June 29th, 2015
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, with a troubling finding of contributory negligence. The Court assessed a Plaintiff partly liable for injuries sustained while being criminally assaulted by a Defendant for simply standing up to his assailant.
In today’s case (MacKay v. Jhulley) the Plaintiff was assaulted by the Defendant who struck him in the head with a one metre long metal pole. The Plaintiff suffered permanent injuries which “severely impaired” him . The Defendant was criminally convicted of uttering threats and committing an assault with a weapon.
The Plaintiff sued for damages which were assessed at just under $350,ooo but these were then reduced by 15% for contributory negligence. The negligence in question? Stepping outside of his home to confront his attacker.
Mr. Justice Kent provided the following reasons in reaching this conclusion –
 In my view, as occurred in McCaffery v. Arguello, 2014 BCSC 70, this is a case where the law requires the findings of the Provincial Court in respect of the criminal charges to have been conclusively established against Mr. Jhulley in the present civil proceeding. Those findings include that:
· Mr. Jhulley uttered threats of death or bodily harm to Mr. MacKay over the phone before driving over to the latter’s house;
· Mr. Jhulley was the aggressor throughout;
· Mr. Jhulley presented himself at the house with a metal pole in his hands and swung at Mr. MacKay several times through the front window before proceeding to the back of the home;
· Mr. Jhulley approached Mr. MacKay and struck him once on the head with a metal pole causing a wound;
· Mr. MacKay defended himself by striking the accused in the right eye area with his fist;
· Mr. Jhulley was not acting in self-defence;
· Mr. MacKay was never the aggressor, and did not have an object in his hands when he approached Mr. Jhulley, rather he was simply defending himself throughout; and
· Mr. MacKay did not carry out any sort of unprovoked assault.
 These findings are completely dispositive of the liability issues in this case, including Mr. Jhulley’s counterclaim for damages for personal injury. I find Mr. Jhulley liable to Mr. MacKay for the tort of assault and battery, and Mr. Jhulley’s counterclaim for personal injuries sustained in the altercation is dismissed.
 I would add that even if I were not bound by the findings in the criminal proceeding, I would nonetheless have made essentially the same findings on the evidence in this case. Mr. Jhulley is an unreliable and incredible witness who gave false testimony on numerous points. At his criminal trial, he admitted striking Mr. MacKay with a metal pole, albeit in claimed self-defence, but in the present trial he testified that he never laid hands on the pole at any time but rather struck Mr. MacKay with a wooden two-by-four. The evidence of the assault at the window, damaging both the curtain and the sill, is overwhelming and Mr. Jhulley’s denial that any such incident occurred is completely false. Similarly, his testimony that Mr. MacKay took a break from assaulting him to recharge himself with a snort of heroin is a complete fabrication and one so ludicrous that it beggars belief.
 There is simply no doubt that Mr. Jhulley, fuelled by a drunken rage, drove over to Mr. MacKay’s house armed with a metal pole and intent on inflicting grievous bodily harm. It is outrageous conduct for which he must be held fully responsible not only in criminal court but in these civil proceedings as well.
 Having said that, the issue of contributory fault on Mr. MacKay’s part was irrelevant in the criminal trial and it is therefore open to this Court to hear evidence and make findings on that particular issue.
 There is, however, one basis upon which contributory fault can be attributed to Mr. MacKay. The evidence establishes that Mr. MacKay was inside the house with his family when Mr. Jhulley first presented himself and swung the metal bar at the windowsill. There was no reason for Mr. MacKay to go outside and confront Mr. Jhulley in such circumstances. Indeed, common sense dictated that the safest thing to do would be to stay in the house and call the police rather than proceeding outside to confront an enraged and intoxicated Mr. Jhulley who was armed with a metal pole and seemingly intent on doing serious harm to Mr. MacKay.
 By leaving the safety of his house and presenting himself unarmed in front of Mr. Jhulley, Mr. MacKay recklessly endangered himself. Had he stayed inside, the risk of serious injury would not likely have materialized and this case would likely have gone no further than the criminal proceedings. Mr. MacKay’s disregard for his own physical safety was clearly a contributing cause of the injuries he ultimately sustained.
 In my view, however, the vast majority of fault for this incident and for the injuries sustained by Mr. MacKay lies with Mr. Jhulley. He formed the intent to inflict injury and carried out that intent in a vicious manner. Mr. MacKay, on the other hand, while perhaps acting foolishly in the circumstances, thought he was in some fashion protecting his family by confronting Mr. Jhulley. His conduct is far less blameworthy.
 In the result, I allocate fault for Mr. MacKay’s injuries 85% to Mr. Jhulley and 15% to Mr. MacKay himself.