Generally, in personal injury claims and medical malpractice claims, there is a "rough upper limit" with respect to the amount that can be awarded for pain and suffering damages (also called non-pecuniary damages). This limit was established in 1978 by the Supreme Court of Canada in Andrews v. Grand & Toy Alberta Ltd., [1978] 2. S.C.R. 229, and was set at $100,000. This has been adjusted since then for inflation, and is currently $490,000. This limit is typically awarded in cases where the plaintiff is catastrophically injured, such as a severe brain injury or spinal cord injury.
The courts have decided that this cap may not apply to cases of sexual abuse, it is often helpful to have a lawyer conduct a confidential review.
However, in S.Y. v. F.G.C., 1996 CanLII 6597 (BC CA), the Court of Appeal held that the "cap" should not apply in sexual assault claims. The court noted:
"Should there be a "cap" on awards of non-pecuniary damages for sexual abuse?
[28] The appellant submits that damages for pain and suffering, and for injury to feelings, dignity, pride or self-respect should be equated to damages for catastrophic personal injury, which were "capped" in what has come to be known as "the trilogy."
...
[30] I am not persuaded that the policy reasons which give rise to the imposition of a cap in "the trilogy" have any application in a case of the type at bar...The policy considerations which arise from negligence causing catastrophic personal injuries, in the contexts of accident and medical malpractice, do not arise from intention tors involving criminal behaviour...
[31]...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. Judges, juries and appellate courts are in a position to decide what if fair and reasonable to both parties according to the circumstances of the case."
The S.Y. case involved a young girl who was sexually abused by her stepfather from the ages of 7 to 14. At trial, the jury had awarded her non-pecuniary damages of $350,000, which the Court of Appeal reduced to $250,000 (note that with inflation, this amounts to $461,000 in present day). The court noted, at para. 55:
[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 consequences of such abuse presently are not capable of critical measurement.
Today, the courts have noted the upward trend in damages for sexual assault/abuse cases, and as such, are mindful of relying on older decisions for guidance on non-pecuniary damages (H.N. v. School District No. 61, 2024 BCSC 128).
Damages for sexual assault and abuse cases are assessed on a case-by-case basis, as the impact of these injuries can impact survivors in a variety of ways, and for varying lengths of time. Damages are also assessed based on the nature, extent, and duration of the abuse itself.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
