Barnes v. Richardson et al.,


2008 BCSC 1349

Date: 20080905
Docket: M072678
Registry: Vancouver


Sean Matthew Barnes



Samual Keith Richardson, Keith Richardson
Elaine Minichiello and Anthony Minichiello


Before: The Honourable Madam Justice Martinson

Oral Reasons for Judgment

September 5, 2008

Counsel for Plaintiff

L. M. Blond

Counsel for Defendants

M. Monroy
A. Laudadio


Place of Trial:

Vancouver, B.C.


1. Nature of the Claim

[1]                This is a claim for damages by the plaintiff, Sean Barnes, for personal injuries he says he suffered as a result of a motor vehicle accident that took place on March 3, 2003.  He was a back seat passenger, positioned behind the driver, who, along with the other two occupants, were friends.  Mr. Barnes was 16 years old at the time.  The driver, the defendant Sam Richardson, was speeding, went through a stop sign and the vehicle hit another vehicle head-on.  Mr. Barnes saw the collision and grabbed onto the handle, which was ripped from the vehicle as a result of the impact.  He asks for non-pecuniary damages in the range of $100,000 to $125,000 and damages for loss of future income earning capacity in the range of $175,000 to $200,000 plus an additional $25,000 to assist with retraining.

[2]                Liability has been admitted.  The defendants, Sam Richardson and his father Keith Richardson, agree that Sean Barnes suffered some injury.  However, they say that the non-pecuniary damages should be in the range of $20,000 to $30,000.  They say he has not proven that he is entitled to damages for loss of future earning capacity.

[3]                I have decided to give you my conclusions first and then give my reasons for those conclusions.  My conclusions are these:  I am satisfied based on the totality of the evidence that Mr. Barnes has proven on a balance of probabilities that but for the negligent act of the driver, the injuries of which he complains would not have occurred.  Taking into account the likelihood that Mr. Barnes’ pre-existing condition would have been activated regardless of the accident, I assess non-pecuniary damages at $85,000 and the loss of future earning capacity at $127,500.

[4]                I am going to give my reasons this way:  first, I will summarize the arguments made on behalf of Mr. Barnes and then those made on behalf of Sam Richardson and Keith Richardson.  Then I will deal with the question of causation.  I will next move on to the question of damages, dealing first with non-pecuniary damages.  I will then consider damages for loss of future-earning capacity.  Then I will discuss the question of the reduction of the damages because of the existence of Mr. Barnes’ condition at the time of the accident.  Finally, I will explain why I have concluded that the defendants have not proven failure to mitigate.

2. Arguments

[5]                The difference in approach is due primarily to a different view taken towards the significance of Sean Barnes’ pre-existing congenital isthmic spondylolisthesis (with bilateral pars interarticularis defects), which I will call the “pre-existing condition.”  The pre-existing condition was not discovered until x-rays were taken on July 11, 2006.  The defendants agree that he suffers from this condition, that it has been activated, that it has impacts on his life generally and that he is and will continue to be, as a result, precluded from doing work involving heavy lifting.  They, however, say that Sean Barnes has not proven on a balance of probabilities, as he is required to do, that it was activated as a result of the motor vehicle accident.

A. Mr. Barnes

[6]                Mr. Barnes says that he had low back pain almost immediately after the accident.  He did not mention it to Dr. Lupton, his family doctor, until July 2003 because there were other symptoms that were initially predominant and he thought it would get better.  However, both he and his father, Carl Barnes, told the insurance adjuster about the low back pain early on.  The adjuster confirmed this.  He says that the evidence of his father; his mother Patricia Barnes; his brother Scott Barnes; his girlfriend, Ana Sasi; and his friend, Skylar Martin, support his evidence in this respect.

[7]                He says that he never suffered from any significant back pain before the accident.  He saw a chiropractor in 2001, but it was for minor pain, which resolved almost immediately.  He continued with all of his activities.  He agrees that he was in a fight after the accident and he fell down some stairs, but says neither affected his back.  He did not recall an incident described by a friend, Chase Gatska, in the fall following the accident in which he jumped off a raised patio, tackled him, and they went through the door of a shed, landing on the ground.  He did agree it was possible.  He submits, though, that there is no evidence that these events activated the pre-existing condition.

[8]                Dr. Hunt, the specialist in pain medicine called on behalf of Mr. Barnes, says that in his opinion, the collision permanently aggravated the pre-existing condition.  While he agrees that activities such as twisting and bending can activate the condition, the literature suggests that baseball is an unlikely cause.  He does not think that the low back pain Mr. Barnes had in 2001 activated the condition.  If it had, the pain would have become progressively worse and that did not happen.  It is, he says, much more likely that the strong impact of this accident permanently activated the pre-existing condition.

