Niessen v. Sepulveda and Miller,


2008 BCSC 1567

Date: 20081118
Docket: 38278
Registry: Kamloops


Dana Marie Thiessen (Niessen)



Patricio Sepulveda, Sheryl Ann Mantie,
Travellers Leasing Corporation, Jane Doe,
John Doe, James Doe, and XYZ Company Ltd.


Docket: 38757
Registry: Kamloops


Ana Marie Thiessen (Niessen)



Kelvin Miller and Belfor (Canada) Inc.


Before: The Honourable Mr. Justice Savage

Reasons for Judgment

Counsel for the Plaintiff:

K.D. Cowan

Counsel for the Defendants:

L.A. Pedersen

Date and Place of Trial:

September 29-30, 2008

and October 1-3, 6-8, 2008



Kamloops, B.C.

I.                    Introduction

[1]                This is an action for damages for injuries suffered in two motor vehicle accidents in the Fraser Valley. 

[2]                The plaintiff Dana Niessen (“Niessen”) is 24 and now resides in Kamloops.  Niessen seeks damages arising out of two motor vehicle accidents in which the defendants admit liability.  She is currently a medical laboratory assistant (“MLA”) working full-time for the Interior Health Authority. 

[3]                The first motor vehicle accident took place on February 18, 2004 (the “February Accident”).  It was a forceful rear end collision on 56th Avenue in Langley, B.C. which substantially destroyed the vehicles involved.  Niessen was driving a 1992 Toyota Carolla.  The vehicle that rear-ended her was a 1998 Ford pickup truck driven by the defendant Patricio Sepulveda. 

[4]                On July 5, 2004 on Highway #1 near the Sumas exit in Abbotsford, Niessen was involved in a second rear end collision (the “July Accident”).  The defendant Kevin Miller was operating a one tonne Ford Van.  His foot slipped off the brake onto the accelerator and his vehicle lurched forward striking Niessen’s vehicle while her vehicle was moving forward.  Niessen’s account of the accident is similar that of Miller.  There was some minimal damage to Niessen’s vehicle and no damage to the Ford Van. 

[5]                Complicating factors are:  (1) the type of injuries suffered by the Niessen and her pre-accident medical history; and (2) the sequella of a third non-compensable accident in which a pedestrian was killed when running onto a roadway into the path of Niessen’s vehicle albeit through no fault of Niessen (the “Pedestrian Accident”). 

II.                  Issue

[6]                As liability has been admitted to both accidents, the only matter before the Court is to assess damages.

III.                Injuries

A.                  The Plaintiff’s Pre-Accident Condition

[7]                Prior to the February Accident and the July Accident (the “Two Accidents”) Niessen was in generally good health.  That said, she attended chiropractors on an irregular basis and had occasional back pain. 

[8]                The clinical records of Dr. Leyen dated November 24, 2003 show that she was being treated for low back pain.  At the time she was working two jobs, one as a cashier at Overwaitea and another as a waitress at a coffee shop, Second Cup. 

[9]                Medical imaging on November 26, 2003 was normal. 

[10]            By December 2003 her back is reported as improving but the advice was to avoid “back to back shifts”.  On January 16, 2004, Niessen saw Dr. Kilgannon, a chiropractor, for aching and tightness in her lower back. 

[11]            Dr. Koussie, an expert called by the defendant, although aware of Niessen’s pre-accident history said he “cannot state with certainty that she did have a prior problem that would have affected either the diagnosis or the length or [sic] duration of symptomatology” (Page 14, Report August 31, 2005).  He further states, “The symptomatology has been caused by the motor vehicle accident” (Page 16, August 31, 2005). 

[12]            Prior to the Two Accidents she had a cheerful and positive disposition.

B.                 The February Accident

1.                  Injuries

[13]            Niessen was unable to account for some short period of time immediately following the February Accident.  Although wearing a seatbelt the right side of her forehead seems to have struck the steering wheel.  She was able to get out of the vehicle once the help arrived and the driver door could be opened. 

