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Pre-existing injury

Can a Pre-Existing Injury Affect Your Claim?

It is an unfortunate reality that many people seeking compensation in personal injury claims have been injured in prior motor vehicle accidents (“MVA”) or have pre-existing injuries or conditions that make them susceptible to injury. How a pre-existing injury interacts with your current claim is a function of:

  • Your medical history,
  • Your current injury,
  • The stability/prognosis of your past injury,
  • The timing of your past injury, and
  • The similarity between your past and current injury.

Put a Precedent-Setting Lawyer On Your Side

To complicate the matter, the law governing pre-existing injuries is complex, and the subject of much litigation. It is critical that you contact an experienced lawyer to guide you through this process and highlight the strengths and potential weaknesses of your claim. 

Although this may paint a bleak picture, there is reason to be optimistic as the at-fault party cannot avoid paying compensation by pointing to a victim’s predisposition to injury or pre-existing injury. Compensation must be paid when pre-existing injuries are aggravated, or underlying conditions make injuries worse than they otherwise would be. There are two legal rules that inform the treatment of pre-existing injuries. 

Pre-Existing Injury Rule One: The Thin Skull Doctrine

This rule is applicable when an old, medically stable, injury is re-aggravated or worsened by the actions of another. For example, the victim in an MVA suffers ligament damage in their knee. During litigation, it becomes apparent that a previous, now stable, sporting injury weakened the ligaments making future injury more likely. The liable driver cannot avoid paying damages by pointing to the pre-existing injury as the cause of the current injury.

The thin skull rule prevents that type of defence from defeating the victim’s claim. Compensation must be paid notwithstanding the fact that a pre-existing injury makes someone more susceptible than others to future injury. The critical question is, “but for the defendant’s actions, would I have suffered this injury?” If the answer to that question is “no”, the defendant must pay 100 % of the damages. They cannot escape full liability by arguing that the plaintiff’s injuries would have been less severe if not for the pre-existing injury.   

Pre-Existing Injury Rule Two: Crumbling Skull Doctrine

Remember that the thin skull rule applies only to stable or healed pre-existing injuries. If your pre-existing injury is actively deteriorating such that your current injury would have occurred regardless of the defendant’s actions, the crumbling skull rule applies, and your compensation is reduced. The goal of personal injury law is to place the plaintiff in the position he or she was in before the MVA. In a crumbling skull situation, injuries are accelerated by the defendant, not caused.

For example, a plaintiff has a degenerative disease that will render him unable to walk in 10 years. In the 7th year, he is involved in a MVA the leaves him in a wheelchair for the rest of his life. This plaintiff’s pre-existing condition was not stable, and his current injuries would have occurred regardless of the MVA. Because of this, compensation is awarded only to the extent that the defendant contributed to the acceleration of injuries. The defendant is only responsible for additional harm caused, not the pre-existing condition itself. Compensation must reflect the plaintiff’s deteriorating pre-MVA condition.

The crumbling skull rule is based upon an unstable pre-existing condition that would have continued deteriorating despite the defendant’s actions. Compensation places the plaintiff in his or her deteriorating pre-MVA position.

Don’t Proceed Alone

Many seriously injured Albertans forego compensation because they believe pre-existing injuries bar their claim.

A pre-existing injury’s effect on compensation is a complex determination dependant on many factors. If you are injured in MVA, do not proceed alone. You may be entitled to more compensation than you think or are told. Please contact our team today for a free consultation.        

Legal Advice & Support with James H. Brown and Associates

Alberta accident injury law is complicated. Even with a solid case, attaining justice and complete compensation for your injuries can be a long and challenging process. When lives and livelihoods hang in the balance, Albertans need experience and expertise on their side.

For nearly 30 years, James H. Brown and Associates has proudly stood up for accident victims’ rights, representing our clients in Edmonton and across Alberta. Our team understands firsthand what it’s like to be seriously injured, and is proud of our proven record of getting our clients results.

No two accidents are the same; that’s why we offer a full range of services and support for our clients, including:

  • An award-winning team of injury lawyers with an unrivaled record of success.
  • Investigation and evidence preservation services, including accident reconstruction and analysis.
  • Strong relationships with organizations ready to assist with rehabilitation and recovery.
  • And much more!

Have You or a Loved One Been Injured and have a pre-existing injury?

Contact us today for a free, no-obligation consultation with James H. Brown and Associates’ experienced injury lawyers.