Important “Crumbling Skull” and Threshold Decision

In a decision handed down yesterday, Ottawa judge Madam Justice Giovanna Toscana Roccamo awarded damages of more than $700,000 to two chronic pain plaintiffs. The case is Hartwick v. Simser. The 63 page decision of Madam Justice Toscana Roccamo will be of great interest to those handling auto BI claims because it deals with a number of issues that commonly arise in chronic pain cases.

But the case also effects a dramatic departure from the way in which Ontario courts have interpreted and applied the well-known (some would say “notorious”) Supreme Court of Canada decision in Athey v. Leonati. The approach endorsed here is very favourable to the defence.

(It is worth pointing out that prior to her appointment last year, the judge was a respected member of both the plaintiffs’ and defence personal injury bars in Ottawa. She is also a co-author of the Carswell text, Personal Injury Actions.)
The plaintiffs were a mother and daughter who were injured in a rear-end collision between two trucks. The accident took place in 1999. At that time, the mother (Karen Hartwick) was 35 and her daughter Krista was 11.

Liability was admitted. The collision was found to have been a “serious one”, with an impact speed of about 80 kph, resulting in both trucks being written off.

The claims of the two injured plaintiffs were based on allegations of chronic pain. The principal defences were threshold and causation (“crumbling skull”).

Both plaintiffs had had some pre-accident health issues upon which the defence relied. In the case of the mother, these included anxiety disorder, some musculoskeletal complaints and migraines. The court found that during the two year period preceding the accident, the problems had consisted mostly of anxiety manifested in various sorts of physical complaints.

Krista’s pre-existing problems were similar in some respects to those of her mother: migraines, anxiety, arthritis. Depression had also been diagnosed by her family physician.

Madam Justice Toscana Roccamo’s reasons for judgment contain an extensive review of the medical evidence (including that given by various defence experts), which is not summarized here.

Threshold Test
Beginning at page 15, Her Honour discussed the current law regarding the “threshold” set out in s. 267.5 of the Insurance Act. She made the following findings as to the applicable legal principles:

  • Chronic pain arising from injury sustained in a motor vehicle accident, and which accounts for limitation in function unlikely to improve for the indefinite future will meet the requirement of “permanence” in the threshold;
  • Ongoing and debilitating pain, even in the absence of objective findings by medical experts, will constitute “serious impairment”;
  • Substantial interference in the ability to carry on usual function in a pain-free manner, including inability to perform household functions, inability to maintain intimacy with a partner or spouse, inability to enjoy usual family relationships and inability to sleep through the night without interference with pain will constitute “serious” impairment
  • Where the plaintiff’s usual activities, including employment, continue in the presence of chronic pain but the pre-accident combined capacity for work and pleasurable activity, including meaningful and regular socialization and capacity for household chores, are substantially interfered with, this will constitute “serious impairment”.

Both plaintiffs were found to have met the threshold.

strong>Diagnosis: Subjective or Objective?
Typically, in chronic pain cases, one of the most contentious issues is whether the diagnosis of the plaintiff’s symptoms has any objective support. This case was no exception.

One of the plaintiff’s experts was physiatrist Dr. Alex McKee, who came to Ottawa from Alberta fairly recently. An interesting feature of Dr. McKee’s testimony, not usually seen, was his contention that his palpation of a patient’s spine could (and did) produce objective evidence of facet joint injury. Justice Toscana Roccamo expressly did not decide whether such evidence was objective or subjective, but she did accept the diagnosis.

(Heather Williams and Jill Alexander of our office are just finishing a five-week trial in another chronic pain case in which Dr. McKee testified as one of the plaintiff’s principal experts. The same issue (objective vs. subjective diagnosis) exists in that case, so stay tuned!)

The judge watched surveillance videotapes. The use of this evidence seems to have backfired somewhat, as Toscana Roccamo J. found in them additional support for the plaintiff’s complaints. She noted that the plaintiffs had displayed restriction of movement and signs of fatigue in the course of the activities that were taped.

Contributory Causation and “Crumbling Skull”
The Hartwick case is particularly important in its interpretation of the well-known case of Athey v. Leonati and the jurisprudence that has followed it.

