ICBC Law

When a Plaintiff suffers injuries by the fault of another but the evidence establishes that the person would have likely suffered the same symptoms of pain because of a pre-existing condition the Plaintiff’s award of damages can be reduced to reflect this reality.  This principle of personal injury law is known as the “crumbling skull” doctrine.  Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, dealing with this area of law.

In this week’s case (Booth v. Gartner) the Plaintiff was injured in a 2007 BC car crash.  The Defendant struck the Plaintiff’s vehicle when he entered an intersection against a red light.  ICBC admitted fault on behalf of the Defendant but disputed the extent of the accident related injuries.

At trial Mr. Justice Cole found that the accident caused a variety of injuries.  One of the most significant was low back pain which continued to the time of trial.  The Plaintiff did not have back pain before the car crash however she had severe pre-existing (although asymptomatic) facet arthritis in her low back.  The accident caused this condition to become painful.  The Court was persuaded that this condition had a likelihood of developing pain in the future even without the accident.  As a result of this finding the Court reduced the Plaintiff’s non-pecuniary damages by 25%.  In reaching this result Mr. Justice Cole reasoned as follows:

[23] I accept Dr. Vallentyne’s opinion that the degeneration in her lower back is severe at two levels and it is likely she would have been troubled by lower back pain and stiffness at some time in the future, absent Accident #2. However, I am also satisfied that although the degeneration is pre-existing, there was symptomatic acceleration of the facet arthritis as a result of Accident #2…

[26] The CT scan of September 20, 2008, according to Dr. Vallentyne, “showed severe bilateral degeneration of the facet joints at the L4-5-S1 levels in addition to a minor 3 mm L4-5 degenerative anterolisthesis”.

[27] According to Dr. Vallentyne, degenerative changes take years to develop and he found it was probable that the plaintiff had degenerative changes of her lower lumbar facet joints prior to the 2007 motor vehicle accident. He concluded that “[g]iven that the degeneration is severe at two levels, it is likely that Ms. Booth would have been troubled by low back pain and stiffness at sometime in the future absent the 2007 MVA.”

[28] I am satisfied that 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, and I must take that into account in reducing the overall award.

[29] The principle to be applied is found in Zaruk v. Simpson et al., 2003 BCSC 1748, 22 B.C.L.R. (4th) 43 [Zaruk]. There the plaintiff had suffered a soft-tissue injury but some of her symptoms by the time of trial were consistent with degenerative changes. The Court was not satisfied that the general condition would have become symptomatic between the date of the accident and the date of trial, but concluded at para. 40, that there was a measurable risk that it would have become symptomatic in the future:

[40]   However, application of the crumbling skull doctrine may not result in the same reduction for past losses as future losses. Past losses must be assessed on the basis of a balance of probabilities. “Once the burden of proof is met, causation must be accepted as a certainty,” [Athey v. Leonati, [1996] 3 S.C.R. 458] ¶ 30). But for the assessment of future losses, “[a] future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation,” (Athey ¶ 27)

[30] The Court then reduced non-pecuniary damages by 15% and future care damages by 20%.

[31] Because the plaintiff’s degenerative condition was described by Dr. Vallentyne as “severe bilateral degeneration”, I am of the view that a large deduction is appropriate in this case and I find an appropriate deduction for non-pecuniary damages is 25% and for future care damages, 30%.

As I previously wrote,  a great discussion of this area of the law was also provided in a recent case (Gohringer v. Hernandez-Lazo) where Madam Justice Russell summarized the law as follows:

[92] In a crumbling skull situation, as in this case, the plaintiff has a pre-existing condition which is active, or likely to become active.  The pre-existing condition “does not have to be manifest or disabling at the time of the tort to be within the ambit of the crumbling skull rule”: Barnes at para. 89, citing A. (T.W.N.) v. Clarke, 2003 BCCA 670, 22 B.C.L.R. (4th) 1 at para. 62. In crumbling skull situations, the defendant is only liable for damages caused by the accident and responsible for returning the plaintiff to their original position.  As Major J. stated in Athey: the defendant is liable for the additional damage but not the pre-existing damage: at para. 35.   The defendant is therefore not liable for the effects of the pre-existing condition that the plaintiff would have experienced in any event: A. (T.W.N.) at para. 52.  If there is a “measurable risk” that the pre-existing condition would have impacted the plaintiff in the future then, regardless of the defendant’s negligence, a court can take this into account in awarding damages: at para. 35.

[93] In addition, the defendant claims an independent intervening event, subsequent to the Accident, also had significant impact on the plaintiff.  An independent intervening event is an unrelated event, such as disease or a non-tortious accident, that occurs after the plaintiff is injured.  The impact of such events is taken into account in the same manner as pre-existing conditions: Barnes at para. 96.  Thus, the plaintiff is only entitled to damages which flow from the difference between his or her original position and their “injured position”: Athey at para. 32.  If the unrelated event would have impacted the plaintiff’s original position adversely, the “net loss” attributable to the accident at issue will not be as great and damages will be reduced proportionately: Barnes at para. 96.

