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Tag: Mr. Justice Jenkins

Punitive Damages Ordered Against Pub After Bouncer's "Reprehensible" Beating of Patron

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, awarding damages against a bouncer and the pub that employed him following a beating of an unruly patron.
In this week’s case (Reimer v. Rooster’s Country Cabaret Ltd.) the Plaintiff was physically removed from the Defendant pub after he tried to enter while concealing a beer in his cargo shorts.  Moments later he was “seriously beaten” by the Defendant bouncer and other individuals.   The Plaintiff suffered a variety of injuries which fortunately recovered largely without incident.  Although the Defendant bouncer was charged criminally he was acquitted at the related criminal trial.
Mr. Justice Jenkins found the bouncer liable for the damages and further found the pub vicariously liable for the assault.  In ordering the defendant’s jointly and severally liable to pay punitive damages the Court provided the following reasons:
[97]         The conduct of Mr. Turnau and Mr. Barber in particular, and to a slightly lesser extent the other security staff who either participated in the beating or stood idly by while the beating continued, was unnecessary, totally unacceptable, “high-handed, malicious, arbitrary and reprehensible” to a major degree. Further, compensatory damages in this case are inadequate to compensate Mr. Reimer. They would not provide the defendants with, as Gerow J. put it, their “just deserts”, nor would they serve the objectives of “retribution, deterrence and denunciation” of the defendants’ actions.
[98]         The assault in the parking lot was unprovoked and the entire episode should have ended with Mr. Reimer and Mr. Murchie walking out through the parking lot. It is also particularly objectionable that the beating was carried out in front of several of the patrons of Rooster’s who had proceeded outside and into the parking lot, where, as completely independent witnesses, they were exposed to incredible brutality.
[99]         Considering all of the authorities referred to me on the issue of quantum, I award a sum of $20,000 as punitive damages.
[100]     The award of punitive damages is made against both Mr. Turnau and Rooster’s, as I have found the latter directly liable in addition to being vicariously liable.

$30,000 Non-Pecuniary Assessment For Two Year Soft Tissue Injury

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for a soft tissue injury of two year’s duration.
In this week’s case (Visona v. Stewart) the Plaintiff was injured in a 2009 collision.  The Defendant admitted fault.  The Court accepted that the collision, despite being relatively minor, caused soft tissue injuries which lasted for up to two years.  The Plaintiff’s most serious concern was chronic tailbone pain although the Court rejected the submission that this was caused by the collision.  In assessing non-pecuniary damages at $30,000 for the soft tissue injuries Mr. Justice Jenkins provided the following reasons:
[32]         Based on the statements above and Ms. Visona’s evidence at trial, her suffering and the effects of the soft tissue injuries likely lasted no longer than two years from the date of the accident. In making this determination, I am not taking into account the “tailbone” injury which Ms. Visona claims was caused by the November 23, 2009 accident. The evidence supports a finding that Ms. Visona continued suffering from her tailbone injury long after the soft-tissue injuries appear to have healed. I am considering the tailbone injury separately because on the evidence of the nature and severity of the accident, all of the medical practitioners’ evidence and Ms. Visona’s evidence, I find it unlikely that her tailbone injury was caused by the accident.,,
[38]         As a result of the November 23, 2009 accident, Ms. Visona suffered soft-tissue injuries to her neck, back and left hip, and a bruise to the left side of her knee. Based on my finding above that Ms. Visona suffered from these injuries for a period of at most two years, the authorities quoted by the defence are more applicable in assessing damages for pain and suffering. In contrast, the submissions from counsel for Ms. Visona took into account ongoing low back pain almost four years after the accident, and emotional considerations such as the breakup of Ms. Visona’s marriage and difficulties in her relationship with her daughter, neither of which can be related to the November 23, 2009 accident.
[39]         Awards of damages for pain and suffering from other cases act as a guide but are not determinative as to appropriate compensation for the injuries. I agree that each case must be considered on its own merits, and consideration of an individual’s situation makes the assessment of damages a very subjective task. The decisions referred to which are of some assistance are Mr. Justice Verhoeven’s decision in Carter v. Zhan,2012 BCSC 595, and Madam Justice Maisonville’s decision in Vela v. MacKenzie, 2012 BCSC 438. In those cases, the learned judges awarded non-pecuniary damages of $35,000 and $27,000, respectively.
[40]         I find, in light of all of the evidence, that Ms. Visona is entitled to non-pecuniary damages of $30,000.

$75,000 Non-Pecuniary Assessment for Chronic Injuries Caused by Two Collisions

Reasons for judgemet were released last week by the BC Supreme Court, New Westminster Registry, assessing damags for injuries sustained in multiple collisions.
In last week’s case (Bansi v. Pye) the Plaintiff was involved in two collisions, the first in 2005, the second in 2008.  The Plaintiff was faultless for both collisions focussing the trial on an assessment of damages.  The Plaintiff suffered varoius injuries which were recovering when they were aggravated by the secod crash.  These included various soft tissue injuries and headaches which were expected to last indefinatly and to limit the Plaintiff in his trade in construction management.  In assessing non-pecuniary damages at $75,000 Mr. Justice Jenkins provided the following reasons:

[33] Also at page 7 of her report of January 11, 2011, Dr. Caillier listed “The Injuries of Issues Related to the MVA No. 2 dated April 25, 2008” as follows:

1.         Cervicogenic headaches

2.         Cervicogenic dizziness

3.         Left hearing complaints. . .

4.         Exacerbation of pre-existing symptoms involving the neck, upper back, and lower back regions.

5.         Soft tissue musculoligamentous injury involving the neck, upper back, and posterior shoulder girdle and lower back region.

