Apportionment of Damages Between Multiple Tortfeasors. The Honourable Mr. Justice Goepel and Seva Batkin, Law Clerk

Transcription

1 Apportionment of Damages Between Multiple Tortfeasors The Honourable Mr. Justice Goepel and Seva Batkin, Law Clerk Untangling the different sources of damage and loss may be nigh impossible. Yet the law requires that it be done It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. 1 I. Introduction 1 Imagine a plaintiff whose bad luck had him injured in three separate incidents over a span of several years. While he is entirely blameless for the first and third incidents, he is found to have been partially responsible for the second one. He claims a hotchpotch of physical and psychological injuries under all possible heads of damages. To further complicate matters, at least some of the claimed and clinically proven injuries are similar to the conditions he had prior to the first incident. For example, while an expert testified that severe depression caused by the physical injuries suffered in the incidents has made the plaintiff unemployable, the defendant produced medical records that indicate that the plaintiff suffered from depression before the accidents and has even been hospitalized for a suicide attempt. To complicate matters further, only two of the three defendants are party to the action, the third being an unknown assailant. Given this myriad of factors, and given the findings of full and partial liability, how should the damages be apportioned between the tortfeasors? 2 Unfortunately, the law on this subject is far from clear, providing confusing and at best partial or at worst conflicting answers. Most notably, there appear to be two leading decisions on apportionment of damages between tortfeasors. In the classic case of Long v. Thiessen, 2 the British Columbia Court of Appeal established the well-known formula for apportioning 1 McLachlin C.J.C. in Blackwater v. Plint, 2005 SCC and 78 [Blackwater]. 2 Long v. Thiessen (1968), 65 W.W.R. 577 [Thiessen].

2 damages between tortfeasors independently liable for separate tortious incidents, placing the burden on the second tortfeasor to prove the damages caused by the first tortfeasor to reduce his own damages accordingly. However, in Athey v. Leonati 3 and subsequently in G. (E.D.) v. Hammer, 4 the Supreme Court of Canada held that tortfeasors liable for separate tortious incidents, which cause a single injury, are jointly and severally liable to the plaintiff for all of the damages, and apportionment is merely an application of the provincial Negligence Acts. Not only do these rules present an apparently intrinsic conflict, but they also fail to address many aspects of the above hypothetical scenario, such as the plaintiff s contributory liability for one of the accidents or the pre-existing conditions. Of course, each of these issues has been at one time or another individually addressed by the courts. However, the methods developed to resolve these issues do not always congruently integrate Thiessen, Athey or each other. 3 For the most part, the conflict between the two approaches has remained tacit and there have been no appellate decisions comprehensively reconciling the two. As a result, recent trial decisions range from the blunt conclusion that Thiessen was and remains the law of British Columbia, 5 to a considered illation that between the "two conflicting approaches to assessing damages, the Athey v. Leonati approach should prevail. 6 4 Fortunately, neither the status quo nor a mortal contest between the apparently conflicting approaches is necessary. The confusion is not or at least should not be what approach currently reigns supreme, but rather what combination of rules and principles are applicable to a particular situation. Thus, development of a comprehensive taxonomy of situations and identification of the applicable principles is the key to reconciliation. Based on existing authorities, this paper proposes a hierarchical taxonomy of situations, comprising eight categories describing different types of tortious causes. Furthermore, this paper strives to outline a step-by-step approach for apportioning damages under the principles applicable to each of the categories. Keeping with the adage that a picture is worth a thousand words, the proposed taxonomy is illustrated in following figure: 3 Athey v. Leonati, [1996] 3 S.C.R. 458 [Athey]. 4 G. (E.D.) v. Hammer, 2003 SCC 52 [Hammer]. 5 Kailey v. Kellner, 2007 BCSC Ashcroft v. Dhaliwal, 2007 BCSC and 32 [Ashcroft]. 2

3 Indivisible Injuries Divisible Injuries No Contributory Negligence Contributory Negligence Identify head of damages Concurrent Tortfeasors Consecutive Tortfeasors Concurrent Causes Consecutive Causes Discrete Effects Superimposed Effects Sufficient Causes Insufficient Causes Sufficient Causes Insufficient Causes 5 A note to bear in mind is that this paper is written with a focus on a trial judge sitting alone. Thus, the issues discussed in this paper are not distinguished as questions of fact, which would be appropriately relegated to a jury, and questions of law, on which a judge would instruct a jury. II. Identifying and Categorizing Injuries 6 Once liability is found, the first step is to assess what injuries the plaintiff has actually suffered. The importance of this step should not be understated as it will guide the subsequent analysis and ultimately dictate the appropriate method for apportionment of damages. 7 In identifying the plaintiff s injuries, the trial judge should be careful to consider both the physical injuries directly caused by the tortious act or acts, for example back problems, fibromyalgia, or cognitive problems associated with a head trauma, and the psychological injuries that are caused by the physical injuries, for example depression. A trial judge should bear in mind the distinction between the term injury as it is used in ordinary parlance generally referring to a physical harm suffered by a person, for example a broken leg, and the meaning of this term in a legal sense broadly referring to both the specific physical harm and the consequential effects of such harm. 8 Once the trial judge identifies all of the injuries suffered by the plaintiff, the second step is to determine whether each injury is divisible or indivisible. 9 The concept of divisible and indivisible injuries was elucidated by Mr. Justice Major in Athey, corresponding to the basic principle of tort law that a defendant is only liable for the 3

