Crumbling or Thin Skull?

The Supreme Court of British Columbia recently released a decision in a claim where the plaintiff was injured in 2 motor vehicle accidents in 2015 and 2018: Boyetchko v. Mentias, 2021 BCSC 172.

Although both defendants conceded that the plaintiff was injured in the accidents, they disputed the seriousness of the injuries and argued that 60% of the damages claimed was due to the plaintiffs’ pre-existing health conditions, such as fibromyalgia and anxiety.  This argument is colloquially referred to as the “crumbling skull” defense.  It means that because of her pre-existing health condition, the plaintiff would have suffered from the same symptoms and injuries regardless of the accidents.  The counter argument is referred to as “thin skull”, which means that the defendant is liable for the plaintiff’s injuries even if the injuries are unexpectedly severe due to the plaintiff's pre-existing but stable condition.

The Supreme Court of B.C. cited B.C.’s Court of Appeal to explain the distinction between “think skull” and “crumbling skull”:

Of course, the judgment as to the measure of damages is a much more subtle one than that as to causation, not only because it involves a consideration of mere contingencies as well as probabilities, but because of the range of results available in the discounting of the award, as opposed to the “all or nothing” choice that must be made with respect to causation. But the two issues do not operate at cross-purposes even where, as in this case, there is only one “cause” in tort law for the plaintiff’s injury. The question is what award is appropriate to reflect the difference between the plaintiff’s original state (including the risk, to which she was subject immediately prior to the accident, of the relapse of her latent condition) and the state in which she now finds herself.

York v. Johnston, 1997 CanLII 4144 (BC CA)

After reviewing the plaintiff’s evidence, the trial judge in Boyetchko accepted that the injured plaintiff met “the definition of a “crumbling skull” plaintiff in that her pre-existing conditions would have affected her in the future, regardless of the accidents.” However, the trial judge awarded her $90,000 for non-pecuniary damages because she recognized that the plaintiff had “suffered more pain as a result of the accidents.”  She suffered significant exacerbation of headaches, fibromyalgia flare-ups were more frequent and she had increased symptoms of anxiety and fatigue.

This is an interesting decision for car accident victims because it confirms that a finding of “crumbling skull” does not automatically eliminate a claim for non-pecuniary damages.  An exacerbation of pain, anxiety and fatigue can attract a significant award for someone’s pain and suffering even if this person had significant pre-existing medical conditions which would have affected him or her in the future.

If you suffer from injuries because of a car accident, text or call Burn Tucker Lachaîne PC. We will provide you with a free initial consultation in English or in French. 



By Eliane Lachaîne of Burn Tucker Lachaîne Personal Injury Lawyers on April 26, 2021
Tags: Car Accidents, Serious Injury