IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110506

Docket: S051472

Registry:
Vancouver

Between:

Shane Gordon Moore

Plaintiff

And

Ryan Briggs,
Robert Dutra and
Nicholas Swain

Defendants

Before:
The Honourable Madam Justice Dillon

Reasons for Judgment

[1]            
The plaintiff obtained judgment in default of appearance against the
defendant, Robert Dutra, on June 10, 2005. This trial was for the assessment of
damages suffered by the plaintiff as a result of an assault by the defendant.
The plaintiff testified. A consulting report from Dr. Lanius, a
neuropsychologist, dated July 16, 2004, was also in evidence. Finally, a
statement of lost wages was placed into evidence. There were no medical reports
before the court, either past or current.

[2]            
The plaintiff was three days short of his 21st
birthday on July 20, 2003 when, in the early hour of 1:30 a.m., he was walking
with four friends at the Coquitlam Town Centre skateboard park three unknown
males approached the plaintiff’s group. The plaintiff turned to one to say
‘how’s is going’ and was given a peace sign in response. As the plaintiff
turned away, something happened as that is the last that the plaintiff
remembers before waking in the hospital.

[3]            
There was no other evidence as to how the plaintiff ended up with a
fractured skull.

[4]            
The plaintiff remained in hospital for two weeks following the assault.
Initially, he could not walk or eat. He had severe pain in his head and neck.
He could not talk properly. From the July 16, 2004 consultation report of Dr. Lanius,
the neuropsychologist, which was in evidence as opinion, it appears that the
plaintiff suffered a 5 mm comminuted depressed fracture involving the left
temporal bone.

[5]            
Following release from hospital, the plaintiff stayed with his mother
who took two weeks off work as a care aide to look after her son. The plaintiff
testified that she lost wages of $1,428 as a result. The plaintiff suffered
headaches, numbness in his neck, and vomiting. He required assistance with
walking and personal care. After these two weeks, he was able to maintain food
but could not walk without assistance for another month. He had dizziness when
he looked downwards.

[6]            
The plaintiff attended at his general practitioner who prescribed
Tylenol 3. However, there was no evidence from the general practitioner. As a
result, it is not known how frequently the plaintiff attended upon his doctor.
There was no evidence as to how long the plaintiff continued to use Tylenol 3
or any other medication. The plaintiff testified that his general practitioner
recommended that he remain off work until September 29, 2003.

[7]            
At the time of the assault, the plaintiff was employed full time as a
forklift operator, earning $14.50 per hour. He typically worked a 40 hour week,
although there was overtime. He lost $4,842 in wages during the period that he
was off work.

[8]            
Upon return to work, the plaintiff still had difficulties that required
him to miss work over the next month. However, neither the exact number of days
absent nor the pattern of this time away from work was established in evidence
and no claim was made for past wage loss for these periods.

[9]            
Dr. Lanius performed a neuropsychological assessment of the plaintiff in
July 2004. The consultation report was put into evidence as opinion evidence.
The referring doctor, the plaintiff’s general practitioner, did not provide
evidence. At the time of the assessment, the plaintiff reported having
difficulty with sleep, memory problems, daily headaches, neck pain and some
dizziness. Following administration of tests, the doctor concluded that
intellectual functioning was borderline and unlikely to have been much higher
prior to the accident. There was significant verbal and visual memory
impairment and impaired visual motor attention. Dr. Lanius said that the memory
and motor attention impairments were secondary to the traumatic brain injury
attributable to the July 20, 2003 assault. There was no prescribed treatment.

[10]        
There is no evidence that the plaintiff attended for any specific
treatment or counselling after hospitalization.

[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.

[13]        
As it was, the plaintiff advanced in his employment to become a wine
processor in 2008, presently earning $23.05 per hour. He works a 40-hour week.
He plans to remain with his present employer where he has now been for eight
years. The opportunity for advancement is good and the plaintiff enjoys both
the work and the people.

[14]        
Prior to the assault, the plaintiff was in good health. He had attained
grade 9 plus a few grade 10 courses. He attempted to upgrade his education when
he was about 17 but did not complete any courses and did not make any effort
since then to do so. From the neuropsychological assessment, it appears that
the plaintiff has borderline intellectual functioning independent of the
accident which would limit the work that he could obtain. Following school, he
worked at a Superstore, as a stucco plasterer, and then at a chicken processing
plant. The longest term of employment was three years at the chicken processing
plant before he obtained his job with his present employer as a forklift
operator.

[15]        
The plaintiff was single at the time of the assault but has since
established a live-in relationship. He was not able to do roller hockey or golf
for a period after the accident but since lost interest and has not tried to
resume those sports.

