Third Party Claim Relating to Prior Accident Dismissed on Rule 21 Motion

In Willoughby v. Weber, Madam Justice Beth Anna Allen decided a Rule 21 motion involving the recurring problem of the same plaintiff being injured in multiple accidents. The motion sought the dismissal of a third party claim. Justice Allen granted the motion.

The plaintiff had been involved in three separate car accidents. Two of them had occurred in 2003 and the plaintiff sued various defendants in relation to those accidents. However, the plaintiff had also been involved in an accident in November, 2002. She had been convicted of a driving offence in relation to that accident. She had not sued anyone for any injuries suffered in that accident.

However, some of the defendants in the action brought as a result of the 2003 accidents commenced a third party claim against another driver who had been involved in the 2002 accident. They did so out of a concern that the plaintiff’s injuries might be found to be “indivisible” among the three accidents. They wanted to ensure that if the third party was at fault for the 2002 accident and if that accident had contributed to an “indivisible” injury, that they could obtain contribution from that party.

Counsel for the third party argued that “s. 1 of the Negligence Act does not apply in circumstances where the negligent acts of the tortfeasors are separated in time”, as the 2002 and 2003 accidents obviously were. Section 1 of the Act reads as follows:

Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering the loss or damage for such fault or negligence, but as between themselves, in absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.

Justice Allen agreed that the third party action should be dismissed, but she based her decision on grounds different from those argued by counsel for the third party. She relied heavily on the Court of Appeal’s decision in Misko v. Doe, which had been cited to her by both parties in argument. That case involved a third party claim by a defendant in an action arising out of one accident against a defendant who had been sued by the same plaintiff in relation to another accident but who had settled the claim. The Court of Appeal upheld the motions judge’s dismissal of the third party claim against the settling defendant, but did so because the plaintiff had undertaken not to pursue compensation for any injuries sustained in the first action (i.e., the one in which a settlement had been reached). (It is for this reason that we said, in our comment about the case, that the Court of Appeal’s decision will be of limited use. However, judging from Justice Allen’s reasons in Willoughby, we might have been wrong about that…)

No comparable concession to the one in Misko had been made in this case. Nevertheless, Justice Allen was satisfied that Misko could be applied to achieve the same result. She thought that at trial, s. 1 of the Negligence Act would result in the court apportioning damages among the defendants involved in the two 2003 accidents and limiting their liability to the injuries that their accidents had caused. Importantly, she was of the view that the plaintiff’s decision not to sue the other driver as a result of the 2002 accident was tantamount to the undertaking given in the Misko case: that compensation would only be sought in relation to injuries suffered in the 2003 accident. She said that any judgment at trial against the 2003 defendants would extend only to “their respective responsibilities arising from the…2003 accidents”. Accordingly, there was no need for the third party claim, in Justice Allen’s view.

It is hard to tell to what extent Justice Allen thought that a trial judge, applying s. 1 of the Negligence Act, would necessarily confine the damages to injuries caused by the 2003 accidents. She said, at paragraph 23:

The courts have established principles to govern the allocation of responsibility where the plaintiff has been injured in successive automobile accidents. If the plaintiff succeeds at trial, judgment will go against the defendants only to the degree of their responsibility for the plaintiff’s injuries. [Misko Appeal at para. 16].

No exception can be taken to this passage, as long as it is clear that s. 1 allows the court to apportion fault, not causation.

She then turned to “the question of the problem posed by indivisible injury” and again referred to Misko:

Rosenberg J. found that if there is a single indivisible injury, the application of the principle in Athey v. Leonati would mean that both tortfeasors would be fully liable for the plaintiff’s injuries and the insurer in Misko would only be liable to the extent that the unidentified driver caused or contributed to the injury. [Misko Appeal, at para. 17].

But Rosenberg J. in Misko went on to say, in the following paragraph, that:

In view of the plaintiff’s position that this is all he seeks from Liberty Mutual (and that he does not rely on the full compensation principle in Athey), judgment will go against Liberty Mutual only for the damages for which the second tortfeasor is responsible. If the damages are “indivisible” as is alleged by Liberty Mutual, this task may not be an easy one, but the court will have to make the determination. [Emphasis added]

Thus, the abrogation of the “full compensation” principle of Athey that occurred in Misko was entirely dependent on the plaintiff having undertaken not to pursue a claim for full compensation. No such undertaking was given in Willoughby but, as noted above, Justice Allen seems to have read one into the facts of the case. But for this part of her analysis, it is difficult to see how Misko supported her conclusion.

The defendants in this case will have to hope that their trial judge is also prepared to “read in” an undertaking by the plaintiff not to pursue full compensation for an indivisible injury, as Justice Allen was evidently prepared to do in dismissing the third party claim.

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