IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130919

Docket: 14739

Registry:
Smithers

Between:

Joyce Ann Abbott

Plaintiff

And

Lucy Glaim

Defendant

Before:
The Honourable Mr. Justice Skolrood

Reasons for Judgment

Overview

[1]            
This is an action for damages for personal injuries suffered by the
plaintiff, Joyce Abbott, as a result of an alleged assault that took place in
the early morning of March 25, 2006. Ms. Abbott claims that she was pushed
backwards down an outside set of stairs by the defendant Lucy Glaim. The incident
took place at a house in Moricetown, British Columbia where Ms. Abbott and Ms.
Glaim were both attending a house party.

[2]            
Ms. Glaim denies pushing Ms. Abbott down the stairs. While she says that
she did not see the actual incident, the central premise of her defence is that
Ms. Abbott was intoxicated and fell down the stairs.

[3]            
A number of the witnesses have surnames in common with the parties and
accordingly, to avoid confusion, I will refer to the parties and the witnesses
by their first names. In doing so, I mean no disrespect.

The Plaintiff’s Version of the Incident

[4]            
Joyce was born in Whitehorse and raised in Telegraph Creek. After
graduating high school, she obtained a diploma in dental hygiene from the
College of New Caledonia as well as a medical laboratory assistant diploma from
Thompson Rivers University. She moved to Smithers about 20 years ago and has
been employed as a dental hygienist at the Driftwood Dental practice since her
arrival.

[5]            
Joyce is married to Ken Abbott and has a 17 year old daughter from a
previous relationship. At the time of trial, Joyce was 50 years old.

[6]            
Joyce testified that during the evening of March 24, 2006, she and her
husband Ken went to dinner with two friends at the Greenhouse Restaurant in
Telkwa. According to Joyce, during dinner, she and Ken shared a half litre
carafe of wine, with each of them consuming two glasses.

[7]            
After dinner, the four of them drove together to the home of Jeffrey and
Patricia Namox in Moricetown where there was a party to celebrate Mrs. Namox’s
birthday.

[8]            
According to Joyce, on arrival at the Namox home, she and Ken entered
the home and sat at the kitchen table. They had brought with them a case of
beer and Joyce testified that throughout the balance of the evening, she
consumed three to four beers.

[9]            
At some point in the evening, Joyce and Patricia Namox got up to dance. Joyce
testified that they danced for one or two songs then Joyce returned to sit at
the kitchen table. Joyce says that she recalls seeing the defendant Lucy across
the kitchen.

[10]        
Joyce testified that while she was sitting at the table, Lucy walked by
her and said something like “…you hook nose.”  Joyce said that she was shocked
by this statement, which she took to be an insult based on her appearance. According
to Joyce, while she was acquainted with Lucy, they had no previous encounters
that would suggest any animosity between them.

[11]        
Joyce and Ken remained at the party until about 1:00 a.m. to 1:15 a.m.
when they decided to leave. According to Joyce, Ken got up to leave and she
followed him. They walked across the kitchen and stepped down two steps onto a
landing leading to the back door. Joyce testified that Ken went out the back
door first onto a small back deck. Joyce then followed him outside.

[12]        
According to Joyce, Lucy followed them to the back door. When she and
Ken were outside on the back deck, she heard Lucy say something to her again,
although she could not make out exactly what Lucy said. Joyce testified that
she then turned to face Lucy and said something to the effect of “ewww.”  Lucy
responded by saying “don’t ewww me bitch” and then, according to Joyce, Lucy
took both hands and pushed her backwards off the deck to the concrete pad below.

[13]        
Photos entered into evidence show that there are four steps leading from
the back deck down to the concrete pad. According to Joyce, the force of the
push was sufficient to cause her to miss all four of the steps. The photos also
show that the back deck is quite small, likely no larger than a three foot by
three foot square.

[14]        
Joyce landed on the left side of her back and struck her head on the
concrete. She was bleeding from her head. She testified that she was stunned
and shocked by what had happened. She also testified that she does not recall
anyone else being outside at the time of the incident.

[15]        
Ken ran back inside the house and then returned with a towel for her
head. Ken helped her to the car and drove her to the hospital.

[16]        
In both direct and cross-examination, Joyce was asked about entries
contained in the Bulkley Valley District Hospital short stay form which was
apparently completed contemporaneously with Joyce’s visit to the hospital on
March 25, 2006. At different places on the form the following entries
appear:

·      
Admits drinking heavily tonight

·      
obviously intoxicated

·      
42 year old drinking heavy tonight and fell against cement floor

·      
obviously intoxicated

[17]        
Joyce denied admitting to anyone at the hospital that she was
intoxicated or that she stated that she had been drinking heavily. Despite
vigorous cross-examination on the issue, Joyce insisted that she was not
intoxicated at the party, including when she and Ken went to leave.