[14]            No ambulance was called but Niessen developed neck and back pain shortly thereafter.  She reported pain on the right side of her neck, the right scapula and the right side of her lower back.  Niessen saw her family physician Dr. Leyen that day.  When examined she had tenderness in the right sternoclavicular muscle, and in the thoracic and sacroiliac areas. 

[15]            Medical Imaging was done of the cervical spine and lumbar spine June 15, 2004.  The cervical spine was normal and nothing significant was observed with respect to the lumbar spine.  Flexion and extension X-rays were taken of the cervical and lumbar spice on June 29, 2004 and these also were normal. 

[16]            The clinical records of Dr. Leyen note ongoing pain in the neck, scapula and lower back through to May 10, 2004.  She continued to have discomfort in the neck as of June 29, 2004, shortly before the Second Accident. 

[17]            Dr. Laidlow diagnoses her injury as being a musculoligamentous strain of the cervical spine and lumbar spine in his report of June 19, 2007.  Dr. Leyen diagnosed her injuries in June 2004 as “significant STI of neck + back”, with STI meaning “soft tissue injury”. 

[18]            Dr. Kousaie in his 2005 report describes her injuries as primarily soft tissue injuries in the neck, mid, low back and sacroiliac areas.  He believes they are not ligamentous.  Dr. Kousaie describes the injuries as mild to moderate in severity.  He acknowledged that such injuries can produce significantly varying sequella in different persons. 

2.                  Treatment and Response to Treatment

[19]            Niessen commenced massage therapy in March 2004.  Niessen reports that the massage was of assistance. 

[20]            Dr. Kilgannon, a chiropractor treated her from March through most of June 2004.  

[21]            Niessen reports that the chiropractic care was of assistance. 

[22]            Niessen made regular visits to Dr. Leyen during this period. 

[23]            The trend of her symptoms was to a decrease in pain and stiffness.  This improvement continued up until the July Accident.  Niessen did have continuing symptoms in her neck and back when the July Accident occurred.

C.                 The July Accident

1.                  Injuries

[24]            The July Accident was more moderate with regard to the impact.  The defendant Kevin Miller agreed in cross-examination that when his foot slipped off the brake onto the accelerator his vehicle lurched forward like a slingshot and struck the slower moving vehicle. 

[25]            Niessen mentioned to Miller at the scene neck and back pain. 

[26]            Although no ambulance attended the scene Niessen saw Dr. Leyen on the day of the second accident.  She reported pain radiating from the neck to the scapular area.  Niessen testified that she had an increase in neck pain, mid back pain, and headaches. 

2.                  Treatment and Response to Treatment

[27]            Up to the date of Dr. Laidlow’s report (June 19, 2007) Niessen had undergone the following treatment, exclusive of visits to her regular physicians:

1)         Marion Campbell, Massage Therapist, from March 1, 2004 to August 1, 2005. 

2)         Dr. Andrew Gagnon, Chiropractor, from August 18, 2004 to October 1, 2004. 

3)         Abbotsford Physiotherapy, from May 4, 2004 to April 19, 2005.  

4)         Fraser Valley Physiotherapy and Rehab from July 22, 2004 to September 13, 2004. 

5)         Dr. Sean Kilgannon, Chiropractor, from January 16, 2004 to March 12, 2004, June 11, 2004 to June 24, 2004 and January 3, 2005. 

6)         Trevor Carne from Functional Kinetics, Kinesiologist, from March 8, 2005 to May 9, 2005. 

7)         Kamloops Physiotherapy from August 15, 2005 to September 1, 2005. 

8)         Luz Meyers, Massage Therapist, from September 8, 2005 to February 1, 2006. 

9)         Dr. Brent Carson, Chiropractor, from October 28, 2005 to November 21, 2006. 

10)       John Coelho, Massage Therapist, from March 23, 2006 to November 21, 2006. 

[28]            After the date of the report she underwent the following treatments, exclusive of visits to her regular physicians:

1)         Dr. Brent Carson, Chiropractor, from July 13, 2007 to February 28, 2008. 

