Skip to main content

Increased Earnings Are Not A Barrier to Diminished Earning Capacity Damages

Written by admin on . Posted in ICBC Wage Loss.

As the BC Court of Appeal recently confirmed, it is not ‘wage loss‘ that is compensible in a personal injury lawsuit but rather ‘diminished earning capacity‘.  With this in mind it is important to remember that damages for diminished capacity can be available in circumstances where there is no past wage loss and even in cases where a Plaintiff’s earnings increase following a collision.  Reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, with such a result.
In this week’s case (Brechin v. Pickering) the Plaintiff was injured in a 2007 collision.  Liability was admitted focusing the trial on an assessment of damages.  The Plaintiff suffered various soft tissue injuries to his neck, knee and shoulder.  He worked as an electrician and took ‘very little time off‘.  In addition to this the Plaintiff’s earnings increased in the years following the collision as follows:
[52]  Mr. Bredin’s work history since 2002, shows the following pattern:
2002  $49,991
2003  $29,917
2004  $23,866
2005  $64,256
2006  $40,059
2007  $68,986
2008  $84,142
2009  $80,255
2010  $99,802
The Plaintiff’s injuries were expected to linger and although he could continue to work in his own occupation he was limited in tasks ‘at the heavier end of the scale‘.  As a result the Court awarded damages for diminished earning capacity.  In doing so Mr. Justice McEwan provided the following reasons:
[78]  What emerges from Ms. Mihalynuk’s evidence is a portrait of a person who is rather self-contained, proud of his work and inclined to do very little on his time off..
[80]  Mr. Brechin is now 42 years old in a setting in which he may retire in 15 to 20 years.  There are significant physical demands in the work some of the time, although as he continues to take leadership roles, he is likely to work more often at a reduced physical level of strain.  The primary concern for his future is whether he will be able to continue to retirement without interference from the effects of the accident…
[83]  I accept that work at the heavier end of the scale ought to be avoided, and that he could probably not stay in an occupation that demanded continuous heavy labour.  In the field in which he is employed, however, this does not appear to be expected.
[99]  The possibility of a future event is not specifically that Mr. Brechin will be laid off because of his condition, which is relatively unlikely, given that the medical evidence suggests that his condition is not disabling, but the more general vagaries of business that have made employment “for life”, once a common expectation, highly uncertain.  Should Mr. Brechin lose his position for such a reason he would be put back into a competitive environment where a fraction of the heaviest work would be lost to him…
[100] In this case, that involves a consideration of the medical evidence; Mr. Brechin’s age and likely working life; the relative stability of his employment at Fortis; the possibility that either Mr. Brechin’s condition, or larger workplace and market forces will change his situation, and the prospects he could have were that to happen.  It seems clear that Mr. Brechin could work but that to some extent this range of opportunities would be limited at the heavier end of the work.  The degree to which this is attributable to the accident diminishes over time as age and other factors come into play.  I think it would be an error to assume the same capacity for heavy work in a 50 year old, that one would find in someone significantly younger.  Doing the best I can to assess these factors, I fix $60,000 for future loss of income due to the diminishment of his capacity viewed as a capital asset.  I have done so, bearing in mind his present income earning capacity, which is an improvement over the years before the accident, but that the injuries suffered in the accident may reduce, somewhat, his broader opportunities to work as an electrician.

$40,000 Non-Pecuniary Assessment for Aggravation of Tronchanteric Bursitis

Written by admin on . Posted in ICBC Hip Injury Cases, Uncategorized. 48 Comments on $40,000 Non-Pecuniary Assessment for Aggravation of Tronchanteric Bursitis

Update August 23, 2013 – An Appeal from the below decision was successful with the BC Court of Appeal ordering a new trial.  Reasons from the BC Court of Appeal can be found here.
____________________________________________________________________
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for aggravation of pain due to pre-existing hip bursitis.
In this week’s case (McArthur v. Hudson) the Plaintiff was injured in a 2008 T-Bone collision caused when the Defendant failed to stop at a stop sign.  Fault was admitted.   The Plaintiff had significant pre-existing difficulties resulting in a total hip replacement.  Following this the Plaintiff developed trochanteric bursitis.