4 injuries that he or she has actually caused. 7 He explained that where both defendants are found to have contributed to an injury, it is indivisible. Thus, in Athey, Mr. Justice Major found that the defendants caused a single indivisible injury, the disc herniation, so division is neither possible nor appropriate. 8 As summarized by Mr. Justice Shaw in Ashcroft, all injuries caused or materially contributed to by a tort are said to be indivisible While the injury itself is said to be indivisible, that may be the only connection that is found to exist between the tortious acts that caused or materially contributed to it. Thus, in Horvath v. Thring, Madame Justice Ballance found an indivisible injury that was caused by two separate torts: In this case, the Crown's negligence is founded on conduct independent of the conduct forming the basis of the Applicant's negligence. Entirely different allegations of negligence were made against Thring than those alleged against the R.C.M.P. officers and, vicariously, the Crown. More importantly, the trial judge found that the Crown on the one hand and the Applicants on the other were responsible for separate torts although those torts did combine to create the same damage. I find that the same evidence would not have supported Constable Horvath's action against both the Crown Thring, and General Motors. I find also that the defendants in this case did not act in concert with each other in the commission of their respective torts. I conclude therefore that the Crown and the Applicants were not joint tortfeasors Divisible injuries are those which can be independently traced to a specific tortious cause, and to which other tortious causes have not contributed. The simplest case of divisible injuries was described by Mr. Justice Major in Athey: one [tortfeasor] injuring the plaintiff's foot and the other the plaintiff's arm Distinguishing divisible injuries is not always that simple. In Blackwater, McLachlin C.J.C. held that in the absence of evidence that prior causes contributed to the injuries suffered by the plaintiff from the defendant s tortious acts, the trial judge had no choice but to isolate those traumas : The trial judge correctly apprehended the applicable legal principles. He recognized the "daunting task" of untangling multiple interlocking factors and confining damages to only those arising from the actionable torts, the sexual assaults (2001 decision, para. 365). He tried his best to award fair damages, taking all this into account. He recognized the thin skull principle, but in the absence of evidence that Mr. Barney's family difficulties 7 Athey, supra note 3, Ibid Ashcroft, supra note Horvath v. Thring, 2003 BCSC 1656, aff d 2005 BCCA 127 [Horvath]. 11 Athey, supra note

5 prior to coming to AIRS had exacerbated the damage he suffered from the sexual assaults he sustained at AIRS, the trial judge had no choice but to attempt to isolate those traumas. Similarly, there was no legal basis upon which he could allow damages suffered as a result of statute-barred wrongs committed at AIRS, like the beatings, to increase the award of damages Similarly, in McNaughton v. Ward, the Nova Scotia Court of Appeal affirmed the trial judge s conclusion that an earlier accident had nothing to do with the plaintiff s current conditions caused by a later workplace injury: This was a case where the injuries were, and could be seen to be distinct and separate A single case may combine both divisible and indivisible injuries, with different apportionment rules applicable to each. Thus, in Hutchings v. Dow, while Mr. Justice Cullen found that [t]he combined effect of the Accident and the Assault caused the plaintiff s depression, an indivisible injury, he also found that the plaintiff s back problems and seizures were attributable the accident and the assault, respectively Moreover, as will be described in more detail below, indivisible injuries can arise from either tortious cause or from a combination of causes. III. Indivisible Injuries A. No Contributory Negligence 16 If the trial judge determines a specific injury to be indivisible, then the third step is to ascertain whether the plaintiff has been contributorily negligent. At this stage, contributory negligence is a yes or no threshold question, the answer to which will cardinally impact how the plaintiff will be compensated. It is unnecessary, and sometimes impossible to determine the actual extent of the plaintiff s contributory negligence at this point. Thus, in a classic situation of separate motor vehicle accidents, the trial judge needs only to determine whether the plaintiff was contributorily negligent, to any degree, in at least one accident. 17 The reason why the answer to this question will so fundamentally affect the rest of the apportionment exercise lies in ss. 1, 2, and 4 of the British Columbia Negligence Act: Blackwater, supra note McNaughton v. Ward, 2007 NSCA 81 99, aff g 2006 NSSC Hutchings v. Dow, 2006 BCSC and , aff d 2007 BCCA 148 [Hutchings]. 15 Negligence Act, R.S.B.C. 1996, c

