When people think about disabilities, the mind tends to go to those that are plain to see. Common examples include the required use of a wheelchair, hearing aids or communicating through sign language. Society tries to address these disabilities, sometimes by outfitting buildings with wheelchair ramps, offering the option of subtitles on streaming services, allowing service dogs in public indoor settings, and designating parking for those with limited mobility.
In 2017, the Reports on Disability and Accessibility in Canada found that 1 in 5 Canadians aged 15 years and older had at least one disability. As common as disabilities are in our society, the reality is that not all disabilities are obvious when you look at someone.
What Are Invisible Disabilities?
The term “invisible disability” encompasses a variety of mental and physical conditions that vary in origin, degree of severity, and whether they are intermittent or ongoing. Essentially, invisible disabilities are those conditions that exist without visible or quantifiable medical evidence to prove them. With all this uncertainty, they can be difficult both to identify and, when it comes to personal injury claims, calculate.
Chronic Pain is an Example of a Physical Invisible Disability
Physical pain is invisible to the eye and is felt differently from person to person. When pain becomes chronic, it can have an effect on one’s physical and mental health, as well as their ability to participate in everyday activities. The pain itself is felt uniquely by the person suffering and can vary widely. Acute pain is pain that is temporary and resolves down the line. By contrast, chronic pain continues for longer than three months.
According to the World Health Organization, chronic pain is a disease of its own that is categorized into two distinct types. The first is chronic primary pain, which exists despite healing from an injury or else has no identifiable cause. Some examples of chronic primary pain are non-specific lower back pain, chronic pelvic pain, and fibromyalgia. Chronic secondary pain arises alongside underlying diseases or issues, for instance, rheumatoid arthritis, post-surgical pain, and cancer treatment.
Psychological Invisible Disabilities Affect All Ages
Mental illness can diminish the ability of a person to perform effectively over a prolonged period of time. This can be a result of heightened levels of distress, feelings of isolation or disconnection, or changes in one’s mood or behaviour. There are many reasons why someone may begin to experience mental illness, from genetics and family history to stressful life experiences and environmental influences. Symptoms of mental illness can be mild or severe.
Similarly, cognitive impairment can range from mild to severe. Cognitive impairment occurs when someone has difficulty learning new things, remembering, concentrating, or decision-making. When cognitive impairment is mild, people may still be able to operate as usual every day, although they may notice changes in their cognitive function. When impairment is severe, one might lose the ability to talk, write, or understand what is happening around them.
Cognitive impairment is often associated with the aging population, who are more likely to experience dementia and Alzheimer’s disease. However, cognitive impairment may also occur as a result of a brain injury in an accident.
Can I Recover Damages if an Invisible Disability Arises After an Incident?
A landmark case that came before the Supreme Court concerning invisible disabilities is Mustapha v. Culligan of Canada Ltd. Mr. Mustapha saw a dead fly in an unopened bottle of water manufactured by Culligan. After the incident, Mr. Mustapha had obsessive thoughts, developed various phobias, and was diagnosed with major depression and anxiety. He sought compensation from Culligan for his psychological damage.
The trial judge found that, although Mr. Mustapha’s experience was “objectively bizarre,” Mr. Mustapha’s psychological trauma had been foreseeable as Culligan was aware that cleanliness and purity were things individuals seek when purchasing bottled water. Mr. Mustapha was rewarded general and special damages, in addition to damages for loss of business. The Court of Appeal overturned this finding on the basis that the injury was not reasonably foreseeable.
Invisible Disabilities Must Be Reasonably Foreseeable to Recover Damages
At the Supreme Court of Canada, it was ultimately found that Mr. Mustapha’s condition was too far removed from Culligan’s manufacturing error for him to recover damages. The test to prove that the damage suffered is not too-far-removed (or “remote”) from the negligent act is “whether it was foreseeable that the defendant’s conduct would have injured a person of ordinary fortitude.” In this case, while Mr. Mustapha’s psychological injury significantly impacted his life, unusual or extreme reactions or injuries that stem from the negligence of another are not considered “reasonably foreseeable.”
Who is a “Person of Ordinary Fortitude”?
Although intended to provide clarity on how to assess psychological harms, the test used in Mustapha may be difficult to understand without further understanding of what is meant by the term “person of ordinary fortitude.” Borrowing from the Australian case of Tame v. New South Wales, the court in Mustapha explained:
“[It’s] a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm”.
However, this does not mean that those who may be more susceptible to certain injuries are out of luck. The “thin skull rule” exists for this exact purpose.
The “Thin Skull” and “Crumbling Skull” Rules
This rule makes a defendant liable for injuries they cause even if those injuries are unexpectedly severe as a result of a pre-existing and stable condition on the part of the victim. The rationale for the thin skull rule is that a defendant must take the victim as they found them.
By contrast, the “crumbling skull rule” applies to victims who have pre-existing conditions that are unstable. Here, the defendant cannot be liable for additional damage that the victim would have experienced anyways.
Calgary Personal Injury Lawyers Representing Those Struggling with Invisible Disabilities
At Cuming & Gillespie LLP, we represent those injured or who have lost loved ones in motor vehicle accidents, slip and falls, hit and runs, and more. We have over 20 years of experience representing clients in various personal injury claims. We value the responsibility of acting for these individuals and understand the importance of getting compensation to help rebuild their lives and provide the best quality of life possible.
Cuming & Gillespie LLP is conveniently located in the heart of downtown Calgary and proudly serves clients in Calgary, Edmonton, and throughout Alberta. To schedule a consultation, contact us online or call 403-571-0555 (toll-free at 1-800-682-2480).