[18]        
Joyce was also cross-examined on various aspects of her version of the
events of the evening. For example, it was put to her that Lucy was not at the
party when she and Patricia got up to dance in the kitchen. Joyce insisted that
she saw Lucy at the time.

[19]        
Joyce was somewhat uncertain in her evidence about who was sitting at
the kitchen table with her and Ken throughout the evening. It was suggested to
Joyce that she could not remember the details because she was intoxicated. Again,
Joyce vehemently rejected that suggestion.

[20]        
Joyce was asked in cross-examination whether she recalled Ken speaking
with Lucy at the kitchen counter. Joyce said that Ken and Lucy did have a conversation
at some point in the evening. She said that she was standing with Ken and that
she recalled the conversation being about Ken and Lucy riding the bus together
when they were in school.

[21]        
Joyce did not agree with the suggestion put to her that she remained
seated at the kitchen table while this conversation took place and that she
called Ken away because she did not like him speaking to Lucy.

[22]        
Joyce testified that when she and Ken decided to leave, Ken went ahead
to the back door to retrieve his shoes while she lingered behind to say good
night to people. It was put to her in cross-examination that in fact Ken went
to get her shoes and that he had to help her with her shoes because she was
intoxicated. Once again Joyce rejected that suggestion.

[23]        
 As noted above, it was Joyce’s evidence that when she and Ken went to
leave, there was no one else on the back deck or outside. It was put to her in
cross-examination that in fact Darlene Glaim and Patricia Namox were both
outside on the deck smoking and that there were other people outside who were
coming and going to and from the party. Joyce disagreed and maintained that
there was no one else outside.

[24]        
Joyce was cross-examined about apparent inconsistencies between her
evidence at trial and a statement she gave to an RCMP officer at the hospital
on the night of the incident. For example, there were differences in what she
states that she said to Ken after Lucy insulted her about her nose and in some
of the details about how and when she and Ken decided to leave the party. In my
view, these discrepancies are very minor and do not adversely affect the
credibility of Joyce’s evidence.

[25]        
Lastly, it was put to Joyce in cross-examination that she fell down the
back stairs when she went to leave due to her level of intoxication. It was
further put to her that she was too embarrassed to admit this for fear of what
her employer, her patients and others in the community would think.

[26]        
Despite extensive cross-examination of Joyce on her level of
intoxication, she steadfastly maintained that she was not intoxicated and that
she was pushed down the stairs by Lucy.

[27]        
Joyce’s version of events was supported by her husband Ken. He confirmed
that he and Joyce went to dinner with friends on the evening of March 24, 2006
and that the two of them shared a half litre of wine during dinner. They then
went with their friends to the Namox residence.

[28]        
Ken says that he saw Lucy at the party and that at some point they had a
brief conversation. He said the conversation was just small talk and he could not
remember exactly what was discussed. Ken said that he thinks that conversation
took place around 10:00 p.m. to 10:30 pm. He did not agree with the suggestion
put to him in cross-examination that the conversation took place after
midnight.

[29]        
Ken testified that during the evening, while he and Joyce were seated at
the kitchen table, Lucy said something to Joyce about her “hook nose.”  In
cross-examination, Ken said that when this occurred, he and Joyce were sitting
side by side at the table and Lucy was standing by the fridge. According to
Ken, there was no room for anyone to walk between him and Joyce and the kitchen
table. Ken testified in cross-examination that he heard Lucy’s comment and
asked Joyce why she was saying that. Ken did not know what time it was when
that occurred.

[30]        
Ken testified that when they decided to leave, he and Joyce went to the
back landing to collect their shoes. Once they got their shoes on, they stepped
outside onto the back deck. There was no one else outside at the time. According
to Ken, Lucy followed them outside and said something to Joyce. Ken did not
hear precisely what Lucy said. Joyce said something like “ewww” in response to
which Lucy said “don’t ewww me bitch.”  Ken testified that Lucy then pushed
Joyce down the stairs.

[31]        
Ken said that he went down the stairs immediately to Joyce. She was
lying on her back with blood coming out of her head. Ken then went back up the
stairs and into the house to get a towel for Joyce’s head.

[32]        
He said that when he entered the house, he saw Lucy and some others
standing there. He said to Lucy, “what the hell did you do that for” and then
Lucy threw a can of beer in his face.