6 1 (1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault. 2 The awarding of damage or loss in every action to which section 1 applies is governed by the following rules: (c) as between each person who has sustained damage or loss and each other person who is liable to make good the damage or loss, the person sustaining the damage or loss is entitled to recover from that other person the percentage of the damage or loss sustained that corresponds to the degree of fault of that other person; 4 (1) If damage or loss has been caused by the fault of 2 or more persons, the court must determine the degree to which each person was at fault. (2) Except as provided in section 5 if 2 or more persons are found at fault (a) they are jointly and severally liable to the person suffering the damage or loss, 18 Pursuant to s. 4, tortfeasors are jointly and severally liable for an injury that they caused together, i.e., an indivisible injury. However, pursuant to ss. 1 and 2, where a plaintiff is found to have been contributorily negligent, he or she is only entitled to recover from each tortfeasor in accordance with the degree of that tortfeasor s fault making the tortfeasors severally liable Where the plaintiff is found to have been wholly innocent in all of the tortious events that caused or contributed to the indivisible injury, then the short answer is that he or she can look to any of the tortfeasors for 100% of the damages. This is particularly important where only some of the tortfeasors are party to the action 17 tortfeasors is statute-barred: or where recovery from one or more the fact that a person at fault may not be able to obtain contribution or indemnity pursuant to s. 4(2)(b) did not absolve him or her from liability for the full amount of damages under s. 4(2)(a) See Leischner v. West Kootenay Power & Light Co. (1986), 70 B.C.L.R. 145 (C.A.) and Laing Property Corp. v. All Seasons Display Inc., 2000 BCCA [Laing]. Note that the Ontario Negligence Act is based on a different principle, such that the plaintiff s contributory negligence reduces the total compensable amount of his injuries, but the tortfeasors are still jointly and severally liable for the rest: see Ingles v. Tutkaluk Construction Ltd., 2000 SCC [Ingles]. 17 See Ashcroft, supra note 6, where Shaw J. found that the plaintiff s depression resulted from the accident caused by the defendant and an assault caused by a third party. 18 Horvath, supra note

7 20 From the plaintiff s perspective, his or her participation in the case effectively ends at this point, having established all that is needed for compensation: liability and damages. However, providing that more than one tortfeasor is party to the action, the trial judge will then likely have to apportion damages between the tortfeasors under s. 4(2)(b) of the Negligence Act. 21 The method to be used to apportion damages depends whether the tortfeasors are concurrent or consecutive tortfeasors. Thus, the fourth step is to determine whether the tortfeasors were concurrent or consecutive. 22 The term concurrent tortfeasors is borrowed from a classic torts text by Glanville Williams: Concurrent tortfeasors are tortfeasors whose torts concur (run together) to produce the same damage. They are either joint concurrent tortfeasors (briefly, joint tortfeasors), where there is not only a concurrence in the chain of causation leading to the single damages but also (apart from nonfeasance in breach of a joint duty) mental concurrence in some enterprise, or several concurrent tortfeasors, where the concurrence is exclusively in the realm of causation There are many examples of cases involving concurrent tortfeasors. In Horvath, the driver and owner of the truck with which the plaintiff collided, and the Crown vicariously responsible for negligent RCMP officers, were found to be concurrent tortfeasors because it was the combination of their torts that caused the plaintiff s injuries. 20 In Aberdeen v. Langley (Township), concurrent tortfeasors were the negligent driver who hit the plaintiff and the municipality which installed a guard rail that created a hazard for the plaintiff The single factor that identifies concurrent tortfeasors is that their torts run together 22 to result in the injury to the plaintiff. While the actual negligent acts may be entirely different, they culminate at a single point in time to produce the injury. For example, negligently speeding driver and manufacturer who negligently designed or produced the breaks in the driver s car are concurrent tortfeasors because their torts combined at a single point in time to injure the plaintiff. 19 Glanville Williams, Joint Torts and Contributory Negligence (London: Stevens & Sons Limited, 1951) at 1; cited by Southin J.A. in Tucker (Public Trustee of) v. Asleson (1993), 78 B.C.L.R. (2d) (C.A.). 20 Horvath, supra note Aberdeen v. Langley (Township), 2007 BCSC 993 [Aberdeen]. 22 Williams, supra note 19. 7

8 25 In the case of consecutive tortfeasors, the torts are not connected through a single event and are completely independent of each other. Typically, the injuries caused by consecutive tortfeasors superimpose on the residual effects of the injuries caused by the by the earlier tortfeasor(s). Consecutive tortfeasors have been found in a variety of situations. Most commonly, for example in Thiessen, 23 Hicks v. Cooper, 24 and Zylstra v. Hughes, 25 consecutive tortfeasors caused separate motor vehicle accidents. However, consecutive tortfeasors are also sometimes responsible for completely different torts. In Hutchings, the consecutive tortfeasors were the driver who caused the initial accident and the person who later assaulted the plaintiff. The liability of such consecutive tortfeasors is also joint and several because they have ultimately caused the same indivisible injury. 26 Once the trial judge determines whether the tortfeasors are concurrent or consecutive, the fifth step is to employ the appropriate method to apportion the liability and therefore damages between them. 1. Concurrent Tortfeasors 27 In the case of concurrent tortfeasors, the duty of the trial judge is to determine the degree to which each person is at fault. 26 Based on this apportionment of fault, the tortfeasors look to each other to to contribute to and indemnify each other in the degree to which they are respectively found to have been at fault. 27 Naturally, this apportionment is only possible between the tortfeasors that are before the court and to the extent that such contribution is not barred by other statutes. For example, in Horvath, the driver could not look to the Crown for contribution because of a statutory bar. 28 Between concurrent tortfeasors, liability is apportioned on the basis of moral blameworthiness rather than the degree to which each tortfeasor contributed to the plaintiff s 23 Ibid. 24 Hicks v. Cooper (1973), 1 O.R. (2d) 221 (C.A.). 25 Zylstra v. Hughes, 2001 BCCA 326 [Zylstra]. 26 Negligence Act, supra note 15, s. 4(1). 27 Ibid. s. 4(2)(b). 8

