No Cap on General Damages in Sexual Abuse Claim

In D.S. v. Quesnell, 2019 ONSC 3230, the plaintiff was sexually abused by his step-father between the ages of five and ten.

The step-father was criminally convicted of assault, sexual assault, and sexual interference.

In a civil action, the plaintiff brought a motion for default judgment against his step-father. Medical evidence showed that the plaintiff had significant psychiatric issues as a result of the abuse.

Non-pecuniary general damages (damages for pain and suffering) are usually capped at a maximum amount, currently around $350,000.

However, Justice C.M. Smith held that the cap on general damages should not apply in the circumstances of the case.

The reasons for this, as indicated in a British Columbia Court of Appeal decision, include:

• The policy considerations which arise from negligence causing catastrophic personal injuries, in the context of accidents and medical malpractice, do not arise from intentional torts involving criminal behaviour.
• There is no evidence that sexual abuse damages have any impact on the public purse.
• A cap is not needed to protect the general public from a serious social burden, such as enormous insurance premiums.
• Sexual abuse claims do not usually result in awards guaranteeing lifetime economic security. In catastrophic personal injury cases, awards under other heads of damages are so high that there may be a lesser need for general damages to provide solace and to substitute for lost amenities.
• In some cases, sexual abuse victims may require and deserve more than the cap allows due to the unpredictable impact of the abuse on their lives.

The plaintiff was awarded general damages of $400,000.  He was also awarded $1.5 million for loss of income.