Crumbling Skull Argument Successful in Appeal of Settlement

June 23, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Gordon (Appellant) v. Ahn (Defendants)        2017 BCCA 221 (CanLII)

Date of Decision: June 8, 2017
Before: Heard Before:  The Honourable Mr. Justice Groberman, The Honourable Madam Justice A. MacKenzie, The Honourable Mr. Justice Fitch


Ms. Gordon was suffered major physical injuries, and depression following a car accident for which Mr. Ahn was liable. The judge awarded general damages of $50,000, but no damages for loss of income or of earning capacity. In assessing damages, the judge found that Ms. Gordon’s interpersonal problems with her mother during her high school years rendered her a “crumbling skull” plaintiff. He reduced her damages by an unspecified amount as a result. The judge also found that Ms. Gordon had failed, “in some respects” to mitigate her damages. Again, he reduced the amount of damages by an unspecified amount. Ms. Gordon appealed the award on a number of grounds.

Held: Appeal allowed, new trial ordered. The evidence did not support the judge’s characterization of Ms. Gordon as a “crumbling skull plaintiff”. Further, the judge failed to explain how he effected a reduction of damages, either for failure to mitigate, or by reason of his assessment of Ms. Gordon as suffering from a “crumbling skull”.

Reasons for Judgment of the Honourable Mr. Justice Groberman:

1.    Ms. Gordon was injured in a motor vehicle accident for which Mr. Ahn admitted liability. The trial judge assessed general damages at $50,000. He made no award for loss of income or loss of earning capacity.
2.    Ms. Gordon advances four grounds of appeal. She says that the trial judge erred:
a.    by reducing damages for psychological and emotional injuries on the basis of the “crumbling skull doctrine”;
b.    in finding that she had failed to mitigate her damages, and in reducing the damages award for that reason;
c.    in his approach to loss of income and loss of earning capacity; and
d.    by misapprehending evidence.

For reasons that follow, Mr. Justice Groberman took the view that the appeal must be allowed on the first and second grounds, and that the matter must be returned to the Supreme Court for a new trial. It is unnecessary to embark on any extended analysis of the third and fourth grounds of appeal.

The Accident and Injuries

Ms. Gordon was injured when her car was struck and written off in an accident that occurred on August 24, 2009. Ms. Gordon was examined by ambulance personnel at the scene, but was not taken to hospital. She attended at her family doctor the day after the accident, with pain in her wrists, mid-back and neck. And a month later with a herniated disc in her lower back approximately. Later, she was also diagnosed with a compression of nerve roots known as “radiculopathy”. Medical evidence linked that problem, as well, to the accident. Ms. Gordon was prescribed Gabapentin for the radiculopathy. Unfortunately, she had difficulties with that drug, including an overdose in 2010.

In the aftermath of the accident, Ms. Gordon suffered serious emotional and psychological difficulties, including major depressive episodes, which were at their worst in 2011. The medical evidence linked her depression to the pain that resulted from the accident, and to the prescribed use of Gabapentin.   Mr. Ahn admitted liability for the accident, but the amount of damages was contested. Major issues at trial included the extent and duration of the injuries attributable to the accident.

Ms. Gordon alleged that her injuries and disabilities continued for an extended period and included bouts of severe depression and emotional instability. Mr. Ahn maintained that the injuries caused by the accident were relatively minor, and substantially resolved by the summer of 2011.

Ms. Gordon was nineteen years old at the time of the accident, and had graduated from high, completed a program in hairdressing. She was accepted into Douglas College, where she began studies shortly after the date of the accident. Ms. Gordon was physically fit and athletic. She admitted to using marijuana and other recreational drugs to some extent, but she had no serious or long-term health problems. he lived with her mother at the time of the accident. The relationship was not always a happy one, and Ms. Gordon may have been withdrawn and exhibited a depressed mood, however, there was no evidence of any mental illness prior to the accident.

During her high school years, Ms. Gordon worked part-time at a restaurant.  She continued with that part-time job after the accident, while attending Douglas College, but worked few hours. She also secured a second job though she appears to have worked only 13 shifts there totalling less than 50 hours. She testified that she was in pain during the autumn of 2009, and unable to work as much as she would have liked. Her part-time jobs ended in December 2009, and she did not recommence work until March 2010, when she became a receptionist.

Ms. Gordon was unable to complete her first year at Douglas College, and claimed that her lack of success was attributable to the pain caused by the accident, and to her inability to concentrate on her studies as a result of medication that she took to deal with her injuries.  After March 2010, Ms. Gordon worked at a series of short term part-time jobs, with periods of unemployment. In December 2014, she started a job selling blenders. At the time of trial, she continued in that sales position, and appears to have been earning a good income, though she was cautious about her ability to continue in that line of work.

