IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111104

Docket: S73094

Registry:
New Westminster

Between:

Steven Richard
Saether

Plaintiff

And

Robert Scott
Irvine and Gordon Bechler

Defendants

Before:
The Honourable Mr. Justice Williams

Reasons for Judgment

Introduction

[1]            
In the early morning hours of July 29, 2001, an altercation occurred in
front of a home in Maple Ridge. The plaintiff, Steven Richard Saether, was very
significantly injured in the event. By this action, he seeks to recover from
the defendant Robert Scott Irvine, damages for those injuries and the
consequences which have resulted.

[2]            
At the outset, it will be useful to note that the principal issue at
trial was the determination of the legal responsibility of the parties. Accordingly,
these reasons will commence with a careful examination of the evidence of the
events of July 29, 2001 in order to make findings of fact which will be
necessary to determine the issue of liability. That was the principal, indeed sole,
area of controversy at trial.

[3]            
Mr. Irvine was the only defendant at trial. He represented himself
and focused his efforts on the issue of liability: while he concedes that he
struck the blow which caused the plaintiff’s injuries, he says that the circumstances
were such as to very substantially limit his responsibility at law. He did not
mount any challenge to the evidence tendered by the plaintiff with respect to
the extent of the injuries and the resulting disabilities and damages.

[4]            
That evidence was extensive, and included the testimony of the
plaintiff’s family doctor and the reports of a number of medical experts. In
addition, non-medical expert reports were tendered, including a chartered
accountant, a vocational rehabilitation specialist, an occupational therapist,
an architect and an economic consultant.

[5]            
After I have dealt with the issue of liability, the other elements of
the plaintiff’s case will be examined and the appropriate findings made.

The Circumstances

[6]            
At the relevant time, in the summer of 2001, the plaintiff, then aged 26
years old, was sharing a residence with some other young men in Maple Ridge. On
the evening of July 28^th, the plaintiff and one of his roommates,
Dean Klassen, went out to a nearby pub. Later in the evening, they went to
another pub to join some other friends. They stayed there for a while,
socializing. Sometime around 2:00 a.m. they left. They were travelling in the
plaintiff’s automobile; the plaintiff was driving. They drove one of their
friends home, and then were making their way back to their residence. Mr. Klassen
was in the passenger seat of the vehicle.

[7]            
The plaintiff was travelling westbound on 117^th Avenue. As he
passed through an intersection at 209^th Street, he and Mr. Klassen
say they felt something that appeared to strike their vehicle; he and Mr. Klassen
described the sound as being like something had been thrown and had struck them.
They didn’t know what it was so they turned around so they were then heading
eastbound. They stopped for the stop sign at the intersection at 209^th
Street and then continued on. As they passed through that intersection, the
plaintiff says that he observed two men on the lawn of the residence near the
corner. He says one of them had a golf club.

[8]            
After travelling eastbound for a short distance, the plaintiff turned
around again and started back westbound. Again, he stopped at the stop sign at
the 209th Street intersection, in front of the house where he had seen the two
men. In the short time following that, the events occurred which have resulted
in this action.

[9]            
The house located on the northeast corner of that intersection was owned
by the defendant Mr. Irvine. He lived there, together with his father and Mr. Bechler,
the other named defendant, who was at the time a tenant living in the basement.
Mr. Irvine and Mr. Bechler were coworkers.

[10]        
When the plaintiff’s vehicle stopped at the stop sign at 209^th
Street, Mr. Bechler was out in front of the house. Evidently he had been
at a wedding reception in the neighbourhood and was making his way home to the
Irvine residence.

[11]        
Mr. Bechler was and is a large, physically fit, rough and tumble
man. He has from time to time been known to engage in street fights and bar
fights; he is not by any means at all one to shy away from a scrap, and I am
confident in concluding that he did not at all mind engaging in such
activities.

[12]        
Mr. Klassen, seated in the passenger seat of the plaintiff’s
vehicle, was of a similar kind of character. He too had been drinking. He was a
good sized man, physically able and not one who would be reluctant about joining
in a fight if a fight were to present itself.

[13]        
I have no way of knowing what exactly happened between these two men to
cause events to develop as they did. However, I am satisfied that Mr. Bechler
was out in the front of the yard, not far from the road (there is no sidewalk
at that location) and that he and Mr. Klassen exchanged unpleasant words. In
no time at all, the verbal confrontation became physical. Mr. Klassen got
out of the passenger’s door of the vehicle and moved toward Mr. Bechler; Mr. Bechler
was quite prepared to engage and in an instant, the fight was on. There may
have been punches thrown, but quite quickly it became a situation where the two
men were wrestling and grappling. They fell to the ground and were rolling
around fighting with one another.

