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Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

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Posts Tagged ‘punitive damages’

Road Rage Assault Leads to $800,000 Civil Judgement

August 22nd, 2017

Reasons for judgement were published this week assessing damages for a plaintiff who sustained serious injuries following a road rage assault.

In this week’s case (McCaffery v. Arguello) the parties were involved in a road rage incident resulting in the Defendant existing his vehicle and  repeatedly striking the Plaintiff  “with the baseball bat, causing him serious but non-life-threatening injuries to his head, chest, left arm, hand, and wrist.

The Defendant was criminally convicted for his actions.  In the civil lawsuit damages of just over $800,000 were assessed with findings that the assault caused Complex Regional Pain Syndrome along with other partially disabling injuries.

In assessing non-pecuniary damages at $200,000 Madam Justice MacNaughton provided the following reasons:

[37]         Dr. Negraeff examined Mr. McCaffery on March 9, 2016 and diagnosed the following injuries:

a)    Complex Regional Pain Syndrome Type 1: Left Hand (“CRPS”);

b)    persistent headache attributed to mild traumatic injury to the head;

c)     moderate to severe sleep disturbance secondary to chronic pain and headaches; and

d)    moderate to severe mood disturbance with anxiety and depression secondary to chronic pain and headaches.

[38]         Dr. Negraeff explained the CRPS is a form of chronic pain that usually develops in a limb after an injury to it. There are two types of CRPS depending on whether a distinct nerve injury is confirmed. In the first type, there is no confirmed nerve injury and in the second, such a nerve injury is confirmed. The hallmarks of CRPS are pain which is out of proportion to the injury and a combination of symptoms that can include swelling, skin colour and temperature changes, sweating, hair and nail growth changes, and disturbances to the movement or coordination of the limb…

[45]         I conclude that at the age of 28, in the few moments in which the Incident occurred, Mr. McCaffery became a different person. The effects of the assault will redefine Mr. McCaffery for the rest of his life, both physically and psychologically. He no longer sees himself as a “big strong guy” who could do, and did, nearly everything.

[46]         Mr. McCaffery’s personality change has also affected what had been a very positive, close, and harmonious family relationship among Mr. McCaffery, his wife, and their three children. All of Mr. McCaffery’s family witnesses testified about how his symptoms have affected his relationship with Ethan, who has been most affected by his father’s personality change and physical limitations. Ethan was old enough to have experienced and remembered his father’s much more engaged and affectionate relationship with him before the Incident. Ethan misses the activities he used to do with his father and is cautious about not hurting him.

[47]         Mr. McCaffery’s continuing pain has caused sleeplessness, and his headaches are often accompanied by dizziness…

[56]         Based on all this evidence, I conclude that Mr. Arguello’s actions have caused Mr. McCaffery to suffer debilitating and disabling injuries which have had significant life-changing effects and that, as a result, he should be compensated with a substantial award of non-pecuniary damages…

[79]         Taking all these considerations into account, I have concluded that an appropriate award for Mr. McCaffery’s pain, suffering, and loss of enjoyment of life is $200,000.

The Court went on to note that punitive damages were warranted even though the Defendant was criminally convicted.  In assessing punitive damages at $30,000 the court provided the following reasons:

[122]     At para. 33 of Thomson v. Friedmann, 2008 BCSC 703, aff’d 2010 BCCA 277, referring to Whiten v. Pilot Insurance Co., 2002 SCC 18, Justice Gerow reviewed the factors a court should consider when determining whether to award, and the quantum of, punitive damages. In addition to the overall purpose of such damages, in relevant part, the factors she outlined included that:

a)    punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff, and any advantage or profit gained by the defendant;

b)    punitive damages should take into account any other fines or penalties suffered by the defendant for the misconduct in question;

c)     punitive damages should generally only be awarded where the misconduct would otherwise be unpunished or where other penalties are or are likely to be inadequate to achieve the objectives of retribution, deterrence, and denunciation;

d)    the purpose of punitive damages is to give the defendant her or his “just desert”, deter the defendant, and others, from similar misconduct, and to mark the community’s collective condemnation about what has happened. Punitive damages are only awarded when compensatory damages are insufficient to accomplish these objectives;

e)    punitive damages are awarded in an amount that is no greater than necessary to accomplish their purposes and are generally moderated; and

f)      the court should assess whether the conduct of a defendant should be punished over and above the requirement to pay non-pecuniary, pecuniary, and aggravated damages.

[123]     In this case, Mr. Arguello was prosecuted and convicted of assault with a weapon and assault causing bodily harm. He was sentenced to a six-month conditional sentence, during which for three months he was subject to a curfew, and one year of probation. At the sentencing hearing, Mr. Arguello’s criminal counsel submitted to Judge Moss that the fact that Mr. Arguello was facing a civil lawsuit for damages should be a factor in favour of a conditional sentence. In his sentencing reasons, Judge Moss considered the fact of the civil lawsuit.

