Civil Prosecutions for Victims of SBS
This paper is a version of a presentation given to the Tenth international conference on Shaken Baby Syndrome / Abusive Head Trauma. The presentation was by Barbara Webster-Evans and Daniel Corrin, from Webster & Associates. The presentation was intended to provide an outline of the civil litigation options that may be available for parents and guardians of children who have been abused and have been the victim of shaken baby syndrome.
For reference, Shaken baby Syndrome (SBS) or abusive head trauma is an form of child abuse, assault or homicide occurring from the violent shaking of an infant. SBS may be fatal or it can result in long term deficits arising from brain injury. The hallmark characteristics of an infant or child who has been shaken include cerebral edema, retinal hemorrhages and subdural hematoma. These signs, along with fractures of the ribs, the long bones or the skull are looked for by medical investigators, usually pediatricians and pediatric ophthalmologists in diagnosing SBS. Of course, the infliction of this type of injury on a child is a crime and is usually investigated by police.
Civil prosecutions of abusive head trauma are a relatively rare from of legal action in Canada.
Webster & Associates is a small firm of lawyers that only represents injured individuals, mostly brain injury survivors. We were privileged to be asked to represent a young victim of SBS, in a case where it was alleged that a baby had been injured while in the care of a day care provider who was part of the "Wee Watch" child care system.
The main civil case resolved approximately 7 days into the trial. However, one aspect of the case was heard by the Supreme Court of Canada on the issue of whether the police could access the information obtained in the prosecution of the civil action. The Supreme Court of Canada released a judgment on the issue which we expect to be of vital future importance to both civil litigators and law enforcement personnel. (see below).
Our presentation and this paper are meant as a guide for those who are concerned about a possible victim of Shaken Baby Syndrome and want what to know what can be done to obtain compensation for the injured infant and his or her family.
Potential "Insured" Defendants
The sad fact is that in most cases, it is only worthwhile starting a legal action against individuals or companies that have insurance or otherwise have the financial ability to pay a judgment in the event the legal action is successful. An insured defendant is an individual or entity that if found wholly or partially at fault for the injuries that occur to a victim, will have a policy of insurance that will pay the sums awarded.
Automobile owners and drivers are the best example of insured defendants. Automobile insurance usually protects owners or drivers in the event that they are negligent and cause injuries to someone else. In Canada, most people purchase reasonable amounts of insurance which will provide the necessary insurance coverage to compensate a person injured in an accident. In the United Kingdom, the policies are often limited by the amount of money required to satisfy the judgment. In the U.S.A., unfortunately the amount of insurance money available is often inadequate to properly compensate an injury that arises from a motor vehicle driver being at fault in a collision. While Canadian automobile caused injuries almost always involve insured defendants that is not the situation in a typical shaken baby case.
Many Canadian adults who are home owners or renters have insurance to protect them in the event they negligently cause an injury to another person. Unfortunately these insurance policies usually exclude intentional and criminal acts, hence may not cover a SBS perpetrator. In other words, while they may provide coverage when someone slips and falls because of icy stairs, they don't pay for damages awarded against a homeowner who intentionally assaults or shakes a baby. For this reason, parents, family members and many nannies are likely not covered by insurance.
A survey of cases involving likely SBS victims in Canada reveals:
- suits against the government, for children in care who are injured
- suits against physicians & hospitals, for children who were clearly abused and then returned to homes where the abuse was likely to continue
- suits against child care providers in situations where the insurance coverage was not vitiated by the act
Investigation
The criminal investigation of a SBS case is well canvassed by the professionals who are speakers or involved with the shaken baby centre organization and is beyond the scope of this paper.
A civil investigation is likely to be occurring either at the same time as a criminal investigation or perhaps after it has concluded. The best advice we can give to parents is to co-operate with the law enforcement investigation, but to recognize that the two investigations are not the same thing. In the case of a criminal action against a child care provider for shaking a baby, (say an assault charge) the police and prosecutor must prove, beyond a reasonable doubt, that a specific individual intentionally harmed the child. In a civil case the claim would most likely allege that that the child care provider negligently allowed the child to come to harm, whether or not the provider actually caused the harm, and the burden of proof is upon the balance of probabilities.