[9]                Mr. Barnes says that Dr. Hunt is a highly qualified and experienced pain specialist and his opinion should be preferred over that of Dr. Schweigel.  He submits that Dr. Schweigel’s evidence should be given very little weight.  He drew unfair inferences both with respect to the chiropractic notes in 2001 and the incidents that took place after the motor vehicle accident.  He also primarily based his opinion on the fact that Mr. Barnes did not complain to his doctor about low back pain for several months.  Mr. Barnes did, however, report low back pain almost immediately to the insurance adjuster.  Dr. Schweigel, Mr. Barnes submits, acted as an advocate for the defendants.

[10]            Mr. Barnes disagrees with the defence suggestion that he should have called Dr. Lupton as a witness and that an adverse inference should be drawn as a result.  Dr. Lupton’s clinical records were provided.  He is not an expert and would not have been able to help.  Mr. Barnes did not regularly see his doctor as he specifically did not like Dr. Lupton and he generally does not like doctors or hospitals.

[11]            On the question of damages, Mr. Barnes argues that this is a thin skull case, which means that the Richardsons took him as they found him and are responsible for all the damages he has suffered.  With respect to non-pecuniary damages, he was previously a healthy, very active boy.  Now he is very limited in his activities; his condition affects his daily life and significantly affects his future earning capacity.  Both doctors agree that he cannot do heavy lifting.  That is also the opinion of John Lawless, the vocational rehabilitation expert who testified on Mr. Barnes’ behalf.  Mr. Barnes was not going to go to university before, preferring a labour type job.  Mr. Lawless says that Mr. Barnes is capable of obtaining a university degree, which he had not considered.  He will now likely do that.

[12]            He disagrees with the defence argument that he has not mitigated his damages.  He says that he did get assistance from a chiropractor and has been doing some exercises but they did not work.

B. Sam Richardson and Keith Richardson

[13]            The defendants say that Mr. Barnes has not proven that the motor vehicle accident did activate his pre-existing condition.  He did not complain to a doctor about his low back pain until four months after the accident.  The pre-existing condition was not disclosed until more than three years after the accident.  His expert reports were not prepared until five years after the accident.

[14]            The evidence, the defence argues, shows that there are other ways in which the pre-existing condition could have been activated.  Mr. Barnes admits to participating in activities which both Dr. Hunt and Dr. Schweigel say can cause such an activation.  In addition, Dr. Schweigel, an orthopaedic surgeon called on behalf of Samuel Richardson and Keith Richardson, says the accident did not activate the condition and is of the opinion that there are other explanations to account for his current complaints.  Dr. Schweigel bases his opinion primarily on the information he had that Mr. Barnes did not report low back pain to his doctor until several months after the accident, though he saw him the next day.  That day the physical examination was normal.  He also placed significant emphasis on the fact that Mr. Barnes played baseball at a high level as a pitcher before the accident and the clinical notes of a chiropractor Mr. Barnes saw in 2001.  In addition Dr. Schweigel felt that the activities Mr. Barnes participated in after the accident, including a fall down some stairs and a fight, likely activated or aggravated the condition.  The defence says that Dr. Schweigel is a highly qualified and experienced orthopaedic surgeon and his evidence is entitled to significant weight.

[15]            The defence also argues that the adverse inference should be drawn against Mr. Barnes that Dr. Lupton would give evidence unfavourable to his case because he did not present an opinion from him or call him as a witness.

[16]            With respect to damages, the defence argues that if the Court finds that causation has been proven, this is a crumbling skull case and the pre-existing condition was inherent in his original position.  The defendants argue that they are only responsible for the difference.  There is a substantial likelihood that the condition would have been activated anyway and damages should be reduced accordingly.  Sean Barnes has not, the defendants argue, mitigated his damages.

3. Analysis – Causation

A. Legal Principles

[17]            Determining the cause of loss and damage must be kept separate from the assessment of damages to compensate for that loss and damage, since different principles govern the two questions: A. (T. W. N.) v. Clarke, 2003 BCCA 670, 22 B.C.L.R. (4th) 1 at para. 16.  Causation concerns whether the accident caused the pre-existing condition to be activated or aggravated.  The assessment of damages considers whether there was a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence: Hosak v. Hirst, 2003 BCCA 42, 9 B.C.L.R. (4th) 203 at para. 10.

[18]            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: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 13, 140 D.L.R. (4th) 235.

