We explain importance of following Doctor’s Orders, Having A Lawyer Who Speaks Your Language, and the Difference Between Crumbling Skull Rule & Thin Skull Rule.
This Vancouver ICBC Car Accident Personal Injury case of points out why it is critical you have a lawyer who speaks your first language if you are injured in a Vancouver motor vehicle accident. The case also provides a great summary of what you must prove to win a large money settlement – both on the issue of causation and mitigation. It also explains the difference between the Crumbling Skull and Thin Skull Rule.
Please call our top-rated, senior, personal injury and ICBC claims lawyer in Vancouver at 604 602 9000, toll free from anywhere in British Columbia at 1 877 602 9900 or just use our convenient online form. Your no obligation initial consultation is FREE. And, we don’t get paid anything unless we succeed. We speak your language and we are here to help.
The recent Vancouver case of Paschalidis v. Stutely involved a 2007 accident where the injured plaintiff was a passenger in the front seat of car. ICBC admitted that the other driver was 100% responsible for the crash. However, there was a disagreement about whether the crash caused all of the injuries, or whether the Plaintiff had a pre-existing condition that would have resulted in the same disability even if there never was a car accident. (The “Crumbling Skull Rule.”)
There is an important difference between the “Crumbling Skull” and “Thin Skull” rule when it comes to personal injury and ICBC claims. Our car accident lawyers sometimes have to explain the difference to a jury to make sure our clients get the money they deserve.
The “Crumbling Skull Rule” says that the disability or injury would have occurred no matter what – even if the car accident never happened. (e.g. the victim’s skull was already crumbling before the car accident and would have continued to crumble with or without the accident.) When the “Crumbling Skull Rule” applies the injured victim cannot get money from ICBC, since the accident did not “cause” the condition and did not make the condition worse.
This is very different from the “Thin Skull Rule” that says that disability or injury might have occurred – even if the car accident never happened – but the disability was definitely made worse because of the pedestrian, motorcycle, truck, or car accident. (e.g. the victim’s skull might have been thin, but it was the accident itself that made the condition worse.) When the “Thin Skull Rule” applies, the injured victim can get money from ICBC, because the accident did make the condition worse.
Since the difference between the two rules will determine whether or not you get money from ICBC for your injury it is very important to provide the Court with all the evidence to prove that a pre-existing condition was made worse by the accident. Our experienced Vancouver ICBC claims accident lawyers always make sure you get all the medical reports you need to succeed. (And you never pay for any of them – we take care of it all!)
In this case, ICBC also argued that the victim did not take proper steps, or follow doctor’s orders, to properly recover from the Vancouver car accident. This is sometimes called “mitigating the injury.” If you are injured in an ICBC related accident, you have a legal duty to take reasonable steps to treat and mitigate your injuries. If you don’t, the amount of money you get will also be reduced. Fortunately, our dedicated ICBC car accident lawyers can assist you by making sure you get all the medical assistance you need, regardless of whether you need help in Surrey, Kelowna, Fort St John, Prince George, Vancouver, or anywhere else in the province! (We have offices and lawyers conveniently located in cities throughout British Columbia.)
The Court also commented that the injured victim’s testimony in Court was weakened because they did not use a translator in Court even though English is not their first language. There was also a problem because the injured victim did not fully communicate with his doctors. This also hurt his claim because it was more difficult to prove that his injuries fell under the “Thin Skull Rule” (which gets you money) as opposed to the “Crumbling Skull Rule.”
As a multilingual firm where our lawyers speak, Mandarin, Punjabi, Farsi, Cantonese, Hindi, German and French, we always make sure you have all the help you need and that we get all the necessary evidence in front of the Court. We hope this helps and we certainly look forward to helping you.
Again, please feel free to contact us at our Vancouver ICBC Claims and Personal Injury Lawyer office by calling 604-602-9000, or call us toll-free from anywhere in the province at 1-877-602-9900. We speak your language and we are here to help.
We have included some of the most important quotes from the case here:
 The plaintiff was a poor historian, by any measure. His recollection of past events was unreliable.
