Wednesday, May 18, 2011

ICBC's Appeal of Indivisible Injury Case Dismissed by Supreme Court of Canada

Recently the Supreme Court of Canada denied leave to hear ICBC's appeal of the BC Court of Appeal's decision in Bradley v. Groves.   The BC Court of Appeal's decision in Bradley v. Groves, 2010 BCCA 361, is an important decision because it deals with the distinction between divisible and indivisible injuries.  At law 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.  Whereas, in divisible injury cases, as one would expect, if multiple parties contribute only to specific discrete injuries each party is only responsible for the harm they cause.  These principles are thoroughly discussed in the seminal case on this issue, Athey v. Leonati, [1996] 3 S.C.R. 458.   

In Bradley v. Groves, 2010 BCCA 361, ICBC took the position that aggravation of a pre-existing injury is not an indivisible injury. ICBC contended that the trial judge must identify and "disentangle" any earlier tortiously caused injury from later harm and assess damages for each injury separately.  Flowing from ICBC's position, if correct, would be a finding that each defendant would only be liable for part of an invisible injury. 
Fortunately for Plaintiffs the Supreme Court of Canada refused leave to appeal and ostensibly upheld the reasons of the BC Court of Appeal.  

On these issues the BC Court of Appeal stated as follows in Bradley v. Groves beginning at paragraph 32:

[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[33]        The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries.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 in Resurfice 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.  
Application to the Present Appeal
[38]        Without a finding of divisibility, the appellant’s arguments cannot succeed. The trial judge found as a fact that the plaintiff’s injuries from the first accident and the second accident were indivisible. The defendant and the other motorist both caused and contributed to the plaintiff’s soft tissue injuries. He also found those injuries were not separable. There is no basis on which to interfere with these findings of fact. Flowing from them is the conclusion of joint and several liability.
[39]        We find no error in principle in the reasons of the trial judge, and therefore dismiss the appeal from this part of his order.

posted by Collette Parsons at


Blogger Unknown said...

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September 24, 2013 at 1:22 PM  
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