A recent decision reviews arguments from both counsel on whether this case falls under thin skull or crumbling skull principles.  Liability was not admitted but was not a true issue here.  The MVA occurred when the Plaintiff’s vehicle was rear ended while stopped at a stop sign.  “The only issues argued before me at trial are the extent of the injuries the Accident caused Ms. Richardson, and her damages arising from those injuries.”

The Plaintiff claims that the value of her non-pecuniary damages falls in the range of $170,000 to $225,000.  The Defence takes the position that the value falls in the range of $80,000 to $107,000.

The Court concluded that this case involving key injuries of chronic neck, shoulder, and upper back pain, and more frequent and severe headaches is valued at $115,000. in non-pecuniary damages.

The case is referenced as Richardson v Hartwick, 2023 BCSC 2151 (CanLII)

The defence attacked the credibility of the Plaintiff. The key argument here was that the Plaintiff:

• failed to fully report her pre-existing soreness, low mood, and headaches to the various independent medical examiners, making their reports, diagnoses, and opinions (including the medical report tendered by the defendant) unreliable.
• The defendant also says that Ms. Richardson was impeached in cross-examination, and that she overstated her pre-injury sources of income in a pre-trial affidavit.
• For these reasons, the defendant argues that I should find Ms. Richardson neither credible nor reliable, and that she has not proven her injuries or losses.

The Court reviewed the test for assessing credibility and stated the following:

[8]          The test for assessing credibility was recently summarized in Rab v. Prescott, 2020 BCSC 1255 at para. 69 as follows:

… The factors to be considered when assessing credibility were summarized in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296, leave to appeal ref’d [2012] SCCA No. 392. They include the firmness of the witness’s memory, the ability of the witness to resist the influence of interest in modifying her recollection, whether the witness’s evidence harmonizes with independent evidence that has been accepted, whether the witness changes her evidence during direct examination and cross-examination (or between examination for discovery and trial) or is otherwise inconsistent in her recollections, the witness’s demeanor, and whether the witness’s evidence seems generally unreasonable, impossible, or unlikely.

[9]          I also consider the observations made in Hardychuk v. Johnstone, 2012 BCSC 1359 at paras. 8–10 to be pertinent. After reviewing the oft-cited factors to be considered when assessing credibility set out in Bradshaw at para. 186, the Court in Hardychuk said as follows:

[10]      The typical starting point in a credibility assessment is to presume truthfulness: Halteren. Truthfulness and reliability are not, however, necessarily the same. A witness may sincerely attempt to be truthful but lack the perceptive, recall or narrative capacity to provide reliable testimony. Alternatively, he or she may unconsciously indulge in the human tendency to reconstruct and distort history in a manner that favours a desired outcome. There is, of course, also the possibility that a witness may choose, consciously and deliberately, to lie out of perceived self-interest or for some other reason. Accordingly, when a witness’s evidence is demonstrably inaccurate the challenge from an assessment perspective is to identify the likely reason for the inaccuracy in a cautious, balanced and contextually sensitive way. 

Overall, the Court found the Plaintiff to be a credible witness and stated:

[10]       I found Ms. Richardson to be generally candid but unreliable in her recollection of her massage therapy and chiropractic records from 2017 to 2018. She agreed to having mild neck pain and various work-and exercise-related soreness for which she regularly attended massage therapy. She did not endorse the descriptions of her complaints in those records, saying she was unable to remember specifics, other than that she had some pain and stiffness which the massage and chiropractic treatments helped with, and that she used these services to maintain her active lifestyle.

[11]       Although Ms. Richardson did not endorse the truth of all of the subjective complaints recorded by these practitioners on the basis that she was no longer able to remember each specific day, she generally did not contest their accuracy, and she admitted those records as business records with respect to the facts reported and recorded.

[12]       Although the defendant may have found Ms. Richardson’s pre-trial evidence incomplete in some aspects, her evidence at trial did not suffer from this infirmity. Nor do I consider that she was meaningfully impeached on her discovery evidence, given the limited nature of the questions posed in discovery.

The Court also went over the principles of thin skull v. crumbing skull:

[23]       The plaintiff must be placed in the position that they would have been in if not for the defendant’s negligence—no better or worse. Tortfeasors must take their victims as they find them, even if the plaintiff’s injuries are more severe than they would be for the average person (sometimes referred to as the “thin skull” rule). However, the defendant need not compensate the plaintiff for any debilitating effects of a pre‑existing condition which they would have experienced anyway (often referred to as the “crumbling skull” rule): Athey at paras. 32–35.

In reviewing the pre-existing injuries, the Court stated:  Overall, the evidence establishes that before the Accident, despite some bad headaches, occasional muscle soreness, and bouts of low mood, Ms. Richardson was fully capable of maintaining an active social and recreational life, while working more than full-time in a highly demanding job that required her to be “on” every day and at all hours of the day.

Value of this case

[50]       Ms. Richardson seeks $200,000 in non-pecuniary damages. She relies on four cases that she argues are comparable. The non-pecuniary damages awarded in these cases range between $170,000 to $225,000 (adjusted for inflation):

a)    Thiessen v. Kepfer, 2023 BCSC 1593 ($200,000);

b)    Martin v. Steunenberg, 2021 BCSC 1411 ($210,000);

c)    Noftle v. Bartosch, 2018 BCSC 766 ($170,000); and

d)    Craven v. Brar, 2022 BCSC 291 ($170,000).

[51]       By contrast, the defendant suggests that the award should be in the range of $80,000 to $107,000 (adjusted for inflation), based on the following comparable cases:

a)    Andrews v. Mainster, 2014 BCSC 541 ($85,000);

b)    Burtwell v. McCaffrey, 2013 BCSC 886 ($80,000);

c)    Dueck v. Lee, 2019 BCSC 1936 ($75,000); and

d)    Abraha v. Suri, 2019 BCSC 1855 ($70,000).

[52]       In a number of the defendant’s cases, a pre-existing condition was established on the evidence, and significant reductions from the non-pecuniary award were made on that basis. In other cases, the plaintiff was seeking a much lower award for non-pecuniary damages, and the Court’s award reflects that.

[53]       Overall, I do not find the defendant’s cases helpful in this regard. However, I also find that Ms. Richardson’s cases included elements, such as significant psychiatric injuries, beyond those established in her own case.

[54]       In my view, an award of $115,000 for non-pecuniary damages is appropriate based on the evidence in this case.

TOTAL VALUE OF CASE:

[130]    In conclusion, Ms. Richardson is entitled to $429,516 for damages as follows:

a)	Non-pecuniary Damages:	$115,000
b)	Past Loss of Earning Capacity:	$70,000
c)	Loss of Future Earning Capacity:	$180,000
d)	Cost of Future Care:	$42,400
e)	Special Damages	$22,116
	TOTAL	$429,516

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