Trends in civil sexual abuse awards: part 1

In the first installment of a two-part series on advancing damages in sexual assault claims, Toronto civil sexual abuse lawyer Elizabeth Grace discusses how one recent decision has increased the range for non-pecuniary damages in single incident adult female cases.

In an area of law where the significant harms caused by sexual assault and misconduct have been chronically undervalued, a recent Ontario Court of Appeal decision is “significant,” says Toronto civil sexual abuse lawyer Elizabeth Grace.

“There are many reasons why civil sexual assault damages have been historically undervalued,” says Grace, partner with Lerners LLP. “Often there are psychological harms that are ‘invisible’ or perceived as intangible and, as a result, are valued as being lesser.”

There is also complexity around sexual assault victims — with some people having been assaulted before or after the abuse in question — which tends to drive awards down, she tells AdvocateDaily.com.
“Sometimes a person suffered trauma before the main assault and so they had pre-existing problems. If there were prior incidents of abuse or neglect, the defence’s position is that the victim was already compromised, and they only need to be restored to where they would have been without the abuse in question,” Grace says.
She adds, “Victims of abuse will often go on to have troubled lives and suffer further traumas, assaults or have problems with the law. That is frequently a point of contention. Were those subsequent problems caused by the assault in question or were they independent and unrelated?”

Grace says despite these factors often driving down awards and settlements, a 2018 Ontario Court of Appeal decision that addresses the range of appropriate non-pecuniary damages for a single incident of sexual assault against an adult woman brings some needed clarity to the law.

The case involved a female physician who was assaulted by a male colleague in her home. They were both married and co-workers at an Ontario hospital. The sexual assault reportedly consisted of one incident when the man, under the pretext of visiting the woman’s home on an urgent matter, removed his shirt and then, in the bathroom, the rest of his clothes.

Returning to the room, he tripped his female colleague, thrust his erect penis into her face, pulled down her pants and penetrated her vagina. He rolled off after she screamed, and, as she was leaving the room, she saw him masturbate and ejaculate onto the rug, the decision states.

“The defence argued that this type of case is worth $20,000 to $50,000 when parties are essentially equal in terms of power dynamics, and there’s no evidence of long-lasting harm,” says Grace, who was not involved in the matter and comments generally.

The trial judge disagreed and awarded the plaintiff $175,000 for general and aggravated (non-pecuniary) damages. On appeal, the province’s top court affirmed this award, finding that sexual assault is unique and its “humiliating and degrading nature” would justify such an award in circumstances like this.

“The Court of Appeal in its reasons affirmed that the range of non-pecuniary damages in a single incident sexual assault against an adult woman is $144,000 to $290,000,” Grace says. “Those are not the damages you can calculate with precision, such as loss of income or the cost of therapy. Rather, these are damages that compensate for pain and suffering and the loss of enjoyment of life.”

“For victims of sexual assault, the category of non-pecuniary damages has always been a critical part of the compensation awarded. This is why the Court of Appeal’s decision is so important. It will guide lawyers acting on both sides of these cases when they are valuing claims,” she says. “And, of course, this range will have to be adjusted upward to account for inflation in the years to come.”

Stay tuned for part two where Grace will explore damages in childhood sexual abuse cases.

This article originally appeared on AdvocateDaily.com
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