DATE: 20050617

DOCKET: C39694

COURT OF APPEAL FOR ONTARIO

SIMMONS and GILLESE JJ.A. and HENNESSY J. (ad hoc)

B E T W E E N :

TIJANA WEINGERL

James M. Wortzman and Jonathan Kulathungam

Plaintiff (Respondent)

for the respondent

• and -

SEUNG-WAN SEO, QUEENSWAY X‑RAY & ULTRASOUND CLINIC, COOKSVILLE MEDICAL GROUP, DR. CARLO MEOLA, 620705 ONTARIO INC., and 620705 ONTARIO INC., operating as QUEENSWAY X-RAY & ULTRASOUND

Kirk F. Stevens for the appellants

Defendants (Appellants)

Defendant (Respondent)

Heard: October 12, 2004

On appeal from the judgment of Justice Herman J. Wilton-Siegel of the Superior Court of Justice dated February 6, 2003, sitting with a jury.

HENNESSY J. (ad hoc):

[1] In this case we are asked to review a finding of liability against a private health care clinic, and the consequent measure of damages arising from a sexual assault committed by a health care professional employed by the clinic.

BACKGROUND

[2] The respondent, Tijana Weingerl, was 21 years old when she attended a private ultrasound clinic for an upper abdominal ultrasound at 6:10 p.m. on February 24, 1998. She had never had an ultrasound examination before. The clinic she attended was Queensway X-Ray & Ultrasound (“Queensway”), and it was there that Seung-Wan Seo, the ultrasound technologist, sexually assaulted her by performing unauthorized tests and surreptitiously videotaping her while she robed and disrobed.

[3] Seo was convicted criminally of assault, sexual assault, and mischief. At the civil trial, the jury found that both Seo and Queensway were liable to the respondent for damages arising from negligence and intentional tort. In addition, the trial judge found Queensway vicariously liable for the sexual battery committed by Seo. Queensway appeals from the findings of negligence and vicarious liability made against it and from various aspects of the damage awards.

[4] The jury allocated fault between Queensway and Seo at 80% and 20%, respectively, and found Queensway liable for damages in the following amounts:

a) Past income loss

$ 43,500.32

b) Future care costs

$ 31,200.00

c) Pain and suffering

$150,000.00

d) Aggravated damages against Queensway

$175,000.00

e) Aggravated damages against Seo

$ 25,000.00

FACTS

[5] Seo was a qualified ultrasound technician who worked full-time at a hospital during the day, and at Queensway during the evening and on Saturdays.

[6] Dr. Majesky, a radiologist, was the principal of Queensway, one of eight clinics he operated in the Greater Toronto area. Queensway operated seven days a week from 9 a.m. to 9 p.m. The clinic’s staff consisted of an x-ray technologist, an ultrasound technologist, and a receptionist. Part-time technologists like Seo were employed in the evening and on weekends. Queensway had its own quality assurance committee, consistent with its obligations under the Independent Health Facilities Act, R.S.O. 1990, c. I.3.

[7] There was no record of any complaint regarding Seo’s work at the hospital where he was employed full-time. There had been one previous complaint about him at Queensway—a patient complained that Seo had put his arm on the patient’s chest while conducting an ultrasound for a thyroid problem. Dr. Majesky discussed the complaint with Seo but kept no record of it. There was no evidence that that complaint was sexually related.

The Renovations

[8] The incident occurred during a period when Queensway was renovating its space. During the renovations, ultrasound patients had to change behind a curtain suspended from an overhead hospital-style rail in the room where the equipment was located. The curtain divided the room in half. The placement of the examination table on the wall by the window made it impossible to completely close the curtain. Before and after the renovations, there was a separate change room for patients.

The Incident

[9] On February 24, 1998, the day the respondent attended at the clinic, Seo was inspired by a newspaper article he had read about a “peeping Tom” and brought his video recorder to work. He took advantage of the temporary change room that had been set up during renovations at the clinic and placed the recorder on the window ledge so that the patient would be in view while dressing and undressing behind the curtain.

