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BC Court of Appeal – "Costs Thrown Away" Should Routinely Be Ordered For Late Adjournments

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published today by the BC Court of Appeal finding that ‘costs thrown away’ should ordinarily be ordered against a party obtaining a late trial adjournment.
In today’s case (Bolin v. Lylick) the Plaintiff sued for damages from personal injuries.  6 weeks prior to trial she successfully applied to adjourn it after having switched lawyers.  The Court of Appeal noted there was nothing wrong with this however found that the adjournment was prejudicial to the Defendants and this should have been remedied with an order of costs thrown away.  In discussing this norm the BC Court of Appeal provided the following reasons:
[19]       In these circumstances, there is no apparent reason to depart from the usual approach to costs in circumstances of a late adjournment; in other words, there is no apparent reason not to relieve the defendants from the prejudice of the late adjournment by an award of costs thrown away. It is to be remembered that even though the judge did not attribute fault to the plaintiff in the adjournment application, in asking for an adjournment the plaintiff was asking for an indulgence from the court that had adverse consequences for the defendants. I would add to the order made for the adjournment a term that the defendants are entitled to their costs of trial preparation thrown away. I would not define the degree of such wasted costs in the circumstances of this case as was done, for example in Dhillon v. Foster, 2004 BCSC 1782, to which we have been referred, and I note further, that what fits within the waste captured by the term “costs thrown away” is properly a matter for the trial court’s determination.

$200,000 and $50,000 Non-Pecuniary Assessments for Carbon Monoxide Poisoning

Written by admin on . Posted in Uncategorized.

Reasons for judgment were published today by the BC Supreme Court, Vancouver REgistry, assessing damages for carbon monoxide poisoning that aggravated pre-existing brain abnormalities.
In today’s case (Edwards v. Parkinson’s Heating Ltd.) the Plaintiffs were a married couple who were exposed to carbon monoxide emissions from their living room fireplace.  The Court found that this exposure was caused by a Defendant’s negligent servicing of the fireplace.
Both Plaintiff’s had pre-existing brain abnormalities but the Court found the poisoning aggravated these.  In assessing non-pecuniary damages at $200,000 and $50,000 for the Plaintiffs Mr. Justice Hinkson provided the following reasons:

[466]     A summary of my key findings is as follows:

  1. Kenorah owed the plaintiffs a duty of care with respect to the 2008 reinstallation of the fireplace. Parkinson’s owed the plaintiffs duties of care with respect to both the 2008 reinstallation and the subsequent servicing of the fireplace;
  2. The standard of care for installing and servicing the fireplace required the following:

(a)   Reasonably inspect the fireplace to ensure it was:

(i)   operating in accordance with the manufacturer’s specifications (per s. 57 of the Gas Safety Regulations); and

(ii)  was venting in a safe and proper manner (per s. 57 of the Gas Safety Regulations);

(b)   Reasonably test for CO emissions using a suitable CO detector;

(c)   Repair or remediate any defects or problems that would interfere with the safe operation and venting of the fireplace.

  1. Kenorah did not breach the standard of care with respect to the 2008 reinstallation. Parkinson’s breached the standard of care with respect to subsequent servicing of the fireplace. The breaches occurred on February 10, 2009, and November 13, 2009;
  2. As a result of Parkinson’s breach that occurred on November 13, 2009, the plaintiffs were exposed to CO in their residence, from that date until January 4, 2010, at levels above 50 ppm but less that 1000 ppm;
  3. Prior to the CO exposure, Dr. Pinel had brain abnormalities, which included hippocampal atrophy and white matter changes. He also had behavioural and cognitive problems, such as forgetfulness, fatigue, and mild depression;
  4. Prior to the CO exposure, Ms. Edwards had brain abnormalities, which included hippocampal atrophy and white matter changes. She also had anxiety, depression, and mood disorders, and cognitive problems involving verbal and visual learning.
  5. As a result of the CO exposure, both Dr. Pinel’s and Ms. Edwards’s hippocampal atrophies were accelerated. The CO exposure caused Dr. Pinel’s depression to worsen, and Ms. Edwards’s depression, anxiety, and mood disorders to worsen.

