7-Eleven Canada Inc. v. Tommy, 2025 BCCA 220
Reading time: 5 minutes (approx.)
By: Hayley Gardner (Articled Clerk)
A recent decision from the British Columbia Court of Appeal reveals that a Trial Judge’s failure to engage in an analysis of whether or not an injury is divisible may be fatal to the entire assessment of damages in personal injury cases. Where injuries are divisible, the losses flowing from them must be apportioned among the injuries.
Ms. Tommy was injured in May 2018 when she stepped into an unexpected pothole in the parking lot of a 7-Eleven. She fractured her ankle in three places and was left with a permanent limp. Ms. Tommy suffered another injury, this one to her back, after a separate slip and fall incident in December 2018. She suffered further injuries following a motor-vehicle accident in November 2020.
Once 7-Eleven was found to be liable in negligence for exposing Ms. Tommy to the unexpected pothole, the Trial Judge’s job became somewhat more complicated. It was now necessary to distinguish which of the injuries that Ms. Tommy had suffered since 2018 were attributable to the negligence of 7-Eleven, and which were non-compensable.
The Trial Judge made three significant findings of fact. First, she found that the November 2020 motor-vehicle accident and the injuries that flowed from it were entirely unrelated to the negligence of 7-Eleven and thus non-compensable by the Defendant.
Second, she found that the evidence suggested that Ms. Tommy’s mobility impairment due to her ankle injury had materially contributed to her December 2018 fall and thus to her back injury. An independent chain of causation could be identified between the negligence that caused the original fall in May, and the subsequent back injury suffered in December. The back injury was indivisible and was compensable by the Defendant.
Finally, the Trial Judge found that Ms. Tommy also suffered a mental injury which was compensable by the Defendant.
The question before the British Columbia Court of Appeal was whether the trial judge erred in law by determining that the mental injury was a compensable result of 7-Eleven’s negligence.
In making her determination that the mental injury was compensable, the Trial Judge cited evidence that the Plaintiff had transformed from being happy and outgoing before her injuries to being a depressed and anxious person as a result of her pain, mobility issues, and financial difficulties. She cited evidence of Ms. Tommy’s present mental state as proof of her mental injury.
Upon review of the evidence accepted by the Trial Judge, the Court of Appeal found it apparent that Ms. Tommy’s mental injuries were primarily a consequence of being absent from her workplace, which she loved. Ms. Tommy’s absence was solely the result of the injuries sustained in the motor vehicle accident of 2020.
The Trial Judge had erred in law by failing to engage in the assessment of causation that was required by law. She did not complete an analysis which allowed her to make the finding that Ms. Tommy’s compensable ankle and back injuries had materially contributed to her compensable mental health injuries. This error had a significant impact on her damages assessment. The learned Justices of the Court of Appeal found that they were not in a position to reassess damages in light of the findings of fact before them, and a new trial on damages was ordered.
