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

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Spence J. concludes that it was inevitable that the plaintiff would have suffered the same problems
had the accident not occurred, but the accident likely accelerated the onset of the symptoms so
causation cannot be ruled out 21 . Spence J. states that, in light of his finding that either the tortious
act or the non-tortious factors could have been the cause of the plaintiff’s injury, the third principle
of causation, as enunciated in Athey 22 , applies. Therefore, the Court must determine, on a balance
of probabilities, whether the tortious act materially contributed to the injury. Spence J. concludes
that the accident materially contributed to the plaintiff’s injuries 23 and accordingly, held the
defendants liable for the full extent of the plaintiff’s losses.
(4) Cottrelle v. Gerrard 24
The Cottrelle case is another example of the straightforward application of the Athey principles
regarding multiple contributing factors by Leitch J. of the Ontario Superior Court of Justice. The
plaintiff in Cottrelle was a diabetic with a history of smoking and high blood sugar levels, both
which put her at increased risk of developing vascular disease leading to the development of
gangrenous tissue in her feet which could require amputation. In 1993, the plaintiff developed a sore
on her foot which subsequently developed into a deeper infection and which contributed to the
development of gangrene and the resulting amputation of the plaintiff’s leg below the knee.
21 Ibid. at 6.
22 See Part II(B), above, for a discussion of this principle.
23 Brown, supra note 20 at 7.
24 Cottrelle v. Gerrard, [2001] O.J. No. 5472 (Ont. S.C.J.) (QL) [hereinafter Cottrelle].