“Crumbling Skull” vs. “Thin Skull”
PB v. KO, 2021 ONSC 2308
The Reasons for Decision of The Honourable Mr. Justice Robert N. Beaudoin, Ontario Superior Court of Justice, were given on March 26, 2021.
This case requires consideration of the “crumbling skull” versus “thin skull” principles and the application of any general or specific contingencies to that assessment, where the Plaintiff has a complex medical history.
The Plaintiff PB (“PB”) was born on March 7, 1963. Shortly after birth he was diagnosed with hydrocephalus and a shunt was inserted into his spine in order to drain the fluid from his brain. By the time he was 11 years old he started to develop a curvature of his spine which required major surgery. That surgery was followed by surgeries to the hamstring muscles of his legs and his right foot. PB went on to develop kyphoscoliosis, an extreme curvature of the spine. He also suffers from a number of other medical conditions. Despite his many challenges, Paul was able to enjoy a full life. He could walk independently, and he participated in numerous activities. He was independent in almost all aspects of his daily life. His disability had not varied for 20 years. On October 13, 2010 PB suffered a serious fall and required an emergency craniotomy to control the bleeding in his skull. That surgery was successful and after rehab he was able to return to his regular activities. On February 4, 2011, he underwent a procedure to have a filter removed from his interior vena cava. During this later procedure (“the incident”) the Defendant radiologists caused a puncture to PB’s heart, requiring immediate repair. The puncture disrupted the flow of blood to PB’s spine resulting in paraparesis of his lower limbs. He is confined to a wheelchair.
Counsel for the Plaintiff argues that PB’s claim is governed by the “thin skull” rule and that his pre-existing condition rendered him more vulnerable to the injuries he suffered which have left him functionally paralyzed. The Defendants maintain that the “crumbling skull” doctrine is applicable, and that PB would have found himself in his current condition within five years of the subject incident, regardless of the negligence of the Defendants. Mr. Justice Beaudoin found that the Defendants “failed to meet the evidentiary burden to apply the “crumbling skull” doctrine.
The Plaintiff, PB, was awarded non-pecuniary damages in the amount of $250,000.00; Out-of-pocket expenses – $177,317.54; Future care costs (after a 15% negative contingency) – $5,702,527.53; For a total award of $6,129,845.07.
With respect to the claim of PB’s parents, BB and LB, the Court awarded a total of $1,746,752.00 for the loss of care, guidance and companionship as well as past attendant care services. The total award for the Plaintiffs came to $7,876,597.07
For further analysis and reporting of the decision please download the linked PDF.
The full Reasons for the Decision of The Honourable Mr. Justice Robert N. Beaudoin can be found here.
Written by Stella Gowans, Paralegal