[33]        
Ken got a towel and returned to Joyce. He said that he had no further
interaction with Lucy. He said that there was someone with Joyce when he
returned but he was not sure who it was. He then drove Joyce to the hospital.

[34]        
In response to questions put to him on cross-examination, Ken denied
that Joyce was intoxicated at the party and he denied that he had to help her
put her shoes on when they were leaving. He also denied that he spoke to
Darlene Glaim on the back deck when he and Joyce were leaving or that there
were other people outside at the time. He specifically denied that Joyce fell
off the deck.

[35]        
Ken did agree in cross-examination that when he went back into the
house, Lucy yelled at him and called him an idiot. He agreed that he yelled at
her but denied that he tried to grab her. He also denied that people had to
intervene to stop him.

The Defendant’s Version of the Incident

[36]        
Lucy was born and raised in Smithers. She attended school in Smithers
and, on graduation from high school, she attended the North West Community
College and obtained a diploma in bookkeeping. From 1993 to 2009 she worked in
a number of different bookkeeping and administrative positions. Since 2009, she
has been employed as the Financial Controller for the Wet’suwet’en First Nation
Treaty Office.

[37]        
Lucy has been married to Mervin Glaim for 21 years. They have five
children, three of whom are Mervin’s from a previous relationship.

[38]        
Lucy testified that she first met Joyce in 1993 when Lucy and her
husband purchased their house. Lucy invited Joyce and her then husband Mr.
Glies over for a barbecue. According to Lucy, Joyce and Mr. Glies came over to
their house one other time and Lucy’s daughter babysat for Joyce three or four
times in 1993.

[39]        
Lucy attended Joyce’s wedding to Ken in 2005 and then attended a dinner
party with Joyce and Ken at a mutual friend’s house in early 2006.

[40]        
Beyond those interactions, Lucy testified that she knew Joyce to say
hello to.

[41]        
Lucy testified that on March 24, 2006, she worked until about 4:30 p.m.
then went home, arriving at about 5:00 p.m.. She had dinner with her family and
watched the news. At about 7:00 p.m., she and her husband drove to the airport
to pick up Darlene, her husband’s sister, who was coming to visit for the
weekend.

[42]        
They returned to the Glaim’s house and, once Darlene got settled in,
Lucy and Darlene sat at the kitchen table visiting.

[43]        
At about 11:00 or 11:30 p.m., a friend, Marlene Michell, called and
spoke to Darlene. After she hung up the phone, Darlene said that they were
going to go out. About 10 minutes later, Marlene and Karl Buccholz arrived and
drove the four of them to the Namox house in Moricetown. Lucy estimated that
they arrived at the Namox house at about 12:00 a.m.

[44]        
Lucy testified that they entered through the door to the house depicted
in the photos put in evidence. As shown in the photos, the door opens onto a
small deck at the top of four stairs. When asked about any observations she
made about the entrance to the house, Lucy indicated that she noticed how steep
the stairs were. She said that they were practically like a ladder.

[45]        
Lucy testified that she took her shoes off on the landing inside the
door and then walked up into the kitchen. She says that she first talked to an
acquaintance Anita who was standing in the kitchen while the other three people
she arrived with talked amongst themselves.

[46]        
Lucy said that she saw Ken standing by the kitchen counter beside Fern
Wilson. She also says that she saw a number of people sitting at the kitchen
table, including Joyce. According to Lucy, she waived to Joyce to say hello. Joyce’s
head was bowed but when she looked up Lucy said she saw Joyce’s eyes rolling in
the back of her head. Lucy said that when she saw Joyce in that condition, she
did not bother to speak to her. She specifically denied calling Joyce a “hook
nose.”

[47]        
Lucy then spoke to Ken who again was standing by the kitchen counter
away from the table. They spoke for two or three minutes then, according to
Lucy, Joyce called Ken back to the table. Lucy continued to talk to Fern for 20
minutes or so.

[48]        
After talking to Fern, Lucy asked Sandra Namox for a beer. Lucy
testified that this was the first alcohol that she consumed in the evening. She
had not had any alcohol previously while at home nor when she first arrived at
the Namox’ house.

[49]        
Once she got a beer, she continued to stand in the kitchen by the
counter and was speaking to Darlene. Lucy said that she and Darlene commented
on how drunk Joyce was and Lucy said something to the effect of “she always
gets like that.”

[50]        
Lucy testified that she noticed Marlene, who she and Darlene had come
with, was passing out in a chair. She said that given the state of people in
the house, including Joyce, she and Darlene decided it was time to leave. She
thinks this was around 1:00 a.m.

