Court of Appeal for Saskatchewan Docket: CACV3874 Citation: Saskatchewan Government Insurance v Huber , 2022 SKCA 122 Date: 2022-10-26 Between: Saskatchewan Government Insurance Appellant (Respondent) And Rick Huber Respondent (Appellant) Before: Kalmakoff and McCreary JJ.A., and Rothery J. (ad hoc) Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Madam Justice McCreary The Honourable Madam Justice Rothery (ad hoc) On appeal from: 2021 SKAIA 13 , Saskatoon Appeal heard: September 14, 2022 Counsel: Robert G. Kennedy, K.C. and Justine A.

Shenher for the Appellant Pierre E. Hawkins for the Respondent Kalmakoff J.A. I. INTRODUCTION [ 1 ] Saskatchewan Government Insurance [SGI] appeals against a decision of the Automobile Injury Appeal Commission [Commission] ( Huber v Saskatchewan Government Insurance , 2021 SKAIA 13 [ Commission Decision ]). The Commission Decision overturned SGI’s decision to terminate the payment of certain rehabilitation benefits to Rick Huber, under the provisions of The Automobile Accident Insurance Act , RSS 1978, c A-35 [ AAIA ] and its associated regulations.

SGI contends that the Commission made various errors, both in finding the facts and in applying the law. It asks this Court to set aside the Commission Decision and to reinstate SGI’s decision terminating Mr. Huber’s benefits. [ 2 ] For the reasons that follow, SGI’s appeal must be dismissed. II. BACKGROUND A. The motor vehicle accident, and the termination of benefits [ 3 ] Mr. Huber was involved in a motor vehicle accident [MVA] on March 10, 2017. He suffered whiplash-type soft tissue injuries to his cervical, thoracic, and lumbar spine.

Over the course of the next year, he received treatment for those injuries from medical practitioners including physiotherapists, a chiropractor, and his family doctor. Mr. Huber attempted to return to work but continued to suffer pain and loss of motion that hampered his ability to carry out the duties of his employment. He applied for, and received, income replacement benefits and rehabilitation benefits from SGI, under the provisions of the AAIA and The Personal Injury Benefits Regulations , RRS c A-35 Reg 3 [ Regulations ] in force at the time. [ 4 ] On March 27, 2018, Mr.

Huber’s physiotherapist determined that he had achieved maximum medical improvement and discharged him from the treatment program in which he had been engaged. On April 2, 2018, SGI issued a Decision Letter to Mr. Huber, terminating his income replacement benefits. He did not appeal that decision. [ 5 ] Mr. Huber continued to experience neck and back pain and said that, in order to return to work, he required regular chiropractic or massage treatment. On May 20, 2018, his family doctor, Dr.

Aaron Friggstad, wrote to SGI to state that, despite having been able to resume working “as a result of his consistent therapy” Mr. Huber’s accident-related symptoms had returned, and that he required ongoing chiropractic treatment to “optimize his function and productivity”. [ 6 ] SGI denied Mr. Huber’s request and terminated his rehabilitation benefits entirely by way of a Decision Letter dated June 28, 2018. Based on the opinion of its medical consultant, SGI took the view that Mr.

Huber had reached maximum medical improvement and had received maximum therapeutic benefit by the time he was discharged from treatment by the physiotherapist on March 27, 2018. SGI’s position was that any ongoing pain and decline in functioning Mr. Huber experienced after that date was no longer causally related to the injuries he had suffered in the MVA but, rather, the result of a pre-existing degenerative condition. B. The Commission Decision [ 7 ] Mr.

