Neufeldt v. Insurance Corporation of British Columbia, 2021 BCCA 327 (CanLII), the 41 year-old respondent was involved in a first motor vehicle accident in 2012, while on duty as a police officer. The respondent suffered neck, upper back and lower back pain, and headaches following the accident. For the following three years, his treatment included physiotherapy, chiropractic treatment, and massage therapy.
As a result of the second motor vehicle accident which occurred while on duty in 2016, the respondent suffered a mild traumatic brain injury which was associated with sensitivity to noise and light, frontal headaches with visual tasks, eye strain with reading or writing, dizziness, clumsiness, motion sickness, irritability and mood swings, trouble multitasking, and poor memory and slow thinking speed. The respondent’s pain in his low back, mid back and neck and significant headaches remained unresolved at the time of the second accident, and those symptoms were aggravated by the second accident. As a result of the second accident, the respondent also suffered from anxiety and depression.
The respondent attempted a graduated return-to-work program for four hours per week in 2018. The attempt was unsuccessful, and he remained on medical leave at the time of trial.
The trial judge awarded $2,400,000 in damages for future loss of income.
During the trial, based on opinion evidence from an expert neurologist which the Court of Appeal found ought not to have been admitted, the judge found that all the respondent’s injuries were indivisible as between the two accidents. Additionally, the trial judge found that the respondent was disabled from active work as a member of the RCMP due to the indivisible consequences of the two actions.
On appeal, Willcock J.A. agreed with the trial judge that the back and neck injury and ongoing headaches were one indivisible injury arising from both accidents. This was well supported by the record, which showed that the sequential accidents caused musculoskeletal injuries to the respondent’s low, middle, and upper back and neck, as well as associated headaches (paras 65-70).
However, the Court of Appeal found that the trial judge erred by not expressly grappling with the question of whether the mild traumatic brain injury and its symptoms were a distinct, divisible injury, for which the first tortfeasor could not be held liable. He did not describe the basis for his conclusion that the first accident played some role in the development of the symptoms of a head injury. He did not address the uncontradicted evidence to the contrary. The fact that some injuries suffered in serial accidents are indivisible does not mean that every injury is indivisible (paras 71-78).
The weight of the lay and expert evidence was that the respondent suffered an injury in the second accident (a mild traumatic brain injury) that differed in kind from the injury suffered in the first. The failure to address the “but for” test in respect of the concussion symptoms was an error of law. The trial judge found the defendants to be jointly and severally liable for damages without adequately addressing the causation in fact question.
Willcock J.A. summarized the relevant principles with respect to divisibility of damages. Where divisible injuries combine to cause damages, even damages that overlap, the court must engage in the difficult task of assessing the damages associated with each injury. The analytic approach described in Long v. Thiessen (1968), 1968 CanLII 889 (BC CA), 65 W.W.R. 577 at 591 (B.C.C.A.) 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). Injuries are not indivisible simply because they jointly contribute to a particular head of damages, such as loss of earning capacity or the cost of future care (paras 79-98).
The Court of Appeal held that the trial judge ought to have assessed the damages occasioned by the traumatic brain injury, if it was divisible. 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 (paras 79-98).
The Court of Appeal allowed the appeal on the grounds that the trial judge erred in finding that all the injuries suffered by the respondent were indivisible, and in assessing the claim for future loss of income earning capacity by failing to account for a duplication of some of the past wage loss, the respondent’s own projections for promotion, some basic negative contingencies, and some residual income earning capacity (para 129).
There was insufficient evidentiary record for the Court of Appeal to correct these errors. The awards were set aside, and the actions were remitted for trial in the Supreme Court.