[14]        
Two other individuals were about to become involved.

[15]        
One of those was Mr. Irvine. He was in his home and became aware
that there was something going on outside, in the front yard, involving his friend
and tenant, Mr. Bechler.

[16]        
There is nothing in the evidence to suggest that Mr. Irvine had
been drinking at the time. In fact, he had his son visiting with him overnight and
there is no reason to disbelieve his claim that he had fallen asleep with the child
sometime before the events at issue and was awakened at some point by the
occurrence outside his place or the arrival of Mr. Bechler.

[17]        
I also accept that Mr. Irvine was, at the time of these events, in
a physically compromised situation. He had a hernia and was scheduled for
surgery a short time later. He testified that he was not able to move around
quickly and was in no condition to engage in a fight.

[18]        
Shortly before the critical event, Mr. Irvine made his way out of
his house, down the front steps and into the front yard where the two men were
engaged in their altercation. When he got to where the men were, he had a golf
club in his hand. Precisely how that happened is an issue of some dispute, and
I will discuss it further in these reasons. For now, suffice to say that he was
there in the immediate vicinity of the two men on the ground, and he was
carrying the golf club.

[19]        
At about the same time, the plaintiff arrived on the scene. When he saw
his friend Mr. Klassen bolt from the vehicle and engage with Mr. Bechler,
he was understandably concerned and got out of his vehicle, making his way
around the rear and then approaching the two men where they were grappling.

[20]        
Exactly what happened after this is a matter of some considerable
contention. Speaking generally, Mr. Irvine says that the plaintiff was
either involved in the fight, and thus there were two men attacking Mr. Bechler,
or, alternatively, it was a situation where the plaintiff approached the two
grappling men in a way that caused him (Mr. Irvine) to believe that the
plaintiff was going to become involved in the fight. His testimony included
both scenarios. At any rate, Mr. Irvine swung the golf club. He had a
two-handed grip on the club and swung it at the plaintiff. The club head struck
the right side of the plaintiff’s head and crushed his skull. The effect was
instantaneous. The plaintiff was bleeding and went down.

[21]        
All of the others appeared to recognize that something very serious had
taken place. The two men on the ground stopped fighting. Mr. Klassen got
up and immediately took the plaintiff to the vehicle and then left, proceeding
directly to hospital. Mr. Bechler and Mr. Irvine went inside the
house. Mr. Bechler went downstairs where he effectively passed out. Mr. Irvine
tended to his son, who he says had been awakened by the events and was at the
front door of the house toward the latter part of the proceedings.

[22]        
When examined in detail, there is a quite substantial difference between
the events as they are described by the plaintiff and Mr. Klassen, as
compared to the description provided by the defendant Mr. Irvine and Mr. Bechler.

[23]        
The essence of the version provided by the plaintiff and Mr. Klassen
is that the vehicle stopped, Mr. Klassen got out to engage with Mr. Bechler,
the two went to the ground and wrestled; the plaintiff approached but did not
involve himself in the fight in any physical way and it was at that point that
the blow was struck by Mr. Irvine.

[24]        
The description of events provided by both Mr. Irvine and Mr. Bechler
is materially different. Both of them say that there was an initial altercation
between Mr. Bechler and Mr. Klassen.

[25]        
Mr. Bechler says that in that first fight, he was confronted by two
men from the vehicle, there was some wrestling and grappling, involving both
the passenger and the driver, but he was able to extricate himself and run to
the front door of the Irvine residence where he called for help. He testified
that he then took the golf club which was located near the front door and carried
it outside with him where he brandished it so as to deter both the plaintiff
and Mr. Klassen who were out there, apparently intent upon engaging him. His
testimony is to the effect that after he had waved or brandished the golf club so
as to threaten the two assailants, one of them (presumably the plaintiff)
backed off. Apparently believing the situation was manageable, Mr. Bechler
claims that he put the golf club down in the yard and then re-engaged with Mr. Klassen.
The fight resulted in the two of them going back to the ground.

[26]        
Significantly, in his description of the events, while Mr. Bechler
claims that the plaintiff was involved in the first fight, he testified that
only he and Mr. Klassen were involved in the second fight, and that the
plaintiff had no part in it.

[27]        
Mr. Irvine describes hearing noises outside and recognizing that
his friend Mr. Bechler was involved in an incident. He (Mr. Irvine)
says that he then went to the front door and down the steps to assist his
friend. He testified that he did not take the golf club with him but rather
found it in the yard (where presumably it had been left by Mr. Bechler)
and that he armed himself with it because of his very compromised physical
condition.