Huber appealed the termination of his rehabilitation benefits to the Commission under s. 191 of the AAIA . [ 8 ] During the hearing before the Commission, extensive documentary evidence was presented, including Mr. Huber’s relevant medical and treatment records. Several witnesses also testified in person, including Mr. Huber himself, his sister Arlene Armstrong,

Dr. Friggstad, and two medical consultants hired by SGI (Dr. Dale Mireau and Dr. Jeff Blushke). [9] When the Commission rendered its decision, it began its reasons by thoroughly reviewing the evidence. It also recognized thatthe primary point of contention on the appeal was whether the symptoms Mr. Huber experienced following his discharge from thephysiotherapy program in March of 2018 had been caused by the MVA or were attributable to a pre-existing degenerative condition. TheCommission framed this issue as having two parts, rehabilitation and causation: [77] The issue in this appeal is if [Mr.

Huber] is entitled to more rehabilitation benefits. The SGI decision letter denies further benefitsfor two reasons. First it stated [Mr. Huber] had reached [maximum medical improvement] and is no longer entitled to benefits under theAct and Regulations (the rehabilitation issue). Secondly the decision stated [Mr. Huber]'s symptoms are not caused by the MVA (thecausation issue). [10] With respect to the “rehabilitation issue”, the Commission instructed itself on the legal framework to be applied in determiningwhether Mr.

Huber was eligible for rehabilitation benefits by referring specifically to s. 112 of the AAIA and s. 12 of the Regulations, therelevant portions of which read as follows: AAIA 112(1) In this section, “rehabilitation” includes … measures, programs and treatments that the insurer considers necessary or advisable tocontribute to the rehabilitation of an insured, to lessen the insured’s disability caused by the accident and to facilitate the insured’srecovery from the accident: …

(2) Subject to the regulations, the insurer may take any measure it considers necessary or advisable to contribute to the rehabilitation of aninsured, to lessen a disability resulting from bodily injury and to facilitate the insured’s recovery from the accident. … Regulations 12(1) Subject to subsections (2) to (5), for the purpose of

section 112 of the Act, a measure, program or treatment that meets therequirements described in subsection (2) is deemed to be: (

a) necessary or advisable to contribute to the rehabilitation of the insured; (

b) necessary or advisable to lessen the insured’s disability caused by the accident; or (

c) necessary or advisable to facilitate the insured’s recovery from the accident.

(2) A measure, program or treatment is deemed to be necessary or advisable as set out in subsection (1) if a practitioner provides theinsurer with a written report that establishes to the satisfaction of the insurer that an insured exhibits objective clinical evidence thatongoing use or application of a specific measure, program or treatment is required to: (

a) lessen the insured’s disability; or (

b) facilitate the insured’s recovery.

(3) For the purposes of subsection (2), a measure, program or treatment is deemed to ‘lessen the insured’s disability’ or ‘facilitate theinsured’s recovery’ if: … (

b) the insured has reached his or her maximum medical improvement, but follow-up measures, programs or treatments are required toaddress a decline in the insured’s physical or mental ability to function. [11] The Commission summarized the analysis called for under those provisions by saying that it must first determine whether Mr.Huber had reached maximum medical improvement and, if he had, it would then go on to consider whether he had demonstrated a “needfor supportive care to maintain function” (at para 87). [12] With respect to the “causation issue”, the Commission recognized that, under the AAIA, an insured person’s entitlement tobenefits is limited to situations in which their injuries, or the conditions that require rehabilitation, were caused by an MVA.

TheCommission observed that the applicable test for causation is the “but-for” test set out in Clements v Clements, 2012 SCC 32 at para 8,[2012] 2 SCR 181. The Commission also noted that, in Mr. Huber’s case, there was evidence of a pre-existing medical condition, whichbrought into play the “crumbling skull” doctrine. It cited a portion from Athey v Leonati, (SCC), [1996] 3 SCR 458 atparas 34-35 [Athey] as a self-instruction on the application of that doctrine. [13] The Commission then conducted its analysis, first addressing the issue of causation. In that regard, the Commission madecertain findings of fact.

