Misko v. Doe et al. [Indexed as: Misko v. Doe]

87 O.R. (3d) 517

Court of Appeal for Ontario,

Rosenberg, Cronk and Gillese JJ.A.

September 25, 2007

Civil procedure -- Third party proceedings -- Plaintiff injured in two motor vehicle accidents 11 months apart -- Plaintiff settling claim against first tortfeasor and giving him standard release -- Identity of second tortfeasor unknown -- Plaintiff bringing action against his own insurer for damages arising exclusively from second collision -- Plaintiff not relying on full compensation principle -- Insurer not having right to bring third party proceedings against first tortfeasor for contribution and indemnity.

The plaintiff was involved in two motor vehicle accidents that occurred 11 months apart. He settled with the first tortfeasor, D, and gave him a standard release. The identity of the second tortfeasor was unknown. Accordingly, the plaintiff sued his own motor vehicle insurer for damages arising exclusively from the second collision. The insurer brought a third party claim against D. D moved successfully to strike out the third party claim. The insurer appealed.

Held, the appeal should be dismissed.

If, because of the principle that each defendant is fully liable to the plaintiff for the injury since each was a cause of the injury, the insurer could be liable for damages caused by D, then it was entitled to issue the third party claim. In the circumstances of this case, however, the insurer would not be at risk of having to compensate the plaintiff for damages from the first accident. The insurer would have no occasion to seek contribution or indemnity from D because, if it should be found liable to the plaintiff, judgment would go against it only for its degree of responsibility for the plaintiff's injuries. Since it could have no claim against D, it was not entitled to commence a third party claim either under rule 29.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 or s. 5 of the Negligence Act, R.S.O. 1990, c. N.1. At the trial between the plaintiff and the insurer, the court would determine both the amount of damages suffered by the plaintiff and the degree of responsibility attributable to the second accident. In view of the plaintiff's position that this was all he sought from the insurer and that he was not relying on the full compensation principle, judgment would go against the insurer only for the damages for which the second tortfeasor was responsible.

APPEAL from the order of Desotti J. (2006), 2006 31300 (ON SC), 82 O.R. (3d) 535, [2006] O.J. No. 3624 (S.C.J.), striking out a third party claim.

Cases referred to Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, [1996] S.C.J. No. 102, 140 D.L.R. (4th) 235, 203 N.R. 36, [1997] 1 W.W.R. 97, 31 C.C.L.T. (2d) 113, apld Hicks v. Cooper (1973), 1973 1254 (ON CA), 1 O.R. (2d) 221, 41 D.L.R. (3d) 454 (C.A.); M. (J.) v. B. (W.) (2004), 2004 8541 (ON CA), 71 O.R. (3d) 171, [2004] O.J. No. 2312, 187 O.A.C. 201, 240 D.L.R. (4th) 435, 47 C.P.C. (5th) 234 (C.A.); Medeiros v. Dilworth (2002), 2002 49431 (ON SC), 59 O.R. (3d) 136, [2002] O.J. No. 1406, 22 C.P.C. (5th) 145 (S.C.J.), consd Martin v. Rayner, [2003] O.J. No. 6262, 2003 CarswellOnt 8573 (S.C.J.) [Leave to appeal dismissed [2003] O.J. No. 3583 (Div. Ct.)], distd Other cases referred to Baker v. Willoughby, [1970] A.C. 467, [1969] 3 All E.R .1528, [1970] 2 W.L.R. 50 (H.L.); Barker v. Montfort Hospital, [2007] O.J. No. 1417, 2007 ONCA 282, 278 D.L.R. (4th) 215; Beam v. Pittman, 1997 14694 (NL CA), [1997] N.J. No. 8, 147 Nfld. & P.E.I.R. 166, 459 A.P.R. 166 (C.A.), affg 1994 4428 (NL SC), [1994] N.J. No. 272, 122 Nfld. & P.E.I.R. 181, 379 A.P.R. 181 (T.D.); [page518] Blackwater v. Plint, [2005] 3 S.C.R. 3, [2005] S.C.J. No. 59, 258 D.L.R. (4th) 275, 339 N.R. 355, [2006] 3 W.W.R. 401, 2005 SCC 58, 46 C.C.E.L. (3d) 165, 35 C.C.L.T. (3d) 161, 48 B.C.L.R. (4th) 1; Bourque v. Wells, 1991 2409 (NB CA), [1991] N.B.J. No. 624, 82 D.L.R. (4th) 574 (C.A.); Hanke v. Resurfice Corp., 2007 SCC 7, [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7, 278 D.L.R. (4th) 643; Holthaus v. Bank of Montreal, 2000 5665 (ON CA), [2000] O.J. No. 951, 131 O.A.C. 119 (C.A.); Long v. Thiessen, 1968 889 (BC CA), [1968] B.C.J. No. 1, 65 W.W.R. 577 (C.A.); Martin v. Listowel Memorial Hospital (2000), 2000 16947 (ON CA), 51 O.R. (3d) 384, [2000] O.J. No. 4015, 192 D.L.R. (4th) 250, 48 C.P.C. (4th) 195 (C.A.); O'Neil v. Van Horne (2002), 2002 41072 (ON CA), 59 O.R. (3d) 384, [2002] O.J. No. 1528, 212 D.L.R. (4th) 558 (C.A.); Owen v. Zosky, [2000] O.J. No. 4838, 14 C.P.C. (5th) 50 (C.A.); Pryor v. Bains, [1986] B.C.J. No. 29, 69 B.C.L.R. 395 (C.A.); Sinclair-Cockburn Insurance Brokers Ltd. v. Richards (2002), 2002 45031 (ON CA), 61 O.R. (3d) 105, [2002] O.J. No. 3288, 24 C.P.C. (5th) 273 (C.A.)

