In Griffioen v. Arnold, the Plaintiff was injured in two motor vehicle collisions. With respect to the first accident, she commenced legal proceedings, and liability was admitted on behalf of the Defendant by ICBC’S lawyer. In regards to the second accident, she was a passenger in a vehicle driven by her husband, who was deemed to be at fault for the accident. She elected not to commence legal proceedings. The injuries that she sustained in the first accident were aggravated by the second accident.

 

Given that the nature of the injuries were similar between the two accidents, the principle of indivisible injuries was considered by the Court.

 

Indivisible injuries can be injuries that cannot be separated, such as aggravation or exacerbation of an earlier injury; can be an injury to the same area of the body; or, can be global symptoms that are impossible to separate. In the event of two or more separate motor vehicle accidents, the law in British Columbia allows for joint and several liability in this scenario, with either one of the Defendants, as long as they contribute to the injuries, being wholly liable for the loss to the Plaintiff. It is then up to the Defendants to attempt to apportion the loss between them.

 

In the case at bar, ICBC’S lawyer argued that the Plaintiff’s award must be reduced to the extent that the second crash aggravated the injuries from the first accident.

 

The Court disagreed, commenting :

 

[123] In both Pinch and Sandhu, the plaintiffs were not simply beyond the time limit for commencing an action, but would be barred by statute from commencing an action even if they had done so within the statutory time limits.

 

[124] It seems to me that it was open to the defendants in this case to commence a third-party action provided it was commenced within the time limit that started when the defendants became aware of their right to commence an action against the plaintiff’s husband. That is, the time limits for the defendants may not be the same for a third party action as for an action by the plaintiff.

 

[125] The plaintiff obviously knew of her right to commence an action from the time of the accident. The defendants were aware of their right to commence an action from the time they discovered they might be liable for some damages from the second accident. I therefore find that Pinch and Sandhu are distinguishable from the facts of this case and in the circumstances, I am not prepared to apportion liability to the plaintiff’s husband in reliance on the principle of indivisibility and will apply the principle in Bradley.

 

In Dholliwar v. Yu, the Plaintiff was involved in three motor vehicle accidents. The first two ICBC claims were settled. With respect to the third claim, the Plaintiff sought damages for pain and suffering, wage loss, and diminished earning capacity. ICBC’S lawyer took the position that the Plaintiff’s injuries between the three accidents were indivisible, and requested that the details of the two previous settlements be produced, arguing that this was necessary to prevent double recovery. Counsel for the Plaintiff refused to produce the documentation, citing privilege, and also argued that whether or not the injuries were indivisible, which counsel for the Plaintiff disputed, is a determination for the trier of fact, and that no ruling could be made on the present application. The Court would eventually rule that the documentation must be produced.

[10]         The cases set out the following principles which are applicable to this application:

a.               The public interest in the settlement of disputes generally requires “without prejudice” documents or communications created for, or communicated in the course of, settlement negotiations to be privileged: Middelkamp v. Fraser Valley Real Estate Board (1992), 71 B.C.L.R. (2d) 276 (C.A.).

b.               A final settlement agreement is covered under the Middelkamp blanket protection for settlement communications: B.C. Children’s Hospital v. Air Products Canada Ltd., 2003 BCCA 177, confirming a general policy of non-production of all documentation relating to settlement negotiations.

c.               To establish an exception to settlement privilege, the applicant must show that a competing public interest outweighs the public interest in encouraging settlement. An exception should only be found where the documents sought are both relevant, and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice. Relevance alone is not sufficient to override the settlement privilege. See Middelkamp; Dos Santos v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, para. 21.

d.               An exception to settlement privilege may be necessary to prevent injustice through excessive compensation to the plaintiff: Dos Santos, para. 29, citing Pete.

[26]         It has yet to be established here that the injuries arising from the third accident are indivisible from those in the first and second. However, on the basis that indivisibility is at issue, and that there is potential for over-compensation, it is appropriate to require disclosure of the settlement documents at this time. I accept the submission of the defendants that such disclosure is necessary, in that it may assist in the settlement of the plaintiff’s claims arising from the third accident. Disclosure at this time is consistent with the previous decisions of this Court in Pete and Murray. I am satisfied that the defendants here do not seek a purely tactical advantage, as the Court found in Phillips v. Stratton, 2007 BCSC 1298, but rather, they wish to have the information necessary to assess their exposure, both for purposes of settlement and in the preparation of their case for trial. 

