As previously discussed, the law of damages in BC has developed as follows with respect to indivisible injury compensation:
[55] Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, an injury to the same area of the body, or global symptoms that are impossible to separate: Bradley, at para. 20; see also Athey, at paras. 22-25.
[56] If the injuries are indivisible, the court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortuous or non-tortuous causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage: Bradley, at paras. 32-37; see also Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 19-23.
This principle becomes particularly important with respect to civil sexual abuse claims. The sad reality is that many abused people are repeat victims with a number of different wrongdoers taking advantage of them. If this is the case, and if the overall harm caused by the abuse is “indivisible” then the victim can collect their damages for the whole of the indivisible injury from any one of their perpetrators. This principle was demonstrated in reasons for judgment released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Corfield v. Shaw) the Plaintiff was the victim of childhood sexual abuse at the hands of her stepfather. The abuse was “egregious and prolonged“. Later she was the victim of sexual abuse at work. The latter abuse was of a less severe character. She sued for damages as a result of the workplace abuse. The Defendant was ultimately found liable.
The Defendant argued that the damages should be modest because the Plaintiff “was still experiencing emotional and psychological difficulties from the Childhood abuse” and that these consequences “would have continued thereafter even without Mr. Shaw’s wrongful actions“. Mr. Justice Butler rejected this argument and assessed damages on an indivisible basis. In doing so the Court provided the following reasons:
[101] There is no question that the nature of the emotional and psychological injuries she suffered as a result of the Childhood Abuse is similar to, if not the same as, what she has experienced since the Assaults. Any attempt to divide those injuries into causes as between the two tortfeasors would be artificial. There was no evidence proffered which would allow me to conclude that some of the symptoms or emotional difficulties suffered by Ms. Corfield since 2005 were caused solely by the Childhood Abuse. Accordingly, I conclude that all of Ms. Corfield’s emotional and psychological difficulties since 2005 were caused or contributed to by the Assaults. In other words, the injuries she has suffered from since 2005 are indivisible from those injuries suffered from the Childhood Abuse.
[102] In reaching that conclusion, I am not suggesting that the Assaults were the only cause of her injuries, just that her “damage and loss has been caused by the fault of two or more persons”, one of whom is Mr. Shaw. As a result, in accordance with the provisions of s. 4 of the Negligence Act, R.S.B.C. 1996, c. 333, Mr. Shaw is jointly and severally liable for the injuries suffered since the Assaults, and he is responsible for the full cost of loss and damage suffered since the Assaults subject to consideration of the crumbling skull principle.
[103] The difference between a thin skull and a crumbling skull is described in Athey at paras. 34 and 35:
… The “crumbling skull” doctrine is an awkward label for a fairly simple idea. It is named after the well-known “thin skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person.
The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”.
[104] One aspect of Ms. Corfield’s “original position” was described by Dr. Bruce; she was “more vulnerable to experience a more intense emotional affect from stressful events”. In other words, she was fragile and susceptible to suffering emotional damage. There is no question that this condition falls within the “crumbling skull” category. Ms. Corfield continues to have that susceptibility and Mr. Shaw does not have to compensate her for continuing vulnerability.
[105] However, the defendants also argue that Ms. Corfield was still experiencing emotional and psychological difficulties from the Childhood Abuse before she was assaulted by Mr. Shaw. They say the symptoms she suffered from included anxiety, depression, poor sleep, nightmares, alcohol abuse and other symptoms. The evidence of Ms. Corfield’s mother provides some support for this position. Ms. Corfield herself said that she “felt herself fairly recovered” from the Childhood Abuse. I take this to mean that she was doing reasonably well but had not fully recovered. In cross-examination she admitted that her doctor recommended she attend counselling in 2003 and 2004. This confirms that in the two years before she started working at Baker Industries she was experiencing emotional difficulties. She also admitted to continuing intimacy problems arising from the Childhood Abuse…
[116] In these circumstances, an appropriate award for non-pecuniary damages including the aggravating circumstances is $70,000. This must be reduced to take into account Ms. Corfield’s pre-existing condition. A deduction of 15% results in an assessment of $59,500. I will round that up and award the sum of $60,000 for non-pecuniary damages.
