Penland v. Lofting,


2008 BCSC 507

Date: 20080424
Docket: M104175
Registry: New Westminster


Janice Penland



Michael E. Lofting


Before: The Honourable Madam Justice MacKenzie

Reasons for Judgment

Counsel for the Plaintiff:

Neil A. Mulholland

Counsel for the Defendant:

Allan W. Watchorn

Date and Place of Trial/Hearing:

April 3, 4, and 9, 2008


New Westminster & Vancouver, B.C.

[1]                The Plaintiff, Janice Penland, claims damages for personal injuries sustained in a motor vehicle accident (the “accident”) on September 16, 2005.  The Plaintiff was driving her subcompact Toyota Tercel north on 200th Street in Langley, British Columbia when the Defendant abruptly rear-ended her in a half-tonne Ford Ranger pick-up truck.

[2]                The Plaintiff had slowed down at an area where there was a dip in the road and traffic was funnelled into the inside of two northbound lanes.  While the Defendant described the impact as a bump, it was more severe to the Plaintiff who was hit from behind by a larger vehicle.

[3]                The Plaintiff sustained high mild to low moderate soft-tissue injuries, some of which persist and for which recovery has currently plateaued.

[4]                Liability is admitted.

[5]                There are two main areas of dispute in this case.  First, given the Plaintiff’s pre-existing osteoarthritis, should the assessment of non-pecuniary damages be based upon the “crumbling skull” doctrine: Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235.  Second, if the Plaintiff is entitled to damages for loss of future earning capacity.

[6]                The Plaintiff seeks non-pecuniary damages in the range of $35,000 - $40,000.  The Defendant says after deduction to account for her pre-existing osteoarthritis which the accident exacerbated, the range should be $15,000 - $25,000.

[7]                There is a minor dispute about the amount of damages the Plaintiff suffered for past loss of income.  I find that the Plaintiff missed eleven weeks and one day of work at Home Depot as a result of her injuries, and base my award on the parties’ agreement that the Plaintiff averaged 33 hours of work per week, earning ten dollars per hour.  Also, she is entitled to compensation for 60 missed hours of work due to her graduated return to work.  I also award damages for loss of income for the period she was unemployed between leaving Home Depot and beginning work at the Days Inn.

[8]                Special damages of $400 are agreed upon and I make that award.

[9]                I do not find the Plaintiff has proven a loss or impairment of her earning capacity as a capital asset, and make no award under that head of damages.

[10]            I do award her $500 for cost of future care the Defendant concedes is reasonable for a six month gym membership with several sessions with a personal trainer.

[11]            These are my reasons.


[12]            Fifty-five year old Janice Penland, the Plaintiff, has lived in a condominium in Langley since October 2006.  When the accident occurred, she lived in Langley on 200th Street in a double wide trailer with a large end lot and a big garden.  Photographs of her garden show a well kept large garden with a climbing rose bush, other flowering plants, and a large lawn.  The Plaintiff cut it several times a week using a push gas mower.  She also had a rock garden with a large number of bulbs.  Her garden required constant weeding with bending on hands and knees.  She was very proud of her garden.  She also took care of her neighbour’s yard.  The Plaintiff lived with her seventy-eight year old mother, Margaret Petersen.

Pre-Accident Activities

[13]            Before the accident, the Plaintiff routinely walked several miles a day two to three times a week.  She worked in her garden on days off from work.  She has two adult children and three grandchildren with whom she liked to play in the park and other activities in her own yard including badminton and ball.  She missed the October 3, 2005 birth of her third grandchild in Victoria because she was in too much pain to consider travelling.

[14]            After the accident, she could no longer work in the yard.  Her injuries meant she could no longer rake and weed or tend the flowers.  The Plaintiff had to move a year and a half ago into a condominium which required a mortgage because she could no longer keep up the garden.

[15]            The condominium does not require the heavy vacuuming that she previously did twice a week before the accident.

Pre-Accident Employment

[16]            Before the accident, the Plaintiff worked at Home Depot in Langley as a cashier level one since February 2005.  The work required her to do some lifting, carrying and moving of a variety of items connected to building including paint cans and cement and fertilizer bags.  The Plaintiff never had problems moving things before the accident.

[17]            The most difficult part of work after the accident was standing one place at the till.

[18]            It is common ground the Plaintiff earned $10 an hour at Home Depot and averaged 33 hours per week.

The Motor Vehicle Accident

[19]            The Plaintiff left home at about 10:00 a.m. to go to work on September 16, 2005.  She was driving north on 200th Street in Langley.  The street was being re-surfaced and traffic was funnelled into the median lane next to the center lane.  The two lanes going north became one lane.  The Plaintiff was driving her Toyota Tercel and slowed to 35 to 40 kilometres an hour when she was suddenly hit from behind.  Her car was pushed forward to the left where it came to rest up against the side of the road that was cut away in road work.

[20]            The Plaintiff felt immediate pain and stiffness and had trouble lifting her leg up to the sidewalk.  Her neck was stiff, her head was aching and her lower back was sore and aching.  She drove home with a sore back.  She experienced sharp pain running up her shoulder blade and immediately called her doctor, who was unavailable.  The Plaintiff went to the clinic and saw Dr. Allen in the same office.