It accepted that Mr. Huber had suffered soft tissue injuries to his cervical, thoracic, and lumbar spine in the March10, 2017, MVA. It also noted that the medical experts who provided evidence before it had all agreed that injuries of that sort arenormally expected to heal in “a matter of weeks or perhaps months”, but that there “are also outliers to these expectations” (at para 95).The Commission drew the inference that Mr.

Huber was “destined for the eventual development of symptoms” from his injuries and thathe had been “fully functional at work” before the MVA (at para 96). [14] The Commission found that, although Mr. Huber’s pre-existing degenerative condition was a significant factor in his ongoingsymptoms, it was a condition that had been exacerbated by the MVA and, therefore, the MVA was properly seen as having caused his

injuries, in the legal sense. In that respect, the Commission said: [101] Most of the treating medical care providers saw it as a complex mix. [The physiotherapist] and Dr. Friggstad both treated [Mr. Huber] before and after the MVA. They acknowledged pre​existing conditions and the difficulty of identifying a sole cause. Nevertheless, both agree the MVA was a factor in the dramatic change they observed. Both agreed the ongoing symptoms had a relationship with the MVA.

The Commission accepts the MVA was a factor in the ongoing symptoms. [102] The Commission has the utmost respect for all the medical practitioners that provided reports and opinions. The Commission also has no hesitation in finding that [the physiotherapist] was the best informed and made the most reliable and most objective assessment of [Mr. Huber] 's condition for the following reasons: 1. [The physiotherapist] treated [Mr.

Huber]'s shoulder injury prior to the MVA and understood his pre-existing condition. 2. [The physiotherapist] provided extensive hands on therapy in the year following the MVA. 3. [The physiotherapist] showed its objectivity in that it sometimes recommended more treatment and at other times recommended against treatment. 4. [Mr. Huber] clearly had confidence in [the physiotherapist] when he requested treatment there after the tertiary assessment. [103] The best evidence is that after extensive treatment for one year [the physiotherapist] discharged [Mr. Huber] with only minor restrictions in March 2018.

The Commission finds as a fact [Mr. Huber] had significantly recovered from his MVA by the end of March 2018. This does not mean [Mr. Huber] was 100% back to his pre-MVA condition. There may have been residual symptoms related to both the MVA and his pre-existing condition. [ 15 ] Concerning the question of rehabilitation, the Commission acknowledged its obligation to apply the AAIA and the Regulations , and said that the first step in that process, given the factual matrix before it, was to determine if Mr. Huber had reached maximum medical improvement.

On that front, the Commission accepted the opinion expressed in the report from the physiotherapist, namely that Mr. Huber had reached maximum medical improvement by the time he was discharged from physiotherapy treatment in March of 2018. [ 16 ] As the Commission noted, the next step in the analysis was to determine whether, after having reached maximum medical improvement, Mr. Huber suffered a decline in functioning that was caused by the injuries sustained in the MVA. In that regard, the Commission found that Mr.

Huber’s deterioration had been caused by a combination of the injuries suffered in the MVA and his pre- existing condition and, as such, he was entitled to continue to receive rehabilitation benefits. Because of its finding that the MVA was not the sole cause of Mr. Huber’s injuries, the Commission determined that he was not eligible for the full amount of those benefits. The Commission expressed its reasons for these findings as follows: [106] The next issue [we] must assess [is] if there is evidence of regression when treatment stopped.

The Regulations state benefits are payable if follow-up measures, programs or treatments are required to address a decline in the insured's physical ability to function. [107] The Commission accepts there was objective evidence of a decline from the family doctor, chiropractor and eventually from [the physiotherapist] after the discharge. [108] The next issue is to assess if the decline in function was caused by the MVA or other causes. For the reasons indicated above in this decision, the Commission agrees with [the physiotherapist] and Dr. Friggstad the MVA was a cause, but not the sole cause of [Mr.

