Law Times

Law TiMes • March 12, 2012 NEWS RIM's security system touted Continued from page 1 Continued from page 1 ruling, the plaintiff testifi ed during the trial that she felt "shame" and feared "should would be targeted again." She also said she was afraid to leave her home, had intermittent suicidal ideations, and slept with double locks on her bedroom door. Th e plaintiff was sexually assaulted as a child, had previously been involved in an abusive 14-year marriage to her fi rst husband, and was in a car accident aſt er the fi rst sexual assault took place. She claimed statutory accident benefi ts and damages for personal injury due to the accident. In his appeal, Weig questioned, among other issues, whether the jury should have received instructions to assess whether the plain- tiff was suff ering damages that were attributable to the previous in- stances in her past. Rouleau ruled that although the trial judge should have consid- ered whether the jury should have assessed whether the plaintiff 's damages were attributable to certain points in her past, the error didn't cause a substantial wrong. Rouleau also granted leave to the plaintiff to amend her pleadings to conform with the jury's general damages award and ruled the trial judge didn't err in failing to in- struct it on the cap on non-pecuniary damages. Th e Divisional Court rarely delivers such an award to adult vic- tims of sexual assault. Personal injury lawyers say the ruling is "very unexpected." "Yes, you could say it does fall far outside the range of possible results," says Judy Hamilton, who represented Weig in the matter. "We presented a chart showing where the range typically falls and, needless to say, our range was a lot lower." Th e result, according to Hamilton, highlights the "very high standard" appellants must meet in defeating high damage awards in cases of sexual assault. "Th e standard says the award has to shock the contents of the court," she says. "Oſt en, higher awards are granted in cases involving the sexual assault of a child, particularly when there are a series of assaults that change the way a person develops or grows. But I can't speculate as to how the jury reached their decision. You never know when you're going into court to argue your case just what the outcome may be." Paul Koven, who represented the plaintiff , says that although the ruling may be rare, the jury found the award wasn't out of line given the circumstances. "Th e jury appeared to consider the fact that [the plaintiff ] was new to the country, had diffi culty speaking the language, and was a single mom desperate for work to support her two young children to reach their decision," says Koven. "Th at, coupled with the fact that the appellant knew full well her circumstances and the fact that she was desperate for work in addi- tion to the sexual assaults being coupled with violence at the time or threats of violence, appears to have been a factor in their decision." Koven notes Weig at one point threatened to "cut off " the plaintiff 's head if she spoke out against the assaults. "I think it's important to remember the award was made by the jury and they are entitled to deference in the matter. I think that there's a general sort of recognition and standing of recognizing sexual assaults and the signifi cant impact it has on victims. As we begin to appre- ciate that magnitude more and more and begin to take harm into account more oſt en, I think we begin to catch up to that recogni- tion and better understand the impact sexual assaults have on the individual." In the meantime, Koven says the plaintiff is looking forward to the end of yet another stage of an eight-year process before the courts. "We were certainly pleased the court leſt the decision of the Divisional Court intact. "From our client's perspective, she was relieved to have another step of the process completed. She has had to relive the assaults in court for eight years and is pleased this part of the process is over. Although the harm doesn't go away, appearing before the courts so oſt en delayed her ability to get better. Th is decision is particularly helpful from a quantum of damages standpoint in terms of ensuring sexual assault victims get the damages they are entitled to." LT Expand your skills. Enhance your future. Ensure your success. 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Offer not valid in conjunction with any other offer from Carswell and Canada Law Book. www.lawtimesnews.com Plaintiff relieved after 8-year battle

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