[21]            The Plaintiff did not go to work that day.

Post-Accident Employment

[22]            The Plaintiff did not return to work until December 4, 2005, when she returned to light duties at Home Depot.  She would work anywhere from six to eight hours per day before the accident, but on December 4 she worked a four hour shift.  Within a month, she increased her hours.

[23]            The Plaintiff described returning to her regular duties at the end of December as difficult because she could not handle standing.  What Home Depot classified as light duties at the self check-out amounted to standing with little moving around.  The Plaintiff said she could not cope with standing so asked Home Depot to move her back to check-out where she could move around a little.  However, the Plaintiff testified she found that impossible so she left Home Depot on February 20, 2006.  It is important to note however, that in cross-examination, when shown documentation from her personnel file, the Plaintiff admitted that she had not “quit” Home Depot, but had been terminated on February 20 for incidents of “harassment and insubordination” for the brief period between February 17 to 19, 2006.

[24]            When asked about the inconsistency between Home Depot terminating her and her own evidence that she quit, the Plaintiff said it was all the same to her.  She told counsel for the Defendant that she did not deem it necessary to tell him the real reason she left Home Depot when he examined her for discovery.  She said it was all the same to her.  She explained that she was frustrated and angry because of her pain so it made her hard to get along with.

[25]            I find the Plaintiff’s explanation for the inconsistency between her evidence and the reason she left Home Depot unsatisfactory.  While I can accept she was in some pain or discomfort at work which left her frustrated and angry, that is no excuse for misleading the Court as to the manner in which she left.  Being terminated is very different from leaving a job of one’s own volition.  In my view, this inconsistency does to a certain extent taint the Plaintiff’s credibility as to the extent of her pain.

The Progress of the Injuries

[26]            The Plaintiff described the symptoms related to standing in her work at Home Depot post-accident as pain in the lower back and upper back between the shoulder blades.  She testified she would frequently get aches that would start between the shoulder blades and go up behind her right ear and behind the right eye.  She said they were stabbing headaches that would last half an hour to one hour and she would stand for about an hour.

[27]            I do observe the Plaintiff suffered migraines in the past before the accident though she describes these headaches as migraines rather than these post-accident headaches.  I do not find her evidence reliable in terms of any difference between the headaches.  I find she has not proved the headaches were related to the accident because she previously experienced them.

[28]            In any event, the Plaintiff described the repetition of moving merchandise at Home Depot as becoming more difficult such that she could no longer do it.  It got to the point where no matter what she did, nothing would alleviate her pain, so she had to leave Home Depot.  She said she was getting very angry and frustrated.  It affected her work, the people around her and her home life.

[29]            Other symptoms she experienced between the accident and leaving Home Depot included cramps in her legs.  The doctor gave her quinine for leg cramps and spasms.  She was in terrible pain that would generate from her hip.

[30]            The Plaintiff said she slept very little after the accident and while working at Home Depot.  She could not find a comfortable position.  While it has now improved a little, she said her sleep is still not “one hundred percent”.  She was given melatonin to help her sleep.  Now, she has sleep problems four of seven nights.

[31]            The Plaintiff tried ice, heat and Advil between the accident and February 20, 2006 to help her sleep.  Almost every night she had difficulty.  It was worse after she started physiotherapy because of the cramps, spasm and the sensation that her hip was twisted.  She testified she had no difficulty sleeping before the accident, though back problems in 2000 interfered a little.  However, these almost went away with chiropractic treatments.  She had her last chiropractic treatment in the spring of 2000, having pursued the full course of twelve to thirteen treatments that her medical insurance would allow.

[32]            Before the accident, the Plaintiff’s back was generally good, but with some low back pain.  The osteoarthritis symptoms are what prompted the chiropractic treatment starting in October 2003, before the accident.  After, she was able to function normally.  She could work in the garden and stand at work and generally had no problems until after the accident.

[33]            From September 2004 to September 2005, that is one year pre-accident, her back was “pretty good”, although she had the odd twinge.  It was nothing that ice or Advil did not help.  Between September 2004 and September 2005 her family doctor, Dr. Gupta, recommended Robaxacet for spasm.  During that year, she did not miss work or any other activities from back pain.

[34]            The Plaintiff saw Dr. Gupta several days after the accident and at her recommendation, pursued physiotherapy from October 2005 to February 2006.  The physiotherapy helped, but was very painful.  It did not assist her recovery one hundred percent but the Plaintiff was able to get comfortable in bed.  She could sit and stand, but had great difficulty bending over to pick things up, or sitting for any length of time.

[35]            Dr. Gupta prescribed Tramacet, a non-narcotic anti-inflammatory pain medication.  Dr. Allen on the day of the accident had prescribed Robaxisal with codeine, but the Plaintiff did not like the side affects so Dr. Gupta instead prescribed Tramacet.  The Plaintiff only had those two medications and ceased taking the Tramacet on February 20, 2006.  She had non-prescriptive Advil that she alternated with Tylenol and heat.  When she left Home Depot on February 20, 2006, the Plaintiff was only taking Advil and Tylenol.

