Torts – Sexual Assault – Damages
The plaintiff sued the defendant for damages arising from a sexual assault. The defendant failed to defend the action and was noted for default. The plaintiff applied to have his damage claim assessed. At the hearing of the application, the defendant appeared and denied that any assault had occurred, but was advised by the judge that his only recourse was to apply to have the default judgment set aside. The hearing was adjourned from March to June 2020 due to the pandemic, but the defendant took no steps to set aside the default judgment. The plaintiff, a man in his mid-sixties, had held a Christmas party for his employees. The defendant attended the party as the guest of one of the plaintiff’s employees. At the conclusion of the party, the defendant grasped the plaintiff’s penis and testicles in his hand for a moment and then removed his hand. Several of the plaintiff’s staff witnessed the sexual assault. He deposed that he had suffered shock, humiliation and depression as a result and could no longer give his business his full attention, nor could he be comfortable with his staff.
HELD: The plaintiff was awarded $30,000 in general damages, $15,000 in punitive damages and costs calculated under Column I. As the defendant filed no defence and the court rejected the nature of his submissions in chambers, it found that he had effectively conceded liability and it would proceed to assess damages. The court assessed the quantum of non-pecuniary general damages based on numerous factors, including that the plaintiff was not in a vulnerable position because of his position or age; there was a single assault and it was not overtly violent; and the psychological impact of the wrongful conduct on the plaintiff. In examining the range of other awards in sexual assault cases, it determined on a “horizontal comparison” basis that $30,000 was appropriate. Punitive damages of $15,000 were warranted to punish the defendant for his sexual misconduct and for his statements made at the hearing.