B.C. Court of Appeal orders new trial for ICBC case involving two car accidents

In a case involving two motor vehicle accidents, British Columbia’s appellate court has found the issue of whether certain injuries were divisible was critical given the limited statutory liability of the Insurance Corporation of British Columbia for the unidentified driver involved in one accident.

Neufeldt v. Insurance Corporation of British Columbia, 2021 BCCA 327 concerned a damages claim arising from injuries sustained in two motor vehicle accidents. In September 2012, the respondent, a police officer, suffered injuries when a vehicle he was pursuing reversed and struck the police cruiser that he was driving. The respondent stopped working as advised by his doctor, returned to full‑time desk work in May 2015 and received clearance for full active duties in June 2015, although he continued experiencing headaches and pain in his middle and lower back.

In May 2016, the respondent was riding as a passenger in a police cruiser that was stopped when it was rear-ended by an unidentified driver who fled the scene. The respondent reported neck and back pain and headaches when he visited a doctor, then learned that he was suffering from a mild traumatic brain injury. The respondent saw a psychologist and a psychiatrist for his anxiety, irritability and symptoms of depression. The respondent’s attempt at a graduated return-to-work program in April 2018 was unsuccessful, so he remained on medical leave.

The Supreme Court of British Columbia awarded the respondent damages, including $2.4 million for loss of future income. The Court of Appeal for British Columbia allowed the appeal of the Insurance Corporation of British Columbia, set aside the award and remitted the actions to the B.C. Supreme Court for a new trial, finding that it was not in a position to allocate the damages to each accident and to correct the lower court’s errors.

The B.C. Court of Appeal found that the trial judge erred in determining that the respondent’s mild traumatic brain injury was an indivisible injury caused by both accidents, in allowing the neurologist who saw the respondent for a medical-legal evaluation to testify beyond the opinions in his expert report and in denying the appellant a chance to cross‑examine the neurologist.

The appellate court also held that the trial judge erred in assessing the claim for future loss of income earning capacity when he failed to account for the duplication of the past wage loss, for the respondent’s projections regarding his promotion, for some residual income earning capacity and for some basic contingencies. The appellate court stressed that, when awarding damages, the trial judge should consider the award’s overall fairness and reasonableness and should tackle the positive and negative contingencies.

Regarding the back and neck injuries, the issue of divisibility was important because of the ICBC’s limited statutory liability for the unidentified driver involved in the second accident. In this case, the appellate court found no error in the trial judge’s finding that the back and neck injuries were one indivisible injury arising from both accidents, given that the respondent’s injuries from the first accident had not entirely resolved and were aggravated by the second accident.

However, in relation to the mild traumatic brain injury, the appellate court held that the trial judge, who had declared the defendants jointly and severally liable for damages, failed to expressly address the issue of whether such injury and its symptoms were a distinct and divisible injury for which the first tortfeasor could not be held liable. The trial judge’s failure to conduct this analysis undermined the judgment, the appellate court concluded.