In conducting the civil investigation, access to police file materials will often be restricted (in BC) when there is an active criminal investigation. A private and separate investigation must often occur. One of the most important tools of a civil investigation is the ability to compel defendants to attend an examination for discovery' and their obligation to answer questions about their actions. This occurs after a law suit has started. This tool is not available in a criminal case because a criminally accused person has a right to silence in that forum.
In any civil case, appropriate medical opinions will be required to prove how the child came to harm. They may be different than those used in a criminal case because they may relate to the requirement to prove different things, using the burden of proof in a civil matter.
Proof of the Civil Case - liability
As stated above the burden of proof in a civil case is on the "balance of probabilities", otherwise expressed as more likely than not' or greater than 50%'. The burden rests with the plaintiff, so must be proven by him.
The real question is "what must be proven?"
In most cases, parents do not need to prove, and should not set out to prove that their injured infant is a victim of SBS. Research suggests that the common (non-medical) traits of SBS are an occurrence in the absence of others (i.e. when there are no witnesses) and a vigorous denial of causing the harm.
In many successful civil cases against a probable SBS perpetrator, the case is made out by alleging and proving that the infant was in the care of the responsible party when they came to great harm. This avoids the debate of intentionally caused harm which is required in a criminal case, and may also allow an injured child to recover much needed funds for his or her future care under an insurance policy.
While this may seem to be anathema to those who wish to raise the profile of Shaken Baby Syndrome or abusive head trauma with a view to prevention, it is often the most productive method of prosecuting a civil case.
Clearly, this approach is not applicable to cases against responsible individuals or institutions that had the knowledge and opportunity to prevent a child from coming to harm, yet failed to do so. This would potentially include claims against government bodies, hospitals, medical and other professionals.
Finding "Insured" defendant(s)
It is not always possible to find an insured defendant against whom an action can be brought.
In BC, and other provinces there are statutory schemes that allow victims of crime to receive some assistance. All victims should investigate the availability of this assistance in their jurisdiction. In BC the program is called the Crime Victim Assistance program, which can be found at www.pssg.gov.bc.ca. This program focuses on the needs of the victim, and it does not require a successful criminal prosecution to result in compensation.
While crime victim assistance programs may provide significant assistance, in British Columbia, this but does not equate to the amount of compensation that might be available through a successful civil suit. In BC, the focus is on supporting a victim of a crime with the specific needs arising from the trauma. In other jurisdictions, there may be a different focus and the amount available to a victim can be quite substantial ( for example in the U.K.). Check out the specific programs that might be available in your jurisdiction.
Summary regarding civil cases of SBS
When a child is a victim of SBS or abusive head trauma, we suggest that the child's guardian seriously consider whether a civil claim is an option. Survivors will invariably require considerable care and assistance in their lifetime.
Investigation of the prospect of a civil case should occur as quickly as possible to ensure that evidence is not lost, and we suggest, concurrently with any criminal investigation. The issues are not the same as the issues in a criminal prosecution. They require a different investigation, a consideration of possible different parties (i.e. beyond the suspected perpetrator) and a different burden of proof.
While successful civil claims will not be available for all SBS survivors, the cost of looking into the possibility will often be nothing, or only a minimal amount. At Webster & Associates, we will talk to you without charge about whether we can offer assistance to you, and can provide you with the advice you need about going forward. If a successful claim is available it could provide for the needs of the victim over his or her entire lifetime. This chance should not be overlooked if your loved one has been the victim of a shaken baby case.
The organization that works tirelessly to educate individuals about SBS, prevent future occurrences and support medical, police and prosecutors working in this field is the National Centre on Shaken Baby Syndrome, on the web at www.dontshake.org. They organize conferences and provide assistance to victims and professionals alike.
Doucette v. Wee Watch et al, at the Supreme Court of Canada.
In Doucette v. Wee Watch et al* the primary issue before the S.C.C. highlighted the tension between the civil and criminal process. In the most general sense, the civil process creates an environment in which parties are compelled to disclose information to each other, but that information may only be used within the specific legal proceeding that has been initiated (the situation is different when evidence comes out in open court). In other words, a party can be compelled to provide evidence which is used against them. In a criminal context, an accused has a right to remain silent and the burden is with the Crown to produce the evidence to convict.
