The application of the legal principle of indivisibility
continues to evolve as courts encounter further and more complex
fact scenarios involving indivisible injuries.
The case of Lane v. Wahl, 2015 BCSC 1779 provides a
useful illustration of how the Court deals with a finding of
indivisible injury caused by multiple accidents. In this case, all
of the accidents were subject to proceedings before the Court, but
with the additional wrinkle that the Plaintiff was at fault for one
of the two accidents giving rise to the indivisible injury.
In Lane v. Wahl, the Plaintiff brought an action for
damages for injuries suffered in three accidents. The Defendants
admitted fault for the first and third accidents, but denied
liability for the second accident in which the Plaintiff sustained
the most serious injuries.
The Court found that the Plaintiff's depression was an
indivisible injury arising from the cumulative effects of the
second and third accidents. The Court concluded that the evidence
did not disclose any major depressive episodes resulting from the
first accident, but it was quite clear that the Plaintiff was
depressed after the second accident.
The Court further found that the Plaintiff was solely
responsible for the second accident. This finding had significant
implications with respect to damages, including how the damages
arising from the major depressive disorder were assessed and
apportioned. As the Defendant to the second accident was not
at fault, and the first accident was not a cause of the subject
depression, the Court apportioned the damages attributable to the
indivisible injury (i.e. the depression) between the Plaintiff and
the Defendant in the third accident.
With respect to the appropriate mechanism of apportionment, the
Court stated that it is a matter of determining relative fault or
blameworthiness of the persons responsible, and not the degree to
which the persons caused the subject injuries or damage.
Accordingly, the Court apportioned fault with respect to damages
arising from the major depressive disorder equally between the
Plaintiff and the Defendant in the third accident.
In summary, Lane v. Wahl is noteworthy for several
reasons. First, it demonstrates that each injury, and specifically
what event gave rise to the injury, must be assessed separately. In
this way, the court can determine among the parties how the
associated damages should be apportioned in the case of mixed
Second, in some past cases, courts have incorrectly apportioned
damages on the basis of the degree to which a party was responsible
for the injuries. In other words, if a party caused an accident of
a greater severity and likely contributed to the subject damages
more than the other causative accident(s), that party was
apportioned a greater degree of the joint and several damages. This
is not correct according to the Negligence Act, which
provides that apportionment is based on the relative fault
of the persons responsible for the damage as opposed to the degree
to which they are found to be responsible for the injuries. In
other words, apportionment should be based on the blameworthiness
of the party's conduct, not on the extent to which that conduct
caused the subject damages.
The Court in Lane v. Wahl applies the correct approach
and found that neither the Plaintiff, who was at fault for the
second accident, nor the defendant at fault for the third accident,
could be said to be more at fault for the indivisible injury
arising from the second and third accidents. The Court provided
that it seemed that in both cases, the parties responsible for the
accidents had a momentary lapse of attention that led to the
accidents in question. Despite the Plaintiff attempting to pass a
vehicle on the right when he knew the vehicle was about to make a
right hand turn, the Court could not find that he "knowingly
acted recklessly in the second accident".
It is difficult to envision under what circumstances, in the
context of a "typical" motor vehicle accident, a party is
more than equally at fault for an indivisible injury. While there
may be cases with extenuating circumstances (e.g. excessive
speeding, driving intoxicated, etc.), the cause of a significant
portion, if not the majority, of motor vehicle accidents could be
classified as "momentary lapses of attention".
Could one momentary lapse of attention ever be said to be more
blameworthy than another?
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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