When it comes to psychological injury and psychiatric injury claims after a car accident a vulnerability to injury is not required if the emotional injury is proven as being caused by the collision. However, alternative but equally acceptable is the “egg shell personality” approach for individuals that may have suffered from prior psychological conditions in remission.
One of the most important principles for the purposes of personal injury damage awards is the “thin skull” principle. Simply put, the negligent driver must take the person injured in the actual weakened and vulnerable condition that person was in at that time just before the car accident. In its application to psychological problems it has been called the “egg shell personality”: Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318 (C.A.) para 19.
The British Columbia Court of Appeal has held that there is no basis for giving a more restrictive application to the “egg shell personality” principle where psychological injuries are suffered as opposed to only physical injuries.
A predisposition to suffer psychological injury in circumstances does not relieve the responsible driver of the liability to compensate the claimant for the injuries represented by those psychological symptoms. Such drastic relief will only occur 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.)
There are two different types of psychological symptoms that may be covered by the principles discussed. There are those where the psychological symptoms have their origin entirely in the defendant’s wrongful act. Clearly they are compensable. And there are those psychological symptoms where the defendant’s wrongful act triggers a pre-existing psychological condition so that both the defendant’s wrongful act and the pre-existing condition are causes-in-fact of the psychological injury ( Yoshikawa v. Yu).
In the latter cases the psychological injury will be compensable on the basis of a pre-existing thin skull, except only in cases where the psychological problem is so dominant as a pre-existing condition and the injuries sustained in the accident are so trivial that the accident can no longer be said to be a sufficient cause in law to support an award of damages on the basis of proximate cause.(Shongu v. Jing 2016 BCSC 901 at para. 163- currently under appeal).
The fundamental principle in assessing personal injury compensation (for tort damages) is that the amount of compensation should be enough to place the innocent claimant in her/his original position; that is, the position he or she would have been in absent the accident related injuries.
There is no reduction in compensation if the defendant ICBC has failed to prove a measurable risk of any impairment or disability established in the claimant’s original position. The fact that a pre-existing condition, such as depression and prior anxiety, could have made the claimant more vulnerable to sustaining the injury caused by the defendant’s negligence will not serve to reduce the damage award.
Unrelated intervening events another car accident, may also be taken into account in the same way as pre-existing conditions. If there is a measurable risk that an unrelated intervening event would have affected the plaintiff’s original position adversely irrespective of the defendant’s negligence, it may be appropriate to reduce the quantum of the defendant’s liability accordingly: Athey, at paras. 31-32.
The law does not excuse a ICBC, on behalf of the negligent driver, from paying compensation merely because other psychological or psychiatrist causal factors for which the injury claimant is not responsible also helped produce the harm.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A LL.B.
