QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 279 Date: 20050615 Docket: Q.B.G. No. 2712/2002 Judicial Centre: REGINA BETWEEN: STEVEN CAMERON OLIVER and JULES JOSEPH DECORBY Counsel: Glen W. Dowling for the plaintiff Jeffrey G. Brick for the defendant JUDGMENT BALL J. June 15, 2005 [1] On December 27, 2000, the plaintiff was standing with other patrons near the entrance to the Last Straw Brew Pub in Regina when, without warning, he was punched in the face and knocked unconscious by the defendant. The plaintiff claims damages for injuries sustained in the assault. Liability is admitted, and the plaintiff now applies for summary judgment and an assessment of damages pursuant to Rule 485. [2] The parties agree that damages should be assessed on the basis of the affidavit evidence filed. They also agree that the court would be in no better position to make that assessment following trial. accept their submissions and will assess damages in the manner set out below. [3] The plaintiff’s affidavit describes the circumstances of the assault. The defendant has chosen not to file any affidavit in response. Accordingly, accept the plaintiff’s description of what occurred: 2. THAT on or about December 26, 2000 attended special function with some friends at the Last Straw Brew Pub at 271 Albert Street North, Regina, Saskatchewan. 3. THAT shortly after midnight disturbance occurred between some patrons at the Last Straw Brew Pub and the staff members attempted to escort the unruly persons outside. 4. THAT at the time of the aforementioned disturbance happened to be standing near the main entrance and witnessed the entire event. Some of the staff members were friends of mine and was concerned for their safety. was not involved in anyway in the disturbance other than as an observer. 5. THAT the Defendant, JULES JOSEPH DECORBY, was apparently with the persons involved in the disturbance. 6. THAT at the apparent conclusion of the aforesaid disturbance after the unruly patrons had been ejected from the premises, the Defendant, JULES JOSEPH DECORBY, without warning or provocation punched me with full force to the left side of my face. 7. THAT the force of the Defendant’s attack was so severe that it knocked me unconscious to the ground; fractured my left eye socket; broke my nose; shattered by[sic] front two teeth. When regained consciousness was taken to the Pasqua Hospital Emergency Department for treatment. was treated on an emergency basis and released and referred to Dr. Peter S. Chang, M.D. Attached hereto and marked as Exhibit “A” are set of three photographs of me which were taken on December 27, 2000 and which adequately represent what looked like on that day. [4] The photographs attached to the plaintiff’s affidavit depict severe injury to the area of his left eye and nose. In addition to what can be observed in the photographs, the plaintiff sustained damage to several of his teeth on the upper left side. That damage is described in medical report dated September 4, 2002, from his dentist, Dr. Donald K. Miller: Several of the teeth on Cam’s upper arch were shifted causing nerve damage. In order to retain these teeth and restore full function they will need root canal treatment followed by crowns. Please find attached an estimate of the treatment Cam needs and the costs involved. Once this treatment is complete Cam can expect it to last approximately ten to fifteen years. At that point further bridgework or extraction of the damaged teeth may be needed. [5] medical report dated August 12, 2004, from Dr. Peter S. Chang confirms that the plaintiff sustained communited fracture of the left medial orbital rim area as well as left side of the nose and nasal bone. Nasal packing and splinting was performed. Some continuing deviation to the left side of his nose remains because the plaintiff removed the packing prematurely. This can be dealt with by elective surgery (which the plaintiff has chosen not to have) but it is not medically required. [6] The plaintiff says that he experienced considerable pain for several months after the assault. His fractured left eye socket and broken nose have healed but there is an apparent indentation to the eye socket and his nose is asymmetrical. His left eye socket is sensitive and he has some difficulty breathing through his nose. There is minimal scarring in the area of his left eye and nose. [7] As result of his assault on the plaintiff, the defendant was charged with assault causing bodily harm under the Criminal Code, R.S.C. 1995, c. C-46. He eventually pled guilty and on December 2, 2002, was sentenced by the Provincial Court to fine of $1,500.00, placed on probation for period of 18 months, and ordered to make restitution to the plaintiff for the cost of dental work in the amount of $3,263.30. 