[94] I note that our Court of Appeal has stated that a reduction in damages to reflect the impact of independent intervening events or pre-existing conditions applies equally to non-pecuniary and pecuniary damages: A. (T.W.N.) at paras. 36-37; Barnes at para. 90.

In BC Injury Claims (tort claims) a damage award can be reduced to account for the extent that a pre-existing condition contributes to a subsequent impairment.  Reasons for judgement were released today by the BC Court of Appeal discussing this area of law in the context of a jury trial.

In today’s case (Laidlaw v. Couturier) the Plaintiff was involved in a 2004 motor vehicle accident.  The Plaintiff suffered from various pre-existing difficulties including depression.  He was injured in the car accident and following a Jury Trial his damages were assessed at $128,717.  The Jury went on to reduce this award by 85% to take into account the “measurable risk that the plaintiff would have suffered from the (post accident) physical and psychological complaints even if the (car accident) had not happened“.

The Plaintiff appealed this jury award arguing that the trial judge made a mistake in having the Jury give a general ‘across the board’ reduction of damages for the risk of difficulties the pre-existing conditions may have posed.  The BC Court of Appeal agreed that the trial judge did indeed err in instructing the Jury and ordered a new trial.  In coming to this conclusion the BC high court extensively discussed the law of reduction of damages to account for risks of pre-existing conditions.  The highlights of this discussion were as follows:

[42] Ultimately, this appeal turns on a significant error exposed in the jury charge, in the third jury question, and the ultimate verdict.

[43] As can be seen from the emphasized portion of the jury charge recited in paragraph 26 of these reasons, the trial judge instructed the jury that if they found that “if the May 2004 accident had not happened there was a material risk that Mr. Laidlaw would nevertheless have suffered from general anxiety or depression or back problems, then you should reduce Mr. Couturier’s liability by the amount of that material risk, whatever you find it to be.”…

[47] The wording of question 3, together with the judge’s charge on causation was overly simplistic.  The various conditions from which the plaintiff had suffered previously, and the symptoms to which they gave rise, were not capable of reduction to a single “measurable risk”.

[48] One, some or none of those previous conditions might have “detrimentally affected the plaintiff in the future”.  One or more of those conditions might have affected him at different points in time.  The degree to which each such condition might have affected him need not have been identical.

[49] To lump these variables together into one question and to invite a single mathematical adjustment was unfair and inappropriate.

[50] Athey was a case with a single identifiable injury, a disc herniation, occurring some months after the accidents giving rise to the plaintiff’s claim.  There was a single pre-existing condition, “a history of minor back problems”, which was alleged to have contributed to his injury.  I do not read the language in Athey, while appropriate to the kind of case with a single measurable risk, to be transferable to the facts of a more complex case such as this one, which involves the assessment of multiple and distinct measurable risks.

[51] The contributing effects of a pre-existing condition to a subsequent injury can be taken into account if the trier of fact considers that to be appropriate.  In many cases, it may well be a relevant factor for the jury to consider.  However, the jury should be told that the effect to be given to such a “measurable risk” should be carefully related to the specific facts of the case.  In a case such as this, where there were various pre-existing conditions, and where it was uncertain if, when, or to what degree those conditions might adversely affect the plaintiff in future, it was an error to invite a general reduction across the board, as is required by question 3.

[52] In my opinion, the first portion of the charge on causation and in question 3 directed the jury to undertake a formulaic approach to the assessment of damages attributable to the defendant rather than directing them to consider, in a nuanced fashion, all of the contingencies and risks inherent in Mr. Laidlaw’s individual circumstances and to arrive at a global assessment of damages.  Question sheets such as this one that ask the jury to answer questions that tend to reveal their deliberations are not helpful, invite appeals, and are to be avoided.

[53] It must be said that the second portion of the trial judge’s written instructions did not mirror the wording in question 3.  However, it stands to reason that by the time the jury was completing its deliberations, their focus must have been on the question sheet.  Question 3 is clear in its terms but, unfortunately, incorrect in its legal effect.  In my view, it amounts to misdirection…

[58] In the end, it is impossible to say with confidence that the jury properly understood its task in assessing the damages due to Mr. Laidlaw.  In my view, the only recourse available is to order a new trial.

How is a claim for compensation affected if you suffer from pre-existing injuries and as a result of the fault of another have your injuries aggravated?  If your injuries would have deteriorated eventually without the intervening event your claim for damages can be adjusted accordingly.  This is sometimes referred to as the ‘crumbling skull’ principle and reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, applying this point of law.

In today’s case (Jopling v. Bradowich) the Plaintiff was injured in a 2004 BC Car Crash.  The Plaintiff’s accident related injuries included headaches, disturbed sleep, depression and chronic pain.  However, the Plaintiff suffered from pre-existing problems which were summarized by Mr. Justice Rice as follows: “ I am satisfied that the plaintiff suffered from pre-existing injuries to her lower back prior to the motor vehicle accident, and that there was a general degeneration of her spine, all of which were likely to lead her to the condition that she now experiences, although probably not as soon as it did because of the accident.”

The Court valued the Plaintiff’s non-pecuniary loss (pain and suffering) at $75,000 but then reduced this award by 20% to ‘reflect the contingencies that her back and shoulder pain would have manifested regardless of the accident‘.