2)         John Coelho, Massage Therapist, from February 6, 2007 to September 15, 2008. 

3)         Kamloops Physiotherapy on August 12, 2008. 

4)         Jeffrey More, counselling, from June 11, 2008 to July 10, 2008. 

5)         Aspen Wellness, counselling from July 29, 2008 to August 28, 2008. 

6)         Yoga therapy from January 30, 2008 to April 1, 2008.  

[29]            On February 4, 2005 Niessen underwent a bone scan at the Royal Columbian Hospital.  This was an investigative procedure to determine if there was sacroilitis which was eventually ruled out. 

[30]            On February 17, 2005 Niessen underwent an injection of the right sacroiliac joint.  No record was made of necessary data to confirm or deny ligamentous injury. 

[31]            In general, over the course of time Niessen’s condition improved until she commenced work in her chosen occupation as a MLA.  Her symptoms have increased since working full-time as a MLA, although the symptoms are more episodic.  Although Niessen testified that her symptoms were continuous, cross-examination established that for much of this period they were irregularly reported and more probably episodic.

[32]            She now reports headaches which were not present for extended periods of time. 

[33]            There is no evidence of muscle wasting or fasciculation. 

[34]            Dr. Laidlow’s examination showed neck mobility with some tightness in forward flexion.  Niessen was tender to palpitation of the cervical paraspinal musculature and trapezius musculature on both sides.  There is tightness in the paraspinal and gluteal muscles on both sides and mild tenderness on palpitation of those muscles. 

[35]            Dr. Laidlow did not support massage therapy after June 19, 2007.  He thought she would be able to work full-time in 2008 and that she would be capable of handling activities around the home albeit more slowly and with pain. 

[36]            Dr. Laidlow’s prognosis was that she would be subject to ongoing muscular discomfort in the neck and lower back and that her symptoms would not settle altogether.  At trial, more than a year after this report, she still experiences symptoms.  Dr. Farren was of the same view, in October 2007, that it was unlikely that she would become completely asymptomatic given the persistence of her symptoms. 

IV.                Impact of Injuries

[37]            Niessen by all accounts prior to the February Accident was in good health.  While she had seen a chiropractor for many years the treatment she received was irregular. 

[38]            From her own evidence, that of her mother Diane Thiessen, and her friend Stephanie Ewan, it is clear that she was a positive outgoing person. 

[39]            She was a good student, enjoyed shopping with her mother and friends, walking and socializing.  She had done volunteer work at 16 when in the Philippines.  She volunteered at the Disability Games.

[40]            At the time of the February Accident she had left employment at two previous jobs, the Second Cup, a café, and a position as a cashier at a store. 

[41]            She was enrolled in a full course of studies at Stenberg College in Surrey leading to a position as a Medical Lab Assistant.  She continued with her course of studies and excelled.  She did so through hard work and at times by studying through pain and discomfort.  

[42]            Prior to the July Accident her condition had substantially improved.  After the July 2004 Accident it worsened but by July 2005 had substantially improved, such that she described a 60% improvement to her family physician, Dr. Leyen. 

[43]            Niessen moved to Kamloops in May 2005.  She had met her future husband Kurtus Niessen.  She had trained for and aspired to a position as a full-time Medical Laboratory Assistant.  Her aspirations were eventually fulfilled. 

[44]            The position of a Medical Laboratory Assistant is one that involves, inter alia, taking blood for diagnostics from a variety of patients throughout the hospital, from the emergency ward through to acute care and extended care facilities.  Patients are not always ideally located, or cooperative, so it involves bending in less than ideal positions. 

[45]            In addition to Niessen, Carol Ann McKechnie (“McKechnie”) described those duties.  McKechnie at age 59 had worked at Royal Inland Hospital for 23 years.  She has a neck injury and finds that the job is a physical one, tiring and exacerbating her ailment.  She undergoes physical exercise to stay fit for the job. 