He continued to have problems due to this and other complications of his pre-existing condition.
The collision caused an aggravation of the Plaintiff’s tronchanteric bursitis along with some soft tissue injuries.  The court found that this aggravation ran its course by mid 2011.  The Court further found that the balance of the Plaintiff’s lingering limitations were due to his pre-existing condition and not compensable.  In assessing non-pecuniary damages for the aggravation at $40,000 Madam Justice Kloegman provided the following reasons:

[74]The plaintiff must be compensated for losses due to an aggravation of bursitis in the lateral aspect of the trochanter which was substantially resolved by March 2011. The plaintiff must be compensated for losses incurred by him for a soft tissue injury to his shoulder that substantially resolved after about one month, and a soft tissue neck injury that substantially resolved by May 2011. Finally, the plaintiff is entitled to compensation for headaches experienced until May 2011 and an aggravation of his depression due to the setback (perceived or otherwise) in his rehabilitation until November 2008.

[75]The plaintiff is not entitled to compensation from the defendant resulting from post-surgical complications in his hip, such as sublaxating fascia lata, tight iliotibial band or weak abductor muscles. The plaintiff is not entitled to compensation from the defendant for his lower back issues which resulted from a previous injury and arthritis in the spine. The plaintiff is not entitled to compensation from the defendant for any neck injuries or headaches after May 2011…

[82]Nonetheless, I am satisfied that the plaintiff endured a significant degree of pain, both physically and emotionally, from his Accident related injuries, and he is entitled to reasonable compensation for that. Given the plaintiff’s age, the nature and duration of his injuries, and the impact on his enjoyment of life, I am of the view that his damages should be set at $40,000 (Laroye v. Chung, 2007 BCSC 1478; Guilbault v. Purser, 2009 BCSC 188; and Carter v. Zhan, 2012 BCSC 595).

Making the Doctor Come To You! Defence Medical Exams and Court Ordered Conditions

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams. 59 Comments on Making the Doctor Come To You! Defence Medical Exams and Court Ordered Conditions

The BC Supreme Court has the discretion to impose appropriate terms and conditions when forcing a Plaintiff to undergo a Defence Medical Exam in the course of an injury lawsuit.  Unreported reasons for judgement were recently released and shared by Plaintiff lawyer Thomas Harding discussing this and imposing a variety of interesting conditions connected to such an order.
In the recent case (Carta v. Browne) the Plaintiff sued for damages as a result of as 2009 collision.  Prior to this the Plaintiff was injured in a 2002 collision which resulted in him being rendered paraplegic confining him to a wheelchair.
The claimed damages from the 2009 collision included psychiatric injuries.  The Defendant requested a Defence Medical Exam with a psychiatrist in Vancouver.  The Plaintiff objected both to the date proposed and to the location of the examination as the Plaintiff lived in Kelowna and travel was difficult due to his pre-existing disability.
Master Muir agreed that while a psychiatric assessment was appropriate and that the Defendant could choose their expert the Plaintiff was entitled to reasonable accommodation with respect to the timing of the appointment and further that given the Plaintiff’s travel difficulties he was entitled to having the appointment take place in Kelowna.  The Court went on to impose a variety of further conditions providing the following reasons:
[8] …I am satisfied that there are considerations that go beyond simple convenience that dictate that this examination should not be conducted in Vancouver but should be conducted in Kelowna and that it not be conducted on July 30th, which is a time that is more than inconvenient for the plaintiff; it interferes with a scheduled festival that he is planning to attend as a part of a developing business.  Therefore if the defendants are going to insist that the examination be conducted by Dr. Riar, it is my order that Dr. Riar attend in Kelowna at a time convenient to all parties, and I will order that certain conditions be complied with.
[9]  The first condition sought is that the defendants set out exactly what examinations DR. Riar wishes to conduct.  The defendants have indicated that this is a psychiatric examination, that the examination is not to be an invasive one but will consist of conversations between the plaintiff, and I trust that Dr. Riar, being a professional, will confine himself accordingly.  It is of course ordered that ICBC is to pay the reasonable costs of attendance of the plaintiff at the examination.
[10]  I do order that the plaintiff is at liberty to be accompanied by a person of his choice.  This person is to be merely an observer and not participate in or interfere with the exaninaiton in any manner whatsoever.  Dr. Riar will not attempt to get any information from the companion…
[12]  And I so order here that the examination is to be commenced within 30 minutees of the scheduled start time, after which, if the examination has not proceeded, the plaintiff is entitled to depart, and his attendance will be credited as having satisfied the order…
[15]  With respect to item (i) of the response of the plaintiff here, the plaintiff is seeking that there be no surveillance of him during any part of the defence medical examination or during his arrival or departure from there.  In my view this is in the nature of being required to attend court, and it is my view that any such surveillance would be unseemly, and I therefore grant the order.
To my knowledge these reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

