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Injuries From Multiple Events: Good News from the Supreme Court of Canada

Victor Lewin - Tuesday, August 23, 2011

It is welcome news to victims of car accidents, and other cases of negligence, in Nova Scotia, New Brunswick and PEI that the Supreme Court of Canada recently denied leave to hear the Defendant appeal of the appellate decision in Bradley v. Groves. The Court of Appeal in that case made it easier for individuals to recover damages for "indivisible" injuries. Where an accident victim suffers injury in multiple events (like two different car accidents) and it is impossible for a judge to separate the injuries arising from the events, the victim is said to have an "indivisible" injury. In the car accident example, the acts of two negligent defendant drivers will have combined to create an injury that is not attributable to one particular defendant. Whereas, in a divisible injury case, multiple parties will contribute only to specific discrete injuries and each party is only responsible for the harm they personally cause.

Victims of an "indivisible" injury deserve compensation. The seminal question is in the case of multiple accidents is: which negligent party liable for paying the damages? Bradley v. Groves is a welcome decision in that it makes it easier for accident victims to recover damages for "indivisible" injuries. Summarized, the Court of Appeal ruled that if multiple parties contribute to one indivisible injury they are all 100% responsible for the indivisible injury regardless of the fact that each party only contributed to causing the injury to some degree. The Court confirmed that if two or more incidents caused an indivisible injury the victim can sue any of the parties responsible for causing the harm and recover the whole of the loss.

The plaintiff in Bradley v. Groves was involved in two car accidents several months apart. She claimed damages against the driver who caused the first accident. His insurer argued that the plaintiff's ongoing injuries were the result of the second accident. After hearing all the evidence, the judge was unable to parse out to what degree each accident had injured the plaintiff. He found that she had sustained an "indivisible" injury. Stemming from the finding, the judge ordered that the first defendant pay the entirety of the plaintiff's damages. On appeal, the Court found no error in this logic, stating:

[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: Long requires 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, 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 inResurfice Corp. v. Hanke, 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.

The only possible downside to the benefits of Bradley v. Groves is this: If you suffer an indivisible injury and receive compensation for it from one negligent person a subsequent defendant may be able to reduce his/her liability by the amount of the previous settlement or judgement.

This drawback highlights the importance of speaking to an experienced lawyer prior to settling any claim for damages with an insurance company.

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