In reaching this conclusion Mr. Justice Rice made the following observations of the law of causation in BC personal injury claims:

29] The principal issue in this action is whether the plaintiff’s individual injuries were caused by the accident, or whether they were only aggravations of pre-existing injuries.

[30] Proof of causation is determined by the “but for” test: Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 14; Hanke v. Resurfice, 2007 SCC 7, [2007] 1 S.C.R. 333, at para. 21). If I find that “but for” the defendant’s conduct the plaintiff would not have been injured, then the defendant is liable for all the damages flowing from those injuries.  If the conduct of the defendant is unrelated to the alleged loss, then the defendant is not liable.

[31] It is no answer to a plaintiff’s claim for damages that he or she would have suffered less injury or no injury at all had he or she been less susceptible.  If an individual has a pre-existing condition, the person who injures that individual must take him or her as found: Athey, at para. 34.

[32] However, if the plaintiff’s injuries would have manifested themselves on their own in the future regardless of the defendant’s conduct, the court must apply a contingency factor to address that possibility.  Such a contingency does not have to be proven to a certainty.  Rather, it should be given weight according to its relative likelihood: Athey, at para. 35.

Reasons for judgement were released yesterday by the BC Supreme Court (Pavlovic v. Shields) awarding a Plaintiff just over $134,000 in total damages as a result of injuries sustained in 2 separate motor vehicle collisions.

The first collision was in 2006 and the second in 2007.  Both were rear-end crashes and the Plaintiff was faultless in both collisions.  Often in ICBC Injury Claims involving multiple collisions where fault is not at issue damages are assessed on a global basis and that is what occurred in this case.

Mr. Justice Rice found that the Plaintiff had pre-existing back and shoulder pain before these accidents that that even without these accidents the Plaintiff would have continued to have pain in these areas.  The Court made the following findings with respect to the Plaintiff’s injuries and awarded $40,000 for her non-pecuniary loss (pain and suffering / loss of enjoyment of life):

[59]            In this case, the plaintiff had back and shoulder pain pre-dating both accidents.  This is a “crumbling skull” situation.  It is more probable than not that the plaintiff would have experienced ongoing problems with back pain, for which she had already seen a Dr. Ansel Chu on several occasions in 2003.  The plaintiff claims these injuries were fully resolved, and relies on Dr. Chu’s report of August 14, 2003, in which he states that the plaintiff had had good relief from pain following a series of trigger point injections.  However, Dr. Chu does not state that her injuries had resolved, merely that she was “doing quite well” and that she could make a further appointment with him if the pain flared up again.  That the plaintiff made no further appointments is likely explained by the fact that she went to Europe for an extended period shortly after her last appointment with Dr. Chu. 

[60]            The evidence from Dr. Petrovic’s report is that only two permanent injuries from the accidents are likely: the TMJ and the right hip.  He would defer to the experts on those and has a guarded prognosis for the remainder of her injuries.  Dr. Epstein testified that the TMJ injury is likely to improve with continued treatment.  Dr. Smit was of the opinion that the right hip would require surgery.   

[61]            I accept that the plaintiff had no pre-existing hip or jaw complaints and that these are her principal injuries.  The hip may require surgery and her jaw will require ongoing management and treatment.  The defendants are fully liable for these injuries.  Her other injuries – the neck, shoulder and back pain – are likely to improve over the next year.   The effects of the concussion resolved nine months after the accident.  Taking these factors into account, I consider an award of $50,000 in non-pecuniary damages appropriate in the circumstances, the bulk of which reflects the injuries to the jaw and hip, discounted by 20% to reflect the plaintiff’s pre-existing chronic back pain, for a total of $40,000.

Mr. Justice Rice also did a good job explaining 2 legal principles which often arise in ICBC Injury Claims - the ‘thin-skull’ principle vs. the ‘crumbling skull’ principle.  He summarized these as follows:

[54]            The defendant does not go so far as to deny that the accident caused or contributed to the plaintiff’s injuries.  The concern is as to the extent.  The issue is whether this is a “thin skull” or a “crumbling skull” situation.  Both address the circumstances of a pre-existing condition and its effect upon the accident victim.  The law is that the defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition if the plaintiff would have experienced them regardless of the accident: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 35, 140 D.L.R. (4th) 235.  The court requires “a measurable risk” or “a real or substantial possibility and not speculation” that the pre-existing condition would have manifested in the future regardless of the plaintiff’s negligence.  The measurable risk need not be proven on a balance of probabilities, but given weight according to the probability of its occurrence: Athey v. Leonati, at para. 27.

[55]            The injury is deemed “thin skull” when there is a pre-existing condition that is not active or symptomatic at the time of the accident, and that is unlikely to become active but for the accident.  If the injury is proven to be of a thin skull nature, then the defendant is liable for all the plaintiff’s injuries resulting from the accident. 

[56]            A “crumbling skull” injury is also one where there is a pre-existing condition, but one which is active or likely to become active regardless of the accident.  If the injury is proven to be of a crumbling skull nature, then the plaintiff is liable only to the extent that the accident caused an aggravation to the pre-existing condition.