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Vancouver ICBC Pre-existing Condition Injury

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Vancouver ICBC Pre-existing Condition Injury 

MacLean Personal Injury handles dozens of cases where a Vancouver ICBC Pre-existing Condition Injury is involved. There is a key difference in a Vancouver ICBC Pre-existing Condition Injury case between someone who has a latent weakness or disability that has never surfaced before (“thin skull“) compared to a Vancouver ICBC car accident victim who has an existing  and ongoing condition that was already debilitating and getting progressively worse before a car crash injury (“crumbling skull“).

ICBC will attempt to show your pre-existing injury was symptomatic and disabling (“crumbling skull”) to reduce the fair damage settlement you should receive in a Vancouver ICBC Pre-existing Condition Injury case. Our skilled Vancouver ICBC Pre-existing Condition Injury lawyers will make sure your injuries are properly categorized to ensure you obtain the highest fair ICBC injury settlement.

Meet with us at our Vancouver, Richmond, Surrey, Kelowna and Fort St John offices. Our lawyers will meet with you for free and we are only paid out of your settlement or trial award. Call us right now at 604-602-9000.

Vancouver ICBC Pre-existing Condition Injury

Vancouver ICBC Pre-existing Condition Injury lawyers 604-602-9000

Vancouver ICBC Pre-existing Condition Injury 

The May 26 2016 Vancouver ICBC Pre-existing Condition Injury case of  Vintila v. Kirkwood 2016 BCSC 930 provides a clear explanation of the differences between thin skull and crumbling skull victims. Our skilled lawyers handles these cases commonly and know how to counter common and advanced ICBC defence tactics designed to reduce or deny a damage award to victims.



This Week’s ICBC Injury Case Finds ICBC Crumbling Skull Defence Succeeds

[34]         If a plaintiff has a quiescent pre-existing weakness or latent susceptibility that has been triggered by the defendant’s negligence, then the original position of the plaintiff is a pain-free/asymptomatic state and the defendant is liable, in damages, for all the plaintiff’s injuries/symptoms arising from his negligence even if they are unexpectedly severe. This is known, in our jurisprudence, as the “thin skull” rule.

[35]         If, however, a pre-existing condition is already manifest and presently disabling at the time of the negligent act, then the defendant is not liable for any debilitating effects of that pre-existing condition that the plaintiff would, in any event, have experienced. In other words, the plaintiff’s pre-existing condition is inherent to her original position; thus, the injuries related to the pre-existing condition are divisible and the defendant is only responsible for any aggravation of symptoms. This is referred to as the “crumbling skull” rule.

[36]         These legal principles are found in the seminal case of Athey v. Leonati, 1996, Can Lii 183 (SCC):

34        The respondents argued that the plaintiff was predisposed to disc herniation and that this is therefore a case where the “crumbling skull” rule applies.  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 tortfeasor liable for the plaintiff’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 plaintiff’s losses are more dramatic than they would be for the average person.

35        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. Rourkesupra; 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.

36        The “crumbling skull” argument is the respondents’ strongest submission, but in my view it does not succeed on the facts as found by the trial judge.  There was no finding of any measurable risk that the disc herniation would have occurred without the accident, and there was therefore no basis to reduce the award to take into account any such risk

[37]         The “crumbling skull” rule was discussed more recently, in Sangha v. Chen, 2013 BCCA 287:

29        The correct approach to pre-existing conditions is discussed in Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, under the rubric of “crumbling skull” . . .

30        I also refer to Blackwater v. Plint, 2005 SCC 58 (CanLII), [2005] 3 S.C.R., 2005 SCC 58.:

[78] It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey. …

[38]         In Krause v. Gill et al, 2006 BCSC 1459, the court found that the “crumbling skull” rule does not require that the pre-existing condition be symptomatic immediately before the tortious act in question:

[42]           As I understand Athey, supra, and many of the cases that have considered it, the distinction between “thin skull” and “crumbling skull” does not depend on whether the plaintiff’s pre-existing condition was active immediately before the second source or cause of injury.  A weakness inherent in a plaintiff, which might realistically cause or contribute to a loss, regardless of the negligence of a defendant, is relevant in the assessment of damages: see T.W.N.A. v. Canada (2003), 22 B.C.L.R. (4th) 1 (C.A.) at para. 48, 2003 BCCA 670 (CanLII); York v. Johnston (1997), 1997 CanLII 4043 (BC CA), 37 B.C.L.R. (3d) 235 (C.A.), McKelvie v. Ng (2001), 90 B.C.L.R. (3d) 62, 2001 BCCA 384 (CanLII).