[46]            In my opinion the evidence indicates that Niessen was generally improving from her injuries until she took her full-time position at Royal Inland Hospital.  Her occupation has exacerbated her symptoms.  Although the litigation has focused her attention on the symptoms they are more episodic than continuous. 

[47]            As a result she periodically takes time off, which is not very different from long-term employees like Ms. McKechnie, although in contrast to McKechnie, Niessen is a much younger woman and only just embarking on her career.  She is also less able to perform household chores because of the pain she has. 

[48]            Niessen is concerned about what the future holds respecting her condition.  She would like to become a mother and is concerned about the impact of her injuries on pregnancy and the care of infants.  Her husband, Kurtus Niessen, has been diagnosed with ulcerative colitus and a liver disorder.  He will likely have both matters treated surgically.  This will place burdens on Niessen in that matters that are currently handled by Kurtus Niessen may fall upon her or a third party. 

[49]            As the defendant points out, none of these may actually come to pass, but in my opinion it is reasonable to assume that if they come to pass the handling of these events will be negatively impacted by Niessen’s condition.  In the absence of other evidence, it also seems fair to conclude that, with both spouses expressing a desire to have children, this is probable rather than speculative or improbable.

V.                  The Pedestrian Accident

A.                  No Fault to Niessen

[50]            On December 30, 2005 Niessen was in an accident with a pedestrian on Fortune Drive between the Tranquille Road overpass and Larch Street in Kamloops, BC. 

[51]            The pedestrian was killed. 

[52]            Without looking at oncoming traffic the female ran into the flow of traffic.  An independent witness Denyse Ferguson reported to the investigating constable that “there was no way that the driver of the other car would have seen the pedestrian”.  Another independent witness Sandy Sanderson reported that “the speeds of the vehicles were not a factor …and there was nothing any of the drivers could have done to avoid the pedestrian”. 

[53]            The RCMP report states that “…it is the investigators position that the pedestrian was at fault for the incident and Thiessen did what she could to avoid a collision that was imminent” and “No charges are being requested by police….”  No charges were laid as Niessen had no fault in this event. 

B.                 Sequella of Pedestrian Accident

[54]            Although Niessen was found blameless by the police the incident has been understandably disconcerting to her.  It was apparent at trial that she had trouble recounting the event without becoming emotional.  That reaction is perfectly understandable. 

[55]            The effect of this accident on her psyche according to Mr. Bezooyen is separable from the anxiety she feels driving because of the February Accident and July Accident.  According to Mr. Bezooyen, whose evidence I accept, she has received the treatment she needs for the anxiety caused by the February Accident and July Accident. 

[56]            Niessen still requires help dealing with the Pedestrian Accident.  What is also clear, however, as pointed out by the defendants, the cost of treatment related to the Pedestrian Accident is not related to the accidents for which liability has been admitted.  I conclude that much of her present anxiety relates to the Pedestrian Accident. 

VI.                Causation

[57]            With the exception of some of Niessen’s anxiety, I conclude that the other complaints she reports, her back and neck pain and some of her headaches are caused by the February Accident and the July Accident. 

[58]            Both those accidents brought about the onset of the back pain and neck pain she reports.  Dr. Kousaie report of August 31, 2005 concludes that the injuries suffered by the two motor vehicle accidents are “primarily, soft tissue injuries” involving the areas where Niessen complains of pain, namely, the “neck, mid, low back and sacroiliac areas”. 

[59]            With respect to the headaches Dr. Kousaie says, “There is, I feel, in part, a relationship of the headaches to the neck strain”.  However, as the defendant showed during cross-examination, there were lengthy periods where there was no reporting of headaches. 

[60]            With respect to anxiety, I accept that she displayed anxiety about driving after the February Accident and July Accident.  At trial she continued to exhibit a strong emotional response to the Pedestrian Accident, which is quite understandable.  The anxiety she experiences because of the Pedestrian Accident, however, is not compensable by the defendants. 

