L.M.M. v. Nova Scotia (Attorney General), (2010) 287 N.S.R.(2d) 347 (SC)

• Judge: Robertson, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 26, 2009
• Jurisdiction: Nova Scotia
• Citations: (2010), 287 N.S.R.(2d) 347 (SC);2010 NSSC 44

L.M.M. v. N.S. (A.G.) (2010), 287 N.S.R.(2d) 347 (SC);

    912 A.P.R. 347

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. FE.032

L.M.M. (plaintiff) v. Attorney General of Nova Scotia (defendant)

(Hfx No. 150594; 2010 NSSC 44)

Indexed As: L.M.M. v. Nova Scotia (Attorney General)

Nova Scotia Supreme Court

Robertson, J.

February 5, 2010.

Summary:

A probation officer was convicted of two counts of sexual assault for sexually abusing the plaintiff (then 10-15 years of age) from 1983 to 1989. The abuse consisted of forced oral sex. The plaintiff, now 35 years of age, sued the Province for damages. The Province admitted vicarious liability for the sexual abuse. At issue was the assessment of damages for the emotional, psychological and vocational damage done to the plaintiff. The Province relied on the plaintiff's pre-sexual abuse history of a dysfunctional family upbringing, physical abuse from his step-father and neglect as causative of his present problems (i.e., plaintiff's problems could not be solely attributed to the sexual abuse). Assessment of damages was exacerbated by the lack of expert evidence respecting the psychological damage attributable to the sexual abuse. The defendant's expert offered no opinion. The plaintiff's expert, which attributed all of his problems to the sexual abuse, was ruled inadmissible on the ground that it was seriously flawed (eg., no proper test administration and no informed interpretation).

The Nova Scotia Supreme Court awarded $125,000 general damages for non-pecuniary loss and $250,000 for lost past and future income. The court held that although a structured settlement would be appropriate, it lacked jurisdiction under s. 35B of the Judicature Act to order periodic payments absent an application by one of the parties.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Damage Awards - Topic 483

Injury and death - General damage awards - Structured settlements - The now 35 year old plaintiff was sexually abused by his probation officer from 1983 to 1989, when he was between 10 and 15 years of age - The plaintiff suffered significant emotional, psychological and vocational damage and remained a "very disturbed person" - The plaintiff was awarded damages totalling $375,000 - At issue was whether the court could order a structured settlement, rather than a lump sum, where neither party applied for a structured settlement - The Nova Scotia Supreme Court held that notwithstanding that a structured settlement may be preferable, the court lacked jurisdiction to order damages paid by way of periodic payments - Under s. 35B of the Judicature Act, the court could not order a structured settlement unless one of the parties applied for it - See paragraphs 258 to 270.

Damage Awards - Topic 492.1

Injury and death - General damage awards - Pre-trial income loss - [See Damage Awards - Topic 627 ].

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - [See Damage Awards - Topic 627 ].

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - A probation officer was convicted of two counts of sexual assault for sexually abusing the plaintiff (then 10-15 years of age) from 1983 to 1989 - The abuse consisted mainly of forced oral sex - The plaintiff, now 35 years of age, sued the Province (vicariously liable) for damages - At issue was the assessment of damages for the emotional, psychological and vocational damage done to the plaintiff - The Province argued that the plaintiff's present problems resulted not from the sexual abuse, but from his dysfunctional family upbringing, including physical abuse from his step-father and parental neglect - Causation was complicated by the lack of expert evidence respecting the psychological damage attributable to the sexual abuse - The defendant's expert offered no opinion - The plaintiff's expert, which attributed all of his problems to the sexual abuse, was ruled inadmissible on the ground that it was seriously flawed - The Nova Scotia Supreme Court found "a significant causal connection between the sexual abuse ... and his incapacity to get on with his life" - After the sexual assault, the accused's drug use worsened - He became a drug addict who committed property crimes to fund his addiction - He was a "very disturbed person" who would never fully recover - He had not worked since 2003, living first on social assistance and now on a monthly disability pension - Although he obtained some trades training, his psychological problems kept him from holding a job - The court awarded $125,000 general damages for non-pecuniary loss and $250,000 for lost past and future income - See paragraphs 141 to 257.

Damages - Topic 508

Limits of compensatory damages - General - Causes independent of wrongful act - [See Evidence - Topic 7002 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - A contentious issue in the plaintiff's action for damages for sexual assault was the degree to which his psychological problems resulted from the sexual assault, rather than his disadvantaged childhood, physical abuse by his step-father and neglect - The plaintiff's expert witness attributed most of the plaintiff's present problems to the sexual abuse - The defendant's expert witness, while offering no opinion on the effect of that sexual abuse, challenged the validity of the plaintiff's expert's opinion - The Nova Scotia Supreme Court ruled that the plaintiff's expert's opinion was inadmissible, as it was seriously flawed by reason of, inter alia, the lack of a proper test administration and no informed interpretation - Although the court was left with no expert evidence as to the psychological damage caused by the sexual assault, the court held that to attribute the damage caused to the plaintiff's abusive home life, with the sexual abuse having little long-lasting psychological damage, would ignore psychological evidence and common sense - The court found "a significant causal connection between the sexual abuse ... and his incapacity to get on with his life" - See paragraphs 63 to 140.

