Civil Damages for Intentionally Inflicted Injuries: BCCA discusses "Self Defence" and "Provocation"

Not many cases for damages as a result of intentionally inflicted injuries make their way through the BC Courts.   The main reason is that Defendants usually are not insured for damage claims for harm caused by their intentional actions.  When a Plaintiff sues a Defendant for intentionally inflicted injuries collecting on the judgement can sometimes lead to a dead-end.  (These are called ‘dry judgements’ and you can click here to access a previous article on this topic).
Although these cases rarely proceed to trial the law is straightforward, if someone causes injuries to you by intentionally applying force you can sue for your damages for the “battery“.  A few defences to a lawsuit for damages from battery can be raised and these include self defence and provocation.   Reasons for judgement were released last week by the BC Court of Appeal addressing these areas of law.
In last week’s case (Friedmann v. Thomson) the Plaintiff claimed damages as a result of an assault and battery committed by the Defendant.  The Defendant apparently struck the Plaintiff with an aluminum baseball bat.  The Plaintiff succeeded at trial with the Judge finding that “(the Defendant) came at (the Plaintiff) with the bat, and she turned away and he hit her on the back“.
The Court awarded the Plaintiff $27,276 for her injuries and losses.  The Defendant appealed arguing that the trial judge incorrectly applied the law of Self Defence and Provocation.  The BC Court of Appeal disagreed and upheld the award for damages.  In reaching this conclusion the BC High Court provided the following useful summary of the principles of self defence and provocation in Civil Lawsuits for damages from intentional assaults/battery:

[10]         The test that Mr. Friedmann had to meet at trial is set out in Mann v. Balabass, [1970] S.C.R. 74:

In an action for assault, it has been, in my view, established that it is for the plaintiff to prove that he was assaulted and that he sustained an injury thereby. The onus is upon the plaintiff to establish those facts before the jury. Then it is upon the defendant to establish the defence, firstly, that the assault was justified and, secondly, that the assault even if justified was not made with any unreasonable force and on those issues the onus is on the defence.

[11]         The trial judge carefully considered all of the evidence. There is nothing to suggest that she did not consider the totality of the circumstances confronting Mr. Friedmann when he said he was acting in self-defence. The ultimate focus was on the point of the assault on Ms. Thomson. By that time, she had indicated that the dispute was over, she had turned to leave, and Mr. Friedmann struck her. Central to the trial judge’s finding was that the earlier events, by that time, did not give rise to a reasonable apprehension by Mr. Friedmann that he would be assaulted.

[12]         Nor, in my view, can it be said that the circumstances amounted to provocation such as to cause Mr. Friedmann to lose his power of self-control. A.M. Linden, Canadian Tort Law, 6th ed. (Vancouver: Butterworths, 1997) at 81 states:

In order to amount to provocation, the conduct of the plaintiff must have been “such as to cause the defendant to lose his power of self-control and must have occurred at the time of or shortly before the assault.”  Prior incidents would have relevance only “if it were asserted that the effect of the immediate provocative acts upon the defendant’s mind was enhanced by those previous incidents being recalled to him and thereby inflaming his passion”. One cannot coolly and deliberately plan to take revenge on another and expect to rely on provocation as a mitigating factor.

[13]         Mr. Friedmann did not testify that he lost control and, even if he had, it is apparent that his testimony would not have been accepted. The trial judge did find, and was no doubt correct, that Mr. Friedmann was “in a rage”. That, however, does not necessarily equate to the loss of control amounting to provocation. Further, it is clear that, from Mr. Friedmann’s perspective, he held a degree of resentment toward the people milling about what he regarded as his private space. He did not call the police at any time. He was found by the trial judge to have hit Ms. Thomson because in his view she deserved to be hit.

[14]         In my opinion, to accede to the appellant’s arguments of provocation would give the principle a far too expansive meaning.

[15]         Notwithstanding Mr. Mackoff’s very able submissions, I would dismiss the appeal with costs to the respondent.

Assault, Battery, Friedmann v. Thomson, Intentional Torts, Lawsuits for intentionally inflicted injuries, Provocation, Self Defence

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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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