Are Sexual Abuse Injuries Indivisible Invisible, or Both? – Estable v. New
Invisible Injuries
One of the greatest challenges in representing survivors of childhood abuse is the fact that, for the most part, the injuries are invisible. That is to say, they are primarily psychological. You cannot point to an x-ray, CT scan or MRI to show the nature and extent of a psychological injury. So in that sense, sexual abuse claims cause “invisible” injuries.
Sad Life Defence
Frequently survivors of childhood sexual abuse will have experienced other traumatic events (either before or after the abuse that is the subject of litigation). In these circumstances defendants usually argue that the pre or post traumatic incidents are the true cause of the plaintiff’s injuries. Therefore because the plaintiff has lead such a sad life, his or her compensation should be reduced (or eliminated) because the plaintiff’s harms and losses were actually due either in whole or in part to other sad and traumatic events.
Indivisible Injuries
My colleague Erik Magraken summarized a recent decision of the BC Supreme Court Estable v New, that deals with how to determine appropriate compensation when injuries are “indivisible”.
Although the case Erik references is a motor vehicle claim the legal principles involved in calculating losses are the same as those that apply in sexual abuse cases.
Madam Justice Gropper explains that divisible injuries are those which can be clearly determined and separated. For example, injuries to different parts of the body which were not caused by the defendant’s actions.
In sexual abuse compensation claims where the injuries are almost entirely psychological it is rarely the case that one can clearly establish cause and effect between traumatic events that predate and postdate the abusive acts.
As Justice Gropper explains:
Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, and injury to the same area of the body, or global symptoms that are impossible to separate…
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 tortious or non-tortious causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage.
What Does it Mean?
The decision clearly shows that defendants who spend a great deal of time in pursuing the “sad life” defence are, from a damages calculations standpoint, wasting their time.
However, I think it is unlikely defence counsel will stop pursuing these types of defences if only because they “muddy the water” and make cases more confusing and complex.
Human nature being what it is when something is confusing or complex we tend to revert to the status quo. Which, in the case of a sexual abuse survivors, means not awarding fair and adequate compensation.
