In Cebula v. Smith, the Plaintiff was injured in a chain reaction collision. She had been traveling southbound behind a pickup truck hauling a trailer, when a northbound vehicle crossed the double yellow line and collided with the pickup truck, causing the trailer to strike the Plaintiff‘s vehicle. The Plaintiff‘s vehicle was then struck by the Defendant‘s vehicle. The Plaintiff sustained a plethora of serious injuries, and brought an ICBC claim for damages for pain and suffering, loss of income, loss of future income, out of pocket expenses, and cost of future care. Liability and quantum (amount) of damages were both in dispute. To further complicate matters, the Plaintiff was involved in two subsequent accidents, which, with the exception of a shoulder injury, the Plaintiff claimed had aggravated her injuries from the first accident. In awarding the Plaintiff substantial damages, and in ordering that the amount of settlement for the second accident (an action arising from the third accident had yet to be commenced) had to be deducted from the overall amount awarded by the Court for the first accident, the Court discussed the general principles of law which apply when there have been multiple accidents and joint tortfeasors.

 

[305] The uncontradicted evidence of the plaintiff is that the injuries she sustained in Accident No. 2 and Accident No. 3 were caused by the vehicles that rear-ended her. I find that she was not contributorily negligent for those rear-end collisions. Rather, those collisions were caused by the unidentified drivers of the vehicles that rear-ended hers. With the exception of the plaintiff’s left shoulder area injury, all of the injuries she sustained in Accident No. 2 and Accident No. 3 were aggravations of the injuries she sustained in the Accident. These injuries cannot be attributable to one particular tortfeasor. They cannot be divided into distinct parts and are therefore “indivisible” from her Accident-related injuries.

[306] Tortfeasors whose tortious acts combine to produce indivisible injuries are jointly and severally liable for the full extent of the injury: Athey v. Leonati, [1996] 3 S.C.R. 458 at 467-468; B.P.B. v. M.M.B, 2009 BCCA 365 at para. 72; Bradley v. Groves, 2010 BCCA 361 at para. 37. Accordingly, there is no need for the court to determine the extent to which the plaintiff’s Accident-related injuries were aggravated by Accident No. 2 and Accident No. 3.

[307] I am advised that the plaintiff has settled her claim relating to Accident No. 2. I was not advised of the settlement amount. There has yet been no settlement of or even a formal claim brought in respect of Accident No. 3.

[308] That portion of the settlement amount attributable to the plaintiff’s indivisible injuries (the plaintiff’s left shoulder injury is a distinct injury from Accident No. 2) must be deducted from any damages award in this action: Ashcroft v. Dhaliwal, 2008 BCCA 352.

In Kaleta v McDougall, the Plaintiff was in a motor vehicle accident, and then later an at-work accident that aggravated some of the injuries sustained in the motor vehicle accident. The lawyer for ICBC argued that there should be a reduction in damages to account for the at-work accident, however the Court disagreed, applying the above test as set out in Bradley v Groves.

 

[57]           I accept the opinion of Dr. McAnulty that the workplace shoulder injury of June 11, 2009 was an aggravation of the shoulder injury suffered in the motor vehicle accident which remained symptomatic, and was not a new injury unconnected to the previous injury.

 

[58]           I recognize that Dr. McAnulty said in his evidence at trial that it was a new injury on top of the old injury but I am satisfied he did not mean it was a new unconnected injury. He clarified that further in his report and at trial.

 

[59]           I also recognize that in his WorkSafe BC reports Dr. McAnulty said there were no other prior or other problems affecting the June 11, 2009 workplace injury, disability and recovery, but he was not asked at trial if this constituted a contradiction to his opinion that the June 11, 2009 shoulder injury is connected to the previous motor vehicle injury.

 

[60]           Absent Dr. McAnulty being asked about this at trial I am not prepared to conclude it constitutes a contradiction that he would not be able to explain as consistent with his diagnosis, if he had been asked.

 

[61]           As a matter of law the defendant remains responsible for continuing problems with the left shoulder after June 11, 2009 (Bradley v. Groves, 2010 BCCA 361 (CanLII), 2010 BCCA 361).

 

[62]           Dr. McAnulty says in his report that the patient may well suffer chronic myofascial pain in the future. This statement does not raise the prospect from a possibility to a probability. Dr. McAnulty does offer future treatment options such as physiotherapy treatments and steroid injections and says that occasionally patients with impingement syndrome may progress to the point where decompression surgery may be required. At trial he says this is a possibility, a significant possibility.

 

[63]           It may be concluded from all this that the prospect of a chronic injury in the nature of a permanent or indefinite injury is only a possibility, but in Dr. McAnulty’s report he also says that the patient has more likely than not reached the point of maximal medical improvement and that statement reflects a standard of probability and not possibility.

