Say you’re injured in a car accident that’s not your fault. Then, before you’re fully recovered, you suffer the misfortune of getting re-injured in another accident, where you’re also not to blame. Do you have to sue both defendants and have two trials – at double the cost?
No, not if your injuries are “indivisible,” decided the BC Court of Appeal in a recent case.
The plaintiff was a 26-year-old waitress whose car was rear-ended in March, 2006 by the defendant while she was stopped at a red light. She felt pain in the back of her head and neck and felt extremely shaky immediately after the crash. She took a week off work and went to a walk-in medical clinic twice during that week, where she was prescribed Tylenol 3 and physiotherapy. She subsequently attended three physiotherapy sessions and 35 chiropractic treatments. In November, 2007, she started her lawsuit against the defendant
Then, in July, 2008, a pick-up truck backed into her while she was sitting in her parked car in a parking lot. Again, she was not at fault. At this time, she was about 80% recovered from the first accident, but the second accident aggravated the soft tissue injuries she suffered in the first accident and basically set her back to square one in terms of her recovery. Her doctor testified that her injuries after the second accident were similiar to those she suffered in the first.
The trial judge first concluded that the plaintiff’s injuries in the second accident were “indivisible” from the injuries in the first (she essentially suffered the same injuries in the same area). He then considered prior case law and BC’s Negligence Act, which says that if two or more people are responsible for a loss or injury, they are both liable for the whole amount.
Ultimately, the judge decided that the defendant was liable to pay 100% of the damages awarded to the plaintiff flowing from both accidents – which was $30,000 for her pain and suffering plus some $1,800 for lost income and chiropractic and other expenses.
The defendant appealed, arguing that she should only have to pay for the portion of the plaintiff’s injuries that she caused (which she claimed was about 60% of the total damage award).
But the Court of Appeal disagreed and sided with the trial judge. The defendant and the second at-fault driver both caused and contributed to the plaintiff’s soft tissue injuries, which were not separable. So the defendant was fully liable to pay 100% of the plaintiff’s compensation.
Now, the defendant was free to pursue the second motorist to sort out who was responsible for what portion of the plaintiff’s injuries and recover the portion that the second motorist caused. But the defendant had to pay the plaintiff the total judgment.
The situation would be different if you suffered different injuries in two different accidents. If driver A injures your arm in one accident and then driver B injures your leg in a subsequent accident, these would not be indivisible injuries, and each driver would only be responsible for the injury they caused.
But it’s not uncommon to suffer the same or similiar soft-tissue whiplash injury in a second car crash. In such a case, it’s good news for the injured person that each defendant is fully liable for the damages caused by both accidents.
Janice Mucalov, LL.B. for Gertsoyg & Company. This column provides information only and must not be relied on for legal advice. Please call Gertsoyg & Company at (604) 602-3066 for a free legal consultation concerning your particular case.