J. Q.B. A.D. 1994 No. 109 J.C. Y. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON and A. F. D. and J. A. D. DEFENDANTS K. W. Wasylyshen for the plaintiff No one appearing for the defendant A. F. D. JUDGMENT MATHESON J. April 13, 1995 The defendant, A. F. D. ("A."), is thestep-father of the plaintiff. He pleaded guilty to criminal charge of sexually assaulting the plaintiff. On February 13, 1987, A. was sentenced to term of ten months imprisonment, subsequently reduced on appeal to six months. On April 4, 1994, the plaintiff commenced an actionagainst A., claiming damages as a result of the sexualassaults. A. did not defend the action. The plaintiffhas applied for judgment assessing her damages. THE SEXUAL ASSAULTS The plaintiff was born on […], 1975. When she was about four years of age she moved from North Portal to Estevan, with her mother and older brother, in order that her mother could marry A.. The sexual assaults commenced when the plaintiff was approximately eight years of age, and continued until she was eleven. The assaults included digital penetration of the plaintiff's vagina, oral sex, intercourse, and attempting to force the plaintiff to have intercourse with her brother. Many of the assaults occurred as the plaintiff was emerging from the bathtub. The Department of Social Services became involved with the plaintiff and her brother while they were still residing in North Portal, as result of alleged physical abuse of the children. The sexual assaults were revealed while the plaintiff was talking to social worker on September 24, 1986. The police were contacted on that date, and the plaintiff was subjected to medical examination the following day. When A. was interviewed by the police, and informed of the specific allegations by the plaintiff, he apparently broke down and admitted several of the assaults as alleged by the plaintiff. written statement was provided by A. to the police. He apparently stated that he knew that what had occurred was wrong but he did not know why he had committed the assaults. The plaintiff subsequently alleged that her uncle, J. A. D., had sexually assaulted her on several occasions, culminating with an episode of kissing and touching of her breasts and genitals on May 19, 1990. The previous episodes had also included oral sex. Following trial, J. was found guilty and sentenced to one year in prison. DAMAGE TO PLAINTIFF The reason the plaintiff was talking to social worker on September 24, 1986, at which time she revealed the sexual assaults by A., was that the plaintiff had been exhibiting unacceptable behaviour, principally stealing and sexually `acting out'. Because of her revelations of sexual abuse in her own home, the plaintiff was placed in the first of series of at least five foster homes and two group homes. At some stage in between, the plaintiff resided with her natural father and his new wife for approximately two years. The termination of that arrangement resulted, as admitted by the plaintiff, from the refusal, or inability, of the plaintiff to abide by any rules. The plaintiff met her husband in one of the group homes in which she was placed. She became pregnant. The pregnancy was deliberate, she testified. Since the age of 14 years she had wanted someone to love and who would, in return, love her. The plaintiff was married at the age of 17 years. Until at least very recently the plaintiff, her husband and their child were only able to exist by virtue of Government social assistance. The plaintiff's husband is now attempting to start rug cleaning business, but the plaintiff, having dropped out of school in grade nine, has no vocational skills nor marketable abilities. The plaintiff suffers from low self esteem. Her husband, aware of the sexual abuses which the plaintiff has endured, has been less than supportive. On the other hand, the plaintiff finds it difficult to be intimate with her husband. She is also constantly apprehensive that her husband, knowing that abused children often become abusers themselves, will accuse her of abusing their own child. In her early teens the plaintiff often harboured thoughts of suicide. She still suffers from constant headaches and nightmares, and becomes either angry or depressed whenever she hears, or reads, anything about child abuse. She still suffers from an inability to concentrate, which resulted in her early departure from school, and an inability to form close friendships. The only person with whom she feels close, and to whom she can talk freely is her step-mother. Her natural mother remained with A. even after his admission of sexually assaulting the plaintiff. Instead of exhibiting sympathy for the plaintiff, her mother has disowned her, stating "I don't have daughter anymore". Although acknowledging that she is overly protective of her daughter, the plaintiff is afraid to even take her daughter out of her home lest something happened to her. Whenever she bathes the child the spectre of her sexual abuse haunts her. She has also developed what she referred to as an "eating disorder", which, she has been advised, emanated from need to fill void. Attempting to talk about the sexual abuse during group therapy sessions invariably reduces the plaintiff to state of tears. Her testimony in Court against her uncle, which she described as an extremely