[467]     The damages awarded to the plaintiffs are as follows:

a. Non-pecuniary damages (Ms. Edwards) $  50,000.00
b. Non-pecuniary damages (Dr. Pinel) $ 200,000.00
c. Special damages $5,792.00
d. Cost of care $ 53,000.00
e. HCCRA award $ 2,624,57

$175,000 Non-Pecuniary Assessment for Concussion With Permanently Disabling Consquences

Written by admin on . Posted in ICBC Brain Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a fall causing a permanent head injury.
In today’s case (Harrison v. Loblaws, Inc.) the Plaintiff was shopping in the Defendant’s store when she slipped on a large pool of liquid laundry detergent which was on the floor.  She struck her head on the floor and suffered a concussive injury from which she did not recover.
The Defendant denied fault but the Court found the Defendant failed to establish that they followed their protocols to ensure the store was in reasonably safe condition for customers.
The Court accepted that the Plaintiff  developed symptoms “consistent with post-traumatic brain injury syndromes or post-concussion syndromes” and that these were permanently disabling.  In assessing non-pecuniary damages at $175,000 Mr. Justice Basran provided the following reasons:

[89]         The evidence of Ms. Harrison, and those who knew and worked with her both before and after her accident, is that she sustained injuries that have dramatically impacted every aspect of her life.  Whereas before the accident she was independent, active and optimistic, she is now a mere shadow of her former self.  She is unable to work or enjoy any of the activities she used to do before the accident, including walking, swimming, and travelling.  She is dependent on her son and is far less socially engaged than she once was. 

[90]         Her prognosis is poor and any further improvement in her condition is unlikely.  Taking into account the variety and longevity of these symptoms, her enjoyment of life has been dramatically reduced. ..

[96]         Ms. Harrison was 48 at the time of the accident.  She suffered a significant head injury and to this day, suffers from serious headaches and other symptoms which I have detailed.  She has a permanent disability and she has suffered from a loss of confidence and a loss of enjoyment of life as a result of her accident.  Her physical and mental abilities have clearly been impaired.  As described earlier, she is no longer able to walk long distances nor is she able to swim.  Her sensitivities to light, sound, and motion have dramatically affected her.  She has clearly experienced a serious diminishment in the quality and enjoyment of her life.  I note that Ms. Harrison retains a certain degree of optimism about the future and throughout this ordeal, she has taken significant steps to try to improve her circumstances.

[97]         Having found Ms. Harrison to be competitively unemployable and suffering from symptoms that appear to be permanent, I must make an award that addresses her particular condition and recognizes the nature and extent of her loss.  On that basis, I conclude that an award of $175,000 satisfies those principles.

Court Critical of Doctor's "Self Diagnosed" Personal Injury Claim

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, making critical findings in a personal injury claim.
In today’s case (Nagaria v. Dhaliwal) the Plaintiff, a physician, was injured in a 2014 rear end collision.  The Defendant admitted fault.  The Plaintiff received little medical care following the crash instead relying largely on self diagnosis and self treatment.  The Court rejected the severity of the Plaintiff’s advanced claim finding “the plaintiff is not a reliable witness nor a competent historian. There is considerable exaggeration in his evidence.”
The Court criticized the Plaintiff’s self-treatment and credibility with the following comments:

[42]         The plaintiff repeatedly testified that he chose not to follow the course of medical treatment against the advice of Dr. Strovski because he said that it would leave his patients wanting for his medical care. Leaving aside prescribed medication entirely, I find this explanation to be inconsistent with the policy of the College of Physicians on “Treating Self” and contrary to the simple skills of organization that following the prescribed treatment regime would have required.

