Category: Thin Skull

Court Applies Thin Skull Principle To Emotionally And Physically Fragile Plaintiff

In Randhawa v Wang, the Court applied the “thin skull” principle as well, this time to an emotionally and physically fragile Plaintiff.


[42]            I have already found that Ms. Randhawa’s earlier problems had largely resolved about six months before the accident in question.  It follows that this is a case for the application of the “thin skull” principle.  The law is well settled that the wrongdoer must take his victim as he finds her:  Pryor v. Bains (1986), 69 B.C.L.R. 395 (C.A.) at p. 399.  In this case, the weakness or latent susceptibility of the plaintiff was quiescent but was activated into being as a result of the tortious conduct of the defendant:  Pryor at pp. 399-400.


[43]            It was apparent from Ms. Randhawa’s testimony and from her medical history, in particular her psychological history, that she does not deal well with the challenges posed by pain and physical limitations.  She tends to fixate on her pain and problems.  This was described by various experts as “pain syndrome” or “pain behaviour”.  In any event, this too falls within the thin skull rule.  The plaintiff was emotionally and physically fragile at the time of the accident, and the defendant must take the plaintiff as he finds her.


[44]           Having concluded that the subject accident was a contributing factor to both the disc herniation and Ms. Randhawa’s facet joint and musculoligamentous problems, I must consider whether there was a measurable risk that the plaintiff, being psychologically and physiologically vulnerable, would have experienced these problems at some point even if the 2003 motor vehicle accident had not occurred.

$85,000 Award For Plaintiff More At Risk For Psychological Trauma Than Average Person

In Perry v Perry, the Plaintiff suffered from pre-existing PTSD and chronic pain, and was awarded $85,000 for pain and suffering. The Court ruled that she was more at risk for emotional and psychological trauma than an otherwise normal person would be.


[41] Ms. Perry is a person who had had a number of challenging health issues prior to the first accident. Those issues included PTSD, which related to her childhood abuse, and problems with her feet and legs. She sometimes suffered from depressive episodes and had a history of alcohol and heroin abuse. She had multiple areas of pain that she experienced at least as far back as 2003. I conclude that, prior to the first accident, she was a person of some fragility with respect to both her physical and emotional health, likely the seeds of which were sown by her tragic childhood and exacerbated by her alcohol and drug use.


[42] That said, Ms. Perry, in the few years prior to the accident, had made real progress by putting her addictions behind her and, to a certain extent at least, engaging in life through education, volunteer work and a small amount of employment. She was, however, what I would describe as a “thin-skull” case: more at risk for emotional and psychological trauma than a normal person without Ms. Perry’s medical history would be: Athey v. Leonati, [1996] 3 S.C.R. 458. See also: Hussack v. School District No. 33 (Chilliwack), 2009 BCSC 852 at para. 143; . Thus, while the average otherwise healthy individual involved in the same type of accidents that Ms. Perry experienced may have suffered similar physical injury, that person would not be at the same risk of suffering the same psychological damage as Ms. Perry.


[43]         I am satisfied that Ms. Perry suffers from chronic pain, which is largely attributed to the first accident, and to a minor extent to the second accident. She was not without pain and physical problems before these accidents and the defendants are not responsible for the extent to which those symptoms were already symptomatic: Athey at para. 35.


[44]         Ms. Perry was probably more disposed to PTSD than a normal healthy person without her history of it. I am satisfied that, just before the first accident, she was asymptomatic of PTSD previously related to her childhood abuse. Subsequent to the accidents, she had the disorder with respect to a fear of being in vehicles. In a sense, though, because she lives in a city and has not had a driver’s licence since 1997, that PTSD has not impacted her life as much as it might have if, for example, she was a person who relied on driving a vehicle either because of her employment or because she lived in a remote rural location.


Court Discusses Thin Skull Doctrine

Thin Skull” situations arise where the victim is already in a fragile or susceptible state, or has a latent or inherent weakness or condition, and where the tortious conduct of the Defendant causes injuries that a person of normal health would not have suffered. The tortfeasor “takes his victim as he finds him”, and cannot avoid liability for serious injuries that an otherwise normal and healthy person would not have suffered. In other words, if a person suffers a greater than anticipated harm as a result of the negligence of the tortfeasor, then the tortfeasor is liable for the entire harm, and not just the harm that a person might think is foreseeable for a normal healthy person.

Thin Skull situations are not to be confused with “Crumbling Skull” situations, which arise where the victim has a condition which is accelerated by the tortfeasor’s actions. If there is a measurable risk that the victim would have eventually suffered from the condition in question anyways, then there can be a reduction in the amount awarded to account for this.

Perhaps the best way to make the distinction is that in a thin skull situation, the “skull” is in a stable condition, and would have remained so, without the accident. In a crumbling skull situation, the “skull” was not in a stable condition, but rather was in a state of continuing deterioration, which the accident merely accelerated.


In Thiessen v Kover, the Court had occasion to discuss the thin skull doctrine.


[10]           Madam Justice Rowles made it clear that the long standing principle in tort law meant the wrong doer must take the victim as he or she finds them and that under that principle there is no difference between an egg shell skull and an egg shell personality.


[11]            Commencing at para. 19, Mr. Justice Cumming succinctly set forth the law as follows:


19              One of the most important principles, for the purposes of this case, is the principle that, for the purposes of assessing damages, a tortfeasor must take the person injured by the tort in the actual condition of that person at that time.  This has been called the “thin skull” principle.  In its application to psychological problems it has been called the “egg shell personality” application of the principle.  In my opinion there is no basis for giving a more restrictive application to this principle in cases where psychological injuries are suffered than would be given in cases where only physical injuries are suffered.  A predisposition to suffer psychological injury in circumstances such as those brought about in a particular injury in circumstances such as those brought about in a particular case by a defendant’s wrongful act does not relieve the defendant of the liability to compensate the plaintiff for the injuries represented by those psychological symptoms.  Such relief could only occur, as I have said, if the psychological symptoms would have occurred in any event, even without the defendant’s wrongful act, through an application of the cause-in-fact test.  Examples of the application of the “thin skull” principle to the award of damages for psychological symptoms in circumstances where there was an existing predisposition include Enge v. Trerise (1960), 26 D.L.R. (2d) 529 (B.C.C.A.), Cotic v. Gray (1981), 17 C.C.L.T. 138 (Ont. C.A.), Elloway v. Boomars (1968), 69 D.L.R. (2d) 605 (B.C.S.C.), and Marconato v. Franklin, [1974] 6 W.W.R. 676 (B.C.S.C.)