When a Plaintiff has been injured in multiple accidents involving indivisible injuries, the Defendants will be jointly and severally liable to the Plaintiff. Under this type of liability, an injured Plaintiff in an ICBC claim may pursue damages against any one Defendant as if they are jointly liable. As such, any one of the Defendants will be liable for all damages awarded. It is then up to the defendants to sort out their respective proportions of liability and payment. Joint and several liability can be distinguished from several liability, where each of the Defendants would only be responsible for their respective shares of liability.
In Scoates v. Dermott, the Plaintiff was involved in four separate motor vehicle accidents, and consequently brought an ICBC claim for damages. The first motor vehicle accident was the most serious one, with the latter three motor vehicle accidents aggravating the Plaintiff’s ortopaedic injuries. The Court, in awarding damages to the Plaintiff, discussed the law of joint and several liability.
[157] Tortfeasors are liable only for the injuries they cause. When different tortfeasors cause different injuries, each is liable only for the damages resulting from the injuries they cause. However, if they have all contributed to a single, indivisible injury, they are all jointly and severally liable to the plaintiff. In Bradley v. Groves, 2010 BCCA 361, the Court of Appeal said, at para. 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.
[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.
[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.