[43]         The “Treating Self” policy is clear that self-treatment may affect the objectivity of the medical treatment which a doctor provides. Exceptions, according to the policy, may be made when “the medical condition is minor or emergent; and no other physician is readily available.” Curiously, when this passage was read to the plaintiff during cross-examination, he ignored the above quoted lines and spoke only about self-prescribing narcotic medications which had nothing to do with the case at bar. The plaintiff was evasive in failing to respond to the fact he had self-diagnosed a soft tissue injury and self-prescribed a course of treatment. The circumstances did not involve an emergent situation. The alleged medical condition was not minor; as had it been a minor condition, this action would not have been commenced in this Court. I do not accept the explanation that following the advice of Dr. Strovski would have left the plaintiff unable to practice medicine or otherwise provide services to his patients.

…

[46]         In this case, the plaintiff did not follow the policy of his profession as he failed to record any of his own symptoms, their occurrence, development, or resolution. Further, he refused a prescribed treatment regime in favour of self-treatment. As noted above, the explanation for self-treatment by the plaintiff lacks objectivity, the very flaw recognized by the College of Physicians and Surgeons.

Mr. Justice Ball found the Plaintiff suffered only minor soft tissue injury and assessed damages at $19,000.  In reaching this assessment the Court provided the following reasons:

[81]         The plaintiff was not a reliable nor a credible witness for the reasons which I have outlined above. The prognosis of Dr. Rickards — if the prescribed treatment plan were followed — expected the reduction or resolution of the symptoms of the plaintiff within a two to four month period. On the evidence before this Court, I am satisfied that the injury caused by the accident, which has been proven on a balance of probabilities, was a minor soft tissue injury. Had the prescribed treatment regime — initially prescribed by Dr. Strovski in 2011 — been followed by the plaintiff, the injury and its symptoms would have resolved in the two to four month period suggested by Dr. Rickards. The failure of the plaintiff to follow the prescribed treatment regime was unreasonable as found above, and constitutes a failure to mitigate.

[82]         The soft tissue injury did not interfere with the ability of the plaintiff to continue his medical practice six days a week or otherwise interfere with his chosen medical speciality. The activities of the plaintiff outside of his practice — sporting activities in particular — have been reduced to some degree, but it is not possible to speculate how those activities have been affected by the soft tissue injury given the lack of evidence on this topic. Further, without completion of the prescribed treatment regime by the plaintiff, the extent and duration of the reduction of activities cannot be predicted and has not been proven.

[83]          In these circumstance, and after a review of the authorities cited above and by counsel, the award of non-pecuniary damages in this case is $19,000. The failure of the plaintiff to mitigate his loss will result in a reduction of that award by ten per cent (10%). The total award for non-pecuniary damages is therefore $17,100. Based on my findings above, the claim for special damages has not been made out and there will accordingly be no award of special damages in this case.

$175,000 Non-Pecuniary Assessment for Brain Injury Leading to Early Onset Dementia

Written by admin on . Posted in ICBC Brain Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver REgistry, assessing damages for a traumatic brain injury.
In today’s case (Weaver v. Pollock) the Plaintiff was injured in a 2010 collision that the Defendants accepted responsibility for.  The Plaintiff suffered a traumatic brain injury and ultimately was diagnosed with early onset dementia linked to this injury.  In assessing non-pecuniary damages at $175,000 Mr. Justice Burnyeat provided the following reasons:

[100]     I am satisfied that it is now established that mild traumatic brain injury or subdural haematoma can lead to Alzheimer’s disease, frontotemporal dementia, or an increased risk of dementia.

[101]     In his December 1, 2010 statement to ICBC, Mr. Weaver indicated that he had lost consciousness after the Collision. In his report, Dr. O’Shaughnessy assumes that Mr. Weaver lost consciousness but does not indicate how he arrived at that conclusion. On the other hand but without attribution, the notes of Dr. Burtt and Ms. Hubbard indicate no loss of consciousness.