[10] The respondent had been referred to Queensway by her family physician for a single ultrasound of the upper gastro-intestinal tract. When she arrived at the clinic she realized that she had forgotten to bring the referral requisition from her doctor so Seo completed the requisition form. This was in contravention of the clinic’s policies. Seo instructed the respondent to change behind the curtain and to undress to her underwear. When the respondent asked whether she should put on a gown, Seo instructed her not to wear one. This was contrary to the clinic’s policies, as well.

[11] After the respondent undressed to her underwear, she went to the examining table and lay down. Seo spread gel on her abdomen with his ungloved hand and conducted the authorized abdominal ultrasound test. This should have been the only test he performed on the respondent.

[12] Instead, Seo advised the respondent that she might have ovarian or uterine cysts and asked if she had time to undergo a pelvic examination. She agreed. On Seo’s instructions, she got dressed and returned to the reception area where she drank water to fill her bladder for the next test.

[13] Seo then led the respondent into the examination room where she was instructed to disrobe again and lie on the examination table. No gown was provided. Seo pulled down the respondent’s underwear and exposed her pubic hair. He spread gel on her pelvic region. He told her that her bladder was not full enough. The respondent dressed again and went back to wait in the reception area.

[14] Again, Seo instructed her to return to the ultrasound room and remove her clothes. This time she did not remove her blouse. Once again he pulled down her underwear and spread gel on her pelvic region. Seo instructed the respondent to turn over onto her stomach and he reapplied the gel. He then instructed her to empty her bladder and told her that he was going to do another test.

[15] He followed her into the changing area and instructed her not to dress but to wrap herself in a medical gown. He directed her to a janitor’s room where she used the toilet. The room was filthy and there was no toilet paper.

[16] For the fourth time, the respondent was instructed to lie on the table. Seo put gel on her but then told her that her bladder was not sufficiently empty and instructed her to go back to the same washroom. For a fifth time, Seo instructed the respondent to lie on the examination table where he spread gel on her pelvic region.

[17] Seo then followed the respondent into the changing area and asked her to show him where she was feeling pain. He palpated her abdomen and back several times. He then told her to resume dressing and he left the change area.

[18] It was at this point that the respondent discovered the video camera, which Seo had hidden in the change area. She began to scream. Seo came into the room and there was a struggle between the two for possession of the camcorder. The respondent was successful. She then called the police.

[19] Seo performed unauthorized tests, palpated the respondent without authority, entered the change area inappropriately. Seo also improperly diagnosed the respondent since he was not authorized to do so.

Consequences to the Respondent

[20] Two medical experts testified that the respondent suffered from moderate post-traumatic stress disorder and moderately severe chronic depression, with at least one episode of severe depression. She saw her treating psychiatrist 13 times following the incident. The respondent also had 10 counselling sessions with a social worker, the last one on April 7, 1999, less than 6 months after the incident. The respondent ceased treatment on her own and did not inform the social worker that she would not return. Two weeks following the incident, the respondent met her husband-to-be. She married and had two children.

ISSUES

[21] This appeal raises the following issues:

a) Did the trial judge err in sending the question of Queensway’s negligence to the jury?

b) Assuming the finding of negligence is set aside, can the trial judge's finding of vicarious liability stand?

c) Can the apportionment of liability between Queensway and Seo stand?

d) Was the award of $150,000 for non-pecuniary general damages excessive?

e) Are aggravated damages separate from general damages and, if so, was the quantum outside the scope of reasonableness?

f) Is there any foundation for the award of future care costs, or in the alternative, should they be reduced?

ANALYSIS

(i) Did the trial judge err in sending the question of Queensway’s negligence to the jury?

[22] Queensway argues that the issue of the clinic’s negligence should have been removed from the jury’s consideration as it was supported by no evidence and was unreasonable.

[23] The trial judge instructed the jury that they must come to a conclusion on the elements of the duty of care owed by Queensway to its patients, whether Queensway failed to satisfy the standard of care required of it, and whether the failure caused the respondent's damages.

