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Athey v Leonati [1996] 3 SCR 458, 140 DLR (4th) 235


P suffered back injuries from two motor accidents, a precondition and ultimately a disc herniation during a mild stretching exercise.


Where there is non-tortious conduct, how much is the tortfeaser responsible for?


All of it, apportionment is not appropriate here because the ultimate goal of torts is to compensate the victim for their full damages.


Generally, we use the “but for” test, where that is unworkable, we ask whether the tortious conduct “materially contributed” to the occurrence of the injury.
-Really, there are always multiple contributing causes to an injury some of which may be non-tortious
-Apportionment is appropriate in these cases but not where one contributor is not tortious because:
--Multiple tortfeasers: There apportionment is justified by statutes, and ultimately each tortfeaser is responsible for the full sum anyway
--Divisible Injuries: This is not truly apportionment because the contributions are to different whole injuries
--Adjustment for Contingencies: This is not apportionment, rather it is a way of discounting future potential damages based on their likelihood of occurrence. Past contributions are treated as certain (i.e. 100%) once they are proven beyond a balance of probabilities
--Intervening Act: In the case of an independent condition unaffected by the accident (e.g. Jobling), it can be factored into P’s “original position” that tort damages must return them to; however, where the accident is a contributing factor to another injury, then it is not part of the original position but stems from the tort.
--Thin Skull: You only award damages for the injury caused above and beyond what the pre-existing condition would have already caused, or might have likely led to.
--Loss of Chance Doctrine: P may be compensated if their only loss is a loss of chance to get a good opportunity or avoid a bad one. Here though there wasn’t only a contribution to the risk of injury but an actual contribution to the injury itself.
-“If the injuries sustained in the motor vehicle accidents caused or contributed to the disk herniation, then the defendants are fully liable for the damages flowing from the herniation.
--If it was necessary it definitely qualifies for causation
--If it was a sufficient, but a pre-existing condition was also sufficient, then the judgement must decide on a balance of probabilities whether the injury made a material contribution
---In this case, although the pre-existing condition played a much larger rule, the injuries still made a material contribution.


D responsible for all the damages.

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