$20,000 Non-Pecuniary Assessment For 3 Year Soft Tissue Injuries With Good Prognosis

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, assessing damages for fairly modest injuries caused by a motor vehicle incident.
In the recent case (Ward v. Zhu) the Plaintiff was a passenger on a bus that stopped suddenly throwing her to the ground.  This occurred as the driver was avoiding a collision with another motorist.  Fault was admitted by the other motorist.  The Plaintiff suffered soft tissue injuries and although these remained symptomatic at the time of trial (over three years following the incident) they did not significantly impair the Plaintiff.  In assessing non-pecuniary damages at $20,000 Mr. Justice Goepel provided the following reasons:

[30] In this case, there is limited evidence that supports Ms. Ward’s claim for loss of enjoyment of life and loss of amenities. Ms. Ward missed no time from work as a result of her injuries. Within two months of her injuries, she was trying out for a soccer team. The only amenities referenced in her evidence concerned reductions in running and walking and difficulty in 2011 sitting through a concert. On the evidence that has been led at this trial, I cannot find that Ms. Ward’s enjoyment of life has been significantly compromised by this accident.

[31] There is also limited evidence in relation to pain and suffering. Ms. Ward abandoned physical therapy and chiropractic treatments shortly after the accident. She went long periods of time without seeking any medical advice concerning her injuries. She did not say anything to her family doctor concerning these injuries until January 2011. The defendant submits that the lack of complaints to medical practitioners supports his submission that Ms. Ward substantially recovered within weeks of the accident.

[32] I do not accept that conclusion. In 2009, Ms. Ward had other difficulties in her life which explain why she did not actively seek treatment for these injuries. I accept her evidence that she did not aggressively seek medical treatment because she mistakenly believed the injuries would resolve without medical assistance.

[33] I find that Ms. Ward did suffer an injury in the fall on the bus. I accept that those injuries have impacted her for more than three years. Her decision not to actively treat her injuries immediately following the accident has undoubtedly prolonged her recovery. When Ms. Ward finally started an active regime of chiropractic and massage treatments her condition improved. Dr. Dyment testified that Ms. Ward’s injuries are now slowly resolving. The evidence does not allow me to conclude that her injuries are permanent.

[34] While Ms. Ward’s recovery has been prolonged, the impact on her life is considerably less than the plaintiffs in Deiter and Parker, although somewhat greater than the plaintiffs in the cases cited on behalf of the defendant. While the cases provide a general range of appropriate damages, all cases ultimately must be decided on their own facts.

