ICBC Claims: Pre-Existing Conditions
People injured in motor vehicle accidents often have pre-existing conditions. These can serve to lower the amount recoverable in accident injuries, and in others, the effects of accident injuries on a person already suffering from pre-existing conditions can increase accident damages.
Two legal principles that come into play when assessing pre-existing conditions, are the “thin skull” and “crumbling skull” rules.
The thin skull rule is based on the proposition that the person responsible for causing the injuries “must take the victim as they find them”, so it is no defence to say a victim would have suffered less injury if he’d been like an average person and did not have an unusually thin skull. The person causing the injury will be liable for all damages to that individual thin skulled victim.
The “crumbling skull” rule is an application of the principle is that the person who has caused the injuries is only liable for the injuries he or she caused. If a victim had a crumbling skull condition that would have caused the effects they have suffered post accident anyway, the person who caused the accident will not be liable for those effects. However, the person liable for causing the accident will be responsible for aggravating pre-existing conditions.
Although these two principles are easy to state, it can become complicated applying them to actual cases. In many cases, and this is particularly true of spinal injuries, there are a myriad of potential causes which may or may not include the accident.
Generally, the “but for” test is used to determine if the accident has caused injuries or aggravated pre-existing conditions. Under the but for test, the victim must show the injury and its’ effects would not have occurred but for the accident.
In special circumstances the victim’s medical circumstances are so complicated that the but for test cannot be applied. Under those circumstances, the analysis will be whether the accident has materially contributed to the accident victim’s pain, suffering and disability.
This article is for general information only, and should not be relied on as legal advice in any particular case. Consult a lawyer for advice on your case.
At our firm the lawyer to consult is Patrick McMurchy. To schedule an initial consultation with Patrick McMurchy, please call 250-753-6435 or email: email@example.com.