[51]        
Lucy testified that she left to go to the bathroom which was on the
other side of the house, through the living room. When she returned to the
kitchen, Darlene was already gone so she walked through the kitchen to the
stairs leading down to the landing. She did not see either Joyce or Ken in the
kitchen at that time.

[52]        
Lucy testified that when she arrived at the landing, she could see both Joyce
and Ken out on the back deck. She said that Darlene and Patricia were there as
well having a smoke. While she was on the landing, three people arrived through
the door – Melanie Morris, Sherry Green and Diana Creyke (formerly Van Tunen). According
to Lucy, she chatted with the three newcomers on the landing for a few minutes.

[53]        
Lucy said that they then heard a commotion coming from outside. People
were yelling and running around. Lucy moved to the door and looked out to see
what was happening. She testified that she saw Joyce lying on the concrete pad
at the bottom of the stairs. Darlene and Patricia were standing on the deck
looking down at Joyce.

[54]        
According to Lucy, Ken was also standing on the deck looking down at
Joyce. Lucy yelled at him, “you fucking idiot.” Lucy said that Ken then tried
to grab her and she splashed beer in his face. She said that Ken scared her and
she was just trying to defend herself. Two people then intervened to keep Ken
from getting closer to her.

[55]        
In cross-examination, it was put to Lucy that she arrived at the Namox
house earlier than 12:00 a.m. as stated in her direct evidence. For example,
counsel for Joyce questioned how it could be that Marlene drove with them to
the party and then was passing out in a chair within an hour. Lucy said that Marlene
had been at the party earlier before coming to pick her and Darlene up so may
have been drinking since dinner.

[56]        
Lucy was cross-examined at some length about the sequence of events
surrounding her departure from the party and when she said saw Joyce lying on
the ground at the bottom of the stairs. In her direct evidence, she had said
that when she and Darlene decided to leave, she first went to the bathroom. When
she returned to the kitchen, Darlene was already gone. She then proceeded to
the back landing where she saw Darlene outside smoking on the deck.

[57]        
However, it was put to Lucy that in a statement given to the RCMP about
the incident, she stated that she was talking to Melanie, Sherry and Diana on
the landing while Darlene ran back inside to the bathroom. That version is
inconsistent with her evidence at trial that Darlene was out having a smoke on
the deck when Lucy arrived at the landing. Lucy testified that the version
given at trial is the correct one.

[58]        
Lucy was also cross-examined about the position of the various people
she says were in the landing area when Joyce fell down the stairs. She said
that Melanie was closest to the door, with her back to the door which was open.
Lucy was facing Melanie and Diana was to Lucy’s left. She said that Sherry,
after chatting briefly on the landing, had left to go inside to the bathroom.

[59]        
Lucy’s evidence was that when they heard the commotion outside, she was
the first to get to the door to see what happened. Lucy was asked how that could
be if Melanie was already standing in the door. Lucy said that she was able to
fit beside Melanie in the door and was able to see what was going on.

[60]        
In cross-examination, Lucy said that when she looked out she saw James
Wilson arriving on the deck. She said he must have just come up the stairs and
that he was one of the people who helped hold Ken back.

[61]        
It was put to Lucy that she was angry and offended when she saw Joyce
having fun at the party because she is from a different clan and that offended
Lucy. It was also put to her that she would not admit to pushing Joyce because
to do so would cause her shame within her community. Lucy rejected this
suggestion. She said that she would not admit to something that she did not do.

[62]        
In short, Lucy’s evidence of what occurred on March 25, 2006 differed
from Joyce’s version in virtually every respect. Lucy maintained throughout her
evidence that she neither insulted Joyce by making a reference to her nose nor
pushed Joyce down the stairs.

[63]        
Lucy was asked why, if there had been no incident with Joyce earlier in
the evening, she did not go to help Joyce when she saw her lying on the
concrete at the bottom of the stairs. She said it was because Ken tried to
attack her. She was then asked why, again if there was no prior incident, she
would yell at Ken and call him a “fucking idiot.” According to Lucy, it was
because Ken did not properly take care of his wife. Also, she said she was mad
because he was just standing there on the deck and not moving to help Joyce.

The Additional Witnesses

[64]        
Lucy called three additional witnesses. The first was Charlene Mitchell.
Charlene is a resident of Moricetown and has lived there her entire life.

[65]        
She testified that she has known Lucy for about 10 years. In 2006, she
and Lucy were acquaintances in that they knew each other to say hi.

[66]        
Charlene said that she attended the party at the Namox residence on the
evening of March 24, 2006. She arrived at about 8:00 p.m. She said that when
she arrived, there were a “handful” of people there, maybe four or five people.
Lucy was not at the party at that time.

