August 15, 2017
Taylor Swift only sued for one dollar in damages in her counter-suit for assault against the former radio DJ who had sued her for allegedly ruining his career. Odds are you know the story.
In most cases involving sexual assaults, the damages will be more than one dollar. In fact, recent trends are to recognize the serious psychological effects of sexual assault and the courts have removed these claims from the umbrella of the “cap” on personal injury damages (currently about $400,000) so in serious cases, damages might be $450,000 or $500,000 or more just for pain and suffering.
In Ontario, and most jurisdictions with systems based on English law, one-dollar damages are awarded in one of two situations:
- “nominal damages”, or
- “contemptuous damages”
Contemptuous damages are very rare. They are awarded in cases where a judge or jury believes that the Plaintiff has a technical legal claim, but has suffered no loss, and is abusing the process of the courts by bringing what is essentially a frivolous lawsuit. Examples are when a scoundrel is defamed, or a property owner sues for a trespass that causes no harm to their land (a neighbour using the corner as a shortcut). No injured person sues for contemptuous damages, so that is clearly not what Taylor Swift was seeking, and that is not why the jury awarded her $1.00.
Nominal damages are an award given to an injured person who is unable to prove the value of their loss (or that they have any loss in the first place). They serve to denounce the conduct of the wrongdoer and, in the Ontario system, allow the Plaintiff to claim costs of the action.
Nominal damages are also pretty rare because the courts have a longstanding tradition that where there is evidence that a loss has been suffered, the court will not refuse an award of damages. This has been made even easier in Canada because a recent Supreme Court decision declared that in cases of mental injury, medical evidence may not even be required to confirm the existence of the injury. Other evidence may show that the claimant suffered a disturbance which is serious and prolonged and rises above the ordinary annoyances, anxieties and fears that come with living in civil society. In most cases involving a sexual assault, that will not be hard to prove.
So Taylor Swift likely would have had no trouble convincing a jury that she had an injury to her dignity which would allow her to recover some measure of money damages of more than a dollar. However, it was her decision to only sue for the symbolic dollar, as “an example to other women who may resist publicly reliving similar outrageous and humiliating act.” By not suing for her actual losses, she made her claim very clearly NOT a “money grab” but rather an exercise in empowerment.
It is important, however, for victims who are not as financially privileged as Taylor Swift to understand that damages in these cases may be much more than symbolic, and more than nominal. They may in fact be very substantial amounts covering not just pain and suffering, but also income loss, the cost of counselling or other care, and other losses. Though Defendants may try to suggest improper motives (the “money grab” argument), real injuries deserve real compensation.
It is also important for all Plaintiffs to remember that no matter how forgiving the courts might be about the difficulty of proving damages, an injured party must always lead enough evidence to establish that they suffered a loss, even if the exact amount may be impossible to prove with mathematical certainty.
In addition to a victory for women in proving that consent must always be obtained for sexual touching, the Taylor Swift claim is a high profile reminder of these simple takeaways about basic principles of the law of damages.