Claims Involving Pre-Existing Disabilities

It’s an unfortunate fact that over the course of one’s life, health problems can accumulate. Some people are born with health problems, others have accidents or life situations that leave scars, physical or emotional.

What happens when, in the midst of other problems, a person suffers an accident caused by someone else’s negligence, and their health or ability to cope get worse, sometimes dramatically?

Does the law find the accident was at fault and give them compensation? Does it note the pre-existing problems and award nothing? Is there a middle ground?

Thin skull vs. crumbling skull

The place to start is to examine what the plaintiff was like before the accident. Was he/she recovering from a difficult situation? Or were there signs that the plaintiff was deteriorating? Was the plaintiff diagnosed with a condition that would have developed in any event? Or might the illness not have manifested itself for many years to come? The task of the personal injury lawyer is to get as clear a picture of the projected future of the plaintiff as possible, assuming the accident had not occurred.

In trying to decide whether a person would have managed all right but for the accident, or would have “fallen apart” in any event, the courts have sometimes described plaintiffs as “thin skull victims” or “crumbling skull victims”.

A person with a thin skull (a physical or emotional vulnerability) is entitled to be compensated for all problems that appear after the accident that are of the type that could reasonably flow from an accident. The theory is that the person, while susceptible to the effects of trauma, would otherwise have continued to be functional in their lives and deserves to be compensated for the loss of that function.

A person found to have a crumbling skull, on the other hand, may receive very little compensation for any post-accident problems. This is because the court decides this person was already having a lot of problems and their condition would have continued to deteriorate whether or not the accident occurred. The accident, in other words, has left them not much worse off than they would have been anyway. And why should the defendant pay when they haven’t made things significantly worse?

Tricky issues of causation

In a leading Supreme Court of Canada decision Athey v. Leonati, the court outlined an important principle of compensation that is having a major effect in some personal injury claims.

In that case, the plaintiff, who was active and in relatively good health, suffered back injuries in 2 successive motor vehicle accidents. When he was recovering after the second accident, he experienced a serious disc herniation during a mild stretching exercise. The herniation was caused by a combination of the injuries and a pre-existing “weak back”. The trial judge awarded the plaintiff only 25% of his full losses, saying that the accidents were only 25% the cause of his problems.

The Supreme Court of Canada held that if he wouldn’t have experienced the herniation but for the accident, he was entitled to 100% recovery.

The court reasoned: “Since most events are the result of a complex set of causes, there will frequently be non-tortious* causes contributing to the injury. Defendants could frequently and easily identify non-tortious contributing causes, so the plaintiffs would rarely receive full compensation even after proving that the defendant caused the injury.

Because this area is so complex, it isn’t surprising that the Supreme Court of Canada revisited the Athey decision in several subsequent decisions.  In Clements v. Clements, the Supreme Court said:

1. A plaintiff must show, on a balance of probabilities, that “but for” the defendant’s negligent act, the loss would not have occurred.  In other words, the defendant’s negligence must have probably caused the plaintiff’s loss and the defendant’s negligent act must be necessary in order to cause the loss.
2. There is no need for the plaintiff to establish the precise manner in which the defendant’s negligence caused the plaintiff’s loss.  In other words, there is no need for scientific proof of the specific causal factors. To the extent scientific proof to shed light on causation is limited or unavailable, common sense inferences may suffice.
3. If it is impossible to say that a particular negligent act in fact caused the plaintiff’s injury, the court will consider whether the defendant’s negligence posed “a material contribution to risk”.  However, these cases are generally limited to situations where there are multiple tortfeasors.

As always, the courts continue to seek out what is fair — justice in a complex world.

 

*non-tortious means a “natural” cause, not caused by the negligence of any person.

 

Excerpt from “ACCESS TO JUSTICE: Legal issues for the injured and people with disabilities,” written and produced by Faith Hayman, Barrister and Solicitor.

This is for informational purposes only and its contents are not intended nor should be considered to be legal advice.