Cases Noticed:

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 133].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 135].

Daubert et al. v. Merrell Dow Pharmaceuticals Inc. (1993), 113 S. Ct. 2786 (U.S. Sup. Ct.), refd to. [para. 136].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 138].

B.M.G. v. Nova Scotia (Attorney General) (2007), 260 N.S.R.(2d) 257; 831 A.P.R. 257; 2007 NSCA 120, refd to. [para. 141].

Engel v. Salyn et al., [1993] 1 S.C.R. 306; 147 N.R. 321; 105 Sask.R. 81; 32 W.A.C. 81, refd to. [para. 146].

Webb v. Exide Electronics Ltd. et al. (1999), 177 N.S.R.(2d) 147; 542 A.P.R. 147 (C.A.), refd to. [para. 147].

Sharpe v. Abbott (2007), 250 N.S.R.(2d) 228; 796 A.P.R. 228; 2007 NSCA 6, refd to. [para. 147].

Campbell-MacIsaac et al. v. Deveaux et al. (2004), 224 N.S.R.(2d) 315; 708 A.P.R. 315; 2004 NSCA 87, refd to. [para. 150].

Leddicote v. Nova Scotia (Attorney General) et al. (2002), 203 N.S.R.(2d) 271; 635 A.P.R. 271; 2002 NSCA 47, refd to. [para. 151].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 155].

J.R.S. et al. v. Glendinning et al., [2004] O.T.C. 102 (Sup. Ct.), refd to. [para. 156].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 156].

Curran v. MacDougall et al., [2006] B.C.T.C. 933; 2006 BCSC 933, refd to. [para. 158].

X v. R.D.M. (2006), 225 B.C.A.C. 191; 371 W.A.C. 191; 2006 BCCA 221, refd to. [para. 161].

V.P. v. Canada (Attorney General) and Starr (1999), 186 Sask.R. 161; 1999 SKQB 180, refd to. [para. 161].

John Doe v. O'Dell et al., [2003] O.T.C. 821 (Sup. Ct.), refd to. [para. 163].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, refd to. [para. 224].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 258].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81, refd to. [para. 259].

Yepremian v. Scarborough General Hospital (1981), 120 D.L.R.(3d) 341; 1981 CarswellOnt 568 (H.C.), refd to. [para. 261].

Piercey v. Board of Education of Lunenburg County District et al. (1993), 128 N.S.R.(2d) 232; 359 A.P.R. 232; 1993 CarswellNS 263 (T.D.), refd to. [para. 264].

Pitchuck v. Tricon Global Restaurants (Canada) Inc. et al. (2004), 227 N.S.R.(2d) 340; 720 A.P.R. 340; 2004 CarswellNS 454 (S.C.), refd to. [para. 264].

Parnell v. Singer (1992), 111 N.S.R.(2d) 127; 303 A.P.R. 127; 1992 CarswellNS 504 (T.D.), refd to. [para. 264].

Armstrong v. Baker and McCrindle (1992), 113 N.S.R.(2d) 420; 309 A.P.R. 420; 1992 CarswellNS 102 (T.D.), refd to. [para. 265].

Carleton v. Vayro, [2002] A.R. Uned. 485; 2002 CarswellAlta 1652; 2002 ABQB 1104, refd to. [para. 266].

Statutes Noticed:

Judicature Act, R.S.N.S. 1989, c. 240, sect. 35B [para. 268].

Authors and Works Noticed:

Klar, Lewis N., Linden, Allan M., Cherniak, Earl A., and Kryworuk, Peter W., Remedies in Tort, vol. 4, paras. 27:63 [para. 146]; 27:63.3 [para. 148]; 27:67-68 [para. 149]; 27:74.2 [paras. 154, 155]; 99.1 [paras. 258, 264].

Waddams, Stephen M., The Law of Damages (Looseleaf), paras. 3.10 to 3.260, 3.90 [para. 260]; 3.250 [paras. 260, 261].

Counsel:

Mark T. Knox, for the plaintiff;

Glenn R. Anderson, Q.C., and Terry Porter, for the defendant.

This action was heard between April 27 and June 26, 2009, at Halifax, N.S., before Robertson, J., of the Nova Scotia Supreme Court, who delivered the following judgment on February 5, 2010.