[19]            The Supreme Court of Canada considered the principles that apply to causation in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.  The “but for” test applies, except in very limited circumstances.  Mr. Barnes bears the burden of showing that, but for the negligent act of the driver, the injuries of which he complains would not have occurred.  In special circumstances, the law has recognized exceptions to the basic "but for" test and applied a "material contribution" test: see Resurfice at paras. 24-25.  Those circumstances do not apply in this case.  See also Bohun v. Sennewald, 2008 BCCA 23, 77 B.C.L.R. (4th) 85, a medical malpractice case.

[20]            However, neither test requires that the plaintiff establish that the defendant’s negligence was the sole cause of the injury.  A defendant is liable as long as he or she is part of the cause of an injury, even though his or her act alone was not enough to create the injury: Athey at para. 17.

[21]            There is no reduction of liability because of the existence of other preconditions.  The defendants remain liable for all injuries caused or contributed to by their negligence: Athey at para. 17.  A non-tortious cause that precedes the accident but contributes to the injury, a precondition, is not relevant to causation unless symptomatic at the time of the accident: Larwill v. Lanham, 2003 BCCA 629, 190 B.C.A.C. 13 at para. 22.  Even if a minor impact causes the plaintiff’s symptoms, it is no answer for the defendant to say that the plaintiff was peculiarly vulnerable to injury because of a pre-existing susceptibility: Rai v. Wilson (1999), 120 B.C.A.C. 122 at para. 6, 196 W.A.C. 122.

[22]            The law does not excuse a defendant from liability merely because other causal factors for which he or she is not responsible also helped produce the harm.  It is sufficient that the defendant’s negligence was a cause of the harm: Athey at para. 19.

[23]            The finding of a contribution outside of the de minimis range is a material contribution and sufficient to render the defendant fully liable for the damages: Athey at para. 44.  The British Columbia Court of Appeal clarifies in Sam v. Wilson, 2007 BCCA 622, 78 B.C.L.R. (4th) 199 at para. 109 that “material contribution”, as used in Athey, is synonymous with “substantial connection”, as used in Resurfice, and should not be confused with the “material contribution test”.

[24]            The issue in Hosak v. Hirst, 2003 BCCA 42, 9 B.C.L.R. (4th) 203 was whether the accident activated or aggravated a pre-existing but asymptomatic degenerative condition of the plaintiff’s cervical spine, spondylosis.  Madam Justice Rowles explains at para. 70 that the plaintiff has to establish that the accident caused or contributed to the activation or aggravation of the pre-existing spondylosis.  The plaintiff does not have to show that it was the only cause, but that it was a cause.  Once the burden of proof is met, causation must be accepted as a certainty.  Loss cannot be apportioned according to the degree of causation where the loss is created by tortious and non-tortious causes: Hosak at para. 71.

[25]            In White v. Stonestreet, 2006 BCSC 801, the issue arose as to whether the plaintiff’s spondylolisthesis became symptomatic as a result of a motor vehicle accident.  The Court explained at para. 68 that the plaintiff was required to prove, on a balance of probabilities, that the accident was a contributing factor outside of the de minimis range.  The accident did not have to be the sole cause and causation did not need to be established to scientific precision.  The Court determined that the plaintiff’s continuing lower back problems were not caused by the motor vehicle accident.  The temporal sequence did not establish a causal connection.

[26]            In Sananin v. MacHale, 2006 BCSC 672, the issue was whether the accident rendered the plaintiff’s lower back more susceptible to injury than it had been prior to the accident as a result of its pre-accident spondylolysis and spondylolisthesis condition.  Mr. Justice Edwards said at para. 20 that in this context, more susceptible does not mean more likely to suffer an accident resulting in trauma to the back, but more likely that any trauma to the back would cause the plaintiff to experience more pain, in terms of intensity or duration or both, than he would have but for the accident.  The Court found that the plaintiff had not proved that the accident made his back more susceptible to injury than he was as a result of his pre-existing condition.

B. Findings of Fact

[27]            I must make findings of fact with respect to Sean Barnes’ low back pain both before and after the motor vehicle accident.

(i) Before the Motor Vehicle Accident

[28]            The evidence called on behalf of Mr. Barnes relating to low back pain before the accident, is his evidence that he did not have low back pain, other than that referred to in the chiropractic clinical record in 2001.  He says that pain was minor, resolved within a few days and he never had problems after that.  The evidence of his mother, father, brother, and girlfriend is that he never complained of low back pain before the accident.

[29]            He was active in a wide variety of activities and continued to play baseball up to the time of the accident.

[30]            The defence relies on the clinical notes of the chiropractor, Dr. Alderson.  On May 14th the note says, “Insidious, acute left low back pain – unknown etiology – patient not showing any self improvement.”  It also says, “The patient has no history of serious back problems.”  The May 17th note says, “Patient felt rough till today – woke up in far less pain and is much more functional, bending without pain.”