Statutes referred to Negligence Act, R.S.O. 1990, c. N.1, ss. 1, 5

Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 29.01

Authorities referred to Cheifetz, D., Apportionment of Fault in Tort (Aurora: Canada Law Book Ltd., 1981)

Mason Greenaway, for appellant Liberty Mutual Insurance Group. Catherine Wilde, for respondent Peter Misko. Lawrence McRae and Mary-Joe Renaud, for third party respondent Michael De Bruin.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- The plaintiff, Peter Misko, was involved in two motor vehicle accidents that occurred 11 months apart. He settled with the first tortfeasor, Michael De Bruin, and gave him a standard release. The identity of the second tortfeasor is unknown. Accordingly, the plaintiff sued, among other people, the insurer of his own vehicle, Liberty Mutual Insurance Group, since the policy on that vehicle includes unidentified motorist insurance. Liberty Mutual brought a third party claim against the first tortfeasor, De Bruin.

[2] The issue in this case is whether Liberty Mutual was entitled to bring that third party claim. Justice Desotti struck out the third party claim. Liberty Mutual appeals from that order. For the following reasons, I would dismiss the appeal. [page519]

The Facts

[3] On January 31, 2001, the plaintiff, Misko, was involved in the first motor vehicle accident with De Bruin. Eleven months later, on December 20, 2001, Misko was involved in the second motor vehicle accident. The other driver in this accident has not been identified. Several months later, before any statement of claim was issued, Misko settled with De Bruin for $130,000. He gave De Bruin a release that contained the standard term that he would not make any claim or take proceedings against any person who might claim contribution or indemnity from De Bruin.

[4] Just short of two years after the second accident, on December 15, 2003, Misko commenced an action against several persons including Liberty Mutual, the insurer of his own vehicle. He claimed payment under the unidentified motorist provisions of his policy. Paragraph 10 of Liberty Mutual's statement of defence pleads that Misko's injuries existed prior to the second accident or, in the alternative, were sustained after the second accident. Liberty Mutual did not give any particulars in support of this allegation.

[5] During discoveries in 2004, Liberty Mutual learned of the earlier accident and the settlement. It then brought a motion for leave to issue a third party claim against De Bruin. De Bruin was not given notice of the motion. Justice Heeney granted the motion. A fair reading of his endorsement indicates that Heeney J. doubted whether the third party claim should proceed [at paras. 6 and 7]:

Where two accidents happen one after the other, it is customary to have both actions tried together, or one after the other, in order that a global assessment of the plaintiff's damages can be arrived at, and be apportioned between the tortfeasors as the court deems appropriate.