[36]            The Plaintiff was also prescribed exercises and the heat, and got a mattress topper for her bed.  It helped considerably.  She did this in November 2005.  Dr. Gupta and the physiotherapist prescribed stretching exercises for the upper and lower back and hips at least three times per week.  The Plaintiff said to Dr. Dommisse that she was not doing these stretches when she saw him on January 25, 2008, but that she was walking two to three times a week for about an hour.  She explained at trial that she meant that she was not doing them on the particular day she saw Dr. Dommisse.  I do not know whether she was faithfully doing her stretching exercises or not, and find her evidence somewhat unreliable in that regard given what she told Dr. Dommisse.

[37]            The Plaintiff testified she takes Advil now and heat or ice depending on whether she has been out walking for a long period.  She still takes long walks about twice a week and about once a week uses heat or ice afterwards for her back.

[38]            On January 8, 2008, the Plaintiff underwent tests with an occupational therapist at a clinic called “Back in Motion” for an eight hour discovery about what her limitations were.  There was dexterity testing, testing with weight, pushing and pulling, dismantling an item and putting it back together, with each exercise being done three to four times.  I do not accord much evidentiary value to the “Back in Motion” report.  It is based to a significant degree on the Plaintiff’s self-reporting which I found overall somewhat self-serving, as indicated by her version of the manner in which she left Home Depot, and I do not think her recovery has permanently plateaued.

[39]            The Back in Motion Report represents one day at a point before the litigation, and I find that regular exercise in a gym, with initial guidance of a personal trainer, coupled with motivation to heal, will bring the Plaintiff to her pre-accident condition.  Her condition pre-accident was not perfect as she had some back problems from pre-existing osteoarthritis, but they were intermittent and had no effect on her activities.

[40]            The Plaintiff’s symptoms of pain in the six months following the accident included stiffness and pain in the neck, stiffness and pain between the shoulder blades, upper and lower back pain, headaches and the sensation that her hip had been twisted.

[41]            Six months after the accident she was feeling a bit better without the stress of working and more comfortable but still very stiff and sore in her shoulder blades and had low back and hip pain.

[42]            Nine months after the accident, in June 2006, the Plaintiff started working at the Days Inn and was feeling much better.  She still had some pain, but could sit better.  Mentally and physically she felt better being back at work.

[43]            In October 2006, the Plaintiff and her mother moved from the mobile home to the condominium and at this time, a year after the accident, her symptoms included pain in the lower back and between the shoulders.  She said she still got headaches once or twice a month but felt less stressed without the yard work.  However, she felt she was not “getting out” enough.

[44]            The Plaintiff said she gained a lot of weight from inactivity but was more comfortable as the level of pain had decreased and she was sleeping most nights.  She sometimes got light cramps at night.  I note that the clinical records refute her evidence that she gained a lot of weight from the accident as she went from about 138 pounds to 155 or 156 pounds after her move from Vancouver Island to the mainland before the accident occurred.

[45]            Currently, the Plaintiff still has pain between her shoulder blades but some days it is not bad.  Her hips ache and sometimes she hurts a lot.  Her lower back at present is a little sore after doing a long walk.  She said she feels “pretty good”.  She still has aches between the shoulders, achy hips and leg cramps at night but not all the time.  Significantly, the Plaintiff said she is afraid to do certain activities because she feels she will hurt later.  She takes her time doing house work like cleaning bathrooms and no longer has to vacuum.  She is less depressed since moving into the condo and getting more agile and moving around more, but she still has constant pain in her hips and shoulder blades.  However, she said some days she feels it and others she does not.

[46]            The Plaintiff’s long walks are not as enjoyable as they used to be because she feels very tired in her legs and back afterwards.

Employment after Home Depot

[47]            After leaving Home Depot on February 20, 2006, the Plaintiff next worked at the Days Inn between June 2006 and May 2007, when she transferred to the Ramada Inn.  Her duties at the Days Inn were similar to those at the Ramada Inn as night shift auditor and desk clerk.  She was initially paid $10.75 per hour at the Ramada Inn and now earns $11.00 per hour for a forty hour week.  She has no difficulties at work now and can perform all her duties.  She enjoys going to work every day, working two afternoon shifts from 3:00 p.m. to 11:00 p.m. and three night shifts from 11:00 p.m. to 7:00 a.m.

[48]            Before working at Home Depot she did work for which she was not suited and left that job after a year.

[49]            Before that, the Plaintiff worked at Save-on-Foods Pharmacy as a pharmacist assistant.  She performed this work for eleven years of which three were at Save-on-Foods in Langley and eight years at Wal-Mart in Duncan, on Vancouver Island.  Her job duties as pharmacist assistant were to assist the pharmacist in all pharmaceutical duties.  She worked full time and stood all day without difficulty.