[31]            Dr. Alderson was not called as a witness.  His clinical note has limited evidentiary value; it cannot be used to prove any opinion he may have had with respect to a diagnosis.

[32]            I am satisfied on the totality of the evidence that Mr. Barnes did not have lower back pain problems before the accident, other than a minor problem in 2001 that resolved quickly.

(ii) After the Motor Vehicle Accident

[33]            The impact was significant.  Mr. Barnes did not go to the hospital after the accident.  He told Sam Richardson that he was okay immediately after.  He spent the first two or three days in bed.  He saw Dr. Lupton the next day and focused on the chest pain caused by the seatbelt.  He did not mention low back pain to a doctor until July 2003.

[34]            He was very active before the accident, playing high level baseball, hiking, playing hoops with his friends, swimming, and playing sports such as badminton.  He was involved in kick boxing for several years, and got his green belt.

[35]            Immediately following the accident he was not able to participate in these activities either at all, or to a much lesser extent.  He tried to play baseball again, but was unable to do so and stopped playing.  This was an important decision as he loved baseball and was very good at playing it.

[36]            This conclusion is supported by the evidence of Sean Barnes himself and by the evidence of his mother, Patricia Barnes; his brother Scott Barnes; and his girlfriend, Ana Sasi; and his friend Skylar Martin.  There was no evidence to the contrary.  I accept their evidence in this respect.

[37]            I am satisfied that Sean Barnes did have low back pain immediately following the motor vehicle accident.  Evidence of his complaints to others is admissible to rebut the suggestion made by the defendants that he in fact did not have low back pain then.

[38]            He and his father told the insurance adjuster about back pain.  On March 6th his father reported that his son had a very sore back, neck and ribs.  On March 20th he told the adjuster that he had pain in his upper and lower back.  The adjuster’s note on April 23rd says that his lower back still hurts.  The evidence of Patricia Barnes, Scott Barnes, and Ana Sasi supports the conclusion that he was complaining of back pain early on and exhibited behaviour consistent with low back pain.

C. The Evidence of Dr. Hunt

[39]            Dr. Hunt’s opinion is that the reason Mr. Barnes has persistent activity-related low back pain is because his previously asymptomatic congenital isthmic spondylolisthesis with bilateral pars interarticularis defects was permanently aggravated in the motor vehicle accident of March 3, 2003.

[40]            Dr. Hunt says that the fact that Mr. Barnes had a brief episode of low back pain and hip pain two years before the accident suggests that he had mild musculoligamentous strain and that his congenital spondylolisthesis remained asymptomatic.

[41]            Dr. Hunt is of the opinion that Mr. Barnes has developed a mild myofascial pain syndrome in the interscapular muscles.  He says that his pain arises from tender regions in the damaged spinal ligament and in the associated musculature with associated muscle spasm.

[42]            Dr. Hunt says that Mr. Barnes suffered injuries in the motor vehicle accident to his asymptomatic, pre-existing, congenital isthmic spondylolisthesis with pars interarticularis defects at L5-S1.  These injuries have resulted in a condition of chronic low back pain.  Dr. Hunt states:

Given his history of no significant pain or physical impairments, with respect to his low back prior to the accident of March 3, 2003, and with the onset of symptoms in his low back the morning following the motor vehicle accident and his activity-related low back pain continuing down to the present, the motor vehicle accident impact most certainly resulted in forces to his lumbosacral spine which readily explain his condition. His history, ongoing symptoms, limitations, physical examination and imaging studies all consistently indicate that the motor vehicle accident of March 3, 2003 was causative.

[Emphasis in original]

[43]            I find that in Dr. Hunt’s opinion is entitled to significant weight.  For the most part the factual assumptions upon which he relies are consistent with the findings of fact made by the Court.

D. The Evidence of Dr. Schweigel

[44]            The report of Dr. Schweigel states that the cause of the spondylolisthesis is a developmental anomaly.  Mr. Barnes either developed it as he was growing up, quite spontaneously, and/or he was born with this condition.  Dr. Schweigel is of the opinion that it was not caused by the motor vehicle accident of March 3, 2003.

[45]            His opinion is based primarily, but not exclusively, on the premise that the low back pain was not mentioned for several months after the accident and, therefore, there is no association between the two.

[46]            Dr. Schweigel also describes treatments by a chiropractor in 2001 for low back pain that occurred insidiously.  He says that this is the usual reason that a patient experiences discomfort from a spondylolisthesis.