The legal descriptor for the protection of privacy in civil situations is called the "implied undertaking" and it is the means by which civil evidence is kept confidential, absent a court order or other judicial process. The exception has always been when the information needs to be disclosed to prevent an immediate and serious harm from occurring.
We will provide the citation of this case and will take questions regarding the case, but advise that we will confine our responses to the information that was pled or discussed in open court.
*Doucette v. Juman & Wee Watch. 2008 S.C.C. 8, or http://scc.lexum.umontreal.ca/en/2008/2008scc8/2008scc8.html
On appeal from Doucette v. Juman & Wee Watch 2006 BCCA 262; http://www.courts.gov.bc.ca/jdb-txt/ca/06/02/2006bcca0262.htm
On appeal from Doucette v. Wee Watch & Juman et al, 2005 BCSC 400 http://www.courts.gov.bc.ca/jdb-txt/sc/05/04/2005bcsc0400.htm
Civil Damages for injured children (a primer for those attending the Shaken Baby Conference)
Many of those who are attending the National Conference on Shaken Baby Syndrome or abusive head trauma are NOT familiar with the categorization and quantification of awards of civil damages. Below is a brief summary of civil damages, as it applies to prosecuting a case for injured children, which will be discussed in the presentation.
Non Pecuniary Damages
Non pecuniary damages are often described as payment for pain and suffering, or solace for that which can not be replaced by money. In Canada, the Supreme Court of Canada capped non-pecuniary damages at $100,000 as of January 1978, plus a Cost of Living Allowance. Plaintiffs in catastrophic injury cases are generally entitled to the capped maximum of non-pecuniary damages. Accounting for inflation, the cap is approximately $325,000 in today's dollars. Other plaintiffs are awarded non-pecuniary damages, in line with the cap. Considerations include: specific injuries; impact of those injuries; permanence or longevity of the injury. A severe brain injury will usually merit an award of the maximum.
Other than recognizing that there is no amount of money that would make good on the loss, there is no rational way to explain the Trilogy's pain and suffering limitation to a client who has sustained serious injury. The emphasis of the S.C.C. was that when individuals need care, that should be fully provided.
Future Care
The Supreme Court of Canada explained concept of "full compensation" for pecuniary loss, including cost of care, as follows, in Andrews v. Grand & Toy Alberta Ltd.(1978),83 D.L.R. (3d) 452 at 462 (S.C.C.):
In theory a claim for the cost of future care is a pecuniary claim for the amount which may reasonably be expected to be expended in putting the injured party in the position he would have been in if he had not sustained the injury. Obviously, a plaintiff who has been gravely and permanently impaired can never be put in the position he would have been in if the tort had not been committed. To this extent, restitution in integrum is not possible. Money is a barren substitute for health and personal happiness, but the extent, within reason, that money can be used to sustain or improve the mental or physical health of the injured person it may properly form part of a claim.
The current law respecting the assessment of damages derives from a series of decisions from the S.C.C. in 1977. They have been followed throughout Canada, and are expressed as follows:
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I am guided, as was Madam Justice Levine in Jacobsen v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63 at 99 (S.C.), by the test described by Madam Justice McLachlin in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at p.84:
The award for cost of care should reflect what the evidence establishes is reasonably necessary to preserve the plaintiff's health. At the same time, it must be recognized that happiness and health are often intertwined.