[27]         In Dos Santos at para. 34, the Court stated that “significant weight should be given to the just disposition of pending litigation in determining whether the documents sought come within an exception to settlement privilege.” In my view, to find that the documents should be disclosed at this time is consistent with this approach.

[28]         To the extent that disclosure at this time raises concerns with respect to the fettering of the trial judge’s determination of damages, the parties may wish to agree that, as in Gnitrow Ltd, v. Cape plc, [2000] 3 All E.R. 763, the terms of the settlements not be disclosed to the trial judge until a determination of the damages payable by the defendant has been made: at para. 21.

[29]         In the circumstances, I conclude that it is appropriate to make an order for production of the documents which set out the terms of the settlements of the plaintiff’s claims arising from the two previous accidents.

 

 

In Lawson v. Kirk, the Plaintiff was involved in two motor vehicle accidents, the second of which was the case at bar. The Plaintiff admitted that the injuries she suffered in the first accident were very similar to the injuries that she suffered in the second accident, and that her complaints of pain were very similar as well with respect to both accidents. In the eyes of the Court, this raised the issue of the possible indivisibility of injuries. The Plaintiff testified at trial that the injuries that she sustained in the first accident had resolved by the time of the second accident, evidence which the Court accepted in ruling that the injuries she currently complained of were divisible from her previous injuries. This finding of the Court would have the result of there being no deduction in the Plaintiff’s award for damages.

 

[46] I conclude that, for the purposes of causation, the injuries from the two accidents are divisible. Although Ms. Lawson had very similar complaints of discomfort arising from the same areas of the neck and back, I accept her evidence that her symptoms from the first accident had resolved by the time of the second accident. From the point of view of damage assessment, I find there was no measurable risk that the injuries caused in the first accident which would have resulted in ongoing losses in any event, so that pre-existing risk need not be taken into account in assessing the damages flowing from this defendant’s negligence. See Moore v. Kyba, 2012 BCCA 361 at para. 43.

 

[49] The view of the evidence most favourable to the defendant would be that Ms. Lawson’s injuries arising out of this accident acted upon a plaintiff who was perhaps more susceptible to injury as a result of the earlier accident, that is to say, in which Ms. Lawson’s damages should be assessed on the basis that the “thin skull” reasoning as opposed to a “crumbling skull” reasoning.

In ICBC claims involving indivisible injuries with respect to multiple accidents, it is sometimes the case where the Plaintiff can also be responsible for one of the accidents. For example, if a Plaintiff is involved in four accidents, with three of them being the fault of the Defendants, and one of them being the fault of the Plaintiff, how does the Court go about assessing damages on a global basis? Where the Defendants are at fault for all of the collisions, it is a simpler process, but where the Plaintiff is at fault for one of the multiple accidents, this presents a complicating factor.

 

In Demidas v. Poiren, the Plaintiff was injured in five accidents, with only the final accident being his fault. All the accidents resulted in a cumulative injury, with each subsequent accident aggravating the injuries that remained from the previous accident. The Court was left with the unenviable task of trying to determine a proper amount of compensation for pain and suffering.

 

[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.  

 

[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.

 

[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.

 

In Fillmore v. McKay, the Plaintiff was injured in a motor vehicle accident on May 26, 2005, and then on July 9, 2005, in a fall at his workplace. The Court found that the Defendant from the motor vehicle accident would be liable for the full extent of the injuries. In doing so, the Court succinctly summarizes the law of indivisible injuries.

 

[145]     The plaintiff took a fall at work on July 9, 2005 when he says in his note that he aggravated his neck and shoulder. The defendant submits that this was a new incident not caused by him that should serve to reduce the plaintiff’s personal injuries for which he has liability from the motor vehicle accident. The defendant even submits that it may have been this incident of July 9, 2005 that caused the plaintiff’s back injury because his first complaint to Dr. Buie was not until after that.

 

[146]     I have already concluded that the plaintiff’s back injury occurred in the motor vehicle accident and not subsequently by this bike accident. The plaintiff does not say in his note that he aggravated his back on July 9, 2005, but only his neck and shoulder.

 

[147]     As to the possible aggravation of his neck and shoulder injuries, Athey v. Leonati, [1996] 3 S.C.R. 458, makes it clear that the defendant remains liable where his negligence caused or contributed to the injuries and that liability is not reduced by any non-tortious contributing causes.

