"Thin Skull" Damages into "Crumbling Skull" Damages - Bogoroch ...

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With respect to the subsequent tortious acts, Moldaver J. states that, based on Athey, the fact that
the plaintiff’s overall condition may have been exacerbated by the post-accident assaults does not
relieve the defendant from full responsibility 15 . This is consistent with general legal principles
allowing joint tortfeasors to seek contribution and indemnity from one another 16 . As such, there is
no justification for reducing the damages awarded on the basis that there have been subsequent
tortious events. This approach is also consistent with the Supreme Court of Canada’s statement that
the plaintiff must be placed in the position which she would have been in had the tortious incident
not occurred.
Moldaver J. states that, in light of the Athey decision, the jury should have been advised that, if the
plaintiff’s overall condition resulted from the cumulative effect of the injuries sustained in the
accident, the post-accident beatings and her pre-existing psychological problems, she would
nonetheless be entitled to full compensation if the jury was satisfied, on a balance of probabilities,
that the injuries sustained in the accident materially contributed to her overall condition (this would
be an award of thin skull damages, combined with the principle that joint tortfeasors may claim
15 Ibid. at 3.
16 Ibid.