October 30th, 2008
If you are injured through the fault of another in a BC motor vehicle accident and are an average person and receive average injuries you are entitled to be compensated for these. What if you are not an average person? What if you are particularly prone to traumatic injury? Would you be entitled to your actual damages or only those damages that the average person should have received? The answer is actual damages.
There is a principle in law known as the ‘thin skull‘ principle sometimes referred to as the ‘you take your victim as you find them‘ principle. If a person is careless and that carelessness causes injury it is no defence to say that the victim was particularly prone to injury or that the injury would have been less if the victim was tougher. So long as the injuries are real and related to the wrongdoing the injued party will be entitled to their fair damages.
Reasons for judgement were relesed today involving a claim for significant emotional damages as a result of a 1999 BC motor vehicle accident. The claim was largely dismissed but in doing so Mr. Justice Chamberlist reviewed several important legal principles of BC tort law including the Thin Skull Principle. The court reference some of the leading authorities and set out the law at paragraph 11 of the judgement. I set this out below.
 Commencing at para. 19, Mr. Justice Cumming succinctly set forth the law as follows:
19 One of the most important principles, for the purposes of this case, is the principle that, for the purposes of assessing damages, a tortfeasor must take the person injured by the tort in the actual condition of that person at that time. This has been called the “thin skull” principle. In its application to psychological problems it has been called the “egg shell personality” application of the principle. In my opinion there is no basis for giving a more restrictive application to this principle in cases where psychological injuries are suffered than would be given in cases where only physical injuries are suffered. A predisposition to suffer psychological injury in circumstances such as those brought about in a particular injury in circumstances such as those brought about in a particular case by a defendant’s wrongful act does not relieve the defendant of the liability to compensate the plaintiff for the injuries represented by those psychological symptoms. Such relief could only occur, as I have said, if the psychological symptoms would have occurred in any event, even without the defendant’s wrongful act, through an application of the cause-in-fact test. Examples of the application of the “thin skull” principle to the award of damages for psychological symptoms in circumstances where there was an existing predisposition include Enge v. Trerise (1960), 26 D.L.R. (2d) 529 (B.C.C.A.), Cotic v. Gray (1981), 17 C.C.L.T. 138 (Ont. C.A.), Elloway v. Boomars (1968), 69 D.L.R. (2d) 605 (B.C.S.C.), and Marconato v. Franklin,  6 W.W.R. 676 (B.C.S.C.)
20 So, in this case, the evidence of Dr. Davis, accepted by the trial judge, to the effect that the plaintiff had a pre-existing disposition towards the psychological symptoms which actually occurred has no relevance in itself in the assessment of damages, as long as the first causation principle of cause-in-fact is met by it being established that the psychological symptoms would not have arisen but for the defendant’s wrongful act.
21 The other important principle, for the purposes of this case, as a principle applicable in dealing with questions of proximate cause, is the principle that a new intervening act, occurring after the defendant’s wrongful act, may given such a pronounced new impetus or deflection to the chain of causation that the original wrongful act of the defendant is no longer regarded as a sufficient cause upon which to rest legal liability. That principle is sometimes referred to as involving the occurrence of a novus actus interveniens.
22 The application of the principle relating to intervening acts involves the difficult task of finding the facts correctly on the basis of the evidence. It also requires a very nice judgment in balancing the causes of the psychological symptoms in order to decide whether the causes arising from the plaintiff’s own pre-existing subjective state and the plaintiff’s own individual conduct as well as from other sources such as the advice and actions of family, friends and healers, have had an independent new impetus or deflection on the existing chain of causation flowing through the defendant’s wrongful act, to such an extent that the defendant’s wrongful act must be regarded as a cause-in-fact for which no legal recovery is permitted. At that point, the defendant’s wrongful act would no longer be sufficient “proximate cause” in law. An example of a case where the cause-in-fact test was met, but the proximate cause test was not met because the plaintiff’s psychological symptoms were brought about by his own new acts after the accident and by his grief, so that the chain of causation was given a new impetus and deflection by his own acts which therefore constituted an intervening causative force, is to be found in Beecham v. Hughes (1988), 27 B.C.L.R. (2d) 1 (C.A.).
23 I propose to make three further observations before leaving this discussion of the principles governing the awarding of damages for psychological symptoms experienced by the victim of a tortious act.
24 My first observation is that I think it is correct to treat a plaintiff’s own conscious wish to receive care, comfort and attention, or the plaintiff’s own conscious failure to exercise his or her willpower to bring about a healing of the symptoms, as coming within the principle of new intervening acts, and to treat those occurrences as giving such a sufficient new impetus or deflection to the chain of causation as to render the original wrongful act no longer a proximate cause. But if the plaintiff’s wish to receive care, comfort and attention is accepted as being entirely unconscious and contrary to the plaintiff’s own apparent efforts to attain a healing of the symptoms, or if the plaintiff’s own failure to exercise his or her own willpower is unconscious and contrary to the plaintiff’s own apparent efforts to attain a healing of the symptoms, then I would not be prepared to say that the plaintiff is still excluded from compensation for the psychological symptoms. In short, I think that the word “conscious” is implicit in points 3, 4, 5, and 6 that I have extracted from Mr. Justice Taylor’s reasons in Maslen.