[28]        
The essence of Mr. Irvine’s evidence is that he was convinced that the
actions of the plaintiff constituted an attack upon Mr. Bechler: he says Mr. Bechler
was being or at immediate risk of being seriously assaulted by the two men from
the truck. It was in light of that factor, plus his concern for his own safety
and that of his son (sleeping inside the house) and his property that he says he
applied the force he did to the plaintiff, that is, struck him with the golf
club.

[29]        
I have examined in careful detail the evidence of each of the four
witnesses who have described the events that occurred in front of the house.

[30]        
Dealing first with an event at a point somewhat earlier in time, the
plaintiff testified that, when he went by the Irvine residence earlier, after
having stopped and turned around to investigate the cause of the noise he had
heard, he saw two men on the lawn in front of the Irvine residence and that one
of them had a golf club. He says the light was not good and he was not able to
make out the specific features of the persons. Both Mr. Irvine and Mr. Bechler
deny that that occurred.

[31]        
On that point, Mr. Klassen says that he didn’t see anyone as they
went by the house after first having turned around to go east, but when they
arrived there the second time, Mr. Bechler was in the yard, on the grass
between the house and the street. He also testified that he saw the outline of another
person inside the house and that it was Mr. Irvine. He described the door
of the house being open and the lights being on. He said that Mr. Irvine
had a golf club in his hand.

[32]        
Based upon a careful examination of the evidence, I am simply unable to
reach a conclusion as to what occurred prior to the altercation. Accordingly, I
decline to make a positive finding that the two men (Mr. Irvine and Mr. Bechler)
were out front with the golf club when the plaintiff’s vehicle went by. That is
not to say it did not happen that way – however, the state of the evidence does
not support such a finding being made.

[33]        
That said, I do not find that specific issue to be especially critical
to an examination of what subsequently occurred.

[34]        
A significant point of divergence between the two accounts is with
respect to whether there was one incident (as described by the plaintiff and Mr. Klassen)
or whether there were the two separate stages of the altercation, as described
principally by Mr. Bechler and supported by Mr. Irvine. In my view,
that latter description of events is illogical and is not borne out by the
evidence.

[35]        
First of all, it seems to defy logic that Mr. Bechler would fight
off the two men, then run inside, alert Mr. Irvine, grab the golf club,
run out, wave the golf club around, then put it down and go re-engage with the
assailants or one of the assailants. That simply makes no sense.

[36]        
In my view, the evidence of Mr. Irvine is in fact the most telling
with respect to this dispute. He testified that once he had gone down the
stairs and had picked up the golf club and was making his way toward the men
who were grappling, he saw the plaintiff come around the back of the automobile.
To my mind, that is quite compelling evidence that that was the point in time
when the plaintiff arrived at the scene of the fight. It is inconsistent with
the plaintiff having been already involved in an earlier altercation with Mr. Bechler.

[37]        
My conclusion as to that matter is based on the view that it seems
illogical to believe that the plaintiff was initially out of his vehicle and
engaged in the altercation with Mr. Bechler and Mr. Klassen, that he
returned to his vehicle and that he then got out and came to the scene again.

[38]        
Furthermore, when pressed, Mr. Irvine does not maintain his
position that the plaintiff was involved in the fight, but rather appears to
claim that the plaintiff was approaching the fight in a way that he (Mr. Irvine)
perceived to be threatening, in a way that caused Mr. Irvine to believe
that the plaintiff was about to become involved in the fight.

[39]        
The evidence of Mr. Irvine on the issue of the plaintiff’s actual
involvement is somewhat inconsistent. At points in his testimony, he says that
he saw the plaintiff kick at Mr. Bechler while Mr. Klassen was on top
of Mr. Bechler. He then clarified his testimony and described it as an
“attempt to kick”.

[40]        
At his examination for discovery, he appeared to indicate at one point
that he did not have a clear recollection of the plaintiff’s physical involvement,
but said “I know he was in [the fight] or I wouldn’t have hit him”. At
trial, he appeared to accept that that was a truthful answer, but then said
that he has a clear recollection of the plaintiff fighting.

[41]        
It is apparent that these events occurred in a very brief period of time.
Mr. Klassen estimated that it was at most a minute from beginning to end;
the plaintiff said that he believed that it was about 20 seconds from the time
he got out of his vehicle until he was struck and everything went dark and he
was on the ground.

[42]        
Taking all of the evidence into account, I find that, up to the point
where the golf club was swung at him, the plaintiff had not been involved in
the altercation between Mr. Klassen and Mr. Bechler; he had got out
of the driver’s door of his vehicle and was approaching (for the first time)
the site where the two men were fighting when he was struck by Mr. Irvine.
More specifically, I find that he did not make any physical attack on the two
men (and particularly Mr. Bechler) nor was he doing anything that would
reasonably indicate that he was about to join in the fight.