[24] The trial judge repeated to the jury that in order for Queensway to be negligent they must conclude that the failure to meet the standard of care was the proximate cause of the respondent’s injuries.

[25] The trial judge gave the jury an example of how to work with his instructions. He said that if, for example, they were going to rely on a breach of the recordkeeping regulation to find negligence, they could do so only if they found that the breach was one of the causes of the respondent’s injuries.

[26] The following questions and answers were on the Questions for Jury document.

3. Was there any negligence on the part of the defendant Queensway X-ray & Ultrasound that caused or contributed to the injuries or illness suffered by the plaintiff as a result of the incident on February 24, 1997 at the defendant’s premises? Answer “yes” or “No”.

Yes

4. If your answer to Q.3 is yes, state fully what such negligence consisted of. Answer fully.

Lack of regular staff supervision and training, inadequate management control systems and employee record maintenance, no additional measures to take account of lack of private change rooms during renovations.

[27] For ease of reference, the jury’s answers will be referred to using the following numbering:

Lack of regular staff supervision.

[Lack of] training.

Inadequate management control systems.

[Inadequate] employee record maintenance.

No additional measures to take account of lack of private change rooms during renovations.

[28] In my view, the jury’s verdict that the clinic’s breach of the standard of care caused the assault, sexual assault, and mischief, is so plainly unreasonable that it merits interference by this court.

[29] In ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at paras. 53-54, Sopinka J. cautioned the court to avoid inscrutable jury responses and to test the jury’s understanding of the instructions by requiring the jury to specify in what respects the defendant was negligent. Where there is no evidence of a standard, the questions to the jury must be such that the court can determine whether the jury did decide the issue of negligence on the ground that a reasonable standard of practice had been breached and that the breach was the cause of the damages.

[30] With respect to reasons 1 and 3, in the absence of any evidence of actual practices with respect to levels of staff supervision or management control in private clinics or ultrasound clinics, the jury was left to determine on their own, a standard of care respecting supervision. In the result, the jury’s answers are too vague to constitute cogent findings of negligence. There is no way to determine if the jury’s finding on this point reflect that a) the jury determined a standard of care; b) the standard was reasonable; c) there was a breach of the standard; and d) the breach of the standard lead to the damage.

[31] With respect to reason 2, I accept Queensway’s characterization of Seo’s actions as intentional. Indeed, they resulted in criminal convictions. They were not the result of a lack of training or a failure to appreciate the nature of professional boundaries. His actions were not careless or sloppy professional practice that could have been avoided with proper training. There is no causal link between his conduct and the amount of training he did or did not receive.

[32] With respect to reason 4, there was no evidence that Queensway lacked any piece of information that, if it had been in its records, would have caused its management, acting reasonably, to terminate its relationship with Seo, or take measures directed to preventing him from committing a sexual assault. The jury’s answer that Queensway’s negligence arose in part from inadequate employee record maintenance is plainly not supported by the evidence and is therefore unreasonable. Additionally, there was no evidence of a causal link between the absence of records and the actions of Seo.

[33] Finally, with respect to reason 5, there was no basis for the jury to find that the situation which existed at Queensway was a breach of a standard in the field of ultrasound clinics, private or public. The actual physical layout of the clinic did not contribute in any way to the unauthorized tests. The video recording of the patient was an intentional wrongdoing on the part of Seo. No one could have predicted that the renovations would have lead Seo to this bizarre conduct. One cannot say that Seo’s conduct was foreseeable merely because the clinic decided to provide hospital-type change facilities.

[34] In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R 235, the Supreme Court set out the standard of review for questions of mixed fact and law. Quoting from McCannell v. McLean, [1937] S.C.R. 341 at 343, the court stated at para. 30:

[T]he verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it.