9 total damages. 28 The factors to be considered by the court in assessing the relative moral blameworthiness were recently summarized by Mr. Justice Groves in Aberdeen: 29 (1) The nature of the duty owed by the tortfeasor to the injured person. (2) The number of acts of fault or negligence committed by a person at fault. (3) The timing of the various negligent acts. For example, the party who first commits a negligent act will usually be more at fault than the party whose negligence comes as a result of the initial fault. (4) The nature of the conduct held to amount to fault. For example, indifference to the results of the conduct may be more blameworthy. Similarly, a deliberate departure from safety rules may be more blameworthy than an imperfect reaction to a crisis. (5) The extent to which the conduct breaches statutory requirements. For example, in a motor vehicle collision, the driver of the vehicle with the right of way may be less blameworthy. (6) The gravity of the risk created. (7) The extent of the opportunity to avoid or prevent the accident or the damage. (8) Whether the conduct in question was deliberate, or unusual or unexpected. (9) The knowledge one person had or should have had of the conduct of another person at fault. 29 Considering these factors, the trial judge distributes fault between the concurrent tortfeasors and apportions damages accordingly. The following passages from Aberdeen provide a useful example of the link between the factors and the ultimate distribution of liability: In relation to Zanatta's negligence, his crossing the centre line was a momentary lapse in his attention while driving. As Langley observes, many serious traffic accidents are caused by momentary lapses in attention. A fairly serious risk was created by the presence of a large cube van within the lane normally occupied by oncoming traffic on a steep hill with a sharp curve, and this risk could have been completely avoided had Zanatta exercised proper care while driving. However, Zanatta did not actually strike the plaintiff, and his fault was due to inattention, rather than being an intentional act. Therefore, I conclude that Zanatta's conduct represented a moderate departure from the standard of care expected in the circumstances. In contrast, I have concluded that Langley's departure from the standard of care was considerably greater than Zanatta's: while Langley did not intentionally create a hazard, it knowingly created a serious risk when it decided not to replace the entirety of the existing guard rail in 1999, or to take measures to ensure that cyclists or cars would not risk injury due to the existence of a gap between the two guard rails. Langley knew that 28 See Hub Excavating Ltd. v. Orca Estates Ltd., 2008 BCSC 21; Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) (C.A.) [Cempel]; Alberta Wheat Pool v. Northwest Pile Driving Ltd., 2000 BCCA [Alberta Wheat Pool]; and Aberdeen, supra note Aberdeen, supra note

10 272 nd Street was frequently used by cyclists, and in fact was a designated bicycle route. Langley had over three years to take action to avoid the risk of injury due to the barrier configuration. The cost was not prohibitively high, and money could have been allocated from the existing budget to remedy the situation. The gravity of risk created by Langley's decision was high, both for cyclists and for cars that might have been redirected by the metal barrier into a collision with the no-post barrier. The expert witnesses of both the plaintiff and the Zanatta defendants thought that this gap was obviously "unsafe" and "constituted a violation of basic traffic safety practices." The departure from the standard of care expected of a municipality in these circumstances was considerably higher than Zanatta's departure from the relevant standard of care. Accordingly, I would apportion liability for the plaintiff's injuries 25% to the Zanatta defendants and 75% to Langley Consecutive Tortfeasors 30 Having found the tortfeasors to be consecutive, the fifth step is to determine whether the consecutive tortious events present sufficient or insufficient causes, borrowing this terminology from Professor McInnes s paper on causation. 31 Sufficient causes generally describes the situation where each incident has caused an injury and their effects have superimposed on each other, or the second injury was aggravated by the first one: cases of "multiple sufficient causation" in which each of the competing causes independently was capable of producing the loss in question. In such circumstances, the "but for" test often fails to provide a satisfactory answer. Looking at each factor in isolation, it cannot be said that the loss would not have occurred "but for" that cause; even if the first cause had not occurred, the second cause would have created the same outcome, and vice versa This is a situation that typically occurs in multiple accident cases, where the plaintiff recovering from a physical injury suffered in a first accident is involved in a second accident, where the same injury occurs again. For example, the physical injuries suffered by the plaintiff in the first accident caused depression and the physical injuries suffered in the second accident made that depression worse. 32 Insufficient causes describes the situation where injury was caused only by the combination of the tortious acts. In other words, the injury is the result of several causal factors, all of which were necessary, and none of which independently was sufficient, for its occurrence. 33 Such injury is not apparent or symptomatic after the first incident. For example, while neither the first nor the second accident resulted in sufficiently severe 30 Aberdeen, supra note Mitchell McInnes, Causation in Tort Law: Back to Basics at the Supreme Court of Canada, (1997) 35 Alta. L. Rev Ibid. 33 Ibid. 10