The issue in such cases is whether a plaintiff is (1) unusually susceptible to injury (“thin skull”), or (2) suffers from a pre-existing condition that would have caused or increased the risk of damage in any case.

In Mizzi v. Hopkins, a 2003 decision of the Ontario Court of Appeal, the court said that “Athey v. Leonati confirms that once it is proven that a defendant’s negligence was a cause of the plaintiff’s injury, whether demonstrated directly or by inference of a causal connection, a damages award should not be reduced to recognize the contribution of non-tortious causes to the plaintiff’s loss.” This would suggest that even where the “crumbling skull” defence is made out, a plaintiff’s damages are not to be reduced.

In Hartwick, although she was very critical of the defence expert evidence, Justice Toscana Roccamo did conclude that the “crumbling skull” defence should apply, in view of the pre-accident health problems from which both plaintiffs had suffered. On this basis, she reduced the mother’s general non-pecuniary damages by 25% and those of the daughter by 15% to reflect the effect of the pre-existing conditions.

This is very interesting, in two respects. First, we are not aware of any other Ontario case in which the crumbling skull principle has been used to effect a percentage reduction of the plaintiff’s damages.

But Justice Toscana-Roccamo, in Hartwick, drew a distinction between causation and assessment of damages. She observed that “it may be incorrect to state that non-tortious causal factors do not affect the assessment of damages, unless they become manifest in a disabling condition” and she cited a British Columbia Court of Appeal case, T.W.N.A. v. Clarke. The court in that case differentiated between analyzing causation and assessing damages. No other Ontario case has yet referred to the T.W.N.A. decision.

It therefore appears that the Hartwick case has introduced into the law of Ontario a refinement on the Athey principle of causation: where a pre-existing condition would have caused or increased the risk of injury in any case, the defendant will be entitled to have the damages reduced accordingly. Presumably, the amount of the adjustment would vary with the facts of the case.

The second noteworthy point about Justice Toscana Roccamo’s Athey analysis is that she only reduced the non-pecuniary general damages on account of the “crumbling skull” defence. She did not apply to her assessment of the pecuniary damages claims (principally future income loss) the reductions of 25% and 15%, referred to above. Presumably, this is because, by their nature, assessments of future income loss require the cost to estimate, as best it can, what part of the loss was actually caused by the defendant’s tortious conduct.

However, it is important to note that if Her Honour had awarded damages for loss of earning capacity instead of future income loss, it appears that she would have applied the same “crumbling skull” discount. At paragraph 219 of her decision, she stated that “the principles of assessment apply equally to non-pecuniary damages and to damages for loss or impairment of earning capacity”. The T.W.N.A. decision, on which she relied, also made the same point.

Loss of Interdependent Relationship
This is a head of damages that has been popping up with increasing frequency and it did so here. The plaintiffs’ theory here was that the daughter, Krista, would not be able to pursue a college education and that since “like marry like”, she would lose the material benefits of marrying someone of college or higher education.

First of all, Toscana Roccamo J. rejected the premise, that Krista would not be able to attend college. But Her Honour went on to review the jurisprudence and noted that the cases in which such an award had been made had typically involved much more serious injuries than was the case here. Accordingly, she refused to make any award under this head of damages.

This case is further evidence, if any were needed, of the great difficulty that defendants face in establishing a “threshold” defence in chronic pain cases. As we have pointed out in other commentaries, the pace of the litigation process itself almost guarantees that, by the time a case gets to trial, the plaintiff’s symptoms will have been in existence for long enough that most doctors will characterize soft tissue pain as “chronic”. And interpreting “permanent” to mean “indefinite”, as Justice Toscana Roccamo has done, supplies the missing link to satisfy that element of the threshold test.Unless the plaintiff can be shown to be an out and out malingerer, the defence has an uphill battle on the threshold issue.But, from the defence perspective, Hartwick’s analysis of Athey v. Leonati may mean a brave new world on the issue of assessment of damages. The approach followed by Madam Justice Toscana Roccamo, of allowing a court to reduce an award of damages to take into account a plaintiff’s pre-existing condition, is a move away from the “all or nothing” approach with which insurers have been cudgelled for the last eight years, since Athey.We strongly suspect that this is not the last word on the subject.


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