[35] I award $20,000 in non-pecuniary damages. This award includes an allowance for the difficulty that Ms. Ward has had or will continue to have in performing her usual household tasks with less efficiency and comfort than she did before the accident: Helgason v. Bosa, 2010 BCSC 1756 at para. 160.

"What's This Lawsuit All About?" Examination For Discovery Caselaw Update

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure.


In my ongoing efforts to archive BC caselaw addressing examinations for discovery, reasons for judgement were released this week by the BC supreme Court, Prince George Registry, discussing the scope of permissible questions.
In this week’s case (Manojlovic v. Currie) the parties were involved in litigation with respect to a purchase and sale agreement relating to lakeshore property.   In the course of the lawsuit the Defendant was examined for discovery during which time he was asked to “tell me in your own words what this lawsuit is all about“.
The Defendant objected arguing this question was inappropriate.  Mr. Justice Tindale disagreed and concluded this question was fair game.  In doing so the Court provided the following reasons:

13] The tone of the examination for discovery was set by Mr. Hall, counsel for the defendants William Richard Currie and Patsy Arlene Currie, at the beginning of the examination.  Mr. Dungate asked the defendant William Richard Currie the following:

9 Q      One of the things I want to accomplish today, Dr. Currie, is I’d like to better understand this lawsuit from your perspective and your wife’s, so perhaps you can tell me in your own words what the lawsuit is about.

Mr. Hall:           Stop. That’s not the process, Mr. Dungate. You ask questions; he answers them.

10 Q    Mr. Dungate: This is my examination for discovery. I’m asking the questions. I just asked Dr. Currie to explain to me what the lawsuit is about. So, what’s the lawsuit about, Dr. Currie?

[14] The plaintiff wishes to ask questions relating to the pleadings in these proceedings. These types of questions were objected to during the examination for discovery. However, Mr. Wright, who was Mr. Hall’s agent for this application, is not opposed to these types of questions but rather argues that they should not relate to questions of law, or questions that had already been asked and answered at examination for discovery.

[15] In my view, the questions asked by Mr. Dungate relating to the pleadings were appropriate. I also agree with Mr. Wright that these types of questions should not relate to questions of law…

[21] An examination for discovery is similar to cross-examination at trial. The plaintiff, in this case, should have been given a wide latitude to explore the relevant issues in the time allotted by the Rules. The Plaintiff was not able to do this on many of the issues that he was trying to explore.

[22] I order that the defendant William Richard Currie shall attend and submit to a further examination for discovery which will have a maximum duration of four hours. This examination for discovery shall be set in consultation with counsel for the plaintiff and counsel for the defendant William Richard Currie.

[23] I order that the plaintiff will be at liberty to ask questions relating to the “pleadings” and the letter marked as “Exhibit 29” at the examination for discovery held on March 9, 2012.

Indivisible Injury Analysis Applicable For Both Causation and Quantum of Damages

Written by admin on . Posted in Uncategorized. 42 Comments on Indivisible Injury Analysis Applicable For Both Causation and Quantum of Damages

The BC Court of Appeal released reasons for judgement this week further addressing the law of indivisible injuries.
In this week’s case (Moore v. Kyba) the Plaintiff was member of the Canadian Navy and suffered an interscapular injury in a 2007 motor vehicle collision.   A year before this he injured his right shoulder in a shipboard fall and lastly suffered a bicep tear during a fall in 2008.
He sued for damages claiming the collision injury permanently disabled him from his naval career.  ICBC argued that no injury was caused and that this man’s disability was related to the falls.  The Jury accepted the Plaintiff’s claims and awarded $823,962 in damages for loss of earning capacity.  ICBC appealed arguing the trial judge gave the Jury improper instructions addressing indivisible injuries.  The Appeal was dismissed with the Court providing the following summary of the law:
[32] Much judicial ink has been spilled concerning the characterization of multiple injuries as divisible or indivisible, and the impact of that characterization on the determination of causation and assessment of damages in a negligence case.

