In an expensive lesson that problems should not be solved with violence, reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, assessing damages for a facial fracture caused by an assault.
In this week’s case (Plishka-Humphreys v. Bolen) the Plaintiff was walking with friends by a highway when “unbeknownst to him his friend Arnie van der Holt took a slingshot and ball bearing and shot it at a vehicle which was owned and driven by the defendant Bolen.“. The Defendant chased the Plaintiff and his friend into the woods and “hit him in the face with considerable force. He fell down. He repeatedly was struck in the head and face. He was in and out of consciousness and was in shock.”
The Plaintiff suffered an orbital fracture and ultimately required surgery. He was left with permanent issues including occasional double vision. In addition to being criminally convicted of aggravated assault, the Defendant was found civilly liable and ordered to pay damages. In assessing non-pecuniary loss at $50,000 Mr. Justice Cole provided the following reasons:  I am satisfied that the plaintiff received permanent injury to his eye because of his double vision. He is also at risk of developing glycoma and he suffers from anxiety and thoughts of suicide. He is now more vulnerable to further exacerbation of his post-traumatic stress disorder. He has lost a tooth in what was a traumatic violent assault.  The range of damages, according to the plaintiff, is (figure is adjusted for inflation) between $24,000 in Springett v. Shanklin, 2001 BCSC 853 and $53,700 in Minet v. Kossler, 2007 YKSC 30.  Considering and weighing all the evidence, the trauma that the plaintiff experienced, the permanent damage to his eye which causes him to suffer on occasion from double vision and is suffering from Post-Traumatic Stress Disorder (“PTSD”) and is at an increased risk of anxiety and depresic disorder, I am satisfied that an appropriate award including aggravated damages is the sum of $50,000.
In a compelling illustration of the potential civil consequences following criminal behaviour, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a brain injury following an assault at over $561,000.
In the recent case (Weber v. DeBrouwer) the Plaintiff worked as a supervisor of the Defendant at the Village of Harrison Hot Springs. The Plaintiff “suspended the defendant several times” and over the course of their overlapping employment “relations between the two worsened“. In the summer of 2007 the defendant approached the Plaintiff as the Plaintiff was out for a walk and “brutally assaulted” him.
The assault led to various physical injuries including a mild traumatic brain injury and further led to ongoing psychological difficulties. Global damages of over $561,000 were assessed with non-pecuniary damages assessed at $150,000. In arriving at this figure Mr. Justice Greyell provided the following reasons: In this case, Mr. Weber was 49 years old at the time he was assaulted. The assault caused him significant injury and pain and suffering. He suffered facial injuries, including several fractures, dental injuries, bruising, rib and chest injuries, knee and hand injuries, soft tissue injuries to his back and neck, and a mild traumatic brain injury with ongoing cognitive and speech difficulties which took some time to resolve. Mr. Weber remains affected by depression, anxiety, and post traumatic stress disorder. He avoids confrontational situations…
In the present case, Mr. Weber is now 54 years old. A number of his injuries, including his headaches, bruising and soft tissue injuries cleared up after several months. For a considerable time after the assault he was bothered with nightmares and had difficulty sleeping. He is left with a number of problems. He has difficulty with the alignment of his jaw; he still is clumsy and, while greatly improved, he has difficulty finding and pronouncing some words. Mr. Weber remains anxious and fearful of the defendant and avoids going places where the defendant might be. He avoids situations with guests at the motel where any type of conflict could arise, deferring to his wife to handle such matters. Dr. Smith says he will remain permanently impaired by symptoms of anxiety.
Mr. Weber’s injuries and the residual effects of those injuries are significant, however, in my view, each of the cases cited by counsel for Mr. Weber involve circumstances where the injuries and residual effects to the plaintiffs were more significant. After a consideration of the factors outlined above in Stapley, I conclude $150,000 is an appropriate and fair amount to award for non-pecuniary damages.
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:
 The test that Mr. Friedmann had to meet at trial is set out in Mann v. Balabass,  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.
 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.
 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.
 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.
 In my opinion, to accede to the appellant’s arguments of provocation would give the principle a far too expansive meaning.
 Notwithstanding Mr. Mackoff’s very able submissions, I would dismiss the appeal with costs to the respondent.