[47]            He says that spondylolisthesis is a developmental anomaly, which means that the patient developed this sometime in childhood for no specific reason.  It may be a genetic problem or it may be a traumatic event at that time.  Dr. Schweigel is of the opinion that this spondylolisthesis would have been present for many years prior to the motor vehicle accident.

[48]            Dr. Schweigel indicates that Mr. Barnes was predisposed to having pain in his lower back and the low back pain was, more likely than not, due to playing baseball.

[49]            He states that if the motor vehicle accident caused pain, it would have been expressed to his doctor in the first few days after the accident and there is no documentation of moderate or severe pain.  Dr. Schweigel also says that the physical abnormalities at that time were extremely sparse.

[50]            Dr. Schweigel expresses that if there is documentation that he did have low back pain in the first day or two after the accident, he would have to conclude that the accident caused a minor soft tissue injury to the lumbar spine that would have resolved within one to three months.

[51]            He also says that the low back pain that was first documented in July by the family doctor could have been caused by a variety of events, such as the events of normal living, being in a fight, or being pushed down the stairs.

[52]            In my view the evidence of Dr. Schweigel should be given limited weight.  He is no doubt a well-qualified orthopaedic surgeon.  However, his opinion with respect to causation is based to a large extent on incorrect and incomplete information.  His factual conclusions are, for the most part, inconsistent with the findings of fact made by the Court.

[53]            Dr. Schweigel says in his report that Sean Barnes told him he had low back pain right after the accident.  He rejected that statement and focused on the fact that Mr. Barnes had not complained to his doctor about low back pain until several months later.  For whatever reason, he did not have, then or later, the insurance adjuster’s notes showing that he had complained about low back pain shortly after the accident.

[54]            In offering his opinion he downplayed the severity of the impact, though he agreed in cross-examination that the more severe a collision, the more likely is injury to the spine.  He did not comment on the fact that Mr. Barnes’ activities were curtailed after the accident but not before.

[55]            He drew inferences from the brief clinical notes of Dr. Alderson that supported the conclusion that the pre-existing low back pain was significant.  When summarizing the May 17th note, he put “less pain” when the note actually says “woke up in far less pain and is much more functional, bending without pain.”

[56]            He was prepared to conclude, on very limited evidence, that the post accident incidents that were at issue likely caused the activation of the pre-existing condition.

[57]            As I see it, Dr. Schweigel acted as an advocate for the defendants, not an expert whose sole purpose is to assist the Court.  He highlighted all matters that would support the defence position and either downplayed or ignored those that would support the position of Mr. Barnes.

E. Conclusion

[58]            When considering the question of causation, I need to deal with the question of a temporal connection; that is, a connection in time.  That question was dealt with by this Court in White.  Mr. Justice Ehrcke speaks of the care one must take when considering a temporal connection.  He said at para 75:

In searching for causes, a temporal connection is sometimes the only thing to go on.  But if a mere temporal connection is going to form the basis for a conclusion about the cause of an event, then it is important to examine that temporal connection carefully.  Just how close are the events in time?  Were there other events happening around the same time, or even closer it time, that would provide an alternate, and more accurate, explanation of the true cause?

[59]            In this case, there is more than just a temporal connection, but there is additional evidence as well.

[60]            With respect to the defence argument that the Court should draw an adverse inference because Dr. Lupton was not called, I have concluded that Mr. Barnes has provided a reasonable explanation for not doing so.  The situation may well be different if the clinical records had not been provided, but they were.  This conclusion is consistent with the very recent analysis of the Court of Appeal on this issue in Muksh v. Miles, 2008 BCCA 318.

[61]            The defence has raised a concern that Mr. Barnes did not see very many health care professionals in the years since the accident.  However, this Court has concluded in Myers v. Leng, 2006 BCSC 1582 that not much should be made of non-attendances at a doctor when a reasonable explanation is provided for doing that.  I agree with that proposition.  A reasonable explanation has been provided.  In addition, in the particular circumstances of this case, the defence does not take the view that Mr. Barnes is not suffering from the injuries he says he is suffering from.  Rather, the defence says that the injuries are not caused by the motor vehicle accident.

[62]            The evidence does not support the conclusion that the fall, fight, or tackle caused the activation of the pre-existing condition.  Dr. Schweigel draws his conclusion that it did, with very limited evidence to support it.  Dr. Hunt did say that the fight and stairs could do so with the right torque and position.  However, the evidence did not show what the right torque and position would be.  Dr. Hunt agreed that the balcony incident could render him symptomatic.

