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Apportioning Damages Between Multiple Crashes

I have commenced a claim for a motor vehicle collision that was not my fault. Before that claim resolved, I was involved in a second motor vehicle collision that was my fault. Will the second collision impact the ongoing claim that arose from the first collision?

The recent decision of Uppal v Chung (2017 BCSC 80) featured a self-represented plaintiff who was involved in two motor vehicle collisions. The plaintiff suffered soft tissue whiplash injuries to his neck and back as a result of the first collision. The plaintiff suffered an aggravation of these injuries in the second collision, but did not sustain any new injuries.  Further, the court found that the plaintiff was not at fault for the first collision, but at fault for the second collision. After deciding the issues surrounding liability, the question before the court was how to properly apportion the plaintiff’s damages between the two collisions. In deciding this issue, with regard to non-pecuniary damages, Madam Justice MacNaughton relied on the following principles:

[192]     In this case, I must decide how to arrive at a fair assessment of Mr. Uppal’s non-pecuniary general damages, taking into account that his current physical and emotional condition is a result of the first MVA, for which he was not at fault, and the second MVA for which he was.

[193]     The impact of an at-fault accident in cases of indivisible injury was discussed by Justice Humphries in Demidas v. Poinen, 2012 BCSC 416 at paras. 51, 56-57:

 [51]         The effect of the at-fault accident on the overall damage award is not a matter of contributory negligence, although the effect on the overall result may be similar. It is a matter of ensuring that the defendants are responsible only for the loss and damage they caused to the plaintiff.

[56]         While this is not a situation where damage is divisible and capable of individual apportionment, nevertheless the loss and damage caused by the accident for which Mr. Demidas is at fault must be considered and removed from the overall award so that the defendants are not held responsible for that amount.

[57]         This is an imperfect exercise, dealing with intangibles and hypotheticals. Although each accident was fairly minor, the recurrence of accidents contributed to Mr. Demidas’ ongoing symptoms. However, those symptoms are not as severe as those in the cases cited to me by the plaintiff. Considering the authorities presented to me, the injuries sustained in the four accidents, and adjusting the amount for the effects of the at-fault accident, I set non-pecuniary damages at $45,000.

[194]     A similar analysis was more recently the subject of discussion in Blenkarn v. Mills, 2016 BCSC 1976.

[195]     Because Mr. Uppal’s injuries are indivisible and not capable of individual apportionment, I must remove from the overall award the portion of any damages for which Mr. Chung is not responsible.

[196]     In a number of cases, this has been described as an imperfect exercise dealing with intangibles and hypotheticals: Demidas at para. 57; Blenkarn at paras. 29-30.

[197]     In Mr. Uppal’s case, apportionment is made somewhat easier by the fact that his condition had improved after the first MVA to the point where he was about to return to work on a full-time basis. I understand that Mr. Uppal did not agree with the extent of his recovery as assessed by his chiropractor and CBI but, absent expert medical evidence, I am only able to rely on the objective evidence that he was back to work six hours a day and scheduled to return to full-time hours in the near future. I also take into account that his employer was accommodating him and there is no evidence that it would not have continued to do so.

[198]     I therefore conclude that any general damages to which Mr. Uppal is entitled should be assessed as if he had only been involved in the first MVA and, but for some residual difficulties which would have resolved in a few months, had fully recovered by the date of the second MVA.

[199]     In summary, the relevant evidence, as it relates to the Stapley factors is that:

(a)  Mr. Uppal was 47 years of age at the date of the first MVA, and he is now 54;

(b)  he was active and fit before the first MVA. He enjoyed his work and his social life. Since it, he has been less willing to socialize and is more irritable when his routine is interrupted;

(c)  his injuries caused him moderate pain and discomfort in his neck, shoulders, and back, and headaches and dizziness;

(d)  he was disabled from working as result of the first MVA for the first approximately five months and then commenced a gradual return to work. He had nearly returned to full-time work when he had the second MVA;

(e)  he had a pre-existing diabetic condition which, according to Dr. Rickard’s report, has contributed to his current condition;

(f)    his injuries have a psychiatric overlay; and

(g)  he has suffered from loss of enjoyment of life, although he is well-supported emotionally and financially by his extended family. Most of the evidence in ths regard related to Mr. Uppal’s current condition not his conditioun before the second MVA. However, I accept that there was some impact on his social and other activities following the first MVA.

[200]      I conclude that Mr. Uppal’s circumstances are most comparable to those of the plaintiffs in the cases of Farbatuk; Gulbrandsen; Mohamud; and Moini. Considering those cases, which involved plaintiffs of a similar age to Mr. Uppal, and with moderate soft tissue injuries which continued for about two years, and in all the circumstances, I award Mr. Uppal $40,000 for the injuries he suffered in the first MVA.

[201]     I have concluded that any ongoing injuries are attributable to the second MVA, for which Mr. Uppal was at fault.

With regard to apportioning past income loss between the two collision:

[205]     Mr. Uppal claims past loss of income for the time he was off work after the first MVA, and during the period of his gradual return to work, and for the fact that he has not worked since the second MVA.

[206]     Because I have determined that he was entirely responsible for the second MVA and because the injuries overlapped, I must determine the point at which Mr. Uppal would have returned to full-time work with Incomm but for the second MVA.

[207]     The evidence is clear that Mr. Uppal’s condition was improving after the first MVA and he was gradually increasing his hours at work. He was initially expected to be able to return to full-time hours by November 15, 2012, but had not done so by December 20, 2012, the date of the second MVA.

[212]     There is no medical evidence which would allow me to determine that Mr. Uppal was unlikely to have made a successful return to work but for the second MVA. Incomm was a very supportive employer and had gone to great lengths to accommodate Mr. Uppal. In fact, I was advised that he would be welcome to return to work for them.

[213]     In the absence of expert medical evidence to the contrary, I find that Mr. Uppal would have returned to work on a full-time basis by the beginning of 2013. As a result, while he would have had a small additional loss of past income from December 20, 2012 to January 2013, I am unable to quantify it.

[214]     As a result, I allow Mr. Uppal a total of $30,172 in gross past wage loss which I reduce to $20,000 to take into account the fact that Mr. Uppal will not pay tax on this award.

[215]     Mr. Uppal says that the first MVA was the cause of all of his current medical problems but at the time of the second MVA, he had returned to work for six hours a day and was set to return to work full-time shortly thereafter. He never returned to work after the second MVA despite Dr. Aulakh encouraging him to do so. Given my conclusion that liability for the second MVA lies solely with Mr. Uppal, it is unnecessary for me to consider the question of whether Mr. Uppal could or should have returned to work following the second MVA.

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