11 physical injuries to cause the plaintiff s depression, the combination of both was sufficient to trigger it. 33 Once the situation is categorized into sufficient or insufficient causes, the sixth step is to apply the appropriate apportionment method. a) Sufficient Causes 34 In the case of sufficient causes, the appropriate method for distributing liability and apportioning damages under s. 4 of the Negligence Act is the subject of some controversy. There are, of course, numerous cases that dictate that liability is distributed between tortfeasors based on the degrees the parties departed from the norm of reasonable conduct, rather than based on the relative degrees of causation. 34 However, all of these cases involve concurrent tortfeasors and/or contributory liability of the plaintiff, and do not deal with consecutive tortfeasors However, Thiessen did apparently deal with a situation involving consecutive tortfeasors 36 and its approach is difficult, if not impossible, to reconcile with the relative blameworthiness approach. The Thiessen approach is based on a formula which places the onus of proving how the damages should be apportioned on the second tortfeasor, under the theory that he or she made the proof of the plaintiff's damages resulting from the first accident more difficult. 37 The Thiessen formula involves three steps: (a) To assess as best one can what the plaintiff would have recovered against the [first tortfeasors] had his action against them been tried the day before the second accident, and to award damages accordingly; (b) To assess global damages as of the date of the trial in respect of both accidents; and 34 Cempel, supra note and For example, Cempel, ibid, apportioned liability between the plaintiff and the defendant for falling into an extremely hot pool; Alberta Wheat Pool, supra note 28, apportioned liability between owner and contractor for negligent act causing a fire; Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (B.C.C.A.), aff g (1984), 60 B.C.L.R. 164 (S.C.) [Ottosen], apportioned liability between liability between the plaintiff and the two negligent drivers who caused the accident; Heller v. Martens, 2002 ABCA 122 [Heller], from which Groves J. in Aberdeen summarized the relevant factors, apportioned liability between the negligent driver, the plaintiff, and plaintiff s employer who failed to provide a seatbelt. 36 The nature of the injuries is not entirely clear from the appeal judgment and there are arguments to be made that they were divisible or indivisible, and caused by sufficient or insufficient causes. Unfortunately, the trial judgment was not reported and has been lost in the annals of history. 37 Thiessen, supra note

12 (c) To deduct the amount under (a) from the amount under (b) and award damages against [the second tortfeasor] in the amount of the difference The Thiessen formula has been approved in a number of British Columbia decisions involving consecutive tortfeasors and sufficient causes. In Pryor v. Bains, the British Columbia Court of Appeal implicitly approved this approach, explaining that apportionment between aggravating causes is appropriate: These two sources or causes of damages can be dealt with, either as a case of aggravated damages or as a "thin skull" case, depending on which of two factual circumstances are found to exist. In a case where a second source or cause of damages is found to aggravate an existing and active first source or cause, that is a case of aggravated damages and there may be an apportionment of damages as between the two sources or causes In Zylstra, 40 the Court of Appeal affirmed the trial judge s use of the Thiessen formula to apportion damages between three tortfeasors liable for three separate accidents which caused the plaintiff s back pain. The court referred to Thiessen as the leading case on apportionment of damages between the accidents. 41 Similarly, in Resvick v. Behan, the Court of Appeal implicitly agreed with the trial judge giving instructions to the jury based on the Thiessen formula Furthermore, the Thiessen approach seems to be congruent with the general principles of apportioning damages set out in Blackwater, where McLachlin C.J.C. explained that the plaintiff s prior condition must be taken into account when assessing damages caused by a later tortious act: It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether "but for" the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant's act is a cause of the plaintiff's damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey. Mr. Barney's submissions that injury from traumas other than the sexual assault should not 38 Ibid. 39 Pryor v. Bains (1986), 69 B.C.L.R. 395 (C.A.). It should be noted, however, that this case was decided before the distinction between divisible and indivisible injuries was elucidated in Athey and thus it did not treat apportionment of damages from effectively indivisible injuries as an exercise only between the tortfeasors. 40 Zylstra, supra note Ibid. 42 Resvick v. Behan, 2004 BCCA