[102]     I find that Mr. Weaver has proven on a balance of probabilities that he was unconscious for more than a several seconds as a result of the Collision. In this regard, I am satisfied that what Ms. Cotton observed when she came to the side of his truck is accurate and that Mr. Weaver was “kind of like waking”. I am satisfied that what Ms. Cotton observed was Mr. Weaver regaining consciousness.

[103]     Even if I am found to be incorrect in arriving at the conclusion that Mr. Weaver lost consciousness for a short period, I am satisfied that he did suffer a traumatic brain injury. In this regard, I adopt the indicia set out by Dr. Kiraly that a traumatically induced psychological disruption of brain function (a traumatic brain injury) can be manifested by “at least one” of any period of loss of consciousness, of loss of memory for events immediately before or after the Collison, and of alteration in mental state at the time of the Collision. I find that Mr. Weave manifested all three of those factors.

[104]     Taking into account the age of Mr. Weaver, I give very little weight to the decisions in Nahal, Goguen, and Watkins relied upon by the Defendants. I find that the decision in Wong, supra, most closely represents the facts presented by the effects of the collision on Mr. Weaver even though there was finding in Wong that the accident accelerated the onset of dementia. Here, I could find that there was no pre-disposition to dementia so that an award of non-pecuniary damages here should take that into account but not the advanced age of Ms. Wong.

[105]     Taking into account the increased risk factors in the future as set out in the opinion of Dr. Kiraly, the severity and duration of the pain at the back of his head, his shoulder and his chest, the impairment of his life, the impairment of his mental abilities, the loss of his lifestyle, the failure of his memory and ability to concentrate, the susceptibility and greater risk associated with Stage Four dementia, the impairment of his social, occupational, recreational function, and his age, I am satisfied that an assessment of non-pecuniary damages of $175,000 should be made.

ICBC Allowed To Raise Late "WCB Defense" On Undertaking to Pay Equivalent Benefits

Written by admin on . Posted in BCSC Civil Rule 6.

Interesting reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, allowing a Defendant to make a late amendment to their pleadings to raise a WCB defense but in doing so the Court made the Defendant’s insurer promise to pay equivalent benefits to the Plaintiff should the defense succeed.
In today’s case (Roberts v. Pearson) the Plaintiff was involved in a collision and sued for damages.  More than three years after the crash the Defendant wished to raise, for the first time, the “WCB Defense”, namely an allegation that both parties were in the course of employment at the time of the crash thus stripping the Plaintiff’s right to sue and forcing him to rely on WCB for compensation.
The court granted the amendment.  However the court noted that since the limitation to seek WCB benefits expired the Plaintiff may have their right to sue stripped and be left with no recourse from WCB.  The court made the amendment conditional on the Defendant’s insurer “providing an undertaking that if the Workers Compensation Board determines that it has jurisdiction but refuses to extend the limitation period to allow the plaintiff benefits from the date of the accident, the insurance company will pay the equivalent of any benefits the plaintiff would have received save for the delay in making the application to the Board“.
In finding this result just Master Wilson provided the following reasons:

[32]         In this case, the first the plaintiff was aware that the defendant Pearson was working at the time of the accident was February 6, the same date Pearson advised that he took the position the plaintiff was also working. The s. 10 Defence is only applicable if both the plaintiff and the defendant were working. Even if the plaintiff were working at the time of the accident, he would not have known there was a possible bar to his claim until he became aware the defendant was also working.

[33]         The defendants also say that the undertaking should not be imposed because its imposition in Brzozowski and Eugenio was due to the delay between when the defendant was aware of a possible s. 10 Defence and when the application was actually brought. I do not read those cases that way. If the court’s concern had been the delay in bringing the application to amend the pleadings, the undertaking would presumably have only needed to address the prejudice resulting from when the defendant became aware of the s. 10 Defence and the filing of the application to amend.

