How Canadian Courts Have Turned "Thin Skull" Damages into "Crumbling Skull" Damages: What are the Implications?

The Supreme Court of Canada's ruling in Athey v. Leonati¹ is a definitive commentary on the manner in which liability and damages should be apportioned in tort actions. The Court discusses a myriad of possible scenarios in which tortious and non-tortious factors, pre-existing conditions and subsequent incidents may contribute to a plaintiff’s ultimate condition following a tortious act. The Court also addresses the difficult and often misunderstood issue of damage awards in cases involving thin skull and crumbling skull plaintiffs.

This paper deals with the principles established in the Athey decision and their implications in the areas of causation and damages. The paper begins with a detailed analysis of the Athey case and then discusses the implications of the decision in determining liability in the case of tortious and non-tortious factors contributing to a plaintiff’s injury, and the judicial treatment of the Athey decision in this context, with a particular focus on thin skull and crumbling skull plaintiffs. The final sections of the paper are a commentary on the courts’ assessment of damages in two recent decisions, the Ontario Court of Appeal’s decision in Robinson v. Sydenham District Hospital Corp. and the Alberta Court of Queen’s Bench Decision in Moser v. Derksen, and the difference between the approach taken in those cases and the principles established in Athey.

Notes:
¹ Athey v. Leonati, [1996] 3 S.C.R. 458 (QL) [hereinafter Athey].

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