This ICBC personal injury claim arose out of two rear-end motor vehicle accidents. The claimant was involved in a third accident in which he was at fault. The question arose as to what impact, if any, the claimant’s responsibility for the third accident should have on the defendants’ liability for the consequences of his injuries (Derksen v. Nicholson,Insurance Corporation of British Columbia,2015 BCSC 1268). This is a “deceivingly complicated question” that in the circumstances of this case was very minor.
The evidence established that the primary cause of the claimant’s injury was the first accident. He was approaching his pre-accident state by the time of the second car accident, and the third accident followed shortly thereafter. On the evidence, the second and third accident each caused but minor aggravation of his symptoms. The judge found that the degree of aggravation caused by the third accident was minor and very limited in duration.
The ICBC medical expert evidence suggested that the claimant had fully recovered by the time of the second accident but the judge accepted the evidence of the family doctor that both of them caused some minor aggravation, and that the first accident had rendered the claimant susceptible to that aggravation.
The effect of the at-fault accident on the overall damage award is not a matter of contributory negligence, it is a matter of ensuring that the defendants are responsible only for the loss and damage they caused to the claimant.
What is different about this ICBC personal injury case is that, notwithstanding that the third car accident aggravated the pre-existing injury, the judge was able to divide up the injuries. “This is not a case like Bradley, Athey or Demidas where the injury was the result of consecutive cumulative incidents leading to a collective whole. Rather, there were two blips of exacerbation, each of which dissipated, leaving the plaintiff in a state referable entirely to the first accident. Accordingly, I conclude that the effects are divisible.”
The court found that the third accident caused a very minor aggravation in the form of increased emotional stress and associated stiffness, for a period of approximately two weeks. $68,000 for pain and suffering was awarded this way:
 Weighing all the factors as best I can, I assess non-pecuniary damages in this case in the amount of $70,000. Of this amount, I apportion $4,000 to the second accident and $2,000 to the third accident. The remainder, attributable to the first accident, includes Mr. Derksen’s claim for loss of housekeeping capacity, which I consider to be modest and not susceptible of precise pecuniary assessment. The net award for non-pecuniary damages in this action, then, is $68,000.
Surprisingly, a similar issue was addressed by the B.C. Court of Appeal in the case of Dudek v. Li, 2000 BCCA 321 which was not considered by the judge although it provides a simply elegant analytical solution. In the Dudek case the appellant was injured in a motor vehicle collision and suffered a subsequent injury after falling from his motorcycle. The trial judge instructed the jury that if they found that the claimant had acted unreasonably, that the Defendant would only be responsible for the claimant’s damage up to the time of the incident. However, the B.C. Court of Appeal found that the judge had incorrectly instructed the jury and ordered a new trial.
As Honourable Mr. Justice Braidwood stated:
“… in cases … in which the victim is found to have been acting unreasonably so that the tortfeasor is not liable for injuries caused in the second accident, it is incorrect to suggest that the damages arising from the first accident end at that point. The tortfeasor is still fully liable for the injuries suffered in the first accident that persist beyond the time of the second accident.”