Focus On

TRESPASS - To person - Sexual assault

Wednesday, January 23, 2019 @ 7:39 AM  


Lexis Advance® Quicklaw®
Action for damages for sexual assault and negligence. The plaintiff alleged that he was sexually assaulted by prison inmates while on a tour of a prison in the late 1970s. At the time, the plaintiff was a teenager on probation. The point of the prison tours was to give the youths some interaction with an inmate and give a generally negative impression of life in prison. The plaintiff alleged that the defendant MacDougall was the corrections officer who led the tour and forced the plaintiff into a cell with five inmates, where he was subjected to a sexual assault. In 2017, a psychologist diagnosed the plaintiff with Post-Traumatic Stress Disorder, major depression with anxiety and suicidal ideation, cocaine use disorder, and personality disorder with borderline and antisocial traits. The psychologist determined that the prison incident was either directly related to the plaintiff’s conditions or caused them to be significantly more intense and frequent. While the plaintiff could not identify the corrections officer who led the tour, the plaintiff assumed MacDougall was the escort officer, based on information that MacDougall was a convicted sex offender who was active at the prison at the relevant time. The plaintiff alleged that the Province failed to take adequate steps to prevent the sexual assault by failing to oversee and supervise the scared straight program, failing to investigate or adequately supervise guards who were identified as posing a risk to inmates, failing to prevent its staff from imposing unreasonable and unnecessary risks on juvenile tours, and failing to implement procedural safeguards.

HELD: Action allowed in part. The plaintiff was awarded damages of $175,000 for sexual assault. The negligence claim was dismissed. The plaintiff presented as credible and generally reliable. There was little variation in his account of the sexual assault. The events described by him were not so contrary to common sense as to be inherently improbable. While the court accepted that the plaintiff was sexually assaulted, the plaintiff had not shown that MacDougall was responsible for the harm done to him rather than an unidentified officer who was also an employee of the Province. As a result, the Province was vicariously liable for the sexual assault of the plaintiff. The plaintiff's claim against MacDougall was dismissed. The Province did not have knowledge of sexual predator guards at the prison other than MacDougall. While the structure and operation of the youth tour program in 1978 left a great deal to be desired from a modern perspective, the evidence did not establish that the Province had the requisite foresight of the risks involved in the youth tour program to be found liable in negligence. The court accepted that the plaintiff had suffered substantial psychological difficulties as a result of the assault and awarded him $150,000 in non-pecuniary damages. No award for income loss was made. The evidence established that the plaintiff had worked consistently during his adult life. There was no evidence to demonstrate that he could not continue to work full-time and earn an income commensurate with an average male truck driver in BC. The plaintiff was awarded $25,000 for the cost of future care.

B.E.S. v. MacDougall, [2018] B.C.J. No. 6799, British Columbia Supreme Court, J.M.I. Duncan J., December 4, 2018. Digest No. TLD-January212019005