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.
