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Punitive Damages Ordered Against Pub After Bouncer's "Reprehensible" Beating of Patron

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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.

Disbursement Interest Claim Fails for Lack of Evidence Proving Necessity

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While the law in BC presently does allow interest on disbursements to be recoverable in the right circumstances, a prerequisite for recovery is an evidentiary foundation proving that it was necessary to incur the interest claimed.  Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry (Babb v. Doell) rejecting such a claim due to a lack of evidence.  In reaching this decision Master McDiarmid provided the following reasons:
[11]         A claim for interest by a party entitled to costs might in some circumstances be characterized as necessary, for example, in a situation where the incurring of disbursements such as filing fees or daily hearing fees could only be done by obtaining some funding. Interest could also be a proper disbursement when it was reasonably incurred in the conduct of the proceeding even if, strictly speaking, avoidable. In Franzman, evidence was led which satisfied me that the disbursement interest which the plaintiff agreed to pay to her lawyers as part of a fee agreement was proper and I allowed, as a disbursement, the amount of interest calculated at 6%.
[12]         Most written retainer agreements contain provisions for payment of interest on unpaid accounts. Many retainer agreements contain provisions which are binding as between lawyer and client, for the payment of some disbursements at a rate higher than the rate allowed by registrars when assessing party/party costs. Even in contingency retainer agreements, plaintiffs often agree to and have the means to pay disbursements and do so.
[13]         Unlike in Franzman and in Chandi (Guardian ad litem) v. Atwell, 2013 BCSC 830, the decision relied on by the plaintiff, there is no evidence before me to assist in me establishing either the necessity or the propriety of the plaintiff’s claim for interest.
[14]         As noted above, the onus of proving either the necessity or propriety of disbursements is on the party claiming those disbursements. Absent such evidence, I am unable to make a determination that the interest claimed was either necessary or proper. Accordingly, the claim by the plaintiff for interest is denied.

Mathematical Aids Should Not Be Ignored When Assessing Diminished Earning Capacity

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Reasons for judgement were released today by the BC Court of Appeal addressing the proper role of mathematical evidence in assessing damages for diminished earning capacity.
In today’s case (Jurczak v. Mauro) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff was awarded $110,000 in past wage loss at the time of trial for a period that spanned over 6 years.  The Court awarded a figure modestly above this for future losses despite findings that the Plaintiff would be limited for the duration of her working career, some 20 more years.  The Plaintiff appealed arguing the trial assessment was inordinately low.  The BC Court of Appeal agreed and substituted a substantially greater figure.  In addressing the proper role of mathematical/statistical evidence in diminished capacity assessments the BC Court of Appeal provided the following reasons:
[36]        This process is “an assessment rather than a calculation” and “many different contingencies must be reflected in such an award”: Barnes v. Richardson, 2010 BCCA 116 at para. 18. “Ultimately, the court must base its decision on what is reasonable in all of the circumstances. Projections, calculations and formulas are only useful to the extent that they help determine what is fair and reasonable”: Parypa v. Wickware, supra, at para. 70.
[37]        With that said, if there are mathematical aids that may be of some assistance, the court should start its analysis by considering them. For example, in Henry v. Zenith (1993), 31 B.C.A.C. 223 at paras. 44-48, 82 B.C.L.R. (2d) 186 (C.A.), this Court held that a trial judge’s failure to consider an economist’s projections of a plaintiff’s lost future earning capacity contributed to the judge committing an error in principle, which “resulted in a wholly erroneous estimate of the damages”.
[38]        In cases where the future is hard to predict, a global approach to assessing the loss of future earning capacity is preferable. However, in this case, given the trial judge’s findings of fact, the future is not hard to predict. Ms. Jurczak intended to become a DIR consultant prior to her injuries and because of those injuries she can only work 15 hours per week. The trial judge found as fact that if she was physically able to work 23 hours per week, there was sufficient demand for her skills that she would be able to bill for those hours.
[39]        Additionally, the award for loss of future earning capacity is supposed to compensate Ms. Jurczak for the next 20 to 22 years but is only $10,000 higher than the award for past wage loss.
[40]        In my view, there is a reversible error in the trial judge’s assessment of future loss of capacity. The trial judge’s award bears no correlation to the award for past income loss; nor does it accord with the trial judge’s findings regarding the effect of her injuries on her future ability to work
[41]        Ms. Jurczak does not dispute the trial judge’s findings of fact. Rather, she maintains the trial judge offered no explanation as to why he departed so significantly from the findings in the economist’s report, which he appeared to accept as credible and reliable. Her argument is premised on the assumption the trial judge pulled the figure of $120,000 out of thin air, without having regard to the economist’s calculations.
[42]        It is obvious from the trial judge’s analysis and reasoning that he rejected a purely mathematical approach to calculate Ms. Jurczak’s loss of a capital asset. Instead, it appears he followed the approach in Brown v. Golaiy and awarded Ms. Jurczak $120,000. While the award represents two to three times Ms. Jurczak’s average earnings before the accident and almost double her annual earnings afterwards, the amount has no foundation in the evidence.
[43]        The trial judge was entitled to reject a mathematical approach in the circumstances of this case. However, given his factual findings, in my view the award for loss of future earning capacity is so inordinately low as to amount to an error.
[44]        Having regard to the award for loss of future earning capacity or $110,000 representing a 6 year loss, and considering Ms. Jurczak has about 20-22 years to age 65 and possible retirement, I would increase the award for loss of future earning capacity to $400,000.