VII.              Characterization of Injuries

[61]            A major difference between the parties concerns the characterization of Niessen’s injuries.  Dr. Kousaie reported that “…I do not believe that this patient suffered an injury more than mild to moderate in severity”.  The plaintiff challenged Dr. Kousaie on this characterization and generally. 

[62]            Dr. Reebye also testified for the defendant and characterized Niessen’s injuries as “mild to moderate soft tissue injuries”.  Dr. Reebye acknowledged that his work as an expert is primarily done for ICBC.  His income from such employment is several times his income under the Medical Services Plan of BC.  He employs a standard form of report writing such that some statements in past reports appear to be similar or the same as statements he made in this report. 

[63]            For example, in the instant case Dr. Reebye diagnosed Niessen thus:

The diagnosis to consider is that of mild to moderate soft tissue injuries as a result to acceleration and deceleration type of forces to which her body was subjected in the motor vehicle accidents of February 18, 2004 and July 05, 2004. 

[64]            In Zaruk v. Simpson [2003] B.C.J. No. 2883, 2003 BCSC 1748, Garson J. quotes from Dr. Reebye’s report in that case of his diagnosis as follows: 

The diagnosis to consider is that of soft tissue injuries as a result of acceleration and deceleration type of forces to which her body was subjected in the motor vehicle accident of August 19, 1999. 

[65]            In the instant case Dr. Reebye continues in his diagnosis of Niessen as follows:

There is no evidence by history, initial clinical examination and present examination to suggest the presence of more sever injuries like torn muscles, damage to ligaments, intervertebral discs, nerves, or nerve roots. 

Injuries of the type sustained heal within a few weeks, although aches and pains can be experienced for longer periods.  These can be due to a number of factors, not necessarily the severity of the injuries sustained.

[66]            In Zaruk v. Simpson Dr. Reebye continues in his diagnosis of the plaintiff in that case: 

There is no evidence by history, initial clinical examination and present examination to suggest the presence of more severe injuries like torn muscles, damage to ligaments, intervertebral discs, nerves, or nerve roots. 

Injuries of the type sustained heal within a few weeks, although aches and pains can be experienced for longer periods.  These can be due to a number of factors; duration of symptoms does not necessarily reflect the severity of the injuries sustained. 

[67]            As pointed out by the plaintiff, there is great similarity to these observations, made several years apart, which seem to reflect a formulaic approach. 

[68]            I agree with Dr. Reebye that the duration of symptoms does not necessarily reflect the severity of the injuries suffered.  For example, Dr. Kousaie reported on August 31, 2005 that “The prognosis is good for complete resolve of symptomatology”.

[69]            Dr. Reebye whose report is dated July 31, 2007 seemed of a similar view when he opined that “…there are no contraindication for her to continue working as lab assistant and her long term work activities will not be affected by the injuries sustained by her in the two motor vehicle accidents”. 

[70]            The plaintiff’s expert, Dr. Laidlow, diagnoses “musculoligamentous strain of the cervical spine and lumbar spine”.  It was his opinion that “she will be prone to ongoing muscular discomfort in the neck and lower back in the years to come” and that it “is unlikely that her symptoms will settle altogether”.  Such has proven to be the case.  

[71]            Dr. Farren, Niessen’s family physician, was of the view that the symptoms “are a result of soft tissue damage that is damage to muscles and supportive structures”.  Since Niessen “…continues to have symptoms at four years after the accidents, I think she is likely to have symptoms in the future”.  

[72]            Dr. Laidlow was also of the view that her injuries would not prevent her from performing her duties as a MLA or prevent her from parenting, although she may have added discomfort as a result of the injuries. 

[73]            On balance, I accept the diagnosis and prognosis of Dr. Laidlow.  I accept that Niessen continues to suffer from her injuries.  Both Dr. Kousaie and Dr. Reebye prognoses have proven wrong.  The persuasiveness of Dr. Reebye’s opinion, in my view, is weakened by his formulaic approach. 

