In the recent Court of Appeal case of Valuck v. Challandes, 2012 BCSC 324, Mr. Justice Rogers considered whether there was a measurable risk that the plaintiff would have been impaired by a disabling condition even if the she had not been injured in a motor vehicle accident.
Pre-Existing Disc Disease in ICBC Injury Case
In this case the plaintiff was injured in a car accident in June 2007 in a head on collision near Nelson BC. At the time of the accident the plaintiff was in independent contractor for an internet based travel agency. Following the accident the plaintiff’s main complaints were related to pain in her chest, ribs, neck and shoulder s and mid back. She had mild back pain. The plaintiff had increased low back pain following a slip and fall accident in 2008 and was diagnosed with degenerative disc disease in her low back. In August 2008 the plaintiff experienced further back pain and was diagnosed with a general disc protrusion impinging on a nerve root, a condition which caused excruciating pain.
Justice Rogers found that the accident was a cause of the disc herniation:
 I have concluded that the evidence in this case does not admit a scientifically certain answer to the herniation question. Scientific certainty is not necessary, however…
 After taking into account all of the medical evidence and the all of evidence of the plaintiff and her witnesses, and after applying a soupcon of common sense to the mix, I have concluded that the accident did cause some damage to the containment wall of the plaintiff’s L5-S1 disc and that that damage was a material contributing factor in the herniation that occurred at the end of August 2008. It follows that I find that the defendant is liable for damages caused by that herniation.
The court awarded the plaintiff $100,000 for her pain and suffering, saying the following:
 The plaintiff’s symptoms were generally resolving but had not completely resolved by the first anniversary of the accident. When the first herniation occurred in the late summer of 2008, the plaintiff’s activities were still limited by reduced stamina, and pains in her chest, left shoulder and mid-back. She was nevertheless able to work six hours per day at her business and was able to do most of the chores around her home.
 The first and second herniations of the plaintiff’s lumbar disc were very painful and very limiting. It took four or five months for the symptoms of the first herniation to settle. Symptoms from the second herniation settled over roughly the same time span.
 The plaintiff now guards her lower back against any vigorous activity. In the result she avoids virtually all outdoor recreation. Pains in her lower back are aggravated by prolonged sitting. Her ability to lift and twist is compromised. The plaintiff’s left shoulder limits her ability to reach and work over her head. The plaintiff’s chest is painful upon compression. These conditions will continue to limit the plaintiff’s ability to participate in and enjoy life.
Given the plaintiff’s pre-existing degenerative disc disease, Justice Rogers found that the plaintiff had a 40% risk of suffering a herniation in her low back without the accident and ordered that the plaintiff’s damages be reduced accordingly. He said the following in respect to that assessment:
 The guiding principle for an award of damages in a tort case is that the plaintiff be put in the position she would have been had the tort not happened. To accomplish this purpose, the court requires the defendant to pay money to the plaintiff. The money is understood to stand in place of the enjoyment of life, income and other personal assets that the plaintiff proves that she has lost as a consequence of the tort.
 A corollary of this guiding principle is that the award of damages should stop short of putting the plaintiff in a better position than she would have been had the accident not happened. If follows that if the evidence shows that there was a material risk that the plaintiff would have suffered some or all of the losses for which she claims even if the tort had not happened, then, in that case, her claim must be reduced to account for that risk.
 While the accident materially contributed to the plaintiff’s herniated disc, the evidence does raise the question of whether there was a material risk that the plaintiff would have suffered the herniation even if the accident had not happened. This is a question of assessment of damages, not of liability.
 The plaintiff’s pre-accident history of complaints of intermittent low back pain and of pain radiating into her buttock and leg are highly significant here. So too are the x-rays of her back that were taken in the summer of 2006 and in May 2008. I accept Dr. Laidlow’s opinion that these films show that the disc spaces of the plaintiff’s lumbar spine had narrowed, that the narrowing meant that she had degenerative disc disease and that such narrowing occurs gradually over time. I find that as of the date of the accident, the plaintiff in fact had degenerative disc disease in her lumbar spine. I also accept Dr. Laidlow’s testimony that persons who most often experience disc herniations are persons who do a great deal of sitting, such as truck drivers. The plaintiff’s career as a travel agent required her to sit a lot – indeed, sitting too long is one of her major complaints at present.
 Based on this and all of the other evidence in the case, I have come to the conclusion that there was a substantial risk that even without the accident the plaintiff would have suffered her herniated disc in the summer of 2008. I would put that risk at 40 percent. The plaintiff’s claims for income loss and special damages up to the end of August 2008 should not be adjusted for that risk. All other claims must be reduced to account for that risk.
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