[43]        
Some mention is warranted concerning the state of sobriety of the
parties involved in this event. It is reasonable to conclude that the
plaintiff, Mr. Klassen and Mr. Bechler were all in states of some
intoxication. The plaintiff and Mr. Klassen had been out for a number of hours
and had been at two different drinking establishments. I assume they were under
the influence of alcohol to some degree at least. Mr. Bechler had been at
a wedding reception and had been drinking as well. Thus all three of these men
were likely intoxicated at the time of the events. As for Mr. Irvine, as
mentioned earlier, there is no evidence to suggest that he was other than
sober.

[44]        
In assessing the evidence and deciding this case, I have borne those
considerations in mind. However, to my mind, they do not materially impact the
findings and the analysis that is required to be made.

Legal Analysis

[45]        
The plaintiff says Mr. Irvine’s conduct constitutes the tort of
assault and battery. Alternatively, he alleges that Mr. Irvine was
negligent in swinging or throwing the golf club at or near him.

[46]        
In his statement of defence, Mr. Irvine says that the plaintiff was
a trespasser on his property. He says that he acted in good faith to defend and
protect his friend Mr. Bechler, his property and his young son, and that
the force he used was reasonable in the circumstances. He also says that the
plaintiff’s conduct was reprehensible and illegal and he pleads and relies upon
the doctrine of ex turpi causa non oritu actio. Additionally, he says
that the plaintiff assumed this risk of harm when he trespassed on the property
in order to assault Mr. Bechler, and the defendant relies on the doctrine
of volenti non fit injuria.

[47]        
In his statement of defence, Mr. Irvine also denies that he was
negligent in the circumstances.

[48]        
In my view, the matter is most appropriately analyzed within the
framework of the allegation of assault and battery. I will mention briefly the
matter of negligence after I have discussed the assault allegation in detail.

[49]        
Assault is the intentional creation of the apprehension of imminent
harmful or offensive contact (Allen M. Linden & Bruce Feldthusen, Canadian
Tort Law, 9^th ed. (Markham, ON: LexisNexis Canada Inc., 2011) at
p. 46). Battery is the intentional application of force constituting a
harmful or offensive contact with another, without the other’s consent.

[50]        
In my view, the appropriate focus of the analysis in the present case is
upon the allegation of battery.

[51]        
Once the plaintiff has established that there was a battery, and that
injuries were caused by it, the defendant has the onus of establishing any
defence he may have and, in addition, that the force used was reasonable in the
circumstances.

[52]        
The law does not provide an absolute bar to the use of force. In fact, a
party will be permitted to use force where it is taken for the purpose of
defending himself or another or in defence of that person’s property. However,
the force used to effect that defence must not be more than necessary for the
purpose at hand: it cannot be unreasonably disproportionate to the nature of
the evil sought to be avoided. Where the force used by the defendant falls
within that scope, that is, acting in such defence and not of an excessive
degree, the defendant will not be liable.

[53]        
The degree of force used will not be subjected to an especially critical
examination: it has been said that the law will not concern itself with
niceties in such matters.

[54]        
Accordingly, in this case, given that the plaintiff has established the
battery and that injuries were caused, the burden shifts to Mr. Irvine to
establish that he was acting justifiably, that is, in defence of himself,
another or his property, and that the force he used was reasonable, that is,
not excessive in the circumstances.

[55]        
In the present case, Mr. Irvine does not deny that he struck the
blow at issue. More specifically, to be clear, I find from the evidence and
particularly from his testimony, that he swung the club with the intention of
hitting the plaintiff (although I accept that he did not intend to cause a
serious injury of the type that resulted, but that is not the issue). It was
not simply a careless act that resulted in the club contacting the plaintiff. However,
he says that he did so in circumstances where his actions were justified; he contends
that he did so in order to defend Mr. Bechler who was being attacked by
two men. He says as well that his actions were justified because he was acting
to protect himself and his son, and to protect his property. In his submission,
it is important to recognize that his physical condition was compromised by his
hernia injury.

[56]        
In my view, these contentions are not capable of amounting to a
justification that would relieve him of liability. As explained above, I do not
accept that the plaintiff was involved in an attack upon Mr. Bechler when
the blow was struck, nor is it reasonable to believe that the plaintiff was
about to enter the fray or that physical force was necessary to defend Mr. Bechler.

[57]        
To the extent Mr. Irvine may have believed it was necessary to use
force to subdue the plaintiff, his assessment was in error.

