If you’ve ever been seriously injured in an Ontario auto accident, then you probably know the kinds of ongoing effects those injuries can have. 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 today than they would have been otherwise.
How would those pre-existing injuries affect your legal remedies if — heaven forbid — you were injured once again by another person’s negligence? And how would that effect impact any efforts to settle your claim against that other person?
To answer those questions, we should consider three important aspects of Ontario personal-injury law: the goal of tort law, how Canadian courts address pre-existing injuries in determining damages, and how those legal principles affect settlements.
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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.”
The Thin Skull and the Crumbling Skull
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.
Not only will they consider the appropriate classification of such damages; they will also argue over it. A defendant who believes part of a plaintiff’s claimed damages are really just the result of the plaintiff’s “crumbling skull” will try to convince the plaintiff to accept a lower settlement offer. A plaintiff who believes otherwise will demand a higher settlement amount.
How an Experienced Ontario Personal Injury Lawyer Can Help
As the above discussion shows, although legal principles like the “thin skull” and “crumbling skull” seem to divide the world of pre-existing injuries into nice, clear categories with obvious applications, in practice it’s rarely that simple.
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. The Ontario personal injury lawyers at Preszler Law Firm can 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.
- Professionally negotiating a settlement with the other parties in your case, making clear that you will not be intimidated into accepting a deficient settlement.
- If necessary, pursuing your claim in court and obtaining a judgment for the full amount of damages to which the law entitles you.
If you’ve been injured by the negligence of another person, whether your injuries were exacerbated by a pre-existing condition or not, contact the lawyers at Preszler Law Firm today for a free consultation.
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