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How Do Pre-Existing Injuries Affect Injury Settlements in Ontario?


If you’ve ever been seriously injured in an Ontario auto accident, even long after any cuts, bruises, or breaks have healed, you may still suffer from pain, and the parts of your body injured back then may be more vulnerable to further injury.

Having already sustained injuries in an accident could impact the settlement amount to which you might be entitled if another collision in the future causes you to sustained additional medical complaints. To learn more about how you pre-existing injuries could impact the amount of your current personal injury settlement, contact Preszler Injury Lawyers and receive a free initial consultation.

The Goal of Ontario Personal Injury Law: A Return to the “Original Position”

The purpose of compensation in personal injury lawsuits is to return the plaintiff to the position he or she would have been in had the defendant not injured the plaintiff — that is, to return the plaintiff to his or her original position. Put differently, the goal of the tort system is that the plaintiff be no worse off — and no better off — than he or she otherwise would have been.

Canadian courts use two vivid metaphors to help illustrate how returning the plaintiff to the original position works in practice: the “thin skull” and the “crumbling skull.”

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The “thin skull” principle is that a defendant must compensate a plaintiff for his or her injuries, even if the plaintiff is more susceptible to injury than other individuals. In other words, the defendant can’t escape liability by pointing a plaintiff’s “thin skull” to explain away unusually severe damages.

The “crumbling skull” rule is the other side of the same coin: A defendant does not need to compensate a plaintiff for the pre-existing injury itself or the subsequent effects of that injury that would have occurred in any event. Remember, the goal is to return to the plaintiff’s original position, not a better one.

These two concepts play an important role in how courts determine the appropriate amount of damages in a case involving pre-existing injuries. Consequently, they also have a significant impact in the process of negotiating a settlement.

How the Law of Pre-Existing Injuries Affects Settlements

In a settlement, the plaintiff gives up the right to sue in exchange for the defendant’s payment of at least some compensation. Typically, the plaintiff receives less than he or she might have been entitled to following a victory in court. However, this disadvantage of settling is offset by the advantages of avoiding the time, expense, and uncertainty of going to trial.

Before a party will agree to a settlement, it will first investigate the strengths and weaknesses of the plaintiff’s claim and of any defences the defendant might raise. The party will consider both the specific facts of each case and how the law applies to those facts.

In the context of a personal injury claim involving pre-existing injuries, that means the plaintiff and defendant will consider whether seemingly excessive damages suffered by the plaintiff were the result of a “thin skull” — an unusual vulnerability to injury — or a “crumbling skull” — the subsequent effects of a pre-existing injury that would have manifested in any event.

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Defendants and their insurance companies will inevitably try to argue that a plaintiff’s injuries were the unavoidable result of pre-existing conditions, and that they therefore owe the plaintiff nothing. They will do this both in court and in out-of-court settlement negotiations, trying to convince the plaintiff to accept a low settlement offer.

If you have a claim that involves pre-existing injuries, you must be prepared for such tactics and understand how to defeat them. Preszler Injury Lawyers may be able to help you do so by:

  • Thoroughly investigating your case and organizing the evidence that shows you are entitled to more than the defendant or insurance company is offering.
  • Negotiating a settlement with the other parties in your case.
  • If necessary, pursuing your claim in court

If you’ve been injured by the negligence of another person, whether your injuries were exacerbated by a pre-existing condition or not, contact Preszler Injury Lawyers today for a free consultation.

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