 

[148]     Accordingly, even if the plaintiff’s neck and shoulder injuries were aggravated by this non-tortious incident, the defendant is still fully responsible for the full extent of those injuries because his negligence caused them in the first place and thereby contributed to the extent of the injuries.

 

In Ashcroft v. Dhaliwal, the Plaintiff was involved in two separate motor vehicle accidents, with the Court finding that the injuries were indivisible. The Plaintiff succeeded in the first lawsuit, and obtained over $300,000 in damages. The Plaintiff was then successful in the second claim as well for about $400,000, however the trial judge ruled that the amount of the first claim must be deducted from the amount of the second claim. The British Columbia Court of Appeal upheld the trial judge’s ruling.

 

[30]            Although the concern in the case at bar is whether to deduct settlement proceeds from global damage awards rather than whether to make an exception to settlement privilege, the principle is the same: the concern to prevent double recovery outweighs the public interest in encouraging settlements.

 

[31]            This is the rule that applies to separate but concurrent tortfeasors who cause the same injury: Dixon v. British Columbia (1980), 24 B.C.L.R. 382, 128 D.L.R. (3d) 389 (C.A.).  In that case, the plaintiff, a passenger on a bus from Victoria to Vancouver, claimed compensation from both the bus operator and the ferry authority for loss he suffered as a result of a fall on the ferry.  The trial judge found the gross negligence of both caused the plaintiff’s injuries, apportioned responsibility 75% to the ferry authority and 25% to the bus operator, and ordered the amount the ferry authority had paid in settlement ($22,500) be deducted from the award of general damages ($30,300).  The plaintiff appealed the deduction, arguing that the bus operator “should not be permitted to take advantage of the payment by the Ferry Authority” to the plaintiff.  Mr. Justice Taggart, writing for the Court at 400, agreed with the trial judge that “the plaintiff ought not to receive more in the way of damages than the amount to which he has been found entitled”.

 

[33]            In Dixon, the torts can be categorized as “concurrent” because their negligence combined to cause one injury and its consequential loss at the same time.  In the case at bar, the torts can be categorized as “consecutive” because, while the appellant’s injury was indivisible and the negligence of both the settling defendant and the respondent tortfeasor were necessary causes of that injury and the loss resulting from it, the negligence occurred at different times...

 

[34]           The first question is whether a different rule should apply to consecutive torts.  If the treatment of the receipt of settlement proceeds should be the same, the final question is whether the policy underlying the recently developed settlement privilege should trump the policy underlying the long-standing rule against double recovery or give way to it.

 

[35]           I am not persuaded there is a valid policy reason for treating concurrent and consecutive torts differently when both are necessary causes of an indivisible injury and the losses consequential to it.  Indeed, I am not persuaded the distinction is material to the issue before this Court: whether settlement proceeds should be deducted from a damage award made against one of two tortfeasors liable to pay compensation for the loss incurred by reason of their combined negligence.  In Hutchings v. Dow, 2007 BCCA 148 (CanLII), 2007 BCCA 148 at para. 23, 66 B.C.L.R. (4th) 78, 238 B.C.A.C. 139, [2007] 5 W.W.R. 264, leave to appeal to S.C.C. refused (27 September 2007), 32034, this Court categorized separate torts causing the same damage as “concurrent torts” as suggested in Glanville L. Williams, Joint Torts and Contributory Negligence (London: Stevens & Sons, 1951) at 1

 

[41]            In my view, even if trial judges were required to apportion responsibility for the appellant’s losses between the two tortfeasors, despite the absence from the action of the settling defendant and whether the torts are categorized as concurrent or consecutive, the underlying issue would be the same: whether the two causes of action were separate.

 

[42]            The two causes of action are not separate: they are linked by the indivisible injury the trial judge found to have been caused by the separate torts.  That link brings into play not only joint and several liability, but also the rule against double recovery.

 

[43]            It follows that I do not see the trial judge’s failure to distinguish between concurrent and consecutive torts or to apportion damages as material error, nor do I see his apportionment on the alternative assessment to be relevant.  On the only question this appeal raises, I would apply this Court’s reasoning in Dixon and hold that the trial judge did not err when he required the deduction of the settlement proceeds from the appellant’s claim against the second-accident defendants from the global award he made against the respondents.

 

[44]            Consequently, I would dismiss the appeal.