[124]     The compensatory damages I have awarded are significant, but they compensate Mr. McCaffery for his actual losses and damages. In the circumstances of this case, I am satisfied that an award of punitive damages is also necessary to make it clear to the public that Mr. Arguello’s conduct departed so markedly from the ordinary standards of decent behaviour as to be worthy of further punishment.

[125]     Mr. Arguello’s decision to follow Mr. McCaffery’s vehicle for five kilometres up the Upper Levels Highway, cut aggressively in front of it, slam on his brakes and cause a collision, and then to exit his vehicle with a baseball bat with which he repeatedly hit Mr. McCaffery, cannot be countenanced in civil society where hundreds of thousands of drivers use our roads and encounter driving manoeuvres which upset or anger them. Road rage incidents are increasingly common in our busy lives and on our busy roads as drivers’ jockey for position. They cannot be tolerated.

[126]     I accept that Mr. Arguello expressed regret for the injuries he caused by his behaviour, but at the same time, he asked for consideration for the legal fees he expended to defend himself criminally and the impact of the Incident on his family. As the person determined to be fully responsible for the Incident, both criminally and civilly, his submissions indicated to me that he had not entirely understood the community’s condemnation of his behaviour.

[127]     Therefore, in addition to the compensatory damages I have ordered, I award Mr. McCaffery the sum of $30,000 in punitive damages.


Defendant Ordered to Pay $7,500 After “Body-Checking” Plaintiff During Debt Collection

June 23rd, 2016

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Defendant to pay a Plaintiff $5,000 in non-pecuniary damages and a further $2,500 in punitive damages following an assault during a debt collection.

In today’s case (Ross v. Dhillon) the Plaintiff attended the Defendant’s business to collect an outstanding business account with respect to some industrial equipment purchased by the Defendant.  The Defendant made partial payment and the Plaintiff,  unsatisfied with this, removed a part from the equipment.  As he attempted to leave the Defendant “body‑checked him into the door frame and held him against it for several seconds.”.

The Court found this incident caused a minor aggravation of pre-existing injuries the Plaintiff suffered in a collision.  In assessing damages at $7,500 Mr. Justice Smith provided the following reasons:

[20]         I therefore find that the plaintiff experienced a minor and short‑lived aggravation of his neck and back symptoms, accompanied by an equally minor and short‑lived condition that produced some numbness in his hand…

[23]         Considering the minor nature of the plaintiff’s injuries, including the brief aggravation of his previous symptoms and including a component for aggravated damages, I award the plaintiff non‑pecuniary damages of $5,000.

[24]         I also find this to be an appropriate case for punitive damages. The defendant’s conduct was willful, reckless and dangerous. While his conduct was at the low end of any scale that would measure violent conduct, no amount of violence was an acceptable response to this dispute about a relatively small debt.

[25]         In Van Hartevelt v. Grewal, 2012 BCSC 658, the court awarded $10,000 in punitive damages to a plaintiff who was beaten about the head and kicked in the ribs. The violence in this case was much less severe, and I award punitive damages of $2,500.


Punitive Damages Ordered Against Pub After Bouncer’s “Reprehensible” Beating of Patron

December 5th, 2013

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, awarding damages against a bouncer and the pub that employed him following a beating of an unruly patron.

In this week’s case (Reimer v. Rooster’s Country Cabaret Ltd.) the Plaintiff was physically removed from the Defendant pub after he tried to enter while concealing a beer in his cargo shorts.  Moments later he was “seriously beaten” by the Defendant bouncer and other individuals.   The Plaintiff suffered a variety of injuries which fortunately recovered largely without incident.  Although the Defendant bouncer was charged criminally he was acquitted at the related criminal trial.

Mr. Justice Jenkins found the bouncer liable for the damages and further found the pub vicariously liable for the assault.  In ordering the defendant’s jointly and severally liable to pay punitive damages the Court provided the following reasons:

[97]         The conduct of Mr. Turnau and Mr. Barber in particular, and to a slightly lesser extent the other security staff who either participated in the beating or stood idly by while the beating continued, was unnecessary, totally unacceptable, “high-handed, malicious, arbitrary and reprehensible” to a major degree. Further, compensatory damages in this case are inadequate to compensate Mr. Reimer. They would not provide the defendants with, as Gerow J. put it, their “just deserts”, nor would they serve the objectives of “retribution, deterrence and denunciation” of the defendants’ actions.

[98]         The assault in the parking lot was unprovoked and the entire episode should have ended with Mr. Reimer and Mr. Murchie walking out through the parking lot. It is also particularly objectionable that the beating was carried out in front of several of the patrons of Rooster’s who had proceeded outside and into the parking lot, where, as completely independent witnesses, they were exposed to incredible brutality.

[99]         Considering all of the authorities referred to me on the issue of quantum, I award a sum of $20,000 as punitive damages.

[100]     The award of punitive damages is made against both Mr. Turnau and Rooster’s, as I have found the latter directly liable in addition to being vicariously liable.


Landlord Found Vicariously Liable For Assault By Their Relative

May 10th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with the issue of vicarious liability following an assault.