[43]           As set out in Athey, supra, and the other cases, the main objective is to reflect the difference between the plaintiff’s original position and his injured position.  If there is a measurable risk that a pre-existing condition would have detrimentally affected him in the future, regardless of the defendant’s negligence, then this contingency should be accounted for in reducing the amount of damages.

[39]         In the case at bar, it is common ground: (a) that the force of the impact from the accident was relatively minor; (b) that Ms. Vintila had a pre-accident history of severe, long-term and chronic disabling conditions and pain, for which she was deemed unemployable and in receipt of a CPP disability pension; (c) that Ms. Vintila continuously collected full CPP benefits from 2005 to the present; and (d) that CPP’s disability pension is restricted to contributors who are unable to work because of a severe and prolonged disability.

[40]         It is similarly not contentious: (a) that at the time of the accident, Ms. Vintila had experienced an immediately preceding 16-month period of noticeable improvement in her sense of well-being that she attributed to MonaVie; (b) that Ms. Vintila remained, nonetheless, significantly physically compromised and susceptible to debilitating flare-ups in this period; and (c) that the accident marked the end of Ms. Vintila’s period of relative well-being.

[41]         In its closing submission, ICBC conceded that in the accident Ms. Vintila sustained “some soft-tissue injury to the trapezius muscles, neck, and back as well as a slight aggravation of her prior chronic neck, back and trapezius pain and slight aggravation of pain in the left leg”. In relation to Ms. Vintila’s period of pre-accident improvement in her symptomology, ICBC submitted:

. . . Ms. Vintila . . . had plateaued in her chronic pain conditions and, that despite feeling “better” in the year prior to the Accident, her chronic pain conditions, namely her degenerative disc disease, osteoarthritis, spondylosis and disc herniation were pre-existing, relatively stable conditions that caused and continued to cause total disability from work as well as restrictions in lifting bending and twisting activities. There was no treatment program, magic juice or change in circumstances that would affect her chance of recovery as she has been diagnosed as chronically and permanently disabled since March 28, 2002.

[42]         I am in agreement with the foregoing submission. At the time of the accident, Ms. Vintila was significantly physically compromised as a result of severe and long-term chronic pain that had rendered her completely disabled from work and eligible for CPP disability benefits since 2005, and for similar private insurance benefits since 2002. While Ms. Vintila enjoyed some improvement in the management of her chronic pain in the MonaVie period, there is no evidence or suggestion that her underlying chronic and debilitating conditions had resolved. Ms. Vintila became slightly more physically active and inclined to attempt some physical activities previously eschewed; she was, nevertheless, always in the shadow of her chronic and disabling conditions, wary of flare-ups, and unable to cease collecting of disability benefits.

[43]         At no time in the MonaVie period, did Ms. Vintila inform CPP of a material improvement in her disabling condition, and it is notable that neither Ms. Vintila nor her sons were prepared to go so far as to suggest that Ms. Vintila’s significant diseases underlying her chronic pain had been cured through the ingestion of a health juice. It seems that while MonaVie may have had some nutritional and psychological benefits, it is likely that its principal effect was that it inspired Ms. Vintila to wean herself off of narcotic pain medications that had become, in and of themselves, quite disabling for her.

[44]         Ms. Vintila’s own physician considered her medical history “extremely significant” to his diagnosis, on the day after the accident. He regarded her complaints of neck and back pain as an exacerbation of her chronic “ongoing pain and discomfort” caused by pre-existing conditions, and in his reports written in 2005 and 2006, he diagnosed Ms. Vintila as severely disabled, with chronic and deteriorating conditions causing, inter alia, neck, low back, and leg pain.

[45]         Similarly, Dr. Bohorquez opined that the accident likely exacerbated Ms. Vintila’s pre-existing chronic pain condition, and Dr. Masri’s report included the opinion that the accident caused an aggravation of Ms. Vintila’s pre-existing neck, back, trapezius, and left leg pain caused by pre-existing degenerative conditions.

[46]         In light of the foregoing, I find that Ms. Vintila is a crumbling skull plaintiff. 

In the end the court made a very modest damage award to the victim it found to have been suffering from a “crumbling skull” pre-existing injury.

Vancouver ICBC Pre-existing Condition Injury

Vancouver ICBC Pre-existing Condition Injury lawyers Lorne N. MacLean, QC, Tal Wolf and Spencer MacLean

If you are injured and want a thin skull (big settlement) versus crumbling skull (small settlement) analysis explained as it relates to your Vancouver ICBC Pre-existing Condition Injury case call us now at 604-602-9000.

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