Present and Pre-existing Condition

[50]            The Plaintiff described her current physical condition as “stationery” or as having “plateaued” for about the last six months.  She would like to go to a gym with a personal trainer to work one on one to explore her flexibilities and get back into shape.  She appears motivated to do so.

[51]            The Plaintiff testified she suffered terribly with migraines between 1990 and 2000 when she started menopause.  She was prescribed and took Imitrex monthly and stopped taking it shortly before moving back to the mainland in 2000.  She has had a couple of migraines since then but not severe enough to take Imitrex.  She has not had a migraine in the past year though she says she has had the stabbing pain from the shoulder blade to behind the right eye.

[52]            She agreed that the “onset of her low back pain was approximately November 21, 2000 and on August 14, 2003 had a pinched sciatica nerve and took flexeril and sciatica”.  This went on through to October 8, 2003 per Dr. Wilson’s records.

[53]            Dr. Gupta noted on December 5, 2003 that she was unable to speak due to hyperthyroid.  On January 8, 2004 the doctor noted she woke up from sleep with shortness of breath and the Plaintiff explained that she has asthma and once every couple of months or so she would wake up from sleep for that reason.

[54]            The Plaintiff went for chiropractic treatment October 24, 2003 with a primary complaint of a “dead leg and pain in left hip” that she describes as part of the ongoing back problem she had.  She recalled the doctor saying she had osteoarthritis.  She circled “low back sciatic pain and hip pain” in the chiropractic records.  When she was asked how that compared with today, she responded “it was quite similar”.  I observe that was October 2003, two years before the accident.

[55]            The Plaintiff started seeing the doctor about those complaints of low back sciatic pain and hip pain in August 2003 and agreed that her comments in October 2003 included “tingling left leg and constant pain”.  She marked the bottom of the mid-back to the bottom of the lumbar as locations where she had spasm at that time.

[56]            The Plaintiff agreed that she told Dr. Dommisse on January 25, 2008 that her “interscapular pain is 85% better since the accident”.  She is at present on medication for asthma and on thyroid supplementation unrelated to the accident.


[57]            The Plaintiff’s income tax returns showed that in 2002 she earned $14,459 from Save-On Foods.  She also cashed in a small RRSP at $1,354.

[58]            In 2003 she earned $30,162.

[59]            In 2004 she earned $26,911 and “other income” of $7,059 according to her T4.

[60]            In 2006 she earned $18,941 which represented income from Home Depot up to February 20, 2006 and income from Days Inn.

Pre-Accident Pain

[61]            The Plaintiff fell while skating in the 1980’s and fractured her tail bone and feels the motor vehicle accident aggravated this injury to her tail bone.

[62]            The Plaintiff agreed that between October 2003 and September 2005, before the accident, after physiotherapy and the anti-inflammatory, she was experiencing pain on a scale of five out of ten.  The Plaintiff said she had good days and bad days.

[63]            She had a pre-existing, manifest condition of which her own family doctor, Dr. Gupta, said in her report of October 18, 2007:

It appears that the MVA exacerbated her previous back pain with underlying osteoarthritis.  Any excessive physical activity would cause aggravation of symptoms which may be dealt with icing, anti-inflammatory medications and manual therapy as needed.  No further tests or studies are currently planned.

[64]            In her report, Dr. Gupta noted the Plaintiff has had longstanding problems with her back that she initially complained of in November 2000.  She refers to X-rays in October 2003 that revealed osteoarthritic changes affecting all Lumbar discs especially between L3, L4, L5 and S1.  Her symptoms resolved after anti-inflammatory medications and chiropractic treatment.

[65]            The independent medical doctor, Dr. Dommisse, in his January 25, 2008 report, also says that the Plaintiff’s symptoms “are related to the accident of September 16, 2005 in part.  Her prior history of back problems since November, 2000 is likely contributing to her ongoing symptoms”.

[66]            It was also noted under cross-examination that Dr. Gupta commented in October 2003 that the Plaintiff was doing well on Gabapentin which she remembered taking for her back pain then.

Income Loss after Home Depot

[67]            The Plaintiff sustained income loss after leaving Home Depot before finding her new job at Days Inn.

[68]            She was cross-examined as mentioned on the inconsistency between the real reason she left Home Depot and her evidence that she quit.  On re-examination, she explained that she felt ashamed of the incident described in the termination exhibit and has tried to put it out of her mind.  She felt betrayed and very hurt about the incident with the co-worker who had told her she could “vent” to her.  She has tried to forget about the whole incident.

Evidence of the Plaintiff’s Mother

[69]            Seventy-eight year old Margaret Petersen, the Plaintiff’s mother, generally supported the evidence of the Plaintiff about her change in activities since the accident.  She said the Plaintiff did continue to mow the lawn but only gently and only half the lawn at a time, and did not spend time in the garden as before.  The garden consequently went downhill as it required weeding and cutting.

[70]            Mrs. Petersen also said the condo does not take much upkeep now but the grandchildren do not come over as often as there is no place to play.