Huber’s] deterioration following the March 2018 discharge. If we retain [the physiotherapist] as the gold standard of evidence in this appeal, the January 31, 2019 report finds objective changes that are consistence with the MVA injuries. [109] In conclusion, the Commission accepts this relapse was caused by the MVA and other pre-existing conditions. Based on the evidence it is difficult to assess the degree of responsibility attributed to the MVA. Unfortunately, this deficiency of evidence does not excuse the Commission from a decision.

Although somewhat arbitrary we order SGI to pay for 50% of the physiotherapy and chiropractic treatments [Mr. Huber] can satisfactorily prove he has required since March 2018. … [ 17 ] The Commission also pointed out that its decision did not mean Mr. Huber would be entitled to indefinite supportive care, as SGI could reassess his case if that was warranted by ongoing reports of his condition from the practitioners involved in his care. III.

GROUNDS OF APPEAL AND STANDARD OF REVIEW [ 18 ] By virtue of s. 194(1) of the AAIA , parties who wish to appeal to this Court from decisions of the Commission must first obtain leave. Leave to appeal can only be granted on questions of law. By way of a fiat dated October 13, 2021, Tholl J.A. granted SGI leave to appeal on the following question ( Saskatchewan Government Insurance v Huber (13 October 2021) Regina, CACV3874 (Sask CA)): (

a) Did the Commission err in law by determining that Mr. Huber’s medical condition was caused in part by the MVA and by requiring SGI to pay 50% of the costs of his chiropractic and physiotherapy expenses? The consideration of this question of law may include an examination of whether the Commission erred in the following ways: (

i) by committing errors in fact-finding, in determining that Mr. Huber’s medical condition was casually related to the MVA, that rise to the level of an error of law; (ii) by misapprehending the evidence of Dr. Friggstad in a material way;

(iii) by failing to properly apply the crumbling skull doctrine; (iv) by arbitrarily apportioning liability; and (

v) by concluding that Mr. Huber’s medical condition was a relapse without considering the statutory definition of that term. [ 19 ] The arguments SGI raises under these grounds of appeal stand to be assessed against the governing standard of review.

Because appeals of this nature are confined to questions of law, that standard is correctness ( Mercier v Saskatchewan Government Insurance , 2020 SKCA 136 at para 24 , 71 MVR (7th) 13 [ Mercier ]; Montgrand v Saskatchewan Government Insurance , 2017 SKCA 2 , 406 DLR (4th) 546; Van de Sype v Saskatchewan Government Insurance , 2020 SKCA 18 at para 68 ; Silzer v Saskatchewan Government Insurance , 2021 SKCA 59 at para 25 [ Silzer ]). [ 20 ] Findings of fact made by the Commission cannot be the subject of appeals to this Court under s. 194(1) of the AAIA unless they are grounded in an error of law.

There are limited circumstances in which a finding of fact can be said to be grounded in an error of law, namely when it is (

a) based on no evidence, (

b) made on the basis of irrelevant evidence or in disregard of relevant evidence, or (

c) based on an irrational inference of fact ( Murphy v Saskatchewan Government Insurance , 2008 SKCA 57 at para 5 , 310 Sask R 149 [ Murphy ]; Mercier at para 25 ; Silzer at para 24 ). IV. ANALYSIS A. The allegations of error in the Commission’s fact-finding [ 21 ] SGI contends that the Commission made two types of errors in its fact-finding process that amount to legal errors. [ 22 ] First, SGI submits that, based on the “clear, objective evidence” before it, the Commission could not properly have found that Mr.

Huber had proven, on a balance of probabilities, that the symptoms he experienced after his discharge from the physiotherapy program were caused by the MVA. Notably, SGI does not assert that the Commission misstated or misapplied the law respecting causation; it argues only that there was a “mishandling of the facts by the Commission while undertaking its causation analysis”. [ 23 ] SGI’s second argument under the category of fact-finding errors is that the Commission “misapprehended the evidence of Dr. Friggstad in a material way”.

