In McCarthy v. Davies, the Plaintiff was injured in a motor vehicle collision, and brought an ICBC claim for damages for pain and suffering, loss of income, diminished earning capacity, and future care. Liability was admitted by ICBC’S lawyer. The Plaintiff alleged that she suffered from chronic pain in her neck, back, shoulders, and hips. A central issue to the case was the Plaintiff’s pre-existing degenerative disc disease. Counsel for the Plaintiff argued that it was asymptomatic prior to the collision, which caused the Plaintiff’s current injuries. ICBC’S lawyer argued that the Plaintiff’s symptoms would have happened anyways, given her pre-existing condition. The Court, applying the thin skull principle, ruled that the injuries that the Plaintiff sustained in the accident exacerbated her pre-existing, asymptomatic condition, and awarded the Plaintiff $100,000 for her injuries.

 

[65] In my view, the evidence establishes the probable cause of Ms. McCarthy’s ongoing neck, upper back and lower back pain is that the injuries she sustained in the accident exacerbated her pre-existing asymptomatic degenerative disc disease. While there was a risk that the degenerative disc disease in her neck and back would become symptomatic at some point in the future, the evidence is that she did not have neck or back pain prior to the accident. As stated by Dr. Leete, there are approximately 10 to 15% of patients who suffer from long term intrusive symptoms as a result of the trauma to their spines from a motor vehicle accident.

 

[66] Having reviewed the evidence I have concluded this is one of those cases, and the defendant is liable for Ms. McCarthy’s ongoing symptoms even though they may be more severe than expected due to her pre-existing condition. As stated by the experts, many individuals have degeneration in their spines without any symptoms. Accordingly I conclude Ms. McCarthy’s ongoing symptoms fall within the thin skull rule enunciated in Athey.

 

[67] I find that but for the accident Ms. McCarthy would not be suffering from the chronic pain in her neck, shoulder and back with the associated mental distress.

In MacIntosh v. Davison, the Plaintiff was injured in a rear end collision, and brought an ICBC claim for various types of damages, including pain and suffering, diminished earning capacity, out of pocket expenses, and the cost of future care. Liability was admitted by ICBC’S lawyer. ICBC’S lawyer also submitted that many of the Plaintiff‘s post-collision and present health concerns arise from pre-existing conditions which do not have to be compensated for by the Defendant. The Court would go on to award $90,000.00 for pain and suffering, however this amount was reduced by 20% to reflect the Court’s view that the Plaintiff had a measurable risk of future back problems inherent in his “original” position before the accident.

 

[74]

 

3) Notwithstanding that period in which he was free of low back symptomology, Mr. MacIntosh was at an increased risk of developing future back problems at the L4-5 area either spontaneously or by injury. To that extent while his condition was then asymptomatic it was only “essentially so” because of that increased risk.

 

6) Because of the measurable increased risk of developing future back problems associated with his essentially asymptomatic pre-existing low back conditions in 2009, those conditions must be given some weight in determining Mr. MacIntosh’s “original” position in the assessment of damages, as required by Athey

 

8) On balance, having considered the totality of the evidence I consider reliable, I have concluded that after consideration of the measurable risk of future back problems inherent in Mr. MacIntosh’s “original” position but considering also the increased risk of further exacerbation of his present post-accident condition because of the defendants’ negligence in the 2009 collision, a reduction of 20% of the award of damages that would otherwise appropriately compensate Mr. MacIntosh for the injuries he has endured since October 2009 is necessary to ensure that he is only compensated for the difference between his “original” and his “injured” condition.

 

[91] In all of the circumstances I find that an award of $90,000 would appropriately compensate Mr. MacIntosh for his past, present, and future pain and suffering and loss of enjoyment of life. By application of the 20% reduction I have previously found to be necessary to compensate him only for the change from his “original” position that arises from the defendants’ negligence, I award Mr. MacIntosh $72,000 to compensate him for his non-pecuniary losses.

In Savoie v. Williams, the Plaintiff was injured in a motor vehicle collision when the Defendant ran a stop sign. The Plaintiff brought an ICBC claim for damages for pain and suffering, income loss, diminished earning capacity, and the cost of future care. Prior to the accident, the Plaintiff had asymptomatic degenerative changes, which were then rendered symptomatic by the collision. By the time of trial, which was approximately four years after the accident, the Plaintiff still suffered from her injuries. The Court awarded $75,000.00 for non-pecuniary damages.

[34] Dr. Maloon agreed that there was no indication that the plaintiff had any complaints arising from these areas of her body prior to the accident, and described as a “million dollar question” the reason some people with similar wear and tear will have pain or other symptoms from the wear and tear, whereas others will not.

