Sucker Punch in Bar Leads to $226,000 Civil Judgment Against School Teacher
Getting in a bar fight is seldom a good idea. Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, providing 226,000 reasons to think twice before doing so.
In today’s case (Thompson v. Fraser) the Defendant, who was employed as a school teacher, got into an altercation with other patrons at the lounge bar of Vancouver’s Pan Pacific Hotel. The Plaintiff, a security guard, was called to deal with the situation and proceeded to escort the Defendant out. The Defendant then “sucker-punched the plaintiff in the face, badly and permanently damaging the bony structure around his left eye.“. The court described it as “a thoroughly disgraceful incident.”
The Defendant was criminally charged and convicted of assault causing bodily harm. The criminal consequences were “extremely lenient” with the imposition of a mere conditional discharge. Mr. Justice Baird, presiding over the civil suit, opined “part of the reason for this, I have no doubt, was the understanding that eventually he would have to answer for his misconduct in a civil lawsuit and, in all likelihood, pay the plaintiff a sizeable sum in damages.”
The assault caused serious injury requiring”metallic gear fused into his facial bones that causes him significant pain and discomfort when it is cold outside. There is a screw directly beneath his left eye that he can feel with his finger and causes a great deal of pain on incidental contact.“.
In assessing global damages at $266,000 including $10,000 for aggravated damages Mr. Justice Baird provided the following reasons:
 The plaintiff is seeking a measure of compensatory damages that I consider to be modest in all of the circumstances. He has asked for an award of $50,000 for non-pecuniary damages, and the defendant made no argument against it. I will make that order, and grant him the requested additional award of $10,000 in aggravated damages for ongoing pain, distress and embarrassment resulting from the defendant’s high-handed and outrageous conduct: see Vorvis v. Insurance Corp. of British Columbia,  1 S.C.R. 1085; Huff v. Price,  B.C.J. No. 2692 (B.C.C.A.).
 A claim for what is often described as “past loss of income” is actually a claim for loss of earning capacity; that is, a claim for the loss of the value of the work that the injured plaintiff would have performed but was unable to perform because of the injury: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30.
 The assessment of past earning capacity involves a consideration of hypothetical events. When determining what would have happened but for the injury, the plaintiff need not prove the past event on a balance of probabilities. Rather, the hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation. If the plaintiff establishes a real and substantial possibility, the court must then determine the measure of damages by assessing the likelihood of the event: Grewal v. Naumann, 2017 BCCA 158 at para. 48. Allowances must be made for the contingency that the assumptions upon which an award is based may prove to be wrong: Falati v. Smith, 2010 BCSC 465 at para. 41, aff’d in 2011 BCCA 45.
 I have no difficulty with the plaintiff’s general method of calculating pretrial loss of income earning capacity. He has asked to be compensated in the amount of $6,329.60 for the two months after the assault when he was totally incapable of working as security guard. He makes no claim for 2009 or 2010 because he had strong earnings in those years and no provable losses. However, from 2011 to 2017 inclusive, while he was working part-time to put himself through university, he made a lot less money than he would have done as a member of the RCMP, which I find is likely what he would have been doing if not for the injuries caused by the defendant’s assault.
 According to RCMP salary classifications provided to me in the form of admissions, the difference in what the plaintiff actually earned from 2011 to 2017 and what he would have earned as an entry-level RCMP recruit over the same period, combined with the lost security guard income from 2008, comes to $184,330. Defence counsel urged a reduction based on the contingency that the plaintiff might not have been recruited, or that the process would have taken longer than planned. I acknowledge that nothing is certain in life, and that it would be fair to reduce the award sought by a small amount to account for this. My award under this heading is $166,000.
 I decline to order punitive damages. The defendant has taken responsibility for his behaviour by pleading guilty in criminal court and admitting liability in this lawsuit. He is now obligated to compensate the plaintiff in damages, including aggravated damages, which added together will sufficiently achieve the goals of punishment and deterrence: Hill v. Church of Scientology of Toronto,  2 S.C.R. 1130 at para. 196.