Here, SGI contends that “it is apparent from both the medical file and his testimony that Dr. Friggstad was advocating for additional funding by SGI for [Mr. Huber’s] chiropractic treatment without any evidentiary basis that the Current Symptoms were causally related to the MVA”. [ 24 ] I would not give effect to either of these arguments. [ 25 ] Reading the Commission Decision in light of the record as a whole, I see no basis to conclude that the Commission made a legal error in finding the facts relating to the question of causation.

It is fair to say that there was evidence before the Commission, particularly from Dr. Mireau and Dr. Blushke, that could have supported a conclusion that the deterioration Mr. Huber suffered after reaching maximum medical improvement was entirely attributable to his pre-existing degenerative condition, and not at all to the injuries sustained in the MVA. But there was also evidence—in particular, the physiotherapists’ reports and the testimony of Dr. Friggstad—that supported the conclusion the Commission ultimately reached.

The Commission, as it was entitled to do, accepted the evidence of the physiotherapist and Dr. Friggstad, and not that of the witnesses called by SGI. That does not amount to a legal error. Moreover, in my view, the reasons given by the Commission demonstrate that it carefully reviewed all of the evidence before it and, as set out in the portions of the Commission Decision reproduced above, came to a reasoned conclusion as to why it accepted the evidence that it did. [ 26 ] I also see nothing in the record that supports the assertion that the Commission misapprehended the evidence of Dr.

Friggstad. [ 27 ] I will begin with SGI’s contention that Dr. Friggstad’s evidence was not entitled to any weight because he was effectively acting as an advocate for Mr. Huber. Such a suggestion is entirely without foundation and, moreover, flies in the face of what the Commission explicitly found as a fact. The Commission found Dr. Friggstad to be “an objective observer and reporter” (at para 41).

The Commission was entitled to make that factual finding, and SGI has shown no basis upon which it can properly be disturbed. [ 28 ] SGI also argues that, in the portion of the reasons where the Commission reviewed the evidence, it made a statement about Dr. Friggstad’s testimony that reflects a material misapprehension of the evidence. The impugned statement reads as follows: [49] Dr. Friggstad acknowledged the concept of [maximum medical improvement] and did not have an opinion on if [Mr. Huber] had reached [maximum medical improvement] or if following the withdrawal of therapy , [Mr. Huber] had regressed.

In Dr. Friggstad’s opinion maintenance therapy promoted good long term physical and mental health. [ 29 ] SGI suggests this statement represents a misapprehension of the evidence because it takes the view that, in response to a series of questions posed by one member of the Commission near the conclusion of his testimony, Dr. Friggstad had in fact expressed a clear opinion that Mr. Huber’s condition had not regressed. [ 30 ] With respect, I do not read that portion of the record in the same way SGI does. Nor do I see how the Commission can be said to have misapprehended or mischaracterized Dr.

Friggstad’s evidence on that point. The questions that the Commission member put to Dr. Friggstad concerned whether he had seen any regression in Mr. Huber’s condition since his discharge from the physiotherapy treatment program. Dr. Friggstad responded that he had not treated Mr. Huber in relation to his spinal injuries for more than a year and, from that, he assumed that Mr. Huber’s spinal condition had remained “fairly stable” because if it had gotten worse during that time, he would, presumably, have sought treatment.

He clarified this response by saying: So in my opinion, I guess my, I would assume he has not regressed because I think he would have been in the office sooner if, if things were getting worse and going south, he would have come in to talk to me about it. So I, I can just assume that it’s, that he has not regressed

and that he’s stayed fairly stable. [ 31 ] Read in context, Dr. Friggstad’s answer was anything but the expression of a firm opinion. He did not state a conclusion with any degree of certainty. To answer the question posed by the Commission, he made an assumption and stated, quite clearly, that such was the best he could offer. Viewed in that light, it is hardly surprising that the Commission placed little stock in his response. Accordingly, I do not view the Commission as having misapprehended the evidence by stating that Dr. Friggstad “did not have an opinion” on whether Mr.