[16]        
The plaintiff suggested that non-pecuniary damages be assessed at
$200,000 based upon the decision in Matthew v. Tattrie, 2009 BCSC 263.
However, that case is quite different. There, the plaintiff was assaulted with
a baseball bat. There was extensive detail given of the incident and of
physical and mental damage as presented by the treating neurologist, treating
neurosurgeon, assessing neurologist, evaluating neuropsychologist,
psychiatrist, occupational therapist, and vocational rehabilitation specialist.
The trial judge found that the assault had resulted in significant and
permanent change in every aspect of the plaintiff’s life. He had suffered a
large right subdural hematoma, a left frontal parietal hemorrhagic contusion
and a skull fracture. He had a large scar on his head as a result of emergency
neurosurgery. He had deficits in memory, concentration, executive function,
strength, and dexterity. He had undergone personality change and had
significant behaviour problems. He could no longer hold a job and was unable to
live independently. His social relations were affected. He had a seizure
disorder and was at risk of dementia. Considering the significant permanent
consequences of the assault, an award of $200,000 was appropriate.

[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.

[18]        
In Coutts v. Truong, 2000 BCSC 1561, two plaintiffs were
violently assaulted with an iron bar. One plaintiff was then struck on the back
of his head and on his face in the area of his nose. The blow to his head
necessitated 10 stitches. He also suffered an injury to his face. The court
found that the plaintiff had some minor forgetfulness and continued to suffer
from headaches to some degree. He also suffered emotionally, as he was nervous
and insecure following the attack. General damages were assessed at $20,000.
The other plaintiff was struck on the back of his head and on his chest. He
complained of a brain injury, which had effectively ended his productive life,
and emotional stress. The court noted the lack of timely and thorough
neuropsychological assessments which limited the court’s considerations. There
were also complicating factors such as a cocaine addiction and a pre-existing
back injury which affected his ability to work. This plaintiff was awarded
$25,000 in non-pecuniary damages.

[19]        
In Olesen (Guardian Ad Litem of) v. Henning, [1992] B.C.J. No.
195 (S.C.) a 15-year-old plaintiff was involved in a motor vehicle accident as
a passenger. She banged her head on the roof of the car. The court found that
she had sustained mild whiplash, together with a comminuted compression
fracture of the transitional vertebra as well as injuries to her neck, back and
rib resulting in temporary pain. The plaintiff also suffered some mild brain
damage. Due to her brain damage, the plaintiff would not be able to grasp
things as quickly and as effortlessly as before (she had been a particularly
gifted child). It would take her somewhat longer to comprehend new concepts and
memorize her studies. Though her recovery was mostly resolved, she might
continue to suffer some pain in the future. Her life goals were now mildly
restricted. Non-pecuniary damages for the cerebral impairment, the neck and
back pain and the compression fracture were assessed at $50,000. An additional $25,000
was awarded for the cerebral impairment and $25,000 for the other injuries.

[20]        
In Sage v. Renner, 2007 BCSC 1357, the plaintiff was awarded
non-pecuniary damages of $65,000 for various injuries resulting from an assault
at a lacrosse game. The defendant had assaulted the plaintiff by head-butting
him, causing him to fall backwards through a door, striking his head on the
wall. The plaintiff suffered soft tissue injuries, a laceration and fracture to
the nose and a close-head injury/concussion. The most significant long-term
consequence was chronic pain associated with thoracic outlet syndrome which had
been caused by the assault. This had a significant impact on the plaintiff’s
quality of life, as he had been very active. As a result of the assault, he
experienced a number of psychological problems, including sleep disturbance,
headaches, depression, anxiety, significant forgetfulness, emotional problems,
and irritability. The court awarded $65,000 for non-pecuniary loss.

[21]        
In Stevens v. Plachta, 2005 BCSC 1780, the plaintiff was involved
in a single-car accident. She was 16 years old and was active in sports at the
time of the accident. Following the accident, she was hospitalized for six
days, was confined to her bed at home for approximately two weeks, had limited
mobility for the remainder of the school term, and was unable to return to her
part-time employment in the first two months of her recovery period. She
suffered a nasal bone fracture which stabilized after two surgical sessions.
She also suffered spinal fractures to four of her lumbar vertebrae which
produced chronic back pain. With respect to the head injuries, the court found
that the plaintiff exhibited significant weakness in visual sequencing, mental
arithmetic, receptive vocabulary, and that she had relative difficulties with
tasks that involved attention, concentration and short-term recall. The court
found neurological damage to the side of the brain that controls verbal
functions and resulted in the plaintiff having difficulty in verbal fluency.
The trial judge awarded $85,000 in non-pecuniary damages.

[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.

[23]        
The plaintiff is entitled to receive damages for past wages lost in the
amount of $4,842.

[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.

[25]        
The plaintiff is awarded $1,428 for the lost wages of his mother while
she took time off work to care for the plaintiff.

[26]        
The plaintiff will receive $50 as special damages for the value of a
necklace lost in the assault.

[27]        
There will be no award for punitive damages. The plaintiff has not
established that this is an exceptional case or that the assault was malicious,
oppressive or high handed, as discussed in Whiten v. Pilot Insurance Co.,
2002 SCC 18, [2002] 1 S.C.R. 595 at para. 36 [Whiten]. Furthermore,
other factors to consider in proportionality for such an unusual award, as
outlined in Whiten at para. 62, have not been addressed either
adequately or at all.

[28]        
The plaintiff is entitled to costs at Scale A.

“Dillon J.

________________________________

The Honourable Madam Justice Dillon