VIII.            Damages

A.                  Thin Skull or Crumbling Skull

[74]            In considering the impact of pre-existing conditions on damages the leading authority is a decision of the Supreme Court of Canada, Athey v. Leonati [1996] 3 S.C.R. 458.  

[75]            It is an essential premise of tort law that damages must place the plaintiff in the position he or she would have been in absent the defendant’s negligence.  It is therefore necessary to not only consider the position of the plaintiff after the tort but also before the tort, it being the difference between these two positions which is the plaintiff’s loss. 

[76]            The “crumbling skull” rule is germane.  It recognizes that pre-existing conditions are inherent in a plaintiff’s position prior to the tort.  Damages should not put the plaintiff in a better position than he or she was prior to the commission of the tort. 

[77]            The metaphor of the crumbling skull illustrates that damages “need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway”.  Thus, the defendant is liable for any additional damage but not that occasioned by pre-existing conditions that will result in future debilitating effects: Athey v. Leonati at ¶ 35. 

[78]            On the other hand if the plaintiff merely has a thin skull, and the damage suffered is disproportionate to the injuries inflicted, the defendant is nevertheless liable for all of the sequella occasioned by his or her wrongful act:  Athey v. Leonati

[79]            As noted above, Dr. Koussaie, an expert called by the defendant, although aware of Niessen’s pre-accident history said he “cannot state with certainty that she did have a prior problem that would have affected either the diagnosis or the length or [sic] duration of symptomatology”.  Of course, to establish this, one need not do so as a certainty.  Dr. Koussaie did not opine that this was a probability either. 

[80]            Based on this evidence, and notwithstanding the skilful cross-examination by counsel for the defendants, I am unable to conclude that Niessen’s pre-existing condition would have produced the symptoms she is experiencing and will experience in the future.  In my view her prior treatment is not evidence of a “manifest and presently disabling” pre-existing condition.  There is no “crumbling skull”. 

B.                 Quantum

[81]            In assessing the quantum of damages it is proven that Niessen suffered a mild to moderate soft tissue injury which is a musculoligamentous strain of the cervical spine and lumbar spine.  Niessen will be prone to ongoing muscular discomfort in the neck and lower back in the future and it is unlikely that her symptoms will settle altogether. 

[82]            Although Niessen will be able to pursue her career as a medical lab assistant she will occasionally miss work and may periodically require home assistance if she raises a family which is a probability.  She will also have to pursue an exercise program to keep her symptoms under control.  She will experience these effects more frequently than others in the same occupation. 

[83]            The plaintiff in argument suggested that an appropriate award for general damages is $80,000 to $100,000.  In doing so, he urged that I follow Boyd v. Harris 2004 BCCA 146.  Of course, since the case is a unanimous decision of our Court of Appeal, to the extent it is germane, I am bound to follow it. 

[84]            In Boyd v. Harris the Court of Appeal held that it is improper to compare the injuries of a particular plaintiff to those of the plaintiff’s in the Andrews Trilogy of cases.  That is because the amount of damages in each case is a question of fact.  The upper limit is a matter of law and the policy behind the law.  The amount of damages in each case is a question of fact because they must account for the specific circumstances of the plaintiff and the impact of the injuries on a specific plaintiff. 

[85]            In Jackson v. Lai, 2007 BCSC 1023, Smith J. awarded $100,000 in non-pecuniary damages to a twice-injured plaintiff.  In addition to her physical injures the trauma experienced by the plaintiff led to ongoing post-traumatic stress disorder and depression. 

[86]            In Deglow v. Uffelman, 2001 BCCA 652 is a decision of our Court of Appeal where it reduced a jury award of $100,000 to $75,000 as being a “wholly erroneous” assessment of damages.  The injuries were a “moderately severe whiplash injury” which resulted in the plaintiff being on and off of work and continuing the use medications to control ongoing symptomatology. 

[87]            In Cash v. Wong [1996] B.C.J. No. 1311, Romilly J. awarded an extremely active plaintiff, who lived with regular pain and considerably attenuated her activities, $50,000 in non-pecuniary damages. 

