‘Crumbling skull’ ruling overturned
Judge faulted in psychological damages case
A British Columbia judge was wrong to deny a young woman’s claims for psychological damages after a car crash because he thought her mental-health problems, including a strained relationship with her mother, meant she would have eventually suffered mental harm anyway.
As a result, the province’s top court has ordered a new trial, and faulted the original judge for deciding that Breanna Margaret Gordon’s depression and conflict with her mother made her a “crumbling skull” plaintiff, a legal term that basically means she was doomed to suffer anyway, so she deserves less compensation from the negligent driver who caused the crash.
This phrase, “crumbling skull,” is a common expression in personal injury law, but is “rarely helpful,” according to the Court of Appeal’s decision.
It refers to the legal rule that when a plaintiff with a pre- existing condition claims damages, a defendant must pay only for what would not have otherwise occurred naturally. In other words, a defendant is not required to make the plaintiff better off than before.
The rule’s gruesome nickname is meant to contrast it with the “eggshell skull” rule, according to which a defendant cannot claim a plaintiff ’ s damages are worse than they should be, or would have been to the average person. It is often expressed like this: You take your victims as you find them, however frail they might be.
The metaphor is that an eggshell may be fragile but it is stable, however a crumbling skull is getting worse all by itself. The effect of this distinction can sometimes be measured in thousands of dollars, as it likely will be whenever this case is properly decided.
The accident happened in Coquitlam, B.C., in 2009, when Gordon was 19. The other driver, Frances Ahn, made a left turn in her 2008 Lexus right into the path of Gordon’s 1999 Honda Civic. At trial, she admitted liability, and the only question was the amount of damages. Both cars were total losses, but the collision was not especially severe. Gordon’s airbags did not even engage, she did not bang into the window or steering wheel, and she left the scene after being checked by an ambulance attendant.
At i ssue i s what came next for Gordon, and why.
The reasons of trial judge Gregory Bowden read like an indictment of her life and prospects, and he put little stock in her testimony, calling her a “poor historian.”
He notes that her parents divorced when she was young, and she hardly knew her father, who was addicted to drugs and died about a year before the accident. She used drugs and alcohol in high school, and graduated with “mediocre” grades, but was athletic and in good health.
After graduating s he began studies toward a career in social work, but after the accident she found it hard to concentrate and physically painful to sit in class, and dropped out. She later found work as a server in restaurants, then as a traffic flagger, and in a cosmetics store, and most recently has had significant fi nancial success selling blenders.
But right after the accident, she was in a terrible state.
Physically, she was injured, though not severely. A doctor diagnosed a herniated disc and soft tissue injuries, and urged her not to work or play sports.
Mentally, however, she developed symptoms that met the clinical standard for a major depressive disorder, which was at its worst about a year after the crash. She reported spending months in bed “staring at the walls losing contact with the outside world.” She was once treated for an overdose of her pain medication, which she denied was a suicide attempt.
The j udge descri bed the “notable discord” that arose at home, where Gordon lived with her mother and “an old contact of her mother who had spent time in jail,” as the judge put it. “It appears that that person always put ( Gordon) down and this was a factor leading to ( her) moving in with her grandmother.”
One doctor called t he crash the “sole precipitant” f or her depression and anxiety, and a psychiatrist likewise identified it as the cause.
The judge saw it differently. He acknowledged t here was a connection between the pain of the physical injuries and the psychological problems, but concluded her psychological problems “existed because of her deteriorating relationship with her mother before the accident but worsened because of the accident and the pain she suffered.”
“In my view, the ‘ crumbling skull doctrine’ applies to the plaintiff ’s emotional or psychological condition at the time of the accident in 2009,” he wrote. “The evidence demonstrates that the plaintiff was at risk that her pre- existing emotional or psychological condition would have detrimentally affected her in the future regardless of the defendant’s negligence.”
The appeal judges found it hard to understand how he came to t his conclusion, especially as Gordon had not shown any signs of major depression before the crash, and there was no comparison of her mental health before and after.
“No expert opinion suggested that deterioration of her mental condition ( absent the accident) was probable, let alone inevitable,” t he t hree appeal j udges found.
GORDON HAD NOT SHOWN ANY SIGNS OF MAJOR DEPRESSION BEFORE THE CRASH.