6.         Further aggravation of degenerative changes within the lumbar spine.

7.         Altered mood and anxiety.

8.         Worsening of sleep disturbance.

9.         Further decrease in ability to participate in the functional, recreational, and vocational activities of his choosing.

[34] Further at page 9, Dr. Caillier stated:

It is my opinion, given the chronicity of Mr. Bansi’s physical symptoms, both following that of the first motor vehicle accident as well as ongoing since the time of the second motor vehicle accident, the likelihood of him becoming pain-free is very poor…

[42] The two MVAs have had a significant negative impact on Mr. Bansi’s lifestyle and quality of life. Mr. Bansi had previously been very active and energetic whether in working on home renovations, exercising at the gym, cycling, washing family vehicles, participating in family events, services and prayers at the temple, working at household chores including maintenance of the gardens and yard, driving family members for appointments, shopping and much more.

[43] Since the MVAs, he has had considerable difficulty driving for any significant time, he no longer looks after the family gardens and yard, rarely socializes with family or at the temple, lacks motivation, spends more time alone in his suite at the family home, rarely takes care of his young niece and nephew, no longer goes on bike rides with his sister and has clearly had significant problems in carrying out his duties on construction sites. Not only has he had difficulty performing the work, his productivity is considerably impaired and what were simple physical tasks now take much longer. His employers have also noted his decrease in production and energy on the work site which I will address further in his claim for past loss of income and diminished earning capacity…

[52]Considering that the injuries sustained by Mr. Bansi are not seriously challenged, his lower back injury is likely permanent, having to start his rehabilitation over again after the 2008 MVA will have an impact on his psyche, the difficulties he is having in performing previously simple tasks which were part of his job as a construction manager, the likelihood of him having to persevere with chronic pain in the future, and the resulting loss of enjoyment of life, I find an appropriate award of non-pecuniary damages to be $75,000.

$25,000 Non-Pecuniary Damages For Largely Recovered Soft Tissue Injuries

Reasons for judgement were released last week by the BC Supreme, Vancouver Registry, assessing damages for largely recovered soft tissue injuries.
In last week’s case (Hussain v. Cho) the Plaintiff was injured in a 2008 rear-end collision.  Fault was admitted by the rear motorist.  The collision caused soft tissue injuries to the Plaintiff’s neck and upper back muscles (specifically the left erector spinae and thoracic paraspinal muscles).

These injuries kept the Plaintiff off work for 6 weeks.  The injuries largely recovered in the first year following the crash but continued to cause some minimal albeit improving symptoms at the time of trial.  In assessing non-pecuniary damages at $25,000 Mr. Justice Jenkins provided the following reasons:
[21] Based on the above and all of the evidence, I find Ms. Hussain’s injuries arising from the motor vehicle accident of August 24, 2008 consisted of soft tissue injuries to the left erector spinae and thoracic paraspinals evidenced by pain in her mid and lower back, shoulder and neck and as well as headaches. Although Dr. Menzies did state that Ms. Hussain was “probably substantially recovered” from the injuries caused by that motor vehicle accident within one year, she did continue to suffer some pain and headaches for more than a year after the accident. Also, Ms. Hussain’s injuries from the February 2011 “slip and fall” were a “little” worse due to the injuries suffered August 24, 2008…
[26] Considering all of the above findings and authorities, I find the plaintiff to be entitled to a total of $25,000 in non-pecuniary damages which includes $5,000 for diminishment of homemaking capacity. Homemaking was a very significant activity for Ms. Hussain before the accident and it is clear that she struggled at that activity for some time thereafter.

$15,000 Non-Pecuniary Damages for "Minor Aggravation" of Pre-Existing Knee Injury

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for an aggravation of a pre-existing knee injury.
In yesterday’s case (Everett v. Solvason) the Plaintiff “blew out his left knee” while playing softball in the summer of 2008.  The following month he was involved in a motor vehicle collision.  The crash aggravated his knee pain.  Following the crash the plaintiff had an MRI which revealed “a complex tear to the medial meniscus and a probable partial tear of the ACL

At trial the main issue was what relationship the collision had to these injuries.  The Court ultimately found that these injuries were caused by the softball injury but sustained a “minor aggravation” in the collision.  In awarding damages of $15,000 Mr. Justice Jenkins provided the following reasons:
[21] The defence called Dr. Brian Day, an orthopaedic surgeon, who never did examine Mr. Everett but did review a great many reports and other documents including medical records which were in evidence at this trial. He concluded that the softball injury of July 30, 2009 was responsible for the injury to the left anterior cruciate and medial meniscus, i.e. the left knee injuries. In cross examination Dr. Day was clear that the accident of September 3, 2009 was not the cause of the knee injuries, in that he said that these kind of knee injuries are the result of a significant rotational movement in which the knee pops, swells, bleeds and would be the main complaint of the injured party. According to Dr. Day, the plaintiff having planted his left foot in anticipation of the impact from the vehicle behind would not likely have caused these injuries. The nature of the left knee injury is, however, consistent with the plaintiff’s description of the softball incident. It is clear to me, especially from Dr. Day’s evidence, that the cause of the knee injury was the softball incident. However, he did say that the accident could have resulted in a further tear of the medial meniscus originally torn in the softball incident. In the circumstances, I find that the plaintiff likely suffered a minor aggravation to the knee injury as a result of the September 3, 2009 accident…
[39]I find a reasonable award for general damages for pain and suffering is in the amount of $15,000.

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