1. Submissions by Counsel: [8] Counsel for the plaintiff relies on the following case authorities in support of his contention that the plaintiff’s general damages should be assessed at between $18,000.00 and $35,000.00: Medynski and Lewis v. Schmalz (1993), 1993 CanLII 8800 (SK QB), 115 Sask. R. 212 (Sask. Q.B.); Nyrose v. Barts [1997] B.C.J. No. 2317 (B.C.S.C.); Bast v. Property Development Ltd.1999 SKQB 110 (CanLII); (1999), 187 Sask. R. 102 (Sask. Q.B.); Morse v. Cott Beverages West Ltd. et al.2001 SKQB 550 (CanLII); [2002] W.W.R. 281 (Sask. Q.B.). In addition, the plaintiff claims the difference between the full cost of dental treatments ($5,175.00) less the amount received pursuant to the Provincial Court restitution order ($3,263.30) or the sum of $1,911.70. The plaintiff also seeks aggravated damages in the range of $5,000.00 to $10,000.00 plus costs and pre-judgment interest. [9] The defendant relies on the following case authorities to support his contention that damages should more appropriately be in the range of $7,500.00 to $9,000.00: Zabolotny v. Sloane (1998), 1998 CanLII 28117 (MB QB), 128 Man. R. (2d) 82 (Man. Q.B.); Saviskoff v. Morton [1997] B.C.J. No. 441 QL (B.C.S.C.); Lang v. Bognar [1997] O.J. No. 191 QL; (1997), 22 O.T.C. 123 (Ont. Ct. of Justice); Castelluzzo v. Ruzzuto [1991] O.J. No. 1111 QL (Ont. Ct. of Justice). Counsel for the defendant also submits that no special damages have been proven by the plaintiff, and that no aggravated damages can be awarded because the plaintiff did not expressly plead them in his statement of claim. [10] Each party contends that the cases relied upon by the other party involved injuries that were not comparable to those sustained by the plaintiff in this case. 2. General Damages: [11] Previous judgments in this and other jurisdictions can be helpful in establishing range of damages. However, factual comparisons based on case reports are at best imperfect. Within the appropriate ranges, each case must be sensitive to and decided upon its own particular facts. [12] In assessing general damages find that the injuries sustained by the plaintiff as result of the defendant’s assault were serious but not life threatening. I accept that the plaintiff suffered significant pain and suffering for a number of months after the assault. Extensive dental treatment was required and further treatment will be required at some point in the future. The plaintiff has some minimal scarring and disfigurement but find that it is not significant. Excluding any component for aggravated damages I conclude that a fair award for general damages is $12,500.00. 3. Aggravated Damages: [13] In his text, Personal Injury Damages in Canada, 2nd ed. (Carswell: Toronto, 1996) Cooper-Stephenson reviews the nature and scope of aggravated damages at p. 527: Aggravated damages are simply variety (or possibly sub-head) of non-pecuniary damages. They too compensate for intangible loss, but in particular for hurt feelings caused by the nature of the defendant’s conduct. The range of injured feelings will of course vary with the circumstances, but it often embraces such emotion as humiliation, indignity, degradation, shame, indignation, and fear of repetition. Whereas damages for pain and suffering cover distress caused by the physical injuries themselves, aggravated damages cover distress caused by the character or form of the defendant’s misbehaviour. What amount in substance to aggravated awards have long been allowed by the law. In Guillet v. Charlebois [1935 CanLII 220 (SK CA), [1935] W.W.R. 438] for example, in the Saskatchewan Court of Appeal, Martin J.A. confirmed that the courts were not restricted to actual loss “but may consider the pain and suffering, the wounded feelings of the plaintiff, the indignity suffered. .”. But it was not until Rookes v. Barnard [[1964] All E.R. 367 (H.L.)] in 1964 that the phrase “aggravated damages” gained real prominence, stemming chiefly from the need to distinguish aggravated from exemplary damages. Aggravated damages are typically awarded in cases of intentional wrongdoing, that sort of conduct being most likely to occasion bruised feelings. Not surprisingly, the common instance in the domain of personal injury are actions for assault and battery including, increasingly, claims for sexual assault. As regards pleadings, in general it appears unnecessary to plead aggravated damages specifically, though it is of course necessary to allege the supporting facts. Absent sufficient proof of such allegations, aggravated damages will likely be denied. [14] In summary, aggravated damages are variety of non-pecuniary damages aimed at assuaging wounded feelings. The key factors are the nature of the hurt feelings and their impact on the plaintiff’s lifestyle, together with their past and projected duration. [15] Counsel for the plaintiff asks for an award of aggravated damages “in the range of” $5,000.00 to $10,000.00. Counsel for the defendant submits that no such award can be made because the plaintiff did not expressly plead claim for aggravated damages. In support of that proposition he relies on the following statement by the Saskatchewan Court of Appeal in Lauscher v. Berryere, 1999 CanLII 12242 (SK CA), [1999] W.W.R. 476; 177 Sask. R. 219 at para. ¶11 In this jurisdiction claims for aggravated and punitive damages must be expressly pleaded, given the requirements of the Queen’s Bench Rules governing the subject of pleading: Rieger v. Burgess (1988), 1988 CanLII 209 (SK CA), 66 Sask. R. (Sask. C.A.). (See, too, Atkins Court Forms (2nd ed.), Vol. 32 (1996 issue) at p. 29). It is therefore necessary that the statement of claim not only ask for punitive damages but specify the misconduct upon which the cause of action is said to give rise to liability for such damages. [16] Lauscher v. Berryere was case in which trial judge rejected jury’s