Can I Sue After a Car Accident with a Pre-Existing Injury in Ontario?

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1 day ago

8 min read

Personal Injury Lawyer

Hillier & Hillier Personal Injury Lawyers

Yes. You can sue for injuries sustained in a car accident in Ontario even if you have a pre-existing injury or medical condition. Having a pre-existing condition does not automatically prevent you from recovering compensation from the at-fault driver.

Many people involved in car accidents have pre-existing injuries or medical conditions. These may include chronic back pain, degenerative disc disease, previous concussions, or psychological conditions. If a car accident aggravates or worsens one of these conditions, you may be entitled to compensation for the resulting damages.

For example, if you experienced manageable back pain before an accident but subsequently developed severe pain that prevented you from working, you may be entitled to compensation for your increased pain and suffering, loss of income, and other accident-related expenses.

Ontario law recognizes two important legal principles when assessing claims involving pre-existing injuries: the thin skull rule and the crumbling skull rule. A thin skull plaintiff may recover damages resulting from the aggravation of a pre-existing injury, whereas the crumbling skull rule recognizes that a defendant is not responsible for the plaintiff’s damages that would have occurred regardless of the accident.

These principles help determine whether an at-fault driver is legally responsible for aggravating a pre-existing condition and compensating you for resulting damages.

What Is a Thin Skull Plaintiff?

A thin skull plaintiff is an individual who, because of a pre-existing injury or medical condition, suffers more severe injuries and damages from a car accident than someone without that pre-existing injury or condition.

Under Ontario law, the at-fault driver must “take their victim as they find them.” This means that a defendant may be responsible for the full extent of a plaintiff’s accident-related injuries and damages, even if those consequences are more severe because of a pre-existing injury or condition.

For example, a person with a pre-existing spinal condition may suffer a serious injury in a car accident that would have caused only minor injuries to someone with a healthy spine. The at-fault driver cannot avoid responsibility simply because the injured person was more vulnerable to injury.

However, having a pre-existing condition and being involved in a car accident is not enough to establish entitlement to compensation. You must prove that the accident caused or aggravated your injuries and resulted in damages that would not otherwise have occurred.

Examples of Thin Skull Plaintiffs

A person with a bulging disc in their lumbar spine is involved in a car accident that causes the disc to herniate and sequester and requires spinal surgery. As a result, the person experiences severe impairments, can no longer work, and requires ongoing medical care. Although someone without a pre-existing spinal condition might not have suffered such serious consequences, the at-fault driver may still be responsible for the plaintiff’s loss of income, medical expenses, and other accident-related damages even if contributed to by the plaintiff’s pre-existing spinal issue.

A person with a manageable cognitive impairment suffers a concussion in a car accident. Following the accident and concussion, their cognitive difficulties become significantly worse, preventing them from returning to work. Even if someone without a pre-existing cognitive impairment would have recovered from the concussion and returned to work, the at-fault driver may be responsible for the thin skull plaintiff’s additional impairments and resulting loss of income.

A person with a manageable pre-existing psychological condition experiences a severe psychological reaction following a car accident and requires extensive treatment as a result. Although someone without the pre-existing psychological condition might not have experienced the same reaction, the at-fault driver may still be responsible for the accident-related psychological injuries and treatment expenses of the thin skull plaintiff.

The Legal Principle Behind the Thin Skull Rule

The Supreme Court of Canada addressed the thin skull rule in Athey v. Leonati, [1996] 3 SCR 458. The Court indicated that a defendant may be held responsible for injuries resulting from the interaction between a plaintiff’s pre-existing condition and an accident even though the defendant did not cause the plaintiff’s pre-existing condition. In other words, a pre-existing vulnerability does not excuse an at-fault driver from responsibility for the injuries and damages sustained in a car accident, even if those injuries and damages are more severe because of the plaintiff’s pre-existing condition.

What Is a Crumbling Skull Plaintiff?

A crumbling skull plaintiff is someone with a pre-existing injury or medical condition that would have deteriorated and caused the damages being claimed even if the car accident had not occurred.

Unlike the thin skull rule, which holds a defendant responsible for the increased severity of accident-related injuries due to a pre-existing condition, the crumbling skull rule recognizes that a defendant is not responsible for injuries and damages that would have occurred regardless of the accident.

Examples of Crumbling Skull Plaintiffs

A person has a bulging disc in their lumbar spine that becomes completely herniated and sequestered after a car accident. If the medical evidence establishes that the disc herniation was caused entirely by the natural progression of the plaintiff’s pre-existing spinal condition, rather than the accident, the plaintiff will be unable to recover damages for the herniated disc and its resulting consequences.

A person has a manageable cognitive impairment that is expected to deteriorate over time and prevent them from working. Following a car accident, the plaintiff’s cognitive condition worsens, and they become unable to work. If the medical evidence establishes that the plaintiff would have stopped working at the same time regardless of the accident, they will be unable to recover their loss of income. However, if the accident caused the plaintiff to stop working earlier than they otherwise would have, they may recover compensation for the resulting loss of income attributable to the accident.