When a person is injured in a hit and run accident where the identity of the at fault motorist is unknown ICBC can be sued directly for compensation provided that s. 24 of the Insurance (Vehicle) Act is complied with.
When dealing with insurance coverage issues, there often are exclusions in coverage for claims involving intentional torts. (at the risk of oversimplification and intentional tort is an act which caused harm through an intentional deed as opposed to a negligence claim which deals with harm caused through carelessness). Does this insurance exclusion apply to ICBC claims under section 24? Reasons for judgement were released today by the BC Court of Appeal addressing this issue.
In today’s case (Hannah v. John Doe) the Plaintiff was injured in a purse-snatching incident. As she was walking in a parking lot a vehicle drove by, the passenger in the vehicle ‘reached out and grabbed her purse strap and, as the van accelerated away, the plaintiff was thrown backward and dragged until her purse ripped‘.
The assailants remained unknown and the Plaintiff sued ICBC directly for her injuries under section 24. ICBC sought to dismiss the lawsuit arguing that section 24 does not cover claims for intentional torts. ICBC’s motion was dismissed at trial. (click here to read my article summarizing the trial judgement) ICBC appealed advancing many of the same arguments rejected by the trial judge.
The BC High Court dismissed the appeal and in doing so provided the below reasons making it clear that s. 24 can be triggered in an intentional tort claim:  One of the flaws in ICBC’s argument is that it makes no distinction between cases in which a claim for damages is advanced against an “at fault” motorist and cases in which the insurer seeks to recover from its insured the damages paid to a claimant based on an insured’s policy breach involving intentional or criminal acts.
 As noted above, s. 24(1) permits an action to be brought against ICBC as nominal defendant representing unidentified owners and drivers, thus affording a remedy to drivers and passengers in vehicles and to pedestrians who suffer damage where a remedy would not otherwise exist. In Chan, Finch J.A., as he then was, held that both intentional and negligent acts could constitute “the cause of action” in a claim for damages arising out of the use or operation of a vehicle under s. 23 (now s. 24) . In that regard, he noted, at para. 22:
I observe that s. 23 does not require proof that the injury arises out of the negligent use or operation of a motor vehicle. It requires only that the plaintiff establish “a cause of action” against the driver (or owner) and that the injury arises out of the use or operation of a motor vehicle. It is clear on this language that if the driver of the unidentified vehicle were proven to have intentionally driven his vehicle into collision with the plaintiff’s vehicle, the plaintiff could bring a claim under s. 23.
 While Citadel disapproved the reasoning in Chan in relation to the causation issue, Citadel supports the reasoning and conclusion in Chan that damage caused by an intentional or criminal act is not for that reason excluded from coverage. That is apparent from what Binnie J. said at paras. 17-18 of Citadel:
 The appellant insurer seeks to restrict coverage in arguing, for example, that in this case, indemnification should be denied because Farmer used “the vehicle for the purpose of getting weapons to the scene of a crime”, and “it is that kind of situation that should not fall . . . within the meaning of ordinary and well known activities” (transcript, at p. 18).
 I am unable to agree. Firstly, even if transporting rocks across the countryside had been the effective cause of the Vytlingams’ injuries, which it wasn’t, transportation is what motor vehicles are for. The fact that transportation in this case was for a criminal purpose no more excludes coverage than the fact that Farmer may have been driving his vehicle on the night in question while impaired. Innocent drivers (or pedestrians) should not be denied indemnity if struck by (to give a further example) a getaway car “transporting” bank robbers from the crime scene. In all these cases, the tortfeasor, regardless of his or her subjective reasons for climbing into the car, is at fault as a motorist.
 The same point was reiterated by Binnie J. at para. 23:
Thirdly, to be quite explicit, I would reject the position … that … coverage can be denied if the tortfeasor is engaging (as here) in criminal activity. This is not so. The insurer is selling peace of mind to its insured and the endorsement will frequently (and properly) be invoked despite criminality, as in the case of an insured injured by a drunk driver, for example.
For the foregoing reasons, I would not accede to ICBC’s argument that s. 24(1) of the Act is restricted to cases in which the cause of action is based in negligence.
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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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