$650,000 Damage Assessment Following Assault and Battery

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, ordering two defendants to pay over $650,000 in damages following an unprovoked attack.

In this week’s case (Andrews v. Shelemey) the Plaintiff alleged that the Defendants “came to his residence on August 3, 2015, as a result of a dispute concerning a transmission repair that Mr. Andrews had completed on Mr. Shelemey’s vehicle in late 2014 or early 2015. He says that without provocation, Mr. Shelemey and Mr. Leveque wrongfully and intentionally assaulted him resulting in serious injuries including a fractured sternum, soft tissue injuries to his back, rib fractures, a fractured lumbar vertebra, a broken tooth and various lacerations, bruises and contusions.”.

Despite the defendants denying fault the court found the unprovoked attack took place and held the Defendants jointly and severally liable to pay the damages.  In reaching this decision Mr. Justice Mayer provided the following reasons:

[44]         I find that Mr. Shelemey lied about when and why he sought out Mr. Andrews on August 3, 2015 in order to downplay the nature of the confrontation with Mr. Andrews which occurred that afternoon. I find that the confrontation occurred when Mr. Leveque and Mr. Shelemey attended at Mr. Andrews residence unannounced to coerce him to pay Mr. Shelemey for one or both of the amount Mr. Shelemey believed he had overcharged for the transmission repair, or, for the cost of the oxygen cylinder charged to his account by Mr. Andrews.

[45]         With respect to the circumstances of the altercation, I prefer Mr. Andrews’ evidence. I find the evidence of Mr. Leveque and Mr. Shelemey that Mr. Andrews ran at Mr. Shelemey to be false. I accept Mr. Andrews’ evidence that after Mr. Shelemey signalled for him to do so, Mr. Leveque put his arm around Mr. Andrews’ neck to restrain him, that Mr. Shelemey then took Mr. Andrews’ cell phone and threw it off the balcony, that the group fell to the ground, that Mr. Shelemey grabbed and jerked Mr. Andrews legs and demanded that Mr. Andrews pay him money, and that Mr. Leveque continued to choke Mr. Andrews until he lost consciousness. I find that Mr. Andrews was intentionally either kicked or punched by Mr. Leveque or Mr. Shelemey, either before or after he lost consciousness. I find that Mr. Andrews did not consent to this physical contact…

[123]     I am satisfied that Mr. Leveque and Mr. Shelemey acted in common in committing the battery against Mr. Andrews on August 3, 2015. At a minimum, Mr. Leveque choked Mr. Andrews, held him as they fell to the ground, and continued to choke him until he passed out. Although it is not clear who struck the blows which caused Mr. Andrews’ injuries, it is clear that both defendants had a role. As a result, and pursuant to s. 4(2) of the Negligence Act, R.S.B.C. 1996, c. 33, I find Mr. Leveque and Mr. Shelemey jointly and severally liable for the damages sustained by Mr. Andrews.

[124]     The defence of volenti non fit injuria was plead but not argued in this case. I do not find that this defence applies in the circumstances. That is, in no way did Mr. Andrews consent to the battery to which he was subjected. This was not in my view a hullabaloo which simply got out of control.

[125]     I award Mr. Andrews damages, payable by the defendants on a joint and several basis, as follows:

Non-pecuniary damages: $100,000
Damages for past wage loss $207,000
Damages for loss of future earning capacity $300,000
Special damages $    8,546
Cost of future care $    2,160
Aggravated damages $  10,000
Punitive damages $  25,000
TOTAL: $652,706

 

Andrews v. Shelemey, Assault, Battery, bc injury law, Joint and Several Liability, Mr. Justice Mayer

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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