Thin Skull v. Crumbling Skull

Often, a client has pre-existing conditions that become relevant in a “personal injury” legal action, and a careful analysis is necessary.

This recent decision in Cheema v. Khan, 2017 BCSC 974 provides an analysis of the thin skull principle v. the crumbling skull principle and it is worthy of review.

LEGAL PRINCIPLES

[8] The principles to be applied in assessing the change in a party’s condition due to an accident were discussed by Mr. Justice Major for the Court in Athey v. Leonati, [1996] 3 S.C.R. 458, where at para. 35 he explained:

The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which 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 … [(1990), 74 D.L.R. (4th) 1]; Malec v. J. C. Hutton Proprietary Ltd. … [(1990), 169 C.L.R. 638]; Cooper-Stephenson, supra, at pp. 851–852. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.

[9] In Abbott v. Gerges, 2014 BCSC 1329, Madam Justice Warren succinctly summarized the treatment of a pre-existing condition in the context of injuries:

[55] The fundamental principle in assessing tort damages is that the quantum should be that which is required to place the plaintiff in her original position; that is, the position she would have been in absent the defendants’ negligence: Athey, at para. 32. This requires a determination of the plaintiff’s position after the negligence and an assessment of what the original position would have been. The difference between these positions represents the quantum of the defendants’ liability: Athey, at para. 32.

[56] The defendants need not put the plaintiff in a position better than her original one and should not compensate the plaintiff for any damages she would have suffered anyway: Blackwater v. Plint, 2005 SCC 58, at para. 78. In determining the plaintiff’s original position, it may be necessary to reflect any debilitating effects of a pre-existing condition, or a measurable risk that such a condition would have detrimentally affected the plaintiff in the future regardless of the defendant’s negligence. This is the crumbling skull rule and, where applicable, it results in the damages award being reduced to reflect risks inherent in the plaintiff’s pre-accident condition: Athey, at para. 35.

[57] As explained in T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670, at para. 48, a measurable risk need not be proved on a balance of probabilities:

Whether manifest or not, a weakness inherent in a plaintiff that might realistically cause or contribute to the loss claimed regardless of the tort is relevant to the assessment of damages. It is a contingency that should be accounted for in the award. Moreover, such a contingency does not have to be proven to a certainty. Rather, it should be given weight according to its relative likelihood.

PRE MVA FACTS:

Plaintiff cooked for herself;
Cleaned dishes almost every day
Able to handle indoor housekeeping tasks
Did laundry ever second day
Arthritis flared up 2 x per month lasting a couple of days
Plaintiff’s mother would assist her during these flare ups
Shoulder pain occurred 2 x per month, improved with physio
Neck pain occurred 2 x per month, not debilitating
Occasional headaches lasting a few hours would improved with meds
Occasional dizziness
Occasional leg pain, not debilitating
Pain in feet prevented Plaintiff from standing a couple of times in a 2 to 3 month period
Was referred to a foot and ankle clinic, injections assisted with pain
Rheumatoid arthritis prevented her from being active a couple times per month and last 2 to 3 days
Depression impacted activity a couple times per month
Anxiety – meds assisted
Activities included walking 3 to 4 times per week
Swimming
No issues driving

THE PLAINTIFF’S POST-COLLISION CONDITION

Pain in neck, shoulders, low back with headaches
Ongoing pain, headaches and depression, mood changes, panic attacks
Pain into leg, dizziness and nausea
Flaring of hands, wrists and feet
Difficulty sleeping
Pain ongoing 4 to 5 days per week
Limitations: unable to move neck, brush teeth, unable to cook / clean, lift arms up, difficulty standing
Massage limited relief
Medication limited relief
Injections to the shoulder limited relief
Jaw pain/using night guard daily
Difficulty walking and swimming has curtailed
Housework, cooking, cleaning and laundry curtailed

CONCLUSIONS ON CAUSATION

Defence Position:

Plaintiff is not credible
Poor historian
Dishonest with some of the medical witnesses
Evidence inconsistent with other witnesses

The court’s Comments on Causation

“I do not consider that the plaintiff was dishonest in her evidence, as the plaintiff in Paschalidis v. Stutely, 2013 BCSC 1611 at paras. 9–16, 44, 175, was found to have been in some respects, but I have concluded that she does not have a reliable memory of the events both before and after the Collision. Where her evidence is uncorroborated by any of her medical records; her two sons, Rooptej Cheema and Gurtej Varn; a friend of Mr. Varn’s, Richard Boateng; or her sister, Ms. Khehra, I am unable to rely upon it with confidence.

The plaintiff’s son, Mr. Varn, is alienated from his father and lives with the plaintiff. He testified that they have a very close relationship because she is his only parent.

