Is a plaintiff entitled to be treated as a thin-skulled plaintiff for the purpose of damage assessment?

British Columbia, Canada


The following excerpt is from Mossop v Hogg, 2019 BCSC 1552 (CanLII):

The plaintiff is entitled to be compensated for the difference between his injured position, that is, post motor vehicle accident, and his original position, immediately preceding the motor vehicle accident. He is not to be put in a better position, so if his shoulder joint would have become symptomatic at some point in the future even if the accident had not occurred, that must be factored into the assessment (Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458). In this case, there is no evidence when, if at all, the plaintiff's asymptomatic degenerative changes to his shoulder might have worsened or become symptomatic. Consequently, I find the plaintiff is entitled to be treated as a thin-skulled plaintiff and not a crumbling-skull plaintiff for the purpose of damage assessment.

The factors for the court to consider in awarding non-pecuniary damages are well known and were summarized in Stapley v. Hejslet, 2006 BCCA 34. Here, the plaintiff is a relatively young man, 35 years old at the time of the accident and 40 now. He has significant pain in his shoulder which has been increasing in frequency, intensity, and duration since the accident. He now has moderate pain in his wrists with particular activities worsening the pain, but the wrist pain was initially severe. His other injuries have resolved as has the mild issue he had with anxiety following the accident. He has been able to continue to work full-time since approximately seven weeks after the accident, albeit with modification to his duties. His previous recreational activities including with his children have been significantly curtailed or completely eliminated. His sleep is disturbed. He has been able to form a common law relationship and there is no evidence that any of his other familial or social relationships have been impaired.

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