[33] The legal principles underlying these concepts are clear, but explaining them to a jury “is no easy task” (see Laidlaw v. Couturier, 2010 BCCA 59 at para. 40).  Nor is their application in varying particular factual contexts always straightforward.

[34] The relevant principles were clearly set out in Athey v. Leonati, [1996] 3 S.C.R. 458.  Their elaboration in Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, and by this Court in T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670 at paras. 22-37, B.P.B. v. M.M.B., 2009 BCCA 365, Bradley v. Groves, 2010 BCCA 361 and Laidlaw are also helpful.

[35] The basic principles at play in this analysis are that a “defendant is not liable for injuries which were not caused by his or her negligence” (Athey at para. 24), and “the defendant need not put the plaintiff in a position better than his or her original position” (Athey at para. 35).  These two principles, which deal with the concepts of causation and assessment of damages, were distinguished in Blackwater (at para. 78):

It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey.

[36] Thus, whether a defendant is liable to a plaintiff for an injury is a matter of causation; the amount of compensation the defendant must pay is a matter of assessment of damages.

[37] The concepts of divisible and indivisible injury are relevant at both stages of the analysis.  At the stage of determining causation, the characterization of the plaintiff’s injury or injuries as divisible or indivisible is relevant in determining what the defendant is liable for.  As explained in Athey (at paras. 24-25):

The respondents submitted that apportionment is permitted where the injuries caused by two defendants are divisible (for example, one injuring the plaintiff’s foot and the other the plaintiff’s arm): Fleming, supra, at p. 201. Separation of distinct and divisible injuries is not truly apportionment; it is simply making each defendant liable only for the injury he or she has caused, according to the usual rule. The respondents are correct that separation is also permitted where some of the injuries have tortious causes and some of the injuries have non-tortious causes: Fleming, supra, at p. 202.  Again, such cases merely recognize that the defendant is not liable for injuries which were not caused by his or her negligence.

In the present case, there is a single indivisible injury, the disc herniation, so division is neither possible nor appropriate. The disc herniation and its consequences are one injury, and any defendant found to have negligently caused or contributed to the injury will be fully liable for it.

[Emphasis added.]

[38] In this case, in determining causation, the jury had to determine whether the appellant caused injury to the respondent, and if so, whether the rotator cuff injury, the interscapular pain, and the bicep tear were divisible injuries or an indivisible injury.  If they were divisible, the appellant could only be found to be liable for the interscapular pain caused by the motor vehicle accident.  If they were indivisible, the appellant would be liable for that indivisible injury. ..

[41] At the stage of assessment of damages, the question is what compensation the plaintiff is entitled to receive from the defendant.

[42] If the injury is divisible, then the plaintiff is entitled to be compensated for the injury caused by the defendant.  In this case, if the interscapular pain was a divisible injury, then the respondent was entitled to compensation for his loss flowing from that injury.

[43] If the injury is indivisible, then the plaintiff is entitled to be compensated for the loss flowing from the indivisible injury.  However, if the plaintiff had a pre-existing condition and there was a measurable risk that that condition would have resulted in a loss anyway, then that pre-existing risk of loss is taken into account in assessing the damages flowing from the defendant’s negligence.  This principle is called the “crumbling skull” rule.  As explained in Athey (at para. 35):  “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.”

[44] For a recent example of a reduction in damages to reflect a pre-existing condition, see Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2012 BCCA 331.

At the conclusion of the reasons the Court of Appeal attached the trial judge’s jury charge which is worth reviewing.  For access to my archived posts addressing indivisible injuries you can click here.

