FACT PATTERN ONE

The following facts are based on the case of Bedard v. Martyn [2009] A.J. No. 308

The infant plaintiff developed a large blood clot in his brain at some time either before or during the
birthing process. As a result, the plaintiff suffered brain damage. The cause of this clot was
unknown. There were various theories advanced, none of them indicating negligence on the part of
the medical staff.

The problem initially was not detected by the medical staff. Whether this failure of early detection
was negligent or not was a disputed issue. One day after the birth, however, it was obvious that
something was wrong with the baby.

The attending doctors ordered that a lumbar puncture and an ultrasound be performed. The
ultrasound was not immediately done. When it was, the clot was discovered and surgery was
performed. The baby suffered serious permanent damage, including severe cerebral palsy,
permanent neurological and intellectual impairment and seizures.

The court held that the doctors’ initial failure to detect the problem was not negligent. The decision
to do a lumbar puncture was negligent, but the court decided that it did not cause any additional
injuries to the infant. The several hour delay however in doing the ultrasound after it was apparent
that something was wrong with the baby was held to have been negligent.

There are difficult causation issues presented in this case:

The baby had suffered some permanent brain damage as a result of the formation of the clot even
before the doctors determined that there was something wrong with the baby. Thus there was an
injury suffered even before any of the medical staff had been negligent. This injury would have
resulted in permanent losses to the baby. The delay, however, in performing the ultrasound allowed
the baby’s brain injury to worsen. Presumably the worsening of the injury resulted in more severe
losses.

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How should a court approach this case?

One approach might be to say that the baby suffered two divisible injuries. The first injury was
caused by the clot. The second injury was caused by the worsening of the initial injury which
occurred due to the negligent delay. This then could be seen as a “crumbling skull” case. That is,
there is an already degenerative condition which is exacerbated by a negligent act which worsens the
existing injury, resulting in the defendant’s liability only for the worsened condition.

If this is the approach that is followed, who has the burden of proving that there was an initial injury
worsened by a subsequent act of negligence, i.e. a “crumbling skull”? The “crumbling skull” is a
theory which works to the defendant’s advantage, because the plaintiff is arguing that the full injury
should all be the defendant’s responsibility, i.e. the injuries should not be divided into two parts.
The defendant would first argue that the delay caused no additional injury, but if that argument is
rejected, that it only increased the injury that already had been suffered.

If the “crumbling skull” theory is accepted, how does the court determine which losses flowed from
the initial non-negligent injury and which were added on by the subsequent negligent injury? Can the
losses flowing from the two phases be practically separated?

A second approach would be to say that the baby suffered only one permanent disabling injury, i.e
cerebral palsy, neurological and intellectual impairment and seizures which were the result of two
independent causes. The first cause was the non-negligently produced clot. The second was the delay
in diagnosis and treatment. The two combined to produce the devastating end result. This would be
an Athey v Leonati situation. Recall that in that case a pre-existing disability, two negligently caused
car accidents, and exercise combined to produce a disc herniation. The Supreme Court held that the
negligent motorists were fully responsible for the final result, despite the fact that other non-tortious
causes combined with them to produce it. If this was the approach of the court in this case, the
defendants would be responsible for the full injury and all losses and there would be no discounting
of the award.

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What did the trial judge decide?

First, he decided that the lumbar puncture which should not have been performed did not, using a but
for balance of probabilities approach, cause any additional injury to the plaintiff’s brain.

Second, he rejected the use of the Resurfice v Hanke “material contribution” test, as an alternative to
the “but for” test, in so far as the negligent delay was concerned. The trial judge found that it was not
“impossible” or even “difficult” to make a causal link between the negligent delay in ordering an
ultrasound and injury to the plaintiff’s brain. The evidence established this “but for” link on the
balance of probabilities.

Third, in the face of conflicting expert testimony, the trial judge held that “the majority of damage”
had already occurred by the time the patient’s condition was detected, but that a “minority of the
damage occurred after that time “ ( i.e in the period of the negligent delay). This delay caused “some
impairment”. This additional damage was “beyond de minimis”.

The court held that the plaintiff had the burden of proving that the delay resulted in more injury and
that they proved this. The court held that the plaintiff did not have to prove “the extent” of this
worsening. The trial judge conceded that “the exact extent [was] impossible to calculate”. Thus he
arbitrarily set the figure at 25%. He stated that “To put it another way, 25% of Logan’s injuries were
caused by the delay”.