Terracciano (Guardian ad litem of) v. Etheridge, [1997] B.C.J. 1051 (S.C.) -
In Teno v. Arnold, [1978] 2 S.C.R. 287 (S.C.C.), Spence J. stated at p. 320:
It should be stressed that in such a case as the present . . . the prime purpose of the Court is to ensure that the terribly injured plaintiff should be adequately cared for during the rest of her life. That end having been attained, other elements of damage are of lesser importance. -
The emphasis on full compensation for future care is also recognized as being a response, in part, to the arbitrary limit placed on non-pecuniary damages. In his text, The Law of Damages (Loose-leaf ed), Professor Waddams states at page 3-63:
... the tenor of Dickson J.'s judgment in Andrews v. Grand & Toy Alberta Ltd. makes it clear that the court will lean in favour of the plaintiff in judging the reasonableness of his claim. The court made it plain that the restraint imposed on damages for non- pecuniary losses was an added reason for insuring the adequacy of pecuniary compensation. -
Full compensation suggests a standard of care which allows the plaintiff, as far as possible, to enjoy a lifestyle like the one he or she would have enjoyed but for the injury. In Milina v. Bartsch, [1985] B.C.J. No. 2762 (B.C. S.C.), McLachlin J. (as she was then) states at paragraph 170:
The fundamental governing precept is restitutio in integrum. The injured person is to be restored to the position he would have been in had the accident not occurred, insofar as this can be done with money. This is the philosophical justification for damages for loss of earning capacity, cost of future care and special damages. -
Recently, in Krangle (Guardian ad litem of) v. Brisco (2002), 208 D.L.R. (4th) 193 (S.C.C.), the Supreme Court of Canada re-affirmed the restitutio in integrum theme as it relates to future care. At paras. 21-22, Madame Justice McLachlin states:
Damages for cost of future care are a matter of prediction. No one knows the future. Yet the rule that damages must be assessed once and for all at the time of trial (subject to modification on appeal) requires courts to peer into the future and fix the damages for future care as best they can. In doing so, courts rely on the evidence as to what care is likely to be in the injured person's best interest. Then they calculate the present cost of providing that care and may make an adjustment for the contingency that the future may differ from what the evidence at trial indicates.
In the context of a SBS case, this will mean the physical care needed as well as the proven needs for therapies or assistance to overcome the effects of the brain injury.
Realistically, the skill of counsel in doing a very thorough investigation and work up will be a significant determinant in the final quantum awarded.
In a SBS case, counsel would be likely to call upon pediatric neuro-psychologists, life care planners, educational experts, pediatric psychiatrists, and vocational experts in addition to the experts needed to prove the injury or deal with the specific sequelae.
"In Trust" Damages
"In Trust" claims are a recognized head of damages to compensate for required services that are supplied from an unpaid source, usually family. A defendant may not avoid its financial obligations because a family member has provided care beyond the norm expected of them. In Brennan v. Singh, the plaintiff had substantial care needs. Harvey J., summarized the factors to consider in assessing in trust claims:
- In my view, it is useful to review briefly the factors which are considered in the assessment of such claims. They are:
- where the services replace services necessary for the care of the plaintiff;
- if the services are rendered by a family member, here the spouse, are they over and above what would be expected from the marital relationship?
- quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those services.In this regard, the damages should reflect the wage of a substitute caregiver. There should not be a discounting or undervaluation of such services because of the nature of the relationship;
- it is no longer necessary that the person providing the services has foregone other income and there need not be payment for such services.
Cases involving infants are more complex because infants require significant care, whether injured or not. As a result, parsing out the amount that is over and above that which would be expected is more difficult. That does not mean that it does not occur.
Loss of Earning Capacity
The law pertaining to future economic losses must consider both the work' that is missed as well as the lost oportuntity. In Traynor v. Degroot, the young (23) female plaintiff was severely injured while at university. Despite completing university her career' was impacted and she lost a substantial portion of her vocational capacity. Mr. Justice Curtis summarized the law:
80 The law is clear that in assessing future losses substantial possibilities must be considered by estimating the chance of the event occurring. (Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 (B.C.C.A.)). Future events need not be proven on a balance of probabilities, instead, they are simply given weight according to their relative likelihood. (Athey v. Leonati, [1996] 3 S.C.R. 458 (S.C.C.)).
81 It is also clear that an award for reduced earning capacity is not solely a matter of mathematical calculation but of assessment. Even a plaintiff that is apparently going to earn as much as she could have, but for the accident, is entitled to an award because for the rest of her life some opportunities will be closed to her and it is impossible to say that the impairment will not harm her earnings. (Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (B.C. C.A.)).
In this realm damages are always "assessed", not "calculated".