He testified that most Indian boys do not do chores in the house, but he is doing much more now. He gave evidence that he remembered having a discussion about hiring a housekeeper early in his grade 12 year, midway through the second semester.

The plaintiff is justifiably proud of her two sons, both of whom impressed me as caring young men, despite their stated cultural expectations of their mother. Prior to December 17, 2012 both sons did little in the way of housework, relying on their mother to do that, and to cook for them and chauffeur them to their activities.

Mr. Varn gave up a scholarship at the University of Windsor, earned for his proficiency in soccer, to return to British Columbia to assist in his mother’s care when her needs increased following December 2012.

Both sons have done well despite the absence of a father figure during their formative years. The older son, Mr. Cheema, attended post-secondary institutions and now works as a claims adjuster in the insurance industry. The younger son, Mr. Varn, works part time as a financial advisor while completing his university studies in economics.

The plaintiff’s sons described the changes that they perceived in their mother since the Collision, which can be summarized as cooking little or not at all; taking less care or interest in her personal appearance; and becoming quieter, much sadder and more angry than before that date. Both agreed that the plaintiff avoids driving as much as possible and no longer cleans her home or does laundry as she once did. They said that her ability to care for her personal needs, dress herself or pursue the limited exercise activities she previously pursued has diminished. They also said she has taken to wearing looser garments.

While Mr. Boateng and Ms. Khehra corroborated the evidence of the plaintiff’s sons to some extent, their opportunities to observe the plaintiff both before and after the Collision were limited, and their attention to such details was not likely such as to afford them a real perspective on the changes in the plaintiff since December 2012.

While there is little reason to doubt the accuracy of the plaintiff’s medical records prior to December of 2012, the same cannot, in my view, be said of her medical records thereafter.

As I have indicated above, I do not consider that the plaintiff was dishonest in her evidence, or, for that matter with her medical treaters or advisors, but their histories following the Collision are only as reliable as the evidence of the plaintiff herself.

There is no question that Ms. Cheema was unemployable after 2003. She had been on long-term disability from employment as a linen worker since 2004 due to rheumatoid arthritis and major depressive disorder. She was diagnosed with rheumatoid arthritis in the 1990s. The pain was in her neck initially, followed by bilateral hand pain since 2000. Her rheumatoid arthritis affected her hands, wrists, feet, ankles and shoulders. In the month preceding the Collision, the plaintiff had a flare up of her rheumatoid arthritis. Since 2000, the plaintiff had also suffered from longstanding, severe and chronic major depressive disorder, chronic anxiety and panic attacks leading up to the Collision.

I am unable to accept the plaintiff’s submission that her condition prior to the Collision was stable. She suffered from severe rheumatoid arthritis, Morton’s neuromas and a severe major depressive disorder prior to the Collision, and these conditions compromised her ability to ambulate, cook, clean and perform other household activities. I am satisfied that the plaintiff’s severe rheumatoid arthritis and severe depression waxed and waned prior to the Collision, but overall were worsening, and would have continued to worsen even if she had not been involved in the Collision.

I find, however, that the Collision caused an aggravation of her pre-Collision neck, back and shoulder pain and headaches, and likely had a negative effect on the symptoms arising from her rheumatoid arthritis.

I conclude that the plaintiff’s neck, back and shoulder pain and headaches were worsened by the Collision and that without the accident she would not have suffered from those difficulties as much as she has for the four years that have followed the Collision.

I accept the evidence of Dr. Shuckett that stress has a negative effect on someone suffering from rheumatoid arthritis, and has had such an effect on the plaintiff and accelerated the progress of her disease.

I am also persuaded that the Collision had a negative effect on the plaintiff’s psychiatric state that has resulted in a downward spiralling effect causing the plaintiff to brood about her physical condition and limit her activities, in turn worsening her depression, in turn compromising her participation in certain activities and so on.”

CASE LAW RELIED ON BY THE PLAINTIFF

Agar v. Morgan et al, 2003 BCSC 630, rev’d on the quantum of non-pecuniary damages 2005 BCCA 579;

Heska v. Little, [1999] B.C.J. No. 652 (S.C.), aff’d 2000 BCCA 255;

Ramchuck v. Wagar, 2016 BCSC 2342

Redmond v. Krider, 2015 BCSC 178.

Range of $100,000–$150,000 for non-pecuniary damages.

Plaintiff seeks: $120,000

CASE LAW RELIED ON BY THE DEFENDANT

Zigawe v. Rance, 2009 BCSC 1816;

Pope v. Williams, 2001 BCSC 1657;

Knopf v. Knopf, 2002 BCSC 122;

La France v. Natt, 2009 BCSC 1147;