[67]        
According to Charlene, Lucy arrived around 12:30 a.m. When questioned in
cross-examination about the timing of Lucy’s arrival, Charlene testified that
around 12:30 a.m. was when lots of other people arrived.

[68]        
Charlene testified that she saw Joyce and Patricia dancing in the
kitchen. She thinks that was around 9:30-10:30 p.m. She said that she did not
see Lucy dancing in the kitchen. Charlene said that she was sitting at the
kitchen table when she saw Joyce and Patricia dancing. She did not speak to Joyce
when she was sitting at the kitchen table.

[69]        
In cross-examination, Charlene testified that she did not see when Lucy
left. She did say however, that she saw Joyce leave. According to Charlene, Joyce
“just walked out the door-that’s all I saw.”

[70]        
Next, Lucy called Diana Creyke (formerly Van Tunen) as a witness. Diana
is a reconnection worker who works with children in care of foster parents to
reconnect the children to their culture.

[71]        
Diana testified that she has known Lucy for about 20 years and that they
are now good friends. They are also co-workers. She also said that she knows
Joyce who was her dental hygienist at the local dental office.

[72]        
Diana said that she attended the party at the Namox residence on March
24, 2006. She arrived around 12:30-1:00 a.m. along with Melanie Morris, James
Wilson and Sherry Green. According to Diana, she was the designated driver for
the group and had consumed no alcohol.

[73]        
Diana testified that when she arrived, she saw Darlene, Joyce and Ken on
the deck at the top of the stairs. She said that she said hi to Joyce but that
Joyce did not respond so she squeezed by the people on the deck and went into
the house.

[74]        
Diana said that when she saw Joyce, Joyce was leaning up against the
deck railing opposite the door into the house. Ken was standing next to her. According
to Diana, Joyce was “pretty drunk.” In her direct evidence, she said that she
based this observation on the fact that Joyce was leaning on the railing. In
cross-examination, she said that in addition to leaning on the railing, Joyce’s
eyes and demeanour also suggested that she was drunk.

[75]        
Diana said that she, Melanie, Sherry and James all entered the house
onto the landing. She said that when she entered, she saw Lucy there and they
stood and talked on the landing for 10 minutes or so. The door going outside
remained open throughout that time. Diana testified that she then heard someone
yelling from outside; something like “somebody help her.” She then peeked out
the door and saw Joyce lying on the concrete at the bottom of the stairs. She
said that Melanie and Lucy also looked out to see what had happened.

[76]        
According to Diana, Lucy then yelled something like “idiot’ at Ken. Ken
came at Lucy but she and others stopped him. She then decided to leave the
party with Sherry, Melanie and James. She said that when they left, Joyce and
Ken were still at the bottom of the stairs. She thought that maybe Darlene was
with them. They had to step around Joyce and Ken to leave.

[77]        
In cross-examination, Diana said that the only people she saw on the
deck when she arrived were Darlene, Joyce and Ken. She said that Patricia was
not outside on the deck at that time.

[78]        
Diana was asked why she did not stop to help Joyce, who as she said, was
her dental hygienist. She said that Ken was helping Joyce and that she did not
see any blood. She also said that she did not see Joyce fall and does not know
what happened.

[79]        
The last witness called by Lucy was Darlene Glaim. Darlene is Mervin
Glaim’s sister and Lucy’s sister-in-law. She testified that she has known Lucy
for over 30 years. Darlene is employed as a training officer for the Aboriginal
Financial Officers Association.

[80]        
Darlene testified that she arrived in Smithers at about 6:30 p.m. on
March 24, 2006 on a flight from Vancouver. Her brother picked her up and took
her to his home but there was a mix-up with her luggage and they had to return
to the airport. When they returned home a second time, she shared a late dinner
with her brother and Lucy. Darlene testified that she had a single glass of
wine with dinner.

[81]        
After dinner, she and Lucy were sitting around talking when they
received a telephone call from Marlene inviting them to the party at the Namox
house. Darlene said that it was Lucy who spoke to Marlene. She does not believe
that she spoke to Marlene on the phone.

[82]        
Darlene testified that Marlene and Karl came to pick them up at around
11:30 p.m., although she also said it could have been 11:00 p.m. They then
drove to the Namox house, arriving at around midnight.

[83]        
She said that when they arrived, she recognized a number of people. Joyce
and Ken were sitting on a bench at the kitchen table and Patricia was also
sitting at the table.

[84]        
Marlene and Karl moved into the living room while she and Lucy stayed in
the kitchen talking to each other and to other people who arrived.