[34]         The undertakings in Brzozowski and Eugenio are not so limited. Those undertakings required the defendant insurer to undertake to pay the equivalent of any benefits the plaintiff would have received but for the delay in making the application to the Workers Compensation Board without reference to the application to amend. I conclude that the undertaking was to address the prejudice to the plaintiff caused by the fact that the s. 10 Defence was raised after the expiration of the presumptive limitation period in s. 55(1) of the Workers Compensation Act.

[35]         Finally, the defendants say that if I am inclined to permit the amendment conditional upon the undertaking, that I should instead adjourn the application in order that the defendants have an opportunity to review the plaintiff’s entire employment file, which they say I should order produced at this time. I am not prepared to do this for two reasons:

a)    Production of the employment file would not be determinative of whether the plaintiff was acting within the scope of his employment at the time of the accident; and

b)    The determination of whether or not a person such as the plaintiff was within the scope of their employment is a matter within the sole jurisdiction of the Workers Compensation Board and is thus not something this court has the authority to decide.

[36]         In the circumstances, I am prepared to permit the defendants to amend their response to civil claim, conditional on their insurer providing an undertaking that if the Workers Compensation Board determines that it has jurisdiction but refuses to extend the limitation period to allow the plaintiff benefits from the date of the accident, the insurance company will pay the equivalent of any benefits the plaintiff would have received save for the delay in making the application to the Board, less any benefits paid to the plaintiff pursuant to Part 7.

[37]         The reference to benefits commencing at the date of the accident is to address the plaintiff’s concern that since more than three years has elapsed, there is a risk pursuant to s. 55(3.1) of the Workers Compensation Act that benefits would only be paid from the date of the application. This may or may not be a concern given that the plaintiff did not cease work entirely until 2016. The reference to Part 7 benefits already paid addresses the concern of the defendants as to the potential for double recovery.

[38]         In keeping with the court’s decisions in Brzozowski and Eugenio, costs of this application will be in the cause.

$85,000 Non-Pecuniary Assessment for Chronic PTSD and Post Concussive Issues

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Headache Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic issues following a concussive injury.
In today’s case (Curtiss v. The Corporation of the District of West Vancouver) the Plaintiff fell into an open meter box on a sidewalk owned by the Defendant.  The Defendant denied liability but was found negligent at trial.  The fall resulted in a concussive injury with post concussive difficulties and PTSD.  The Plaintiff was expected to have lingering symptoms into the future.  In assessing non-pecuniary damages at $85,000 Mr. Justice Marchand provided the following reasons:

[92]         As a result of her fall, Ms. Curtiss suffered cuts, scrapes and/or bruising to various parts of her body, including her forehead, nose, upper lip, hands, lower legs and left inner thigh. She also experienced balance issues, dizziness and headaches.   Ms. Curtiss’ cuts, scrapes and bruises all healed within the first one to three months.  Her throbbing headaches lasted the better part of a year, and she still gets headaches when she experiences high levels of stress. She still has occasional balance problems.

[93]         Ms. Curtiss has received psychological counselling and acupuncture treatments since her fall and her condition has improved over time. She has recently returned to daily walking and working in her garden. Nevertheless, her self-reports, and the reports of those who are close to her, clearly establish that Ms. Curtiss is not the same person she was prior to her fall. She has trouble sleeping. She has become anxious and forgetful. She is less confident and self-sufficient. She is no longer able to multi-task. She is less active, occasionally walks with a cane, looks down during walks and gardens far less.

[94]         Two family physicians were involved in Ms. Curtiss’ post-accident care, Drs. Dean Brown and Brian Brodie. Based on her loss of consciousness, memory loss, headaches, dizziness, imbalance, agitation and anxiety, both diagnosed Ms. Curtiss as having suffered a concussion as a result of her fall. In his April 7, 2017 report, Dr. Brown’s prognosis was that Ms. Curtiss’ symptoms would gradually improve with a full resolution within a year or so. In his September 8, 2017 report, Dr. Brodie’s prognosis was that Ms. Curtiss was highly likely to “go on to suffer some symptoms of post traumatic disorder”.