[63]            I am satisfied based on the totality of the evidence that Mr. Barnes has proven, on a balance of probabilities, that but for the negligent act of the driver, the injuries of which he complains would not have occurred.  There is a substantial connection between the motor vehicle accident and the injuries.

4. Analysis – Damages

A. Non-pecuniary Damages

[64]            That brings me to the question of non-pecuniary damages.  Non-pecuniary damages are those that have not required the payment of money.  The purpose is to compensate Sean Barnes for such things as pain, suffering, disability, inconvenience, and loss of enjoyment of life.  I have found that Mr. Barnes, as the teenaged boy of 16 years of age, found himself in the position where his lifestyle changed significantly.  He was very active before the accident and his activities are much more limited.  He has problems with sleeping and some issues with his mood.  He suffers some pain on a regular basis.  I conclude he will continue to do so into the future and he was 21 at the date of the trial, though he has recently turned 22.  I have considered each of the cases relied upon by his counsel and counsel for the defendants.  They are, of course, helpful as guides, but I must base my decision on the particular facts of this case.  As I said at the start, I have assessed non-pecuniary damages at $100,000.

B. Loss of Future Earning Capacity

[65]            When determining what might happen in the future I must decide if the event is a real possibility, rather than merely guess work.  If it is a real possibility I must then determine the actual likelihood of its occurrence.

[66]            Some of the considerations that can be taken into account in assessing whether there is a loss are (as originally set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.)):

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

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

3.         whether 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.         whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[67]            There is no reason why an injury which permits a plaintiff to continue in a particular occupation but at a reduced level of performance and income should not be compensated for through damages for loss of earning capacity: Sinnott v. Boggs, 2007 BCCA 267, 69 B.C.L.R. (4th) 276 at para. 15.

[68]            The Court is tasked with assessing damages, not calculating them on some mathematical formula: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248, at para. 43, 63 B.C.A.C. 145.  The impairment of earning capacity as a capital asset must be valued.  A starting point is the comparison of the likely future of the plaintiff if the accident had not occurred with the plaintiff’s likely future after the accident and the difference between the amounts earned.  However, the overall fairness and reasonableness of the award must also be considered: Rosvold v. Dunlop, 2001 BCCA 7, 84 B.C.L.R. (3d) 158 at para. 11; Reilly v. Lynn, 2003 BCCA 49, 10 B.C.L.R. (4th) 16.  Allowance must then be made for the contingency that the assumptions upon which the award is based may prove to be wrong: Reilly at para. 101.

[69]            I dealt with this issue in Downey v. Brousseau, 2007 BCSC 149.

[70]            In this case the defendants do not take serious issue with the limitations Mr. Barnes has.  They have not provided an occupational rehabilitation report.

[71]            Those limitations are described in Dr. Hunt’s report as follows:

He should work in the sedentary to light work classification.  He must avoid activities that involve medium to heavy lifting, repetitive activities that involve flexion and extension, lifting that involves twisting rotation.  He should only lift when he can use proper mechanics of lifting and keeping the lead close to his body.  He should avoid any activity which would subject his lower back to any sudden loading for which he is unprepared.  He should avoid repetitive bending, twisting, and stooping, or moving in and out of awkward positions.  He should avoid activities that involve heavy pushing or pulling.  He should be able to stand, sit, and move at will.  If he has a desk job, his work station should be ergonomically adjusted to minimize stress on his lower back.

[72]            Dr. Schweigel agreed that Sean Barnes needs to avoid heavy lifting.

[73]            I accept the evidence of Mr. Barnes that he likes to do physical work using his hands.  It is to his credit that he has continued to work in spite of the pain it causes him, rather than sitting at home feeling sorry for himself.  However, he likely will not be able to continue with this type of employment for much longer because of his limitations and his experience with how the job affects him now.  At the time of the accident, he had considered various labour occupations including skilled labour jobs such as pipefitting, welding, and plumbing.  I conclude that though he thought about university, it was not a priority for him.  He was unsure about what he wanted to do and this, as Mr. Lawless suggests, is not unusual for someone who is 16 and in grade 11, nor was it a priority for him when he graduated from high school.  This is clear from the employment he did get at the gas station and then the shipyard.

[74]            He enjoys his job at the shipyard and it is a union job.  He is now making $28 an hour.  His friend, Skylar Martin, has worked for two years at both the shipyard where Mr. Barnes works and at the related dry dock as a labour rigger.  He is a member of the Shipbuilders Union and earns up to $31 an hour.  He testified that he can make from $45,000 to $100,000 a year, depending on overtime.  He is a friend of Mr. Barnes and confirmed that Mr. Barnes complains about back pain at the end of a work day.

