Company Limited) the Plaintiff sued an at fault motorist and the vehicle lessor for damages following a collision.  The quantum was agreed to at $1.6 million dollars.  The ICBC insured defendant paid out the policy limits of $1 million.    The vehicle lessor argued that they did not need to pay the balance as they were shielded by section 82.1 of the Insurance (Vehicle) Act from any payment after a Plaintiff collects $1 million.  Mr. Justice Bowden disagreed finding a lessor’s exposure, while capped at $1 million, is over and above damages collected from other liable parties. In reaching this conclusion the Court provided the following reasons:
[34]         As a lessor, under s. 86(1.2), Honda Canada is vicariously liable as a joint tortfeasor. Without the limitation in s. 82.1, it would be liable, together with the lessee, for all or part of the damages of $1,600,000. However, section s. 82.1 places a $1,000,000 limit on that liability such that Honda Canada’s portion cannot be greater than $1,000,000.
[35]         In my view, the payment of $1,000,000 on behalf of the lessee does not reduce the liability of Honda Canada to zero. It is simply a payment by one joint tortfeasor towards the total liability of the jointly liable parties. By virtue of s. 86(1.2) of the MVA, both the driver, Mr. Chen, and Honda Canada are jointly liable for the damages of $1,600,000. Pursuant to s. 82.1, Honda Canada’s portion of that liability cannot exceed $1,000,000. Of the total liability, $1,000,000 has been discharged by ICBC on behalf of the lessee, but Honda Canada remains liable as a joint tortfeasor, for $600,000.
[36]         This result is consistent with the plain meaning of s. 82.1 of the I(V)A which limits the liability of Honda Canada to $1,000,000. Its portion of the joint liability will not exceed $1,000,000. In my view, the combined effect of s. 86(1.2) of the MVA and s. 82.1 of the I(V)A is to expose a lessor, like Honda Canada, to liability as a jointfeasor, of $1,000,000, but no more. Thus, in this case, if the driver/lessee had no insurance coverage, the lessor would be liable for the amount of $1,000,000. On the other hand, if the insurance coverage of the driver/lessee resulted in a payment of $1,600,000, then no amount would be payable by the lessor, Honda Canada.

More on the Reality of Insurance and Costs Consequences Following Trial


Update March 21, 2014 – the Trial Judgement with respect to the relevance of insurance and costs was upheld today by the BC Court of Appeal
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In 2010 the BC Court of Appeal confirmed that Judges can look at insurance when considering the “financial circumstances” of litigants when addressing costs consequences following trials where a formal settlement offer was made.  Further reasons were released last week by the BC Supreme Court, Victoria Registry, confirming that costs consequences should not be applied with the ‘fiction‘ of ignoring insurance.
In last week’s case (Meghji v. Leethe Plaintiff suffered brain trauma after being struck by a motorist while walking in a marked cross-walk in 2003. At trial the motorist was found 90% at fault for the crash with the Ministry of Transportation shouldering the remaining 10% for designing the intersection with inadequate lighting.
Prior to trial the Plaintiff offered to settle for $750,000.  Neither Defendant accepted.  Damages at trial were assessed at just over $1.1 Million with the Defendants being jointly and severally liable.  The Plaintiff sought and was awarded double costs from the time of her offer onward.  In doing so Mr. Justice Johnston provided the following useful reasons addressing the reality of insurance and the risks of joint and several liability:

[33]Also relevant to consider is the fact that a well-funded party, such as MoTH,  faces higher risk with joint liability when other potentially liable parties have less means or no means with which to satisfy a possible judgment. In such circumstances, the well-heeled party may end up paying more than its proportionate share to the plaintiff if or when the impecunious party exhausts its ability to pay.

[34]This risk is balanced by the potential that the plaintiff might be held partly to blame for her losses, which would confine the well-funded party’s liability to its proportionate share of the loss through several liability: Leischner (Next friend of) v. West Kootenay Power, [1982] B.C.J. No. 1641…

[40]Quite apart from the fact that I am bound by the decision in Smith v. Tedford, its reasoning eliminates one fiction that ought not to complicate proceedings before a judge alone. That fiction is that there is no plan of universal compulsory automobile insurance in effect in British Columbia, mandated by statute, where the details of the coverage available are found in statute and regulation. If judges and others are presumed to know the law, there is little sense in requiring that judges ignore what the law provides when dealing with costs.

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.

Leave to Appeal In Bradley Denied; Welcome Certainty for Indivisible Injury Compensation


In an ICBC Claim decided last year the BC Court of Appeal simplified the approach for compensation for indivisible injuries caused by multiple events.  ICBC sought to overturn this decision and recently the Supreme Court of Canada refused leave (meaning they decided not to hear the case putting an end to the appeal).  For the sake of convenience here are the Court of Appeals key reasons explaining how indivisible injuries should be treated in British Columbia:

[32]        There can be no question that Athey 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 is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility: Longrequires 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.