[35] The findings of the jury with respect to Queensway’s negligence are plainly unreasonable. No jury reviewing the evidence as a whole and acting judicially could have reached them. The judge erred in sending the question of Queensway’s negligence to the jury. It follows, therefore, that the clinic is not liable for pecuniary or non-pecuniary damages and there is no need to apportion damages as between joint tortfeasors.

ii) Should the trial judge’s finding of vicarious liability stand?

[36] Following the trial, and while the jury was deliberating, the trial judge heard submissions on the issue of vicarious liability. By the time the submissions were complete, the jury had returned with a finding of negligence against Queensway. However, at the request of counsel, the trial judge made his decision concerning vicarious liability on the basis that the finding of negligence should be disregarded for this purpose.

[37] An employer may be found vicariously liable for the wrongdoing of an employee even where the employer is not at fault. The trial judge correctly found that Seo was an employee. The trial judge applied the test set out in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, to make this determination. On the basis of the total relationship between the parties, including the high level of control that Queensway had over the workplace, the fact that Seo did not provide his own tools, nor hire his own assistants, nor take any financial risk in the operation of the clinic, Seo was found to be an employee of the clinic.

[38] Queensway contends that the trial judge erred in finding it vicariously liable for Seo’s conduct. Cases where vicarious liability for sexual assault has been imposed typically involve children. No cases were submitted that mirror the facts of this case. Therefore, it is necessary to examine the question on a principled basis using the reasons provided in Bazley v. Curry, [1999] 2 S.C.R. 534 and Jacobi v. Griffiths, [1999] 2 S.C.R. 570.

[39] In Bazley, supra, the Supreme Court of Canada set out the legal principle for, and the public policy basis of, the doctrine of vicarious liability. The doctrine imposes liability on employers for the tortious conduct of their employees and agents, provided that the misconduct is sufficiently related to the conduct authorized by the employer. Imposition of vicarious liability on employers is a form of strict liability. The employer may be without fault or blame for the underlying negligent or intentional misconduct of the tortfeasor.

[40] Bazley confirms that the ‘scope of employment’, or “Salmond test”, as set out in the text, Salmond & Heuston on the Law of Torts, 18th ed. (London: Sweet & Maxwell, 1981) continues to have application. As McLachlin J. explained in Bazley, under the Salmond test, employers are vicariously liable for employee torts falling within the scope of employment. McLachlin J. quotes from Salmond and Heuston on the Law of Torts at p. 437:

An employee's wrongful conduct is said to fall within the course and scope of his or her employment where it consists of either (1) acts authorized by the employer or (2) unauthorized acts that are so connected with acts that the employer has authorized that they may rightly be regarded as modes -- although improper modes -- of doing what has been authorized: Canadian Pacific Railway Company v. Lockhart, [1942] A.C. 591 at 599 (P.C.).

[41] In Bazley, the employer operated a residential care facility for troubled children. An employee of the facility abused a child. The Supreme Court found the employer vicariously liable for the employee’s unauthorized and intentional wrong on an application of the following three principles (at pp. 559-60):

1. The court should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of ‘scope of employment’ and ‘mode of conduct’.

2. The court should determine the fundamental question of whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Where there is a significant connection between the creation or enhancement of a risk and the wrong that occurs, vicarious liability will serve the policy considerations for the provision of an adequate and just remedy and of deterrence. Employers should bear the generally foreseeable cost of their business.

3. To determine the sufficiency of the connection, the following factors should be considered:

a) the opportunity afforded for the employee to abuse his power;

b) the extent to which the act is furthered by the employer’s aims;

c) the extent to which the act is related to friction, confrontation, or intimacy;

d) the extent of the power of the employee over the victim; and,

e) the vulnerability of the potential victims.

[42] In summary, the test for an employer’s vicarious liability for an employee’s sexual abuse of a client should focus on whether the employer’s enterprise and its empowerment of the employee, materially increased the risk of the sexual assault and hence the harm. The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability—fair and efficient compensation for wrong, and deterrence.