Defence Evidence

[71]            The witnesses for the defence were the Defendant Mr. Lofting and two ICBC estimators who described the damage to the Plaintiff’s vehicle.  It cost $2,853 to repair.  The damage consisted of scoring and scratches to the paint on the rear bumper, the rear body panel was pushed in and the trunk lid was pushed.  The upper body or porter panel and end panel had to be pulled in order to straighten the upper panels as part of the repair process.  The left tail light was smashed and the trunk lid had been pulled up.

[72]            The second estimator, Mr. Friedrich, described the damage to the Defendant’s Ford Ranger as damage to the front steel bumper and plastic strip and license plate bracket.  The bumper was misaligned on both sides.


[73]            1.         Should the assessment of non-pecuniary damages be reduced on application of the crumbling skull doctrine?

2.         Is the Plaintiff entitled to damages for loss of future earning capacity?


Plaintiff’s Position

[74]            Counsel for the Plaintiff submits that the key to assessing the extent of the Plaintiff’s injuries is the degree to which they interfere with her ability to function.  She cannot stand for an eight hour shift, or tolerate the sustained bending and crouching required to maintain her garden.  She is limited in what she can lift or carry.

[75]            Counsel says both doctors agree that her symptoms are ongoing, and there is no opinion as to eventual resolution.  Counsel for the Plaintiff also says there is no opinion that her underlying osteoarthritis would have progressed or become more limiting independent of the accident.  Therefore, in his submission, there is no medical opinion to support a “crumbling skull” analysis.  He says the only logical inference from the medical evidence is the Plaintiff’s present condition is a result of the injuries she sustained in the accident.

[76]            The injuries have not resolved, or, as counsel says, the exacerbation has not resolved.  He underscores that no further improvement is predicted by the two doctors, so one can conclude the Plaintiff has suffered a mild degree of permanent partial disability caused by the accident.

[77]            The Plaintiff relies on the case Hamilton v. Vance, 2007 BCSC 1001; Iliopoulous v. Abbinante, 2008 BCSC 336; Gilmour v. Machibroda, 2008 BCSC 260; Corrado v. Mah, 2006 BCSC 1191; Kahle v. Ritter, 2002 BCSC 199; and Wang v. Hu, 2003 BCSC 552 in support of her argument that the appropriate range of damages is as follows:

1.         $35,000 to $40,000 for non-pecuniary damages;

2.         Compensation for loss of income based on work missed at Home Depot and the period of unemployment prior to staring at Days Inn;

3.         $400 for special damages as agreed;

4.         $1,500 for cost of future care; and

5.         $44,000 for impaired future earning capacity/loss of capital asset, based on two years of her average income from 2000 to 2004 which is $22,000 per year.

Defendant’s Position

[78]            Counsel for the Defendant argues that the Plaintiff had a “crumbling skull”, and that her ongoing condition at this point is similar or equal to her pre-accident position.  The defence submits that the court ought to determine the quantum of non-pecuniary damages without regard to her pre-existing condition, and then award a reduced percentage that takes into account her pre-existing condition.  According to the defence, after adjustment is made, the Plaintiff’s non-pecuniary damages should be in the range of $15,000 - $25,000.

[79]            Also, counsel for the Defendant argues that a certain portion of the past loss of income was eleven weeks and one day, rather than eleven and a half weeks as the Plaintiff submits.


Non-pecuniary Damages

[80]            The Plaintiff did confirm excerpts from the clinical records that included two specific periods of low back pain, from November 21, 2000 to an entry January 30, 2001 that said “REVIEW RE BACK PAIN: Unfortunately still having a lot of problems.  Still taking ibuprofen, Tylenol #3 and Flexeril”.

[81]            The record of the second period of low back pain started August 14, 2003 with “Pinched nerve (sciatic)…started few days ago.  Not sure what the trigger is. Walked in mall…Tender lower back and into L buttock.  Sensation reduced L leg”.  There is another reference to back pain/sciatica on August 29, 2003, and on October 8, 2003 is a reference to very “tender low back.  Flexeril T3”.

[82]            She also went to Dr. Gupta October 21, 2003 when she confirmed she was doing well on Gabapentin for back pain.

[83]            The Defendant correctly concedes there is no evidence of a progressive ongoing degenerative condition, but says I can take judicial notice that osteoarthritis is degenerative and progressive.  However, I cannot.  The Supreme Court of Canada has defined the situations where it is appropriate and open to the court to take judicial notice of facts.

[84]            R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458 is the leading case on judicial notice.  In that case, Binnie J. considered the approach the courts have adopted to determine whether it is appropriate to take judicial notice of a particular fact.  He held that the stringent criteria developed by Professor E. M. Morgan in "Judicial Notice" (1943-1944), 57 Harv. L. Rev. 269 and adopted by the Supreme Court of Canada in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 is the “gold standard”, and if those criteria is satisfied, the fact will be judicially noticed.

[85]            The criteria governing judicial notice is reviewed in R. v. Find at para. 48:

Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute.  Facts judicially noticed are not proved by evidence under oath.  Nor are they tested by cross-examination.  Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

[86]            In Spence, Binnie J. noted the distinction between adjudicative facts and legislative or social facts, finding at para. 60 that the “permissible scope of judicial notice should vary according to the nature of the issue under consideration [emphasis in original]”.  He held at para. 61 that “the closer the fact approaches the dispositive issue, the more the court ought to insist on compliance with the stricter Morgan criteria” the court applied in Find.

