If I was injured in a crash but had a pre-existing condition in the area of injury, do I still have a claim?
The natural aging process results in wear and tear on our bones and joints. The level of wear and tear, medically referred to as “degeneration” can vary greatly from person to person. Complicating matters, the degree of wear and tear does not line up with the degree of pain or other symptoms. You can have a high level of wear and tear in your joints, but be highly functional with zero symptoms. Likewise, you can have a low level of wear and tear and still be suffering chronic pain and serious functional limitations.
Sometimes, a level of wear and tear is so significant that the area of wear and tear is bound to become painful at some point, even if a crash does not occur. What happens if a crash does occur, triggering pain and functional limitations that would have occurred anyway, at some point?
The case of Pike v. Kasir (2016 BCSC 555) deals squarely with this issue. A vehicle driven by Mr. Pike, a strong and healthy 33 year old, who worked as a plumber and played baseball at a high level, was T-boned by a negligent driver who blew through a red light.
Mr. Pike experienced pain and stiffness in his neck, back, and knees. He also experienced a sharp pain in his left groin that gradually developed into a very serious problem in his left hip. The hip required two surgeries, yet remained symptomatic to the point that he could no longer work as a plumber or play baseball.
Even though Mr. Pike did not have any pain or other symptoms in his left hip, and was functioning at a high level before the crash, there was significant, pre-existing, wear and tear that would have developed, at some point, into a painful condition even if the crash had not occurred. How long would he likely have remained without pain had the crash not occurred? A hip specialist had provided an opinion that Mr. Pike would have remained without symptoms in his left hip “for a number of years, perhaps five to ten” had the crash not occurred.
In her ruling, Madam Justice Arnold-Bailey explained the test for causation, which concludes with an explanation of legal terms of “thin skull” versus “crumbling skull”:
[269] The test for causation is the “but for” test. The plaintiff must establish on a balance of probabilities that “but for” the defendant’s negligence, the injury would not have occurred: Clements v. Clements, 2012 SCC 32 at para. 8; Ediger v. Johnston, 2013 SCC 18 at para. 28. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury, meaning that it would not have occurred absent the defendant’s negligence. The “but-for” test recognizes that compensation for negligent conduct should only be made where a substantial connection between the injury and the defendant’s conduct is present: Resurfice Corp. v. Hanke, 2007 SCC 7 at para. 23. It ensures that a defendant will not be held liable for the plaintiff’s injuries when they may have been due to factors unconnected to the defendant.
[270] However, the defendant’s negligence need not be the sole cause of the injury so long as it is part of the cause beyond the range of de minimus. Causation must be applied in a robust and common sense fashion and need not be determined by scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17; Farrant v. Laktin, 2011 BCCA 336 at para. 9.
[271] The most basic principle of tort law is that the plaintiff must be placed in the position he or she would have been if not for the defendant’s negligence, no better or worse: Blackwater v. Plint, 2005 SCC 58 at para. 78. Tortfeasors must take their victims as they find them, even if the plaintiff’s injuries are more severe than they would be for a normal person (the thin skull rule). But the defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition which the plaintiff would have experienced anyway (the crumbling skull rule): Athey at paras. 32-35. More specifically, as the Supreme Court of Canada stated at para. 35 of Athey:
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. Rourke, supra; 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.
The plaintiff was found to be the classic “crumbling skull” case, because of the medical evidence that he would have developed symptoms in his hips within 5-10 years even if the crash had not occurred.
The defence argued that the court should take the mid-point of the 5-10 year estimate, and award financial compensation for his injuries and losses up to that point 7.5 years post-crash and award nothing for his losses after that point. Madam Justice Arnold-Bailey disagreed with that position, noting that it ignores all the other crash related injuries and losses:
[292] With respect, I am of the approach suggested by the Defendant is not correct. It posits an arbitrary cut-off point for damage awards that runs contrary to the decided cases, such as Bouchard BCCA and T.W.N.A., which assess a percentage-based reduction that reflects the measurable risk that a plaintiff’s degenerative condition would have detrimentally impacted the plaintiff absent the accident. It also ignores injuries the Plaintiff suffered in the accident to his back and neck, his chronic pain, depression and psychological and emotional issues, all of which were caused by the accident, and the fact that his continuing pain and disability are not limited to his left hip joint.