traumatic experience, culminated in the same tearful outburst. In December, 1994, the plaintiff was subjected to anassessment by a registered phycologist, who reported theplaintiff\'s responses "suggested she may be experiencingsevere psychological problems and few resources with which tocope with the stress". It was further reported: Individuals who respond in this fashion are often seen as hostile, depressed and suspicious. They are sensitive to criticism and their interpersonal relationships are chronically poor as they are often hostile and their behaviour precipitates rejection by others. Their long term relationships are often superficial and unsatisfying. This is consistent with Mrs. T.'s report that she had few if any good friends and had chronic difficulties making friends. Such individuals often report or experience variety of vague medical complaints which they may use to control or manipulate others. These individuals often feel inadequate, helpless and lacking in self confidence. They exhibit signs of poor concentration (as evidenced by Mrs. T.'s test taking performance here), appetite and sleep disturbance and low frustration tolerance. The scores obtained here were consistent with the presence of Post Traumatic Stress Disorder or the overreporting of psychological problems. In this case, Mrs. T.'s extensive history of emotional, interpersonal and legal problems suggests that although she may have exaggerated her difficulties to some degree, she is clearly limited in her ability to cope with her problems. The results of the personality testing reported here tended to be consistent with Mrs. T.'s history. Because of her earlier abuse, her lack of supportive family relationships and her subsequent foster home placements, she has not learned how to form appropriate relationships of her own. Frequently, individuals who suffer childhood sexual abuse learn to base their relationships with others on sex and possess few alternate skills. Her early sexual acting out and her problems in her current relationship with her husband suggest that this has been the case here. It is also possible that her illegal behaviour was also born out of the generalised behavioural disturbance which sexual abuse often produces. Individuals who have been the victim of sexual abuse often experience wide range of behavioural, emotional and interpersonal disturbances as result. Unfortunately, she appeared to have limited insight into the source of her problems and had few skills with which to resolve them. The report concluded: The fact of abuse perpetrated by an adult in position of trust and authority almost invariably results in long term harm as can be seen in the case of Mrs. T.. Unfortunately, individuals who are left as suspicious and hostile as Mrs. T. appears to have been, are often poor candidates for psychotherapy as they have difficulty remaining in the therapeutic relationship. Treatment in this case, if available, will likely be prolonged process and may ultimately be of limited success. MEASURE OF DAMAGES In an unpublished article entitled "Measuring Pain: Quantifying Damages in Civil Suits for Sexual Assault", by Kate Sutherland (circa 1992) it was concluded that the discrepancies between the amounts awarded by various courts in sexual assault cases could not be readily reconciled. It was noted that many of the awards did not seem to reflect any appreciable degree of comprehension of the extent of the damage incurred by the complainant. In Myers v. Haroldson, 1989 CanLII 4682 (SK QB), [1989] W.W.R. 604, for example, the plaintiff, who had been subjected to brutal rape, suffered minor physical injuries but lasting psychological trauma. Non-pecuniary damages were assessed in the amount of $10,000 and punitive damages in the amount of $40,000. The emphasis of the award was clearly to punish the defendant, rather than compensate the plaintiff for her suffering. It was suggested by Kate Sutherland that, to the extent that damage awards in sexual assault cases represent non-pecuniary damages, the quantification thereof should accord with the principles articulated in J. A. Andrews, Dorothy Andrews, Ivan Stefanyk v. Grand Toy A.a Ltd. and Robert G. Anderson, 1978 CanLII (SCC), [1978] S.C.R. 229. The adjudicator should first attempt subjective understanding of the extent of the plaintiff's loss, and then attempt to compensate the plaintiff for the loss. Only after that inquiry has been completed should concerns regarding uniformity, and upper limits be addressed. The difficulty in assessing non-pecuniary loss was noted by Dickson J. in Andrews at p. 261: There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is philosophical and policy exercise more than legal or logical one. No money can provide true restitution". After reviewing three theoretical approaches to the problem of non-pecuniary loss, Dickson J. concluded (p. 262) that the functional approach should be utilized assessing the compensation required to provide the injured person with reasonable solace for his misfortune. Money will be awarded because it will serve useful function in making up for what has been lost in the only manner possible, accepting that what has been lost is incapable of being replaced in any direct manner. There was no evidence adduced that the plaintiff incurred any direct pecuniary