Tag: Assault

BC Bullying Law – Unique Issues With Limitation Periods

A little appreciated fact are the broad timeframes at play when certain individuals can sue their abusers for either sexual or physical abuse.

For many years BC has had no limitation period for claims relating to sexual assault.  Whether the victim is a minor or an adult a lawsuit can be brought at any time against their sexual assailant. In cases without actual sexual assault but that amount to “misconduct of a sexual nature” there also is no limitation period if the victim was a minor at the time of the misconduct.

But what about cases of physical assault with no sexual nature?  Historically these were subject to the limits set out in BC’s Limitation Act.  However, in 2013 changes to the Act came into force which removed limitation periods for certain victims of non sexual abuse.

Section 3(1)(k) came into force and removed limitations for lawsuits based on

(k)a claim relating to assault or battery, whether or not the claimant’s right to bring the court proceeding was at any time governed by a limitation period, if the assault or battery occurred while the claimant

(i)was a minor, or

(ii)was living in an intimate and personal relationship with, or was in a relationship of financial, emotional, physical or other dependency with, a person who performed, contributed to, consented to or acquiesced in the assault or battery;

The broad section gives the right for children to sue their abusers at any time.  It also expands this right to those in financially, emotionally or physically dependent relationships with their abusers.

Assault and battery are legally simple concepts.  Battery simply refers to the unwanted application of intentional force.  Assault is the threat of the application of such force.  Anyone perpetrating these wrongs to vulnerable victims can be pursued at any time to be made accountable for their wrongdoing.  This expanded limitation period was discussed in a case published earlier this year by the BC Supreme Court.

In Khan v. School District No. 39 the Plaintiff sued for various historic allegations of harm.  In discussing those that were and were not statute barred Mr. Justice Majawa provided the following comments on the current state of the Limitation Act:

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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:

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Soccer Player Sentenced Following On-Field “Sucker Punch” Leading to Assault Conviction

Both civil and even criminal repercussions occasionally arise following recreational and even professional sporting assaults in Canada.  Reasons for sentencing were published this week by the BC Provincial Court highlighting a case of the latter.

In this week’s case (R v. Miletic) the Defendant sucker punched a fellow competitor during an adult league recreational soccer game in New Westminster, BC.  The punch “broke the victim’s orbital bone and caused him negative longer-term effects“.  At trial the Defendant was convicted of assault causing bodily harm.

The Court summarized the circumstances of the offence as follows:

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RCMP Constable Ordered to Pay $55,000 Following Wrongful Detention

Reasons for judgement were published today by the BC Supreme Court, Smithers Registry, ordering an RCMP constable and the crown to pay $55,000 in damages to a Plaintiff who was injured during a wrongful detention.

In today’s case (Joseph v Meier) the Plaintiff was shopping at a retail store when another woman shopping in the same area of the store put a scarf into her bag and then, when confronted, threw the scarf to the floor and fled.  The plaintiff, who was elderly with limited mobility, continued shopping.  The store manager mistakenly believed the two women were together and had the police called.

When the Defendant RCMP constable confronted the plaintiff she “refused to stop or provide information to him. She repeatedly told him that she had done nothing wrong and did not need to talk to him” .  He took her to the ground and attempted to handcuff her while she resisted.  The Plaintiff was injured in the altercation.  In finding the Constable liable for false arrest, false imprisonment, assault and battery Madam Justice Brown provided the following reasons:

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Motorist Ordered To Pay $34,980 in Damages Following “Road Rage Incident”

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, ordering a motorist to pay almost $35,000 in damages after striking another motorist in the face.

In today’s case (Henderson v. McGregor) the parties were both operating motor vehicle moving in the same direction of travel.   The Plaintiff was concerned that the Defendant was not paying adequate attention.  The vehicles stopped close to each other and the Plaintiff exited his vehicle and approached the Defendant.  The Defendant “struck him without warning, grabbing and scratching his face causing lacerations and bruising and drew blood.”.

The Court found the Defendant liable for the torts of assault and battery and ordered damages just shy of $35,ooo to be paid including $2,000 in aggravated damages.  Mr. Justice Walker provided the following findings regarding liability:

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Occupier Not Liable for “Sudden, Random, and Apparently Unprecedented Act of Violence” By Customer

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing a lawsuit following a customer on customer assault at a commercial establishment.