However, when all claims arising out of the first accident have been settled, it is not necessary to assess the plaintiff's damages arising out of that accident. Those claims have been disposed of, and whether the settlement was too high or too low or just right should make no difference. All that should count is the physical condition of the plaintiff at the time of the second accident, which can be determined on the evidence without the need for a Third Party Claim. If he was already significantly injured by the first accident, then Liberty Mutual should only be held liable for any aggravation to those injuries or any additional injuries caused by the second accident. (Emphasis added)

[6] However, Heeney J. decided to follow the decision of Medeiros v. Dilworth (2002), 2002 49431 (ON SC), 59 O.R. (3d) 136, [2002] O.J. No. 1406 (S.C.J.), where the court allowed a third party claim to issue in circumstances not unlike this case. [page520]

[7] De Bruin then brought the motion before Desotti J. to strike the third party claim. For the purpose of this appeal, the important parts of the third party claim are found in paras. 11 and 12: 11. The Plaintiff alleges that, as a result of his accident of December 20, 2001, he has suffered from, among other things, injuries to the same parts of his body as were injured in the January 31, 2001 accident (i.e. his neck and back). 12. The Defendant states that the Plaintiff's damages have been caused exclusively by the negligence of the Third Party. Alternatively, the Defendant states that the Plaintiff's damages have been contributed to significantly by the negligence of the Third Party.

[8] Without objection, an affidavit of a law clerk with Misko's solicitors was placed before the motion judge. In the affidavit, the solicitors state that the Liberty Mutual action is for damages arising exclusively from the second collision and that no damages are being claimed for injuries sustained in the first (De Bruin) accident. Counsel for Misko confirmed this fact before the motion judge, in their factum in this court, and in oral argument in this court.

[9] In careful and comprehensive reasons, the motion judge reviewed many of the leading, and conflicting, authorities including Medeiros. He concluded that distinct and separate injuries are to be assessed based on each defendant's liability for the injury they have caused as a result of their respective wrongs. Further, if defendants are not concurrent tortfeasors (existing or happening at the same time) then they cannot third party one another. Since the defendant and the third party were not concurrent tortfeasors in this case, the third party claim must be struck out. I agree with the motion judge's conclusion, although for somewhat different reasons.

The Positions of the Parties

[10] The position of the appellant, Liberty Mutual, is based primarily on the Negligence Act, R.S.O. 1990, c. N.1. Section 1 of that Act provides that where damages

have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent. (Emphasis added) [page521]

Liberty Mutual submits that the plaintiff's damages were caused or contributed to by De Bruin. Accordingly, it may be able to seek indemnity from De Bruin, hence the need for the third party claim.

[11] The third party, De Bruin, submits that this case can be resolved by using principles of law respecting assessment of damages long applied where there are successive accidents. In effect, the court makes a global assessment for both accidents. The court assesses the damages following the first accident as if the trial were held on the day before the second accident, which will then be deducted from the global award leaving the balance owing for the second defendant. Since Liberty Mutual would thus be responsible only for the damages flowing from the second accident, it would not be entitled to contribution from De Bruin. Accordingly, De Bruin contends that the third party claim was properly struck. Alternatively, if the appeal is allowed, he relies on the release from the plaintiff to argue that the third party action should be permanently stayed or, if the third party action proceeds, the main action must be dismissed or stayed in accordance with the release. [^1] To do otherwise, he submits, would breach the release.

[12] The plaintiff agrees that the third party action was properly struck out. His principal concern is that if the third party action is permitted to proceed, his action against Liberty Mutual is in jeopardy because of the release he gave to De Bruin.

Analysis

Introduction

[13] The cases in this area are not entirely consistent and, among other things, engage issues of causation and contribution and indemnity amongst tortfeasors. Further, lurking behind the issues in this case is a formidable policy question. In giving the release, the plaintiff agreed that he would not make any claim or take proceedings against any person who might claim contribution or indemnity from De Bruin. If Liberty Mutual is allowed to bring a third party claim against De Bruin, the plaintiff will be in breach of that agreement. Thus, if Liberty Mutual is successful in adding De Bruin as a third party, then it would seem to follow that the plaintiff's claim against Liberty Mutual should be struck out in view of the release given to De Bruin. See Sinclair-Cockburn Insurance Brokers Ltd. v. Richards (2002), 2002 45031 (ON CA), 61 O.R. (3d) 105, [2002] O.J. No. 3288 (C.A.). [page522]

Such a result would seriously undermine the public interest in settling actions. Few plaintiffs would risk providing a release in the standard form used in this case fearing that if injured in a separate incident, months or even years later, the plaintiff would have no recourse against the second tortfeasor. Defendants may be reluctant to settle if they continue to be exposed to liability from claims brought by subsequent tortfeasors.

