COURT CASES on PRE-EXISTING INJURIES
REDUCTION in AWARD for PRE-EXISTING INJURIES
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.
 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.
 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.
 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.
 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 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.
 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.
In Laidlaw v. Couturier, the British Columbia Court of Appeal discussed the area of law with respect to a reduction in damages for injuries when there are already pre-existing injuries. The Court of Appeal ordered a new trial in a case where the jury had made an 85% reduction for pre-existing injuries.
 As can be seen from the emphasized portion of the jury charge recited in paragraph 26 of these reasons, the trial judge instructed the jury that if they found that “if the May 2004 accident had not happened there was a material risk that Mr. Laidlaw would nevertheless have suffered from general anxiety or depression or back problems, then you should reduce Mr. Couturier’s liability by the amount of that material risk, whatever you find it to be.”
 The trial judge then instructed the jury by reference to an example, that the jury might find the measurable risk that the accident materially contributed to Mr. Laidlaw’s injuries to be X percent, but that they would “probably not reduce” the damage award by the “full X percent” but by “Y percent or some other” appropriate number.
 The wording of question 3, together with the judge’s charge on causation was overly simplistic. The various conditions from which the plaintiff had suffered previously, and the symptoms to which they gave rise, were not capable of reduction to a single “measurable risk”.
 One, some or none of those previous conditions might have “detrimentally affected the plaintiff in the future”. One or more of those conditions might have affected him at different points in time. The degree to which each such condition might have affected him need not have been identical.
 To lump these variables together into one question and to invite a single mathematical adjustment was unfair and inappropriate.
 Athey was a case with a single identifiable injury, a disc herniation, occurring some months after the accidents giving rise to the plaintiff’s claim. There was a single pre-existing condition, “a history of minor back problems”, which was alleged to have contributed to his injury. I do not read the language in Athey, while appropriate to the kind of case with a single measurable risk, to be transferable to the facts of a more complex case such as this one, which involves the assessment of multiple and distinct measurable risks.
 The contributing effects of a pre-existing condition to a subsequent injury can be taken into account if the trier of fact considers that to be appropriate. In many cases, it may well be a relevant factor for the jury to consider. However, the jury should be told that the effect to be given to such a “measurable risk” should be carefully related to the specific facts of the case. In a case such as this, where there were various pre-existing conditions, and where it was uncertain if, when, or to what degree those conditions might adversely affect the plaintiff in future, it was an error to invite a general reduction across the board, as is required by question 3.
 In my opinion, the first portion of the charge on causation and in question 3 directed the jury to undertake a formulaic approach to the assessment of damages attributable to the defendant rather than directing them to consider, in a nuanced fashion, all of the contingencies and risks inherent in Mr. Laidlaw’s individual circumstances and to arrive at a global assessment of damages. Question sheets such as this one that ask the jury to answer questions that tend to reveal their deliberations are not helpful, invite appeals, and are to be avoided.
 It must be said that the second portion of the trial judge’s written instructions did not mirror the wording in question 3. However, it stands to reason that by the time the jury was completing its deliberations, their focus must have been on the question sheet. Question 3 is clear in its terms but, unfortunately, incorrect in its legal effect. In my view, it amounts to misdirection.
ACCELERATION OF a PRE-EXISTING, PROGRESSIVE CONDITION
In Kaur v Bhoey, the Plaintiff had a pre-existing neck condition known as osteoporosis with spinal compression fractures. Although the Court ruled that there was a measurable risk that her pre-existing injuries would have affected her even without the motor vehicle accident, the Court still awarded some damages.
 The plaintiff had pre-existing medical conditions that may affect the value of her claim from this accident and that require consideration of the legal principles confirmed by the Supreme Court of Canada in Athey v. Leonati,  3 S.C.R. 458.
 Athey confirms that an injury is caused by the defendant’s negligence as long as that negligence materially contributes to the injury even though there may be other causes that contribute to the injury as well.
 However, on the issue of the proper assessment of a plaintiff’s damages, Athey says, commencing at para. 35 on p. 473:
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…
 With the plaintiff having a history of osteoporosis, with spinal compression fractures and incidents of back pain which Dr. Panesar referred to in 2001 as chronic, and with her advancing age, I am satisfied that the award for general damages must be discounted for the significant risk that her progressive osteoporosis would have led to more back fractures and more back pain and kyphosis, in any event…
 I do not find the cases cited by either counsel to be particularly helpful on this issue of application of the Athey principles. The cases cited by plaintiff’s counsel do not deal with pre-existing medical conditions in the plaintiffs in those cases. The cases cited by defence counsel either give limited guidance on the application of the Athey principles or do not deal with pre-existing medical conditions either.
 Taking into account here that the plaintiff is much older with a shorter life expectancy, and has pre-existing medical issues directly related to her present problem of low back pain, including progressive arthritis, I conclude there is a measurable risk that her pre-existing medical issues would have detrimentally affected her physically in the future regardless of the defendants’ negligence in this motor vehicle accident, and I assess her general damages for pain and suffering from this motor vehicle accident at $50,000.
PRE-EXISTING, YET ASYMPTOMATIC, CONDITIONS
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.
 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:
 … 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.
 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.
 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.
 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 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.
 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.
 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.
 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 :
 The defendants say, relying on Athey v. Leonati, 1996 CanLII 183 (SCC),  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]
 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:
 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.
 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.
 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 Zigawe v Rance, the Plaintiff had pre-existing, yet asymptomatic, wrist arthritis. The wrist became more painful after the motor vehicle accident. The court reduced the amount of damages for pain and suffering by 10% to account for the possibility that the wrist would have become painful anyways, even without the motor vehicle accident. The Court rejected the argument made by the lawyer for ICBC that the arthritis arose independently of the accident.
 On the whole of the evidence, and in particular that of Dr. Shuckett who agreed the plaintiff’s current overall condition was “not inconsistent with” rheumatoid arthritis, I find it likely that the accident exacerbated pre-existing, but asymptomatic tenosynovitis related to rheumatoid arthritis in the plaintiff’s left wrist. While it is an atypical presentation in that the condition is not mirrored in the right wrist, this finding makes the most sense. It is proven on the balance of probabilities.
 I do not accept the defendant’s submission that the rheumatoid arthritis in the left wrist arose independently of the accident. In my view such a conclusion is not consistent with its temporal connection to the accident, and Dr. Shuckett’s evidence that the inflammation that accompanies this sub-acute condition can take weeks or months to develop…
 Thus, on the totality of the evidence, the accident at least exacerbated the pre-existing tenosynovitis related to rheumatoid arthritis in the left wrist, given its history.
 The swelling and significant, long standing pain has not improved since the accident.
 Thus, I find the accident activated the plaintiff’s pre-existing condition in a wrist that was asymptomatic for some years before the accident. The left wrist may indeed have remained asymptomatic of tenosynovitis related to rheumatoid arthritis for many years had the accident not intervened. It may have not manifested into rheumatoid arthritis, given Dr. Shuckett’s evidence as to the nature of that condition.