The plaintiffs argued Athey. The trial judge understood the principle of Athey but did not consider
this to be be a case of contributing factors to an indivisble injury, but independent factors leading to
two divisible injuries. This was a “crumbling skull” case.

The trial judge did say, however, that “the nature of the injuries may well be indivisible” but despite
this the defendants were not required to compensate the plaintiff for the injuries which had already
occurred prior to the negligence. Thus I would say that in this sense the injuries were theoretically
divisible but as a practical matter indivisible. The court arbitrarily set the figure at 25% and
awarded the plaintiff 25% of the agreed upon damages.

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Questions:

Do you agree that this was a crumbling skull case? Or was it an Athey case?

Do you agree that the injuries were separable in theory, even though they could not be divided up in
practice?

Do you agree that the plaintiff need not prove the extent to which the injuries were worsened?

What was the basis of a 75% discount?

Even if the injuries were made more severe by an arbitrary figure of 25%, does this automatically
mean that the losses which flowed from them also amounted to 25% of the total losses? Perhaps the
losses would have been the same anyway - that is permanently disabling and the additional injury
caused no additional loss? Or perhaps the added 25% injury accounted for more than 25% of the
losses? Who has to prove this? What happens if it cannot be proved?

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 FACT PATTERN TWO

The following facts are based on Ashcroft v Dhaliwal 2008 BCCA 352, affirming 2007 BCSC
533

The plaintiff was involved in a motor vehicle accident on October 27, 2003. The defendant driver
was at fault for this accident. As a result of this accident, the plaintiff sustained soft tissue injuries to
various parts of her body. The plaintiff was involved in a second car accident on October 20, 2004.
The second accident was caused by the fault of the driver of the other car. The accident intensified
the symptoms of pain which the plaintiff was still experiencing from the first accident. The injuries
suffered in both accidents led to anxiety and depression. As a result the plaintiff was permanently
and totally disabled from working.

The plaintiff and the party responsible for the second accident settled their case. The plaintiff
continued her action against the defendant responsible for the first accident. The principal issue in
this case was whether the injuries suffered in both accidents were divisible or indivisible, and
whether the settlement received in the second accident should be deducted from the global award of
damages.

These facts again raise the issue of whether the two accidents led to two divisible injuries or
combined to produce one indivisible injury. If the plaintiff’s anxiety and depression, i.e.
psychological impairments, were caused by the combination of two successive tortious events, each
tortfeaasor would be fully responsible for these injuries and their attendant consequences. However,
if accident one caused some injuries with losses, and accident two caused more injuries, with more
losses, the courts would have to determine which injuries and which losses ought to be attributed to
which defendants.

The trial judge held that the plaintiff’s injuries were indivisible; that is the first motor vehicle
accident not only caused the initial injuries, but contributed to the injuries resulting from the second
accident as well. This conclusion was based on the fact that the plaintiff’s initial injuries were not
resolved by the time that the second accident occurred, the first accident made the plaintiff more

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vulnerable to the second accident exacerbating these injuries, and the injuries which she suffered in
the second accident were within the scope of this vulnerability. The trial judge referenced a number
of judgments where this approach was followed.

The trial judge reasoned that the first defendant should be 100% responsible for the losses suffered
as a result of the two accidents. The facts of the case, however, raised another contentious problem.
The plaintiff had already received a settlement amount from the second wrongdoer (about $315,000)
towards payment of the plaintiff’s global injuries (assessed at $400,000). The first defendant wanted
this settlement amount to be deducted from the overall damage award in order to prevent the plaintiff
from being overcompensated. Rather than dividing the fault for the injuries between the two parties,
as contemplated by the B.C. Negligence Act and ordering the first defendant to pay damages
according to his degree of fault, without regard to the settlement amount already received, the trial
judge was prepared to deduct the settlement amount from the global award, leaving the first
defendant only responsible for the difference.

Had the trial judge decided that the two successive accidents caused divisible injuries, and that the
first defendant should only be responsible for the first accident and those losses which resulted from
these injuries, another approach would have had to be followed. The dilemma would have been to
determine which losses flowed from the first injuries and which from the second. The issue becomes
complicated because in these types of cases, different injuries might produce similar types of
impairments with overlapping losses.