[35] Dr. Maloon also said that once there are wear and tear changes to the neck, nothing can be done to change the natural course of that condition; it is a mechanical problem and treatment is largely symptomatic.

[36] At page 6 of his written opinion Dr. Maloon says:

It is possible that the soft tissue strain that she sustained initiated the symptoms of degenerative changes that have persisted to date.

[37] I conclude that Ms. Savoie’s initial soft tissue injuries, which I consider moderate to severe, have plagued her from the time of the accident until the date of trial. I also find that these injuries precipitated symptoms from the pre-existing (but asymptomatic) degenerative state of her neck and upper back, that the combination of the injury and the degeneration has created more discomfort than either would alone, and that to the extent that the continuing symptoms come from the degenerative neck condition, it is unlikely they will ever completely go away.

In Johal v. Conron, the Plaintiff was injured in a motor vehicle accident, and consequently brought an ICBC claim for damages for pain and suffering, as well as other forms of damages. Liability was not in dispute. The Plaintiff had pre-existing conditions, and claimed that the accident aggravated these previous conditions, as well as created new injuries. ICBC’S lawyer argued that the injuries were minor in nature, and that the Plaintiff understated her pre-existing conditions, and overstated the injuries arising from the accident. The Court would go on to award $35,000.00 for pain and suffering, noting that the Plaintiff still would have suffered pain in the areas in question had the accident never occurred, but that there was also a definite aggravation of the pre-existing conditions.

 

[80] Dr. Wade fairly conceded that it is difficult to sort out the symptoms that pre-dated the accident and those that could be directly attributed to the accident. In this regard, he wrote:

In my opinion it would be a blend of both pre-accident and accident type problems that have resulted in her current state of pain and disability.

[81] He further opined that if she would not have had the accident of June 10, 2009, and had been treated with appropriate aggressive physiotherapy to her right shoulder and upper extremity, that Mrs. Johal would have likely improved over time. I accept this opinion.

[82] Accepting Dr. Wade’s evidence as I do, I am satisfied that Mrs. Johal has proven, on a balance of probabilities, that the defendant’s negligence caused mild to moderate soft tissue injuries to her cervical and lumbar spine. These injuries caused aggravation of her pre-existing conditions and caused new conditions in her lumbar spine and lower body.

 

[92] I find she would have been disabled to some extent by her right shoulder and upper extremity problems if the accident had not occurred. However, the injuries from the accident have made her symptoms worse, slower to recover and have had a more significant impact on her life.

In Campbell v. Van Den Broek, the Plaintiff was injured in a motor vehicle collision, and subsequently brought an ICBC claim for damages for pain and suffering, loss of income, diminished earning capacity, and out of pocket expenses. Liability was admitted by the Defendant. The Court ruled that the accident caused new injuries to the Plaintiff, in addition to aggravating pre-existing conditions. The Court awarded $90,000 for pain and suffering. The accident had occurred approximately two and a half years prior to the start of the trial.

 

[106] The plaintiff has dealt with many tribulations in her life. The over-all impression she gives is of a person who simply kept going despite these difficulties and who had some entrepreneurial initiative. Despite a tendency to depression she appears to have been, in the past, fun and amusing with her friends, and although her marriage was nearly over before the accident, Mr. Campbell’s departure and the disruptions that followed, selling the family home, and finding a new place to live, would have been upsetting to anyone. The accident did not cause these problems but it certainly made the plaintiff’s situation more difficult to deal with, and exacerbated her pre-existent tendency to depression and anxiety.

[107] The differences between the medical reports are not reconcilable, but offer the court a range of perspectives. The court must avoid visiting damages upon the defendant that load pre-and co-existing difficulties unfairly on the accident. On the other hand, it must also recognize that for a person with serious limitations, a relatively small change may have significant practical consequences.

[111] I do not accept the range to be as high as the plaintiff has submitted. Rather, taking account of the degree to which the cases cited are comparable, and the plaintiff’s unique combination of injuries: those from which she suffered for a time but has recovered (bruising, neck pain); those from which she always suffered but which have been exacerbated by the accident (anxiety); and those which are attributable to the accident (knee pain becoming symptomatic, the vestibular issues), allowing for the possibility that the latter might have become symptomatic in any event, and assessing the credibility of the plaintiff’s complains in light of the medical evidence and what the lay witnesses had to say, and the effects of inflation on comparable decisions, I am of the view that the plaintiff’s damages for pain and suffering and loss of enjoyment of life should be assessed at $90,000.