[75]            The testimony of Mr. Lawless shows that Mr. Barnes’ strongest basic interest areas include carpentry; protective services; athletic sports; animal service; scientific research and development; performing and entertaining; and educating.  He also has similar interests to people in occupations like police officer and private investigator.  The testing shows he prefers mechanical activities, skilled trades, and technical occupations.  At the same time, he would rather work with people than things.

[76]            Mr. Lawless has prepared a thorough report on occupations that would not be available to Mr. Barnes.  I agree with the defendants that little weight should be placed on the conclusion, using his computer search, that he had been eliminated from approximately 81 percent of his pre-accident job choices.  The Court did not have the raw data before it so as to be in a position to assess the accuracy of the results of the search.  However, it is clear that numerous occupations that require heavy and medium lifting and the other activities he can no longer do, including many labour union jobs and jobs in the trades, are no longer open to him.  Mr. Lawless also provided some helpful information as to the occupations that are now in line with his interests, including the amounts that he might be expected to earn:  electrical and electronic engineers, $68,000; land surveyors, $56,000; probation and parole officers and related occupations, $52,450; and secondary schoolteachers, $61,250.

[77]            Sean Barnes has been rendered less capable overall from earning income from all types of employment.  He is less marketable or attractive as an employee to potential employers.  He has lost the ability to take advantage of all job opportunities which might otherwise have been open to him had he not been injured.  He is less valuable to himself as a person capable of earning income in a competitive labour market.  In my assessment, it is likely that he will now choose to go to university.  He, based on the testing done by Mr. Lawless, is quite capable of doing undergraduate and probably graduate work.  That will require some upgrading of courses.  It would likely take at least four to five years.  The evidence of Mr. Lawless is that tuition and books are about $6,500 a year.  He would, at best, only be able to work part time during the time he spends at university.

[78]            The defence focuses on the question of whether Mr. Barnes planned to go to university before the accident.  They say he had not made up his mind as to what he would do, and would likely have gone even if he were not involved in the accident.

[79]            I conclude, based on the occupation earning found in the Lawless report, as well as on the evidence of what Mr. Barnes now makes and the evidence of Mr. Martin as to what he now makes and could make, there is a real likelihood that Mr Barnes would have earned $5,000 a year more, but for the accident.

[80]            I assume he will work until he is 65 or for 44 more years.

[81]            I have taken into account the various negative and positive contingencies.

[82]            Taking into account the present value tables, I assess damages for loss of future earning capacity at $150,000.

C. Change in Original Position

[83]            The essential purpose of tort law is to restore the plaintiff to the position he or she would have enjoyed but for the negligence of the defendant: Athey at para. 20.  It must be kept in mind that the plaintiff is not to be placed in a position better than his or her original one: Athey at para. 32.

[84]            It is therefore necessary to assess what the plaintiff’s original position would have been.  The plaintiff’s loss is the difference between the original position and the injured position: Athey at para. 32.  The question is what award is appropriate to reflect the difference between the plaintiff’s original state and the state in which the plaintiff now finds himself or herself in: York v. Johnson (1997), 148 D.L.R. (4th) 225, 37 B.C.L.R. (3d) 235 at para. 6 (C.A.).

[85]            The plaintiff is entitled to full recovery only for the damage caused by the defendants’ wrongful conduct, and not for loss and damage that would have occurred anyway: A. (T. W. N.) at para. 52.

[86]            According to the thin skull rule, the tortfeasor is 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: Athey at para. 34.

[87]            On the other hand, the crumbling skull rule recognizes that the pre-existing condition was inherent in the plaintiff’s original position.  The defendant is liable for the additional damage but not for any effects of the pre-existing condition which the plaintiff would have experienced anyway: Athey at para. 35.

[88]            An asymptomatic non-tortious precondition, while not relevant to causation, may be taken into account in assessing contingencies: Larwill v. Lanham, 2003 BCCA 629, 190 B.C.A.C. 13 at para. 22.  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, this can be taken into account in reducing the overall award: Athey at para. 35.

[89]            The pre-existing condition does not have to be manifest and disabling at the time of the tort to be within the ambit of the crumbling skull rule: A. (T. W. N.) at para. 62.

[90]            As described by Esson J.A. in Zacharias v. Leys, 2005 BCCA 560 at para. 16, 219 B.C.A.C. 88, the crumbling skull rule is difficult to apply when there is a chance, but not a certainty, that the plaintiff would have suffered the harm but for the defendant’s conduct.  Such a contingency does not have to be proven to a certainty; it should be given weight according to its relative likelihood: A. (T. W. N.) at para. 48.