award of exemplary damages on the basis that it was plainly unreasonable and unjust. The Court of Appeal confirmed the trial judge’s decision for number of reasons. One was that the statement of claim “did not plead case for punitive damages by alleging misconduct of the requisite nature, identifying the offending conduct of each of the defendants and asking for exemplary or punitive damages in consequence”. second was that the defendants had ceased to actively defend the action before trial, did not attend the trial, and were not served with notice of claim for punitive damages. third was that the award was devoid of any evidentiary support and, in any event, was so inordinately high as to preclude judgment from issuing upon it. fourth was that the issue of punitive damages “arose as something of an afterthought” and was “placed before the jury rather incidentally, and on the most general of footings, leaving the jury’s verdict to rest upon foundation incapable of supporting it”. [17] As authority for its comment in Lauscher v. Berryere concerning the need to plead claims for aggravated damages, the Court of Appeal referred to its own earlier decision in Rieger v. Burgess (1988), 1988 CanLII 209 (SK CA), 66 Sask. R. 1, another case in which trial judge had reassessed the amount awarded by jury for non-pecuniary loss. The court reviewed Queen’s Bench Rule 153 (which requires party to plead specifically any matter, fact or point of law which, if not specifically pleaded, might take the other party by surprise), reviewed the purposes of that Rule, and concluded at para. [55] These general purposes suggest that matters in aggravation of damages ought to be pleaded which accounts no doubt for the practice in this jurisdiction of doing so. [18] In summary, the authorities relied upon by the defendant did not decide that plaintiff must specifically and expressly plead claim for aggravated damages, as opposed to alleging and proving the facts necessary to support such an award. The most important issue concerning the sufficiency of pleadings remains whether the defendant is informed of the case to be met and is not unfairly taken by surprise. [19] In this case the plaintiff’s claim recites the facts surrounding the assault and describes the injuries which he sustained. Although his claim alleges that he suffered “loss of enjoyment of life”, his affidavit does not claim that he experienced the humiliation, indignity, degradation, or shame (in short, the “hurt feelings”) for which aggravated damages are awarded. Moreover, the affidavit does not state that the plaintiff’s lifestyle was affected by what occurred. In that sense the pleadings and the evidence do not support a substantial award for aggravated damages. However, the photographs attached to the plaintiff’s affidavit graphically depict the extent to which his appearance was altered by his extensive facial injuries, perhaps more effectively than words could have done. To some extent, as well, the requisite “hurt feelings” can reasonably be inferred from the fact that the plaintiff was rendered unconscious on the ground in a crowd of onlookers. I have decided that those circumstances justify an award of aggravated damages in the sum of $2,000.00. 4. Special Damages: [20] accept that the plaintiff should be compensated for the difference between the full costs of required dental treatment less the amount reimbursed to him by way of the Provincial Court restitution order. This difference amounts to the sum of $1,911.70. decline to order any additional amount for potential future dental care and treatment because there is no evidence on which can base such an assessment. SUMMARY [21] The plaintiff shall have judgment against the defendant calculated as follows:(1) General damages $12,500.00(2) Aggravated damages $ 2,000.00(3) Special damages $ 1,911.70Total $16,411.70plus pre-judgment interest pursuant to The Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.3 and costs to be taxed.
The plaintiff claims damages for injuries sustained when he was punched in the face and knocked unconscious by the defendant. Liability is admitted. The plaintiff applies for summary judgment pursuant to Rule 485 of the Queen's Bench Rules. The parties agree that damages should be assessed on the basis of the affidavit evidence. HELD: 1) The defendant pled guilty to a charge of assault causing bodily harm. He was sentenced to a fine of $1,500, placed on probation for 18 months and ordered to make restitution to the plaintiff for the cost of the dental work in the amount of $3,263.30. 2) The plaintiff suffered serious injuries and significant pain for a number of months after the assault. Extensive dental treatment was required and will be required at some point in the future. The plaintiff has minimal scarring. He is awarded general damages of $12,500. 3) The pleadings and the affidavit evidence do not support a substantial award for aggravated damages. However, the photographs graphically depict the extent to which his appearance was altered. Hurt feelings can reasonably be inferred from the fact that the plaintiff was rendered unconscious on the ground in a crowd of onlookers. These circumstances justify an award of aggravated damages in the sum of $2,000. 4) The plaintiff was awarded special damages in the amount of $1,911.70.