[58]        
As noted, it is clear that Mr. Irvine’s action in striking the
plaintiff with a golf club was intentional. As for his claim that he acted in
response to a mistaken belief that the plaintiff was attacking Mr. Bechler,
that cannot serve to relieve him of liability. That is so because, if a
defendant desires to produce a particular result which he mistakenly believes
to be innocent or justified, he may nevertheless be held liable for intending
the consequence of his action (Linden, p. 37). Furthermore, as an
observation, I would reiterate that, in the circumstances as I have found them
to be, Mr. Irvine’s claim to have made that mistake is not tenable. That
is so with respect to the contention that the plaintiff represented an imminent
threat to Mr. Bechler. It has even less credence with respect to there
being a threat to Mr. Irvine, his child who was sleeping in the house or
his property. The plaintiff did not realistically present a threat in any of
those ways.

[59]        
Mr. Irvine’s claim of justification must also fail on another basis.
Even if there had been a proper basis to use force to defend against the threat
represented by the plaintiff, the decision to strike a two-handed blow with a
golf club to the side of a man’s head was a markedly excessive and
disproportionate measure. Mr. Irvine is a mature adult; he was a
well-experienced golfer. There can be no doubt that the force he applied in the
circumstances was not justified and not justifiable.

[60]        
As mentioned, there were two other legal bases of defence advanced in Mr. Irvine’s
pleadings.

[61]        
The first of these is the applicability of the concept of volenti non
fit injuria. That is the notion that a plaintiff who would otherwise be
entitled to tort recovery may be denied it on the ground of the voluntary
assumption of risk. In the context of the present matter, it would mean that
the plaintiff, by virtue of his decision to participate in a fight, should be
taken to have voluntarily assumed the risk of incidental injuries to himself.
There is however a limit to the applicability of the principle: it does not
extend to encompass risk of a savage blow out of all proportion to the
occasion.

[62]        
It is my view that the volenti principle simply does not assist Mr. Irvine.
On the facts as I have found them, the plaintiff was not engaging in an
altercation. He was approaching the scene of two men wrestling on the ground. He
was not a participant in a fight and so there is no basis to conclude that he
was implicitly agreeing to take on the risk of incidental injury. Of course,
the force that was inflicted upon him was entirely beyond the realm of “incidental
injury”; it was a savage blow, well out of proportion to the occasion.

[63]        
The second concept to be considered is that of the defence of
illegality, commonly cited as the Latin maxim ex turpi causa non oritu actio.
This is a legal principle which holds that a plaintiff cannot succeed in a
claim which would permit him to profit from an illegal or wrongful act or to evade
a penalty prescribed by criminal law.

[64]        
This principle has been the subject of some considerable judicial
examination and analysis. It is fair to say that there is some controversy as
to its reach and applicability.

[65]        
It is not necessary to spend a great deal of time engaged in that
discussion here. The answer is straightforward: the plaintiff was not engaged
in any illegal conduct at the time he was struck.

[66]        
The principle of ex turpi causa is not any bar to the prosecution
of the plaintiff’s claim and does not assist Mr. Irvine in his defence.

[67]        
As noted, the plaintiff’s statement of claim also alleges negligence; in
his statement of defence, Mr. Irvine denies that he was negligent.

[68]        
Based upon the analysis which I have just explained, I am satisfied that
the matter at bar is most appropriately understood within the context of the
intentional tort analysis. I do not find it necessary to examine the matter in
the context of the negligence analysis. The striking of the blow was an
intentional act, not an act of negligence.

[69]        
In conclusion, I am satisfied that when Mr. Irvine struck the blow
to the plaintiff’s head, his actions constituted the intentional tort of
battery, and that he is liable in damages to the plaintiff.

Apportionment

[70]        
The Trial Record discloses that the pleadings originally named Mr. Klassen,
Mr. Bechler and Mr. Irvine as defendants. At trial and in the course
of submissions, it was indicated to the Court that the plaintiff’s claim
against the former two persons had been resolved; I was not advised of the
details and have no reason to know them. However, as a practical matter, that meant
that this trial was concerned only with the determination of liability of Mr. Irvine,
subject of course to any adjustment or apportionment that would reflect the
contributory fault of the plaintiff.

[71]        
In the result, I find that Mr. Irvine is responsible for the injury
to the plaintiff. I find no basis to apportion responsibility to the
plaintiff.

Consequences of the Assault

[72]        
The injuries sustained by the plaintiff were profound and catastrophic. Prior
to the incident, he was an able-bodied young man, employed as a parts man for
an automobile dealership.

[73]        
The blow struck resulted in a severe traumatic brain injury. He is now
severely compromised in virtually all facets of his life: physically,
intellectually, emotionally and socially.

[74]        
At trial, I heard the plaintiff describe the effects of the event upon
him. I also heard the testimony of his mother and a former employment supervisor.
As for medical evidence, reports were filed from the plaintiff’s long-term
family doctor and he testified at trial.