Madam Justice Arnold-Bailey considered case law where the courts have struggled with this type of situation, noting that other judges have applied a percentage reduction to the award “depending on the nature of the pre-existing condition, the likelihood of it becoming symptomatic and to what extent, as well as the time frame in which it was likely to occur”:
[293] It is clear that courts have struggled to make fair and appropriate reductions in such circumstances. In Yannacopoulos v. Cronk, 2015 BCSC 1154, Madam Justice Ross concluded such a reduction was appropriate and reviewed recent determinations of this issue in this Court:
[71] In Hoy v. Williams, 2014 BCSC 234 [Hoy], a 15% reduction was assessed. The court noted the plaintiff’s excellent physical condition before the accidents as a relevant consideration in limiting the reduction. In Olynyk v. Turner, 2012 BCSC 1138 [Olynyk], the court concluded that there was a 60% likelihood that the plaintiff would have experienced the same symptoms he now experiences in ten years in any event. A reduction of 30% was assessed. In Filsinger v. ICBC, 2009 BCSC 232 [Filsinger], a reduction of 20% was applied to account for the pre-existing condition. In that case the plaintiff’s pre-existing back condition was quiescent at the time of the accident but was found to be likely to manifest at some time in the future. The Court of Appeal, in Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2012 BCCA 331, reduced a 40% deduction to 20% noting that the trial judge had failed to address the timeline over which the expected future degeneration would likely occur and to account for such a timeline in the percentage by which damages are reduced. In Johnson v. Kitchener, 2012 BCSC 1796, a 10% deduction was assessed in circumstances in which the plaintiff had degeneration of his neck and back prior to the accident but was not symptomatic. There was some evidence that his neck would have become symptomatic without the accident but it was unclear when and how debilitating his symptoms would have been.
[72] In the present case, Mr. Yannacopoulos was not asymptomatic at the time of the Accident. He had been having episodes of back pain similar to those he experienced post-Accident since 2002. His weight caused constant strain on his spine and soft tissue. I have concluded that the Accident accelerated a degenerative process that was well established and progressive. However, it is not possible to estimate how long it would have taken, absent the Accident, for Mr. Yannacopoulos’ condition to reach the state he was in after the Accident. In all of the circumstances I have concluded that a 25% deduction is appropriate.
[294] In Hoy v. Williams, 2014 BCSC 234, Mr. Justice Kent considered this issue and at para. 130 made reference to two cases, Johal v. Meyede, 2013 BCSC 2381, and Eblaghie v. Lee, 2010 BCSC 703, where the medical evidence did not support the conclusion that the plaintiff’s pre-accident degenerative changes would worsen or be anything other than asymptomatic until well into old age. In both cases no discount was made.
[295] Therefore, depending on the nature of the pre-existing condition, the likelihood of it becoming symptomatic and to what extent, as well as the time frame in which that was likely to occur, the range of such reductions is from zero to perhaps 40 percent or more.
Madam Justice Arnold-Bailey concluded, based on varying levels of risk that Mr. Pike’s pre-existing conditions would have become symptomatic in the future had the crash not occurred, that Mr. Pike’s compensation for his future losses should be reduced by 20%:
[303] Taking into account all of the evidence, I find that absent the accident there was no measurable risk that the Plaintiff would have suffered his mental health issues, a slight measurable risk that he would have gone on to suffer problems with discs in his cervical and thoracic spine, a significant measurable risk that he would have gone on to suffer problems with his lumbar spine at L4/5 and his right hip, and a very significant measurable risk that he would have suffered serious problems with his left hip. I find that the appropriate percentage discount to apply to the damage awards is 20 percent.
[304] It is appropriate to apply this reduction to the award for future loss of capacity and cost of future care; and also to the award for non-pecuniary damages, based on Zacharias v. Leys, 2005 BCCA 560.
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