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Case Comment: Ashcroft v. Dhaliwal
Published in the October 2008 issue of Transportation Notes - View Article
It may be premature to claim that the decision of the Court of Appeal for British Columbia is the end of the line. A further appeal to the Supreme Court of Canada is possible. However, we are predicting that the way in which the Court of Appeal dealt with an interesting question of apportionment among tortfeasors will represent the final disposition of the issue.
Elisabeth Ashcroft was injured in two automobile accidents which took place nearly a year apart. In the first, the driver of a truck operated by Jagpal Trucking struck her vehicle when attempting to merge. Ashcroft suffered soft tissue injuries, developed post-traumatic stress, became depressive and suffered chronic pain. She did return to work within a year. The second accident occurred almost exactly a year later. The trial judge thought it was “relatively minor”, but her pre-existing condition was exacerbated. She claimed to be totally disabled from returning to work.
The matter proceeded to trial against the driver and owner of the truck involved in the first accident only. The driver involved in the second accident had settled with Ashcroft.
Drawing on a line of cases which has developed over the last ten years, the trial judge found that the injuries arising from the two accidents were “indivisible”. These indivisible injuries led the trial judge to a total damage award of approximately $400,000.
The trial judge then turned to consider the question of double recovery. At the time, he was not aware of the amount of the settlement arrived at between Ashcroft and the driver of the second accident vehicle. He approached the question as one of general principle and found that the rule against double recovery required him to order that the amount of the settlement, whatever it might be, should be deducted from the global award. He also considered how apportionment should take place if he should be found to be wrong in ordering this deduction. After considering alternatives, he decided that the best which could be done in the circumstances was to “make a global assessment and estimate the proportion of damages attributable to each accident”. As he found the second accident to be relatively minor, he apportioned responsibility 70/30, with the parties responsible for the first accident bearing the larger proportion. This however was simply an alternative to the basic decision and would apply only if the basic decision should be found to be legally insupportable.
At this point, the amount of the settlement was revealed. The driver of the second vehicle, who would be responsible for approximately $120,000 in accordance with the judge’s alternative apportionment, in fact had paid $315,000 in settlement.
In these circumstances, the trial judge concluded that his first ruling was binding. The driver and owner of the first vehicle would thus pay only $85,000 after taking the benefit of the settlement. Ashcroft appealed.
The Court of Appeal upheld the trial judge after a detailed and well reasoned review of the authorities. The key factor distinguishing this case from other precedents urged upon the court was the indivisibility of the damages. Given that finding of indivisibility, it follows that only one damage award can be made. Such an award was made in the unchallenged amount of $400,000. Allowing the plaintiff to recover more would violate the fundamental rule against double recovery and this the Court was not prepared to countenance.
Ashcroft v. Dhaliwal,
2008 BCCA 352