[88]            In Unger v. Singh, 2000 BCCA 94, [2000] B.C.J. No. 246, the Court of Appeal reduced a jury award for non-pecuniary damages from $187,000 to $90,000.  During the course of her reasons Proudfoot J.A., found that “…the range of damages is indeed wide”.  She continued, “Cases involving primarily soft-tissue injury with some emotional problems including sleep disruption, nervousness, depression, seem to be from a low $35,000 to a high of $125,000”. 

[89]            The final case cited by the plaintiff is Andres v. Leslie, 2005 BCSC 1096, [2005] B.C.J. No. 1722, a decision by Lander J., where he assessed non-pecuniary damages at $65,000 for a young plaintiff of considerable athletic prowess whose chronic condition would impact both her recreational and work life. 

[90]            The defendants cases on non-pecuniary damages do not overlap those of the plaintiff. 

[91]            In Smith v. Towns, 2005 BCSC 79, [2005] B.C.J. No. 100, Slade J. awarded $25,000 in non-pecuniary damages where a young plaintiff suffered soft tissue injuries in two accidents where the prognosis was for full recovery. 

[92]            In Gemmell v. Reddicopp, 2003 BCSC 50, [2003] B.C.J. No. 55, Wilson J. awarded a young female plaintiff $33,000 for two accidents where the primary injuries were soft tissue injuries, there was complete recovery, and the plaintiff made a “fundamental attribution error in assigning responsibility for her current condition to the road traffic accidents” (paragraph 52). 

[93]            The plaintiff in Steward v. Munden [1998] B.C.J. No. 2708 was 52 at the time of trial.  She had been involved in two automobile accidents, where liability was admitted.  The injuries were primarily soft tissue injuries.  The court found that the plaintiff’s pre-existing degenerative condition would have, at some point, caused the ongoing symptoms of which the plaintiff complained.  The court would have fixed non-pecuniary damages at $55,000 to $60,000 but reduced this award to $45,000 to take into account the pre-existing degenerative condition.  

[94]            In Ross v. DaimlerChrysler Financial Services Canada Inc., 2008 BCSC 1158, Rice J. reviewed the applicable law as it relates to evidence that a pre-existing condition would detrimentally affect a plaintiff in the future.  He followed the decision of the Court of Appeal Zacharias v. Leys (2005), 219 B.C.A.C. 88, 2005 BCCA 560 where Esson J.A. considered the principles in Athey v. Leonati

[95]            Esson J.A. held that damages are adjusted where there is a measureable risk that the pre-existing condition would detrimentally affect the plaintiff in the future.  The “measurable risk” need not be proven on a balance of probabilities but should be given weight according to the probability of its occurrence. 

[96]            In my opinion the evidence here falls short of establishing that there is a pre-existing condition.  Certainly the plaintiff had attended before her physician on several occasions before the February Accident complaining of back pain.  She was undergoing some chiropractic treatment as well. 

[97]            This episode is a fact but falls short of establishing that the plaintiff was prone to complaints of this kind or that there was a measurable risk that these complaints would have arisen in any event. 

[98]            In my opinion, these injuries and their sequella fall somewhere between those described in the plaintiff and defendant’s authorities.  I would fix non-pecuniary damages at $55,000.  I would not discount this amount as, in my view, it is not established that the plaintiff by reason of a pre-existing condition had a “crumbling skull”, i.e., there is no measurable risk that the complaints she suffers would have arisen in any event.  In establishing this sum, I attribute most but not all of her ongoing anxiety to the Pedestrian Accident which is not compensable. 

IX.               Past Loss of Income

[99]            There is a small claim for loss of income.  The plaintiff seeks $4760.  The defendant suggests $1500. 

[100]        Following college courses which qualified Niessen to be a medical lab assistant she sought interim employment, because there were no positions available at that time in the Fraser Valley. 