In today’s case (Tanaka v. London Drugs Limited) the Plaintiff was shopping at London Drugs when another customer suddenly and unexpectedly punched the Plaintiff in the face knocking him unconscious.  The assailant remained unidentified.  The Plaintiff argued London Drugs should be vicariously liable for the assault either based on the principles of Negligence of Occupier’s Liability legislation.  In dismissing the claim and finding there should be no vicarious liability in the face of a “sudden, random, and apparently unprecedented act of violence” Madam Justice Horsman provided the following reasons:

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Defendant Not Justified in Punching Mouthy and "Belligerent" Plaintiff in the Face

Reasons for judgement were published this week by the BC Supreme Court, Smithers Registry, demonstrating that punching someone in the face is rarely the legally acceptable solution to a problem.
In the recent case (Azak v. Chisholm) the Defendant was a contractor building a retaining wall on property neighbouring the Plaintiff’s.  A verbal confrontation between the Plaintiff and Defendant occurred with the court finding “the plaintiff confronted Chisholm about the Project in a belligerent manner that Chisholm did not like” and specifically with the Plaintiff calling the Defendant “a ‘f-ing asshole” and a “white piece of shit”.
The Defendant gave evidence as follows surrounding the altercation:
Chisholm told the plaintiff that “we are going to go to work and what are you going to do about it?”  The plaintiff responded by saying: “you’re going to find out right now” and that Chisholm was a “white piece of shit”.  Chisholm testified that he perceived this as a threat and he did not want to find out what the plaintiff had in mind.  Chisholm said “I’ve had enough”, jumped down from the retaining wall and hit the plaintiff in the face.
The punch resulted in a fractured cheek and nose that requires surgical correction.
The Plaintiff successfully sued for damages. In rejecting the Defendant’s claim of self defense and noting the burden on a defendant to successfully raise the defense Mr. Justice Weatherill provided the following reasons:

[70]         I find that, regardless of the harassment and insults the plaintiff had levied at Chisholm and regardless of how long the plaintiff’s difficult behaviour had been ongoing, Chisholm had no right or justification to do what he did.  I find that, whatever threat Chisholm perceived when he was first confronted by the plaintiff on the morning of July 2, 2013 had eased well before the Assault took place.  I do not accept that Chisholm was either afraid for his own safety or that of his co-workers.  Chisholm could easily have either removed himself from the property or had Nyce mediate the situation, as he had done many times previously.  Instead, I find that Chisholm simply and regrettably let his anger and frustration get the better of him.  

[71]         I find that Chisholm’s reaction was unreasonable and totally disproportionate to the circumstance he was in and I reject his claim that he acted in self-defence.  No reasonable person in Chisholm’s shoes would have felt physically threatened by what the plaintiff had said.

[72]         I find that the plaintiff has demonstrated, on the balance of probabilities, that Chisholm committed the tort of battery upon him, that Chisholm failed to demonstrate he was acting in self-defence and, therefore, Chisholm is liable to the plaintiff in damages.

Road Rage Assault Leads to $800,000 Civil Judgement

Reasons for judgement were published this week assessing damages for a plaintiff who sustained serious injuries following a road rage assault.
In this week’s case (McCaffery v. Arguello) the parties were involved in a road rage incident resulting in the Defendant existing his vehicle and  repeatedly striking the Plaintiff  “with the baseball bat, causing him serious but non-life-threatening injuries to his head, chest, left arm, hand, and wrist.
The Defendant was criminally convicted for his actions.  In the civil lawsuit damages of just over $800,000 were assessed with findings that the assault caused Complex Regional Pain Syndrome along with other partially disabling injuries.
In assessing non-pecuniary damages at $200,000 Madam Justice MacNaughton provided the following reasons:

[37]         Dr. Negraeff examined Mr. McCaffery on March 9, 2016 and diagnosed the following injuries:

a)    Complex Regional Pain Syndrome Type 1: Left Hand (“CRPS”);

b)    persistent headache attributed to mild traumatic injury to the head;

c)     moderate to severe sleep disturbance secondary to chronic pain and headaches; and

d)    moderate to severe mood disturbance with anxiety and depression secondary to chronic pain and headaches.

