HOW WILL MY PRE-EXISTING INJURIES IMPACT MY PERSONAL INJURY CLAIM

Can I Make a Personal Injury Claim If I Had a Pre-Existing Injury?

Yes. Having an injury, illness or medical condition before an accident does not automatically disqualify you from pursuing a personal injury claim.

The important question is often not simply whether you had a pre-existing condition, but what effect the accident had on you.

For example, you may have had a history of back pain before a motor vehicle accident. If the collision causes your back condition to become significantly worse, causes a new injury, or requires additional treatment, those consequences may be relevant to your claim.

The assessment generally requires evidence about your health before the accident and how your condition changed afterward.

Why Does a Pre-Existing Injury Matter?

Pre-existing injuries can make personal injury claims more complicated because it may be necessary to distinguish between:

• Symptoms or limitations that existed before the accident;
• A new injury caused by the accident;
• An aggravation of a pre-existing condition;
• An acceleration of an existing condition;
• A temporary worsening of symptoms; and
• Problems that would have occurred even without the accident.

These distinctions can affect the assessment of damages.

This is one reason why medical records from before and after an accident can be particularly important when a claimant has a pre-existing condition.

The Thin Skull Rule

The thin skull rule is an important principle in Canadian tort law.

In general terms, a defendant may be responsible for the actual consequences of an injury even if the injured person had an unusual vulnerability that made the consequences more serious than they would have been for another person.

In other words, a person who causes an injury generally cannot avoid responsibility simply because the injured person was unusually susceptible to serious consequences.

The Supreme Court of Canada discussed the thin skull principle in
Athey v. Leonati,
[1996] 3 S.C.R. 458.

The principle is particularly important when an accident interacts with a person’s existing physical condition.

Example of the thin skull rule

Imagine that a person has a previous back condition that makes their spine more vulnerable to injury. They are then involved in a motor vehicle collision caused by another driver.

If the collision causes a significantly more serious injury because of that vulnerability, the fact that the person was more susceptible does not necessarily reduce the defendant’s responsibility for the consequences of the accident-related injury.

The defendant generally takes the injured person as they find them.

What Does “Take Your Victim as You Find Them” Mean?

The phrase “take your victim as you find them” is commonly used to explain the thin skull rule.

It means that a defendant generally cannot argue that they should pay less simply because the injured person had a vulnerability that made the injury more serious.

For example, two people could experience the same collision but have very different outcomes because one person had a pre-existing condition that increased their susceptibility to injury.

If the accident caused the compensable injury, the injured person’s vulnerability does not necessarily limit recovery merely because another person might have suffered less serious consequences.

The Crumbling Skull Rule

The crumbling skull rule addresses a different situation.

A pre-existing condition may have been expected to cause symptoms, disability or deterioration even if the accident had never occurred.

In that situation, a court may take the person’s pre-existing condition into account when determining the damages caused by the accident.

The Supreme Court of Canada also addressed this principle in
Athey v. Leonati.

Example of the crumbling skull rule

Suppose someone has a degenerative condition that was already expected to worsen over time.

The person is subsequently involved in an accident that accelerates the deterioration.

The accident may still be legally significant. However, the assessment of damages may need to account for the deterioration that would probably have occurred even without the accident.

The issue is therefore not simply whether the claimant had a pre-existing condition. The issue is what would probably have happened without the accident compared with what actually happened because of the accident.

Thin Skull vs. Crumbling Skull: What Is the Difference?

The distinction can be summarized as follows:

Determining which principle applies is fact-specific and can require medical and expert evidence.

What If My Old Injury Had Healed Before the Accident?

A previous injury that had substantially resolved before the accident does not necessarily prevent you from making a claim.

In fact, evidence that you had recovered and returned to your normal level of functioning before the accident can be particularly important.

For example, suppose you injured your shoulder several years ago but completed treatment, returned to work and had no significant ongoing symptoms.

If a subsequent collision causes a new shoulder injury or causes the old symptoms to return, evidence of your condition before the collision may help establish the change that occurred after the accident.

What If I Was Still Experiencing Symptoms Before the Accident?

The situation can be more complicated if you were already experiencing symptoms immediately before the accident.

That does not mean that you have no claim.

Instead, it may be necessary to determine:

• How severe your symptoms were before the accident;
• What activities you could perform before the accident;
• Whether you were working and performing your usual duties;
• What treatment you were receiving;
• Whether your condition was stable or deteriorating;
• How the accident changed your symptoms;
• Whether new symptoms appeared after the accident; and
• Whether the accident accelerated or aggravated your condition.

