Court Of Appeal Orders New Trial In “Crumbling Skull” Case

In Gordon v. Ahn, the Plaintiff was injured in a motor vehicle accident, and consequently sued for damages, which included physical and psychological injury. Liability was admitted on behalf of the Defendant by ICBC’S lawyer.


The Plaintiff was eventually awarded $50,000 in damages at trial, however the trial judge had made an unspecified reduction in the award, being of the opinion that the principle of the “crumbling skull” doctrine applied.


In the context of ICBC injury claims, the legal doctrine of “crumbling skull” occurs where a claimant already has a deteriorating condition which is made worse and accelerated by a Defendant’s negligence. If there is a measurable risk that the Plaintiff would have eventually suffered from the condition in question anyways, then there can be a deduction in what a Court awards for damages.


The Plaintiff appealed on a number of grounds, with two of the grounds being that the trial judge had misapprehended evidence, and that the trial judge had erred by reducing damages for psychological and emotional injuries on the basis of the “crumbling skull doctrine”.


The Court of Appeal ruled that the evidence given at trial did not support the trial judge’s classification of the Plaintiff as being a “crumbling skull Plaintiff”, and further ruled that the trial judge did not adequately account for a reduction of damages in this regard.


The Court of Appeal allowed the appeal, and ordered a new trial. In referencing the phrase “crumbling skull” to describe a Plaintiff’s condition as rarely helpful, the Court commented:


[33]        The use of the phrase “crumbling skull” to describe a plaintiff’s condition is, in any event, rarely helpful. As Major J. explained in Athey, there are no special rules or analyses that apply to claims made by plaintiffs who, before becoming victims of a tort, are affected by conditions that may deteriorate in the future. Damages are always to be assessed by reference to the situation that the plaintiff would be in but for the wrongdoing ……



[34]        The judge found that there was “an inter-relationship between the pain that the plaintiff experienced from her physical injuries and her emotional or psychological problems”. He also found that her psychological problems “worsened because of the accident”. Even in cases where a plaintiff is suffering from serious chronic depression, an aggravation of the symptoms attributable to a tort is compensable: Sangha v. Chen, 2013 BCCA 267. In the present case, where the plaintiff’s symptoms were fairly minor before the accident, but developed into major depression as a result of the accident, it is clear that damages ought to have been awarded.


[35]        It is not apparent, from the judge’s reasons, whether he awarded any damages in respect of the depression brought on by the accident. Beyond referring to the “crumbling skull doctrine”, he did not undertake any analysis of the issue of damages in relation to Ms. Gordon’s emotional and psychological deterioration.


[36]        A proper analysis of the issue would have required the judge to consider the degree to which Ms. Gordon’s psychological and emotional health was damaged by the accident. Such an analysis would have required a detailed consideration of her pre-accident and post-accident mental health, as well as an assessment of the likelihood that a deterioration would have occurred even in the absence of an accident (see Laidlaw v. Couturier, 2010 BCCA 59). The judge failed, in this case, to undertake such an analysis.

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