Man awarded $2 million after car accident, found to be a thin skull
The recent decision of Murphy v. Hofer 2018 BCSC 869, exemplifies the “thin skull” principle in the law. The thin skull rule makes the defendant liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing yet stable condition.
The plaintiff, Leo Murphy, (“Mr. Murphy”) asked for money damages for injuries he suffered in a motor vehicle accident that occurred on November 29, 2013 (the “Accident”). The defendants admitted liability for the Accident. However, they disputed the extent of the damages Mr. Murphy alleged he suffered. They alleged that the plaintiff was not a thin skull.
At the time of the Accident, Mr. Murphy was employed as a conveyor belt technician, or belter, by Belterra Corporation, a company that manufactures and repairs conveyor belts used in the mining, forestry and shipping industries.
The Accident occurred on Highway 16, west of Prince George at approximately 8:40 a.m. Mr. Murphy was the driver of a Ford F-450 truck owned by Belterra. He was travelling west to get to a job site in Houston, B.C. The airbags in the Murphy vehicle had deployed and the steering wheel was broken and pinned against his chest. The steering wheel was distorted into an oblong shape. Mr. Murphy was transported to the University Hospital of Northern British Columbia in Prince George by ambulance and remained there for a few hours for observation and treatment. On admission to hospital he was alert and stable. His Glasgow Coma Scale was normal, that is, 15/15. In the hospital he reported pain along his left side and had abrasions beneath his left shoulder and on his left hip. He also reported a headache and pain behind his left ear. An x-ray did not show any internal injuries. At the hospital he was diagnosed as suffering multiple superficial injuries and was discharged to his home the same day. Mr. Murphy’s pain symptoms continued in the period after the Accident and have persisted. He experienced pain in his left shoulder, neck and lower back. Subsequently, Mr. Murphy began to experience psychological symptoms which continued to the time of trial.
He was no longer able to work at his pre-Accident occupation and had not worked at any job since August 2017. Mr. Murphy’s position was that the Accident has permanently disabled him from obtaining any meaningful employment, partially as a result of being a thin skull. He submitted that his life had been profoundly affected by both the physical and psychological injuries he suffered. He sought total damages of $2,465,000, including pain and suffering damages of $200,000 and $1,800,000 for loss of future income-earning capacity.
The defendants’ position was that while Mr. Murphy can no longer work at his former occupation as a belter, his condition had improved since the Accident and he had other occupations open to him. He was not the type of thin skull victim he would have the court believe. The defendants also said that Mr. Murphy suffered from a number of pre-Accident conditions that gave rise to a substantial possibility that he would not have been able to sustain the level of income he was earning at the time of the Accident, even if it had not occurred. The defendants submitted that a total award of $875,000, including $125,000 for pain and suffering damages and $500,000 for loss of future income-earning capacity would provide fair compensation to Mr. Murphy.
Prior to the Accident, the plaintiff experienced left shoulder pain and pain in his shoulder blade. He would experience pain following long shifts and long drives. He also experienced numbness in his fingers and forearm. The Court found that Mr. Murphy was meeting the challenges of his occupation and was in relatively good physical health up to the time of the Accident. He was earning $128,082 in earnings the year prior to the accident. Since the accident, he had been complaining of chronic mid-back pain, chronic left shoulder pain, chronic neck pain, low back pain and ongoing cognitive difficulties with concentration, memory, initiation of activities and planning and organization.
The issues in dispute were the amount of pain and suffering damages; past wage loss; loss of future earning capacity; and cost of future care. The court found that Mr. Murphy was more vulnerable to the effects of a traumatic event, such as this Accident as a result of his childhood experiences. In other words, he was a thin skull. The court found that for Mr. Murphy, the loss of his job as a result of his physical injuries has materially contributed to his inability to cope with his pain.
He was 39 years old at the time of the Accident. His physical injuries were serious but not severe. His principal physical injury was the tear to his left labrum, which required corrective surgery. Since the surgery he has made material improvement in his physical symptoms. Nevertheless, he continued to suffer some pain and discomfort in his shoulder, neck and back. His circle of friends had diminished. He could no longer engage in the outdoor activities he formerly did. He was irritable and received little pleasure from activities he formerly enjoyed, such as camping. Mr. Murphy also suffered from depression, low mood and cognitive difficulties. This was found attributable to the loss of his ability to work at his former job as well as his ongoing pain. In addition, he suffered from PTSD with its attendant anxiety and sleep deprivation, as well as the moderately severe psychiatric illness. The prognosis for improvement of his condition was poor to guarded. The court awarded non-pecuniary damages for pain and suffering in the amount of $175,000.
The parties agreed that the net amount the plaintiff is entitled to for loss of past earning capacity is $221,680. The court was satisfied that as a result of the injuries he suffered in the Accident, Mr. Murphy was no longer employable as a belter or any position requiring heavy physical strength. The court was satisfied that there was a substantial possibility that Mr. Murphy’s career would have been shortened or disrupted periodically even if there had been no accident and that the possibility of Mr. Murphy finding some other form of employment could not be completely ruled out. However, the court was also satisfied that Mr. Murphy’s post-Accident income-earning capacity was extremely limited. He was physically unable to do the jobs for which he has an aptitude and intellectually unable to pursue careers that he could manage physically. These factors were further exacerbated by the behavioural issues he has demonstrated since the Accident. Taking all relevant factors into account, the Court assessed Mr. Murphy’s damages as a thin skull victim for loss of future income-earning capacity at $1,600,000.
The court found that Mr. Murphy was therefore entitled to the following damages for the cost of future care: (1) Psychological Counselling ($54,000); (2) Pain Management Clinic ($13,500); (3) Occupational Therapy ($3,000); Kinesiology ($1,500); Vocational Counselling ($2,500); and Medications ($21,020) for a total of $95,520. The parties agreed on special damages in the amount of $2,658.60.0