COURT CASES on INDIVISIBLE INJURIES
In Estable v New, the Court discussed the concept of indivisible injuries.
 Divisible injuries are those which are capable of being separated out, such as injuries to different body parts or injuries to which the defendant has not contributed: Bradley, at para. 20; see also Athey, at paras. 22-25. Whether damage derived from multiple sources is divisible for the purpose of determining the extent of the liability of one defendant is a question of fact: Hutchings v. Dow, 2007 BCCA 148 at para. 13.
 If the injuries are divisible, the devaluation approach from Long v. Thiessen (1968), 65 W.W.R. 577 at 591 (B.C.C.A) is the appropriate method for determining the amount of damages that can be attributed to the defendant.
 Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, an injury to the same area of the body, or global symptoms that are impossible to separate: Bradley, at para. 20; see also Athey, at paras. 22-25.
 If the injuries are indivisible, the court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortuous or non-tortuous causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage: Bradley, at paras. 32-37; see also Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 19-23.
In Bradley v. Groves, the British Columbia Court of Appeal also commented on the principle of indivisible injuries.
Athey v. Leonati
 Athey was a case involving both multiple tortious and non-tortious causes. The plaintiff had been injured in two motor vehicle accidents. While still recovering, he herniated a disc in his back during stretching at the gym. The question before the Court was how the damages should be apportioned between the tortious and non-tortious causes.
 The Supreme Court of Canada found apportionment between tortious and non-tortious causes contrary to the principles of tort law, and therefore impermissible. The liability for any injury caused or contributed to by a tortious action should be borne jointly and severally by the tortfeasors, and not attributed to non-tortious action.
 At paras. 12 and 17, Justice Major set out the basic principle of liability for injuries caused or contributed to by a tortious act:
 The respondents’ position is that where a loss is created by tortious and non-tortious causes, it is possible to apportion the loss according to the degree of causation. This is contrary to well-established principles. It has long been established that a defendant is liable for any injuries caused or contributed to by his or her negligence. If the defendant’s conduct is found to be a cause of the injury, the presence of other non-tortious contributing causes does not reduce the extent of the defendant’s liability.
 It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. … As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.
 This question of the responsibility of a subsequent tortfeasor for global damages has been addressed most recently in this Court’s decision in B.P.B. v. M.M.B, 2009 BCCA 365 (CanLII), 2009 BCCA 365, 97 B.C.L.R. (4th) 73, leave to appeal ref’d  S.C.C.A. No. 90. The majority of the Court (Chiasson J.A., K. Smith J.A. concurring) adopted the Athey approach to apportionment, and held the tortfeasors to be jointly liable. Mackenzie J.A. dissented on the basis that Athey was not intended to alter the long-standing approach and principles of causation and assessment of damages between separate non-concurrent torts. He would not have distinguished the injuries in B.P.B. from those in Blackwater. Ultimately, the majority reached no conclusion on the implications of Athey on the continued relevance of Long in cases of indivisible injuries.
 There can be no question that Athey requires joint and several liability for indivisible injuries. Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff. They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.
 The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries. The reason is that Long v. Thiessen pre-supposes divisibility: Longrequires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial. Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.
 That approach is logically incompatible with the concept of an indivisible injury. If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either. It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff. This in no way restricts the tortfeasors’ right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.
 We are also unable to accept the appellant’s submission that “aggravation” and “indivisibility” are qualitatively different, and require different legal approaches. If a trial judge finds on the facts of a particular case that subsequent tortious action has merged with prior tortious action to create an injury that is not attributable to one particular tortfeasor, then a finding of indivisibility is inevitable. That one tort made worse what another tort created does not automatically implicate a thin or crumbling skull approach (as in Blackwater), if the injuries cannot be distinguished from one another on the facts. Those doctrines deal with finding the plaintiff’s original position, not with apportioning liability. The first accident remains a cause of the entire indivisible injury suffered by the plaintiff under the “but for” approach to causation endorsed by the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7,  1 S.C.R. 333. As noted by McLachlin C.J.C. in that case, showing that there are multiple causes for an injury will not excuse any particular tortfeasor found to have caused an injury on a “but-for” test, as “there is more than one potential cause in virtually all litigated cases of negligence” (at para. 19). It may be that in some cases, earlier injury and later injury to the same region of the body are divisible. While it will lie for the trial judge to decide in the circumstances of each case, it is difficult to see how the worsening of a single injury could be divided up.
