This case is distinguished from Athey v. Leonati in that I find the plaintiff's injury was likely to have occurred in any event. Therefore, a reduction of damages is appropriate. I would reduce the plaintiff's damages by 30% to reflect the risk of disc herniation having regard to the evidence that the plaintiff had signs of nerve root irritation before this accident and was being treated for ongoing low back pain, which affected her work and recreational activity, almost to the date of the accident. I have taken into account the possibility that future disc herniation may not necessarily have required surgery and recovery may not have taken the same course seen here, but I find a measurable risk of surgery existed. MITIGATION
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