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Baseball Bat Beating Leads to $7 million Damage Assessment

In a tragic case reasons for judgement were published by the BC Supreme Court, Kamloops Registry, assessing damages in a personal injury lawsuit at nearly $7 million following a baseball bat attack.

In the recent case (Simpson v. Teichrieb) the Defendant “savagely battered” the teenage plaintiff with a baseball bat leaving him with “a catastrophic brain injury, have left Jessie requiring constant care and eliminated any prospect of employability.“.

At the time of the assault the plaintiff was 18 years old, 5’5” in height and weighed about 135 pounds. The defendant was 39 years old, 6’0” tall and weighed about 220 pounds.  The Plaintiff was in the Defendant’s yard and the Defendant was concerned about possible theft.  He beat the plaintiff nearly to death resulting in “a severe skull fracture and significant brain swelling. He had facial fractures and a notable bruise to his lower back in the shape of a baseball bat.”.

The Defendant was criminally convicted and sentenced to prison.

The bulk of the assessed damages reflect estimates of a lifetime of lost earnings and future care.  In assessing non-pecuniary damages at Canada’s current rough upper limit of $393,000 Mr. Justice Dley provided the following reasons:

[18]         The purpose of an award for general damages is to make life more bearable and to provide reasonable solace for intangible losses: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 262. The assessment of general damages must be specific to the circumstances of the particular plaintiff. The manner of assessment was set out in Lindal v. Lindal, [1981] 2 S.C.R. 629 at 637:

Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual’s loss is the key and the “need for solace will not necessarily correlate with the seriousness of the injury”. In dealing with an award of this nature it will be impossible to develop a “tariff”. An award will vary in each case “to meet the specific circumstances of the individual case” (Thornton at p. 284 of S.C.R.).

[19]         General damages may also include an amount for aggravated damages. Aggravated damages are awarded where a defendant’s conduct was high-handed, malicious, insulting or oppressive: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 183.

[20]         In S.Y. v. F.G.C. (1996), 26 B.C.L.R. (3d) 155 (C.A.) , the Court indicated that generally, aggravating features are taken into account when non-pecuniary damages are assessed and cautioned that aggravated damages must not be conflated with punitive damages:

[35]      I begin by noting that general damages in most cases are assessed taking into account any aggravating features of the case. Those aggravating features may increase the amount awarded. Aggravated damages must be distinguished from punitive damages: Norberg v. Wynrib (1992), 68 B.C.L.R. (2d) 29 at 54 (S.C.C.).

[36]      In my opinion aggravated damages are not a separate head of damages. They are a part of general damages. Juries ought not to be instructed as if they are a separate category of damages, particularly in cases of sexual abuse where it is difficult to separate the physical harm, which is often of much less significance than the fright, misery and humiliation connected with it, and the continuing mental suffering from it.

[21]         Jessie has been under the care of Dr. Cribb since March 2018. She provided a report dated October 13, 2020 that outlines Jessie’s current condition. Dr. Cribb notes that while Jessie has made some progress, he “remains, essentially, fully dependent on others for all his care needs, and activities of daily living”. She concluded that further improvements would be minimal and that Jessie would likely need ongoing full-time care.

[22]         Jessie was 18 years old at the time of his injuries. He has been robbed of the ability to lead a normal life and is now unable to enjoy the amenities of life that he would reasonably have expected. He was a young man about to embark on the post-graduation challenges and experiences of life. Those are forever gone. Instead, he is now forever dependent on others to perform the basic necessities of life.

[23]         I have considered the factors to consider in an assessment of non-pecuniary damages as set out in Stapley v. Hejslet, 2006 BCCA 34 at paras. 45–46. I have also been guided by the comments and analysis in the following cases:

a)    Spehar v. Beazley, 2004 BCCA 290;

b)    Wilhelmson v. Dumma, 2017 BCSC 616;

c)     Chow v. Hiscock, 2005 BCSC 1933;

d)    Saether v. Irvine, 2011 BCSC 1497; and

e)    Knight v. Knight, 2014 BCSC 1478.

[24]         In addition to non-pecuniary damages, the plaintiff seeks an award for aggravated damages. The plaintiff submits that the degree and severity of violence injured Jessie’s dignity as a human being and is therefore deserving of aggravated damages

[25]         In the circumstances, I am satisfied that the award for non-pecuniary damages at the rough upper limit takes into account the aggravating features of this case. To award aggravated damages as a separate head of damages would be a duplication of an award already accounted for. Accordingly, the claim for aggravated damages as a separate head of damages is dismissed.

[26]         I conclude that Jessie is entitled to non-pecuniary damages, adjusted for inflation, at the rough upper limit in the amount of $393,000.00.

bc injury law, Cost of Future Care, Justice Dley, Mr, Rough Upper Limit, Simpson v. Teichrieb