Thin Skull or Crumbling Skull? BC Supreme Court awards over $1,000,000 in damages for psychiatric illness as a result of motor vehicle accident.

In Shongu v. Jing, 2016 BCSC 901, the latest ruling involving car accident at the Supreme Court of British Columbia, a man was awarded $1,080,000 from ICBC for damages as a result of his accident, even though the collision was mild.

Mr. S, a 39 year old refugee from the Democratic Republic of the Congo was seriously injured in a car accident when another driver side swiped his car at the intersection of Sea Island Way and No.3 road in Richmond. Although the damage to both cars was not severe, Mr. S went on to develop permanent schizophrenia, PTSD and was unable to work.

Prior to the accident, Mr. S had fled the violence and civil war in the Congo as a refugee. In the midst of the civil war, he witnessed his father and other family members being killed and watched the death of his mother firsthand when soldiers set fire to a house while his mother was inside. His wife and children also disappeared during the civil war. Mr. S suffered recurring PTSD symptoms from these events, although with treatment they were largely resolved at the time of the accident. After the accident, Mr. S suffered a relapse of psychiatric symptoms and developed schizophrenia.

The most contentious issue at trial was whether Mr. S’s psychological injuries were caused by the accident and whether he was entitled to compensation. Counsel for Mr. S took the position that the thin skull doctrine applied in that Mr. S was vulnerable to recurring disabling symptoms of PTSD and that the trauma and chronic pain from the crash had reactivated his psychological injury. Counsel retained by ICBC to defend the case took the position that the crumbling skull doctrine applied in that Mr. S was already suffering from schizophrenia before the accident that would have eventually disabled him in any event, with or without the accident.

Mr. Justice Sewell reviewed the medical evidence and concluded that at the time of the accident, Mr. S was not suffering from schizophrenia, although he was found to be suffering from mild recurring PTSD which was being managed by therapy and medication.

Mr. Justice Sewell also concluded that the Mr. S’s present disability was a result of a combination of his pre-existing psychiatric vulnerability, the chronic pain from his physical injuries, and the effect of the medications he was taking to control his symptoms. Mr. Justice Sewell also concluded that there was a substantial connection between the accident and his present injuries which was sufficient to impose liability on the other driver for those injuries.

In assessing Mr. S’s damages for pain and suffering, the court noted that before the accident, Mr. S had been gainfully employed for SecuriGaurd, active with his church and an engaged father and family man. The court accepted that after the accident, his mood and his ability to work and participate in social, family and homemaking activities was markedly diminished.

On the issue of causation in assessing how much should be awarded in damages, Mr. Justice Sewell distinguished between situations where psychological symptoms are entirely a result of someone’s wrongful and act, and situations where an accident and a pre-existing condition are the cause of the psychological injury. Although both situations are compensable, the latter situation is compensable on the basis of the pre-existing “thin skull”. In personal injury law, a person who commits a tort is responsible for the consequences of that wrong and must take their “plaintiff as they find them”, pre-existing injuries and all. On this basis, the court awarded $200,000 for pain and suffering. The court also awarded $600,000 for loss of income earning capacity given that his psychological illness made him permanently unemployable, and $150,000 for loss of future housekeeping capacity as Mr. S’s wife was forced to take on additional responsibilities. In total, Mr. S was awarded damages in the amount of $1,080,000 from non-pecuniary damages, past loss of income, future loss of earning capacity, cost of future care, past loss of homemaking capacity, future loss of homemaking capacity and special damages.

Often people who are injured in a car crash have pre-existing injuries or ailments. The latest judgement is a reminder that having a pre-existing injury does not prevent you from receiving fair compensation, even if the pre-existing injury is a partial factor in the injury sustained in the accident.