Full compensation principle

[14] In my view, the governing decision in the circumstances of this case is Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, [1996] S.C.J. No. 102 and in particular this statement by Major J. at para. 22:

Apportionment between tortious causes is expressly permitted by provincial negligence statutes and is consistent with the general principles of tort law. The plaintiff is still fully compensated and is placed in the position he or she would have been in but for the negligence of the defendants. Each defendant remains fully liable to the plaintiff for the injury, since each was a cause of the injury. The legislation simply permits defendants to seek contribution and indemnity from one another, according to the degree of responsibility for the injury. (Emphasis added)

[15] In accordance with this statement, Liberty Mutual submits that it is entitled to seek contribution and indemnity from De Bruin. I agree with Liberty Mutual to this extent. If, because of the full compensation principle set out in Athey, Liberty Mutual could be liable for damages caused by De Bruin, then it is entitled to issue the third party action. It need not wait until the conclusion of the trial and then launch another action against De Bruin. See Medeiros, at para. 14.

Allocation of responsibility

[16] In the circumstances of this case, however, I am satisfied that at the trial, Liberty Mutual will not be at risk of having to compensate the plaintiff for damages from the first accident. The trial between the plaintiff and Liberty Mutual will proceed in accordance with the principles established by this court and generally followed in other jurisdictions where the plaintiff has been injured by successive motor vehicle accidents. Liberty Mutual will have no occasion to seek contribution or indemnity from De Bruin because, if it should be found to be liable to the plaintiff, judgment will go against it only for its degree of responsibility for the plaintiff's injuries. Since it can have no claim against De Bruin, it is not entitled to commence a third party claim either under rule 29.01 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] [^2] [page523]

or s. 5 of the Negligence Act. [^3] In the words of rule 29.01, De Bruin will not be liable to Liberty Mutual and, in the words of s. 5 of the Act, De Bruin is not responsible for the damages claimed by the plaintiff.

[17] At the hearing of this appeal, there was much discussion about whether at this stage it was possible to determine whether the injuries to the plaintiff were divisible or indivisible and whether the tortfeasors could be described as concurrent tortfeasors or fell into some other category. In my view, these terms simply obscure the issues that will be determined at the trial in accordance with the Act and governing principles. Assuming that, as alleged by Liberty Mutual, there is a single indivisible injury, this simply means that, applying Athey v. Leonati, both tortfeasors are fully liable for the injury. The court, however, must still apportion responsibility between the tortfeasors. Liberty Mutual will be responsible in the pending trial only to the extent that the unidentified driver caused or contributed [^4] to the damages claimed. [page524]

[18] Section 1 of the Negligence Act changed the common law and allows for contribution and indemnity among tortfeasors. See David Cheifetz, Apportionment of Fault in Tort (Aurora: Canada Law Book Ltd., 1981) at 8-9. However, s. 1 of the Act provides a mechanism to allocate responsibility for the plaintiff's damages: the court "shall determine the degree in which each of such persons are found at fault or negligent" (emphasis added). Such allocation of responsibility is necessary since it is the foundation for determining the amount of contribution or indemnity. Applying s. 1 to the circumstances of this case, at the trial between Misko and Liberty Mutual, the court will determine both the amount of damages suffered by Misko and the degree of responsibility attributable to the second accident. In view of the plaintiff's position that this is all he seeks from Liberty Mutual (and that he does not rely on the full compensation principle in Athey), judgment will go against Liberty Mutual only for the damages for which the second tortfeasor is responsible. If the damages are "indivisible" as is alleged by Liberty Mutual, this task may not be an easy one, but the court will have to make the determination. See Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, [2005] S.C.J. No. 59, at para. 82; O'Neil v. Van Horne (2002), 2002 41072 (ON CA), 59 O.R. (3d) 384, [2002] O.J. No. 1528 (C.A.), at para. 14; and Long v. Thiessen, 1968 889 (BC CA), [1968] B.C.J. No. 1, 65 W.W.R. 577 (C.A.).