Huber had regressed following the withdrawal of therapy. A fair reading of the passage SGI has identified is that the Commission recognized, on that particular point, Dr. Friggstad could offer nothing of any real evidentiary value. [ 32 ] In the end, while SGI has tried to colour certain aspects of the Commission’s fact-finding as legal errors, its arguments under this heading reduce to an invitation to this Court to reweigh the evidence that was before the Commission and come to a different conclusion. That is not our role.

The weighing of evidence involves a question of fact and, absent an error of the sort described in Murphy —which is not present here—interference with findings of fact is beyond the jurisdiction of this Court in a s. 194(1) appeal ( Cass v Saskatchewan Government Insurance , 2021 SKCA 130 at para 78 ). B. The allegations of error in the Commission’s application of the crumbling skull doctrine, apportionment of liability, and use of the term “relapse” [ 33 ] SGI asserts that the Commission erred by: (

a) failing to properly apply the crumbling skull doctrine; (

b) arbitrarily apportioning liability; and (

c) finding that Mr. Huber’s medical condition amounted to a relapse. I will deal with these assertions together as they are, in my view, all interconnected as aspects of a single argument. [ 34 ] These aspects of SGI’s argument focus on the paragraph of the Commission Decision in which the Commission’s conclusions regarding liability and apportionment of damages are expressed: [109] In conclusion, the Commission accepts this relapse was caused by the MVA and other pre-existing conditions. Based on the evidence it is difficult to assess the degree of responsibility attributed to the MVA.

Unfortunately, this deficiency of evidence does not excuse the Commission from a decision. Although somewhat arbitrary we order SGI to pay for 50% of the physiotherapy and chiropractic treatments [Mr. Huber] can satisfactorily prove he has required since March 2018. [Mr. Huber] is also entitled to interest on any amount paid. [ 35 ] SGI contends that the Commission erred in its use of the word “relapse” to describe Mr. Huber’s medical condition. It says that, because the term “relapse” is defined in the AAIA , the Commission was required to conduct an analysis as to whether or how Mr.

Huber’s condition fell within that statutory definition and that the failure to do so was an error of law. SGI asserts that the Commission compounded that error by concluding that the mere existence of a pre-existing condition meant that the crumbling skull doctrine must automatically be applied to apportion liability, in the absence of evidence of a causal link between the MVA and Mr. Huber’s decline in function.

Finally, SGI submits that, even if the Commission was entitled to apply the crumbling skull doctrine, it erred by making an arbitrary decision regarding the apportionment of liability. [ 36 ] I reject each of SGI’s arguments under this heading. [ 37 ] First, I find no error in the Commission’s use of the word “relapse” in paragraph 109, or in the fact that it conducted no on-the- record analysis of whether its factual findings respecting Mr. Huber’s medical condition met the statutory definition of that term.

Let me explain why that is so. [ 38 ] The term “relapse” is defined as follows in s. 2(1) (oo.1) of the AAIA : “ relapse ” means the recurrence of a medical condition directly related to an accident after an interval of improvement. [ 39 ]

Section 2 - 27(2) of The Legislation Act , SS 2019, c L-10.2 , provides that

definitions and other

interpretation provisions in an enactment apply to the whole enactment “except to the extent that a contrary intention appears in the enactment”.

Furthermore, where a statute contains an exhaustive definition of a particular term, as is the case here, the statutory definition displaces the “ordinary” meaning of the defined term in the context of the operation of the statute (Ruth Sullivan, The Construction of Statutes , 7th ed (Toronto: LexisNexis, 2022) at 4.04). [ 40 ] All of that said, in the circumstances of this case, the statutory meaning of the term “relapse” had no bearing on the issues that the Commission needed to determine in resolving Mr. Huber’s appeal.