13 be excluded amount to the contention that once a tortious act has been found to be a material cause of injury, the defendant becomes liable for all damages complained of after, whether or not the defendant was responsible for those damages. At the same time, the defendant takes his victim as he finds him -- the thin skull rule. Here the victim suffered trauma before coming to AIRS. The question then becomes: what was the effect of the sexual assault on him, in his already damaged condition? The damages are damages caused by the sexual assaults, not the prior condition. However, it is necessary to consider the prior condition to determine what loss was caused by the assaults. Therefore, to the extent that the evidence shows that the effect of the sexual assaults would have been greater because of his pre-existing injury, that pre-existing condition can be taken into account in assessing damages While Blackwater involved divisible injuries arising from the actionable torts before the court and previous non-tortious or non-actionable causes, the same general principle of justice from the perspective of both the victim and the tortfeasor applies here. The moral blameworthiness approach does not explain why, in the case of sufficient causes, it would be just to have one consecutive tortfeasor be responsible for the damage that he or she did not cause simply because his or her negligence causing one of the accidents can be said to have departed further from the standard of care than the negligence of the other consecutive tortfeasor who caused the other accident. 40 However, Thiessen has been criticized for the perceived unfairness of its approach. In Civil Jury Instructions, the authors summarized the criticism as follows: For a critique of this method of assessment see Cooper-Stephenson, Personal Injury Damages in Canada, 2nd ed. (1996), at It is argued that where the plaintiff was involved in two separate accidents and the second aggravates the first, application of the Long v. Thiessen method of apportionment may cause hardship because it essentially treats the second accident as a novus actus. In other words, this method does not fairly apportion liability if both accidents were necessary to produce some of the loss. The authors use the example of an accident causing the plaintiff to lose sight in one eye, resulting in a diminished earning capacity of 10%. If he loses the other eye in a second accident, his earning capacity would likely disappear. However, using the Long v. Thiessen analysis, the first defendant would be only 10% liable, when in reality, the total disability was jointly caused by both defendants In Ashcroft, Mr. Justice Shaw was similarly concerned that applying Thiessen in a case involving a plaintiff injured in two accidents but only suing the tortfeasor liable for the first, 43 Blackwater, supra note , emphasis added. 44 Bouck et al., Civil Jury Instructions, looseleaf (Vancouver, B.C.: The Continuing Legal Education Society of British Columbia) at

14 would confine the assessment to the injuries suffered in the first accident only, and not include those suffered in the second accident With respect, these criticisms appear to be misplaced. If both accidents were necessary to produce the injury, then it is an indivisible injury for which both consecutive tortfeasors are jointly and severally liable. As discussed above, this is so whether both incidents were necessary to produce the injury (insufficient causes), or the injury could have been produced by either incident, the effects of which superimposed on each other (sufficient causes). The Thiessen formula is then used only to apportion liability and damages between the tortfeasors. It does not affect compensation to the plaintiff. 43 Notwithstanding the logic and policy behind the Thiessen approach and the case law which apparently approves it, the most poignant problem with using Thiessen to apportion liability and damages between consecutive tortfeasors is that s. 4 of the Negligence Act speaks only in terms of relative degrees of fault and 4(2)(b) apportions liability based on those degrees: 4(1) If damage or loss has been caused by the fault of 2 or more persons, the court must determine the degree to which each person was at fault. (2) (b) as between themselves, in the absence of a contract express or implied, they are liable to contribute to and indemnify each other in the degree to which they are respectively found to have been at fault A possible rationale for the Thiessen approach is that it allows the determination of degrees of fault via the proxy of damages. Causation (liability) and damages are inherently interrelated, and the law of torts knows of other situations where the former is determined through the latter. For example, in Newton v. Marzban, 47 Madam Justice Nielson, relying on Hagblom v. Henderson, 48 explained that in the cases involving a lawyer s negligent conduct of a trial, the plaintiff s chance of obtaining a favourable outcome generally evaluated as part of quantification of damages, must be evaluated to determine whether the plaintiff has lost something of value i.e., has proven causation. This suggests that where liability cannot be determined directly, it can be determined via the proxy of analyzing damages. 45 Ashcroft, supra note Negligence Act, supra note Newton v. Marzban, 2008 BCSC Hagblom v. Henderson, 2003 SKCA

15 b) Insufficient Causes 45 There appear to be no cases that specifically deal with the appropriate method of apportioning liability in this scenario. However, it would appear that the choice of applicable method is mostly practical rather than principled. Specifically, the Thiessen approach is prima facie inapplicable because the injury was not symptomatic or the damages not apparent before the second accident, at which point the effects combined. Strict application of the Thiessen formula would place the whole of the burden on the second tortfeasor unjustly so. While the Thiessen approach is impractical, the moral blameworthiness approach may be subject to the same criticism as above in the context of sufficient causes. Specifically, why should tortfeasors responsible for entirely separate and unconnected events be compared to each other in terms of their relative departures from the applicable standard of care. 46 Nevertheless, given that the available menu of these two methods, the only applicable one is the moral blameworthiness approach. While arguments could conceivably be made to give this choice some principled validity, lack of alternatives seems to present the most persuasive reason. c) Combination of Sufficient and Insufficient Causes 47 As described in the introductory example, situations that come before the courts are often quite complex enough to transcend the categories described in this paper. Unfortunately, case law provides even less authority on apportioning damages in such combinations of events than it does for apportioning damages within the categories described in this paper. However, it is suggested that the approaches discussed above can be relatively easily adapted for such complex situations. 48 For example, an indivisible injury may have been caused by consecutive accidents, each presenting a sufficient cause, and one or more of which these accidents was also caused by two or more concurrent tortfeasors. Applying the approaches already discussed, it is suggested that the appropriate course of action is first to apportion liability (and damages) between the accidents using the Thiessen formula, and then apportion liability between each set of concurrent tortfeasors using the blameworthiness approach. B. Contributory Negligence 49 As discussed above, where the trial judge determines that the plaintiff was contributorily negligent in one or more tortious events that caused the indivisible injury in, ss. 1 and 2 of the 15