In circumstances where the plaintiff is quite young, use of statistics and other circumstantial factors will occur. For example, consideration of the education and attainments of parents and older siblings will be necessary. Economic multipliers are used that are intended to replicate the real rate of return on a sum of money that will be needed to replace the childs income loss from the time of commencement of employment until retirement.
Loss of ability to form interdependent relationship
There are economic benefits to marriage or equivalent to marriage relationships. Where an individual is injured in a way that will likely preclude the formation of such a relationship, that will allow a claim for up front payment of the monetary gains (savings) that would have accrued if such a relationship was available.
Special Damages
Special damages are the expenses that have arisen from the incident, sometimes called out of pocket expenses', but they can be very significant. They include everything arising from the incident, such as the ambulance bill or parking, but also all the therapies that a victim has needed from hospital discharge to trial. For services such as physiotherapy, occupational therapy, tutoring, recreational therapy, speech language pathology services and educational consultants the bill can be enormous. In law, plaintiffs are expected to mitigate their damages in order to reduce their ultimate need, but this can not be done in a vacuum.
The test for special damages requires consideration of the reasonableness of the expense at the time made, not its ultimate effectiveness. The legal test was summarized in Mitchell v. We Care et al [2004] B.C.J. No. 1400; B.C.S.C. No. 902 (S.C.):
A court should award special damages if the expense incurred was reasonably necessary. In Brennan v. Singh, [1999] B.C.J. No. 520 (S.C.), the defendants argued that the test for determining whether the cost of care was appropriate was "medical necessity". Mr. Justice Harvey pointed out that this standard was rejected in Zapf v. Muckalt (1996), 26 B.C.L.R. (3d) 201 (C.A.) as being too stringent. The Court of Appeal preferred a reasonableness test. The court in Zapf made its comments in the context of housing costs but Mr. Justice Harvey concluded that this approach should be applicable to other components of care as well. After having reviewed Milina and Mann v. MacCaig-Ross, [1998] B.C.J. No. 592 (S.C.), Mr. Justice Harvey formulated the test for special damages in this way at para. 91:
[I]t is what a reasonably minded person of ample means would be prepared to incur as an expense; and cannot in the remotest sense be considered a squandering of money; and for which there is a medical basis.
I respectfully agree.
The proof of special damages through incurred expenses is strong evidence in support of future needs. A lack of direct expenditure in providing care will increase the practical risk that a court may assume that such "free" care will continue. Theoretically it should not matter whether the plaintiff has incurred the expenses in order to allow recovery of future care costs. In practice, it is probably an influence on the decision maker.
Committee Fees, Tax Gross Up and Fund Management
There are additional awards that will likely apply to cases involving SBS victims. The Court can be asked for awards that offset the cost of future tax, or assist a compromised individual in the management of their money and the fees that they will have to pay.
Procedural & other miscellaneous issues relating to SBS cases in Canada
- While Canada has a Judge and Jury system parties must decide to ask for a Jury and the use of a jury can be suspended in certain cases, and one reason is if it is too complex. While it would be expected that a jury would have a great deal of sympathy for a SBS victim, a Canadian Court may set aside a jury notice in this type of case.
- Canadian Experts utilize written opinion reports, with notice to all other parties. This is different than the U.S. and there is a great deal of law and complexity relating to the drafting these reports. If you are sought out to provide an opinion, seek some guidance from the retaining lawyer, if you have not done this type of report before.
- In terms of timing, a Civil SBS case could take quite some time before going to trial. There will be tension related to the proof of the incident (liability) and the resulting damages. The liability case will be able to proceed as soon as the evidence is available. The development of damages could take a long time as neurological deficits tend to take some time to become more obvious and pronounced. The premis of the assessment of damages is that the degree of loss is known. This is always difficult to establish for young people.
Role of the Public Trustee
In all cases involving infants in B.C. the office of the Public Trustee is involved in overseeing litigation involving B.C. infants. There are similarly named offices in all of Canada, the UK and the U.S.A.
Specifically in B.C. a case involving a SBS victim would likely require approval from both the Public Trustee and the Court in order to be resolved.
Thank you
For caring for and fighting for these victims.
Your feedback is appreciated.