Damage Assessment in Sexual Assault Cases

A review of awards of damages in sexual abuse cases demonstrates that over the last forty years, there has been an enhanced understanding of the devastating consequences of sexual abuse. With that enhanced understanding has come a shift in the awards that are made along with the development of an accepted list of criteria to be considered when assessing damages in these types of cases. It is now generally accepted that the award of non-pecuniary damages in sexual abuse cases takes into consideration the aggravating factors that accompany the abuse and loss, and that these cases are not subject to the “cap” on personal injury damages.

In 1978 non-pecuniary damages for personal injuries were capped at $100,000.00ⁱ and prior to 1990 it was not uncommon for awards in sexual abuse cases to fall into the range of $40,000 to $65,000ⁱⁱ. That trend began to change in British Columbia in 1993ⁱⁱⁱ as well as in other provinces^iv.

In 1995 the Supreme Court of Canada explained the rationale for the cap in personal injury damages in motor vehicle accident cases, explaining:

...at the time the cap was placed on non-pecuniary damages, their assessment had become a very real problem for the courts and for society as a whole. The damages awarded were varying tremendously not only between the provinces but also between different districts of a province. Perhaps as a result of motor vehicle accidents, the problem arose in the courts every day of every week. The size and disparity of assessments was affecting insurance rates and, thus, the cost of operating motor vehicles and, indeed, business of all kinds throughout the land. In those circumstances, for that one aspect of recovery, it was appropriate to set a cap.^v

In 1996 the British Columbia Court of Appeal considered whether the cap should apply to non-pecuniary damages in sexual assault cases and decided that it should not^vi, noting that the policy reasons for capping non-pecuniary damages that exist in motor vehicle accident cases and medical malpractice cases, do not arise from intentional torts involving criminal behaviour. The Court recognized that in some cases, “sexual abuse victims may require and deserve more than the“cap” allows, due to the unpredictable impact of the tort on their lives”. The Court in S.Y. also held that aggravated damages are not a separate head of damages, rather they are part of general damages and that in sexual abuse cases in particular, it is difficult to separate the “physical harm, which is often of less significance than the fright, misery and humiliation connected with it, and the continuing mental suffering from it”.

The complexities of putting a monetary figure on harm to compensate a plaintiff for their losses in cases of sexual assault has long been recognized. In sexual assault the harm is often emotional rather than physical and can be hard to see. The difficulty of assessing non-pecuniary damages in sexual abuse cases was described in S.Y. as follows:

50. The foregoing cases present a variety of circumstances, and describe different degrees of harm caused by sexual abuse. They exemplify the difficulty of giving solace or satisfaction to a person who has been abused by one he or she trusted and who may suffer from the psychological impact of that abuse for years to come. What amount of money is sufficient as substitute for lost pleasures and amenities, and as compensation for what yet remains to be suffered? Prior to 1990 a respected judge thought $40,000 to be sufficient. Within about five years other judges of the same court thought $80,000 - $85,000 to be fair. Now awards for judges appear to range from about $100,000 - $175,000. It is understandable that juries, without guidance as to the range of awards in comparable cases, may have more difficulty than judges in keeping their emotions under control, and in making awards as a result of reasoned analysis.

...

55. What is fair and reasonable compensation for general damages, including aggravated damages, in this case is not easy to say. This is an evolving area of the law. We are just beginning to understand the horrendous impact of sexual abuse. To assess damages for the psychological impact of sexual abuse on a particular person is like trying to estimate the depth of the ocean by looking at the surface of the water. The possible consequence of such abuse presently are not capable of critical measurement.

The trend towards lower awards prior to the 2000s changed and reflected the courts perspective on sexual assault and acknowledged its potential severity. That change arguably began with a recognition of the unique nature of the harm that results from sexual assault. In 1998, the Ontario Court^vii described the consequences of sexual assault and the type of award that was necessary to compensate for the harm that follows in these terms:

Rape is unlike any other sort of injury incurred by accident or neglect. Survivors of rape must bear social stigmatization which accident victims do not. Rape is not about sex; it is about anger, it is about power and it is about control. It is, in the words of Dr. Peter Jaffe, “an overwhelming life event”. It is a form of violence intended to create terror, to dominate, to control and to humiliate. It is an act of hostility and aggression. Forced sexual intercourse is inherently violent and profoundly degrading.

...

In my view, damages awards in the $40,000 - $50,000 range are reflective of neither the horrific nature of the violation, nor of the overwhelming and all-encompassing consequences of it.

In my view, an appropriate general damages award for Ms. Doe in all the circumstances of this case is $175,000.

In the 2001 report by the British Columbia Law Institute “Report on Civil Remedies for Sexual Assault,” 7 principles applicable to the assessment of damages for victims of sexual assault were delineated:

1.      Sexual assault is a serious matter, resulting in inherent harm to survivors. This harm  
         has not yet been fully recognized by the civil justice system.

