Causation And Sexual Assault (Part 3): Causation In Relation To Damages, A Mainstay In Sexual Abuse Cases
This blog is the final installment in a three-part series on causation in the civil sexual abuse context. In Part One, I explored the distinction between causation for liability and causation for damages. Part Two examined the relatively limited application of causation for liability in sexual abuse cases. Now, in Part Three, I turn to causation in relation to damages — a cornerstone of civil claims for sexual abuse and violence. By unpacking key legal principles and examining how courts approach these issues, I will shed light on the complexities of assessing and quantifying damages in these cases.
Returning to the intentional torts of assault and battery, as I said in Part Two, injury is not a requisite element for liability based on these torts. However, to obtain a meaningful award of damages, the extent of the damages caused by the wrongdoing always needs to be proven. The same is true for liability in negligence; once its requisite elements are established, the extent of the damages arising from the negligent conduct must be proven.
Existence of Liability
It is the extent of the damages caused by the wrongdoing, be it intentional or negligent, and not by other factors that must be determined. Returning to the clergy abuse example referenced above — assume the priest is liable for the intentional tort of sexual battery and the bishop is liable in negligence. Both sets of unlawful conduct are necessary causes of the damages suffered by the plaintiff. So having established the existence of liability, one must next establish the extent of the injuries attributable to both defendants’ unlawful conduct.
The question then becomes how to assess or quantify a plaintiff’s damages.
This requires one to consider the difference between a plaintiff’s “original position” and their “injured position," remembering that the purpose of personal injury damages is, notionally, to return the plaintiff to the position they would have been in without the abuse. I say notionally because money can never repair the harm caused by sexual violence, and yet money is all our legal system has to offer. So, if the purpose of damages is to put a victim of sexual assault back in their “original position,” then it stands to reason that the plaintiff cannot be put back in a better position. If their original position was already a compromised one when the abuse happened, then it is to that compromised position that they are to be returned, and not to a better one. It is at this stage that the “crumbling skull” and “thin skull” principles come into play. These are legal principles that speak to the extent of damages.
Again, let’s return to the clergy abuse example. Let’s assume the plaintiff, before they were abused by the priest, suffered from a mood disorder like depression, as well as a learning disability that meant they struggled academically. The defendants will surely argue that the quantum of damages must be reduced to reflect the impact of these two pre-existing conditions. They will advance a “crumbling skull” argument, which will go something like this: Although it’s agreed that the priest’s abuse injured the plaintiff, their pre-existing conditions would have caused them to suffer similar harms regardless of the abuse; as such, the defendants should only have to pay damages that reflect any aggravation or worsening of their harms caused by the priest’s abuse.
When defendants rely on the “crumbling skull” argument, they bear the burden of proving there was a “measurable risk” that other factors apart from the abuse caused the plaintiff’s impaired condition. This is not the easy burden many defendants and their lawyers assume it to be. It requires expert evidence that goes beyond raising a “vague possibility” that the plaintiff’s injuries would have been suffered in any event. The courts have said there has to be “reasonable evidence” of a “material risk” that the plaintiff would have suffered harm notwithstanding the sexual abuse. As one judge put it, it is not enough for a defendant to present evidence that other pre-existing factors may have contributed to the plaintiff's overall condition; rather, “there has to be tangible, cogent evidence establishing a measurable risk that those factors would have — not might have — caused [the plaintiff’s] disorders, even without the sexual abuse” (K.M. v Marson, 2018 ONSC 3493, para 524).
Pre-Existing Conditions
The plaintiff will counter the defendants’ “crumbling skull” argument by invoking the “thin skull” rule, which will go something like this: The plaintiff’s pre-existing conditions made them more vulnerable to being harmed by the abuse, and the defendants must take the plaintiff as they find them. Consequently, the defendants are liable for the entirety of their injuries, and do not get any discount on the damages payable.
For the defendants to prevail with their “crumbling skull” argument, they must prove (yes, the onus of proof is on the defendants here) that there is a “real and substantial possibility” that the pre-existing conditions would have affected the plaintiff's “original position.” If successful, a deduction for the possible impact of this pre-existing condition, regardless of the abuse, will be warranted. Usually, this deduction is framed by the courts in percentage terms.
This raises the question of a deduction from which head of damages? It is reasonable to assume non-pecuniary (general and aggravated) damages might be reduced by pre-existing depression because these damages reflect a plaintiff's pain and suffering and loss of enjoyment of life. So, in the clergy abuse example, one can see how the plaintiff’s pre-existing depression may result in a deduction from their general and aggravated damages award. But what about pecuniary damages like loss of income? Many people with depression have fulfilling and well-remunerated jobs, so it may be a stretch to say pre-existing depression would necessarily have resulted in a loss of income, let alone the extent of the loss of income the plaintiff suffered after being sexually abused.
What about the plaintiff’s pre-existing learning disability in the clergy abuse example? Does it justify a deduction from the damages payable? Again, the question is a deduction from what head of damages? Can the defendants prove a pre-existing learning disability put the plaintiff at a measurable risk of suffering from the depression she experienced post-abuse? This of course would depend on the expert evidence, but many courts have found such evidence to be insufficient to discharge the onus of proof on defendants.
What about the pre-existing learning disability’s impact on damages for loss of income? While it again depends on the expert evidence, one can foresee a stronger argument for a discount to reflect that the plaintiff’s vocational and income earning potentials were at a genuine risk of being reduced by virtue of their pre-existing learning disability.
Conclusion
Causation issues in relation to liability and especially in relation to damages are a critical part of litigating civil claims based on sexual abuse and violence. To understand the evidence that needs to be put forward, including the questions one must put to experts when building a case (or a defence), one must understand the underlying legal principles.
Stay tuned for my article in the forthcoming fall 2025 edition of OTLA’s The Litigator devoted to sexual assault where I will delve into the legal and evidentiary issues surrounding causation in greater detail.
Helpful Decisions on Causation
B. (M.) v. 2014052 Ontario Ltd, cob Deluxe Windows of Canada, 2012 ONCA 135 (CanLII)
K. M. v. Marson, 2018 ONSC 3493 (CanLII)
Anderson v. Molon, 2020 BCSC 1247 (CanLII)
Lapointe v. Labelle, 2023 ONSC 470 (CanLII)
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