The Court of Appeal has re-defined the concept of indivisible injury in the assessment of civil damages ( Neufeldt v. Insurance Corporation of British Columbia, 2021 BCCA 327 ). The legal distinction between divisible and indivisible injuries is an important question of law in many personal injury cases. In this case review we will explain the difference between divisible and indivisible injuries. Understand how this new definition will impact compensation for personal injury claims.
Divisibility of Damages in Personal Injury
In this case, the question whether the injuries suffered by the ICBC claimant were divisible was critical. This was because of the limited liability of ICBC for the unidentified driver involved in the second accident. At paragraph 80 and 81 of the decision Mr. Justice Willcock stated:
Where divisible injuries combine to cause damages, even damages that overlap, the court must engage in the difficult task of assessing the damages associated with each injury. For that reason, in the case at bar, the trial judge ought to have assessed the damages occasioned by the traumatic brain injury, if it was divisible… Where injuries are divisible, resort may still be had to the analytic approach described in Long v. Thiessen (1968), 65 W.W.R. 577 at 591 (B.C.C.A.), which presupposes divisibility. That approach calls for damages to be assessed notionally twice: once on the day before the second tort, and once at trial. The Long analysis was held to be inapplicable to indivisible injuries in Bradley, but expressly was not overruled generally for divisible injuries.
Trial judge was wrong in failing to engage in the assessment of causation required by law. In doing so, the judge wrongly found the defendants to be jointly and severally liable for damages without adequately addressing the causation in fact question. It is often the case that causation in fact requires relatively little analysis. However, the failure of the trial judge to engage in that analysis ( See: Clements for this legal analysis) undermined the judgment and the appeal was allowed and the judgment set aside.
The Court of Appeal however did agree with the trial judge (at para. 108) that the back and neck injury and ongoing headaches were one indivisible injury arising from both accidents. Importantly, the Court of Appeal found that it was not an error to find the back and neck injury were indivisible.
The Facts of Neufelt v. ICBC
This personal injury claim arose from two motor vehicle accidents about 4 years apart. In the first rear end accident he had back and neck symptoms and his headaches became severe and frequent. He was cleared for full active work duties about one year before the second accident. He remained on full active duty until the second accident, despite his continuing symptoms.
In his second rear end accident he aggravated the prior headaches as well as his neck and back pain. He also sustained a mild traumatic brain injury, and a new symptoms, including anxiety and depression.
The claimant remained off work for almost 2 years after the second accident. He then tried unsuccessfully to gradually return to work. He remained on medical leave up to the date of the personal injury trial.
The trial judge did not find it possible to separate the first accident from the role played by the second accident, despite the clear distinction on the facts. The trial judge also failed to expressly address the role of the concussion and mild traumatic brain injury in the respondent’s course and prognosis, despite the evidence describing that distinct injury and its significant contribution to the limitations affecting his income earning capacity.
In this case the evidence was undisputed that the mild traumatic brain injury was causally related to the second accident, and unrelated to the first. It was an error to find the first defendant liable for that distinct injury, and an error not to engage in the complicated task of assessing the damages attributable to each distinct injury.
Defining Divisible Injuries
These are injuries the are different and can be factually separated. In this case the back injury could be separated from the brain injury in the second accident. Divisible injuries are therefore those that can be separated so that their damages can be assessed independently.
Defining Indivisible Injuries
Indivisible injuries are defined as injuries that cannot be apportioned to one or the other wrongdoer. All damages occasioned before a second accident aggravating can however only to be attributed to the first injury.
Multiple Injuries in Sequential Accidents
When only some of the injuries are indivisible, the Court of Appeal now requires a modified Long v. Thiessen approach to be used ( see para 82). The fact that some injuries suffered in serial accidents are indivisible does not mean that every injury is indivisible.
Assessment of Contingencies in General
The Court of Appeal found the trial judge erred in assessing the claim for future loss of income earning capacity. He failed to account for duplication of the past wage loss, projections for promotion, basic contingencies, and residual income earning capacity.
Residual Employability
The evidence was that there was a possibility the claimant might not be able to return to any work. However, there was also a possibility he could engage in gainful employment. The failure to make any allowance for that prospect either placed an inappropriate burden upon the appellants, or a failed to give some weight to possibilities. In light of the fact the respondent advanced a claim for over twenty years of lost income earning capacity, it was incumbent upon the judge to say something more.
Assessing loss of income required that consideration be given to residual capacity, which did not take place.
The appeal was therefore allowed, setting aside the $2.4 million award in both lawsuits, and remit the accident back for trial in the Supreme Court.