2. The civil justice system, while not perfect, is an important process for recognizing the serious nature of sexual assault, awarding compensation to survivors, changing the behaviour of and deterring defendants, and establishing benchmarks for use in other proceedings.
3. It is a reasonable expectation for survivors of sexual assault to look to the civil courts as a means of redress.
4. While recognizing that no amount of money can provide complete restitution, the general purpose of the civil damages system is to attempt as much as possible to place the plaintiff in the state he or she was in prior to the wrongful conduct. The challenge in sexual assault cases is to recognize and quantify the survivor’s inherent harm and consequent injuries into a damage award which reflects that restorative principle.
5. Although sexual assault cases raise some issues which are unique, damage awards for sexual assault should be, as far as possible, in line with awards made in other tort cases.
6. There must be attention to diversity in the circumstances and needs of survivors, and to differing forms of harm which flow from sexual assault.
7. Sexual assault is a practice which is not neutral in terms of the gender, race, culture, class, abilities, age and sexual identity of survivors. As such, principles of equality must be considered in assessing what is fair in compensating survivors.

In 2005 the Supreme Court^viii said that the factors to consider in assessment of non-pecuniary damages in cases of sexual battery included the following:

• The circumstances of the victim at the time of the events, including factors such as age and vulnerability;
• The circumstances of the assaults including their number, frequency and how violent, invasive and degrading they were;
• The circumstances of the defendant, including age and whether he or she was in a position of trust; and
• The consequences for the victim of the wrongful behavior including ongoing psychological injuries.”
  
  In 2007 the Nova Scotia Court pointed to three important functions to be served by a non- pecuniary damages award in cases of sexual assault. The identified functions included:

1. To provide solace for pain and suffering and loss of enjoyment of life;
2. To vindicate the victim’s physical autonomy and dignity; and
3. To recognize through aggravated damages the humiliating and degrading nature of the assault.

The Court held that in the context of sexual assault and battery, the cases have recognized that there are fundamental interests at stake, specifically the victim’s dignity and personal autonomy. Because of this, the award of damages should take a functional approach in relation to these interests in addition to the more familiar ones of pain, suffering and loss of enjoyment of life.

That approach has evolved over time such that now the determination of damages is based on the four factors identified in Blackwater with emphasis on the gravity of damages caused to the particular victim^ix. That in turn, as well as recognition of the principled basis for an exception to the “cap” on damages has resulted in a steady increase in damage awards in sexual abuse cases. In 2019 the Ontario Supreme Court^x awarded $400,000 in non-pecuniary damages in a “worst case” sexual abuse case, in recognition of the devastating consequences for the plaintiff for the wrongful behaviour. In 2020 the British Columbia Supreme Court^xi awarded $275,000 for non-pecuniary damages in a sexual abuse claim while the Newfoundland Court of Appealxii upheld awards of aggravated and general damages of $125,000, $240,000 and $345,000 to three men who had been sexually abused, noting that the trial judge had recognized the trend towards higher awards for childhood sexual abuse.

A review of the cases in the last decade confirms that our courts now are in general consensus that the “cap” on damages does not apply to sexual abuse cases and that the aggravating factors that are present in every sexual abuse case do not garner a separate and distinct aggravated damages award but rather are a factor that may be taken into consideration in the award of non- pecuniary damages. The consequence of this is that the trend in the award of non-pecuniary damages in sexual abuse cases is upward. While prior to 2000 the general range of damages for sexual abuse cases was $40,000 - $65,000, it is now $200,000 to in excess of the cap on damages. This has followed a better understanding of the consequences of sexual abuse on its victims and the recognition that those consequences can be devastating, life altering and permanent. The jurisprudence on awards of non-pecuniary damages demonstrates the judiciary’s response to societal learnings.

ⁱ Andrews v. Grand & Toy Alberta Ltd. (1978), 83 D.L.R. (3d) 452, 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, 3 C.C.L.T. 225; Arnold v. Teno (1978), 83 D.L.R. (3d) 609, 1978 CanLII 2 (SCC), [1978]] 2 S.C.R. 287, 3 C.C.L.T. 272; Thornton v. School District No. 57 (1978), 1978 CanLII 12 (SCC), 83 D.L.R. (3d) 480, [1978] 2 S.C.R. 267, 3 C.C.L.T. 257.

ⁱⁱ Norberg v. Wynrib (1992), 1992 CanLII 65 (SCC), 68 B.C.L.R. 29
ⁱⁱⁱ Slinn v. Morgan (11 February 1993, Vancouver Registry, S01347
^iv D.A.A. v. D.K.B. [1995] O.J. No. 3901, Court File No. 93-CQ38589
^v Hill v. Church of Scientology of Toronto (1995), 126 D.L.R. (4th) 129
vi S.Y v. F.C.G., 30 C.C.L.T. (2d) 82, 78 BCAC 209, 26 B.C.L.R. (3d) 155, [1997] 1 W.W.R. 229, 1996 CanLII 6597 (BCCA)

^vii Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police [1998 CarswellOnt viii Blackwater v. Plint, [2005] 3 S.C.R. 3 (SCC) at para. 89
^ix M.D. v. Canada, 2013 ONSC 4176
^x D.S. v. Quesnelle 2019 ONSC 3230, 2019 CarswellOnt 15082

^xi Anderson v. Molon 2020 BCSC 1247
^xii John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. Johns, 2020 NLCA 27

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Rose Keith is Associate Counsel with the Harper Grey and chair of our Critical Injury Group.  Her practice focuses on Workplace Law helping both employers and employees find solutions to workplace issues.