[43] The test for vicarious liability requires trial judges to investigate the employee’s specific duties and determine whether they gave rise to special opportunities for wrongdoing. Because of the peculiar exercise of power and trust that pervade cases such as child abuse, special attention should be paid to the existence of power or a relationship of dependency, which on its own often creates a considerable risk of wrongdoing.

[44] In this case, the trial judge applied the Bazley principles and properly characterized the nature of the relationship between the clinic and the employee. He concluded that Queensway was vicariously liable for the tortious acts of Seo, which were sufficiently related to authorized conduct to justify the imposition of liability. I agree.

[45] The clinic’s enterprise and empowerment of the employee materially increased the risk of sexual assault. The business of the clinic and the authority given to Seo by the clinic created a serious risk of sexual assault to patients. Presumably for privacy reasons, the clinic protocol called for the technician to be alone in a room with the patient, who is partially disrobed. The patient disrobes and dresses again in a space that is adjacent to the examining area. The patient has trusted her own physician who has advised her that this test is necessary and prescribed the test to be performed by a qualified technician. She must depend upon and trust the technician to do the test that has been ordered. The patient cannot be expected to know the boundaries or limits of authorization of the technician. The patient presents herself to the ultrasound technician who is expected to possess the skill, experience, and qualifications to perform the prescribed test and only that test that her physician has requested. Furthermore, the patient who attends at the clinic has a certain level of vulnerability arising from the stress and anxiety associated with unknown health problems.

[46] As McLachlin J. noted in Bazley, at para. 43, “As the opportunity for abuse becomes greater, so the risk of harm increases.” The risk of harm is enhanced by the nature of the relationship between the employee and the patient. The relationship in this case is materially different from that between a child and a caregiver. Notwithstanding the opportunity for misconduct, there are at least two reasons why a competent adult in a health care setting is less vulnerable to sexual assault than a child. The adult is more able to physically protect herself and the employee is more likely to fear the adult’s disclosure. In this case, the assault was covert, and the respondent was not aware that the technician was touching her improperly until afterward. The technician was permitted to touch the plaintiff in intimate body zones because of the authority granted to him by his employer. The relationship between the respondent and the technician was strictly professional and short term. Nonetheless, the circumstances lead the respondent to trust Seo completely.

[47] The risk of sexual touching is increased by the fact that ultrasound testing requires or permits the employee to touch the patient in intimate body zones. In other words, the actual abdominal touching is part of what must be legitimately done by the technician. There is the finest line between legitimate touching and criminal or tortious conduct. In this case, where the requested test was an upper gastrointestinal tract test and the technician tested for ovarian cysts instead, the difference between legitimate and criminal touching was probably a distance of less than 12 inches of anatomy.

[48] There is an obvious and strong connection between what the employer was asking the employee to do and the wrongful act. Because that connection is so strong, one can properly conclude that the employer significantly increased the risk of harm by putting the employee in his position and requiring him to perform the assigned tasks.

[49] The nature of the enterprise and the actual duty of the technician are so connected to the wrong that, in my view, it cannot be said that the clinic provided a ‘mere opportunity’ to a employee. On an application of the legal principles, Seo’s wrongful act was so closely related to the authorized conduct, it justifies the imposition of vicarious liability.

[50] The finding of vicarious liability in this case also meets the policy objectives set out by McLachlin J. in Bazley, that is, fair and sufficient compensation for wrong and deterrence of future harm.

[51] The policy objectives of the doctrine of vicarious liability dictate that the employer who has introduced the risk of the wrong is fairly and usefully charged with its management and minimization. There must be an incentive for those who control institutions or enterprises that engage in the intimate touching and/or treatment of vulnerable individuals to minimize the risk of harm to patients. Finding the employer vicariously liable encourages such employers to ‘take such steps and hence, reduce the risk of further harm.’

iii) Apportionment of Fault

[52] The apportionment of fault to the parties for their respective negligence is a question of fact: see the Negligence Act, R.S.O. 1990, c. N.1, s. 6. Further, this court has held that, “[I]t is clear that the issue of apportionment is one on which substantial deference is to be accorded to the trial judge.” See Martin v. Listowel Memorial Hospital (2000), 51 O.R. (3d) 384 at para. 20, citing Ingles v. Tutaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298.

