In a civil sex abuse case in Toronto, the defendant is being held liable for the damages suffered by the plaintiff. These damages primarily fall into three heads. The first head is general damages, which includes both non-pecuniary general damages and pecuniary general damages. To best understand how to recover damages in a Toronto sexual abuse injury claim, it is important to work with a dedicated injury lawyer.
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Non-pecuniary general damages in a Toronto sexual abuse injury claim refer to damages for pain and suffering, and that includes everything from physical injury occasioned by sexual assault to the psychological scars that are the most persistent and difficult burden to bear for the victim. All of the personal difficulties suffered by the victim in an emotional, psychological, and physical sense are part of the non-pecuniary general damages for which the abuser can be held liable.
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The next category of general damages is economic losses, which refers to the global valuation of the losses that have been incurred in the past and into the future that can be compensated for in monetary terms. Because of the traumatic nature of sexual abuse, a person may have difficulty holding down a job or advancing their career. It is impossible to objectively quantify lost chances, so a number has to be ascertained on the basis of projection. This projection is usually done by experts in everything from forensic accounting to vocational counseling to determine the potential economic value of which the sexually abused victim has been deprived as a result of their abuse.
Economic losses comprise what is typically the largest head of damages for which liability can be imposed. In certain circumstances, this may include a person’s entire future earning potential, determined as always on the balance of probabilities, on the basis of documentary as well as expert evidence.
The second head of damages in Toronto sexual abuse injury claims is what is called special damages. Special damages refer to economic losses that can be objectively quantified up to the time of trial or settlement. For example, if a person was in years of therapy that was being paid for on an out of pocket basis, that would be specifically compensable down to the dollar as special damages for which the defendant could be held liable.
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The final head of damages has a double aspect–aggravated and punitive damages.
Punitive damages, which are separate from aggravated damages, are awarded to punish the wrongdoer for conduct that the court finds to be particularly reprehensible. Punitive damages are available in almost sexual abuse cases, but they are especially awarded as a matter of course in sexual abuses cases involving the breach of fiduciary duty, particularly those involving minors.
Aggravated and Punitive Damages
Aggravated damages represent a particularly significant harm suffered by the victim that may not be captured by the category of general non-pecuniary damages, but is nonetheless compensated under that head.
General non-pecuniary damages in sexual abuse injury claims in Toronto are capped in Canadian law at approximately $350,000.00 in present day dollars, pursuant to a decision of the Supreme Court in 1978 called Andrews v. Grand & Toy. In that case, wherein a young man was rendered quadriplegic in a motor vehicle accident, the court held that in order to prevent insurance premiums for casualty losses from reaching an unstable and unsustainable level, a cap would have to be imposed on damages for injury: $100,000 dollars in 1978, indexing to approximately $350,000.00 today. Because that threshold, and amount determined in relation to it, may not fairly recognize the level of harm that a person may have suffered, aggravated damages exist to acknowledge a particularly significant dimension of harm that may not be captured by non-pecuniary general damages.
However, the courts in recent jurisprudence have indicated that the cap may not apply to intentional torts. The public policy rationale for imposing the cap to limit sky-rocketing insurance premiums is more relevant to torts of negligence than the more exceptional circumstances of intentional torts, such as sexual abuse. Ultimately, there is the question of whether or not the $350,000 cap on non-pecuniary general damages is the ceiling on the damages under that head available to sexual abuse victims, although sexual abuse victims may also be eligible for aggravated damages awards over and above traditional apportionments of non-pecuniary general damages.