[91]            In Smyth v. Gill, 2001 BCCA 650, 160 B.C.A.C. 41, the Court determined that the plaintiff had experienced substantial symptoms prior to the accident and therefore could only recover to the extent that the defendant’s conduct worsened her condition, not for all her pre-existing medical problems.

[92]            In Hirvi v. Roy, [1999] B.C.J. No. 1397 (S.C.) (QL), Meiklem J. found that the plaintiff’s pre-existing condition of spondylolisthesis created a thin skull, rather than a crumbling skull, situation to all heads of damage up to the trial date as there was no evidence for finding on a balance of probabilities that the plaintiff would have suffered low back pain from his congenital abnormality prior to that time.  However, the overall award was reduced because the spondylolisthesis would have detrimentally affected the plaintiff in the future regardless of the defendant’s negligence.

[93]            The approach normally taken is to apply a percentage discount to the award that would otherwise be made were the future (in the absence of the accident and in light of the accident) known: York at para. 8.  Newbury J.A. went on to say in York at para. 25 that while there is some authority for reducing non-pecuniary awards to reflect future contingencies, this approach has not been generally adopted and she declined to do so.  The assessment of non-pecuniary damages reflects real and substantial future possibilities, both positive and negative, which could impact on the plaintiff’s quality of life and there is, therefore, no need to translate the possibilities into a percentage figure and adjust the assessment accordingly.  The Court of Appeal in Ayles (Guardian ad litem of) v. Talastasin, 2000 BCCA 87, 73 B.C.L.R. (3d) 60 at para. 27 similarly said that the application of a discount factor is an unconventional procedure for non-pecuniary damages.

[94]            However, in McKelvie v. Ng, 2001 BCCA 384, 90 B.C.L.R. (3d) 62 at para. 16, Saunders J. said that the measurable risk of debilitating effect in the future of the plaintiff’s pre-existing condition, ankylosing spondylosis, should be reflected in the damage award both as to non-pecuniary damages and the loss of future income.  Further, a five-member panel of the Court of Appeal held in A. (T. W. N.) at paras. 36-37 that the reduction in damages due to unrelated intervening events or pre-existing conditions that would have affected the plaintiff’s original position adversely in any event applies equally to non-pecuniary damages and to damages for loss or impairment of earning capacity.

[95]            A percentage reduction is therefore appropriate for both non-pecuniary damages and pecuniary damages.  In Corrado v. Mah, 2006 BCSC 1191, Mr. Justice Slade found that the pre-existing condition of the plaintiff was inherent in his original position and must be considered in the assessment of damages.  At para. 56 he notes that this applies equally to non-pecuniary damages and damages for loss of earning capacity.  Non-pecuniary damages were reduced by 25% due to the risk of progression of a pre-existing condition.  The award for future income loss was reduced by 50% to reflect a number of contingencies.

[96]            Deductions may also be made for independent intervening events.  If an independent intervening event occurs, the assessment of the plaintiff’s position is affected and the net loss experienced by the plaintiff is reduced.  However, if the event is a product of the accident, it does not affect the assessment of the plaintiff’s original position: Athey at para. 33.  Unrelated intervening events are taken into account in the same way as pre-existing conditions.  If such an event would have affected the plaintiff’s original position adversely, in any event, the net loss attributable to the tort will not be as great and damages will be reduced proportionately: A. (T. W. N.) at para. 36.

[97]            In my opinion, the pre-existing condition of Mr. Barnes should be reflected in a reduction of both non-pecuniary and pecuniary damages.  This case falls within the crumbling skull rule described in Athey in that there was a chance that his spondylolisthesis would have become symptomatic in any event.  Dr. Hunt indicates that symptomatic patients usually present with low back pain following trauma, heavy lifting or sudden abrupt rotational movement.  I agree with the defendants that Mr. Barnes’ activities and employment meant there was a chance, although not a certainty, that the plaintiff would have suffered harm regardless of the defendants’ conduct and therefore this contingency should be given weight according to its relative likelihood.

[98]            There is a real possibility that his pre-accident condition would have been activated regardless of the accident.  I assess that likelihood at 15%.  I reduce the award for non-pecuniary damages to $85,000 and the award for loss of future earning capacity to $127,500.

D. Mitigation

[99]            With respect to the question of failure to mitigate, I accept Sean Barnes’ explanation on the question of mitigation of damages.  With respect to exercise that was recommended, his evidence was that he did exercises, not every day as suggested, but when he did them, he did them longer than recommended.  He had not started Pilates yet at the date of trial as recommended, but said that the physiotherapy he was doing was of the same nature.  As a result, the defendants have failed to prove that Mr. Barnes failed to mitigate his damages.

“Martinson J.”