[53] Although it is not necessary to deal with the issue of apportionment in light of my conclusion in respect of negligence, there was a demonstrable error in the appreciation of the facts and/or the applicable legal principle on this issue. Seo committed an intentional tort. He was the person who committed the criminal and improper acts against the respondent. Even if I agreed that Queensway was somehow negligent in its training, supervision, or record keeping, Seo was clearly more at fault than the clinic. This court has held that, “where the wrongdoing by one party is recognized as greater, either in magnitude, or because the party engaged in different kinds of contributing negligence, it is the duty of the trier of fact to assign a larger proportion of fault to that party.” See Martin at para. 24.

[54] It is not necessary to apportion fault since I have decided that Queensway was not negligent.

DAMAGES

(iv) Were the General Damages excessive?

(v) Was the separate award of Aggravated Damages appropriate?

[55] It follows that if there was no negligence on the part of Queensway, there can be no independent award of either general or aggravated damages against it. Having been found to be vicariously liable for Seo’s actions, Queensway is responsible for the non-pecuniary and pecuniary damages awarded against Seo. See Swales et al. v. Glendinning et al. (2004), 237 D.L.R. (4th) 304 (S.C.J.).

[56] Damages for sexual battery and invasion of privacy are inseparable. They arise out of the same incident. The respondent in this case did not allege any physical injury. She is entitled to fair and reasonable compensation for the pain and suffering and loss of amenities which she has sustained and will continue to suffer as a result of the wrongful conduct. The purpose of damages is to place the victim in the position in which she would have been had it not been for the tortfeasor’s wrongdoing.

[57] In the case of battery, the Supreme Court of Canada has remarked that aggravated damages are awarded if a battery occurred in humiliating or undignified circumstances. They are not awarded in addition to general damages. Rather, general damages are assessed, “taking into account any aggravating feature of the case and to that extent increasing the amount awarded.” See Norberg v. Wynrib, [1992] 2 S.C.R. 226 at 263.

[58] In this case, the jury awarded the respondent $150,000 in general damages and an additional $25,000 in aggravated damages against Seo. The appellant clinic submits that the award for pain and suffering was out of proportion to the harm suffered. Based on recent jurisprudence relating to damages in sexual assault cases, I accept this submission.

[59] In Vieczorek v. Piersma et al. (1987), 58 O.R. (2d) 583 (C.A.), Cory J.A. followed this court’s earlier decision in Mulroy v. Aqua Scene et al. (1982), 36 O.R. (2d) 653, and held that appellate courts should interfere with an assessment of damages, whether made by judge or jury, if it constitutes a wholly erroneous estimate of those damages.

[60] The assessments of damages made in this case are such an erroneous estimate of damages that they require the intervention of this court. The jury made a palpable and overriding error in their assessment of general and aggravated damages.

[61] One recent case with similar facts to this case involved a thirteen-year old plaintiff who was assaulted when her dentist briefly fondled her breasts: R. (J.) v. W. (E.S.) (2001), 52. O.R. (3d) 353 (S.C.J.) The plaintiff came forward fifteen years later, after learning that the defendant was being investigated. The plaintiff suffered post-traumatic stress syndrome. As with the respondent in the case at bar, there was evidence that the plaintiff was recovering and had married and had children since the assault. In R. (J.), general and aggravated damages were awarded in the amount of $20,000.

[62] The damages in this case should be significantly less than the damages awarded in cases involving ongoing and deviant assaults.

[63] In D.M.M. v. Pilo, [1996] O.J. No. 938 (Gen. Div.), the plaintiff was Pilo’s patient from the age of 9 until she was 21 years old. Pilo performed medically unnecessary vaginal and breast examinations on the plaintiff. He also masturbated her and himself and made inappropriate sexual comments. The plaintiff had a number of ‘disturbing’ sexual interactions as a child and adult, abused drugs and alcohol, and had periods of depression. The trial judge awarded $100,000 in general damages and $25,000 in aggravated damages. General damages were then reduced by 50% as the plaintiff had also been victimized by other people.

