IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130722

Docket: 13321

Registry:
Nelson

Between:

Dylan Alexander
Rhys Plishka-Humphreys, Christine Renee Plishka

Plaintiffs

And

Daniel Robert
Bolen, James Christopher Ricard

Defendants

Before:
The Honourable Mr. Justice Cole

Reasons for Judgment

INTRODUCTION

[1]            
This is an assessment of damages arising out of an assault which took
place on July 2, 2004, when the defendant Daniel Robert Bolen repeatedly
punched the plaintiff in the head and face. On September 21, 2005, the
defendant pled guilty to a charge of aggravated assault and was sentenced to 30
days to be served on weekends plus probation.

[2]            
On February 17, 2012, Mr. Justice McEwan, by way of summary trial,
found that the defendant was liable for the assault and the matter of damages
was referred to the trial list.

BACKGROUND

[3]            
The plaintiff was 13 years of age when on July 2, 2004, he went with
some friends to an area above Highway 3A near Nelson, B.C. Unbeknownst to him
his friend Arnie van der Holt took a slingshot and ball bearing and shot it at
a vehicle which was owned and driven by the defendant Bolen. The metal ball
struck the passenger window of Bolen’s vehicle and the window shattered.

[4]            
The plaintiff and his friends then ran to and hid in the forested area. The
defendant, along with James Christopher Ricard, the other defendant, got out of
their vehicle and located the plaintiff. The plaintiff heard voices from the
approaching men that they were going to “kill ‘em” and “rip their heads off”. The
plaintiff told the defendant that he was sorry, “I’m just a kid. I will pay the
damages.” He said he was frightened because he was never involved in a fight
before and the defendant stepped towards him, hit him in the face with
considerable force. He fell down. He repeatedly was struck in the head and face.
He was in and out of consciousness and was in shock. He thought that he was
going to die. His friend Arnie told the defendant to stop hitting him, that he
was the one that shot the ball bearing and would pay for the damages. However,
Arnie was then punched. The other defendant Ricard removed a hatchet from the
plaintiff’s belt and said “you’re going to juvie — assault with a weapon”.

[5]            
The plaintiff then climbed down to the highway and he was crying for
help when the defendant came up to his face and told him to shut up. He was
taken to the hospital and was hospitalized for 2 ½ days. The photographs reveal
significant swelling around the eyes of the plaintiff such that they were both shut.
The right eye was more badly damaged than his left eye and his nose was swollen.

[6]            
The plaintiff suffered a broken tooth which was extracted and the
plaintiff has worn an orthodontic appliance since the accident.

[7]            
The plaintiff was greatly affected the by assault. He became very
anxious and he was upset that his father was angry at the defendant Bolen. The
plaintiff was ashamed for what he did with respect to causing upset to his
family. His mother was very nervous, described by him as a nervous wreck. He
said they still cry when they recall the assault.

[8]            
The plaintiff was depressed. He had dark feelings about being a hardship
to his family. He tried to hide his emotion and became very passive.

[9]            
For the first two months he did not leave the home and only started to
associate with his friends shortly before returning to school in September.

[10]        
After the assault he suffered night terrors. His right eye affects his
ability to see and he had headaches for weeks following the assault.

[11]        
In the summer of 2005 he had surgery to his right eye to remove scar
tissue and repair the eye socket and this improved movement in his eye but he
still, even today, suffers from double vision which affects the quality of his
life; it also restricts his driving, his ability to do artwork on a flat
surface, and he has difficulty seeing items that are above the height of his
shoulder. He worked part of a summer in construction but found the overhead
work difficult and found it difficult working amongst aggressive people.

[12]        
His parents have taken him to Vancouver on at least four occasions for
medical treatment and they stayed two nights in a hotel. The rest of the time
they stayed with relatives.

MEDICAL EVIDENCE

[13]        
Dr. Tim Allen, O.D., who works for the Kootenay Optometry Clinic
filed a report. He examined the plaintiff on April 10, 2008 and states in the
last paragraph of his letter:

There is no question that Dylan’s
symptoms and findings are a result of his fractured orbital bone. That result
was a partial paresis of the right interior rectus muscle which gives him
double vision. Other aspects of Dylan’s ocular health are normal. It would be
expected that his condition is most likely stable and will not affect the
future aging process of the eye. He is at risk to develop glycoma from possible
damage to the anterior structures of the eye.