[85]        
Darlene testified that when she saw Ken and Joyce sitting on the kitchen
bench, Ken would get up, move around and talk to people. However, Joyce just
sat there with her head down looking at the floor. Darlene said she tried to
say hello to Joyce but got no response.

[86]        
Initially, Darlene and Lucy were the only ones standing in the kitchen
but at some point they were joined by Sandra Namox. There was music playing but
Darlene said that she and Lucy did not dance, although Sandra danced “a bit.”

[87]        
According to Darlene, she and Lucy discussed leaving shortly after they
got there because many of the people at the party “were ahead of us” in terms
of drinking. However they agreed to stay for a while and that Lucy would call
Mervin later to have him come and pick them up. Darlene thought it was 1:30 or
2:00 a.m. when Mervin later arrived to get them.

[88]        
Later in the evening, when they decided it was time to leave, Darlene
went out onto the back deck with Patricia to have a smoke. Darlene said that it
was not really a deck out the back door as the area was quite small, as
depicted in the photographs entered into evidence.

[89]        
When Darlene and Patricia went outside, there was no one else there. After
their smoke, she and Patricia went back inside to the internal landing where
Darlene says she saw Ken and Joyce. According to Darlene, Ken was trying to
carry Joyce out. Darlene suggested that Ken go and get their car and bring it
closer to the back door.

[90]        
Darlene then went back through the house to go to the bathroom. When she
returned to the landing, no one was there. She then looked outside and says
that she saw Joyce lying face down at the bottom of the outside stairs. She
says that Joyce’s head was lying on a pile of ice adjacent to the bottom stair.
At the same time, Ken was pulling up in his car.

[91]        
Darlene says that she went down the stairs to Joyce and held her head. Joyce
was bleeding from the head. There was no one else there other than her, Ken and
Joyce. According to Darlene, Ken got Joyce into the car and they drove off.

[92]        
Darlene said that she did not see any scuffle between Ken and Lucy and
she denied that she had to help stop Ken from attacking Lucy. According to her
evidence, there was no one else present, either on the back deck or on the
internal landing, when the incident occurred.

Assessment of the Evidence

[93]        
Given the dramatically different versions of the incident advanced by
the parties, and the dearth of independent evidence supporting either version,
it is a challenge to discern what occurred on the evening in question. In
attempting to do so, I must consider the evidence of each witness individually,
in terms of the credibility of the witness and the reliability of his or her
evidence, and also in terms of how that evidence fits into the narrative as a
whole.

[94]        
In Bradshaw v. Stenner, 2010 BCSC 1398 at paras. 186-187, Madam
Justice Dillon provides a very useful summary of the principles that will
govern the court’s approach to assessing the evidence where there are
significantly different versions of events advanced by the parties:

[186] Credibility involves an assessment of the
trustworthiness of a witness’ testimony based upon the veracity or sincerity of
a witness and the accuracy of the evidence that the witness provides (Raymond
v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The
art of assessment involves examination of various factors such as the ability
and opportunity to observe events, the firmness of his memory, the ability to
resist the influence of interest to modify his recollection, whether the
witness’ evidence harmonizes with independent evidence that has been accepted,
whether the witness changes his testimony during direct and cross-examination,
whether the witness’ testimony seems unreasonable, impossible, or unlikely,
whether a witness has a motive to lie, and the demeanour of a witness generally
(Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Farnya v. Chorny,
[1952] 2 D.L.R. 152 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), [1997] 3
S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence
depends on whether the evidence is consistent with the probabilities affecting
the case as a whole and shown to be in existence at the time (Farnya at
para. 356).

[187] It has been suggested that
a methodology to adopt is to first consider the testimony of a witness on a
‘stand alone’ basis, followed by an analysis of whether the witness’ story is
inherently believable. Then, if the witness testimony has survived relatively
intact, the testimony should be evaluated based upon the consistency with other
witnesses and with documentary evidence. The testimony of non-party, disinterested
witnesses may provide a reliable yardstick for comparison. Finally, the court
should determine which version of events is the most consistent with the
“preponderance of probabilities which a practical and informed person would
readily recognize as reasonable in that place and in those conditions” (Overseas
Investments (1986) Ltd. v. Cornwall Developments Ltd. (1993), 12 Alta. L.R.
(3d) 298 at para. 13 (Alta. Q.B.)). I have found this approach useful.

[95]        
In considering which, if either, of the different versions of events
advanced in this case is most consistent with the “preponderance of
probabilities,” I think the most useful approach is to consider the evidence in
relation to each of a number of key issues or events.

