At Fault Driver 100% responsible for aggravations of Claimant’s Injury

Bradley v. Groves, 2010 BCCA 361
July 30th, 2010- as we approach British Columbia Day, a  chance to celebrate our achievements, our Court of Appeal has come out with a law altering decision that will assist injury victims involved in multiple car accidents and ICBC injury claims.  What an injury claim is worth will now have to be increased to include any aggravation of that same injury.
In a three judge jointly written decision the Court of Appeal has done away with the formulaic approach set out in Long v. Thiessen (1968), 65 W.W.R. 577 (B.C.C.A.), for apportioning fault between multiple at fault drivers.
The injury claimant  was injured in two separate motor vehicle accidents.  The first accident occurred on March 24, 2006, when the claimant’s vehicle was struck in the rear by a vehicle operated by the appellant Ms. Groves.  Before  trial, Ms. Groves admitted she was at fault for the first accident. 
Following the first motor vehicle accident,the claimant  felt pain in the back of her head and neck.  She missed approximately one week of work.  She continued to complain of symptoms associated with a soft-tissue injury.  She received treatment from her physician, as well as from a chiropractor and a physiotherapist.
On July 26, 2008, the claimant was involved in a second motor vehicle accident.  This accident occurred in a parking lot.  Another vehicle backed into the claimant’s vehicle.  The claimant testified that the second accident aggravated the soft tissue injuries suffered in the first accident.  She estimated that she had been 80% recovered from the first accident by the time of the second accident, but that she was only 65% recovered by the time of the trial. The trial judge considered the effects of the second accident and concluded that the injuries in the second accident were indivisible from the injuries in the first accident.
The Supreme Court of Canada in Athey described injuries produced by more than one cause as either “divisible” or “indivisible”.  Divisible injuries are those capable of being separated out and having their damages assessed independently.  Indivisible injuries are those that cannot be separated or have liability attributed to the constituent causes.
The Court of Appeal found that  liability to an injury claimant for indivisible injuries is joint and several. The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries.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 at fault driver is responsible only for their share of the injury and the injury victim can recover only the appropriate portion from each at fault driver.
As the Court of Appeal has finally and clearly stated:

“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.”

British Columbia personal injury lawyers when assessing what a case is worth should therefore no longer discount  the value of the case to take into account aggravations of the same injury. In fact other aggravations of the injury are claimable as part of the original injury.
ICBC is trying to appeal this case to the Supreme Court of Canada.  Posted by Mr.Renn A. Holness
Issue: Should an at fault driver be responsible for paying for an injury claimant’s aggravations of the injury such as another accident causing the same symptoms?