My 2013 Clawbie Nominations

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What’s a Clawbie?  You can click here for a lengthy explanation, or if you want to skip all that pesky reading what you really need to know is that Clawbies are annual law blog awards handed out following a top secret meeting between Steve Matthews, Jordan Furlong and Simon Fodden.  I don’t know what all goes on there but suspect it may involve drawn straws or sizable kickbacks.  Whatever the deal I know it’s not all shady business as these legal power mongers must select their winners based on peer endorsements.  Here are mine for 2013 –
1. Eric Turkewitz’s New York Personal Injury Law Blog – I know, Turkewitz isn’t Canadian.  New York’s close enough though right?  Eric gets the nod as he is a personal injury lawyer who has been in the law blogging business as long as anyone.  Additionally he avoids the usual sins of personal injury law blogs such as self promotion and mind numbing key word spamming.  On top of this he stays current and has remained interesting over the years.  Plus his first name is kind of like mine.  Well done Eric.
2.  Eric Macramalla’s OffSide Sports Law Blog – okay, this guy is Canadian and his name is also like mine. If that isn’t enough he also qualifies based on merit with timely articles of interest on all things sports law.
3.  Last but not least I nominate David Bilinsky’s ThoughtfulLaw Blog.  I’ve said it before but David was a strong influence behind the launch of this blog back in 2008.  For this reason alone David gets my annual nod.  Plus his site looks kind of barren with no 2012 Clawbie recognition so the power brokers would be wise to fill the void in 2013 or risk being paid a friendly ‘visit’ by my Canadian MMA Law Blog to remind them what’s good for them.
Happy nominating everyone!

Government Scoops Additional $137 Million From ICBC's Coffers

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While ICBC actively seeks a rate  hike from BC motorists the government continues to raid the Crown corporation’s coffers.
As previously reported, the 2013 BC Government budget anticipated scooping a total of $257 million from ICBC in 2013.  The BC Government’s Second Quarterly Report has now been released and reveals that “The outlook for commercial Crown corporation net income is up $91 million mainly reflecting an increase in ICBC net income due to improved investment returns.”
In fact by the end of September 2013 the Government already scooped $137 Million more than projected from ICBC.  There can be no delusions that ICBC is, has been and is expected to continue to be financially profitable.  If the government left those profits intact there would be no need for a hidden tax hike in the guise of increased insurance premiums.  Here is the raw data:
 

$48,000 Non-Pecuniary Assessment for C5-6 Disc Herniation

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Adding to this site’s archived case summaries addressing C5/6 disc injuries, reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, addressing such an injury.
In this week’s case (Levens v. Lehman) the Plaintiff was injured in a rear end collision.  She had pre-existing neck and back pain.  The collision caused a herniated disc which remained symptomatic at the time of trial and had a 50% likelihood of needing future surgical intervention.  In assessing non-pecuniary damages at $48,000 Madam Justice Hyslop provided the following reasons:
[105]     I have concluded, based on all of the medical evidence and the evidence of Ms. Levens, that as a result of the accident Ms. Levens suffered a herniated disk as seen in the MRI ordered by Dr. Singh in 2011.
[106]     I also conclude that Ms. Levens, due to her pre-existing condition, was more susceptible to a disk herniation as a result of the degenerative changes in her cervical spine.
[107]     I further conclude that Ms. Levens’ back injury was due to myofascial pain which put her into the hospital in November of 2009. Ms. Levens has spinal stenosis in her back unrelated to the accident which was aggravated by the accident. As a result of the accident, I conclude, for about a year, Ms. Levens had additional pain that she would not have had but for the accident…
[144]     At the time of the accident, Ms. Levens was 65 years old and at the time of the trial was age 69. Her most significant injury is the disc herniation in her neck. The pain has been severe. The myofascial pain and arthritis in her back would have been ongoing and not related to the accident. The motor vehicle accident caused increased pain which landed her in the hospital.
[145]     She is disabled as she does not always have a full ROM in her neck. She has been unable to engage in some of her recreational and sporting activities that she engaged in prior to the accident.
[146]     In coming to the amount of her non-pecuniary damages, I take into consideration that Ms. Levens had a pre-existing condition in her neck which was described by Dr. Singh as “the car accident did cause the final blow to the patient’s disc bulging at a spot that was already weak and had some problems previously.”
[147]     I award the plaintiff $48,000.00 in non-pecuniary damages.