$85,000 Non-Pecuniary Assessment for Knee Injury With Potential CRPS

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Knee Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, Williams Lake Registry, assessing damages for a chronic knee injury.
In this week’s case (Anderson v. Shepherd) the Plaintiff suffered a “major injury” to his knee when he was struck by the Defendant’s vehicle crushing his knee “between the car door and the frame of the vehicle“.  Fault was admitted focusing the trial on damages.
The Plaintiff’s knee injury required surgical intervention and resulted in chronic pain.  He was diagnosed with potential Complex Regional Pain Syndrome because of his knee trauma.  His pain symptoms were expected to linger indefinitely.  In assessing non-pecuniary damages at $85,000 Mr. Justice Davies provided the following reasons:

[58] Although the medical opinions differ with respect to whether Mr. Anderson may suffer from complex regional pain syndrome because of the injuries to his knee, and also whether patellar maltracking was caused by or made symptomatic by the collision, I am satisfied by the totality of the evidence that the knee pain Mr. Anderson has suffered and continues to suffer, as well as the mobility issues he has experienced and continues to experience, are genuine and were all caused by the collision.

[59] I am also satisfied on a balance of probabilities that the negative effects upon Mr. Anderson’s life arising from the left knee injury were caused by the collision and the defendant’s negligence, and would not have occurred but for that negligence…

[75] My consideration of the totality of the evidence in this case leads me to conclude that:

1) Mr. Anderson will have ongoing symptoms with his knee indefinitely which will remain relatively constant at their present level with a tendency to improve over time, rather than worsen.

2) Mr. Anderson is likely to have difficulties with activities requiring a great deal of knee flexion such as kneeling, squatting, climbing stairs and walking up hills.

3) No further surgical intervention will assist in alleviating Mr. Anderson’s existing knee symptoms.

4) Mr. Anderson will not likely develop accelerated osteoarthritis because of the injury to his knee.

5) Mr. Anderson is not disabled from work as a driver if he obtains a Class 1 licence, but will be required to take breaks to rest his knee if he drives for long periods of time.

6) The injury to his left knee will likely require Mr. Anderson to take more pain medication to relieve his pain than he was taking to alleviate the chronic pain associated with his low back pain caused by the 2004 motor vehicle accident.

84] Mr. Anderson has suffered a serious and debilitating left knee injury. It was acutely debilitating for approximately six weeks when he could do almost nothing other than rest. While his condition improved thereafter, that improvement was not sufficient to allow him to resume all of his previous activities either at home or outside the home, his home life and relationships with his wife and children suffered badly, and he was unable to work because of his injuries.

[85] Surgery on his knee in March 2010, more than a year after he was injured, helped to alleviate his difficulties to the extent that by his own assessment his improvement has now approached 70%. The evidence establishes that it is likely that his symptoms have stabilized at that level and are not likely to worsen over time.

[86] Even at their present recovery level, Mr. Anderson’s injuries require him to endure pain that must be treated with increased levels of medication beyond that which previously alleviated his chronic low back pain that arose from the 2004 motor vehicle accident. His ability to enjoy life because of his compromised physical abilities is seriously diminished. He has now suffered and endured his losses for more than three years. As a young man who is now only 30, Mr. Anderson will suffer them for most of his adult life.

[87] After considering the totality of the evidence and the principles enunciated in Stapley, and the authorities to which I was referred by both counsel, I have determined that an award of $85,000 is necessary to appropriately compensate Mr. Anderson for his non-pecuniary losses.

Practice Direction 36 – Trial Management Conferences Allowed to Be Waived by Consent

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure.

(UPDATE – August 31, 2012 – PD 36 has been repealed and replaced with PD 37)
Addressing concerns that mandatory Trial Management Conferences add unnecessary time and expense to litigation, Practice Direction 36 comes into force on September 4 which will allow parties to BC Supreme Court Civil and Family matters to apply to waive TMC’s.
The waiver of TMC’s is limited to Vancouver Registry trials 9 days or less in duration with no self-represented litigants involved.  Hopefully this directive will be expanded Province wide.

