Our highly rated Surrey ICBC accident injury lawyers are retained in dozens of cases every year where ICBC argues the injuries suffered by our clients were not caused by the accident. Our skilled Surrey ICBC accident injury lawyers routinely deal with this argument and our Surrey personal injury lawyers are also prepared for arguments by ICBC adjustors and ICBC defence counsel that:
- our client’s already had a condition that was going to lead to future disability whether there was an accident or not;
- that the accident didn’t make this condition worse or didn’t accelerate it.
Contact our skilled MacLean Personal Injury team and our Surrey ICBC accident injury lawyers across BC at 1-877-602-9900. You can meet our Surrey ICBC accident injury lawyers for free or meet with our lawyers such as Spencer MacLean in Vancouver, Kelowna or Fort St John BC. We don’t get paid our fees until you collect.
Our Surrey ICBC Accident Injury Lawyers Take A Firm Approach to Maximizing Your Settlement
Our Surrey ICBC accident injury lawyers will take an aggressive an no nonsense approach to dealing with these routine defenses. Hiring proper medical and therapeutic experts is crucial to your case and we know those experts best suited to supporting the realities of the injuries that you have suffered and how your enjoyment of life and earnings will suffer.
Our Experienced Surrey ICBC Accident Injury Lawyers Protect Injury Victims
Our Surrey ICBC Injury lawyers know ICBC adjustors are highly skilled and well trained to protect their employer’s interests. Skilled Surrey ICBC accident injury lawyers team member Spencer MacLean also knows that a hapless and untrained ICBC car accident victim stands no chance against these skilled professionals unless they have an equally skilled lawyer in their corner.
MacLean Personal Injury will negotiate mediate and if necessary take you case to court to ensure you get the highest possible ICBC personal injury settlement.
What Is A Crumbling Skull Versus Thin Skull Defense In A Surrey ICBC accident Injury Lawyers Case?
In Shaw v. Clark Shaw v. Clark (BCSC 1986), 11 BCLR (2d) 46:
“The distinction between a thin skull case and a crumbling skull case is that in the (thin skull), the skull, although thinner than the average skull, is in a stable condition before the accident and, but for the accident, would have remained so.”
“The (crumbling skull) is where the skull, whether thick or thin, is not in a stable condition before the accident but in a state of continuing deterioration which the accident has merely accelerated.”
“In the (crumbling skull), the Defendant is not to be held responsible for the whole of the post-accident condition of the skull. The Defendant’s actions are not to be treated as having been the sole cause of the entire post-accident condition of the Plaintiff. The Defendant’s actions are viewed as merely an aggravating cause. Depending upon the circumstances, the degree of aggravation may range from very substantial to very slight.”
In Pike v. Kasiri the BC Supreme Court dealt with a 40 year old plumber who had some pre existing hip deterioration and explained how the law works in Canada when a defendant argues they should pay less damages because the victim was already going to suffer some diminished physical ability in the future. Here is what the judge said:
 The test for causation is the “but for” test. The plaintiff must establish on a balance of probabilities that “but for” the defendant’s negligence, the injury would not have occurred: Clements v. Clements, 2012 SCC 32 at para. 8; Ediger v. Johnston, 2013 SCC 18 at para. 28. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury, meaning that it would not have occurred absent the defendant’s negligence. The “but-for” test recognizes that compensation for negligent conduct should only be made where a substantial connection between the injury and the defendant’s conduct is present: Resurfice Corp. v. Hanke, 2007 SCC 7 at para. 23. It ensures that a defendant will not be held liable for the plaintiff’s injuries when they may have been due to factors unconnected to the defendant.
 However, the defendant’s negligence need not be the sole cause of the injury so long as it is part of the cause beyond the range of de minimus. Causation must be applied in a robust and common sense fashion and need not be determined by scientific precision: Athey v. Leonati,  3 S.C.R. 458 at paras. 13-17; Farrant v. Laktin, 2011 BCCA 336 at para. 9.
 The most basic principle of tort law is that the plaintiff must be placed in the position he or she would have been if not for the defendant’s negligence, no better or worse: Blackwater v. Plint, 2005 SCC 58 at para. 78. Tortfeasors must take their victims as they find them, even if the plaintiff’s injuries are more severe than they would be for a normal person (the thin skull rule). But the defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition which the plaintiff would have experienced anyway (the crumbling skull rule): Athey at paras. 32-35. More specifically, as the Supreme Court of Canada stated at para. 35 of Athey:
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, supra; Malec v. J. C. Hutton Proprietary Ltd., supra; 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.[Emphasis in original.]  A “crumbling skull” determination rests on the facts as found by the trial judge: Athey at para. 36.
Time limits in personal injury cases apply and we highly recommend against you talking to ICBC before you talk to us. We’ll explain why when we meet with you for free at any of our 4 offices or at your home or even in the hospital.