Court Questions Whether "WCB Defence" Applies to Indivisible Injuries
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:
 I do not agree that any reduction in damages is required. There are several reasons for this.
 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.
 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.
 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.
 In the result, I hold that the “WCB defence” does not apply and no reduction in damages is required on that account.