This Court of Appeal case arose from a three car accident personal injury claim. This case was complicated by numerous tortious and non-tortious incidents which caused or aggravated the chronic mental and physical injuries before and after the car accidents in question.(Khudabux v. McClary,2018 BCCA 234)
A review of the trial judge’s reasons can be found at $75,000 pain and suffering Award for aggravation of prior condition.
The claimant had a significant psychiatric history, apparently developing a major depressive disorder 10 years before the first accident. Since then she took medication and saw psychiatrists.
Four years before the first car accident she was hit by a van and suffered substantial long-term injuries, including a concussion and injuries to her neck, shoulders, mid- and lower-back, knees, ankles and feet, which left her with headaches and pain. Her claim for damages relating to this incident was settled a year before the first accident. The terms of the settlement were not revealed at the personal injury trial.
Two years before the first car accident she was diagnosed with PTSD, major depressive disorder and chronic pain disorder. In the same year she was rear-ended by another driver, which aggravated all her physical symptoms from the prior accident.
Just before the first car accident, the claimant had been assessed by her doctor and was still symptomatic from the prior accidents. She had ongoing symptoms of depression, chronic back pain and debilitating knee pain.
After the first accident she sustained further injuries in two non-tortious events: she slipped and fell; while vacationing in Africa she slipped and fell in a shower and hit her head, suffering increased headaches, swelling of her left foot, and back spasms; a year later she was involuntarily hospitalized for psychiatric issues flowing from significant conflict with family members; she was rear-ended; and she fell out of a reclining chair and injured her back. She described “all of her symptoms coming back” and said she experienced severe pain. Some or all of these incidents caused or contributed to chronic pain in her lower and mid-back, extreme headaches, pain in her arms, legs, feet and neck, and chronic and unstable depression.
How to Legally Separate the Accident Injuries for Compensation
[31] The first question is whether the tortfeasor caused or contributed to an injury, thus making him liable. Whether injuries are divisible or indivisible is relevant to whether liability is owed jointly. Where an injury is divisible, the torfeasor is only liable for that part of the injury which he caused: Athey v. Leonati, [1996] 3 SCR 458, at para. 24.
[32] Divisible injuries are those that can be separated so that their damages can be assessed independently: Bradley v. Groves, 2010 BCCA 361, at para. 20.
[33] It is where injuries are indivisible, in that the injuries cannot be separated, that each tortfeasor is jointly and severally liable (absent contributory negligence): Bradley at paras. 24, 32. Consideration of other contributing causes occurs when assessing damages. This distinction is discussed in depth in Moore v. Kyba, 2012 BCCA 361, at paras. 36-43, as well as in T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670, at para. 16 and Bradley, at para. 37.
The judge found this case was not to be a true indivisible injury. The trial judge made no error in concluding the defendants at trial were not jointly liable. Further, as the judge noted, even if the injuries were indivisible, joint liability would not be available due to the provisions of the Negligence Act.
The appeal was dismissed and the trial decision upheld.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.