[75]        
As noted earlier, a substantial body of evidence dealing with the
details of the medical findings, treatments and procedures was tendered by way
of reports filed in accordance with the Rules of Court. A similar body
of evidence was provided with respect to the economic aspects of the injury.

[76]        
Based upon the evidence, both viva voce and received by way of
expert reports, I make the following observations and conclusions.

[77]        
After being admitted to hospital following the assault, a surgical
procedure was performed to elevate the area of the skull that had been
depressed by the blow from the golf club. The wound was treated and the lining
of the brain was repaired. Initially matters appeared to be progressing
favourably. Approximately one week later, there was a significant complication:
the plaintiff developed a large intracerebral haemorrhage which required a
second major brain surgery. That procedure found bone fragments deep in the
brain matter in conjunction with the haemorrhage. The plaintiff’s recovery following
that event was long, difficult and limited. Initially, he required tube-feeding
and complete personal care. His speech was impaired and breathing was such that
he required an operation for respiratory support. He had profound left-side
paralysis. A further complication was the development of pneumonia.

[78]        
Slowly, consciousness returned, he recovered most of his speech ability
and he regained the ability to eat and control his bodily functions. The
paralysis did not resolve.

[79]        
He was subsequently transferred from hospital to the G.F. Strong
Rehabilitation Centre and remained there for approximately four months. While
at that facility, he was involved in extensive therapy directed to improving
his physical ability such that he was able to recover some mobility, as well as
cognitive therapy.

[80]        
When he was discharged in February 2002, he was in a wheelchair and able
to dress, groom and care for himself with some assistance. He initially moved
into the home of his mother and her husband. He received out-patient therapy at
a hospital in his community. Through this time, he was suffering from substantial
bouts of fatigue and depression.

[81]        
His progress was difficult. In October 2003 he was admitted to the
G.F. Strong Centre Acquired Brain Injury Program. He remained there for
three weeks.

[82]        
At one point, he arranged to acquire his own home, but that was not especially
successful; he was not as independent as he might have hoped, and found the
isolation more than he could handle.

[83]        
Since December 2008 he has resided in a suite in his mother’s home. That
is more in keeping with his actual circumstances, as he is quite dependent.
There is no question that the support provided by his mother is quite necessary
to enabling him to function on a day to day basis.

[84]        
As at the time of trial, it appears that he has made all the progress
that can be expected. While he was initially completely wheelchair-bound, he
has now managed to learn to walk, but clearly that is a limited ability and he
requires his wheelchair as well. He is cognitively limited and his memory is
deficient. His use of his left hand is limited because it is contorted and
takes on a claw-like configuration; he is easily fatigued. In 2004 he acquired
a motor vehicle which was specially fitted to enable him to drive and he does
so, although that is not without its limitations.

[85]        
The plaintiff experiences depression on a fairly ongoing basis. He has
difficulty with sleeping and anxiety. Socially, the event and the injuries have
substantially changed him. While he endeavours to maintain a social network, it
is evident that he has lost his relationship with many friends and lives a
relatively isolated life. The psychological assessment indicates a change in
character, particularly that he is immature, self-centred and disinhibited, all
of which makes having anything near a normal social life more difficult. While
he indicates that he wanted very much to have a relationship with a woman, that
has not come about. For him, life is quite depressing and lonely.

[86]        
In terms of occupational attainment, the assault and its consequences
have changed his trajectory completely. He graduated from high school in 1993.
It would appear that he was an average student and active in sports and social
events. Upon completion of high school he had a job at a reforestation company
but was laid off. He later took a job in an automotive dealership as an
apprentice parts man. He completed the four-year program and obtained
journeyman qualification. He was laid off from his first job but was recruited
by another car dealer and at the time of the assault, held the position of
assistant parts manager. Based upon the evidence, it is apparent that he was
competent and well-regarded in that employment.

[87]        
At one point, as part of his recovery efforts, he attempted a partial
return to the workforce. He volunteered to help out at his place of employment,
but it became readily apparent that the fatigue that he experienced, together
with the memory difficulty and other problems, simply made that an impossible
ambition.

[88]        
Today, it is apparent that the consequences of the assault have rendered
him not competitively employable due to the nature and extent of the physical
cognitive and emotional difficulties that he sustained.

Damages

[89]        
The claim is framed in terms of a number of specific heads of damages. Although
they were dealt with quite summarily at trial, I have examined all of the
evidence which has been tendered.

Non-pecuniary damages

[90]        
It is the submission of the plaintiff that the rough upper limit should
be considered in relation to this head of damages, taking into account all the
circumstances of the plaintiff’s loss. Relevant factors will include the
plaintiff’s age, the nature of the injuries, the severity and duration of pain,
disability, emotional suffering, impairment of social relationships, impairment
of physical and mental abilities and loss of lifestyle.