Apart from the definition section, the term “relapse” appears in only two other places in the AAIA : Division 2 of

Part II, which pertains to eligibility for weekly benefits in circumstances where an insured person has chosen tort coverage (ss. 24.2 and 35.241); and Division 4 of

Part VIII, which pertains to eligibility for no-fault income replacement benefits (ss. 140 to 142). Neither of those categories of benefits were in play in Mr. Huber’s appeal before the Commission. [ 41 ] The issue before the Commission was whether Mr. Huber was entitled to continue to receive rehabilitation benefits . Entitlement to rehabilitation benefits is governed by Division 3 of

Part VIII, and, in particular, s. 112 of the AAIA and s. 12 of the Regulations . The word “relapse” does not appear anywhere in those provisions. Those sections state that eligibility for rehabilitation benefits is determined by whether a “measure, program or treatment” is “necessary or advisable” to “contribute to the rehabilitation of the insured”, to “lessen the insured’s disability caused by the accident”, or to “facilitate the insured’s recovery from the accident”. For someone in Mr. Huber’s position, who had reached maximum medical improvement, s. 12(3) (

b) of the Regulations provides that “follow- up measures, programs or treatments” will be deemed to meet one of those benefit-entitling conditions where they are “required to address a decline in the insured’s physical or mental ability to function”. To state this plainly, Mr. Huber’s entitlement to rehabilitation benefits was not affected, one way or the other, by whether his medical condition amounted to a “relapse” within the AAIA ’s statutory definition of that term.

Accordingly, there was no need for the Commission to have conducted the sort of analysis that SGI says it failed to conduct. [ 42 ] Secondly, I am not persuaded that the Commission failed to properly apply the crumbling skull doctrine.

[43] The “crumbling skull” doctrine in tort law is related to the “thin skull” rule and is engaged where a pre-existing conditionmakes the plaintiff more susceptible to harm, or likely to suffer more serious harm, from tortious conduct. As Major J. described in Athey,the crumbling skull rule recognizes that a pre-existing frailty may serve to reduce the damages to which a plaintiff is entitled, as areflection of the fact that they were not starting from the same place as a completely healthy person: [34] …The “crumbling skull” doctrine is an awkward label for a fairly simple idea.

It is named after the well-known “thin skull” rule,which makes the tortfeasor 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, and is therefore liable even though the plaintiff’s losses aremore dramatic than they would be for the average person. [35] The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “originalposition”.

The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for theinjuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing conditionwhich the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage:Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at pp. 39-40.

Likewise, 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, then this can be taken into account in reducing the overall award: Graham v. Rourke,supra; Malec v. J. C. Hutton Proprietary Ltd., supra; Cooper-Stephenson, supra, at pp. 851-852.

This is consistent with the general rulethat the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a betterposition. (emphasis in original) [44] SGI concedes that the Commission correctly recognized that, in light of the evidence pertaining to Mr. Huber’s pre-existingdegenerative condition, the thin skull and crumbling skull doctrines were potentially engaged in this case.

However, SGI contends that theCommission failed to conduct the necessary analysis or properly apply those doctrines, in that it failed to determine whether the evidenceestablished a causal link between the MVA and Mr. Huber’s difficulties after the accident.

I do not accept this argument. [45] The determination of whether a plaintiff has a pre-existing condition that puts them into the thin skull or crumbling skullcategory involves a question of fact (see, for example: Saskatchewan Government Insurance v Steinhauer, 2006 SKCA 1 at para 20, 275Sask R 59; and Johannson v Saskatchewan Government Insurance, 2019 SKCA 52 at para 39).

As discussed earlier, interference withfindings of fact in the context of an appeal such as this is justified only where the finding of fact is the product of a legal error. [46] I see no legal error in the Commission’s fact finding on this point. It found that Mr. Huber’s ongoing difficulties and decline infunction were “caused by the MVA and other pre-existing conditions” (at para 109). As I stated previously, such a finding was amplysupported by the evidence of the physiotherapist and Dr.

