Determining Damages for Elderly Plaintiffs: The Thin Skull Argument
The purpose of tort damages is to compensate the injured party and, so far as money can, put the plaintiff back into the position he or she would have been in prior to the accident.
Generally, if a negligent act causes a compensable damage to occur, then the injured party is entitled to compensation in tort. When the injured party is elderly, several arguments are often asserted by defendants to reduce damages on the basis of age.
- First, and more legitimately, since most elderly individuals are retired, they do not have access to employment incomes and hence it is argued they will not be eligible to receive income replacement from their injury. Pensions and savings are independent of the injury and not caused by the negligent act, so they are non-compensable. Although generalized and overbroad, this argument generally succeeds in its context.
- Second, due to their age, older individuals are not required to live with their injury for as long and therefore do not require as much compensation. They argue for an overall reduction of damages on the sole basis of age. This is often argued with respect to costs of future care and non-pecuniary losses (i.e. loss of enjoyment of life). However, this assertion is incorrect and merely plays on common misconceptions that demean the injured elderly party.
With respect to the second argument, age is merely one factor or contingency in assessing a quantum of damages, rather than a harsh limiting one. Alternatively, age may actually work in the other direction and could increase awards. This is best conceptualized through the thin-skull rule.
Thin Skull Rule: Application to Elderly Plaintiffs
In order to receive damages, it must be proven that the alleged incident caused the claimed injury. If the defendant caused the harm, then they are required to compensate the plaintiff. However, it is a general principle in tort law that the tortfeasor must take their victim as they find them, and a defendant cannot defend their wrongdoing by claiming that the injured party plaintiff had an unusual susceptibility to injury.
Where the consequences of an injury are aggravated by the victim’s pre-incident health, the wrongdoer is still liable for the full extent of the injury. In other words, the quantum of damages must compensate the plaintiff back to pre-accident health. This is in line with tort’s goal of compensation and applies even if the defendant had no knowledge of the plaintiff's condition. In Athey v. Leonati, 3 SCR 458, the plaintiff, who had a history of neck and back problems, suffered an aggravation of these injuries in an car accident caused by the defendant. The court awarded the plaintiff full compensation, stating that:
This appeal involved a straightforward application of the thin skull rule … If the defendant’s negligence exacerbated the existing condition and caused it to manifest in a disc herniation, then the defendant is a cause of the disc herniation and is fully liable.
Athey v. Leonati, 3 SCR 458.
Assessing damages for elderly plaintiffs occurs in a similar vein and the case law has supported this conclusion. In Pingitore v. Luk, 1994 CarswellBC 1940, a 67 year-old plaintiff was injured in a car accident. The court denied a substantial reduction in pecuniary damages for age and attempted to guide later awards:
What must be looked at is the deprivation of the vigour he had enjoyed up until the accident and which, on the evidence, I think he might have expected to enjoy for some long years. Injury to older people is, form at least one vantage, more profound than injury to the younger.
Pingitore v. Luk, 1994 CarswellBC 1940.
In Pingitore, and many cases following, the court actually assessed the plaintiff’s injury as exacerbated by their age (i.e. their thin-skull), granting higher a quantum for pecuniary damages as a result. What may be a small loss for a younger person, may be a larger loss to an already constrained older person. In terms of pecuniary damages, an older individual has far more limited enjoyable activities to them and further impediment, may cause a disproportionate decrease in enjoyments of life.
A similar outcome occurred in Harris v Ladner Centre Holdings Ltd., 2008 BCSC 1735, for future care costs:
he fact that she is an elder means that the effect of her injuries is to increase her need for assistance, rather like a thin-skulled plaintiff.
Harris v Ladner Centre Holdings Ltd., 2008 BCSC 1735.
The thin-skull rule also applies with regards to the Statutory Accident Benefits Schedule (“SABS”), which are a series of benefits that all parties who suffer an injury resultant from a motor vehicle accident are entitled to, regardless of fault. In Pucci v. The Wawanesa Mutual Insurance Company, the Ontario Court of Appeal rejected the argument that benefits should be reduced due to a pre-existing medical vulnerability, stating that:
Nothing in those cases supports the proposition that the proverbial “thin skulled” driver, who has an accident that precipitates or triggers consequences that are particularly dire because of the driver’s prior medical vulnerability, is not covered under her motor vehicle insurance policy.
Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265.
When asserting claims on the behalf of plaintiffs, it is important to take a comprehensive approach that does not unduly or improperly limit claims. Stapley v. Hejslet, BCJ No 128, lays out six main, but non-exhaustive, factors for damage assessment:
- Age of the plaintiff;
- Nature of the injury;
- Severity and duration of the pain;
- Emotional suffering;
- Loss of impairment of life.
Although many defendants will argue that the quantum should be reduced because of age, an elderly plaintiff may counter with the thin-skull argument. Since an elderly individual is already constrained by age, their injury may affect them to a greater extent and the quantum may be increased as a result.
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1. Athey v. Leonati, 1996 CanLII 183 (SCC), 3 SCR 458, <http://canlii.ca/t/1fr63>, retrieved on 2020-06-17
2. Pingitore v. Luk, 1994 CanLII 1050 (BC SC), <http://canlii.ca/t/1dngd>, retrieved on 2020-06-17
3. Harris v. Ladner Centre Holdings Ltd., 2008 BCSC 1735 (CanLII), <http://canlii.ca/t/21xz3>, retrieved on 2020-06-17
4. Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265 (CanLII), <http://canlii.ca/t/j6md9>, retrieved on 2020-06-17