Court of Appeal Considers Indivisible Injuries

Court weigh indivisible injuries from different accidents in decision

The case of BRADLEY V. GROVES, 2010 BCCA 361 (“BRADLEY”), released on July 29, 2010, dealt with “indivisible” injuries resulting from two separate accidents. At trial, the Defendant was found to be responsible for all injuries suffered by the Plaintiff, despite the fact that the initial injuries caused by the Defendant’s negligence were later compounded by an unrelated accident.

On appeal, the Defendant argued that the trial court should have taken the approach advocated in LONG V. THIESSEN, [1968] B.C.J. No. 1, 65 W.W.R. 577 (C.A.), whereby courts would “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” (BRADLEY, para. 33).

However, the Court in BRADLEY held that the idea that “[e]ach defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor” (para. 33), although logical in certain contexts, is unhelpful where the respective “shares” are found to be indivisible. In such a case, a single tortfeasor can be held liable for the entire amount of any damages awarded.

At paragraph 35 of its decision, the Court was careful to point out that past case law had already rendered the apportionment analysis in LONG V. THIESSEN inapplicable to indivisible injuries:

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 ATHEYE.D.G., andBLACKWATER.  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.

The Court in BRADLEY also referenced past case law when it stated that “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, [2007] 1 S.C.R. 333”. The Court relied on the general principles of negligence to hold that “but for” the first accident, the injury as it existed at trial would not have been possible. The imposition of absolute liability for a necessary contribution to a cumulative injury was found to be consistent with the most basic principles of negligence law.

While the Court left open the possibility that the aggravation of a specific injury resulting from multiple tortious acts may in fact be divisible, the practical and fact-driven nature of the Court’s analysis came to the forefront when it concluded at para. 37 that:

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.

In the result, the Court in BRADLEY justified an abandonment of any attempt to apportion liability for indivisible injuries on both jurisprudential and practical grounds. While the “but for” test supports imposing absolute liability for a necessary but not sufficient cause of an injury, the factual and evidential complexities associated with determining contribution to an indivisible injury provide the practical foundation for the Court of Appeal’s analysis.

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