Some allowance must be made for the fact that English is not the plaintiff’s first language. However, the plaintiff always had the option of using an interpreter at trial, but chose not to do so. It was also my observation that it was not the choice of language that caused the plaintiff the most difficulty. The plaintiff from my observation is a man of few words. Open-ended questions did not generate much evidence in response. His lawyer usually had to lead him through his evidence, repeatedly cuing him to give more information to assist him in his claims. The weight of his evidence has to be assessed in light of the fact that he was so often led by questions of his counsel. This is not a criticism of his legal counsel, but an acknowledgment that evidence is more likely to be self-serving and selective when the plaintiff is unable to recount his history in his own way.  The defendants argue that the plaintiff is not just a poor historian, he is a selective historian who shaped his evidence in a self-interested and less-than-truthful way, conveniently omitting information that might be harmful to his case. Several examples were given of this tendency. The defendants argue that the plaintiff is therefore not credible.  The plaintiff may be one of those people who go through life not paying much attention to the details, but that does not necessarily mean he is deliberately untruthful. Nevertheless, I do conclude that his memory was unreliable.  As understanding as a trier of fact might be to the different personalities that come before the courts, ultimately, and in fairness to both sides to a lawsuit, a court has to base its decisions on the evidence. A court cannot assume there is more evidence that could have been called had the plaintiff chosen to provide it. Unfortunately, there were areas of the plaintiff’s evidence that were lacking in sufficient detail to support the plaintiff’s arguments.  Furthermore, regardless of whether or not the issue is one of credibility or reliability, the weakness in the plaintiff’s ability to describe accurately his medical and other history undermined the whole of his evidence, including that of his medical experts. With respect to the latter, his examining physicians necessarily had to rely on the plaintiff’s history when determining the cause and implications of his medical conditions. He often did not tell physicians of a prior history of medical problems relating back to a 1995 car accident.  These observations on the plaintiff’s reliability as a witness influenced the conclusions that follow.
5. Causation: What Injuries Were Caused by the Accident? [Crumbling Skull vs Thin Skull] The usual test for causation in personal injury cases is that the plaintiff must prove that that the injury of which he complains would not have occurred but for the defendants’ negligence: Athey v. Leonati,  3 S.C.R. 458 (“Athey”), at para. 14. The onus is on the plaintiff to prove this on a balance of probabilities.  There is an obvious link between the test for causation and the assessment of damages. In assessing damages for injuries caused by the defendant, the basic principle is that the plaintiff is to be placed in the position he would have been “but for” the defendant’s negligence (the “original position”): Athey at para. 32.  Where this assessment of damages involves consideration of hypothetical scenarios, such as what the plaintiff would have earned absent the accident and what the plaintiff is capable of earning in the future due to the injuries caused by the accident, the court does not require proof on a balance of probabilities. Rather, the court assesses hypothetical events on the basis of their relative likelihood, so long as they are based on a real and substantial possibility and not mere speculation: Athey at para. 27.  The plaintiff is not to be put in a position better than his original position. The defendants are not required to compensate the plaintiff for any damages he would have suffered anyway: Blackwater v. Plint, 2005 SCC 58 (“Blackwater”), at para. 78. If due to other medical conditions unrelated to the accident, the plaintiff would have suffered some health problems even absent the accident, the defendant is not required to compensate for those problems. This is known as the “crumbling skull rule”: Athey, at para. 35; Blackwater, at para. 80.  Nonetheless, defendants must take the victims of their negligence as they find them, and will be liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. This is known as the “thin skull rule”: Blackwater, at para. 79; Athey at para. 34.  This means the court must determine not only what the plaintiff’s original position would have been, but also the injured position, and it is the difference between these two positions that is the measure of the plaintiff’s loss: Athey at para. 32.
6. Mitigation: Did The Plaintiff Fail to Mitigate his Damages? The defendants submit that the assessment of the plaintiff’s damages should be reduced because he failed to mitigate.  The guiding principle behind the law of mitigation is that plaintiffs in personal injury actions have a positive duty to limit their losses. If the defendant proves an unreasonable failure by the injured party to do so, the plaintiff’s damages will be accordingly reduced (Graham v. Rogers, 2001 BCCA 432, leave to appeal to S.C.C. refused,  S.C.C.A. No. 467).  The legal test for mitigation was set out by the Court of Appeal in Chiu v. Chiu, 2002 BCCA 618 at para. 57:
The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito,  1 S.C.R. 146.
 Our Court of Appeal in its decision of Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144, described the test articulated in Chiu as follows:
I would describe the mitigation test as a subjective/objective test. That is whether the reasonable patient, having all the information at hand that the plaintiff possessed, ought reasonably to have undergone the recommended treatment. The second aspect of the test is “the extent, if any to which the plaintiff’s damages would have been reduced” by that treatment.
Please call our top-rated, senior, personal injury and ICBC claims lawyers in Vancouver at 604-602-9000, toll free from anywhere in British Columbia at 1-877-602-9900 or use our convenient online form. Your no obligation initial consultation is FREE. And, we don’t get paid anything unless we succeed. We speak your language and we are here to help.