British Columbia Court of Appeal clarifies indivisibility analysis

Introduction

The Court of Appeal for British Columbia (the “Court of Appeal”), in Neufeldt v. Insurance Corporation of British Columbia, 2021 BCCA 327, recently provided significant commentary on the important yet difficult issue of indivisible injuries. Insurance Corporation of British Columbia (the “Appellants”) appealed the British Columbia Supreme Court’s decision wherein the Honourable Mr. Justice Ball held that the injuries Mr. Jeffrey Theodore Neufeldt (the “Respondent”) sustained as a result of two separate motor vehicle accidents were indivisible.  Significant damages were awarded as a result of the trial decision.

Brief Facts

The first motor vehicle accident occurred in September 2012 (the “First Accident”) and the second in May 2016 (the “Second Accident”). In the First Accident, the Respondent was working as an RCMP officer and sustained injuries to his neck and back with resultant headaches. Although he continued to experience pain as a result of injuries sustained from the First Accident, after participating in a gradual return to work program, he remained in active duty from June 2015 until the Second Accident.

In the Second Accident, the Respondent experienced neck and back pain with resultant headaches, similar to the injuries he sustained in the First Accident. However, in the Second Accident, he also suffered concussion-like symptoms, later classified as a mild traumatic brain injury (“mTBI”). He also experienced anxiety and depression. The Respondent participated in a return to work program, but was unsuccessful in completing it, and remained on leave at the time of the trial.

The trial judge concluded that the injuries from the First Accident were exacerbated by the Second Accident, since the Respondent’s injuries from the First Accident were not fully healed at the time of the Second Accident. Therefore, he held that all of the Respondent’s injuries were “indivisible”, meaning that they could not be separated from each another. This had the effect of all parties at fault in each accident being held jointly and severally liable for the accumulation of the injuries sustained by the Respondent.

In coming to this conclusion, the trial judge was particularly swayed by the evidence provided by the Respondent’s expert, Dr. Cameron, a neurologist. While his written medical report did not attribute the Respondent’s mTBI symptoms to the First Accident, Dr. Cameron’s oral testimony at trial was that all of the Respondent’s injuries were from the “two accidents.” As a result, the trial judge made orders under multiple heads of damages and awarded the Respondent $2.4 million for future loss of income.

Appellants’ Position

The Appellants appealed the trial judge’s decision on the basis that his classification of all the Respondent’s injuries as indivisible was incorrect, and that the necessary causation analysis was not conducted to determine whether the First Accident was a cause of the Respondent’s mTBI. Specifically, it was argued that all the at-fault parties should not be held jointly and severally liable since all the injuries sustained in the Second Accident were not as a result of the injuries sustained from the First Accident.

Analysis

The characterization of injuries as divisible or indivisible has significant liability implications. If the injuries are separate and distinct from one another, then the damages that flow from each injury can be assessed separately and distinctly from one another, making the injuries divisible. If the injuries cannot be separated or if they are not distinct enough, then the damages flowing from them cannot be equated separately, and are therefore indivisible.

While the Court of Appeal agreed with the trial judge’s determination that the Respondent’s neck and back injuries were indivisible, the issue of whether the First Accident was part of the cause of the Respondent’s mTBI was closely scrutinized. The trial judge determined that the mTBI sustained in the Second Accident was indivisible from the First Accident, which was a key issue at appeal.

The Court of Appeal held that the trial judge erred in concluding that the Respondent’s mTBI was indivisible. The Court of Appeal found that the trial judge did not properly address the issue of causation when determining whether the mTBI from the Second Accident was caused by an exacerbation of the injuries he sustained from the First Accident. Specifically, the trial judge did not engage in the requisite “but for” causation test which is a cornerstone of tort law. The Court of Appeal also held that the trial judge erred in allowing Dr. Cameron to provide oral testimony outside the scope of his written report, and then subsequently denying the Appellants the opportunity to cross-examine him.

Typically, the worsening of a pre-existing injury is often found to be indivisible, since it is difficult to determine causation and then subsequently apportion blame. However, this is not true for all injuries, as the Court of Appeal reiterated within its decision. The fact that the Respondent suffered from headaches as a result of the First Accident did not mean that the headaches were part of the cause of the mTBI that the Respondent sustained as a result of the Second Accident. The Honourable Mr. Justice Willcock provided the following synopsis:

The evidence was undisputed that the mild traumatic brain injury was causally related to the second accident, and unrelated to the first. But for the second accident, the Respondent would not have suffered the disabling constellation of symptoms associated with that injury. It was an error to find the first tortfeasor liable for that distinct injury, and an error not to engage in the complicated task of assessing the damages attributable to each distinct injury (para. 98).

[emphasis added]

Further, to assess damages when only some of the injuries are indivisible, the Court of Appeal now requires a modified Long v. Thiessen approach to be used as follows:

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.

The approach described in Long must be modified where a plaintiff suffers multiple injuries in sequential accidents, only some of which are indivisible. Damages must still be assessed notionally twice: once in relation to the initial injury, as aggravated by the second accident, without accounting for the damages solely attributable to the second accident injury (assessed at the trial date); and again in relation to the divisible second injury (also at the trial date) (paras. 81-82).

The Court of Appeal held that “the fact that some injuries suffered in serial accidents are indivisible does not mean that every injury is indivisible.” This case is a helpful reiteration of basic, fundamental concepts in tort law. Injuries that are separate and distinct from one another can be apportioned when determining liability, as well as the subsequent damages that flow from that determination. Injuries that can be attributed to multiple causes and are unable to be so divided will have the effect of holding multiple wrong-doers jointly and severally liable.

The Appeal was allowed, setting aside the $2.4 million award for both accidents, and a new trial was ordered.

Practical Considerations

It is imperative that the factual circumstances within every personal injury case be closely analyzed so as to make the proper liability determination, since the damage awards that flow from a divisible versus an indivisible injury can have vastly different consequences for the at-fault parties as it pertains to liability apportionment and damages.