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Liability for perceived disability

If my injuries are psychological, causing honest but mistaken perceptions about my limitations, will the defendant be liable for my perceived limitations? What if I had no pre-existing psychological symptoms?

In a unique case released in early 2016 (Pololos v. Cinnemon-Lopez 2016 BCSC 81), Mr. Justice Voith was faced with a plaintiff whose honest perceptions of his functionality and capabilities were inconsistent with the reality of his circumstances. He was effectively paralyzed by his belief that he was incapable of many forms of activity. He summarized the evidence of a  defence psychologist on this point:

[74]      She described Mr. Pololos as “symptom focused”, and she said that he struggled with a “pervasive disability conviction”. She confirmed that Mr. Pololos perceives himself to be quite disabled and believes that he is unable to perform many activities of daily living. Importantly, she further confirmed that Mr. Pololos, as he currently presents, is unemployable. She confirmed, as one would expect, that how a person presents and that person’s belief in themselves, is a large part of competing for employment. She confirmed that Mr. Pololos’s disability conviction bodes poorly for his future.

The judge faced the question of whether the plaintiff should be compensated for his honest but mistaken perception of his limitations – noting that a downward spiral in perception is common with symptoms of pain, sleep issues, mood, isolation, and financial stress. Importantly, he noted the expert opinion that individuals are hardwired differently and respond to pain differently. He discussed the concepts of “thin skull” (a pre-existing vulnerability with symptoms triggered by the incident) vs. “crumbling skull” (a pre-existing condition that would have manifested regardless of the incident). Defendants are liable for the triggering of the former if a causal relationship can be established.

Mr. Justice Voith concluded that the defendant was liable for triggering the perceptions held by the plaintiff, despite their extreme nature:

[92]        It remains necessary, in thin-skull cases, to establish that the “defendant’s conduct actually caused the aggravated harm”; the Honourable Allen M. Linden & Feldthusen at 412 (emphasis in original).

[93]        In the present case, Mr. Pololos did not suffer from any pre-existing physical or psychological difficulties. It is undisputed that the plaintiff’s chronic pain condition was caused by the Accident. So, too, I have concluded were his sleep disorder and various psychological disorders. These conditions have, in Mr. Pololos’s case, also given rise to a set of self-perceptions and disability convictions that significantly impair the plaintiff’s functionality, circumstances, and prospects. However extreme those convictions may be, I am satisfied that they are a product of Mr. Pololos’s makeup or personality, and that they were brought about or caused by the Accident.

He went on to award for the full income loss claimed to date, along with a sizable loss of future earning capacity award.

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