[91]        
In Blackstock and Vincent v. Patterson et. al. (1982), 35
B.C.L.R. 231 at 237‑238, the Court said this:

 Once it was
determined that the plaintiffs suffered severe personal injuries the court
concluded as a matter of policy that the limit for non-pecuniary damages should
be fixed at $100,000. This conclusion was not based on the view that the awards
made by the lower courts in the trilogy cases were excessive or that there was
no distinction between the cases, but was based on the premise that in the case
of all "severely injured plaintiffs", in order to avoid extravagant
claims, an upper limit of $100,000 should be imposed. It follows, that even if
the respondent’s injuries could be said to be different from or not quite as
severe as those suffered by the plaintiffs in the trilogy cases, her injuries
were found by the trial judge to be "devastating", and, therefore,
fell within the $100,000 category fixed in Lindal [v. Lindal,
34 B.C.L.R. 273 (S.C.C.)] and the trilogy cases.

[92]        
In my view, the evidence clearly establishes that Mr. Saether
suffered severe personal injuries in this incident. He sustained a severe
traumatic brain injury which has substantially limited his mobility, and his
ability to interact with others and deal with the everyday events of life. His
life expectancy has been diminished. The life he had has been profoundly and
irreparably changed. In every way, his ability to go forward enjoying his life
has been devastated. In all those circumstances, I am satisfied that the
plaintiff’s situation properly warrants an order for damages toward the very
upper end of the range. Considering that the rough upper limit, as adjusted, is
approximately $335,000, I fix those damages at $300,000.

Past income loss

[93]        
The assessment of damages for past loss of income is properly
characterized as an assessment of damages for loss of past earning capacity. In
this case, as a consequence of the injuries that he sustained, Mr. Saether
has been effectively precluded from earning any income.

[94]        
The evidence satisfies me that the plaintiff was well-established in his
employment; he was well-regarded and there seems no basis to believe his
circumstances were anything other than stable and promising.

[95]        
Based upon the evidence of Mr. Clysdale, his supervisor at work, it
is reasonable to conclude that his income would have risen in the years that
follow, and it is evident that bonuses formed part of the remuneration of the
position. The evidence establishes that the plaintiff had positive prospects of
continuing to be employed with and advance with his employer. There is also the
fact that this man had real aspirations to pursue a career as a fire-fighter. The
material in evidence suggests that would have been a viable alternative
vocational path for him.

[96]        
I have had reference to the report of Stephen Bush, C.A., respecting
this loss, and have examined the material in support. Mr. Bush did a
calculation of the projected loss through 2006. Beyond that point, there is a
greater element of speculation, taking into account the real possibility of Mr. Saether
transitioning to another career.

[97]        
The manner in which I have arrived at a value for the loss of income
through to date of trial is explained as follows. His gross income for the year
prior to the assault, 2000, was $35,654.15. For 2001, up to the point of the
event, his employment earnings totalled $22,179.00. Those are established facts.
Moving past that, there is of course an element of guesswork entailed in
quantifying the loss. The task includes making reasonable allowances for
increases that would likely have occurred. It also involves recognizing that
there are contingencies involved; the outcome cannot be assumed to be certain.

[98]        
I have made my assessment on the expectation that Mr. Saether would
have remained in his employment and continued to progress to a more senior
position. I also find it reasonable to expect that there would have been
some bonus remuneration available to him, although I have assigned modest value
to that component. I base those conclusions upon the evidence of Mr. Clysdale.

[99]        
I have assumed that his annual income would be as follows:

 2002-  $38,000        2003-  $40,000        2004-  $42,000

 2005-  $43,000        2006-  $45,000        2007-  $50,000

 2008-  $55,000        2009-  $62,000        2010-  $70,000

[100]     I note
that my calculation includes only five months for 2001 (the balance of the
year, subsequent to the assault) and only ten months of the year 2010, as that component
of the damages claim extends only to the date of trial.

[101]     Assuming
the figures above represent the income which would have been earned by Mr. Saether,
I estimate the loss to date of trial, before any adjustment, to be $441,133.

[102]     That sum
has to be subject to some adjustment for contingency. In my view, that would be
fairly minimal, given that these numbers have made virtually no allowance for
upside contingency (that is, bonus income) and given that the prospects of him
being able to maintain that employment seem quite reliably predictable. In the
result, I will discount the gross figure by 8%. The end result is $405,842. Mr. Saether
will be awarded the sum of $405,800 under this head of damage.

[103]     I note
that the numbers I have used are without deduction for income tax. As this
is not a matter governed by the ICBC legislation (Insurance (Vehicle) Act,
R.S.B.C. 1996, c. 231, s. 98), the award will not be reduced to
reflect net income versus gross income.