[38]         Dr. Negraeff explained the CRPS is a form of chronic pain that usually develops in a limb after an injury to it. There are two types of CRPS depending on whether a distinct nerve injury is confirmed. In the first type, there is no confirmed nerve injury and in the second, such a nerve injury is confirmed. The hallmarks of CRPS are pain which is out of proportion to the injury and a combination of symptoms that can include swelling, skin colour and temperature changes, sweating, hair and nail growth changes, and disturbances to the movement or coordination of the limb…

[45]         I conclude that at the age of 28, in the few moments in which the Incident occurred, Mr. McCaffery became a different person. The effects of the assault will redefine Mr. McCaffery for the rest of his life, both physically and psychologically. He no longer sees himself as a “big strong guy” who could do, and did, nearly everything.

[46]         Mr. McCaffery’s personality change has also affected what had been a very positive, close, and harmonious family relationship among Mr. McCaffery, his wife, and their three children. All of Mr. McCaffery’s family witnesses testified about how his symptoms have affected his relationship with Ethan, who has been most affected by his father’s personality change and physical limitations. Ethan was old enough to have experienced and remembered his father’s much more engaged and affectionate relationship with him before the Incident. Ethan misses the activities he used to do with his father and is cautious about not hurting him.

[47]         Mr. McCaffery’s continuing pain has caused sleeplessness, and his headaches are often accompanied by dizziness…

[56]         Based on all this evidence, I conclude that Mr. Arguello’s actions have caused Mr. McCaffery to suffer debilitating and disabling injuries which have had significant life-changing effects and that, as a result, he should be compensated with a substantial award of non-pecuniary damages…

[79]         Taking all these considerations into account, I have concluded that an appropriate award for Mr. McCaffery’s pain, suffering, and loss of enjoyment of life is $200,000.

The Court went on to note that punitive damages were warranted even though the Defendant was criminally convicted.  In assessing punitive damages at $30,000 the court provided the following reasons:

[122]     At para. 33 of Thomson v. Friedmann, 2008 BCSC 703, aff’d 2010 BCCA 277, referring to Whiten v. Pilot Insurance Co., 2002 SCC 18, Justice Gerow reviewed the factors a court should consider when determining whether to award, and the quantum of, punitive damages. In addition to the overall purpose of such damages, in relevant part, the factors she outlined included that:

a)    punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff, and any advantage or profit gained by the defendant;

b)    punitive damages should take into account any other fines or penalties suffered by the defendant for the misconduct in question;

c)     punitive damages should generally only be awarded where the misconduct would otherwise be unpunished or where other penalties are or are likely to be inadequate to achieve the objectives of retribution, deterrence, and denunciation;

d)    the purpose of punitive damages is to give the defendant her or his “just desert”, deter the defendant, and others, from similar misconduct, and to mark the community’s collective condemnation about what has happened. Punitive damages are only awarded when compensatory damages are insufficient to accomplish these objectives;

e)    punitive damages are awarded in an amount that is no greater than necessary to accomplish their purposes and are generally moderated; and

f)      the court should assess whether the conduct of a defendant should be punished over and above the requirement to pay non-pecuniary, pecuniary, and aggravated damages.

[123]     In this case, Mr. Arguello was prosecuted and convicted of assault with a weapon and assault causing bodily harm. He was sentenced to a six-month conditional sentence, during which for three months he was subject to a curfew, and one year of probation. At the sentencing hearing, Mr. Arguello’s criminal counsel submitted to Judge Moss that the fact that Mr. Arguello was facing a civil lawsuit for damages should be a factor in favour of a conditional sentence. In his sentencing reasons, Judge Moss considered the fact of the civil lawsuit.

[124]     The compensatory damages I have awarded are significant, but they compensate Mr. McCaffery for his actual losses and damages. In the circumstances of this case, I am satisfied that an award of punitive damages is also necessary to make it clear to the public that Mr. Arguello’s conduct departed so markedly from the ordinary standards of decent behaviour as to be worthy of further punishment.

[125]     Mr. Arguello’s decision to follow Mr. McCaffery’s vehicle for five kilometres up the Upper Levels Highway, cut aggressively in front of it, slam on his brakes and cause a collision, and then to exit his vehicle with a baseball bat with which he repeatedly hit Mr. McCaffery, cannot be countenanced in civil society where hundreds of thousands of drivers use our roads and encounter driving manoeuvres which upset or anger them. Road rage incidents are increasingly common in our busy lives and on our busy roads as drivers’ jockey for position. They cannot be tolerated.

[126]     I accept that Mr. Arguello expressed regret for the injuries he caused by his behaviour, but at the same time, he asked for consideration for the legal fees he expended to defend himself criminally and the impact of the Incident on his family. As the person determined to be fully responsible for the Incident, both criminally and civilly, his submissions indicated to me that he had not entirely understood the community’s condemnation of his behaviour.

