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Injury Victim called “Crumbling Skull” gets New Trial

In a short but forceful unanimous three panel decision, the Court of Appeal has rung the death knell for the term “crumbing skull” to describe physical and mental conditions that may deteriorate in the future (Gordon v. Ahn,2017 BCCA 221). Other similar terms used by the court in the past include “psychological thin skull”, “eggshell personality” and “eggshell skull”.

The judge failed to state whether he awarded any damages in respect of the depression brought on by the accident. Beyond referring to the “crumbling skull doctrine”, the trial judge did not do any analysis of damages in relation to Ms. G.’s mental deterioration. Without hesitation, the meager $50,000 trial award( click here to read my review of the original crumbling skull trial decision) was overturned and a new trial ordered. When there is clear evidence of a mental injury, compensation must be awarded to the victim:

In the present case, where the plaintiff’s symptoms were fairly minor before the accident, but developed into major depression as a result of the accident, it is clear that damages ought to have been awarded.

The term “crumbling skull” was coined after the “thin skull” rule, which makes a tortfeasor liable for the claimant’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the claimant’s losses are more dramatic than they would be for the average person. This is a principle enshrined in Canada’s legal system for at least our whole generation.

As to her failure to mitigate, the Court of Appeal overturned the finding that she failed to follow proper medical advice. As stated by the Court of Appeal,

[38]  While a failure by a plaintiff to follow medical advice may open the door to an allegation that she has failed to mitigate her damages, the defendant must show more than that such a failure occurred…

[39] In the case before us, Ms. G. provided explanations for her failures to follow certain courses of treatment. The judge made no express findings as to whether her explanations were reasonable. Even assuming that the judge implicitly found the various failures to follow treatment to be unreasonable, he made no findings that the failures affected Ms. G.’s recovery. It is not at all clear that any of the factors cited by the trial judge resulted in Ms. G.’s pain and suffering being either more severe or more prolonged than it otherwise would have been.

[40] It is also unclear how the judge’s finding that Ms. G. failed to mitigate her damages affected the damages award. The usual practice of the trial court is to reduce damages by a percentage or by a specific amount to account for a failure to mitigate. In this case, the judge simply indicated that damages were reduced, but did not quantify the reduction.

In an unqualified win for this personal injury claimant, this case was sent back for a new trial.

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B

Tags: Crumbling Skull, Duty to Mitigate, Failure to Mitigate, Legal Causation, Prior Condition

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