[64] In N.C. v. Blank, [1998] O.J. No. 2544 (Gen. Div.), the plaintiff’s former psychologist progressed from ending each session with a hug to having sexual intercourse with her over a period of about a year. The sexual relationship continued and the plaintiff contracted an incurable sexually transmitted virus as a result. Aggravated damages of $100,000 were awarded.

[65] In Doe v. O’Dell (2003), 230 D.L.R. (4th) 383 the plaintiff was awarded $175,000 for general and aggravated damages arising out of sexual assault by a person in a position of trust. From the ages of 11 to 12, over a two-year period, the plaintiff had been subjected to multiple, deviant and degrading sexual assaults by a priest. The medical experts agreed that the impact of the abuse had been severe, extreme, and enduring, impacting on all aspects of his life, including his family and interpersonal relationships, his sexual identity, and his educational and vocational achievement. The court found that the plaintiff experienced many ‘lost’ years, characterized by mental health problems including profound depression, suicide attempts, and years of alcohol abuse. The trial judge concluded that the case fit into the upper-end of the spectrum and awarded $175,000 for general and aggravated damages.

[66] In Glendinning, supra, three young brothers were frequently sexually abused by a priest over a prolonged period of time. The trial judge accepted the evidence that the abuse was “as severe as it gets”. The priest was in a position of trust. The abuse had a devastating effect on the boys, including up to 15 years of alienation from society, years of unemployment, criminal activity, and substance and alcohol abuse. The brothers were awarded between $175,000 and $200,000 in damages, which included $25,000 in aggravated damages.

[67] In P.D. v Allen, [2004] O.J. No. 3042 (S.C.J.), a young girl was sexually abused over a three-year period by a priest. There were an estimated 100 incidents. General damages of $125,000 were awarded. The aggravated damages of $75,000 reflected the damaging manner in which the woman was treated following disclosure.

[68] These recent trial decisions have all dealt with plaintiffs who have suffered years of childhood abuse at the hands of a trusted priest. The abuse was frequent and in the cases of O’Dell and Glendinning, degrading and deviant. The consequences to the plaintiffs included lost years of education, employment, substance and alcohol abuse, and an inability to form or maintain intimate relations.

[69] General non-pecuniary damage should be assessed after taking into account any aggravating features of the defendant’s conduct. The court may separately identify the aggravated damages, however, in principle they are not to be assessed separately. The purpose of aggravated damages, in cases of intentional torts, is to compensate the plaintiff for humiliating, oppressive, and malicious aspects of the defendant’s conduct which aggravate the plaintiff’s suffering. In cases of negligence, aggravating factors can also be taken into account where the defendant’s conduct recklessly disregards the plaintiff’s rights.

[70] The following are aggravating factors which should be taken into account to determine whether the non-pecuniary damages should be increased: humiliation, degradation, violence, oppression, inability to complain, reckless conduct which displays a disregard of the victim, and post-incident conduct which aggravates the harm to the victim.

[71] In Malcolm v. Fleming, [2000] B.C.J. No. 2400 (S.C.), damages were awarded for invasion of privacy where the defendant set up a hidden video camera in the bathroom used by the plaintiff. The plaintiff roomed with the defendant’s family while she was a student. The plaintiff had been repeatedly videotaped in the room where the most intimate acts were expected and did occur. Seven videotapes covering a three-year period were found. The trial judge found that there had been “repeated and protracted invasion of privacy with effects on the plaintiff similar to the remaining effects one sees in victims of sexual assault.” The plaintiff suffered short-term depression, sleep disturbance, significant weight loss, and loss of trust. She had continuous worries that there were other tapes in existence, which had been distributed.