[87]            Binnie J. found at para. 61 that the court will apply the Morgan criteria, irrespective of the type of fact:

…a review of our jurisprudence suggests that the Court will start with the Morgan criteria, whatever may be the type of "fact" that is sought to be judicially noticed.  The Morgan criteria represent the gold standard and, if satisfied, the "fact" will be judicially noticed, and that is the end of the matter.

[88]            He noted at para. 62 that where the Morgan criteria are not met and the fact is adjudicative, the court will not take judicial notice of it:

If the Morgan criteria are not satisfied, and the fact is "adjudicative" in nature, the fact will not be judicially recognized, and that too is the end of the matter.

[89]            Binnie J. noted at para. 63 that when considering social and legislative facts, the Morgan criteria remain relevant, but are not necessarily conclusive.  He held that “[o]utside the realm of adjudicative fact, the limits of judicial notice are inevitably somewhat elastic”.  However, he found that the Morgan criteria “will have great weight when the legislative fact or social fact approaches the dispositive issue”.

[90]            Finally, he held at para. 65 that where the matter falls between the “high end” where the Morgan criteria apply and the “low end” where the court will proceed “on the basis that the matter is beyond serious controversy”, the court should ask itself:

…whether such "fact" would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used, keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the "fact" to the disposition of the controversy [emphasis in original].

[91]            In this case, whether osteoarthritis is a degenerative and progressive condition is relevant to the issue of whether the Plaintiff has a “crumbling skull”.  Because liability is admitted, this trial only involves the issue of damages.  Accordingly, the question of whether the Plaintiff has a progressive and degenerative disease is central to the disposition of the damages issue and is governed by the more stringent Morgan criteria adopted in Find.

[92]            In my opinion, that osteoarthritis is a progressive and degenerative disease is neither “so notorious or generally accepted as not to be the subject of debate among reasonable persons“, nor is it “capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy”.  Also, I note that even if the less stringent test were applied, it would not be met because whether osteoarthritis is progressive and degenerative could be disputed by reasonable and informed people and this “fact” is central to the disposition of the parties’ dispute.  I do not take judicial notice of it.  This is the subject of medical expertise which requires evidence.

[93]            The Defendant argues that the “crumbling skull” doctrine applies in this case and that the Plaintiff’s non-pecuniary damages should be reduced according.

[94]            Athey v. Leonati is the leading authority on the crumbling skull doctrine.  In Kahle v. Ritter, 2002 BCSC 199, D. Smith J. succinctly reviewed Athey at paras. 91–93:

[91]      A determination of whether Mr. Kahle's ongoing chronic pain condition was caused or materially contributed to by the Defendants' negligence in the accident requires a review of the principles laid down by the Supreme Court of Canada in Athey v. Leonati (1996), 140 D.L.R. (4th) 235. At para. 17 Major J. summarized the causation test as follows:

It is not now necessary, nor has it ever been, for the Plaintiff to establish that the Defendant's negligence was the sole cause of the injury.  There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring.  ...  As long as a Defendant is part of the cause of an injury, the Defendant is liable, even though his act alone was not enough to create the injury.  There is no basis for a reduction of liability because of the existence of other preconditions: Defendants remain liable for all injuries caused or contributed to by their negligence.

[92]      At para. 19, the court held that it was contrary to tort law to apportion liability between tortious and non-tortious causes merely because other causal factors for which the Defendants were not responsible also assisted in producing the harm.

[93]      The court further distinguished between the "thin skull" doctrine and the "crumbling skull" doctrine.  The former doctrine encompasses the principle that the tortfeasor must take his victim as he finds him.  Therefore, if the victim's injuries are more severe or dramatic than they would be for an average person owing to a pre-existing condition, then the tortfeasor remains liable for those injuries.  The latter doctrine recognizes that where a victim has a pre-existing condition he would have experienced in any event, the tortfeasor need only compensate the victim for the additional damage caused by the negligence but not the pre-existing damage.  If there is a measurable risk that the pre-existing condition would have adversely affected the victim in the future, then the overall award can be reduced.  In other words, the victim, as the court noted at para. 35, "must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position".

[95]            Another case that usefully explains Athey is Corrado v. Mah, 2006 BCSC 1191.  Slade J. at paras 52 – 56 referred to Zacharias v. Leys, 2005 BCCA 560, 219 B.C.A.C. 88, in which Esson J.A. considered the principles in Athey where a Plaintiff has a pre-existing condition that would support a finding of a measurable risk that this condition would have detrimentally affected the Plaintiff in the future.  Slade J. noted that in Athey, two scenarios were considered:

1.         Where the injuries are unexpectedly severe owing to a pre-existing condition (thin skull).  Here, a negligent Defendant is liable for all damages even though the Plaintiff’s losses are greater than they would be for the average person;

2.         Where the pre-existing condition was inherent in the Plaintiff’s “original position” (crumbling skull).  Here, a Defendant will be liable for the injuries caused, but not for the effects of the pre-existing condition which the Plaintiff would have experienced anyway.

