Hutchison Oss-Cech Marlatt recently obtained an award of $373,000 in damages for a sexual assault perpetrated by a massage therapist, in the case of N. M. v. Contreras-Ramirez, 2021 BCSC 1341.
Generally, there are several ways in which defendants may be found liable for sexual assault. Perpetrators of sexual assault may be found liable in assault and battery where they intentionally cause harm through physical contact, or for breach of fiduciary duty where a trust relationship existed between the perpetrator and survivor. A breach of fiduciary duty – an emerging area of sexual assault liability – may arise where the sexual assault is committed in the context of relationships such as those between parent and child, priest and parishioner, and doctor and patient. Additionally, institutions and employers may also be found vicariously liable, if the perpetrator was a subordinate or employee and the assault took place in the course of employment.
In some cases, these types of liability overlap. For example, a child care institution could be held liable both for a breach of fiduciary duty and vicarious liability for its failure to adequately vet or monitor a staff-member who worked closely with the children. Additionally, the staff member could be found liable for assault and battery for committing the assault. In such cases, a plaintiff may sue more than one defendant, and on one or more basis of liability. And the defendants could be found “joint and severally liable” for committing or facilitating the sexual assault, meaning that the plaintiff could recover 100% of the damages from any of the defendants, regardless of their degree of liability.
Pecuniary and Non-Pecuniary Damages
Once liability and causation are established, a plaintiff is entitled to damages – a monetary award to compensate for the injuries resulting from the sexual assault. However, a plaintiff is also required to prove the type and severity of their injuries. The types of damages that a plaintiff may claim, and must establish, fall into two main categories – pecuniary and non-pecuniary damages.
Non-pecuniary or “pain and suffering” damages seek to compensate plaintiffs for intangible losses such as mental and emotional trauma, and loss of amenities, dignity, personal integrity, autonomy, and personhood. At present, the range of non-pecuniary damage awards varies widely. The courts have established that non-pecuniary damages should be greater, or aggravated, where the sexual assault was particularly traumatizing, humiliating, invasive, or where the victim was especially vulnerable. For their part, pecuniary damages seek to compensate plaintiffs for economic losses such as loss of past and future income that often occur as a result of the long-term psychological damage from sexual assault.
In N. M. v. Contreras-Ramirez, 2021 BCSC 1341, Hutchison Oss-Cech Marlatt was able to establish that our client’s sexual assault was particularly invasive and traumatizing, resulting in significant non-pecuniary and aggravated monetary damages awards for our client. Relying on procedural rules, we were also able to establish that the massage therapist’s employer was vicariously liable for the sexual assault, for having created the conditions in which the assault occurred. This resulted in a finding of joint and severable liability for the defendants, and the ability for our client to seek 100% compensation from either the massage therapist or his employer.
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Hutchison Oss-Cech Marlatt’s team of lawyers have over 100 years experience in litigation, and significant expertise in pursuing sexual assault claims in particular. We understand the kinds of trauma a sexual assault can cause, and have the necessary skills and sensitivity to properly convey these to the courts.
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