In a recent decision, the Court analyzes an intervening event and outlines the test. The decision is referenced as Bernatchez v. Chisholm, 2022 BCSC 105 and pertains to an MVA case which caused the Plaintiff injury, resulting in a significant wage loss claim. Defence argued that there was a break in the chain of causation, identifying the intervening event principle, but the Court disagreed.
The Plaintiff’s most serious injury was to his knees which required surgery to insert a screw to his right knee cap. The relevant quotation from this decision is noted below:
Intervening Event – Legal Principles
[111] The defendants also argue that Mr. Bernatchez’s driving record, which prevented him from driving at Gregg’s, is an intervening event that must be considered when assessing damages.
[112] The intervening event principle absolves an original tortfeasor of legal liability where a later act or event occurs that breaks the chain of causation. Whether a subsequent act is of significant magnitude to break the chain of causation is a question of fact: Hussack v. Chilliwack School District No. 33, 2011 BCCA 258 at paras. 76–77, 87–88. The reasonableness of a plaintiff’s actions can be considered in determining whether the chain of causation has been broken: Hussack at para. 82; Safdari v. Buckland, 2020 BCSC 769 at paras. 136–137.
[113] As set out in T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670, the Court of Appeal treats unrelated intervening events similar to pre-existing conditions:
[36] Unrelated intervening events must be taken into account in the same way as pre-existing conditions. If such an event would have affected the plaintiff’s original position adversely in any event, the net loss attributable to the tort will not be as great and damages will be reduced proportionately (Athey v. Leonati at paras. 31-32).
[114] In Allen v Luca, 2021 BCSC 14, this Court explained when an intervening event has broken the chain of events:
[78] …Therefore, I must consider whether the intervening events were sufficient to break the chain of causation, often referred to as the principle of novus actus interveniens. In the words of A.T.W.N.at para. 36, I must determine whether the subsequent events “would have affected the plaintiff’s original position adversely in any event.”
[79] This principle arises from the concept that defendants should not be liable for harm to the plaintiff that comes from objectively unforeseeable events. Whether a subsequent act is of significant magnitude to break the chain of causation is a question of fact: Hussack v. Chilliwack School District No. 33, 2011 BCCA 258 at paras. 76–77, 87–88 [Hussack]. The reasonableness of a plaintiff’s actions can be considered in determining whether the chain of causation has been broken: Hussack at para. 82; Safdari v. Buckland, 2020 BCSC 769 at paras. 136–137 [Safdari].
[80] If the chain of causation has been broken, the defendant is correct that a reduction to [the plaintiff’s] damage award must be made similar to a reduction in a “crumbling skull” situation: see, e.g. L.A.F. v. G.M.F.C. Ltd., 2019 BCSC 2252 at para. 144.
Analysis
[115] I do not accept that Mr. Bernatchez’s driving record is an intervening event. The lack of driving did not cause Mr. Bernatchez’s knee injury; the Accident caused Mr. Bernatchez’s injury. Even if Mr. Bernatchez was moved to a full-time position in the warehouse due to his driving record, he would have been able to work in the warehouse without incident had it not been for the Accident. The evidence does not establish that the chain of causation was broken. The further pain caused by Mr. Bernatchez’s removal from a driving position is indivisible from his injury caused by the Accident.
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