These questions are often answered through a combination of medical records, testimony, employment information and expert evidence.

What Is an Aggravation of a Pre-Existing Injury?

An aggravation occurs when an accident makes an existing condition worse.

For example, a person may have manageable chronic back pain before a collision and then experience substantially increased pain, reduced mobility and additional treatment requirements afterward.

The legal analysis focuses on the difference between the person’s condition before the accident and the condition following the accident, together with the evidence concerning causation and prognosis.

The fact that the body part was previously injured does not automatically mean that all subsequent symptoms are unrelated to the accident.

What Is an Acceleration of a Pre-Existing Condition?

An accident can sometimes accelerate the progression of an existing condition.

This can be particularly relevant where a person has a degenerative condition that was expected to progress over time.

The legal question may involve comparing two scenarios:

1. What would probably have happened to the person without the accident?
2. What actually happened after the accident?

Medical and expert evidence may be necessary to determine the difference between those scenarios.

Why Medical Records Before the Accident Can Be Important

When a claimant has a pre-existing condition, medical records from before the accident can be extremely important.

They may help establish the claimant’s baseline condition before the accident.

Depending on the circumstances, relevant records may include:

• Family physician records;
• Specialist assessments;
• Diagnostic imaging;
• Physiotherapy records;
• Chiropractic records;
• Psychological or psychiatric records where relevant;
• Hospital records;
• Prescription information;
• Work restrictions; and
• Previous treatment records.

These records can provide evidence about the nature and severity of a condition before the accident.

Why Medical Records After the Accident Matter

Records created after the accident can help establish how the claimant’s condition changed.

They may document new symptoms, increased pain, reduced mobility, treatment recommendations, changes in medication, referrals to specialists and other consequences of the accident.

The timeline can be particularly important.

A lawyer assessing a claim may compare the medical history before the collision with the records following the collision to determine what changed and whether the evidence supports a causal connection.

What If the Insurance Company Says My Injury Was Pre-Existing?

An insurer may investigate your medical history when assessing a personal injury claim.

If you had a previous injury, the insurer may argue that some or all of your current symptoms were caused by the pre-existing condition rather than the accident.

That argument does not automatically determine the outcome of your claim.

The appropriate analysis requires consideration of the medical evidence and the circumstances of your particular case.

It is important to be completely honest about your medical history. Attempting to hide a previous injury can seriously damage your credibility if the medical records later reveal it.

A pre-existing condition should be disclosed and properly explained rather than concealed.

Does a Pre-Existing Injury Reduce the Value of My Claim?

Not necessarily.

There is no automatic rule that says a person with a pre-existing injury receives less compensation.

The effect depends on what the evidence shows.

If the accident caused a new injury or substantially aggravated an existing condition, the consequences of that accident may be compensable.

If the evidence establishes that some of the person’s future limitations would have occurred even without the accident, that possibility may need to be taken into account when assessing damages.

How Can a Pre-Existing Condition Affect Pain and Suffering Damages?

Non-pecuniary damages, sometimes described as damages for pain and suffering and loss of enjoyment of life, are assessed based on the impact of the injuries on the claimant.

When a pre-existing condition is involved, the assessment may require a comparison between the claimant’s likely condition without the accident and their actual condition following the accident.

Relevant considerations can include:

• The severity of symptoms before the accident;
• The severity of symptoms after the accident;
• The effect of the accident on daily activities;
• The effect on employment;
• The duration of the accident-related aggravation;
• The need for additional treatment;
• The prognosis; and
• The interaction between the pre-existing condition and the new injuries.

Can a Pre-Existing Injury Affect Future Loss of Income?

It can.

If an accident causes a person to lose income or reduces their future earning capacity, the pre-existing condition may be relevant when assessing the extent of that loss.

For example, if a person already had a medical condition that was expected to limit their future ability to work, the assessment may need to account for that expected limitation.

On the other hand, if the person was working normally despite a pre-existing condition and the accident causes a substantial new limitation, evidence of their pre-accident employment and functioning can be important.

What Evidence Can Help Prove the Effect of an Accident on a Pre-Existing Injury?

Evidence will vary depending on the circumstances of the claim. It may include:

• Pre-accident medical records;
• Post-accident medical records;
• Diagnostic imaging;
• Specialist opinions;
• Physiotherapy or rehabilitation records;
• Employment records;
• Income information;
• Statements from family members;
• Statements from coworkers;
• Evidence concerning activities performed before and after the accident;
• Photographs or other accident evidence; and
• Expert evidence where appropriate.