16 Negligence Act become applicable and the plaintiff can only recover from each tortfeasor the percentage of the damage or loss sustained that corresponds to the degree of fault of that other person. 49 As the British Columbia Court of Appeal noted in Laing Property Corp. v. All Seasons Display Inc., It is now settled law in British Columbia that s. 1 of the Negligence Act only applies where the plaintiff is found to be contributorily negligent for its own losses. In such circumstances, liability between two or more tortfeasors is several, not joint, and there is therefore no basis for third party claims for contribution or indemnity Thus, the next task of the trial judge is to apportion damages between the tortfeasors and the plaintiff. However, the fourth step is still to determine whether the injuries resulted from concurrent or consecutive causes. 51 The concepts of concurrent and consecutive causes are very similar to the previously described concepts of concurrent and consecutive tortfeasors. In particular, concurrent causes refer to injuries caused by concurrent tortfeasors together with a contributorily negligent plaintiff, and consecutive causes refer to injuries caused (directly or by material contribution) by consecutive tortfeasors together with a plaintiff who is found to have been contributorily negligent in at least one of the tortious events. There are two chief factors distinguishing the two sets of terms. First, the plaintiff, even if contributorily negligent, cannot be considered a tortfeasor. Thus, using the term concurrent tortfeasors can be misleading with respect to the contributorily negligent plaintiff. Second, the general approach to apportioning liability between multiple tortfeasors and a contributorily negligent plaintiff, elucidated by Bastarache J. in Ingles, treats the tortfeasors and the plaintiff differently and accordingly dictates a two step approach to apportionment: When there are two or more tortfeasors, and a plaintiff has also been found negligent, the proper approach to apportionment is to first reduce the extent of the recoverable damages in proportion with the plaintiff's negligence, and then to apportion the remaining damages between the defendants, in accordance with their fault Concurrent Causes 52 Where the trial judge determines that that the injury was cased by concurrent causes, the fifth step is to apply the moral blameworthiness method to apportion liability between the tortfeasors and the plaintiff. Then, in accordance with the Ingles approach, the total damages 49 Negligence Act, supra note 26, s. 2(c). 50 Laing, supra note 16 76, authorities omitted. 16

17 are reduced by the plaintiff s liability and the remainder is apportioned between the tortfeasors on the basis of their liability. For an example of this type of apportionment see Ottosen, where liability was apportioned between the infant plaintiff and the two negligent drivers who caused the accident Consecutive Causes 53 The previous discussion of consecutive tortfeasors is generally applicable to the situation of consecutive causes as well. Thus, the sixth step is to determine whether the injury resulted from sufficient or insufficient causes. a) Insufficient Causes 54 In the case of insufficient causes, liability should be apportioned using the moral blameworthiness technique between the tortfeasors and the contributorily negligent plaintiff, as it would be apportioned been between just consecutive tortfeasors. In the apportionment of liability, the plaintiff is considered as merely another tortfeasor. However, the Ingles treatment of the plaintiff then applies for apportioning damages. b) Sufficient Causes 55 In the case of sufficient causes, logic dictates damages should first be apportioned between the consecutive events (causes) using the Thiessen formula, and then apportioned between the parties responsible for each event, including the plaintiff if contributory negligence is found. The apportionment of liability and damages within each event is done on the basis of the moral blameworthiness approach as between concurrent tortfeasors. 56 Importantly, Blackwater appears to implicitly support using the Thiessen approach for apportioning damages between consecutive sufficient causes. This proposition is best explained by the way of two examples. 57 First, consider two consecutive events whereby the plaintiff is 100% responsible for the first and the defendant is 100% responsible for the second. The damages in the first accident are relatively minor, such that the bulk of damages really results on the second accident. In this situation, Blackwater dictates that the defendant is liable to compensate the plaintiff to restore him to the position he was in immediately before the tort. No relative blameworthiness 51 Ingles, supra note Ottosen, supra note

