Hutchings v. Dow, 2007 BCCA 148

JudgeProwse, Low and Kirkpatrick, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateMarch 12, 2007
JurisdictionBritish Columbia
Citations2007 BCCA 148;(2007), 238 B.C.A.C. 139 (CA)

Hutchings v. Dow (2007), 238 B.C.A.C. 139 (CA);

    393 W.A.C. 139

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. MR.032

Jonathan Hutchings (respondent/plaintiff) v. Stephen Barry Dow, Meleana Michelle Markovich, Essra Vischon and Marine Drive Collision Ltd. (appellants/defendants)

(CA034072; 2007 BCCA 148)

Indexed As: Hutchings v. Dow et al.

British Columbia Court of Appeal

Prowse, Low and Kirkpatrick, JJ.A.

March 12, 2007.

Summary:

The plaintiff sued for damages for injuries suffered in a motor vehicle accident and an assault. Liability for the accident was admitted, and there was no issue at the motor vehicle trial that the plaintiff had been assaulted.

The British Columbia Supreme Court, in a decision reported at [2006] B.C.T.C. 629, determined the apportionment of liability between the defendants in the motor vehicle action and awarded damages to the plaintiff. The trial judge found, inter alia, that the plaintiff's depression was an indivisible injury which was contributed to in a material way by both the accident and the assault, with the result that the tortfeasors in the accident and the assault were jointly and severally liable for all of the damages flowing from that injury. The defendants in the motor vehicle action appealed, submitting that the trial judge erred in his overall assessment of damages by failing to determine the plaintiff's "original position" in assessing damages for the accident; (2) applying a "material contribution" test rather than a "but for" test in determining causation; (3) failing to properly apply s. 4 of the Negligence Act; and (4) conflating the issues of causation and assessment of damages.

The British Columbia Court of Appeal dismissed the appeal.

Damages - Topic 810

Assessment - Overlapping damages from separate causes - The plaintiff sued for damages for injuries suffered in a motor vehicle accident and an assault - In the motor vehicle action, the trial judge found, inter alia, that the plaintiff's depression was an indivisible injury which was contributed to in a material way by both the accident and the assault, with the result that the tortfeasors in the accident and the assault were jointly and severally liable for all of the damages flowing from that injury - On appeal, the defendants submitted that the trial judge erred in his overall assessment of damages by failing to determine the plaintiff's "original position" in assessing damages for the accident - The British Columbia Court of Appeal rejected the submission - The accident and the subsequent assault were necessary causes which merged together to produce the depression which, as the trial judge said, was "of a piece" - Thus, it was not possible (or logical) on the evidence to determine the plaintiffs' original position respecting his depression in the absence of the accident - See paragraphs 10 to 17.

Torts - Topic 54

Negligence - Causation - Test for (incl. ''but for'' test and ''material contribution'' test) - The plaintiff sued for damages for injuries suffered in a motor vehicle accident and an assault - In the motor vehicle action, the trial judge found, inter alia, that the plaintiff's depression was an indivisible injury which was contributed to in a material way by both the accident and the assault, with the result that the tortfeasors in the accident and the assault were jointly and severally liable for all of the damages flowing from that injury - On appeal, the defendants submitted that the trial judge erred in applying a "material contribution" test rather than a "but for" test in determining causation - The British Columbia Court of Appeal rejected the submission - It was implicit in the trial judge's reasons that he was satisfied that "but for" the accident the depression would not have occurred, and "but for" the assault the depression would not have occurred - In other words, both the accident and the assault were necessary, but not sufficient, conditions giving rise to the plaintiff's depression - The trial judge was not persuaded that any of the other factors relied on by the defendants (including personal and economic problems, and a period of drug use) played any significant causative role in the plaintiff's depression and the evidence supported that conclusion - See paragraphs 18 to 20.

Torts - Topic 7003

Joint and concurrent tortfeasors - General - Several tortfeasors - The plaintiff sued for damages for injuries suffered in a motor vehicle accident and an assault - The trial judge found, inter alia, that the plaintiff's depression was an indivisible injury which was contributed to in a material way by both the accident and the assault, with the result that the tortfeasors in the accident and the assault were jointly and severally liable for all of the damages flowing from that injury - On appeal, the defendants submitted that the trial judge erred in applying s. 4 of the Negligence Act here because they and the assaulter were several tortfeasors whose torts gave rise to separate damage - The British Columbia Court of Appeal rejected the submission - The trial judge found that the defendants and the assaulter were several tortfeasors whose acts combined to produce the same damage (i.e., the depression) - The defendants and the assaulter were several concurrent tortfeasors and the trial judge did not err in his application of s. 4 of the Act - See paragraphs 21 to 25.

Torts - Topic 7148

Joint and concurrent tortfeasors - Concurrent tortfeasors - Liability of each for whole of damage - [See Torts - Topic 7003 ].

Cases Noticed:

Hanke v. Resurfice Corp. et al. (2007), 404 A.R. 333; 394 W.A.C. 333; 357 N.R. 175; 2007 SCC 7, refd to. [para. 5].

Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 100 B.C.A.C. 212; 163 W.A.C. 212; 43 B.C.L.R.(3d) 219 (C.A.), refd to. [para. 6].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, dist. [para. 13].

Statutes Noticed:

Negligence Act, R.S.B.C. 1996, c. 333, sect. 4 [para. 21].

Authors and Works Noticed:

Williams, Glanville L., Joint Torts and Contributory Negligence: A Study of Concurrent Fault in Great Britain, Ireland and the Commonlaw Dominions (1951), c. 1, pp. 1 [para. 23]; 16 [para. 24].

Counsel:

P. Abrioux and G. Ritchey, for the appellants;

H. Rubin, Q.C., for the respondent.

This appeal was heard at Vancouver, B.C., on February 12 and 13, and written submissions were received on February 20, 27 and 28, 2007, by Prowse, Low and Kirkpatrick, JJ.A., of the British Columbia Court of Appeal. Prowse, J.A., delivered the following decision for the court on March 12, 2007.

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15 practice notes
  • Fleming v. McAllister, 2017 BCSC 521
    • Canada
    • Supreme Court of British Columbia (Canada)
    • March 30, 2017
    ...1 S.C.R. 306 10. Ridge Tool Company v. A & L Plumbing & Heating Ltd., 2010 SKCA 45 11. Hutchings v. Dow, 2006 BCSC 629, aff’d 2007 BCCA 148 12. Bradley v. Groves, 2010 BCCA 361 13. Ashcroft v. Dhaliwal, 2008 BCCA 352 14. Blenkarn v. Mills, 2016 BCSC 1976 Engel v. Salyn, [1993] 1 S.......
  • Steinebach v. Skittrell,
    • Canada
    • Supreme Court of British Columbia (Canada)
    • January 19, 2022
    ...injuries were divisible or indivisible between an accident and subsequent assault, the Court of Appeal, in Hutchings v. Dow, 2007 BCCA 148 at paras. 15-17, noted that the accident and intervening event could be considered “of a piece” and that “there was ......
  • Kasidoulis v. Russo, [2010] B.C.T.C. Uned. 978
    • Canada
    • Supreme Court of British Columbia (Canada)
    • July 13, 2010
    ...recently addressed and reviewed in Athey v. Leonati , [1996] 3 S.C.R. 458; Resurfice Corp. v. Hanke , 2007 SCC 7 and Hutchings v. Dow , 2007 BCCA 148. [38] These cases establish the proposition that to impose liability on the defendant I must be satisfied that Ms. Kasidoulis would not have ......
  • Dikey v. Samieian et al., [2008] B.C.T.C. Uned. C03
    • Canada
    • Supreme Court of British Columbia (Canada)
    • May 16, 2008
    ...of future income as may be determined from a reasonable appraisal of the evidence. [154] See also Hutchings v. Dow , 2006 BCSC 629, aff'd 2007 BCCA 148, leave to appeal ref'd 2007 Carswell BC 2328: [374] What emerges from the evidence in this case, however, was that at the time of the Accid......
  • Request a trial to view additional results
15 cases
  • Fleming v. McAllister, 2017 BCSC 521
    • Canada
    • Supreme Court of British Columbia (Canada)
    • March 30, 2017
    ...1 S.C.R. 306 10. Ridge Tool Company v. A & L Plumbing & Heating Ltd., 2010 SKCA 45 11. Hutchings v. Dow, 2006 BCSC 629, aff’d 2007 BCCA 148 12. Bradley v. Groves, 2010 BCCA 361 13. Ashcroft v. Dhaliwal, 2008 BCCA 352 14. Blenkarn v. Mills, 2016 BCSC 1976 Engel v. Salyn, [1993] 1 S.......
  • Steinebach v. Skittrell,
    • Canada
    • Supreme Court of British Columbia (Canada)
    • January 19, 2022
    ...injuries were divisible or indivisible between an accident and subsequent assault, the Court of Appeal, in Hutchings v. Dow, 2007 BCCA 148 at paras. 15-17, noted that the accident and intervening event could be considered “of a piece” and that “there was ......
  • Dikey v. Samieian et al., [2008] B.C.T.C. Uned. C03
    • Canada
    • Supreme Court of British Columbia (Canada)
    • May 16, 2008
    ...of future income as may be determined from a reasonable appraisal of the evidence. [154] See also Hutchings v. Dow , 2006 BCSC 629, aff'd 2007 BCCA 148, leave to appeal ref'd 2007 Carswell BC 2328: [374] What emerges from the evidence in this case, however, was that at the time of the Accid......
  • Ashcroft v. Dhaliwal et al., [2007] B.C.T.C. Uned. C65
    • Canada
    • Supreme Court of British Columbia (Canada)
    • April 20, 2007
    ...were causally connected to the first accident and the injuries it caused. [36] Both Athey and Hammer were followed in Hutchings v. Dow , 2007 BCCA 148, a case where injuries in a motor vehicle accident combined with an assault one and one-half years later produced the plaintiff's depression......
  • Request a trial to view additional results

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