by Dave Risling, Partner, McLennan Ross LLP Recently the British Columbia Court of Appeal upheld a decision of a lower Court reducing the Plaintiff's damages by an amount the Plaintiff received in settlement from another accident. The Plaintiff was involved in two motor vehicle accidents which occurred two years apart. The first accident was relatively significant and approximately a year later the Plaintiff was involved in another, relatively minor accident. In each case the defendants admitted liability. The Plaintiff settled her claim arising from the second accident before trial. At trial she sought only an assessment of damages from the first accident. The evidence indicated that before the second accident occurred, the Plaintiff had not recovered from her mental and physical injuries resulting from the first accident. Essentially, the second accident aggravated and exacerbated the Plaintiff's injuries. The Plaintiff settled the second accident claim for $315,000. The trial judge found that the Plaintiff's injuries from the second accident were "indivisible" from her first accident injuries. The trial judge found the Plaintiff's total damages were $400,000 and that the first accident caused 70% of the damages and the settling Defendant caused 30% of the damages. However, the trial judge deducted the whole of the settlement funds from the damage award against the non settling defendant to prevent double recovery by the Plaintiff. The Court held the Plaintiff was only entitled to collect $85,000 from the Judgement, a much lower amount that that Defendant was found to have caused in damage. The Court of Appeal upheld the trial judge's decision based on the reasoning in Dixon v. British Columbia (1980), 24 B.C.L.R. 382. The case in Dixon involved "concurrent" torts in that the negligence of two individuals caused one injury and its consequential loss simultaneously. In Ashcroft, the Court defined the torts as "consecutive" because, the Plaintiff's injury was indivisible and the negligence of both tortfeasors were causes of that injury and the resulting loss, however, the negligence occurred at different times. The Court of Appeal held that there was no policy reason for treating concurrent and consecutive torts differently when both are necessary causes of an indivisible injury. The Court found that separate torts, when linked by an indivisible injury, do not equate to two separate causes of action. The indivisible injury is the link that brings in, not only joint and several liability, but also the rule against double recovery. Ultimately, the Court of Appeal determined that avoiding double recovery trumped the public interest in settlement privilege and deducted the full settlement amount from the damage award. Leave to appeal of this decision to the Supreme Court of Canada has been denied. This alert is a general overview of the subject matter and cannot be regarded as legal advice. Please contact Alexis Moulton or Dave Risling, or any other member of our Insurance Practice Group for further advice on this or any other Insurance Law matter. |
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