In Khudabux v. McClary, 2018 BCCA 234, the BC Court of Appeal dealt with the often complicated issue of divisible/indivisible injuries and the calculation of damages in circumstances involving more than one tortious accident, pre-existing injuries and intervening events.
Ms. Khudabux brought actions with respect to injuries she sustained in motor vehicle accidents in 2011 and 2014. Her claims were further complicated due to a number of tortious and non-tortious incidents that occurred both prior and subsequent to the 2011 and 2014 accidents. In 2006, she was hit by a van as a pedestrian. In June 2010 she was rear ended by another driver. Just prior to the 2011 accident, she was still symptomatic from the 2006 and 2010 incidents. Following the 2011 accident, she sustained further injuries in a slip and fall in May 2011. She fell again in March 2012. In July 2012, she was rear ended by another driver. In October 2013, she fell out of a reclining chair and injured her back. She was then in the 2014 motor vehicle accident.
Ms. Khudabux argued that the injuries she suffered in the 2011 and 2014 accidents were indivisible and the defendants in those actions should therefore be found jointly and severally liable for all injuries she suffered. The trial judge found that it was possible to determine the extent to which each of the 2011 and 2014 accidents had aggravated symptoms or caused Ms. Khudabux injury, and that this was therefore not a “true case of indivisible injury”. Though liability for the 2014 accident was admitted, the trial judge found Ms. Khudabux contributorily negligent for the 2011 accident. Finally, the trial judge reduced Ms. Khudabux’s damages to account for her pre-existing and subsequent injuries.
Ms. Khudabux appealed the trial decision arguing that the trial judge had misapplied the legal framework for assessing liability, divisibility and damages, in the circumstances, and had erred in fact and in law in assessing damages, specifically in reducing her damages to account for the non-tortious incidents.
The Court of Appeal found that the trial judge was alive to the distinction between causation and damages set out by the Supreme Court of Canada in Blackwater v. Plint, 2005 SCC 58 and Athey v. Leonati, 1996 CanLII 183 (SCC), in which that Court held that whether injuries are divisible or indivisible is relevant to whether liability is owed jointly and that where an injury is divisible, each tortfeasor is only liable for that part of the injury resulting from his/her/its negligence.
The Court of Appeal therefore concluded that the trial judge did not err in finding that the defendants were not jointly liable as the Plaintiff’s injuries were not truly indivisible. In doing so, the Court of Appeal accepted that the trial judge was able to determine the extent to which the two defendants had caused or aggravated injuries, despite the complicated nature of Ms. Khudabux’s condition. The trial judge was not required to determine the extent to which Ms. Khudabux’s other injuries contributed to her current condition in assessing liability, as that analysis was relevant only to damages. The Court of Appeal also upheld the finding that the injuries were divisible, and there was no joint liability, on the basis the lower Court had found the Plaintiff contributorily negligent for the 2011 accident.
With respect to the damages assessment, the Court of Appeal concluded that the trial judge properly determined a global amount of damages for the 2011 accident before subsequently deducting an amount for damages which were found to arise because of intervening events. The key factual finding was that those injuries were not caused by the 2011 accident and thus the trial judge properly considered the impact of those events when determining the plaintiff’s original position.
Finally, the Court of Appeal determined that the trial judge properly considered the intervening accidents in determining damages. The trial judge clearly identified the extent to which the 2011 accident aggravated Ms. Khudabux’s pre-existing injuries and found that she was entitled to compensation for that additional loss. The judge also found that the intervening, unrelated events that occurred after the 2011 accident led to some of the same types of injuries. While her condition was worsened by the 2011 accident, some of the loss would have occurred in any event due to the subsequent accidents.
The Court of Appeal stated at para 41:
 Considering first principles of tort law, a plaintiff is entitled to be put in the same position he or she would have been absent the defendant’s negligence: Athey at para. 35. This entails determination of his or her original position, and the effects of pre-existing conditions and intervening events, to ensure the tortfeasor compensates only for the injury he or she caused and the plaintiff is not left in a better position than he or she otherwise would have been.
The Court of Appeal found that the trial judge properly applied the law and fairly assessed damages. While there were other methods he could have employed in making his determination, the Court of Appeal found no error in his approach or methodology.
The appeal was dismissed.
This decision of the Court of Appeal shows that the distinction between divisible and indivisible injuries and the separate issues of causation and damages remains a complicated matter where multiple accidents and non-tortious intervening acts are involved. Where appropriate findings of fact are made to underlie the trial Court’s decision, and are reflected in the Court’s method of assessing damages, the Court of Appeal was prepared to show deference to a decision of the lower Court. Based on the numerous ways in which facts can materialize, it is unlikely that this will be the final discussion of these complex issues.