Caselaw

Martin v. Listowel Memorial Hospital

[19] A number of cases support this position and therefore protect Liberty Mutual from having to pay compensation to Misko for damages that should be the responsibility of De Bruin. I will turn to those cases below. I first wish to deal with the one case that seems to be inconsistent with this position, namely Martin v. Listowel Memorial Hospital (2000), 2000 16947 (ON CA), 51 O.R. (3d) 384, [2000] O.J. No. 4015 (C.A.), where this court held in obiter at para. 48 that s. 1 of the Act only applies to parties to the action:

In our view, the effect of s. 1 of the Act is to define the legal effect of a finding of fault by concurrent wrongdoers. The effect is to change the common law, and impose on concurrent wrongdoers joint and several liability to the plaintiff. It is the only section of the Act which imposes liability, as opposed to apportioning fault. The section is substantive, not procedural. Therefore, when applying the section to any specific action, it is understood that joint and several liability to the plaintiff can and will attach only to a party defendant, although others who may also have been at fault could potentially have been found jointly and severally liable had they been sued by the plaintiff. Because procedurally the section only affects defendants, under this section the court is to apportion degrees of fault only to defendants. The court must [page525] also apportion fault to the other parties, the plaintiff and third parties, not under s. 1 of the Act but rather pursuant to ss. 3 and 4 of the Act, and in accordance with the requirements of the pleadings. (Emphasis added)

[20] If this obiter [^5] from Martin applies to this case, Liberty Mutual could argue that it must join De Bruin to the action so that fault can be apportioned between the two of them. This court considered Martin at length in M. (J.) v. B. (W.) (2004), 2004 8541 (ON CA), 71 O.R. (3d) 171, [2004] O.J. No. 2312 (C.A.) in the context of complex litigation involving a Pierringer settlement. I do not need to review M. (J.) at length. Suffice it to say that Cronk J.A. speaking for the court held that Martin could be distinguished for a number of reasons. In particular, she highlighted at para. 47 that in Martin itself, there was apportionment to non-parties, namely the physicians who had been sued but had settled prior to trial.

[21] As this court explained in Martin, the reason for ordinarily applying s. 1 only to parties is to protect the other defendants. In a case where there are two or more party defendants but a degree of fault could be attributed to a non-party then a party defendant who, being jointly and severally liable to the plaintiff, paid the entire award would not be able to obtain a fair share of contribution from the other party defendants. The court described this problem at para. 36:

The effect of a finding of a degree of fault on a non-party could have significant consequences for the other defendants under this section. If the fault is apportioned only among the parties, then if there is a non-party who may also have been at fault and contributed to the damage, a larger percentage of the whole loss may be attributed to each party, so that the entire loss is divided for indemnity purposes, and no gap is left. But if a portion of the fault were attributed to a non-party, or to a party at fault but with a legal defence such as a limitation defence, the defendants who are liable to the plaintiff would be left with no one from whom they could recover that portion of the claim. (Emphasis added)

[22] In M. (J.), Cronk J.A. pointed out at para. 53 that this was a "critical" reason to distinguish Martin in that case. For similar reasons, Martin does not apply here. It would be counterintuitive to refuse to apply s. 1 of the Negligence Act when by applying it the defendant would be protected because it would be held liable only for the degree of damages for which it is at fault. As [page526] in M. (J.), see para. 64, no one objects, or could legitimately object, to the apportionment of liability at trial as against De Bruin. De Bruin has no objection since he is protected by the release. The plaintiff has no objection since he claims from Liberty Mutual only the portion of his damages attributable to the fault or negligence of the second driver. Liberty Mutual can have no objection since it will be responsible only for the damages attributable to the second driver.