25 My second observation arises from the concurring reasons of Madam Justice Wilson, sitting in the Ontario Court of Appeal, in Cotic v. Gray. Madam Justice Wilson said, first, that the foreseeability test for remoteness of damage and the thin skull principle cannot co-exist in relation to psychological symptoms either directly brought about by the accident or triggered by the accident on the foundation of a predisposition to suffer such symptoms.
26 Madam Justice Wilson emphasized, second, that in a thin skull case, that is, a case of pre-existing vulnerability, the occurrence of the psychological symptoms should not, without more, be regarded as arising from a new sufficient cause in the nature of a novus actus interveniens. Madam Justice Wilson said this, at p. 180:
In my opinion, it is inappropriate in a thin skull case to view the peculiar vulnerability of the victim as causative in law. Undoubtedly as a factual matter the deceased’s psychiatric condition played a role in his subsequent suicide but the law would be taking away with one hand what it had given with the other if it were to permit the victim’s peculiar vulnerability to break the causal chain, or constitute a novus actus interveniens or, worse still, be treated as the effective cause of his damage. I do not think it was open to the jury to view the motor vehicle accident and the deceased’s psychiatric condition as separate or concurring “causes” and to choose between them which was the “effective cause” of the death. Given the deceased’s pre-existing mental frailty, the medical evidence referred to by my learned colleague established beyond peradventure that the accident and its effect upon Mr. Cotic drove him to his death.
27 I agree with those conclusions of Madam Justice Wilson.
28 My third observation is that there are many cases in which the assessment of damages depends upon an examination of this difficult area. As Mr. Justice Taylor said inMaslen v. Rubenstein, we were referred to more than fifty authorities in argument in that case. However, I wish to make a brief comment in relation to only British Columbia trial decisions.
29 Buteikis v. Adams (1994), 90 B.C.L.R. (2d) 213 (S.C.), is under appeal to this Court. My comment is that I do not propose to say anything whatsoever about that case.
30 In Landry v. Cadeau (24 June, 1985), Vancouver B830850 (B.C.S.C.), it is suggested in obiter dicta that weakness of willpower should not enable a plaintiff to recover damages for psychological symptoms that cannot be healed by the weak will of the plaintiff, if a strong-willed person could have healed the same symptoms in the same circumstances. To the extent that that suggestion is contrary to the application of the egg shell personality principle, I would not follow it.
31 In Smith v. Wensley (15 January, 1988), Victoria 85/0178 (B.C.S.C.), Mr. Justice Taylor said this, at p. 6:
It seems to me that if a person is reduced by an injury to a psychological state, so that continued pain is involuntarily experienced thereafter even though there is no physical basis for it, that pain might logically be attributed to psychological problems brought about by the accident, and the continued sensation of pain could properly be regarded in such a case as something caused by the accident. But where depression or some other psychological condition leading the victim to experience revival or continuation of pain has not been shown to have been caused by the accident to which the pain is attributed, it cannot be said, for the purposes of the law, that a causal connection exists between the injury and the continued pain. The only connection between them is that which exists in the mind of the sufferer – the injury is merely the subject on which the victim’s mind has happened to focus or “fixate” – and that is not, of course, sufficient to establish a connection in law between the injury and the continuing complaint.
32 It seems to me that there are two different types of psychological symptoms that may be covered by the principles that are here being discussed. There are those where the psychological symptoms have their origin entirely in the defendant’s wrongful act. Clearly they are compensable. And there are those psychological symptoms where the defendant’s wrongful act triggers a pre-existing psychological condition so that both the defendant’s wrongful act and the pre-existing condition are causes-in-fact of the psychological injury. In the latter cases the psychological injury will be compensable on the basis of a pre-existing thin skull, except only in cases where the psychological problem is so dominant as a pre-existing condition and the injuries sustained in the accident are so trivial that the accident can no longer be said to be sufficient cause in law to support an award of damages on the basis of proximate cause.
33 I have difficulty accepting that there will be any cases in which it could be said that damages should be refused on the basis that the injury suffered in the accident was merely the subject on which the victim’s mind has happened to focus or fixate, when it cannot also be said that if the accident had not happened something else would have provided the trigger for the focussing or fixating so that the psychological symptoms would have occurred in any event and the cause-in-fact test would not have been met.
34 It is noteworthy that though Smith v. Wensley was referred to in argument in Maslen v. Rubenstein, Mr. Justice Taylor did not return again to the notion that damages would not be awarded if the accident injuries were merely something on which the plaintiff focussed or fixated. I think that if the focussing or fixating has its real origin in the accident, or if the focussing or fixating has its real origin in a pre-existing tendency to focus or fixate in that way, then the psychological symptoms arising from the focussing or fixating would be compensable unless the focussing or fixating would have occurred in any event, but would have chosen a different subject matter on which to crystallize, even if the accident had not occurred.
This case, and cases like it, are worth reviewing for anyone advancing an ICBC injury claim who was more prone to injury than the average person by virtue of their pre-existing physical make-up.