Loss of capacity

[104]     This deals
with the award that the plaintiff should be entitled to recover as a
consequence of his ability to work at his chosen vocation having been lost. In
this case, I am satisfied on the basis of the expert evidence that the
plaintiff has no residual employability. The injuries that he has suffered
render him unable to attain or maintain a job in the competitive job market.
That includes the employment he was engaged in, the employment to which he
aspired and any other even minimally-remunerative occupation.

[105]     The
Court’s assessment of this loss also takes into account that the evidence
establishes that the plaintiff had demonstrated aptitude, personality, work
ethic and drive that would strongly indicate that he would be successful at the
endeavours he pursued.

[106]     The
assessment of this head of damage is informed by the report prepared by Mr. Derek
Nordin, who has prepared a vocational assessment, and the report of Mr. Kerr,
an occupational therapist who has prepared a work capacity evaluation.

[107]     Mr. Robert
Carson, a consulting economist, has prepared a table setting out present values
of future sums, including the usual discount adjustments that apply. He has
calculated that the net present value, per $1,000 of income, allowing for
income through to age 65, is $20,212.

[108]     Quite
obviously, there is an element of guesswork and speculation in attempting to
decide appropriate values. In the present case, it is my view that, approaching
the matter conservatively, an annual income of $85,000, projected over that
length of time, and allowing for a reduction on account of the CPP disability
benefits which Mr. Saether receives, is a fair and reasonable figure. That
results in a net present value of approximately $172,000. Adjusting further for
other vagaries and contingencies, it is my conclusion that an appropriate award
under this head is $1,375,000. That allows for a negative contingency of
approximately 20%.

Cost of future care

[109]     A number
of reports have been filed in support of the claim for future care. One
particularly thorough report is that of Mr. Kerr, based upon a review of
the medical and rehabilitation reports, interview with the plaintiff and the
results of a work capacity evaluation finding. Mr. Kerr also interviewed
the plaintiff’s mother. His report includes a series of recommendations for
future care. In turn, the economist Mr. Carson has taken those
recommendations and provided an assessment of the cost of providing that care.
In his tables, he has assessed the claim on the basis of items and services
necessary to provide supported living, assuming the plaintiff lives with his
family or is in his own home. For that situation, he has derived a high and low
estimate, providing present values. He has also generated values which allow
for the plaintiff to resort to residential care facilities. Again, he has
provided high and low estimates of the present value.

[110]     The
amounts calculated by Mr. Carson to represent the present value of the
stream of expenses range between a low of $987,046 and a high of $1,146,828.

[111]     There are
a great many unknowns in the matter; for example, the support that his mother
is able to provide for him is a significant factor in how he will manage. How
she will be able to assist him in the future and for how long cannot be
predicted. That is just one of a great many variables.

[112]     In my
view, it is appropriate that the award of damages under this head be set at
$1,075,000.

Special damages

[113]     The
plaintiff has tendered a schedule of special damages arising from the injury.
It comprises travel expenses for attendance at appointments, counselling and
neurophysiotherapist fees, necessary items such as orthotics and a wheelchair,
as well as wheelchair modifications to his home (stair-lifts) and the purchase
of a van.

[114]     The total
value of all of the items is $42,976.66.

[115]     I am
satisfied that these are reasonable expenses which have resulted from the injuries
sustained; the plaintiff is entitled to recover those damages.

Summary Conclusion on Damages

[116]     Mr. Saether’s
injuries were caused by Mr. Irvine’s assault that occurred in the early
morning hours of July 29, 2001. I have assessed his damages in the following
amounts:

(a)      Non-pecuniary loss –                    $300,000

(b)      Past income loss –                       $405,800

(c)      Loss of future earning
capacity –  $1,375,000

(d)      Cost of future care –                              $1,075,000

(e)      Special damages – $42,976.66

  TOTAL:                                      $3,198,776.66

Costs

[117]     The
plaintiff is entitled to recover his costs at Scale B.

Final Observations

[118]     The events
of the early morning of July 29, 2001 which gave rise to this proceeding are
enormously tragic. As a result of a brief episode of bad judgment and bad
fortune, the life of Mr. Saether was forever changed in a very devastating
way.

[119]     Mr. Irvine’s
life too had been very profoundly affected by this matter. He defended himself
at trial. He is neither trained for that task, nor is he someone who is experienced
in doing so. Nevertheless, I think it bears mention that he did so in a sensible,
thoughtful and respectful way. It is clear that he never intended to inflict
serious injury on Mr. Saether, and it is clear as well that he feels great
genuine compassion for Mr. Saether’s plight. It is, in my view, right to
recognize that.

[120]    
Regrettably, this case is a situation where nothing good has ensued for
anyone involved.

“The
Honourable Mr. Justice Williams”