A person has a pre-existing psychological condition that is expected to deteriorate and require significant treatment regardless of the accident. If the medical evidence establishes that the plaintiff’s psychological condition worsened independently of the accident, the at-fault driver will not be responsible for the resulting damages.

As per the Supreme Court of Canada in Athey v. Leonati, the defendant is not responsible for injuries and damages due to a pre-existing condition that would have occurred regardless of the accident (e.g., crumbling skull).

How Do I Prove My Car Accident Aggravated My Pre-Existing Injury?

One of the greatest challenges in a car accident claim involving pre-existing injuries is establishing whether the accident aggravated those injuries or whether the plaintiff’s condition would have deteriorated regardless of the accident. The parties will often disagree about whether the plaintiff’s pre-existing injuries were aggravated by an accident (e.g., thin skull) or were just a natural progression of a pre-existing condition (e.g., crumbling skull). For this reason, it is important to retain an experienced personal injury lawyer who can gather the evidence necessary to establish that the accident caused or aggravated your pre-existing injuries, if any.

Your lawyer will typically obtain medical and employment records from three to five years before the accident, where applicable. These records may establish the nature of your pre-existing injuries, the treatment you received, and your ability to work and perform daily activities before the accident. Your lawyer will also gather all medical and employment records following the accident to determine whether your pre-existing injuries worsened and how your functioning changed after the accident.

For example, if you experienced manageable back pain before the accident and were able to work full-time, but following the accident experienced significantly increased back pain that prevented you from working, this may support an argument that the accident aggravated your pre-existing condition and caused additional damages.

However, just because your injuries worsened after an accident is not, on its own, sufficient to establish that the accident caused your injuries to worsen. Your lawyer should also retain appropriate medical experts to provide opinions regarding whether the accident aggravated your pre-existing injuries and impacted your ability to work and function.

The central question is whether the accident caused a change in your condition which resulted in damages that would not otherwise have occurred but for the accident.

What Types of Evidence Can Prove My Car Accident Aggravated My Pre-Existing Injury?

The following types of evidence are relevant to establishing that a car accident aggravated your pre-existing injuries and caused additional damages:

Medical records and diagnostic imaging: Medical records from three to five years before the accident to the present. In some cases, medical records even further back may be relevant.
Income tax returns: Tax returns from before and after the accident may help establish whether your accident-related injuries have affected your income.
Employment records: Employment records from before and after the accident may demonstrate your ability to work before and after the accident, and any changes in your employment, hours, duties, or earnings.
Your own testimony: Your evidence, including verbal evidence given at an examination for discovery, can explain how your symptoms and ability to perform daily activities changed following the accident.
Medical expert evidence: Expert opinions are essential to establishing whether an accident aggravated your pre-existing injuries and impacted your ability to work, participate in recreational activities, perform housekeeping, or require medical treatment.
Housekeeping expenses: receipts for housekeeping assistance may establish additional expenses incurred because of your accident-related injuries.
Witness statements: Statements from family members, friends, or coworkers may help establish differences in your functioning before and after the accident.

What If I Was Symptom-Free Before the Accident?

If you had a pre-existing injury or medical condition but were symptom-free before the accident, it may be easier to establish that the accident caused your subsequent symptoms.

However, you will still need to gather medical evidence including expert evidence to establish that the accident caused your symptoms. Just because symptoms emerged after a car accident does not mean the accident was the cause of those symptoms.

How Do Pre-Existing Conditions Affect Damages and Settlement Value?

The impact of a pre-existing injury or medical condition on the settlement value of your car accident claim depends on the particular facts of your case.

Claims involving pre-existing conditions may be more difficult to establish where there is little change in your symptoms and functioning following the accident. Similarly, where the medical evidence suggests that the plaintiff’s condition would have deteriorated regardless of the accident, the settlement value may be reduced to reflect weaknesses in establishing damages caused by the accident.

However, having a pre-existing injury does not necessarily reduce the settlement value of your case. A claim may still have significant value where the medical evidence establishes that the accident aggravated a pre-existing condition and as a result substantially affected your ability to work, perform housekeeping activities, or participate in your daily activities.

For example, a person with manageable chronic back pain who worked full-time but can no longer work because their condition was aggravated by a car accident may have a substantial claim for a loss of income, pain and suffering, and future medical care.

Ultimately, the settlement value of a car accident claim depends on several factors, including the severity of your injuries and their impact on your functioning, your income losses, future care needs, and the strength of the medical evidence establishing causation. The presence of a pre-existing condition is only one factor in assessing the value of your case.

There are specific rules in car accident cases imposed by the Insurance Act that may reduce the amount of damages that can be claimed. These rules apply regardless of whether you had a pre-existing injury or not. To learn more about how the value of car accident claims are assessed, read our article “How much is my car accident case worth in Ontario?”

If you sustained injuries in a car accident and have a pre-existing medical condition, you may still be entitled to compensation.

At Hillier & Hillier, we represent individuals injured in car accidents throughout Ontario, including those whose pre-existing injuries or medical conditions have been aggravated by an accident.