[72] In Malcolm, the trial judge took into account the injury to the plaintiff, the circumstances of the wrongful act, including the “elaborate arrangements that required considerable premeditation and planning to achieve this end,” and found that the actions of the defendant were “not impulsive conduct” (see para. 13). General damages of $15,000 and punitive damages of $35,000 were awarded against the defendant.

[73] In the instant case, in light of the circumstances of this one-time, non-invasive incident, the age of the plaintiff, her apparent recovery from the emotional and psychological trauma, her ability to form and maintain stable and lasting relationships, and the lack of serious prolonged sequelae, the award made by the jury is beyond the scope of anything that could be accepted as reasonable.

[74] There is no doubt the respondent suffered short-term psychological and emotional trauma and that she should be compensated for her pain and suffering. She was treated for this harm and ceased treatment on her own accord, although it continued to be available to her. Within two years of the assault she was married to a man she met within weeks of the assault. She now has two children who bring happiness to her life.

[75] The facts in O’Dell are far more serious, both with respect to the circumstances of the assault and the harm to the victim. So too are the events in Glendinning. where the long-term consequences were devastating and involved several siblings from a single family. With respect to the act of videotaping, the facts in Malcolm are somewhat similar to this case.

[76] I would adopt the view of Dickson J. from Andrews v. Grand & Toy, [1978] 2 S.C.R.229 at 261 that, “The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional.”

[77] In my view, the damages awarded to the respondent should be assessed at $25,000: $15,000 for general damages and $10,000 to account for the aggravating features of the humiliation of being videotaped by a health care worker while dressing and undressing for a stressful and intimate procedure. The aggravating factors are with respect to Seo’s conduct only. There was no evidence to support a finding of aggravated damages as against the clinic.

[78] The vicarious liability of the clinic extends to include aggravated damages. The clearest statement of the law on this issue comes from the British Columbia Court of Appeal in T.W.N.A. v. Clarke (2003), 2003 BCCA 670, 235 D.L.R. (4th) 13, which held at paras. 145-46:

As aggravated damages are compensatory, it is logical to require a vicariously liable party to compensate the victim for all damage caused. To relieve such a party from liability for aggravated damages would undermine the important social goal of providing compensation and would leave certain plaintiffs under-compensated. This would inevitably be the result in sexual assault cases where it is so difficult to separate the physical and psychological injury suffered by the plaintiff.

Further, imposing vicarious liability for aggravated damages promotes deterrence. Since vicarious liability is based on the introduction or enhancement of a risk, it is fair to require the person who introduced or enhanced the risk to bear the costs of its fruition. This cost will provide an incentive to take steps to prevent the type of behaviour that will attract an award of aggravated damages.

[79] This principle was followed in O’Dell at para. 279, where Swinton J. held that the “liability of the Church is vicarious and, in my view, it extends to all the non-pecuniary damages which the employee has caused to the plaintiff.”

[78]As the clinic is vicariously liable for Seo’s actions, it is liable to pay the aggravated damages that arise from Seo’s conduct.

(vi) Future Care Costs

[80] The jury awarded the respondent $31,200.00 for future care costs. Although it might have been more reasonable to apply a contingency, the jury was entitled to accept the respondent’s evidence that she would take the treatment recommended by the medical expert. There was no palpable or overriding error that would justify this court’s interference on this issue.

DISPOSITION

[81] Accordingly, I allow the appeal in part and set aside the jury’s finding of the appellant clinic’s negligence. With respect to damages, I would set aside the damages as ordered and substitute an award of damages of $25,000, which sum includes $10,000 for the aforementioned aggravating circumstances of the assault. The appellant clinic is vicariously liable for this damage award.

[82] If counsel are unable to agree on the matter of costs, they may file brief submissions with the court within fifteen days of the date of release of these reasons.

RELEASED: June 17, 2005 (“JS”)

“P. C. Hennessy J. (ad hoc)

“I agree Janet Simmons J.A.”

“I agree E. E. Gillese J.A.”