IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121001

Docket: S20837

Registry:
Port Alberni

Between:

Dale William
Thornber

Plaintiff

And

Charles William
Campbell

Defendant

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

[1]            
This case involves an assessment of damages arising from what can only
be described as a brutal and unprovoked assault on Dale Thornber, the plaintiff,
on the night of March 24, 2007.

[2]            
The assault occurred as Mr. Thornber lay sleeping in his bed in the
residence he occupied in Port Alberni, BC.

[3]            
Mr. Charles Campbell, the defendant, was ultimately charged and
convicted of assault causing bodily harm. He was sentenced on May 14, 2009 to
18 months’ imprisonment.

[4]            
The plaintiff issued a writ of summons on February 20, 2009 claiming
general, exemplary and punitive damages, as well as special damages and costs
arising from the personal injuries he sustained.

[5]            
The writ was served personally on Mr. Campbell on February 25, 2009. As
no appearance was entered, Mr. Thornber’s counsel took default judgement on
April 27, 2009 with damages to be assessed. This decision deals with that
assessment.

The assault

[6]            
As stated, the assault was a particularly aggravated one. It occurred in
the middle of the night as the plaintiff lay sleeping. The defendant, who was
apparently attending a party in another area of the house, entered Mr.
Thornber’s bedroom on two occasions.

[7]            
On the first occasion, Mr. Campbell straddled Mr. Thornber and struck
him in the face ─ Mr. Thornber was unclear as to how many times this
occurred. Mr. Thornber said that he was in a state of shock after this initial
attack. Mr. Campbell then left the bedroom to return to the party.

[8]            
He returned, however, a short time later and punched the plaintiff in
and about his face and head numerous times, leaving Mr. Thornber “cowering” and
“senseless” (to use Mr. Thornber’s words).

[9]            
A friend discovered Mr. Thornber the next morning and took him to the
hospital.

Mr. Thornber’s injuries

[10]        
 Mr. Thornber gave evidence. He did so in a slow and hesitating manner. He
had some difficulty keeping his composure when describing the incident and the
effects it had on him.

[11]        
The injuries Mr. Thornber sustained were significant, both physically
and psychologically.

[12]        
He suffered fractures in his jaw as well as eight to nine teeth. Six
months after the assault, Mr. Thornber was still only able to eat liquid or
purified food. He was unable to chew because of pain and numbness in his mouth
and the fact that his teeth had been knocked out of alignment by the defendant.
It was another six months before he could eat semi-solid food. By the date of this
trial, 20 October, 2011, he was able to eat more solid food but he still could
not eat meat.

[13]        
Mr. Thornber requires dental work to restore the alignment of his teeth.
He said the cost of this restorative work is estimated in the area of $20,000.

[14]        
In addition, Mr. Thornber has suffered from frequent and severe
headaches. The headaches have somewhat abated more recently but he still
suffers from them.

[15]        
He also sustained a concussion and he still has dizzy spells from time
to time which make him feel like he is “drunk.” He has difficulty sleeping,
being easily disturbed by noise.

[16]        
The most significant lingering effect of the assault is Mr. Thornber’s
depression and anxiety brought on by Post Traumatic Stress Disorder (PTSD). In
a medical report prepared on September 30, 2007 for the coordinator of the
Victim Crime Assistance program, Mr. Thornber’s attending physician, Dr. David
Anderson, noted his diagnosis of the injuries sustained in the assault:

DIAGNOSIS

1.         Multiple facial, head and neck, and jaw contusions,
lacerations and abrasions.

2.         Multiple oral/dental injuries including multiple dental
fractures, which remain badly in need of attention.

3.         Post Traumatic Stress Disorder (PTSD) with ongoing frequent
intrusive terrifying nightmares and flashblacks to awakening during the
assault. This condition persists and he will require therapy by a psychologist
with expertise in treating PTSD.

4.         Triggered
by these injuries, recurrence of his previously-suffered Major Depressive
Disorder. This had been in remission for several years prior to the assault.

[17]        
He commented earlier in his report:

Most striking is his intense
feelings of anxiety, despondency, hopelessness, helplessness, and at times
suicidality resulting from this attack. Discussing his symptoms he relives the
attack and immediately breaks down. He is also very angry as a result of
perceived failure of the police, the courts, and victims’ services to protect
him, identify and prosecute his assailant (although I understand that this is
happening) and to provide resources for him to live and receive appropriate
therapy for his injuries during his convalescence. The anger is strongly felt
in the context of his ongoing terrifying flashbacks and his perception of
indifference by the various agencies.

[18]        
Dr. Anderson updated his report on February 6, 2012. I refer to several
portions of his updated report:

Although the current medications
are very helpful, he was severely traumatized, both physically and emotionally,
in the subject assault. He had been doing well for several years prior to this
assault, not requiring medications and able to work full time while running his
small limousine business. However, PTSD from his abuse during childhood,
although in partial remission, made him unusually vulnerable to any assault,
particularly one so terrifying.