Realtor Fee Recovery Discussed Following Collision Related Change of Residence

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If you are injured in a collision and sell your house for more suitable accommodations can the realtor commission fees be claimed as damages?  Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry addressing this.
In this week’s case (Brown v Bevan) the Plaintiff was injured in a 2009 intersection collision.  The Defendant was found fully at fault.  The Plaintiff suffered various injuries which continued to impact her at the time of trial.  She ultimately sold her multilevel townhouse and moved into a one level apartment.  The Plaintiff moved in part because she struggled walking up and down the stairs in her former residence.  She sought damages for the realtor’s commission charged in the sale arguing that this expense was incurred due to the collision.  In refusing these damages Mr. Justice Weatherill provided the following reasons:
[180]      The largest and only disputed item is the claim for $33,801.79 representing the net commissions on the sale of the plaintiff’s Gilford Street town home ($20,680), storage ($599.55), costs associated with purchasing the Homer Street property including Property Purchase Tax ($10,458.08) and moving costs ($2,064.16).
[181]     The issue is whether the costs related to moving are reasonable expenses that can be claimed. But for her injuries and resultant difficulty she had negotiating the stairs inside and outside of home, the plaintiff argues she would never have sold, moved and incurred those expenses. She relies on Rodger v. McDowell, [1994] B.C.J. No. 2009 and Piper v. Hassan, 2012 BCSC 189…
[185]     In Rodger, an award for commission expenses was made in similar circumstances where a plaintiff moved from a two level home to a one level home. The basis of the award is unclear. It apparently was based on defence submissions that “Ms. Rodgers would be adequately and appropriately compensated if she is reimbursed for real estate commission and moving expenses.”
[186]     In Piper, a claim for real estate commissions, moving costs and taxes related to changing residences was dismissed because the plaintiff’s low back injury was not proven to have been caused by the motor vehicle accident.
[187]     In this case, the plaintiff argues the expenses associated with changing residences are directly attributable to the collision and the plaintiff’s prolonged distress from having to use multiple stairs in the Gilford residence on a daily basis. She could not manage them and a move to a single level home was necessary.
[188]     In my view, these expenses are not recoverable from the defendant because:
a.       the principles of compensatory damages in tort require the plaintiff to be compensated for all reasonably foreseeable losses directly or indirectly caused by the tort (BG Checo International Ltd. at para 47);  
b.       the plaintiff is not to be placed in a position better than his or her original one. The court must determine the plaintiff’s “original position” before the tort and her “injured position” after the tort. It is the difference between these two positions that is the plaintiff’s loss (Athey at para 32).
[189]     While the accident indirectly caused the plaintiff’s left heel pain and that moving residences was a foreseeable risk, on the Athey test, the plaintiff’s claim under this head must fail. I find that the plaintiff would have moved residences to a one story home in the future in any event. These expenses would have been incurred regardless, albeit sooner (perhaps a year or two) than otherwise expected. In other words, these expenses were not incurred “but for” the collision.

Lack of Doctor's Affidavit Thwarts Independent Medical Exam Application

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While the BC Supreme Court does have the ability to compel a Plaintiff to attend a defence medical exam a proper evidentiary foundation must be established before the Court will be prepared to exercise this power.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dismissing an application due in part to a lack of evidence from the proposed physician.
In last week’s case (Rathgeber v. Freeman) the Plaintiff was injured in a collision and sued for damages and also sought Part 7 benefits from ICBC.  ICBC sent the Plaintiff to an independent medical exam with an orthopedic surgeon who provided a report addressing the Plaintiff’s injuries.  Some four years later the tort claim was still ongoing and the Defendant brought an application for a further exam with the same physician.  The Court dismissed this noting that the previous exam covered tort issues and even if there was a change of circumstances making a further report necessary there was nothing in the evidence justifying a further physical examination.  In dismissing the application the Court provided the following reasons:
[23]         In some respects, Dr. Kousaie’s November 9, 2009 report “resembles” a report in a tort claim. The doctor sets out his qualifications, for example, as well as facts and assumptions. He includes details of the accident, the plaintiff’s recreational history and comments on the possibility of academic impairment. He indicates that the examination involved a comprehensive physical examination. Those aspects of the report appear to be more consistent with a comprehensive report prepared to address the plaintiff’s complaints in a tort action.
[24]         On the other hand, the report is now four years old and while Dr. Kousaie makes reference to the neck injury, he appears to have focused on low back pain as the plaintiff’s major complaint at the time of his 2009 assessment. Dr. Kousaie’s review of the then available imaging and x-rays did not indicate any trauma to the spine although some minor disc bulges were noted in the lumbar area.
[25]         More recent assessments, and that of Dr. Twist in particular, suggest an increasing focus on the neck injury and indeed the CT scan referred to earlier shows a small circumferential disc bulge in the cervical spine, a condition not evident at the time of Dr. Kousaie’s first examination.
[26]         Taking a holistic view of the circumstances, Dr. Kousaie’s 2009 report is comprehensive and to some extent addresses issues more relevant to a tort claim than a Part 7 claim. The results of the CT scan and the shift in focus to the plaintiff’s neck injury, however, are issues which the defence may need to address. There is, however, nothing in the evidence before me to show why a further examination, rather than a review of the available materials by Dr. Kousaie or some other qualified specialist, is necessary to achieve reasonable equality with respect to medical evidence. While I do not wish to be taken as suggesting that the proposed examiner should, in all cases, provide an affidavit with respect to the necessity for a further examination, such an affidavit would have been of significant assistance to me in this case.
[27]         On the basis of the material before me, the application is dismissed.