 

In Dykeman v. Porohowski, the Plaintiff was injured in two motor vehicle accidents, and consequently brought an ICBC for damages for pain and suffering, loss of income, diminished earning capacity, special damages, cost of future care, as well as an in-trust claim. The Plaintiff maintained that each accident caused separate injuries. The second action was settled prior to the start of trial of the first action. In dealing with the issue of what specific questions were to be put to the jury, and in the difficulties that can arise from successive accidents, the Court discussed general principles of law in this area.

 

[9]               The difficulties inherent in a claim arising from successive accidents is heightened by the fact that the second accident was settled shortly before the trial, which began in late November 2007. In a perfect world, if the injuries were divisible and the causal issues divisible, the claim would only be as to the first accident. But the reality is both accidents — for which, as I understand it, liability for the accidents is admitted – are, from the nature of the evidence, squarely before the jury. In other words, they have the evidence flowing in terms of injury or loss of the plaintiff from both accidents.

 

[11]           A recent case with the two accidents and settlement situation was considered by Mr. Justice Shaw in Ashcroft v. Dhaliwal, 2007 BCSC 533. In that case, as I read it, Mrs. Ashcroft was injured in two successive motor vehicle accidents, the first far more serious, where it appears a huge truck slowly rolled over her car. The second accident was not nearly as serious, but plainly exacerbated her injuries. Mr. Justice Shaw applied the Athey v. Leonati approach. Indeed, as judge alone, he took the liberty of using both approaches, the Athey v. Leonati and the Long v. Thiessen approach. He assessed overall damages and he found the first accident caused 70 percent of the loss, and he said Mrs. Ashcroft would have to account for her settlement (of the second accident) and how it deducted from the overall assessment and judgment given for the net amount.

[12]           More recently, Madam Justice Allan has faced the same issue of successive accidents and a settlement, but there in front of a jury, in Hughf v. Recknagel (14 November 2007), Vancouver M055113 (B.C.S.C.). In her ruling, she noted that in the normal course of events both actions in that case would be tried together and the jury instructed to apportion damages between the two accidents in accordance with the principles in Long v. Thiessen. That case puts the burden of proving how they should be divided on the second defendant, because he or she is the person who made the assessment of damages more difficult. But in reality, of course, if there is a settlement, it is not quite the same case. The settlement in that case was not known to the jury, and I do not believe the settlement is known to the jury in my case.

[13]           In the case before Madam Justice Allan, the defendant asked that the jury simply be asked to make a global assessment, and after rendering its verdict, the court would then deduct the amount of the settlement and give judgment for the balance; in other words, to compensate the plaintiff for her injuries from the first accident. She makes reference to Mr. Justice Shaw’s decision in Ashcroft. She noted, though, in reasons given November 15th, 2007, that while there were similarities between Ashcroft and the case before her, in her view Ashcroft did not address the unique features of one action tried by a jury, and policy considerations. The reality is in this province we have a monopoly insurer directing the defence of the actions. She considered these policy issues in finding the suggestion as to the questions to be put inappropriate.

 

Have you been in more than one motor vehicle accident ? Were your injuries from your first accident still not resolved by the time of your second or third accident ? Are you wondering who is responsible to you for your injuries ?

 

In Bradley v Groves, the Plaintiff was involved in a motor vehicle accident. She had still not recovered from the injuries sustained in this accident when she was involved in a second accident. The British Columbia Court of Appeal clarified this area of law, stating that where injuries from multiple collisions are “indivisible” (where there is an overlap in the injuries from multiple accidents, and you cannot tell which injuries were specifically caused by each accident), a Plaintiff can claim the entire amount of compensation from either Defendant.

 

[17]           Athey was a case involving both multiple tortious and non-tortious causes. The plaintiff had been injured in two motor vehicle accidents.  While still recovering, he herniated a disc in his back during stretching at the gym.  The question before the Court was how the damages should be apportioned between the tortious and non-tortious causes.

 

[18]           The Supreme Court of Canada found apportionment between tortious and non-tortious causes contrary to the principles of tort law, and therefore impermissible.  The liability for any injury caused or contributed to by a tortious action should be borne jointly and severally by the tortfeasors, and not attributed to non-tortious action.

 

[19]           At paras. 12 and 17, Justice Major set out the basic principle of liability for injuries caused or contributed to by a tortious act:

 

[12]      The respondents’ position is that where a loss is created by tortious and non-tortious causes, it is possible to apportion the loss according to the degree of causation. This is contrary to well-established principles. It has long been established that a defendant is liable for any injuries caused or contributed to by his or her negligence. If the defendant’s conduct is found to be a cause of the injury, the presence of other non-tortious contributing causes does not reduce the extent of the defendant’s liability. 

[…]

[17]      It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. …  As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.

 

[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 (CanLII), 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 (CanLII), 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.