Judge finds plaintiff’s pre-existing condition was stable and applied the “thin skull” principle
CB v. NX 2021 BCSC 1324
The Reasons for Judgment of the Honourable Mr. Justice G.C. Weatherill were given on July 7, 2021, at Vancouver, BC.
On May 31, 2015 the plaintiff, now 36 years of age, was a front seat passenger in a Honda Civic that was rear-ended by the defendant’s vehicle. The Honda Civic was stopped at the time of the collision and the impact propelled it into the vehicle that was stopped in front of it. The plaintiff, Ms. B, claims that she has suffered both physical and psychological injuries as a result of the collision. The defendant has admitted liability but disputes the extent of the plaintiff’s injuries attributable to the collision.
In 2001 the Plaintiff suffered arteriovenous malformation (“AVM”) bleed in her brain causing paralysis on the left side of her body and loss of vision in her left eye. After intensive embolization and radiation as well as rehabilitation she regained almost all of her functionality, but not her vision. In March 2003 she suffered a recurrence of her AVM bleed. Once again, she became paralyzed on her left side. This time she required extensive treatment and rehabilitation, but she was left with foot “drop” and “hammertoes” and very little functionality in her left hand and arm. She was unable to continue her studies in nursing at UBC. She began to receive disability benefits. Corrective surgery on her foot and toes in 2011 was successful and she could walk with a normal gait and without pain. Ms. B testified that in the three years prior to the collision she was happy and doing well both physically and emotionally. Her physiotherapy had ended. She did not suffer from headaches or other bodily pain symptoms. She was sleeping well. She was moving forward with her life and was thinking about finding a full-time career.
As a result of the accident the plaintiff suffered neck, shoulder and low back pain as well as a recurrence of her foot drop and toe curl. Her left arm has become clenched with constant intense tightness as well as with “pins and needles”. She has undergone three surgeries – two on her foot and toes and one on her hand and arm – with limited success.
Dr. Rehan Dost, neurologist, testified for the plaintiff. Dr. Dost acknowledged that the “persistent deficit in the plaintiff’s functionality due to her AVM bleeds was unlikely to improve, but opined that it was also unlikely to worsen other than slowly over time as the plaintiff aged.” The Court accepted this evidence noting that “There is no question that the plaintiff had a pre-existing AVM condition, but it had stabilized after her 2011 operation. She was doing well. The weight of the medical evidence supports a causal connection between the Collision and the increase in her spasticity and decrease in function due to the trauma from the Collision.” Counsel for the defendant submits that this case is an example of a “crumbling skull” plaintiff in that there is a measurable risk that her pre-existing condition would have affected her regardless of the collision. The Court found that the applicable principle to be applied in this case is that of the “thin skull”, making the defendant liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing yet stable condition.
Mr. Justice Weatherill made the following award to the plaintiff:
Non-pecuniary damages – $150,000.00; Past loss of earning capacity – $20,000.00; Future loss of earning capacity – $45,000.00; Cost of future care – $10,500.00; Special damages – $11,015.00; For a total award of $236,515.00