More on Non-Pecuniary Damages in BC Civil Sexual Abuse Claims
As I previously posted, in British Columbia there is no ‘cap’ on non-pecuniary damages (compensation for pain and suffering and loss of enjoyment of life) when a victim successfully sues for harm caused as a result of sexual abuse.
So what compensation is a victim of abuse entitled to for non-pecuniary loss? Recently a case was released by the BC Supreme Court, Victoria Registry, discussing this area of the law. In this case (CCB v. IB) the Plaintiff succeeded in a civil suit for damages as a result of sexual abuse. The trial focused of quantum of damages.
The Defendant was the Plaintiff’s natural father. The abuse lasted for about 5 years when the Plaintiff was aged 5-9. The father was criminally convicted and served time in prison. The Plaintiff sued and was awarded close to $600,000 in total damages including $250,000 for her non-pecuniary loss.
One factor that is focused on in these claims is the severity and duration of the abuse. I won’t repeat the facts here but the nature of the absue is set out at paragraph 8 of the reasons for judgement. The plaintiff suffered harm as a result of the abuse. She was, however, described as ‘resourceful‘ and ‘resilient‘ and had ‘a good prognosis for recovery from many of the effects of her traumatic, parentified and neglectful early life experiences with her father‘.
Madam Justice Gray made the following findings with respect to the Plaintiff’s injuries and prognosis:
[51] I accept the opinions of Drs. Mills and Pullyblank described above. In summary, I find that the defendant’s abuse of the plaintiff has caused her the following:
(a) Generalized Anxiety Disorder, including additional features of trauma (including nightmares about the abuse and heightened trauma), phobia, and obsessive-compulsiveness/perfectionism;
(b) depression and intrusive thoughts about the abuse;
(c) lack of trust in others and lowered self-esteem;
(d) educational underachievement, particularly in reading and math, which has so far resulted in a one to two year delay in her educational progression and may result in an inability to meet the potential she would have had without the abuse.
[52] The plaintiff is described as resilient, and with proper assistance, her prognosis for increasing her education is good. She is likely to suffer flare-ups of psychological symptoms, and is at risk for future mental health problems.
In valuing the Plaintiff’s non-pecuniary damages at $250,000 the Court reviewed a handful of useful precedents and provided the following helpful comments:
[54] In the leading case Y.(S.) v. C.( F.G.) , (1996), 26 B.C.L.R. (3d) 155, [1997] 1 W.W.R. 229 (C.A.), the British Columbia Court of Appeal stated that the application of the “cap” on non-pecuniary damage awards set out by the Supreme Court of Canada in the trilogy Andrews v. Grand & Toy Alberta Ltd., , [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452, Arnold v. Teno, [1978] 2 S.C.R. 287, 83 D.L.R. (3d) 609, and Thornton v. School District no. 57 (Prince George), [1978] 2 S.C.R. 267, 83 D.L.R. 480, is not appropriate for intentional torts of a quasi-criminal nature, such as sexual abuse.
[55] Because Y.(S.) lifted the cap on non-pecuniary damages in sexual abuse cases, the case law prior to Y.(S.) is of limited assistance.
[56] In Y.(S.), the Court of Appeal also stated that in sexual abuse cases aggravated damages do not form a separate head of damages. An award for non-pecuniary damages is assessed by taking into account aggravating circumstances, particularly in a case of sexual abuse, where the physical harm is not easily separated from the emotional and psychological harm. Aggravating circumstances include the relationship between the parties, particularly if it is one of trust, the duration of the abuse, the number of assaults, the age of the victim, the degree of violence and coercion, the nature of the abuse, the physical pain and mental suffering associated with the abuse, as well as lack of remorse on the part of the defendant.
[57] The Court of Appeal, at para. 55, noted the difficulties in quantifying damages in cases of sexual assault:
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 consequences of such abuse are not capable of critical measurement.
[58] And further, at para. 56:
Comparison with the awards made in similar cases is helpful in maintaining consistency, and therefore giving fair and equivalent treatment to all victims. But the impact on individuals in particular circumstances of sexual abuse is so difficult to measure that other cases can only provide a rough guide for assessment in this case.
[81] The case law discusses the harm to the victims, but it is not a significant factor in determining quantum in such cases. It is reasonable to presume harm, and as noted in Y.(S.), there are particular difficulties in measuring and predicting the lifelong effects of sexual abuse. The fact that the plaintiff presently appears to be “resilient” is not a reason to diminish her award of damages.
[82] The most significant aggravating factors are that the defendant was the plaintiff’s father and sole caregiver, that she was very young during the abuse, and that the acts were very invasive and serious. The most similar case is Y.(S.). In all the circumstances, the plaintiff is entitled to $250,000 for non-pecuniary damages.
I encourage anyone considering a BC Civil Lawsuit for damages for harm caused by historic sexual abuse to review this case and the precedents cited therein to gain a good understanding as to how BC Courts value pain and suffering and loss of enjoyment of life in these cases.
Another interesting aspect to this decision is the Plaintiff’s potential ability to collect on the judgement. As previously discussed, a successful civil lawsuit for damages may not be worthwhile if the responsible defendant does not have the ability to pay. Here the Defendant was criminally convicted and spent time in prison. He very well may not have had the means to pay the judgement. However, he was left an inheritance and the Court noted that this money “is available to be applied to a judgement in this case“.
Before getting into the time and expense of a civil lawsuit consideration should be given to the ability to collect on the judgement if the claim proves successful. If the person directly responsible for the assault has no financial means the law of vicarious liability should also be canvassed.