loss as result of the sexual assaults by A., even to the extent of the cost to her of further education. Thus, an award of damages must be assessed primarily with respect to her non-pecuniary loss. In most personal injury cases the loss to the plaintiff is caused by the negligence of the defendant. An award of aggravated damages is therefore rarely even considered. But when the claim is founded on sexual assault, the damage inflicted is deliberate. Although, as noted by Kate Sutherland (p. 6), aggravated damages are often subsumed in the non-pecuniary award, there is somewhat different purpose in awarding aggravated damages. The focus of non-pecuniary award of damages is on pain and suffering, including emotional distress, and loss of amenities of life. Aggravated damages are intended to address feelings such as humiliation, degradation and fear of repetition, which are associated with the quality of the defendant's wrong doing. Except for constant headaches, the pain and suffering of the plaintiff has not had any physical basis. Nevertheless, the psychological trauma and emotional distress which she has undergone have been severe. She will continue to suffer to the same extent for an appreciable period of time in the future. Even if treatment should be available to the plaintiff, it will likely, as suggested by the psychologist, be prolonged process. Indeed, as further pointed out, the treatment process may ultimately be of limited success. If so, the plaintiff's suffering must then be categorized as chronic. Whiplash injuries result from violent wrenching, usually of the neck. As late as quarter of century ago some orthopaedic specialists doubted the existence of whiplash injuries, because there was no discernable physical basis for the pain being experienced. However, whiplash injuries are now universally accepted as being the result of soft tissue damage and form specific category of compensable loss. The monetary awards throughout Canada for whiplash injuries have varied dramatically, notwithstanding the assertion by Dickson J. in Andrews (p. 263) that "[e]veryone in Canada, wherever he may reside, is entitled to more or less equal measure of compensation for similar non-pecuniary loss. An upper limit for the most serious type of non- pecuniary loss, subject to inflationary factors, was established in Andrews. Similarly, an upper limit for the most serious type of whiplash injury $45,000 was established in Saskatchewan in June, 1991: Bunce v. Flick et al. (1991), 1991 CanLII 7975 (SK CA), 93 Sask. R. 53 (C.A.). When chronic pain syndrome develops, the upper limit was stated to be $50,000: Demyen v. Sirounis (1991), 1991 CanLII 7983 (SK CA), 93 Sask. R. 66 (C.A.). The plaintiff's pain and suffering and loss of amenities are not dissimilar to those experienced by whiplash victim. The source of pain cannot be readily traced to an identifiable physical injury such as fracture or damaged organ. Yet the pain is real. The plaintiff's loss has already been assessed as severe and there is likelihood that it may be chronic. Thus, she is entitled to an award toward the upper limit of the established range. However, evidence was adduced that trauma was also caused by the sexual assault or assaults on her by her uncle. Although she sued both A. and her uncle, the assessment of damages is only with respect to the damage inflicted by A.. It appears from the statement of claim that the sexual assault, or assaults, by the plaintiff's uncle occurred over much shorter time span than did those of A.. Thus, the greater portion of the damage inflicted on the plaintiff must be attributable to A.. The plaintiff testified with respect to her feelings of humiliation, her low self esteem, her periodic anger and depression, her inability to be fully intimate with her husband, and her constant fear of repetition of the sexual assaults, both for herself and her daughter. She is therefore entitled to an award of aggravated damages. But for the contribution to her loss by her uncle,the plaintiff would be entitled to an award of non-pecuniarydamages in the amount of $50,000 and to an award of aggravateddamages in the amount of $25,000. Because the unclecontributed to the loss encompassed by the non-pecuniaryaward, it must be reduced by 20% to $40,000. The aggravated damage award, however, is intended to compensate the plaintiff for her loss attributable solely to her step-father's wrong doing and is consequently not subject to any reduction. The plaintiff is therefore entitled to judgmentagainst A. F. D. in the amount of $65,000, togetherwith her taxable costs.
The Plaintiff sued her stepfather for damages for sexual assault. He had previously been convicted of a criminal charge based upon the same incident. He did not defend the civil proceedings and the Plaintiff applied to have her damages assessed. The evidence in the civil trial also disclosed that the Plaintiff had be sexually assaulted by her uncle. HELD: Judgment for the Plaintiff. 1)The Plaintiff had been diagnosed as suffering from severe psychological problems as a result of the sexual assaults. 2)The Court assessed the Plaintiff's non-pecuniary damages at $50,000.00 and apportioned 80% of this sum or $40,000.00 to the step-father. 3)The Plaintiff was also awarded $25,000.00 in punitive damages as against the stepfather.