Friggstad, which the Commission was entitled to, and did, accept. [47] SGI also contends that the Commission erred by arbitrarily apportioning its liability at 50 per cent. It asserts that this “is a clearerror of law that sets a dangerous precedent”. I also reject this argument. [48] Having concluded that the crumbling skull doctrine applied, the Commission correctly determined that it was necessary toconsider apportionment, to properly recognize the effect that Mr. Huber’s pre-existing condition should have on SGI’s liability forrehabilitation benefits.

While there was a lack of evidence pertaining directly to the question of apportionment, that did not absolve theCommission of its duty to make a fair assessment of damages (see, for example: 10100002 Saskatchewan Ltd. v Saskatoon Co-operativeAssociation Limited, 2022 SKCA 12 at paras 22-23; Penvidic Construction Co.

Ltd. v International Nickel Company of Canada Limited, (SCC), [1976] 1 SCR 267 at 278-279; Hughes v Bachman Holdings Ltd. (1991), (SK KB), 91 Sask R244 at para 26 (QB), aff’d (1992), 97 Sask R 307 (CA); Pallos v Insurance Co. of British Columbia (1995), 100 BLCR (2d) 260 at para43 (CA); and 0867740 B.C. Ltd. v Quails View Farm Inc., 2014 BCCA 252 at paras 42-44). [49] Athey instructs that, in crumbling skull cases, it is not appropriate to hold the defendant responsible for the plaintiff’s pre-existing damage, only the additional damage suffered from the defendant’s actionable conduct.

This must be accounted for in thecalculation of damages, which, in such cases, is rarely a straightforward task, and often involves a notional exercise to apply a percentagediscount to the award that would otherwise be made. As Major J. noted, quoting from the decision of Lord Diplock in Mallett vMcMonagle, [1970] AC 166 (HL) at 176, crumbling skull cases require the “court [to] make an estimate as to what are the chances that aparticular thing will or would have happened and reflect those chances … in the amount of damages which it awards” (at para 29). [50] That is what the Commission was faced with here.

Having found that Mr. Huber’s ongoing symptoms were attributable, at leastin part, to the MVA, the Commission concluded that he was entitled to continue to receive rehabilitation benefits. However, because Mr.Huber’s symptoms were also partly attributable to his pre-existing degenerative condition, the Commission was required to apply thecrumbling skull doctrine to determine the appropriate amount by which to reduce his entitlement. That determination had to be made eventhough the evidence pertaining to that point did not readily lend itself to a precise mathematical calculation.

As I read the record, theCommission did what the governing authorities instruct, namely, it made an estimate based on the evidence before it to arrive at a fairassessment of damages. While the Commission may have made an unfortunate choice of words when it described its apportionment ofliability as “somewhat arbitrary” (at para 109), it did not, in my view, commit a legal error in so doing.

In a crumbling skull case, anestimation of damages, grounded in the evidence, is not arbitrary or legally improper, even if it involves some guesswork on the part ofthe trier of fact (Athey at paras 28–36; see also: York v Johnston (1997), (BC CA), 148 DLR (4th) 225, 37 BCLR (3d)235 at paras 8–9 (CA); Turcoane v Schaffer (1996), (SK KB), 147 Sask R 93 (QB); and Young v Regina DistrictHealth Board, 2010 SKQB 242 at para 334, 356 Sask R 1). [51] Accordingly, I am not persuaded that there is any basis to intervene with the Commission’s apportionment of liability in thiscase. This ground of appeal cannot succeed. V.

CONCLUSION

[ 52 ] For the foregoing reasons, I would dismiss the appeal. Mr. Huber is entitled to the costs of the appeal, and the costs of the application for leave, calculated in the usual way. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “McCreary J.A.” McCreary J.A. I concur. “Kalmakoff J.A.” for Rothery J. (ad hoc) (as per authorization)