[14]        
A neuro-psychological report was prepared by Dr. Jeffrey Martzke, a
registered psychologist. He interviewed the plaintiff and performed
psychological testing on him. He reviewed various hospital and clinical records
and the plaintiff’s artwork. Dr. Martzke states in his report that:

Dylan perceives, in retrospect,
that in the months following the incident he attempted to deny the seriousness
of the event, to put up a tough exterior and put it out of his mind. He had
many negative thoughts of revenge. After his eye surgery he began to dwell more
on the incident and became more depressed. He questioned his religious faith,
wondering how this could have happened to him. He was unhappy in school and
felt like an outsider except when with a small group of friends. He did not
want to “deal” with the incident, but began having suicidal thoughts. This was
around the fall of 2007. He did not act on his suicidal thoughts, mainly owing
to his awareness of how such an act would impact his family while at the same
time he also began thinking once again of his future and what he wanted to
achieve. Dylan also reported experiencing a great deal of frustration with the
manner in which the assault charges were adjudicated. He tried to reach a point
of forgiving others, but still expects justice.

[15]        
Under “Behavioural Observations and Psychometric Findings” he wrote:

He
impressed me as an introspective young man who had reflected extensively on his
experience. Dylan appears mildly anxious at the start of the interview but was
nonetheless willing to answer all questions posed. I did not get the impression
he was exaggerating his symptoms reports, and indeed his low score on measure
rating his current level of depression (in many aspects of anxiety) are
likewise inconsistent with an attempt on his part to exaggerate symptoms.

[16]        
Under “Discussion and Conclusion”:

Dylan reports current and past symptoms that meet the DSN-IV
Diagnostic criteria for post-traumatic stress disorder. The symptoms endorsed
in the current interview are consistent with traumatic stress disorder. The
symptoms endorsed in the current interview are consistent with those reported
during the assessment of Ms. Binnie of Children and Youth Mental Health. Consequently,
Ms. Binnie also diagnosed PTSD at the time of her evaluation. My
impression is that the severity of pre-existing, avoidance and arousal symptoms
has declined over time, but based on my current assessment, Dylan continues to
meet diagnostic criteria PTSD. In this regard, Dylan might appropriately be
characterized as being in partial remission. There is no history of PTSD or
other significant psychiatric prior to the assault and by all accounts Dylan
appears to have been capable, healthy and resourceful individual premorbility. He
has some prior life challenges, including loss of contact with his biological
father, but these did not result in marked psychological disturbances and are
unlikely to have significant factors in the onset of PTSD. PTSD appears to have
had its onset shortly following the assault, and re-experiencing and avoidance
symptoms were consistently relayed in content to salient aspects of the assault.
On a balance, it appears likely that diagnosed PTSD is a result of the assault.
That is to say, it is unlikely Dylan will have developed and suffered from PTSD
over the past five years were it not for the assault of July 2004.

Dylan does not currently meet diagnostic criteria for major
depression.

Research literature suggest
individuals exposed to trauma in childhood are at increased risk of anxiety and
depresic disorder as adults. Owing to this assault and the subsequent PTSD,
Dylan is likely to more vulnerable to the effects of stress and trauma in the
future. It is possible that life events that would have caused only minimal and
transient symptoms prior to the assault may cause exasperation/return of PTSD
symptoms and development of related anxiety or depressive disorders owing to
protracted PTSD.

[17]        
The plaintiff was also assessed by an occupational therapist, Martina
Martzke, registered OT, CWCE. She met with the plaintiff on February 10, 2009. She
recommends a height-adjustable table/desk at $1,000, a height-adjustable easel
at $250 and a desktop slant board at $150.

[18]        
After reviewing the medical reports and making her own observations and
assessments, she was of the view that:

…other jobs Dylan expressed an interest in as an option for
financing his education and career, were reviewed with consideration to his
visual dysfunction and PTSD symptoms. Based on his functional abilities, his
medically documented limitation, and OT knowledge of the general demands of the
occupations the following jobs would not be considered appropriate for Dylan:

·       
Construction labourer

·       
Iron worker assistant

·       
Equipment operator (construction site)

·       
Hospitality industry – server, busser

·       
Transportation industry – driver/deliverer, bus driver, taxi
driver

[19]        
The plaintiff is still pursuing his artistic career. He hopes to become
a teacher at a college or university after he has completed a master’s program.
He has some success in selling his art and has sold approximately 30 paintings for
between $500 and $2,500 since 2005. He has a line of credit and student loans
to assist him in his educational pursuits.