[95]         Ms. Curtiss also submitted a report dated August 25, 2017 prepared by Registered Psychologist, Dr. William Koch. As a result of Ms. Curtiss’ vigilance to danger when walking or driving, excessive startle response, avoidance of conversations about her fall, disturbed sleep, and anxiety-related concentration deficits, Dr. Koch has concluded it is probable that Ms. Curtiss suffers a “subsyndromal” Posttraumatic Stress Disorder (“PTSD”). Dr. Koch noted a number of positive and negative prognostic indicators in Ms. Curtiss’ case. He concluded that Ms. Curtiss’ prognosis for further improvement is “negative” unless she receives further psychological treatment. Dr. Koch recommended a further 20 hours of therapy, which Ms. Curtiss had started by the time of trial.

[96]         In cross-examination, Dr. Koch agreed with a list of further positive prognostic indicators put to him by counsel for the District. Specifically, Dr. Koch agreed that the following were positive prognostic indicators: Ms. Curtiss was open to treatment; Ms. Curtiss had returned to treatment; Ms. Curtiss reported benefitting from treatment; Ms. Curtiss had returned to daily walking; and Ms. Curtiss would soon no longer be involved in litigation. On the last point, Dr. Koch indicated that while litigation stress may soon stop, “other stressors may pop up.”

[97]         Based on all of the evidence, I accept that Ms. Curtiss’ life has been significantly adversely affected by her fall. Though her cuts, scrapes and bruises healed relatively quickly, her post-concussion symptoms and subsyndromal PTSD have persisted. While I have optimism for further improvement, given the length of time her symptoms have persisted, the efforts she has already put into her recovery and her age, I doubt that Ms. Curtiss will ever fully return to her pre-accident condition…

[109]     The cases cited by counsel support an award of non-pecuniary damages within the range suggested by Ms. Curtiss of $75,000 to $90,000. In my view, an award of $85,000 will adequately compensate Ms. Curtiss for the profound impact her fall has had on her physical and emotional wellbeing. Before her fall, Ms. Curtiss was an exceptionally happy, active and productive 74-year-old woman. The accident, however, caused a significant decline in her performance at work, her level of activity, her confidence in herself, and the joy in her life. As I have stated, in my view, though Ms. Curtiss will continue to make improvements, she will not fully return to her pre-accident condition.

Court Rules Home Owners Have No Duty of Care When Tenants Dog Injures Others

Written by admin on . Posted in Occupier's liability claims.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the legal liability of a home owner whose tenant’s pet injures another.
In today’s case (Barlow v. Waterson) the Plaintiff alleged that a dog owned by the Defendant was off leash and caused her injury.  In the course of the lawsuit the Plaintiff sought to add the homeowner of the residence where the Defendant was residing as an additional Defendant.  The court rejected this application finding that even if all the allegations the Plaintiff was advancing were true the Defendant home owner owed no duty of care in the circumstances.  In dismissing the application Master Wilson provided the following reasons:

[13]         In this case, Mr. Seifi is not an occupier of the premises, having yielded control when he rented them to Ms. Waterson. Ms. Waterson was not Mr. Seifi’s agent as was found in Hindley. Mr. Seifi does not own the dog and therefore does not exercise control over the dog. He is not an occupier of Prospect Avenue, which presumably belongs to the municipality. He had no duty to control the dog owned by the defendant Waterson and had no ability or obligation to control or to limit activities on the property, let alone activities on the road adjacent to the property. To the extent there may be a bylaw regarding off leash dogs, that would be Ms. Waterson’s concern.