Occupier's Liability Claim Dismissed After Slip and Fall On a Well Used Short Cut

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BC law requires ‘occupiers’ to take reasonable steps for the safe use of their property.  The law does not require a standard of perfection as was demonstrated in reasons for judgement released this week by the BC Court of Appeal.
In this week’s case (Dandell v. Thompson Rivers University) the Plaintiff slipped and fell while walking down an “icy pathway into a grassy snow-covered hill” while walking to class.  He chose this path despite the availability of a “convenient and well-maintained sidewalk leading right to the place where he was going“.
The Plaintiff suffered severe fractures to his leg and ankle.  He sued for damages arguing that the University was at fault because they knew this shortcut was being used and that it posed a danger.  The case was dismissed at trial and the BC Court of Appeal upheld the dismissal finding that the University acted reasonably.  In reaching this conclusion the BC Court of Appeal provided the following reasons:
[4]             The building Mr. Dandell was going to when he fell opened in 1997.  It is adjacent to a roadway.  The sidewalk alongside runs parallel to the building and then cuts back slightly in a V-shape leading down to the ground level entrance.  Instead of following the sidewalk into the building, many students would cut the corner, as it were, by walking down one of the pathways worn into the grassy hill from various points at the top.  They saved 11 seconds in walking time.  The practice was ongoing year round with the incumbent risk in winter conditions that someone would slip and fall.  This was evident to the university’s administration, although there had never been a report of an injury.  Mr. Dandell had seen students using the shortcut in winter conditions lose their footing, but it did not cross his mind he might fall and be injured.  In hindsight he was, by his own candid admission, “thoughtless” in regard to his safety.  He chose to walk down what was a visibly icy slope instead of using a cleared sidewalk and, near the bottom, he fell…
[11]         I am unable to accept Mr. Dandell’s contention that, by virtue of what was said in Waldick, the university was, as a matter of law, required to eliminate the risk of a student being injured as he was.  InWaldick, the court was concerned with an injury that occurred as a consequence of an occupier’s failure to provide any safe access to a home.  The only access at the time of the incident in question was icy, slippery, and covered with a dusting of snow.  No one could access the home without being exposed to a risk of the injury that was suffered.  As is made clear in the passage quoted above, the legislation requires positive action to remove or minimize the risk of injury, not in every instance but where the circumstances warrant.  It is the circumstances in any given instance that govern what the occupier must do to take reasonable care to see that those on the premises will be reasonably safe.
[12]         Here there was a well-maintained access to the building the university intended students like Mr. Dandell to use rather than taking the shortcut.  It would have taken him only 11 more seconds.  Far from being arguably irrelevant, the university’s positive action to maintain a safe access to the building was clearly a proper and significant factor in the judge’s application of the legal standard of reasonableness in all of the circumstances. 
[13]         The trial decisions Mr. Dandell cites to support his contention that an alternative access is not necessarily conclusive of the occupier’s duty having been discharged appear to me to be instances where the risk of injury, or the alternative access, although known to the occupier, was not apparent to the person injured.  Kinnear v. Canadian Recreation Excellence (Vernon) Corp. (February 24, 2011), Vernon Docket 39746 (B.C.S.C.), is an example of an alternative access (40 seconds longer) being largely conclusive of the proper discharge of an occupier’s duty in circumstances somewhat similar to those leading to the injury Mr. Dandell suffered.  The existence of an alternative access, like the extent to which the risk taken was apparent, must be a part of all the circumstances to be considered in applying the legal standard in any given case where a choice of access – one safe, the other not – is made.