18 is assessed and damages are effectively apportioned between the plaintiff and the defendant on the basis of relative causation. The plaintiff is fully compensated for the effects of the second accident. Implicitly, this illustrates the application of the Thiessen formula, whereby the onus is on the defendant to prove the state that the plaintiff was in at the time of the tort. 58 Now, consider a situation of the same two consecutive accidents, but this time the responsibility for the first one is shared between the plaintiff and a tortfeasor. Applying the moral blameworthiness approach to assess fault between the plaintiff and the two tortfeasors, as would be prescribed by the insistence on assessing degrees of fault in all contributory negligence situations, the plaintiff is found to have been 30% at fault, the first tortfeasor 20%, and the third tortfeasor also 50%. However, as the bulk of the damages were resulted from the second accident, the plaintiff now recovers only approximately 70% of the damages. Paradoxically, applying the moral blameworthiness approach in this case, although the plaintiff is less at fault in the second than in the first scenario, where he was 100% responsible for the first accident, he now recovers less damages. There appears to be no rational policy or practical explanation for why this should be so. IV. Divisible Injuries 59 Going back to the second step, if the trial judge determines that the plaintiff s injuries are divisible, the third step is to identify each claimed head of damages. As will be seen below, the reason why apportionment has to be done separately for each head of damages is because the actual effects from the divisible injuries may be distinct to be compensated under a specific head of damages, or combine requiring compensation under the same head of damages as effects from another injury. For example, consider a case of two divisible injuries arising from two separate incidents: depression and a broken arm. While the effects of both the depression and the broken arm are compensated in the award for non-pecuniary damages, only the broken arm has resulted in the loss of wages. 60 Once the head of damages is identified, the fourth step is to determine whether the effects of the divisible injuries claimed under this head of damages represent discrete or superimposed effects. A. Discrete Effects 61 Where the effects are discrete, the damages claimed under a specific head were either only caused by a specific divisible injury or were caused by one divisible injury, fully abated, 18

19 and then were again caused by another divisible injury. In either case, there is no overlap of effects. In this case, the trial judge uses the traditional rules for quantification of damages to assess the damages under the claimed head. In effect, no apportionment is done here. 62 A partial example of this approach can be found in Hutchings, where Mr. Justice Cullen was able to separate special damages arising from the accident and the assault. 53 Similarly, in McNaughton, the trial judge found that the divisible injuries caused by the accident did not cause the plaintiff any past loss of employment income, future loss of employment income, loss of future earning capacity after retirement, net loss of future pension income, loss of Public Service Award, loss of employer paid fringe benefits, loss of future valuable services, [and] future cost of care, which were caused by the subsequent workplace injury, and dismissed claims under those heads of damages. 54 B. Superimposed Effects 63 In the case of superimposed effects, losses under a head of damages represent the combined effects of two or more divisible injuries. Considering the example of a broken arm and a broken leg provided by Mr. Justice Major in Athey, both divisible injuries are compensable under the head of non-pecuniary damages. Moreover, if the second accident occurred while the injury from the first accident was still healing, the effects were superimposed on each other for at least a period of time. Assuming that Thiessen involved a divisible injury, 55 then the following passages from the headnote and the judgment describe the situation of superimposed effects: [headnote] As a result of the first accident he suffered considerable pain, discomfort and limitation of movement, was subject to frequent headaches and dizzy spells and became irritable and depressed. Up to the day before the second accident respondent was beginning to show some improvement in his general condition although many of the earlier symptoms were still present. As a result of the second accident there was a marked degeneration in his condition. [judgment] 53 Hutchings, supra note McNaughton, supra note 13, trial decision, Supra note

20 Because the injuries inflicted in the second accident were superimposed upon the then residual effects of the injuries inflicted in the first accident, it is a matter of the greatest difficulty to determine what damages should be awarded for each set of injuries In such situations, Thiessen seems to provide the only reasonable approach for apportioning damages between the tortfeasors. Pursuant to its formula, the onus is placed on the second tortfeasor to prove the damages that the plaintiff was suffering at the time of the first accident. The damages apportioned to the second tortfeasor are the difference between the overall damages that the plaintiff is suffering at the time of the trial and the damages found to have been caused by the first tortfeasor. Where there were more than two tortfeasors, the same formula may be applied with iteration. Thus, if there were three tortfeasors, the onus is first placed on the third to establish the damages at the time of the second accident. Then, the onus is placed on the second tortfeasor to establish damages at the time of the first accident. 65 If the plaintiff is found to have been contributorily negligent for one or more of the accidents, then the apportionment of damages between the plaintiff and the tortfeasor(s) takes place once the damages attributable to that accident are identified. This approach conforms with the Negligence Act as only the injuries suffered in a specific accident are indivisible injuries to which the defendant may seek contribution. V. Conclusion 66 In summary, this paper proposes the following steps for apportioning damages based on a hierarchical taxonomy of cases: 1 Assess injuries suffered; 2 Determine whether the injury is divisible or indivisible; 2.1 If indivisible, determine if there was contributory negligence by plaintiff; If no contributory negligence, the tortfeasors are jointly and severally liable and apportionment only matters as between the tortfeasors, determine whether the tortfeasors are concurrent or consecutive; If concurrent, apportion liability based on moral blameworthiness and apportion damages accordingly; 56 Thiessen, supra note 2 headnotes and