[96]        
Before doing so, it is useful to comment on the credibility of each of
the two main protagonists.

[97]        
I found Joyce to be a truthful witness who gave her evidence in a
straight forward and confident manner. While her recollection was not perfect,
no one could expect it to be seven years after the event. There were some
inconsistencies between her evidence and Ken’s, but again that is not
surprising and if anything supports the view that each of them was striving to
give honest answers rather than working off an agreed script.

[98]        
I found Lucy’s evidence less compelling. She tended to be somewhat
evasive and tentative in many of her answers and the inconsistencies between
her evidence and that of various other witnesses were on points that are more
central to the determination of what actually occurred. I also found her
attempts to portray Joyce as being intoxicated, including by reference to
certain prior alleged events, to be forced and adversely affected my view of
her credibility.

[99]        
On balance, where the evidence of Joyce and Lucy conflicts, I prefer the
evidence of Joyce.

Was Joyce Intoxicated?

[100]     The first
issue that I propose to address is whether Joyce was intoxicated to the degree
alleged by Lucy. As noted at the outset of these reasons, it is a central
premise of Lucy’s defence that Joyce was intoxicated and fell down the stairs. In
this regard, Lucy and other witnesses made a point of highlighting their
perception of Joyce’s condition.

[101]     Joyce
denied that she was intoxicated. She testified that she and Ken shared a half
litre carafe of wine at dinner and that she consumed three to four beers while
at the Namox house. She maintained this position notwithstanding vigorous
cross-examination on this point. Her evidence was supported by Ken’s testimony,
although he agreed that he did not keep track of what Joyce drank at the party
and he did concede in cross-examination that she might have had a “glass or
two” of wine.

[102]     There was
no independent evidence of the amount of alcohol consumed by Joyce during the
evening. Rather, Lucy relies on her and others’ purported observations of
Joyce, for example Lucy’s stated observation that when she arrived at the
party, Joyce was sitting at the kitchen table with her head down and that when
Joyce looked up, her eyes rolled back in her head. Lucy also relies on Diana’s
purported observation that Joyce appeared intoxicated on the back deck when
Diana arrived at the party, as well as Darlene’s perception of Joyce’s
condition.

[103]     Considering
all of the evidence concerning Joyce’s condition, I find that she was not intoxicated
to the degree alleged by Lucy. I accept Joyce’s evidence as to the amount that
she consumed during the evening and as to her condition. I note in particular
that Charlene Mitchell did not testify that Joyce was intoxicated, despite the
fact that she was sitting at the kitchen table with Joyce for much of the
evening. I note as well Charlene’s evidence that she saw Joyce and Ken leave
the kitchen when they were departing the party. In her words, Joyce “just
walked out the door.”  This is inconsistent with Darlene’s evidence that Ken
had to essentially carry Joyce out.

[104]     I am
mindful of the entries in the emergency room records from the hospital that
refer to Joyce’s state of intoxication, however absent some independent 
evidence from a doctor or nurse who treated Joyce that evening about their
observations, the notations in the record cannot be taken as evidence that
Joyce was in fact intoxicated.

The Timing of Events

[105]     Lucy
points out discrepancies in the timing of the events of the evening in Joyce’s
version. In particular, she notes that Joyce’s allegation that she saw Lucy
dancing in the kitchen around 10:30 pm and the allegation that Lucy insulted
her around the same time, are not possible given that she and Darlene did not
arrive at the party until around 12:00 am.

[106]     Lucy’s
evidence of when she arrived is supported to some extent by the evidence of Charlene
who testified that Lucy arrived at the party at about 12:30 am. However, I did
not find Charlene’s evidence to be very compelling on this point. For example,
she said that she knew it was around 12:30 am because that is when lots of
people arrived and prior to that point, there were only a “handful” of people
in the house. This is inconsistent with the evidence of other witnesses,
including Lucy, who testified that the party was well under way when she
arrived. Darlene also testified that there were a number of people at the Namox
house when she and Lucy arrived, which I take to mean more than a handful.

[107]     Darlene
testified that she and Lucy were picked up at Lucy’s house at about 11:30 pm,
although she conceded that it might have been closer to 11:00. On Darlene’s
evidence, she and Lucy likely arrived at the party between 11:30 pm and 12:00
am.

[108]     In my
view, given the passage of time, it is not surprising that there are different
recollections of the time at which various events occurred during that evening.
I do not think however that these discrepancies are so significant to render
one or other of the competing versions more or less likely to satisfy the
“preponderance of probabilities.”

Did Lucy Insult Joyce in the Kitchen?