[23] As the Supreme Court held in Blackwater at para. 80, where there are two wrongful acts that have affected the plaintiff, each "defendant must compensate for the damages it actually caused but need not compensate for the debilitating effects of the other wrongful act that would have occurred anyway. This means that the damages of the tortfeasor may be reduced by reason of other contributing causes." Section 1 provides the mechanism for vindicating this basic principle of fairness despite statutory joint and several liability and the Athey rule mandating full compensation to the plaintiff.

Hicks v. Cooper

[24] I have said that there are a number of cases that support the position of the third party that the third party action should be struck out. I start with the cases that describe the manner in which damages will be assessed. In Hicks v. Cooper (1973), 1973 1254 (ON CA), 1 O.R. (2d) 221, 41 D.L.R. (3d) 454 (C.A.), the plaintiff had been involved in two separate motor vehicle accidents approximately six months apart and suffered injuries to some of the same parts of her body in both accidents. The court approved of the manner in which the trial judge had apportioned damages between two defendants at pp. 221-22 O.R.:

In coming to this result the trial Judge, who incidentally, is a very experienced and able Judge, followed the formula laid down by the British Columbia Court of Appeal in Long v. Thiessen and Laliberte (1968), 1968 889 (BC CA), 65 W.W.R. 577. In other words, he assessed damages against the defendant in the first accident as if the trial were held on the day before the second accident occurred. He then assessed what are called the global damages, that is the damages sustained as a result of both actions, and this came to $7,000. Having assessed the damages resulting from the first action at $3,000 he therefore awarded the plaintiff $4,000 against the Petrofina company and Wayne Smith. [^6] [page527]

[25] The court can apply the same principles in this case and thus determine the damages for which Liberty Mutual is responsible. I point out that there has been some criticism of the Hicks v. Cooper approach because it may be too difficult to apply in certain cases or unfair to the plaintiff. In such cases, the courts have apportioned damages on a percentage basis. See e.g., Bourque v. Wells, 1991 2409 (NB CA), [1991] N.B.J. No. 624, 82 D.L.R. (4th) 574 (C.A.); Pryor v. Bains, [1986] B.C.J. No. 29, 69 B.C.L.R. 395 (C.A.); Beam v. Pittman, 1994 4428 (NL SC), [1994] N.J. No. 272, 122 Nfld. & P.E.I.R. 181 (S.C.(T.D.)), affd 1997 14694 (NL CA), [1997] N.J. No. 8, 147 Nfld. & P.E.I.R. 166 (C.A.). I make no comment on whether the Bourque v. Wells procedure is open in this province in light of Hicks v. Cooper. The issue was not argued before us. Either way, Liberty Mutual will be responsible only for the portion of damages attributable to the second driver.

Other Cases

[26] This court has held that where, as here, the plaintiff limits the claim to the damages that can be attributed to the fault of the defendant or where the defendant has no exposure to liability for the fault of others, a third party action is properly struck out. See Holthaus v. Bank of Montréal, 2000 5665 (ON CA), [2000] O.J. No. 951, 131 O.A.C. 119 (C.A.); Owen v. Zosky, [2000] O.J. No. 4838, 14 C.P.C. (5th) 50 (C.A.). If, as is alleged here, the injuries are overlapping it may be difficult to quantify the effect of the first accident, but the court must nevertheless do so. See O'Neil v. Van Horne, at para. 14.

Medeiros v. Dilworth

[27] It will be recalled that, despite his own reservations about the propriety of a third party claim in these circumstances, Heeney J. granted leave to issue the third party claim because the facts closely resembled Medeiros v. Dilworth. Medeiros does bear some similarity to this case. The plaintiff was involved in two motor vehicle accidents approximately two years apart. The actions were to be heard together, but about two months before the trial date, the plaintiff settled with the defendant in the first accident. [^7] The defendant in the second accident then sought leave to issue a third party claim against the first defendant. The Master refused to grant leave, but Chapnik J. overturned that [page528] decision. The part of her reasons that applies to this case is found in para. 14:

First, this is a matter that is vital to the final disposition of the action. The defendant is not relieved of responsibility if his tortious act materially contributed to the overall condition of the plaintiff. Where, however, the plaintiff's injuries are attributable to multiple tortfeasors, defendants must seek contribution or indemnity from one another pursuant to the Negligence Act, R.S.O. 1990, c. N.1: Alderson v. Callaghan (1998), 1998 895 (ON CA), 40 O.R. (3d) 136, 1998 Carswell Ont 2189 (C.A.). The fact that the defendant can commence a separate action for this purpose does not diminish the importance of the issue.