In Fillmore v. McKay, the Plaintiff was injured in a motor vehicle accident on May 26, 2005, and then on July 9, 2005, in a fall at his workplace. The Court found that the Defendant from the motor vehicle accident would be liable for the full extent of the injuries. In doing so, the Court succinctly summarizes the law of indivisible injuries.
 The plaintiff took a fall at work on July 9, 2005 when he says in his note that he aggravated his neck and shoulder. The defendant submits that this was a new incident not caused by him that should serve to reduce the plaintiff’s personal injuries for which he has liability from the motor vehicle accident. The defendant even submits that it may have been this incident of July 9, 2005 that caused the plaintiff’s back injury because his first complaint to Dr. Buie was not until after that.
 I have already concluded that the plaintiff’s back injury occurred in the motor vehicle accident and not subsequently by this bike accident. The plaintiff does not say in his note that he aggravated his back on July 9, 2005, but only his neck and shoulder.
 As to the possible aggravation of his neck and shoulder injuries, Athey v. Leonati,  3 S.C.R. 458, makes it clear that the defendant remains liable where his negligence caused or contributed to the injuries and that liability is not reduced by any non-tortious contributing causes.
 Accordingly, even if the plaintiff’s neck and shoulder injuries were aggravated by this non-tortious incident, the defendant is still fully responsible for the full extent of those injuries because his negligence caused them in the first place and thereby contributed to the extent of the injuries.
WHAT HAPPENS WHEN a PLAINTIFF is AT FAULT for ONE of the ACCIDENTS ?
In ICBC claims involving indivisible injuries with respect to multiple accidents, it is sometimes the case where the Plaintiff can also be responsible for one of the accidents. For example, if a Plaintiff is involved in four accidents, with three of them being the fault of the Defendants, and one of them being the fault of the Plaintiff, how does the Court go about assessing damages on a global basis? Where the Defendants are at fault for all of the collisions, it is a simpler process, but where the Plaintiff is at fault for one of the multiple accidents, this presents a complicating factor.
In Demidas v. Poiren, the Plaintiff was injured in five accidents, with only the final accident being his fault. All the accidents resulted in a cumulative injury, with each subsequent accident aggravating the injuries that remained from the previous accident. The Court was left with the unenviable task of trying to determine a proper amount of compensation for pain and suffering.
 The effect of the at-fault accident on the overall damage award is not a matter of contributory negligence, although the effect on the overall result may be similar. It is a matter of ensuring that the defendants are responsible only for the loss and damage they caused to the plaintiff.
 Mr. Demidas says all his symptoms from the June 2009 accident resolved quickly and he was back to where he was before the accident. In support of his position that the at-fault accident had little long-term effect on him, Mr. Demidas points to Dr. Sharp’s statement that it seems the third accident “set [him] on the road to chronicity”. However Dr. Sharp says that statement is speculative.
 The effect of the accidents is cumulative, each one exacerbating the symptoms that remained from the previous one to a collective whole. Therefore it is not appropriate to simply take one figure and multiply it by four as the defendant suggests.
 While this is not a situation where damage is divisible and capable of individual apportionment, nevertheless the loss and damage caused by the accident for which Mr. Demidas is at fault must be considered and removed from the overall award so that the defendants are not held responsible for that amount.
 This is an imperfect exercise, dealing with intangibles and hypotheticals. Although each accident was fairly minor, the recurrence of accidents contributed to Mr. Demidas’ ongoing symptoms. However, those symptoms are not as severe as those in the cases cited to me by the plaintiff. Considering the authorities presented to me, the injuries sustained in the four accidents, and adjusting the amount for the effects of the at-fault accident, I set non-pecuniary damages at $45,000.
