In a negligence action, the payment of damages is intended to restore the Plaintiff (insofar as the payment of money can accomplish that goal) to the condition that the Plaintiff would have been in but for the negligence of the Defendant.
When two or more Defendants cause the same injury to a Plaintiff, all of them are responsible to the Plaintiff for the total amount of the damages even if their respective degrees of fault differ. This is called “joint and several” liability. A Plaintiff in that situation can collect different amounts from each Defendant, depending on the degree of fault. Alternatively, the Plaintiff can elect to collect the total amount of damages from any one Defendant, in which case that Defendant is entitled to seek contribution from the others, again according to their respective degrees of fault. Thus, in principle, no Defendant ends up paying more than his or her fair share.
Negligent parties who cause different injuries to the same Plaintiff are only liable to compensate the Plaintiff for the injury each of them caused. These Defendants are only “severally” liable to the Plaintiff and therefore cannot claim contribution from one another.
These principles are designed to ensure that a negligent party can only be liable for the harm caused by their negligence and not for the harm caused by someone else. However, a case decided by the British Columbia Court of Appeal has imposed joint and several liability on Defendants who caused injury to a Plaintiff by negligent acts separated by a significant period of time.
In the case of Bradley v. Groves, the Plaintiff, Mrs. Bradley, was involved in two motor vehicle accidents, one in 2006 and one in 2008. In both accidents Mrs. Bradley sustained soft tissue injures to her neck. In 2009 the action against Mrs. Groves, the Defendant in the first accident, went to trial. The Trial Judge found that the injuries caused by the first and second accidents were “indivisible”. This meant that the Court was not able to determine on the basis of the evidence the degrees to which each accident had caused Mrs. Bradley’s present state. Therefore, based on the principle of joint and several liability, Mrs. Groves was held responsible for 100% of the damages caused by both accidents.
Mrs. Groves appealed to the B.C. Court of Appeal, claiming that the Trial Judge ought to have “disentangled” the damage she caused from that caused by the other driver two years later, and that she should only be liable for harm she created. The Court of Appeal disagreed and dismissed her appeal. Leave to appeal that decision to the Supreme Court of Canada was denied, with no reasons given.
In the result, Mrs. Groves became liable to pay Mrs. Bradley’s damages for injuries caused by someone else. Of course, since Mrs. Groves and the driver in the second motor vehicle accident were jointly and severally liable, Mrs. Groves could, in theory, sue that other driver for contribution (assuming that the other driver could be found). However that does not address the legal issue arising from the finding.
The issue is the characterization of injuries which occurred two years apart as “indivisible”, when they are clearly not the same injury. No doubt the symptoms of the injuries were similar (i.e. neck pain), but it is simply not possible that Mrs. Bradley sustained the same injury in 2006 and 2008. Again, Mrs. Groves should not be held legally responsible for damage clearly caused by someone else.
The reasoning found in Bradley v. Groves has been expressly rejected in other jurisdictions, such as Ontario, where one judge concluded that individuals who had caused damage to a Plaintiff through sexual assault over the course of many years “are each accountable for their individual conduct but not for that of others”1 .
Indeed the Supreme Court of Canada in Blackwater v. Plint stated:
Untangling the different sources of damage and loss may be nigh impossible. Yet the law requires that it be done, since at law a Plaintiff is entitled only to be compensated for the loss caused by the actionable wrong.
This development creates confusion in the law and potential problems for Defendants.
The analysis found in Bradley v. Groves has not yet been applied in Alberta, nor should it be. Hopefully, our Courts will continue to assess damages in these types of cases according to the traditional analysis whereby the Plaintiff's loss is assessed as of the day before the subsequent injury occurred and, if need be, damages for the subsequent injury are assessed as the total loss suffered, less the damages attributable to the first injury.