 

In Johnson v. Kitchener et al., the Plaintiff was involved in two motor vehicle accidents, and brought ICBC claims for damages arising therein. Prior to the first collision, the Plaintiff suffered from some serious spinal degeneration in his neck, and, to a milder degree, in the rest of his spine. Despite all of this, the Plaintiff was asymptomatic. The accidents caused the Plaintiff to experience pain in these areas. The Court held that the Plaintiff likely would have experienced neck pain in any event, but also ruled that the Plaintiff would not have experienced back pain without the accidents. The Court awarded $90,000.00 for pain and suffering, with the first accident being over five years before the trial.

 

[55]         In Athey, the court sets out the way in which a pre-existing condition may be relevant to the assessment of damages at p. 473:

 

[34]      … The “crumbling skull” doctrine is an awkward label for a fairly simple idea. It is named after the well-known “thin skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person.

 

[35]      The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage: … Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award: … This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.

 

[58]         In my view, the evidence establishes the probable cause of Mr. Johnson’s ongoing neck, upper back and lower back pain is that the injuries he sustained in the 2007 accident, and the 2008 accident to a lesser extent, exacerbated his pre-existing asymptomatic degenerative disc disease. While there was risk to the degenerative disc disease in his neck becoming symptomatic, the medical evidence was that the lower back would likely not have become symptomatic absent some trauma.

 

[62]         In my opinion, Mr. Johnson’s neck symptoms fall within the crumbling skull rule enunciated in Athey, and any award must reflect that. However, I am of the view, the defendants are liable for his lower back symptoms even though they may be more than severe than expected due to his pre-existing condition. The evidence of the experts is that many individuals have degeneration in their spines without any symptoms and that the degeneration in Mr. Johnson’s lower back was similar to other individuals of his age. There is no evidence that his lower back would have become symptomatic absent the 2007 accident. Accordingly I have concluded that his lower back symptoms fall within the thin skull rule enunciated in Athey.

 

In Morgan v. Scott, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering, and other types of damages as well. The Plaintiff had pre-existing chronic neck and back pain, as well as a chronic lung condition. ICBC’S lawyer attempted to argue that the motor vehicle accident in question merely exacerbated the Plaintiff’s pre-existing conditions, however the Court rejected this argument, eventually awarding $100,000.00 to the Plaintiff for pain and suffering, as there had been a marked change from the Plaintiff’s pre-accident injuries.

 

[35] The defendant argues that the Accident caused an “exacerbation” of these conditions. As a matter of definition this is true. There are instances, however, where a worsening in a condition gives rise to more than a change in degree. Instead, in real terms, it gives rise to a change in kind.

 

[36] I find that this is so for several of Mr. Morgan’s symptoms. I have said that his pain symptoms changed from being recurring in nature, with periodic “flareups” or, as Dr. Caillier described it, of an “on and off” nature, to being enduring in nature and markedly more severe. That reality has dramatically curtailed Mr. Morgan’s ability to follow his exercise regime. That regime, in turn, is vital to his respiratory health and to the management of his chronic pain. It was also one of the few physical activities that Mr. Morgan could participate in and it provided him with a sense of confidence. Further, it is clear to me that it also provided him with pleasure and with a sense of pride.

 

[37] There is no question that Mr. Morgan has become further de-conditioned since the Accident. He testified that his respiratory function has worsened. There was no admissible evidence before me that Mr. Morgan’s chances of being accepted onto a list of prospective transplant donees have diminished as a result of the Accident. Nevertheless I consider that I can, in my assessment of Mr. Morgan’s non-pecuniary losses, weigh the anxiety or stress that Mr. Morgan has expressed over his weakened state and its significance for his long term health.

 

[38] Still further, I find that Mr. Morgan has been transformed from a generally positive, outgoing, and confident person into one who is reclusive, who suffers from consistent depression of significant severity, and who is without energy. I also consider that it is noteworthy that notwithstanding the significant challenges of various kinds that Mr. Morgan has faced since childhood, he has always persevered and by virtue of his determination improved his state. Since the Accident, that is no longer true.

In Zawislak v. Karbovanec et al., the Plaintiff had pre-existing, yet asymptomatic, spinal degenerative disc disease. As a result of a motor vehicle accident, his condition became symptomatic, resulting in three years of chronic pain by the time of trial. The Court rejected arguments by ICBC’S lawyer that the motor vehicle accident in question did not cause the ongoing neck pain.

