By James D. Cuming and Bottom Line Research

What happens when a client suffers significant injuries in a motor vehicle accident, but subsequently aggravates his injuries through his own negligence? Are damages for the defendant inflicted injuries still assessable?

Arguably, the second non-tortious injury should not decrease the value of his claim for injuries from the motor vehicle accident, that is, damages should flow from the collision injury on the same path as if he had not suffered the second injury.

The key to success in such an argument is to establish that the injuries from the two incidents and their subsequent impact are indivisible, hanging your hat on Athey v. Leonati (1996), 140 D.L.R. (4th) 235 (S.C.C.). In Athey Major J. explained that a defendant is fully liable for all injuries so long as the defendant's negligence materially contributed to the harm. Thus, if the resulting harm from the collision injuries and the subsequent injuries are inseparable, your client can argue that the defendant materially contributed to his current condition and is liable to compensate him in full.

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