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Case Summary: Khudabux v. McClary
Defence + Indemnity

In the case of a crumbling skull plaintiff the Court will apportion responsibility to the different accidents involved where the injuries in question are not indivisible. 

Khudabux v. McClary, 2018 BCCA 234 per Stromberg-Stein, J.A. [4286]

FACTS AND ISSUES:

The Plaintiff, Ms. Khudabux, was involved in motor vehicle accidents on April 6, 2011 (the “2011 Accident”) and March 24, 2014 (the “2014 Accident”) which were the subjects of the lawsuit.
 
Khudabux had an extensive history of injuries:

  1. She had a psychiatric history and had taken medication and seen various physicians. 
  2. In January 2006, as a pedestrian, she was hit by a van and suffered a concussion, injuries to her neck, shoulders, back, knees, ankles and feet. This claim was settled in 2010 and the terms were not revealed at trial.
  3. In 2009, she was diagnosed with PTSD.
  4. In 2010, she was rear-ended, aggravating the 2006 injuries.
  5. Following the 2011 Accident, Khudabux suffered two non-tortious events: a slip in fall in 2011 and a slip and fall in 2012.

Some or all of these incidents caused or contributed to chronic pain in her lower and mid-back, extreme headaches, pain in her arms, legs, feet and neck, and chronic and unstable depression.
 
Just prior to the 2011 Accident, Khudabux was assessed by her doctor who determined that she was still symptomatic from the 2006 and 2010 accidents.
 
The 2011 Accident involved two collisions whereby Khudabux clipped the back corner of a grey car in front of her to attempt to avoid hitting that car. Another driver, McClary, also tried to avoid the grey car but struck the right back corner and side of Khudabux’s vehicle.
 
The 2014 Accident involved Khudabux being rear-ended by MacDonald.
 
At trial, the trial judge considered the 2011 Accident in two parts finding Khudabux 100% at fault for the first collision, both her and McClary at fault for the second collision, and that she was 20% contributorily negligent.
 
MacDonald admitted fault for the 2014 Accident.
 
The trial judge found the evidence to be lacking but made several findings of facts with respect to the effects of the 2011 Accident:

  1. The accident was not a cause of her current headaches or psychiatric issues beyond de minimus; and
  2. The accident was the cause of:
    • significant aggravation of pre-existing mid-back pain;
    • moderate temporary aggravation of headaches, shoulder, neck and knee pain;
    • aggravation of myofascial pain; and
    • a modest reduction of resiliency.

The trial judge held that the 2014 Accident caused a temporary aggravation of Khudabux’s symptoms and a slight loss of resilience.
 
The trial judge rejected Khudabux’s argument that the two defendants should be jointly and severally liable as it was possible to determine the extent to which each accident had caused her additional injury. In any event, as Khudabux was contributorily negligent, joint and several liability was not available to her by operation of section 1 of British Columbia’s Negligence Act, R.S.B.C. 1996, c. 333.
 
The trial judge concluded the tortious and non-tortious injuries Khudabux had sustained in the 2011 accident and afterwards were deserving of a global non-pecuniary assessment of damages in the amount of $75,000. Along with other awards that have not been appealed, the total assessment of damages for the 2011 accident was $34,004.37.
 
No appeal was taken from the award of damages in the amount of $8,000 for injuries arising from the 2014 accident.
 
The following issues were raised on appeal:

  1. Did the judge misapply the law when determining whether Ms. Khudabux’s injuries were divisible and whether the defendants were joint and severally liable?
  2. Did the judge misapply the law by considering post-accident traumas when determining what Ms. Khudabux’s condition would have been but for the 2011 accident?
  3. Did the judge err in reducing the damages due to Ms. Khudabux’s other accidents?

HELD:  For the Defence; appeal dismissed.

In determining the standard of review, the Court held that as the first two grounds alleged a misapplied legal framework, a standard of correctness was necessary. The final ground was an error in fact and law attracting a standard of review of palpable and overriding error.

Given the trial judge’s finding of fact and the operation of the Negligence Act, the trial judge was held not to have erred in concluding the divisibility and the unavailability of joint and several liability.

  • The Court held that this was not a case of indivisible injuries.

a. “Divisible injuries are those that can be separated so that their damages can be assessed independently: Bradley v. Groves, 2010 BCCA 361 (CanLII), at para. 20.” At para 32.
 
b. “It is where injuries are indivisible, in that the injuries cannot be separated, that each tortfeasor is jointly and severally liable (absent contributory negligence): Bradley at paras. 24, 32…” at para 33.
 
c. “…[D]espite the tangled nature of Ms. Khudabux’s various injuries, [the trial judge] was able to determine the extent to which the two defendants at trial had caused or aggravated those injuries” at para 34.


Even if the injuries were indivisible, joint liability was not available by operation of British Columbia’s Negligence Act. As contributory negligence was found on the part of the Plaintiff by the trial judge and not disputed on appeal, joint liability was unavailable.

The Court took no issue with the trial judge’s approach to post-accident incidents.

  • The trial judge was required to consider the impact of unrelated events in determining Ms. Khudabux’s original position.
  • The issue of intervening events is more properly considered in the causation analysis (at para 37).
  • Having decided that her injuries were calculated at $75,000, it was not an error for the judge to deduct the amount for which the defendant was not responsible.

The trial judge was held to have made no error in his approach to assessing damages. While there may be other methods to reduce damages, his approach was not wrong.

  • The trial judge had identified the extent to which the 2011 Accident aggravated the Plaintiff’s pre-existing injuries.
  • While her condition was made worse by the 2011 Accident, the intervening events would have caused loss in any event (at para 40).
  • Determining what reduction is appropriate is difficult and the trial judge tried his best to assess the damages in the complex circumstances.
  • The trial judge was unpersuaded by Khudabux’s great disparity and all of the other intervening traumas.
  • It was held that Khudabux’s issue was not with the approach of the trial judge regarding reduction, but with the factual conclusions (para 46).

COMMENTARY:

In British Columbia, the Negligence Act does not permit joint liability where the plaintiff is contributorily negligent. This means that if the plaintiff contributes even 1% to their injury, they can only collect from the defendant(s) their specific portion of the loss.
 
Alberta does not have a similar provision regarding joint liability. In Alberta, even where a plaintiff contributes to his/her own loss, it is possible for the defendants to be jointly liable. As a result, the plaintiff could go to any one of the defendants to collect the entire amount awarded. It is then up to that defendant to collect from the other defendants.