[19]        
As to Mr. Thornber’s ability to find re-employment, Dr. Anderson
commented:

Unable to work on account of his
PTSD, he has been receiving Employment Insurance benefits due to illness. These
have as I understand it now run out. He has an appointment to discuss
retraining and he is looking forward to this. In a good week currently he can
do odd jobs as before and if the good weeks continue he could possibly
reactivate his business or look for regular work. Unfortunately as his PTSD
remains so active and variable, he as yet has no realistic chance of doing so
for at least the next few months. More likely he may be able to find work again
only after many months of emotional stability with whatever turns out to be his
ultimately most effective combination of medications and being well along in a
therapeutic alliance with an effective counsellor he has yet to meet.

[20]        
Dr. Anderson outlined his “Diagnostic Summary” as being multiple soft
tissue injuries (which healed fully within a few months); dental injuries
(which have not yet been attended to because Mr. Thornber has been unable to
afford them); PTSD (which was in remission for several years but was
reactivated as a result of the assault and “remains very active and disabling”);
and Major Depressive Disorder (which was in remission before the assault but was
reactivated and “remains severe” after the attack).

[21]        
Mr. Thornber has clearly been significantly psychologically affected by
the assault. He says he now gets agitated by things he used to be able to do with
ease. He testified that he has difficulty handling pressure, that he gets
easily confused and that he has difficulty concentrating. He says he has lost
most of his friends because he is always depressed and he feels that he is not
an easy person to be around.

Mr. Thornber before the assault

[22]        
Mr. Thornber, at the date of trial, was 49 years old. He moved to Port
Alberni in 1991. He has a grade eight education.

[23]        
The evidence establishes that he was an energetic person prior to the assault.
Mr. Thornber had been involved in a number of occupations since moving to Port
Alberni, including operating a car detailing business and being involved in construction
and building maintenance work. He testified that he often worked seven days a
week and, on occasion, he would earn $4,000 – $5,000 per month.

[24]        
Ms. Joyce Courtney, a friend, described him as happy, friendly and a
“workaholic.”

[25]        
Mr. Thornber’s brother Martin also testified. He confirmed that prior to
the assault, his brother was “a good guy, a hard worker, reasonably happy ─
nothing really seemed to bother him … before [the assault] he was working all
the time you know – very seldom had time off – he was busy and he was doing
something … he worked hard all his life.”

[26]        
Ms. Courtney and Martin Thornber both remarked upon the severe impact
the assault had on the plaintiff’s behaviour in their testimony. Ms. Courtney
described the change in his personality as being significant and “unbelievable.”
She said that she had never seen a person change so drastically ─ the plaintiff
became withdrawn, had difficulty speaking, often cried and he secluded himself
for lengthy periods of time.

[27]        
Martin Thornber testified that after the assault he had a hard time
communicating with his brother. Mr. Thornber would lose his train of thought
regularly and he had begun to stutter. Martin testified that his brother was
not happy, seldom smiled and had few friends as he didn’t seem to trust anyone
anymore.

[28]        
Dr. Anderson, in a medical report dated March 18, 2009, made a similar comment.
Prior to the assault, he reported that Mr. Thornber was “in stable good health,
physically and emotionally, for several years. He was gainfully employed”.

[29]        
In the fall of 2008, the plaintiff commenced work for Peace Pile Driving
in Port Alberni. He performed various jobs, including building docks and pile
driving.

[30]        
His earnings from employment as disclosed on his T4 statements show
$9,559 in 2008, $11,893 in 2009 and $13,400 in 2010. Mr. Thornber testified that
he earned $2,000 to $2,500 every two weeks. The discrepancy between his
testimony and the T4 statements was not explained.

[31]        
Mr. Thornber lost his job two months before the trial because, according
to the plaintiff, his boss told him he could not deal with his mood swings. His
former employer was not called to give evidence.

[32]        
The plaintiff now supports himself by culling firewood and doing the odd
job for old customers.

[33]        
As stated, based on the evidence, I accept as fact that the assault had severe
ramifications upon Mr. Thornber’s physical and mental health.

[34]        
His enjoyment of life has been significantly limited. Physically, he
will likely heal ─ particularly if he gets the dental care he urgently
requires. The prognosis for improvement in his mental health is much more
difficult. Hopefully, with proper psychiatric counselling, it will improve over
time. The prognosis, however, for such improvement is guarded. The assault has
apparently triggered long-buried memories of childhood abuse.

Law for the assessment of damages

[35]        
Mr. Thornber claims damages for non-pecuniary loss, special damages,
aggravated and punitive damages, as well as special costs.

[36]        
The principles underlying an award of non-pecuniary damages were set out
by Justice Kirkpatrick in the oft-cited case Stapley v. Hejslet, 2006
BCCA 34, 263 D.L.R. (4th) 19 at para. 46. The considerations to be taken into
account include: the age of the plaintiff; nature of the injury; severity and
duration of the pain; disability; emotional suffering; loss or impairment of
life; impairment of family, marital and social relationships; impairment of
physical and mental abilities; loss of lifestyle; and the plaintiff’s stoicism.

[37]        
This list is not exhaustive; it remains open to accommodate the
circumstances of each case. While reference to other cases is useful as a guide
to the court in assessing damages, non-pecuniary damages must be assessed in view
of the unique circumstances of the case before the court.