 

[37]         The defendants submit that any ongoing neck symptoms Ms. Zawislak is suffering from were not caused by the accident, but are the result of some other accident or a spontaneous onset of her degenerative disc disease. The defendants assert that Ms. Zawislak suffered a moderate whiplash‑type soft tissue injury to her neck and back, the majority of which resolve within two months after the accident, except for some mid-back pain that continues to improve.

 

[44]         In my view, the evidence establishes that the probable cause of Ms. Zawislak’s headaches, neck pain, upper back and shoulder pain is the motor vehicle accident exacerbating the pre‑existing asymptomatic degenerative disc disease. While there was some risk of her degenerative disc disease becoming symptomatic, the medical evidence was that it was likely it would not become symptomatic absent a trauma. In my opinion, this case falls within the “thin skull” rule as opposed to the “crumbling skull” rule enunciated in Athey, and the defendants are liable for Ms. Zawislak’s injuries even though they may be more severe than expected due to her pre‑existing condition.

 

[49]         Having considered the extent of the injuries, the fact that the symptoms are ongoing three years after the accident with very little improvement, that the prognosis for full recovery is guarded, as well as the authorities I was provided, I am of the view that the appropriate award for non‑pecuniary damages is $60,000.

In Neumann v Eskoy, the Plaintiff had pre-existing, yet asymptomatic, conditions. After the motor vehicle collision, the condition turned to one of chronic pain. ICBC’S lawyer attempted to argue that the pre-existing condition was more responsible for the Plaintiff’s current problems than was the accident itself. The Court dismissed the ICBC lawyer’s argument, commenting that :

 

[12]           The defendants say, relying on Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, that there is a measurable risk the plaintiff’s pre-existing degenerative condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence. At paragraphs 13, 14 and 19, Mr. Justice Major, writing for the court, says:

 

13        Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury…[citations omitted]

 

14        The general, but not conclusive, test for causation is the “but-for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant…[citations omitted]

…

 

19        The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm…[citations omitted]

 

[13]         I also refer to the decision of the B.C. Court of Appeal in B.P.B. v. M.M.B., 2009 BCCA 365 where Mr. Justice Chaisson, at paragraphs 42 and 43, says this:

 

[42]      In my view, the trial judge in this case failed to determine whether the plaintiff’s injury was divisible or indivisible. She appears not to have distinguished “between causation as the source of the loss and the rules for the assessment of damages in tort” as mandated by the Supreme Court of Canada in para. 78 of Blackwater. The liability question is whether the conduct of the defendant caused injury. The assessment of damages requires a determination whether the injury derived from multiple sources and whether it is divisible. If it is, responsibility is allocated to the individual sources of the injury.

 

[43]      It the injury is indivisible, the court must consider the possible application of the thin skull or crumbling skull rules in the context of the victim’s original condition. If the crumbling skull rule applies, it forms part of returning the victim to his or her original condition and the tortfeasor is not responsible for events that caused the crumbled skull. Absent the application of the crumbling skull rule, where the injury is indivisible, all torfeasors who caused or contributed to the injury are 100% liable for the damages sustained by the victim.

 

See also the decision of the B.C. Court of Appeal in Bradley v. Groves, 2010 BCCA 361, which was decided after the trial of this action.

 

[14]         I am satisfied that before the accident and despite the asymptomatic degenerative conditions, the plaintiff was not only functioning adequately, but also at a very high physical level. But for the accident and the injury sustained to his neck, the plaintiff would not have sustained the chronic pain syndrome from which he now suffers. I am satisfied that the plaintiff’s long and commendable work history was interrupted by the injury sustained by him in the accident, and that despite the plaintiff’s best efforts he continues to suffer from chronic pain which is moderated somewhat by medication.

 

In Hosking v Mahoney, the Plaintiff had pre-existing injuries from other car accidents when she was involved in another car accident. The court awarded $80,000 for pain and suffering, but reduced this amount by 25% to account for the pre-existing injuries.

 

[178] I find that the plaintiff suffered a mild to moderate soft tissue injury to her cervical and upper thoracic areas as a result of the February 2004 accident.  This was superimposed on her already symptomatic condition caused by the earlier accidents and although she had started to make the expected recovery, the process was interrupted by her falls.  Normally, these would not have affected the plaintiff but she was more vulnerable as a result of the three accidents.  There is no orthopaedic or neurological cause.  It is probable that these complaints will continue well into the future but can be managed and alleviated by an appropriate exercise programme (as recommended by her medical advisors as early as Dr. Parhar in March 2003) and by such passive therapies as may, from time to time, help alleviate her symptoms.