[127]     Therefore, in addition to the compensatory damages I have ordered, I award Mr. McCaffery the sum of $30,000 in punitive damages.

$217,500 in Damages Ordered Following Suckerpunch Assault

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, ordering the payment of $217,500 in total damages after the Plaintiff was injured in an assault/battery.
In today’s case (Rycroft v. Rego) the Plaintiff alleged he was injured in an altercation with the Defendant.  Although the Court heard differing versions of events the Court concluded the Defendant through an “unexpected” punch to the Plaintiff which began a brief physical scuffle.
In finding the Defendant culpable for the assault and the injuries that arose Mr. Justice Williams made the following findings of fact:

[30]         Based on my examination of all of the evidence, my conclusions with respect to what occurred are as follows.

[31]         In order to investigate the reported damage caused to the bike park, shortly after returning home, the plaintiff entered the yard behind his residence. Immediately before the altercation, while Mr. Rycroft was walking at a moderate pace in the general direction of his own home, Mr. Rego, walking quite briskly, approached him.

[32]         I accept that the plaintiff said words to the effect of “you must be the dad; I do not want kids playing there anymore.”

[33]         I find that, at that point, the defendant struck the side of the plaintiff’s head. The version of events which most sensibly and logically explains the resulting bruise is that, when he was struck, Mr. Rycroft had his head turned to the right. The punch was of significant force and unexpected.

[34]         As a consequence of the blow, the plaintiff went down in a forward direction, ending up on his knees. He had his hands on the ground. The defendant immediately applied some type of headlock to Mr. Rycroft from behind.

[35]         The two men struggled, with Mr. Rego behind and above Mr. Rycroft. No significant blows were landed.

[36]         The physical engagement ended fairly quickly. The defendant let go of the plaintiff and moved away, and the plaintiff got to his feet.

[37]         The defendant said something to the effect of “do you want round two?” or “do you want some more?” The plaintiff responded in the affirmative, I expect probably more reflexively than seriously, but did nothing physically to further engage with the defendant. Instead, the plaintiff reached into his pocket, took out his phone, and called 911.

[38]         At that point, the defendant and his wife left and went home.

[39]         In the course of the altercation, the plaintiff sustained an injury to his left temple area, an injury which is depicted in the photo marked Exhibit 6. I find that bruise was caused by a blow from the defendant.

[40]         It is also reasonable to conclude that Mr. Rycroft sustained minor injuries to his arm, his elbow area, and his hand, likely from going to the ground.

[41]         Finally, I accept that the plaintiff incurred some injury to his knees, also resulting from going to the ground.

Defendant Ordered to Pay $7,500 After "Body-Checking" Plaintiff During Debt Collection

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Defendant to pay a Plaintiff $5,000 in non-pecuniary damages and a further $2,500 in punitive damages following an assault during a debt collection.
In today’s case (Ross v. Dhillon) the Plaintiff attended the Defendant’s business to collect an outstanding business account with respect to some industrial equipment purchased by the Defendant.  The Defendant made partial payment and the Plaintiff,  unsatisfied with this, removed a part from the equipment.  As he attempted to leave the Defendant “body‑checked him into the door frame and held him against it for several seconds.”.
The Court found this incident caused a minor aggravation of pre-existing injuries the Plaintiff suffered in a collision.  In assessing damages at $7,500 Mr. Justice Smith provided the following reasons:
[20]         I therefore find that the plaintiff experienced a minor and short‑lived aggravation of his neck and back symptoms, accompanied by an equally minor and short‑lived condition that produced some numbness in his hand…

[23]         Considering the minor nature of the plaintiff’s injuries, including the brief aggravation of his previous symptoms and including a component for aggravated damages, I award the plaintiff non‑pecuniary damages of $5,000.

[24]         I also find this to be an appropriate case for punitive damages. The defendant’s conduct was willful, reckless and dangerous. While his conduct was at the low end of any scale that would measure violent conduct, no amount of violence was an acceptable response to this dispute about a relatively small debt.

[25]         In Van Hartevelt v. Grewal, 2012 BCSC 658, the court awarded $10,000 in punitive damages to a plaintiff who was beaten about the head and kicked in the ribs. The violence in this case was much less severe, and I award punitive damages of $2,500.

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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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