January 9 2018

How do Pre–existing Injuries Potentially Affect Your Personal Injury Damage Award?

Many people suffering injuries in a motor vehicle accident are concerned that pre-existing injuries they may have had from previous motor vehicle accidents, for example, might reduce or perhaps negate any potential damage award that might be granted to them. This is a valid concern as many people suffer from pre-existing injuries such as disc degeneration problems and ongoing chronic pain. As the plaintiff in a personal injury action you can anticipate that the lawyers for the defendant will review your medical records looking for pre-existing injuries or medical conditions.

How will my pre-existing injury affect my personal injury case?

The bottom line is that the judge will, in assessing damages, only put you back in your “original position”, which will include an assessment of your pre—existing injuries. The law characterizes this as determining whether you are a “thin skull” or a ”crumbling skull” plaintiff. The thin skull rule is that the defendant must take the plaintiff as he finds him. If the plaintiff is more susceptible to an injury than the majority of people or if the plaintiff suffers more of an injury than most people, then the defendant is liable for the actual injuries suffered by that individual plaintiff. A crumbling skull plaintiff is one who would you have suffered the injuries in any event and regardless of the accident and in such case the defendant is not liable for those injuries.

If you have a condition and it is made worse by the accident, the defendant will be liable for only the aggravation. The amount of compensation or damages would be less than the compensation or damages if you had no prior condition at all.

Why it’s necessary to determine the plaintiff’s position before the accident, and after.

This test is best described in the leading Supreme Court of Canada case of Athey v. Leonati. There the court held that Defendants are liable only for injuries that they have caused or to which they have materially contributed. The law does not excuse defendants from liability merely because other causal factors for which they are not responsible also helped produce the harm. The basic principle is that the plaintiff must be put back in the position they would have been absent the defendant’s negligence. Plaintiffs need not be placed in a position better than their original one. Therefore, to determine the loss requiring compensation, it is necessary to determine the plaintiff’s position before the accident, and after.

In Athey, the Plaintiff had suffered back injuries in 2 motor vehicle accidents. While still recovering from those injuries, he suffered a herniated disc while warming up for an exercise routine. The issue was whether the disc herniation was caused by the injuries sustained in the accidents or whether it was attributable to the Plaintiff’s pre-existing back problems. The Court of Appeal held that the accidents caused the disc herniation. The Court also stated that if the defendant’s negligence exacerbated the pre-existing condition and caused it to manifest in a disc herniation, then the defendant is a cause of the disc herniation and is fully liable.

A defendant is liable only for the further injury his actions cause.

This is illustrated by the leading Alberta case of Dushynski v. Rumsey. The 49-year-old female plaintiff Ms. Dushynski was a victim of four motor vehicle accidents in the period from 1985 to 1993. She sought damages for the injuries she suffered in the fourth accident in 1993. She recovered quickly after the first accident in 1985. She was involved in another accident in 1988 when she was rear-ended while stopping for child in a crosswalk and was off work for five weeks. In the third accident in 1991 she was again rear-ended while stopped at a crosswalk. She was off work after this accident for 16 months. However, she returned to her full-time employment as a custodian for a period of 13 months before the next, fourth, accident occurred.

The trial judge carefully examined the medical evidence relating to each of the accidents, particularly the third accident, to determine whether the symptoms from the earlier accidents had resolved over time and, if so, when. He concluded that although she suffered from chronic pain before the fourth accident, the chronic pain following the fourth accident was the final straw, and it was this accident that put her over the edge and caused her to be permanently disabled from working. The court held that the fourth accident either materially contributed to the development of the chronic pain syndrome, or if she had developed chronic syndrome before the fourth accident, the fourth accident seriously exacerbated it, making it impossible for her to return to work. She received her full measure of damages, including general damages of $125,000. The appeal court agreed with the trial judge.

When a pre-existing condition is inherent prior to your accident.

The Alberta case of Diakow v. Hughes is an example where the trial judge found that the plaintiff had a crumbling skull, and her damage award was reduced. The 53-year-old female plaintiff had held a senior position with Alberta Blue Cross but was terminated due to thefts arising from her gambling addiction. She then began cleaning homes for an income. In a 2002 motor vehicle accident she fractured two ribs, two vertebrae, her sacrum and her pelvis. She was immobilized in a clamshell brace. Following this she suffered from bladder and bowel problems, had limited mobility, and had to give up all of her former recreational activities. She was found to have had psychological problems before the accident that continued after the accident, with the accident delaying her treatment. This pre—existing condition was inherent in her “original position”, and she was explicitly found to be a crumbling skull plaintiff in relation to her psychological injuries. The physical injuries were mostly resolved within a year. She was awarded $70,000 in general damages, which was upheld on appeal.

How can a lawyer help you?

Your pre—existing injuries are relevant to the assessment of your claim and an experienced plaintiff’s personal injury lawyer will ensure that it is properly considered and factored in the assessment.

In the event you are in an accident and are concerned as to how your pre—existing injuries will impact your potential damage award, please contact the friendly, helpful, and knowledgeable lawyers at CAM LLP for a free consultation.