Appeal ruling says trial judge did not address back and ankle injury's effects on mental state
The British Columbia Court of Appeal has set aside a trial judgment ordering a convenience store chain to pay a woman damages for mental health injuries upon finding that the judge failed to address whether her mental distress was divisible.
In 7-Eleven Canada Inc. v. Tommy, 2025 BCCA 220, the respondent stepped into an unexpected pothole in the appellant’s parking lot and fractured her ankle in three places in May 2018. After the incident, she was off work for eight to nine weeks, had a permanent limp, and frequently experienced swelling or ballooning in her ankle when standing too long.
In December 2018, the respondent fell while going down the stairs and injured her back. In November 2020, she lost control of her vehicle while driving in icy conditions and suffered shoulder, elbow, and abdominal injuries unrelated to her ankle and back injuries. She endured a hernia caused by her abdominal injury.
In October 2022, the respondent suffered due to the development of an ovarian cyst. She had surgery to remove the cyst in March 2023 and later developed another hernia as a complication of the surgery.
In September 2024, a trial judge of the British Columbia Supreme Court issued a judgment determining that the appellant’s negligence caused some of the respondent’s significant physical injuries. The judge ordered the appellant to pay her a total award of $907,363.
The judge considered the respondent’s back injury a consequence for which the appellant was responsible because her ankle injury contributed to the December 2018 fall. However, the judge treated all her physical ailments after November 2020 as independent of the consequences of her ankle injury.
Next, the judge considered the respondent’s mental health injuries – consisting of the mental distress, depression, and sadness suffered since the May 2018 incident – consequences of her ankle injury. The judge concluded that the appellant was liable for her mental health injuries.
The judge factored this conclusion into her assessment of non-pecuniary damages of $175,000 and damages for lost future income-earning capacity of $494,000.
The appellant did not challenge its fault and liability to compensate the respondent for her injuries. However, it alleged that the judge committed a legal error undermining the damages assessment by failing to address whether the mental health injuries were the consequence of non-compensable rather than compensable causes.
New trial ordered
The Court of Appeal for British Columbia allowed the appeal, set aside the BC Supreme Court’s order, and substituted an order declaring the appellant liable for damages assessed at a new trial.
The appeal court ruled that the judge committed a legal error in her treatment of the mental health injuries and her attribution of the respondent’s compensable mental health injuries to the injuries caused by the appellant.
The appeal court said the judge considered the respondent’s mental health injuries indivisible consequences of the appellant’s negligence while failing to address the impacts of the ankle and back injuries on her mental state and failing to make a finding that these injuries materially contributed to compensable mental health issues.
The appeal court added that the judge failed to conduct the necessary causation analysis under the correct legal framework – specifically, whether the respondent’s mental distress and other mental health issues at trial were divisible since they flowed from divisible physical injuries and ailments.
The appeal court held that, without the necessary findings, the judge was not entitled to incorporate the respondent’s mental health issues into her assessment of damages payable by the appellant. The appeal court concluded that the legal errors undermined the judge’s damages assessment.
The appeal court deemed a new trial necessary. The appeal court said it could not isolate specific heads of damages for a fresh determination, reassess damages, or justly apportion such damages based on an insufficient evidentiary record.
The appeal court noted that the judge explicitly referred to her conclusion that the appellant was liable for the respondent’s mental health injuries in assessing non-pecuniary damages and lost future income-earning capacity.