DEDUCTION of PREVIOUS SETTLEMENT AMOUNT from INDIVISIBLE INJURY AWARDS
In Ashcroft v. Dhaliwal, the Plaintiff was involved in two separate motor vehicle accidents, with the Court finding that the injuries were indivisible. The Plaintiff succeeded in the first lawsuit, and obtained over $300,000 in damages. The Plaintiff was then successful in the second claim as well for about $400,000, however the trial judge ruled that the amount of the first claim must be deducted from the amount of the second claim. The British Columbia Court of Appeal upheld the trial judge’s ruling.
 Although the concern in the case at bar is whether to deduct settlement proceeds from global damage awards rather than whether to make an exception to settlement privilege, the principle is the same: the concern to prevent double recovery outweighs the public interest in encouraging settlements.
 This is the rule that applies to separate but concurrent tortfeasors who cause the same injury: Dixon v. British Columbia (1980), 24 B.C.L.R. 382, 128 D.L.R. (3d) 389 (C.A.). In that case, the plaintiff, a passenger on a bus from Victoria to Vancouver, claimed compensation from both the bus operator and the ferry authority for loss he suffered as a result of a fall on the ferry. The trial judge found the gross negligence of both caused the plaintiff’s injuries, apportioned responsibility 75% to the ferry authority and 25% to the bus operator, and ordered the amount the ferry authority had paid in settlement ($22,500) be deducted from the award of general damages ($30,300). The plaintiff appealed the deduction, arguing that the bus operator “should not be permitted to take advantage of the payment by the Ferry Authority” to the plaintiff. Mr. Justice Taggart, writing for the Court at 400, agreed with the trial judge that “the plaintiff ought not to receive more in the way of damages than the amount to which he has been found entitled”.
 In Dixon, the torts can be categorized as “concurrent” because their negligence combined to cause one injury and its consequential loss at the same time. In the case at bar, the torts can be categorized as “consecutive” because, while the appellant’s injury was indivisible and the negligence of both the settling defendant and the respondent tortfeasor were necessary causes of that injury and the loss resulting from it, the negligence occurred at different times...
 The first question is whether a different rule should apply to consecutive torts. If the treatment of the receipt of settlement proceeds should be the same, the final question is whether the policy underlying the recently developed settlement privilege should trump the policy underlying the long-standing rule against double recovery or give way to it.
 I am not persuaded there is a valid policy reason for treating concurrent and consecutive torts differently when both are necessary causes of an indivisible injury and the losses consequential to it. Indeed, I am not persuaded the distinction is material to the issue before this Court: whether settlement proceeds should be deducted from a damage award made against one of two tortfeasors liable to pay compensation for the loss incurred by reason of their combined negligence. In Hutchings v. Dow, 2007 BCCA 148 (CanLII), 2007 BCCA 148 at para. 23, 66 B.C.L.R. (4th) 78, 238 B.C.A.C. 139,  5 W.W.R. 264, leave to appeal to S.C.C. refused (27 September 2007), 32034, this Court categorized separate torts causing the same damage as “concurrent torts” as suggested in Glanville L. Williams, Joint Torts and Contributory Negligence (London: Stevens & Sons, 1951) at 1
 In my view, even if trial judges were required to apportion responsibility for the appellant’s losses between the two tortfeasors, despite the absence from the action of the settling defendant and whether the torts are categorized as concurrent or consecutive, the underlying issue would be the same: whether the two causes of action were separate.
 The two causes of action are not separate: they are linked by the indivisible injury the trial judge found to have been caused by the separate torts. That link brings into play not only joint and several liability, but also the rule against double recovery.
 It follows that I do not see the trial judge’s failure to distinguish between concurrent and consecutive torts or to apportion damages as material error, nor do I see his apportionment on the alternative assessment to be relevant. On the only question this appeal raises, I would apply this Court’s reasoning in Dixon and hold that the trial judge did not err when he required the deduction of the settlement proceeds from the appellant’s claim against the second-accident defendants from the global award he made against the respondents.
 Consequently, I would dismiss the appeal.