In this week’s case (Van Hartevelt v. Grewal) the Plaintiff was involved in a physical altercation with the Defendant R. Grewal.  While there were competing versions of what occurred Mr. Justice Savage found that this Defendant pummelled the Plaintiff “with his fists…sending him to the ground” then “kicked (the Plaintiff) forcefully in the ribs as he lay on the floor“.

The Defendant was found liable and ordered to pay over $65,000 in damages including punitive damages.

The Defendant was the son of the owners of the Rani Lynn Apartments which is where the altercation took place.  The Plaintiff was a tenant there.  The Plaintiff also sued the owners arguing they ought to be found vicariously liable for the assault.  Mr. Justice Savage agreed and found the owners jointly and severally liable (except for the punitive damage award).  In doing so the Court provided the following reasons illustrating that vicarious liability can flow beyond a formal employer/employee relationship:

[52] I accept Mr. G. Grewal’s evidence that he did not charge family members rent while they were living at the Randi Lynn.  However, he did not charge rent to Mr. R. Grewal, and at other times other relatives living at the Randi Lynn on the expectation that they would perform services for him at the apartment

[54]As a family member receiving free rent Mr. R. Grewal was beholden to the Second Named Defendants and was expected to do their bidding at the Randi Lynn…

[64] While it is true that independent contractors will not generally attract such liability and that employees generally will, it is not the case that the employer/employee relationship is the only one that can attract vicarious liability…

[65] Therefore, the main considerations in the present case are whether the relationship was sufficiently close to justify the imposition of liability, whether the tort was sufficiently connected to the assigned tasks of the tortfeasor to be regarded as the materialization of the risks created by the enterprise, and whether the imposition of liability would satisfy the policy goals outlined in Bazley.  I answer all of these questions in the affirmative.

[66] The reason that employers are often found to be vicariously liable whereas those hiring independent contractors are not is that in the former case, the employer has created the risk and is in the best position to mitigate it.  Thus, it is both efficient and fair to impose vicarious liability.  In the present case, although it was not a typical employment relationship, the Second Named Defendants created the risk associated with Mr. R. Grewal, were or should have been aware of the risk, and were in the best position to mitigate this risk.

[67] The Second Named Defendants were aware of the violent history of Mr. R. Grewal and were aware of the recent confrontation between Mr. R. Grewal and Mr. Van Hartevelt; a confrontation that arose in the context of  Mr. R. Grewal’s role as an on-site owner representative.  As such, the risk of violent confrontations initiated by Mr. R. Grewal was caused by the enterprise of the Second Named Defendants and they were in a unique position to mitigate this risk.  They were specifically made aware of the risk by Mr. Van Hartevelt’s letter of July 12, 2006.  The fact that the Second Named Defendants did not take steps to mitigate the risk renders them blameworthy.

[68] There is also the assertion, albeit made by Mrs. R. Grewal, that the ‘owners’ of the building were entitled to enter Mr. Hartevelt’s suite.   This was made in the presence of Mr. R. Grewal.   Mr. R. Grewal, rather than correcting this misapprehension, schooled as he was in tenancy matters, remained and the events followed.

[69] In my opinion there is a sufficiently close relationship to justify the imposition of vicarious liability in this case.


$50,000 Punitive Damages Award Against LawFirm Upheld

November 26th, 2008

Reasons for judgment were released today dealing with a fee dispute between a personal injury plaintiff and his lawfirm.

The Plaintiff was involved in a serious motor vehicle collision in 1995.  The Plaintiff hired a lawyer and ultimately a $860,000 settlement was reached.

A fee dispute arose after this settlement and litigation ensued.   At trial the Plaintiff’s were granted judgement in the sum of $300,404.17 against the law firm.  This award included a punitive damages award of $50,000 finding that the law firm acted in a ‘malicious, oppressive and high-handed‘ manner to their client.

The lawfirm appealed for various grounds.  In a split decision, the BC Court of Appeal dismissed the major grounds of appeal but did reduce the over-all judgement by $27,413.58.

The award of punitive damages was based on a finding that ‘the totality of the actions and conduct of the appellant (lawfirm) in its abuse of power in its relationship with its clients, as well as in its approach to the litigation, established the need for an award of punitive damages to express the court’s disapproval of such conduct and to serve as a general deterrent

The court summarized the actions of the lawfirm as follows:

[99]            I think that any legal professional would find the conduct of the appellant in this matter to be most disquieting.  The appellant took substantial legal fees after deceiving the respondents and without addressing the position of conflict it was in.  It placed its own interests ahead of those of its unsophisticated clients.  The appellant provided inadequate supervision of Mr. Shaw with full knowledge of the requirements of the Law Society.  Instead of denouncing the obviously reprehensible conduct of Mr. Shaw and setting matters right, it sought to take the benefit of that conduct.  The appellant is vicariously liable for the conduct of Mr. Shaw and is directly liable for its own failure to take remedial action when such action was obviously called for.

The BC Court of Appeal did not disturb the trial judge’s award of $50,000 in punitive damages.

This case is worth reviewing in its entirety for anyone interested in the law dealing with contingency fee agreements and the duties of lawyers to their clients in British Columbia.