$75,000 Non-Pecuniary Assessment for Triggering of Pain in Pre-Existing Degeneration

Written by admin on . Posted in ICBC Whiplash Cases, Uncategorized. 64 Comments on $75,000 Non-Pecuniary Assessment for Triggering of Pain in Pre-Existing Degeneration

As previously discussed, a common pattern following a motor vehicle collision is the onset of pain in a pre-existing but otherwise asymptomatic degenerative condition.  Reasons for judgement were released recently by the BC Supreme Court, Kelowna Registry, addressing such an injury.
In the recent case (Culos v. Chretien) the Plaintiff was involved in a 2006 pedestrian collision.  The Defendant motorist was found fully at fault.  The collision caused an aggravation of pre-existing low back pain and further caused chronic neck pain problems.  The latter problems were found to be due to pre-existing degeneration which became symptomatic as a result of the impact.  In assessing non-pecuniary damages at $75,000 Mr. Justice Rogers provided the following reasons:

[51] I find that the plaintiff accurately described his injuries and the symptoms he experienced after the accident. The fact that his left hip was sore when he went to see his physician several days after the accident and that his left thigh just above the knee was not bruised tell me that the defendant’s car hit him on his left hip, not his left thigh. I find that the impact gave the plaintiff a severe body-wide jolt. The impact caused the pre-existing but asymptomatic degenerative disease in his neck to become symptomatic. Absent the accident, the plaintiff may have lived out his entire life without any neck symptoms. The accident caused his neck to be painful, and the pain has persisted to this day. I accept Dr. Vallentyne’s opinion that the plaintiff’s neck symptoms are permanent.

[52] I find that the plaintiff’s memory of his pre-accident back function is faulty. The symptoms of pain that he felt in his lower back in the approximately one year before the accident must have been significant. I find that is so because the plaintiff is clearly not one to go running for medical treatment for minor or transitory complaints – the fact that he held off for five days after the accident before seeking medical help supports that proposition. For that reason, I accept Dr. Vallentyne’s opinion that even if the accident had not happened the plaintiff’s periodically symptomatic low back pain and his pre-existing degenerative disease in that region would have, as Dr. Vallentyne said, required him to “minimize heavy lifting/carrying as well as repetitive bending/twisting”. That said, I find that the accident accelerated and worsened the plaintiff’s low back symptoms; “accelerated” in the sense of causing the pain to be constant rather than periodic, and “worsened” in the sense that the low back pain prevented the plaintiff from participating in his usual activities to a much greater degree than before.

[53] I cannot accept Dr. Grypma’s opinion that the plaintiff’s present symptoms are not related to or caused by the accident. I find that the flaw in Dr. Grypma’s opinion is his dismissal without discussion of the indisputable temporal connection between the onset of the plaintiff’s neck and back symptoms immediately after the accident and his continuing symptoms throughout of pain in exactly those same regions. The link is, of course, the fact that those symptoms have persisted from then until now. The physicians agree that the accident did not accelerate the degeneration of the plaintiff’s neck and back – it follows that the plaintiff’s pains are not a result of increased degeneration. If the symptoms occurred after the accident, it is reasonable to conclude that they were caused by the accident, and the doctors agree on that as well. What Dr. Grypma does not explain is how it is that the plaintiff’s symptoms transitioned from pains caused by the accident to pains caused by his degenerative disease, and how it is that even without the accident, the plaintiff would nevertheless now be suffering from those symptoms. I find that there is a causal link between the accident, the onset of the plaintiff’s neck pain and the worsening of his low back symptoms, and the persistence of those symptoms through to the present day.

[54] Currently the plaintiff’s neck and back symptoms are present on a daily basis. They flare up when the plaintiff does anything strenuous. The symptoms aggravate, frustrate and tire the plaintiff out. They have reduced his enjoyment of recreational activities. The symptoms are a permanent feature of the plaintiff’s life. After discounting the plaintiff’s claim to account for the fact that absent the accident his lower back would have troubled the plaintiff periodically, I find that the proper award for non-pecuniary damages in this case is $75,000.