DISSENTING OPINION OP
LEVINSON, J.I dissent.
I would reverse this case and remand for a new trial on the issue of apportionment of damages. Such a result is required, I believe, by this court’s decision in Loui v. Oakley, 50 Haw. 260, 438 P.2d 393 (1968). That case presented the question whether a plaintiff injured in a series of automobile accidents may recover from the first tort-feasor damages resulting from all of the accidents if the jury is unable, by a preponderance of the evidence, to apportion the damages among the various accidents. We held in that case that it would be unjust to place responsibility for the entire loss on the first defendant because to do so would impose liability on him for injuries which he did not inflict. Loui v. Oakley, supra at 263, 438 P.2d at 396. In order to avoid this hardship the trial judge was ordered to instruct the jury that if it was unable to determine by a. preponderance of the evidence how much of the plaintiff’s damages could be attributed to the defendant’s negligence, it could make a rough apportionment. Loui v. Oakley, supra at 264, 438 P.2d at 396-97. For the reasons set forth below I believe the present case falls within the purview of the Loui case and therefore the trial court erred in refusing to apportion the damages suffered by the plaintiff.
*635The principle enunciated in Loui v. Oakley, supra, that liability for damages should be proportionate to the injury inflicted was clarified and affirmed in the recent case of Bachran v. Morishige, 52 Haw. 61, 469 P.2d 808 (1970). In Bachran the plaintiff had fully recovered from injuries sustained in a prior accident and her latent condition was reactivated by the negligent acts of the defendant. In such circumstances we held that it was proper for the court to refuse apportionment since all of the pain and disability presently suffered by the plaintiff resulted solely from the defendant’s negligence. Bachran v. Morishige, supra at 65, 469 P.2d at 811.
The result in the Bachran case is consistent with the rationale in Loui v. Oakley, supra, because in the former case there was no possibility that the defendant would be liable for medical expenses attributable to injuries which were not the result of his negligent acts. In Bachran the plaintiff’s condition was dormant. At the time of the accident she was not receiving any medical treatment. Thus, in the absence of the defendant’s act of negligence the plaintiff would not have incurred any medical expenses or suffering at all. The defendant was properly held to be liable for the entire damages.
Although it would have been unjust to apportion damages under the facts in the Bachran case, the court in that case did clarify when, under the holding in Loui v. Oakley, supra, apportionment should be granted. My Brother Abe writing for the court stated, Bachran v. Morishige, supra at 66, 469 P.2d at 811-12:
If the plaintiff had not fully recovered from the injuries she suffered in the 1962 accident and in 1964 she was still experiencing pain and suffering and was disabled from such injuries, the total damages would not be the proximate result of the 1964 accident. Then Loui v. Oakley, supra, as stated above, would be appli*636cable and tlie damages should be apportioned. Further, under that rule, if the jury found apportionment of the damages impossible, it could then divide the total amount of the damages resulting from the two accidents equally between the two accidents.
The above situation is the one facing us today. In the present case it is undisputed that at the time of the collision the plaintiff was still experiencing pain and suffering from back pains brought about by his lifting trash cans and possibly from engaging in Karate exercises. He was also receiving medical treatment for these disabilities. The question to be answered is whether the defendant should be held liable for the entire damages, including payment for medical expenses the plaintiff would have incurred even if the accident had not occurred. I believe such a result would be unjust.
If the record supports the conclusion that the defendant’s acts aggravated the plaintiff’s condition it also demonstrates, with equal certainty, that a certain proportion of the total damages suffered by the plaintiff are not attributable to the fault of the defendant. To hold, as the majority does, that the defendant is liable for these non-inflicted damages is contrary to the concept of fairness implicit in the fault theory. Loui v. Oakley, supra at 263, 438 P.2d at 396. Nor should it matter, contrary to the assertions of the majority, that in Loui v. Oakley, supra, the plaintiff’s injuries were caused by third parties while in the instant case they are “self-inflicted.” The real issue is whether the plaintiff was suffering from and receiving treatment for injuries arising prior to the defendant’s acts. The policy to be upheld is that the defendant should not be made to pay for injuries he did not cause. The source of the unrelated injuries is immaterial.
Finally, I would remand this case to the trial court to ascertain if a rough apportionment of the plaintiff’s *637injuries is at all possible. The trial court’s finding of fact on tbe issue of apportionment was erroneously based on the test of “reasonable medical certainty.” This court has held that such a restrictive standard is not appropriate for ascertaining the apportionment of damages. Bachran v. Morishige, supra at 67, 469 P.2d at 812. At a rehearing the medical experts should be given an opportunity to testify freely as to the possibility of dividing the damages so that the trier of fact may make a rough apportionment. If a rough apportionment cannot be made then the damages must be distributed equally among the various accidents. Bachran v. Morishige, supra at 68, 469 P.2d at 812.