Ms. Gordon’s claim for loss of income was not a straightforward one. She had, at the time of the accident, not yet established a career, and her employment history was limited. The judge had to consider a complex factual matrix in assessing the effect of the accident on her earnings. He was handicapped in that exercise by incomplete financial records, the lack of any systematic analysis of wage loss, and the absence of any expert evidence dealing with loss of earning capacity.
The judge ultimately found that Ms. Gordon’s injuries resolved within approximately two years of the accident. Ms. Gordon points to several errors in the judge’s recitation of the evidence, and contends that his conclusions are the product of palpable and overriding errors. As this matter must be returned for a new trial on other bases, it is unnecessary to discuss the various alleged misapprehensions of the evidence or to determine whether they constitute overriding error.

The judge also found that Ms. Gordon suffered no income loss because of the accident. Again, because the matter must be returned for a new trial on other bases, the trial court will have to assess, anew, the claim for income loss. Accordingly, there will be no analysis of the judge’s reasons for making no award for income loss.

Mr. Justice Groberman dealt with two issues on this appeal: the judge’s use of the “crumbling skull” doctrine in relation to Ms. Gordon’s diagnosis of clinical depression, and his treatment of the issue of mitigation of damages.

Crumbling Skull

Expert evidence with respect to the psychological and psychiatric effects of the accident on Ms. Gordon was provided by two psychiatrists who concluded that Ms. Gordon suffered from Major depressive disorder. Mr. Justice Groberman accepted the diagnosis, and in Mr. Justice Groberman’s opinion Ms. Gordon’s major depressive disorder is currently in partial remission. Symptoms of her previous major depressive disorder are present, but full criteria for the diagnosis are no longer met. Ms. Gordon reported that her current mood concerns result from psychosocial stressors, primarily with respect to her interpersonal relationships (with her mother and friends). She reported that resolution of these stressors would result in a full resolution of her depressive symptoms.

It is Mr. Justice Groberman’s opinion that Ms. Gordon’s emotional and psychological difficulties, which contributed to the diagnosis of a major depressive disorder in the post-accident period, occurred within the context of long-standing significant interpersonal stressors related to her family dynamics. These family dynamics are documented in the medical records to have resulted in episodes of depressed mood and social withdrawal in Ms. Gordon’s high school years, although in my assessment Ms. Gordon reported that she did not experience any period of sustained low mood or major depressive episodes prior to her involvement in the motor vehicle accident

Ms. Gordon has had a history of significant drug use in high school and some periods of depression and withdrawal during high school after fighting with her mother. She has no formal past psychiatric history. Even when she was having difficulties in high school, she was working five to six days per week and was doing a lot of sports including basketball.

The Thin Skull and “Crumbling Skull” Doctrines is an awkward label for a simple idea. It is named after the well-known “thin skull” rule, which makes the tortfeasor liable for Ms. Gordon’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though Ms. Gordon’s losses are more dramatic than they would be for the average person.

The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in Ms. Gordon’s “original position”. The defendant need not put Ms. Gordon 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 Ms. Gordon for any debilitating effects of the pre-existing condition which Ms. Gordon would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage. This is consistent with the general rule that Ms. Gordon must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.

In Mr. Justice Groberman’s view the evidence demonstrates that Ms. Gordon was at risk that her pre-existing emotional or psychological condition would have detrimentally affected her in the future regardless of Mr. Ahn’ negligence.


The judge’s analysis of mitigation of damages was also very limited. After concluding that an award of $50,000 was reasonable, he noted Ms. Gordon did not follow all medical advice given to her, and while a failure by a plaintiff to follow medical advice may open the door to an allegation that she has failed to mitigate her damages, the defendant must show more than that such a failure occurred.


Mr. Ahn argues that notwithstanding any errors in the judgment below, the appeal ought to be dismissed on the basis that the global damages award is within the appropriate range. Ms. Gordon argues that it is impossible to assess the appropriateness of the damages award without knowing precisely what injuries the judge found to be compensable, and without knowing the extent to which he found that a failure to mitigate resulted in unnecessary damages. She says that a new trial is, therefore, necessary.

Mr. Justice Groberman was persuaded that this is a case in which a new trial should be ordered. In the absence of clear findings of fact, it is not possible to evaluate the appropriateness of the judge’s award, or to adjust it to account for errors in the judge’s assessment.


Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Personal Injury

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