The purpose of this evidence is not simply to prove that an old injury existed. It can help establish the person’s baseline condition and demonstrate what changed following the accident.

Why Your Pre-Accident Activities Can Matter

Medical records are important, but they are not necessarily the only evidence of a person’s condition.

What a person could actually do before the accident can provide useful context.

For example, a person may have had a documented history of back problems but still regularly:

• Work full-time;
• Exercise;
• Play sports;
• Perform household responsibilities;
• Care for children;
• Travel;
• Drive long distances; or
• Participate in recreational activities.

If those activities changed substantially after the accident, that change may be relevant to understanding the accident’s impact.

What If I Had Multiple Previous Injuries?

A person can have more than one pre-existing condition and still have a valid personal injury claim.

The analysis can become more complicated where several conditions interact.

For example, a claimant may have a history of back problems, a previous shoulder injury and a pre-existing psychological condition before being involved in a collision.

The relevant question is not simply whether these conditions existed. It is how the accident affected the person’s overall condition and functioning.

In complex cases, medical or other expert evidence may be required to separate the effects of the pre-existing conditions from the consequences of the accident.

Should I Tell My Personal Injury Lawyer About My Previous Injuries?

Yes.

You should provide your lawyer with an accurate and complete medical history, including previous injuries and medical conditions.

Trying to hide a previous injury is usually counterproductive. Medical records may reveal the condition later, and an apparent inconsistency can create unnecessary credibility issues.

A lawyer needs to understand the complete history so that the claim can be properly assessed and the effect of the accident can be distinguished from the person’s pre-existing condition.

What Should I Do If I Have a Pre-Existing Injury and Have Been Involved in an Accident?

1. Seek appropriate medical attention.
   Tell your healthcare provider about the accident and explain any change in your symptoms.
2. Be honest about your medical history.
   Tell your healthcare providers and lawyer about previous injuries and conditions.
3. Follow recommended treatment.
   Attend appointments and follow appropriate medical and rehabilitation recommendations.
4. Keep records.
   Keep documentation concerning treatment, expenses, employment and other accident-related losses.
5. Document changes in your daily life.
   Pay attention to changes in your ability to work, exercise, drive, sleep, participate in family activities and perform everyday tasks.
6. Consider obtaining legal advice.
   A personal injury lawyer can assess how the pre-existing condition may interact with the accident and explain the potential legal implications.

Pre-Existing Injury FAQ

Does having a pre-existing injury prevent me from making a personal injury claim?

No. A pre-existing injury does not automatically prevent a person from pursuing a personal injury claim. The important issue is generally how the accident affected the person’s condition and what losses resulted from the accident.

What is the thin skull rule?

The thin skull rule generally means that a defendant may remain responsible for the actual consequences of an injury even where the injured person had a pre-existing vulnerability that made the consequences more serious.

What is the crumbling skull rule?

The crumbling skull rule recognizes that a pre-existing condition may have caused deterioration or limitations even without the accident. Where supported by the evidence, the assessment of damages may account for what would probably have happened without the accident.

Can a car accident make an old injury worse?

Yes. An accident can aggravate or accelerate an existing condition. Medical evidence is often important in determining the extent to which the accident changed the person’s condition.

What if my old injury had completely healed?

A previously healed injury does not automatically prevent a claim. Evidence showing that the person had recovered and was functioning normally before the accident may help establish the change that occurred afterward.

What if I was already experiencing pain before the accident?

You may still have a claim. The assessment may focus on the difference between your condition before the accident and your condition afterward, including whether the accident aggravated or accelerated your pre-existing condition.

Will the insurance company see my previous medical records?

Medical information can become relevant to a personal injury claim, particularly where a claimant’s previous condition is directly related to the injuries being claimed. The scope and use of medical information depends on the circumstances and applicable legal rules.

Should I hide a previous injury from my lawyer?

No. You should provide your lawyer with an accurate medical history. Your lawyer needs to understand your pre-existing conditions in order to properly assess causation, damages and the potential arguments that an insurer or defendant may raise.

Can I receive compensation if the accident aggravated my existing condition?

Potentially. If the evidence establishes that the accident caused an aggravation or acceleration of a pre-existing condition, the consequences attributable to the accident may be compensable. The specific circumstances and evidence must be assessed.

How much is a personal injury claim worth if I have a pre-existing condition?

There is no standard amount. The value of a claim depends on the nature of the injuries, the effect of the accident, the person’s pre-accident condition, prognosis, treatment, income losses and other evidence.