[96]            Slade J. said at paras 53 – 56:

[53]      In Zacharias, supra, Esson J.A. notes, at ¶18, that it is not required that a pre-existing condition be "already manifest and presently disabling" for the crumbling skull rule to apply.  He clarifies that this simply means that manifest and disabling conditions should be taken into account in determining the appropriate measure of damages.

[54]      Esson J.A. notes the difficulty in the application of the crumbling skull rule when there is a chance, but not a certainty, that the Plaintiff would have suffered the harm but for the Defendant’s conduct.  In this circumstance, damages are adjusted only where there is a measurable risk that the pre-existing condition would have detrimentally affected the Plaintiff in the future.  Such a risk of harm need not be proven on a balance of probabilities, but should be given weight according to the probability of its occurrence.

[55]      The determination of causation and the assessment of damages involve the application of distinct principles.  Causation must be established on the balance of probabilities.  As causation relates to a past event, it is, once established, treated as a certainty.  The assessment of damages calls for consideration of future events, which requires consideration and weighing of possibilities and contingencies: York v. Johnston (1997), 37 B.C.L.R. (3d) 235 (C.A.) at ¶6; Athey, supra at ¶17.

[56]      Although I reject Dr. Blaney’s opinion that injuries sustained in the accident are the sole cause of the Plaintiff’s present condition, I accept that he did sustain soft tissue injuries that continue to cause him suffering and that these are somewhat disabling.  However, his pre-existing condition was inherent in his original position, and must be considered in the assessment of damages.  This applies equally to non-pecuniary damages and damages for loss of earning capacity: T.W.N.A. v. Clarke (2003), 22 B.C.L.R. (4th) 1, 2003 BCCA 670 at ¶36 and ¶37.

[97]            In this case, while I find the medical evidence reflects that the Plaintiff suffers from osteoarthritis, there is no evidence before the court that this is a progressive, degenerative disease.  I have already said that I cannot take judicial notice about the nature of the osteoarthritis.  Therefore, I am left with the evidence that this disease did not impair her previous activities.  The evidence simply reflects that pre-accident, the Plaintiff had a static condition that did not limit her activities in any way.  There is no evidence before the court that this would have changed in the future.  This disposes of the Defendant’s argument that this is a “crumbling skull” case because there is no evidence before the court that osteoarthritis is a progressive and degenerative disease.  I can not find, in the absence of any medical evidence about the Plaintiff’s prognosis, that there is a measurable risk that this pre-existing condition would have detrimentally affected the Plaintiff in the future.  To do so would be to speculate as there is no evidence to support that assertion.  Accordingly, I decline to reduce her damages.

[98]            Neither Dr. Gupta nor Dr. Dommisse offer any opinion at all on the question whether the Plaintiff will have a minor permanent partial disability as she suggests.  Having carefully considered the totality of the evidence, I do not find the Plaintiff will have a permanent disability.

[99]            I observe that Dr. Dommisse says in his report:

She stated that she did have some pain in the trapezius muscle area on both sides and this has resolved.  Overall, Ms. Penland stated that her interscapular pain is 85% better since the accident of September 16, 2005.

[100]        I find this to be real progress.  He went on to say, “She also complained of mild pain in the lumbosacral region.  She stated that this pain feels like a pressure feeling”.

[101]        I do not find the Plaintiff’s injuries as severe as she indicates because they will improve with exercise as Dr. Dommisse recommends.  The Plaintiff has failed to persuade me that she will not substantially recover to at least her pre-accident condition.

[102]        I award the Plaintiff $30,000 in non-pecuniary damages.  In my opinion, this award is appropriate given the nature of her complaints, and the fact it will take some time to return to her pre-accident condition.

Past Income Loss

[103]        I award the Plaintiff damages for past income loss based on the parties’ agreement that the Plaintiff averaged 33 hours per week at Home Depot prior to the accident.  I find she was absent for eleven weeks and one day as a result of her injuries, and add an additional 60 hours due to her graduated return to work from December 4, 2005 to January 29, 2006.  An 80 percent multiplier is agreed upon to arrive at a net wage loss figure.  Initially, I was given a figure based on the Plaintiff missing eleven and a half weeks, but I accept the Defendant’s position that the records indicate the correct amount of time is eleven weeks and one day instead.  The parties can therefore calculate a small decrease from the net figure of $3,516 which was the net figure based on an eleven and a half week absence from work.

[104]        I award damages for loss of income for the period between leaving Home Depot and starting at the Days Inn which, based on a gross figure of $1,980 yields a net figure of $1,584 for that time frame.  This award is based on the finding that, although Home Depot terminated the Plaintiff because she could not tolerate the standing involved, I find on the evidence the incidents between February 17 and 19, 2006 that gave rise to her termination were the result of her frustration caused by her injuries.  These were the only negative items in the Plaintiff’s personnel file.

Special Damages

[105]        Special damages of $400 are agreed upon and I make that award.