[14]         As for the allegation regarding adequate fencing in the proposed amended notice of civil claim, I agree with counsel for Mr. Seifi that there is no allegation that the dog here even escaped. In fact, the plaintiff’s evidence provided by way of her daughter’s email suggests that Ms. Waterson would routinely permit the dog to roam freely. This would suggest a failure to supervise or control the dog by Ms. Waterson as opposed to a failure to provide adequate fencing, a duty that would have been owed to Ms. Waterson but was not alleged by her in her Response to Civil Claim.

[15]         In the circumstances, although the threshold is a low one, I am not satisfied that Mr. Seifi owed any duty of care in this case to the plaintiff, and the application is dismissed.

$125,000 Non-Pecuniary Assessment for Neck and Back Fractures

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

Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, assessing damages for a neck and back fracture caused by a vehicle collision.
In today’s case (Sommerville v. Munro) the Plaintiff was involved in a near head-on collision in 2015.  The Defendant admitted fault.  The crash caused a fracture to the Plaintiff’s neck at the C2 level and in his low back at the L4 vertebrae.  The Plaintiff was left with chronic and limiting back pain following the crash.
ICBC argued he would have been saddled with similar problems even if the crash never happened.  The Court found this position unpersuasive.  In assessing non-pecuniary damages at $125,000 Mr. Justice Smith provided the following reasons:

[17]        There is no question that the plaintiff suffered major trauma in the accident. The defendants do not dispute his evidence of symptoms and limitations, but say that he is overweight, in his sixties, and was previously engaged in back-breaking labour despite pre-existing back problems. They say there is at least a measurable risk that he would have suffered similar back pain even if the accident had never happened.

[18]        The defendants rely on the opinion of Dr. Julio Padilla, a neurosurgeon, whose report says the accident disabled the plaintiff for at least six months, but the spinal fractures are stable and the ongoing pain is the result of the progressing, pre-existing degenerative condition.

[19]        On cross-examination, Dr. Padilla agreed that, as a matter of logic, the accident likely contributed to the plaintiff’s current pain, but the degree of that contribution is impossible to quantify. He also agreed that it is impossible to predict when degenerative changes shown on an x-ray or CT scan will become symptomatic and it is reasonable to assume trauma will cause symptoms to appear sooner than they otherwise would.

[20]        In closing argument, counsel for the defendants conceded that the accident “triggered” the onset of pain.

[21]        Dr. Helper agrees there are multiple causes for the plaintiff’s current pain, but injuries caused by the accident are “a significant contributing factor” to the plaintiff’s back and leg pain. Although there was a previous history of some low back pain, he says the plaintiff would be unlikely to have his current symptoms but for the accident.

[22]        Dr. Helper relies in part on the fact that the facet block injections provided some relief. That shows the lumbar facet joints are a significant source of the plaintiff’s pain, which is consistent with the spinal fracture he sustained in the accident. He said the degenerative or arthritic changes in the low back would not necessarily have caused pain to the facet joints in the absence of the accident.

[23]        While Dr. Helper said that a degenerative spine can become painful with trauma, he agreed on cross-examination that such trauma could also come from activities like lifting or twisting.

[24]        Based on the medical evidence, it is likely that the plaintiff’s current pain comes partly from areas of the spine injured in the accident and partly from areas that were already compromised. However, I also accept the plaintiff’s evidence that, in the years between his retirement and the accident, any back pain he had was not significant. It clearly did not limit his activities.

[25]        The fact that severe back pain began so soon after the accident supports the inference, which the defendants concede, that the accident caused the pre-existing condition to become symptomatic. While the plaintiff was clearly at risk for increased back pain, there is no evidence that it was likely to develop either as quickly or to the same degree…

[34]        I have considered the cases put forward by both parties and the general considerations referred to in Stapley and find an appropriate award of non-pecuniary damages in this case to be $150,000, less a 10% reduction for the pre-existing condition. The net award for non-pecuniary loss is therefore $135,000.