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What happens when somebody who is already injured or disabled gets hurt again in an ICBC accident?

What happens when somebody who is already injured or disabled gets hurt again in an ICBC accident?

Sometimes our clients ask – What happens when somebody who is already injured or disabled gets hurt again in an ICBC related accident? The simple answer is that if you have a pre-existing condition or pre-existing injury and your condition or injury is made worse as a result of the “new” accident, then you can still make a claim for whatever “increase” in pain, suffering, condition, prognosis, etc., that occurs. This is also called the “crumbling skull” or “thin skull” rule. Under this rule, a defendant doesn’t “get off the hook” just because the injured person was frail or sick or in any way more likely to suffer an injury just because of their pre-existing condition.

The recent BC Court of Appeal decision of McArthur v. Hudson, 2013 BCCA 375 discusses how a judge must be careful in assessing damages when an ICBC motorcycle or car accident victim has a pre-existing medical condition. In the McArthur v. Hudson case, the Court of Appeals determined that the lower court trial judge made inconsistent findings related to the medical evidence and condition of the ICBC personal injury victim before the claim. The Court of Appeals noted as follows:

The injured [person]… had undergone right hip replacement surgery in September 2007. On June 9, 2008, while he was still recovering from this surgery, he injured his right hip in the accident caused by the [other driver’s] negligence. He continued to suffer pain in his right hip and was unable to return to his work as a truck driver. The [injured person] maintained the accident was a necessary cause of his ongoing disability

Discussion

[42] The parties agree that the trial judge correctly stated the law with respect to causation. She acknowledged the general test for is the “but for” test developed in Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, and affirmed in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181. This required the [injured person] to establish on a balance of probabilities that the [negligent person’s] negligence was a necessary cause of his right hip disability. He did not have to show it was the only cause, but did have to prove that his disability would not have occurred without the motor vehicle accident.

[43] The trial judge also recognized that this was a case in which the doctrines of “crumbling skull” and “thin skull” had application, since the appellant was still experiencing hip pain from his hip replacement surgery when the accident occurred. The Supreme Court described these concepts in Athey as follows:

[34] … The “crumbling skull” doctrine is an awkward label for a fairly simple idea. It is named after the well-known “thin skull” rule, which makes the [negligent person] liable for the [injured person’s] injuries even if the injuries are unexpectedly severe [because of] a pre-existing condition. The [negligent person] must take his or her victim [as is], and is therefore liable even though the [injured person’s] losses are more dramatic than they would be for an average person [without a pre-existing condition].

[35] The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the [injured person’s] “original position”. The [negligent person] [does not have to put] the [injured person] in a position better than his or her original position. The [negligent person] is liable for the injuries caused, even if they are extreme, but [does not have to] compensate the [injured person] for any debilitating effects of the pre-existing condition which the [injured person] would have experienced anyway. The [negligent person] is therefore liable for the additional damage but not the pre-existing damage: …

In the end, the appeal was allowed and a brand new trial was ordered so that all of the evidence could be properly considered. This also means that a new a money award for pain and suffering and economic loss could be properly calculated, based on this “more complete” evidence provided at the second trial.

If you are concerned or have questions about how your pre-existing condition might affect the value of your ICBC pedestrian, bicycle, truck, motorcycle, or car accident claim please call the experience lawyers at the MacLean Law Group to set up a FREE, no obligation, initial consultation. You never pay anything up-front for our legal services for any ICBC claim work. All of our fees are paid AFTER your case is settled. Our lawyers can be hired from anywhere in the province by calling 1.877.602.9900 or just complete our convenient online form. We are here to help.



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