The case of Long v Thiessen (1968), 65 W.W.R. 577 (BCCA) provides a solution to this type of
problem. The plaintiff’s losses resulting from the injuries caused by the first tortfeasor in the first
accident are calculated as of the day prior to the occurrence of the second accident. If the second
accident’s injuries do not exacerbate these losses but overlap with them, then under Long v Thiessen,
the first wrongdoer still remains fully liable for these losses. This is based on the principle that the
second wrongdoer takes his victim as he finds him. If the victim is already suffering the losses
which would normally have been caused by the second accident’s injuries, this works to the
advantage of the second wrongdoer. If the losses that the plaintiff suffers, however, are increased by
the occurrence of the second accident, then the second wrongdoer should pay these additional

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damages. The second wrongdoer implicitly has caused additional injuries with additional attendant
losses. Unless these additional injuries could be traced back to the first wrongdoer in a legally
relevant way, they are not the responsibility of the first wrongdoer.

The Court of Appeal affirmed the trial judge’s result, and made the following points:

First, the court must distinguish between the “rule of causation from that of legal responsibility for
damages”. Here both torts were causes of the plaintiff’s injuries. Both tortfeasors were accordingly
fully liable for the consequences ( losses ) which flowed from them. If apportionment were to be
made, it would only be made based on apportionment under the Negligence Act. It would be based
on degrees of “fault”; not on responsibility for losses.

Second, the Court of Appeal stated that even though the tortfeasors remain fully liable to the plaintiff
for its losses, they can apportion these losses between themselves, based on either attributing an
arbitrary portion of them to the two successive wrongdoers, or by using the “devaluation approach”
of Long v Thiessen. In its discussion, however, I think the Court of Appeal errs in confusing the
apportionment of fault issue made for the purpose of liability under apportionment statutes, and the
division of responsibility for losses made on the basis of which losses were caused by which injuries.
The Court of Appeal viewed the Long v Thiessen approach as applicable to cases where two
tortfeasors cause an indivisible injury. The Court saw it as a method of attributing responsibility for
the losses flowing from the injuries to the wrongdoers responsible for causing them. For example,
the Court stated at para. 11:

“Effectively, the trial judge assessed the damages flowing from the indivisible injury,
then apportioned those damages between the two admitted tortfeasors, attributing
70% of the total loss to the first tort.”

As stated above, in my view the Long v Thiessen “devaluation” approach is only applicable where
successive wrongs produce different injuries, with overlapping losses. It is used to ensure that the
plaintiff’s losses are fully compensated for, while providing a way of dividing them up between the
wrongdoers. It is not used where successive wrongs produce an indivisible injury. In that case both
defendants are fully liable for all the losses which flow from this injury. If there is to be an
apportionment made, it is only for the purpose of contribution between wrongdoers and is made not

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on the basis of respective responsibility for losses, but upon respective degrees of fault in
contributing to the indivisible injury. Although the Court of Appeal correctly saw this case as a case
of two concurrent wrongdoers liable in full for an indivisible loss to which their fault contributed
(see para. 17 of the judgment), it incorrectly in my view saw Long v Thiessen as a method to
apportion responsibility for the losses which flowed ( see para. 18).

There is an important difference to a plaintiff whether the injuries are seen as divisible or indivisible,
and whether Athey v. Leonati or Long v Thiessen is applied. Where the injuries are indivisible and
both defendants contributed to producing them, each defendant is fully liable for these injuries and
for all of the losses which flow from them. If the damages are to be apportioned, this apportionment
is only of concern to the defendants and is based on the respective degrees of fault of the parties.
Where the injuries are divisible, but produce overlapping losses, the defendant who first caused the
injuries is responsible for these overlapping losses. The second defendant, although negligent and
having injured the plaintiff is not liable for any of the losses which the plaintiff was already suffering
from at the time of the second accident, since he takes his victim as he finds him. If the second
defendant produced additional losses to the plaintiff he is responsible, and solely responsible for
these losses. The first defendant cannot be held liable for losses to which his negligent act did not
contribute.

Third, the Court agreed with the trial judge that in terms of the first defendant’s responsibility for the
damages, the full settlement amount received should be deducted from the global award. The
principle behind this approach for the Court was the desire to avoid overcompensation.