15 Sep Crumbling Skull Defence

A classic defense argument in personal injury cases is the “crumbling skull” argument.  Essentially, ICBC argues that the Plaintiff had a pre-existing condition that they would have experienced regardless of whether or not the collision occurred.  If ICBC can prove that a pre-existing condition would have detrimentally affected the Plaintiff in the future, regardless of the Defendant’s negligence, then the Court can take this into account and reduce the Plaintiff’s damage award.  This is consistent with the general rule that a damages award is meant to return the Plaintiff to the same position (not a better position) than they would have been in if the accident had not occurred.

In Gordon v. Ahn, 2017 BCCA 221, the Plaintiff experienced emotional difficulties and relationship problems with her mother when she was a teenager, prior to the motor vehicle accident.  However, she had not shown signs of developing major depression.  No expert opinion indicated her deteriorating mental condition was probable or inevitable.  Even so, the trial Judge found that the Plaintiff was a “crumbling skull” emotionally.  The Plaintiff appealed this finding.

The Court of Appeal stated that the Plaintiff’s symptoms were fairly minor prior to the collision and that she developed a major depression due to the collision.  As a result, the Court of Appeal found that the trial Judge should have awarded damages for her emotional injuries.

The Court of Appeal ordered a new trial.

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