Cost of Future Care

[106]        I have already said an award of $500 is reasonable for cost of future care for a six month gym membership and several sessions with a personal trainer to start the Plaintiff on her own exercise program.  The Plaintiff sought $1500 for the same care, but without evidence to support it.

Impaired Earning Capacity

[107]        I find the totality of the evidence fails to establish a real possibility of loss of future earning capacity.  There is no support for such an award on the evidence.

[108]        In Moore v. Cabral, 2006 BCSC 920, I considered whether the Plaintiff was entitled to damages for loss of future earning capacity.  In that case, like this one, the plaintiff was involved in a car accident that caused soft tissue injury.  The defendants admitted liability for the accident.  I reviewed the authorities governing the law on loss of future earning capacity: see Brown v. Golaiy (1997), 26 B.C.L.R. (3d) 353 (S.C.); Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393, 6 B.C.A.C. 314 (C.A.); Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.); Pallos v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260, 53 B.C.A.C. 310 (C.A.); Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158; Paller v. Paller, 2004 BCSC 977; Wiebe v. Neal, 2004 BCSC 984; and Tobin v. Monkman, 2004 BCSC 839.

[109]        In Moore, I considered the decision of Finch J.A. (as he then was) in Pallos. He found that the plaintiff must prove future loss is a real possibility and that there is a reasonable chance such loss will occur.  However, he added that consideration of the issue should not be limited to this test.  He went on to find at para. 29:

The Plaintiff’s claim in this case, properly considered, is that he has a permanent injury, and permanent pain, which limit him in his capacity to perform certain activities and which, therefore, impair his income earning capacity.  The loss of capacity has been suffered even though he is still employed by his pre-accident employer, and may continue to be so employed indefinitely.

[110]        At para. 43, Finch J.A. noted that there are a variety of arithmetic approaches that may be adopted to assess an award for loss of future earning capacity.  He found all such approaches arbitrary and ultimately held the duty of the court is to make a “fair assessment of damages”.

[111]        In Moore, I noted that at para. 70 Huddart, J.A. “provided a useful review of the principles relating to an award for loss of earning capacity in Rosvold v. Dunlop at paras. 8-12, which were subsequently applied in Paller at para. 50”.  Those principles are no less applicable to the case before me and can be summarized as follows:

1.         The Plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that.

2.         Where a Plaintiff's permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation.  What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset.  In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider.

3.         The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities.  Possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation.  These possibilities are to be given weight according to the percentage chance they would have happened or will happen.

4.         The trial judge's task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence.

5.         Once impairment of a Plaintiff's earning capacity as a capital asset has been established, that impairment must be valued.  The valuation may involve a comparison of the likely future of the Plaintiff if the accident had not happened with the Plaintiff's likely future after the accident has happened.  As a starting point, a trial judge may determine the present value of the difference between the amounts earned under those two scenarios.  But if this is done, it is not to be the end of the inquiry, the overall fairness and reasonableness of the award must be considered taking into account all the evidence.

6.         Even if a Plaintiff is able to earn the same amount of income from alternative employment, he would still be entitled to compensation for loss if occupations previously available were closed to him.

[112]        Finally, the case law has consistently applied the relevant factors for assessing the value of the lost or impaired asset set out in Brown v. Golaiy at para. 8:

1.         The plaintiff has been rendered less capable overall from earning income from all types of employment;

2.         The plaintiff is less marketable or attractive as an employee to potential employers;

3.         The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4.         The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[113]        In order to trigger the four considerations set out above, the Plaintiff must put forward cogent evidence that she has been rendered less capable overall of earning income from all types of employment, that she is less marketable, that she can not take advantage of job opportunities she otherwise might have, or is less valuable as a person capable of earning income.  There is no evidence that the Plaintiff in this case is less capable of earning income, is less marketable, can not take advantage of job opportunities, or is less valuable as a person earning income.  In fact, she earns more at her current job than she did at Home Depot and works more hours per week.  There is no evidence from which I might conclude that an employment asset she previously enjoyed was impaired or lost.

[114]        Nor has the Plaintiff put forward sufficient evidence to prove any permanent partial disability, or that there is a substantial possibility her ability to earn future income is diminished.  In my opinion, with exercise and motivation the Plaintiff will return to her condition before the accident.  There is no evidence she has sustained the loss of a capital asset.

[115]        In summary there is no evidentiary foundation for an award for loss of earning capacity.

[116]        In conclusion, I award Ms. Penland damages for past loss of income.  This figure is to be based on a loss of eleven weeks and one day of work at $10 an hour for 33 hours per week, and an additional 60 hours of graduated return to work.  It will also include compensation for her period of unemployment after February 2006 until she commenced work at the Days Inn.  As discussed, this will be based on an 80 percent multiplier.

[117]        Additionally, I award the following damages:

1.         Non-pecuniary damages of $30,000;

2.         Special damages of $400; and

3.         Damages for cost of future care of $500.

I decline to make an award of damages for impaired future earning capacity.

“The Honourable Madam Justice MacKenzie”