[35]        This is not a case of this Court overturning itself, because aspects of Long v. Thiessen were necessarily overruled by the Supreme Court of Canada’s decisions in Athey,E.D.G., and Blackwater.  Other courts have also come to this same conclusion: see Misko v. Doe, 2007 ONCA 660, 286 D.L.R. (4th) 304 at para. 17.

[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.

[37]        We are also unable to accept the appellant’s submission that “aggravation” and “indivisibility” are qualitatively different, and require different legal approaches.  If a trial judge finds on the facts of a particular case that subsequent tortious action has merged with prior tortious action to create an injury that is not attributable to one particular tortfeasor, then a finding of indivisibility is inevitable.  That one tort made worse what another tort created does not automatically implicate a thin or crumbling skull approach (as in Blackwater), if the injuries cannot be distinguished from one another on the facts.  Those doctrines deal with finding the plaintiff’s original position, not with apportioning liability.  The first accident remains a cause of the entire indivisible injury suffered by the plaintiff under the “but for” approach to causation endorsed by the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.  As noted by McLachlin C.J.C. in that case, showing that there are multiple causes for an injury will not excuse any particular tortfeasor found to have caused an injury on a “but-for” test, as “there is more than one potential cause in virtually all litigated cases of negligence” (at para. 19).  It may be that in some cases, earlier injury and later injury to the same region of the body are divisible.  While it will lie for the trial judge to decide in the circumstances of each case, it is difficult to see how the worsening of a single injury could be divided up.

BC Court of Appeal Clarifies Law of Compensation for Injuries With Multiple Causes


Very important reasons for judgement were released today by the BC Court of Appeal making it easier for a Plaintiff involved in multiple not at fault traumas to be properly compensated for their injuries.
In today’s case (Bradley v. Groves) the Plaintiff was injured in 2 BC motor vehicle collisions.  The first happened in 2006.  She was not at fault.  She suffered from various soft tissue injuries which were recovering (but not recovered) when she was involved in a second collision in 2008.  She was faultless for this crash which aggravated the soft tissue injuries from the first crash.
The Plaintiff sued the motorist in the first crash.  The trial judge found that the injuries were “indivisible” and that the two crashes “were both necessary causes of the indivisible injuries“.  The trial judge valued the Plaintiff’s non-pecuniary damages of $30,000 for the entirety of her injury.  The Plaintiff was awarded damages for the whole amount with the trial judge stating that since the Plaintiff was not at fault for either event and since her injuries were indivisible this was the correct approach.  (you can click here to read the trial judgement)
The Defendant appealed arguing that the judge should have apportioned damages between the two crashes and only awarded the Plaintiff damages for the crash that she was suing for.  The Court of Appeal disagreed and upheld the trial judgment.  In doing so the Court clarified this important area of law which will now make it easier for not at fault Plaintiff’s injured through multiple events to be properly compensated for their loss.  The BC High Court provided the following useful reasons:

[32]        There can be no question that Athey 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 is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility: Longrequires 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.

[35]        This is not a case of this Court overturning itself, because aspects of Long v. Thiessen were necessarily overruled by the Supreme Court of Canada’s decisions in Athey,E.D.G., and Blackwater.  Other courts have also come to this same conclusion: see Misko v. Doe, 2007 ONCA 660, 286 D.L.R. (4th) 304 at para. 17.

[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.

[37]        We are also unable to accept the appellant’s submission that “aggravation” and “indivisibility” are qualitatively different, and require different legal approaches.  If a trial judge finds on the facts of a particular case that subsequent tortious action has merged with prior tortious action to create an injury that is not attributable to one particular tortfeasor, then a finding of indivisibility is inevitable.  That one tort made worse what another tort created does not automatically implicate a thin or crumbling skull approach (as in Blackwater), if the injuries cannot be distinguished from one another on the facts.  Those doctrines deal with finding the plaintiff’s original position, not with apportioning liability.  The first accident remains a cause of the entire indivisible injury suffered by the plaintiff under the “but for” approach to causation endorsed by the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.  As noted by McLachlin C.J.C. in that case, showing that there are multiple causes for an injury will not excuse any particular tortfeasor found to have caused an injury on a “but-for” test, as “there is more than one potential cause in virtually all litigated cases of negligence” (at para. 19).  It may be that in some cases, earlier injury and later injury to the same region of the body are divisible.  While it will lie for the trial judge to decide in the circumstances of each case, it is difficult to see how the worsening of a single injury could be divided up.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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