Unfairness of Indivisible Injury Assessment Remedied Through Apportionment, Contribution and Indemnity

The law in BC has developed to permit a Plaintiff who sustained ‘indivisible injuries‘ caused by multiple defendants to seek full compensation from any of the at fault parties.  Useful reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this reality and finding that any unfairness arising from such a result can be remedied through apportionment, contribution and indemnity as between the Defendants.
In last week’s case (Scoates v. Dermott) the Plaintiff suffered injuries in 4 separate collisions.  The first was the most serious causing multiple orthopaedic injuries.  The subsequent collisions were more minor in nature causing an aggravation of injuries.   After canvassing the law of indivisible injury compensation at length Mr. Justice Smith provided the following reasons and interestingly went on to note that an indivisible injury can be divisible with respect to specific heads of damage:

[161] Counsel also argues that it would be unfair to the Defendant Carse to hold him jointly and severally liable for all of the injuries the Plaintiff has suffered.  In Bradley, the Court of Appeal recognized that such an unfairness may result from a finding of indivisible injury, but can be remedied through the rights defendants have against each other (at para. 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.

[162] I therefore conclude that the second accident contributed to an indivisible injury and the defendant Carse is jointly and severally liable to the plaintiff.  I will deal with the question of apportionment later in these reasons.

[163] The third and fourth accidents each caused a temporary aggravation in the plaintiff’s generalized pain. It is not possible to identify a precise date when the aggravation from each of the third and fourth accidents ended and the plaintiff’s pain returned precisely to a previous baseline.  The subjective nature of pain and the physical and psychological factors that contribute to it are simply too complex for such an assessment.  In my view, that is precisely the scenario the Court of Appeal was addressing when it said in Bradley (at para. 34):

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.

[164] Bradley discusses the concept of indivisibility in a physical sense – injuries to the same part of the body that cannot be divided into distinct parts.  But there appears to be no reason in principle that a physically indivisible injury may not be divisible for the purpose of specific heads of damage.  The basic rule remains that defendants cannot be held liable for losses they played no part in causing.

[165] The third and fourth accidents temporarily increased the plaintiff’s pain and suffering and must be seen as contributing to an indivisible injury for purposes of assessing non-pecuniary damages.  But those accidents played no part in the plaintiff’s loss of income, inability to return to his former occupation or his loss of earning capacity.

[166] By the time of the third accident, the plaintiff had not worked for approximately 18 months and it was clear that he would never be able to return to work as a paramedic.  A vocational consultant, Mr. Carlin, said in November 2009, that the plaintiff was not competitively employable for full time work and that his return to the work force in any capacity was “problematic”.  Although Mr. Carlin’s report was not written until November 2009, it was based on an interview and tests conducted June 18, 2009 – 10 days before the third accident.

[167] Similarly, Dr. Stewart said in September 2009 that it was unlikely the plaintiff would return to the workforce to any significant degree.  That was also based on an examination that predated the third accident.  The report was written after the third accident, but makes no reference to it.

[168] Accordingly, I find that the plaintiff’s income loss and loss of earning capacity are divisible in regard to the second and third accident.  Similarly, there is no evidence that the last two accidents have played any causative role in the plaintiff’s need for future therapies and other items that will be considered under the cost of future care.

[169] I therefore find that the defendants Nicole Braddick, Beverley Braddick and Melanie Jones contributed only to the plaintiff’s non-pecuniary damages and their joint and several liability to him is limited to those damages.  Similarly, the plaintiff’s past income loss must be divided between the periods before and after the second accident.  The defendant Carse is jointly and severally liable only for the losses incurred in the latter period

apportionment, bc injury law, Contribution, Indemnity, Indivisible Injuries, Mr. Justice Smith, Scoates v. Dermott

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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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