NON-PECUNIARY DAMAGES

[20]        
I am satisfied that the plaintiff received permanent injury to his eye
because of his double vision. He is also at risk of developing glycoma and he
suffers from anxiety and thoughts of suicide. He is now more vulnerable to
further exacerbation of his post-traumatic stress disorder. He has lost a tooth
in what was a traumatic violent assault.

[21]        
The range of damages, according to the plaintiff, is (figure is adjusted
for inflation) between $24,000 in Springett v. Shanklin, 2001 BCSC 853
and $53,700 in Minet v. Kossler, 2007 YKSC 30.

[22]        
Considering and weighing all the evidence, the trauma that the plaintiff
experienced, the permanent damage to his eye which causes him to suffer on
occasion from double vision and is suffering from Post-Traumatic Stress
Disorder (“PTSD”) and is at an increased risk of anxiety and depresic disorder,
I am satisfied that an appropriate award including aggravated damages is the
sum of $50,000.

LOSS OF INCOME EARNING CAPACITY

[23]        
I accept the evidence of Martha Martzke, the occupational therapist,
that the following jobs would not be considered appropriate for the plaintiff,
mainly construction labour, iron worker assistant, equipment operator
(construction site), hospitality industry – server / busser, and transportation
industry – driver/delivery/bus driver/taxi driver. Not only do the difficulties
with his right eye restrict his ability to do these jobs but in terms of the
hospitality industry there is the added factor that the plaintiff does not have
a consistent, upbeat or happy disposition. This makes work in the hospitality
industry problematic.

[24]        
I am satisfied that there is a real and substantial possibility that his
earning capacity has been impaired and that the capital asset approach is
appropriate in the circumstances. I am satisfied, when considering the principles
set out in: Pallos v. Insurance Corp. of British Columbia (1995), 100
B.C.L.R. (2d) 260 (C.A.), that the plaintiff has been rendered less capable
overall from earning income from all types of employment, he is less marketable
or attractive as an employee to potential employers, he is has lost the ability
to take advantage of all job opportunities which might otherwise have been open
to him had he not been injured, and the plaintiff is less valuable to himself
as a person capable of earning income in a competitive labour market.

[25]        
Unfortunately, there is no evidentiary basis for an award at large, and
I respectfully acknowledge that there should be some evidentiary base for such an
award (Morgan v. Galbraith, 2013 BCSC 305, para. 56). However,
under these circumstances only a modest award is appropriate and to try and do
justice between the parties, I am satisfied that an award of $25,000 is
appropriate.

COST OF FUTURE CARE

[26]        
Dr. Martzke has recommended 12-20 sessions of psychotherapy for the
plaintiff. The plaintiff has now realized that he cannot resolve his many
difficulties on his own and has made arrangements to commence psychotherapy
although there is no estimate of the cost. I would think an appropriate amount
would be $4,000.

[27]        
It is also recommended by Martha Martzke for a height-adjustable
table/desk, a height-adjustable easel and a desktop slant board totalling
$1,400. These items will no doubt wear out in time and I therefore order that a
sum of $3,000 be paid.

[28]        
There is a claim for increased orthodontic costs attributed to the
broken tooth. However, there is no evidence as to any costs or the probability
of increased orthodontic costs and I decline to make an award.

IN TRUST CLAIM

[29]        
The plaintiff was taken to Vancouver for medical appointments on four
occasions. Roundtrip to Vancouver from Nelson is 1,320 km. The parents paid for
food and were required to stay in a hotel for two nights and on other occasions
they stayed with friends. I am satisfied that an appropriate award is $2,250.

SUMMARY OF DAMAGES

[30]        
To summarize, damages are awarded as follows:

[31]        
The other defendant, James Christopher Ricard has settled his claim for
the sum of $50,000. That sum must be deducted from this claim, leaving the sum of
$34,250. I dismiss the action against James Christopher Ricard and I was asked
to remove Christine Renee Plishka as a plaintiff and I so order.

[32]        
The plaintiff is entitled to his costs. If there are any issues of costs,
the plaintiff will have two weeks from the date of this order to provide me
with written submissions and the defendant will have four weeks from the date
of this order to provide me with his written submissions.

The
Honourable Mr. Justice F.W. Cole