[38]        
Mr. Thornber’s counsel Mr. Beckingham relies on Bonham v. Weir Estate,
2009 BCSC 1080, where the court awarded $75,000 in non-pecuniary damages to a
plaintiff who suffered from PTSD after escaping fatality in a horrific truck
collision. This incident had resulted in a personality change such that the
plaintiff no longer interacted with friends and family, had lost interest in
things he formerly enjoyed, and had lost confidence in his abilities. His
symptoms were likely to persist indefinitely.

[39]        
Mr. Beckingham also relies on the BC Court of Appeal judgment Vukelic
v. Canada (1997), 29 B.C.L.R. (3d) 288 (Vukelic). In Vukelic,
the plaintiff was brutally assaulted by RCMP officers during an investigation.
He sustained a number of physical injuries, including a traumatic brain injury.
The plaintiff also suffered a number of psychological injuries, including
shock, PTSD, anxiety, depression, loss of memory, loss of ability to concentrate,
and a shift in his behaviour. The trial judge awarded the plaintiff $90,000 in
non-pecuniary damages. The court increased this award to $120,000 to account
for the aggravating factors that had been brought to the trial judge’s
attention. The court found this higher damage award was more appropriate in
view of the nature of the assault and its effect upon the plaintiff.

[40]        
In my recent decision Weber v. deBrouwer, 2012 BCSC 1039,
I awarded the plaintiff $150,000 in non-pecuniary damages arising from an
unprovoked violent attack by the defendant ─ an employee who the
plaintiff had supervised. Similarly, the plaintiff suffered psychological
injuries, including PTSD, depression and loss of the ability to engage in any
type of communication with others that might involve confrontational issues.
These impairments were permanent, affecting his future employability.

[41]        
I now turn to the assessment of damages.

Non-Pecuniary Damages

[42]        
In this case, the assault was an aggravated one. The injuries were
serious and have had (and will continue to have) a significant impact on Mr.
Thornber’s life. His physical and mental abilities have been impaired. He is
unable to work; his family and social relationships have suffered.

[43]        
While no specific claim is made for lost earnings or loss of earning
capacity, I am of the view that I am able to take the impairment of Mr.
Thornber’s employability into account, at least to some degree, in making my
award for non-pecuniary damages.

[44]        
I assess such damages at $125,000.

Exemplary and Punitive Damages

[45]        
I make no award for either exemplary or punitive damages. The defendant
in this case was charged, convicted, and sentenced for assault causing bodily
harm. In other words, there is no need to send a message of deterrence to
others who may be inclined to act like Mr. Campbell. In support of this
finding, I refer to the Supreme Court of Canada decision Whiten v. Pilot
Insurance Co., [2002] 1 S.C.R. 595. Justice Binnie, writing for the
majority, laid out ten principles to guide the award of punitive damages. In
particular, I note the third principle that recognizes criminal law is the
primary vehicle for punishment. Punitive damages should only be resorted to in
exceptional circumstances (at 635 – 636).

[46]        
For further guidance, I rely upon the decision of Justice Burnyeat in Reddemann
v. McEachnie, 2005 BCSC 915, a case involving an unprovoked attack by a
hockey assistant trainer on a spectator. Burnyeat J. awarded punitive damages
to the plaintiff, taking into account the fact that the attack was unprovoked, the
value of deterring and denunciating such egregious behaviour, and the absence
of any criminal proceedings or actions taken by the hockey league to punish the
defendant’s behaviour.

[47]        
Additionally, the award against Mr. Thornber is a substantial one that
encompasses the compensatory intangible elements intended to be covered by an
award of aggravated damages: see the BC Court of Appeal decision Huff v.
Price (1990), 51 B.C.L.R. (2d) 282, 76 D.L.R. (4th) 138 at 153 and Vukelic
at paras. 17 – 22.

Special Damages

[48]        
Mr. Thornber is entitled to recover special damages. I have been
provided with two estimates from his attending dentist: one dated May 22, 2007
in the amount of $6,421.00 and the second dated November 14, 2007 for $7,129.90.
These estimates were valid for 30 days. I have no other information before me
concerning the future cost of his dental work except that such work has not
been done to date and that it should be done. Mr. Thornber has been on social
assistance and has made various claims for the payment of his expenses to the
Crime Victim Assistance Program. It is my understanding that some of his dental
bills have been paid but no payments for major restorative work have yet been
made.

[49]        
I will provide Mr. Beckingham with 30 days from the date of publication
of this decision to provide me with an updated dental estimate and a list of
other special damages, if there are any. If he fails to provide this updated
estimate, I award Mr. Thornber $7,129.90 to cover the cost of dental work
required.

[50]        
I am unclear as to whether the Crime Victim Assistance Program has a
subrogated right to recover any payments it has made to Mr. Thornber as a
result of the assault. Mr. Beckingham is to provide a copy of these reasons to
the persons responsible for the program. Again, I will receive written
submissions from Mr. Beckingham or the person charged with administering the
Program if received within 30 days following this decision.

Costs

[51]        
I decline to award special costs. The plaintiff will receive party and
party costs at scale B.

“Greyell J.”