[101]        She obtained employment in a nursery but discontinued that employment because of back pain attributable to her injuries.  Her claim covers the period from the middle of January through April, 2005.  The defendant argues that Niessen could have obtained some employment during this period.  Niessen acknowledged that she did not seek re-employment at the Second Cup or Overwaitea. 

[102]        In the circumstances I would allow this claim but at $3000. 

X.                 Loss of Earning Capacity

[103]        The plaintiff seeks an award of $80,000 for loss of earning capacity.  The defendants argue that this claim should be dismissed or, alternatively, any award must be modest. 

[104]        In my view it is likely that Niessen will continue to suffer periodic back and neck pain.  That is in part because of the occupation she has chosen to pursue.  Heretofore there has been little impact on her employment income although she has, on several occasions, declined overtime because of it.  Her physicians have recommended ongoing exercise to strengthen her muscles to keep her, as much as possible, asymptomatic. 

[105]        If, as Niessen intends, she and Kurtis Niessen start a family her ability to work may be further impacted when she adds those responsibilities.  In the more immediate term, Kurtis Niessen’s health issues may require her to take a more active role in the home, where he currently carries a disproportionate share of these duties.  This would impact her ability to work as well. 

[106]        The plaintiff suggests that a calculation of loss of earning capacity may be based on 4-6 lost hours of overtime a month.  If Niessen works to 60 the capital or present value of the loss, based on various assumptions would be $56,535. 

[107]        The evidence, in my view, falls short of establishing the suggested monthly amount of lost overtime.  If she pursues the strengthening program recommended by her physicians this could also be impacted.  Moreover, the calculation fails to consider time off for maternity leave, vacations, and other contingencies. 

[108]        Using a less mathematical approach, the plaintiff suggests $80,000 as being the value of the loss of the capital asset, namely her former state, which had a greater earning capacity.  The reasoning that supports such quantum is not forthcoming.  

[109]        In the circumstances, in my opinion an appropriate award for any loss of earning capacity is $25,000 which adjusts and discounts the mathematical model the plaintiff presented in argument for the factors mentioned. 

XI.               Cost of Future Care

[110]        The plaintiff argues that there should be an award for the cost of future care.  This is the cost of future help around the home. 

[111]        I disagree with the initial costs suggested.  The annual costs of $1560 seems more reasonable but is higher than appropriate.  Niessen has not had help in the current home, other than that of her husband.  The plaintiff argues that $1560 should be capitalized assuming 50-year time period, producing a present value of $40,138.48. 

[112]        The costs should not start immediately, nor, in my opinion, would they extend beyond retirement.  That is, in Niessen’s current circumstances the cost is probably not necessary, but in the future it may be, but not for the period Niessen suggests.  

[113]        The plaintiff’s calculation assumes such costs to age 75.  After retirement there is no reason to incur these costs as Niessen will not be juggling family and career which these costs, in my opinion, assume. 

[114]        Adjusted for these factors and discounted for contingencies I would award $15,000 under this head.

XII.             Special Damages

[115]        The plaintiff seeks special damages totalling $7,416.81.  The defendant argues that special damages should be no more than $3500. 

[116]        The special damages claimed include passive therapy which, after 2007, is not supported by Dr. Laidlow, whose evidence I accepted. 

[117]        Niessen also received advise to embark on a more active program of exercises early on.  She periodically followed this advice but not fully and in place of it used the more passive therapies. 

[118]        Part of the expense claimed includes a new bed.  In the fullness of time such a purchase would have been necessary in any event. 

[119]        In the circumstances, I am prepared to allow $4500 under this head. 

XIII.           Summary

[120]        The plaintiff will receive the following sums:

(1)               Non-pecuniary damages:       $   55,000;

(2)               Past Loss of Income:              $     3,000;

(3)               Loss of earning capacity:        $   25,000;

(4)               Cost of Future Care:               $   15,000;

(5)               Special Damages:                  $     4,500.

[121]        In the ordinary course costs would follow the event at Scale B.  If there is an issue as to costs they may be spoken to. 

“The Honourable Mr. Justice Savage”