[28] Chapnik J. relied upon this court's decision in Alderson. Alderson, however, involved a different issue. In Alderson, the plaintiff was injured in a motor vehicle accident and then further injured by her spouse (who also happened, by coincidence, to be the defendant in the motor vehicle accident). However, the only action before the court arose out of the motor vehicle accident. In that context, relying upon the principles from Athey v. Leonati, the motor vehicle defendant was wholly responsible for the injuries to the plaintiff and could then seek indemnity against the non-defendant (notionally himself) for that part of the injuries for which the non-defendant was responsible. That, however, is not this case. The plaintiff in this case, Misko, does not seek redress from Liberty Mutual for any part of his injuries for which De Bruin is responsible. It may be that Medeiros can be explained simply because there is nothing to indicate that the plaintiff would not seek redress from the second defendant for injuries for which the first defendant is responsible. Similarly, see Martin v. Rayner, [2003] O.J. No. 6262, 2003 CarswellOnt 8573 (S.C.J.), leave to appeal refused by Lang J. [2003] O.J. No. 3583 (Div. Ct.).

Final note

[29] One last comment. While it seems to me that the statement of claim is probably clear enough in only claiming damages for the injuries for which the driver in the second accident (and hence Liberty Mutual) is responsible, the plaintiff should amend the statement of claim to make this absolutely clear.

Disposition

[30] Accordingly, I would dismiss the appeal with costs payable by Liberty Mutual to De Bruin and Misko. De Bruin filed a cross-appeal. As I have said, in the event that Liberty Mutual's appeal was allowed, he sought an order striking or permanently staying the statement of claim and the third party claim. Since I would dismiss the appeal, I would dismiss the cross-appeal without [page529] costs. If the parties are unable to agree on costs of the appeal they are to provide brief written submissions. De Bruin and Misko are to provide their submissions within 21 days of release of this judgment. Liberty Mutual is to provide its submissions within 20 days of receipt of the submissions of De Bruin and Misko. De Bruin and Misko may provide reply submissions [within] five days of receipt of Liberty Mutual's submissions.

Appeal dismissed.

[^1]: De Bruin has cross-appealed seeking this relief if the appeal is allowed.

[^2]: Rule 29.01: 29.01 A defendant may commence a third party claim against any person who is not a party to the action and who, (a) is or may be liable to the defendant for all or part of the plaintiff's claim; (b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of, (i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or (ii) a related transaction or occurrence or series of transactions or occurrences; or (c) should be bound by the determination of an issue arising between the plaintiff and the defendant.

[^3]: Section 5: 5. Wherever it appears that a person not already a party to an action is or may be wholly or partly responsible for the damages claimed, such person may be added as a party defendant to the action upon such terms as are considered just or may be made a third party to the action in the manner prescribed by the rules of court for adding third parties.

[^4]: I need not decide whether the plaintiff in this case must demonstrate causation based on the "but for" or "material contribution" test. That question is not material to the issues before us on this appeal. The trial judge will have to consider the impact of the recent decisions in Hanke v. Resurfice Corp., 2007 SCC 7, [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7, 278 D.L.R. (4th) 643 and Barker v. Montfort Hospital, 2007 ONCA 282, [2007] O.J. No. 1417, 278 D.L.R. (4th) 215 (C.A.).

[^5]: This comment is obiter because it refers to the liability of a nurse who was providing care to the plaintiff. The court held that it was unnecessary to join the nurse as a defendant or third party to apportion fault because the hospital, which was vicariously liable for the nurse's negligence, was already a party to the action. See paras. 26-27 of Martin.

[^6]: See also Baker v. Willoughby, [1970] A.C. 467, [1969] 3 All E.R. 1528 (H.L.), at p. 496 A.C., where Lord Pearson introduced the idea of a "devaluation of the plaintiff", which commentators have dubbed the "devaluation principle". Lord Pearson also referred to Long v. Thiessen.

[^7]: The settlement had not been finalized as it was subject to execution of a release and approval of the infant settlement. I do not think anything turns on that aspect of the case.