Divisible Injuries

Courts may distinguish between injuries caused by multiple tortfeasors

While last week’s entry dealt with the applicability of joint and several liability to indivisible injuries, a case released on August 11, 2010, DANICEK V. ALEXANDER HOLBURN BEAUDIN & LANG, 2010 BCSC 1111 (“DANICEK”), provides an example of how a court may still distinguish between injuries caused by multiple tortfeasors and decline to impose joint and several liability. In DANICEK, the Court had to determine whether injuries arising from a dance accident were inextricably linked with subsequent injuries arising from a motor vehicle accident.

Before engaging in its analysis of the facts, the Court referred to the case discussed in last week’s entry,BRADLEY V. GROVES, 2010 BCCA 361 (“BRADLEY”). While the Plaintiff in DANICEK argued that she would have recovered from her debilitating injuries suffered in the dance accident “but for” the subsequent motor vehicle accident, the Court held that it is no longer appropriate to determine damages by reference to a plaintiff’s condition immediately prior to a secondary injury where a plaintiff is claiming “aggravation” of an indivisible injury. Instead, the Court held that the proper approach in light of BRADLEY is to first determine whether the injuries are divisible or indivisible. If the claimed injuries are indivisible, any single tortfeasor can be held liable for the totality of the damages. If they are divisible, each tortfeasor is liable only for his or her respective amount of damage. The analysis does not begin with asking how much “worse” the second accident made a plaintiff’s pre-existing injuries, but rather whether or not the injuries themselves are capable of being differentiated.

The Court in DANICEK referred to the following helpful summary of the law provided in B.P.B. V. M.M.B., 2009 BCCA 365, 97 B.C.L.R. (4th) 73, leave to appeal ref’d [2010] S.C.C.A. No. 90 at para. 33:

In a case such as this where there are multiple causes of a plaintiff’s injury, the core question is whether the injury is divisible. If it is, a plaintiff can recover from a defendant only the damages attributable to the injury caused by that defendant. If the injury is indivisible, subject to considerations I shall discuss, a plaintiff can recover 100% from the defendant of the damages attributable to the injury which is caused or contributed to by the defendant regardless of the contribution to the injury by others (Athey, paras. 17-20).

While focusing on this “core” question, the Court in DANICEK made the following findings at para. 222:

a)             I find that the two accidents did not produce overall or global symptoms that are difficult if not impossible to separate.

b)            I am not satisfied that the plaintiff suffered another brain injury or concussion in the motor vehicle accident.

c)            The plaintiff would not have made a full recovery from the injuries she suffered in the dance accident in the absence of the motor vehicle accident.

d)            I am unable to find that any causal link has been established between the effects of the dance accident and the motor vehicle accident suggesting the existence of an indivisible loss.

e)            Specifically, I am not satisfied that the motor vehicle accident caused or contributed to the debilitating headaches Ms. Danicek suffers from.

Because the Court found that the Plaintiff suffered distinguishable “minor soft tissue injuries” in the motor vehicle accident, and that any headaches suffered as a result of the second accident were distinguishable from those suffered due to the dance accident, it was able to apportion liability between these divisible injuries. The fact that $5,913,783.54 was awarded for the dance accident and only $10,595.00 was awarded for the subsequent motor vehicle accident reinforces just how critical the preliminary analysis relating to divisibility has become.

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