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Tag: Assault

The Significant Role of Expert Evidence in Personal Injury Trials

Written by admin on . Posted in BCSC Civil Rule 11, ICBC Brain Injury Cases, ICBC Head Injury Cases, Uncategorized.

When presenting a claim at trial dealing with future loss it is vital to have appropriate expert evidence to justify sought damages.  Failure to do so can result in a dismissal of the sought damages even if they are unopposed.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry highlighting the importance of medico-legal evidence in personal injury trials.
In this week’s case (Moore v. Briggs) the Plaintiff suffered a fractured skull (fractured left temporal bone) and a brain injury in a 2003 assault.

The Plaintiff sued those he claimed were responsible for the assault.  One of the Defendant’s did not respond to the lawsuit and the Plaintiff obtained default judgement against him.  The Plaintiff asked the Court to award substantial damages including an award for diminished earning capacity.  Despite the Plaintiff’s assessment of damages being unopposed the Plaintiff was only awarded a fraction of his claimed damages and he received nothing for future loss.
In assessing non-pecuniary damages at $40,000 and dismissing the claim for diminished earning capacity Madam Justice Dillon provided the following reasons:

[11] As a result of the assault, the plaintiff continues to have some problem with memory. This has improved over time such that it does not interfere with work or enjoyment of life, but still lingers. He also has difficulty with attention span and focus. He continues to have almost daily headaches. These often interrupt his sleep. He noticed that eye near the indentation in his temple was “lazy”, a couple of times a week at first and now hardly noticeable.

[12] For about four years after the assault, the plaintiff had problems with balance such that he could not walk a straight line and was dizzy when he looked down. He wanted to obtain employment as a greenhand on the log booms but did not consider that he could do the job. This would have increased his hourly pay to $24. Few details were provided about this job prospect. There was no medical evidence to support this inability and the plaintiff testified that any problems with balance had now resolved…

[17] Here, there is evidence of a small depressed comminuted fracture of the left temporal bone that resulted in some memory and motor impairment. From the testimony of the plaintiff, it appears that the motor impairment has resolved over time. There continue to be memory problems, the exact nature of which has not been assessed on a current basis. There are also some continuing headaches that are attributed to the fracture in 2003. The plaintiff lost about two months work and has successfully resumed his career and achieved advancement. His social life appears stable and normal. Any present loss of enjoyment of activities is because of lack of interest as opposed to ability…

[22] After consideration of these authorities and in consideration of the plaintiff’s description of his injury, and given the lack of medical information, non-pecuniary damages are assessed at $40,000…

[24] The plaintiff also claims loss of future earning capacity because of inability to obtain employment on the log booms. He calculated this amount based upon expectations of work life to age 65 at the remuneration rate that he said he would have received as a greenhand. This is contrary to the capital asset approach which has been adopted in this Court (Parypa v. Wickware, 1999 BCCA 88 at para. 63). However, the evidence on this aspect of the claim is scant and unsupported by any medical or actuarial evidence. Further, the plaintiff had successfully advanced in his work at present and said that this is his employment of choice. Further, there was no evidence that his employment aggravated his symptoms. The plaintiff must establish that there is a real and substantial possibility that his earning capacity has been impaired to some degree as a result of the injuries sustained in the assault (Romanchych v. Vallianatos, 2010 BCCA 20 at para. 10). In my view, there is little likelihood of any substantial possibility of an actual income loss in the circumstances here. There is nothing to suggest that the plaintiff will be unable to perform the tasks required in his work of choice. Nothing is awarded under this head of damage.

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

Written by admin on . Posted in Uncategorized.

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.