[109]     As set out
above, Joyce alleges that at some point in the evening, Lucy walked by her and
called her a “hook nose.”  Joyce testified that Lucy walked in between where
she was sitting and the kitchen table. In response, in addition to arguing that
Joyce was wrong in her estimate of when this occurred, Lucy says that Joyce’s
story is inconsistent with the evidence of other witnesses as to where Joyce
was sitting.

[110]     For
example, Ken testified that where he and Joyce were seated, there was no room
for anyone to walk between them and the table. However, Ken testified that he
heard Lucy’s “hook nose” comment. This was inconsistent with Joyce’s evidence
that Ken in fact did not hear the actual comment.

[111]     None of
the other witnesses testified about the alleged insult.

[112]     As with
virtually every aspect of the case, the parties have different perspectives on
this point. Counsel for Joyce argues that the specificity of the alleged
insult-i.e. the use of the slur “hook nose”- supports the likelihood that it
actually occurred, more so than if Joyce had alleged a more general insult. In
contrast, counsel for Lucy argues that the specificity of the insult is what
renders the allegation more suspect. She submits that by coming up with such a
specific insult, it was easier for Joyce to then pin the blame for the later
incident on Lucy by painting her as the aggressor.

[113]    
On balance, I find that it is more likely than not that Lucy insulted
Joyce as alleged. I say this because:

a)   
as noted above, I generally accept Joyce’s evidence in preference to
Lucy’s;

b)   
I find it difficult to believe that Joyce would manufacture such a
specific and personal insult if the incident was wholly made up; and

c)     as will be
discussed below, the subsequent events of the evening are more consistent with
there having been some earlier conflict between Joyce and Lucy.

Who Was Present on the Back Deck at the Relevant Time?

[114]     Clearly
the most divergent aspect of the competing versions of events is what happened
on the back deck of the Namox house, including who was present at and around
the time of the incident.

[115]     In
considering the evidence on this issue, it is useful to note again how small
the back “deck” of the house is. While no dimensions were entered into
evidence, all of the witnesses agreed that it is a rather confined space, as
confirmed by the photographs in evidence. The stairs leading down from the deck
are even narrower, likely no more than three feet in width.

[116]     Joyce and
Ken were consistent in their evidence that when they went to leave the party,
no one else was outside on the deck and there was no one coming to or leaving
from the party.

[117]     In Lucy’s
version of events, at one point Joyce and Ken were outside on the deck along
with Darlene and Patricia. In addition, a number of people arrived at the party
while the four of them were on the deck. It is interesting that in Lucy’s
evidence, she made a point of noting Darlene’s presence on the deck at or about
the time that Joyce went down the stairs.

[118]     However,
in her evidence, Darlene indicated that while she and Patricia went outside for
a smoke, when they finished they returned inside and saw Joyce and Ken on the
internal landing. Darlene said that she then left to go to the bathroom. Darlene
did not testify that there was anyone else present or that people were arriving
while she and Patricia were on the deck.

[119]     There are
obvious problems with Darlene’s evidence. For example, her evidence that Joyce
was lying at the bottom of the stairs with her head towards the stairs on top
of a pile of ice, does not accord with the evidence of any other witnesses. Also
the fact that she did not purport to see any sort of confrontation between Ken
and Lucy is odd given that both of them agree that it occurred, although they
disagree on the exact details. Nonetheless, Darlene’s evidence about who was
present on the back deck at or just before the incident is more consistent with
Joyce’s version of events than Lucy’s.

[120]     Lucy’s
evidence is difficult to accept. In particular, the notion that there were as
many as seven people on the deck and stairs at one point is simply not probable
given the size of the space. Lucy’s evidence was also vague about where she was
standing and what she saw when she allegedly heard a commotion outside.

[121]     In the
circumstances, I accept Joyce and Ken’s evidence that when they went to leave,
there was no one else outside on the deck and no one arriving at the time.

Post-Incident Events

[122]     The
evidence of what occurred immediately after Joyce ended up at the bottom of the
stairs is helpful in shedding light on the central issue of how she got there.

[123]     Notwithstanding
Darlene’s evidence that she did not see any confrontation between Lucy and Ken,
it is apparent that in fact something occurred between the two of them.

[124]     Ken’s
evidence was that after Lucy pushed Joyce down the stairs, he went and checked
on Joyce. Because she was bleeding from the head, he then went to get a towel
from inside the house. Lucy was inside the back door on the landing with some
other people. Ken said something to the effect of “why the hell did you do
that” and she yelled at him and threw a beer in his face.

[125]     Lucy’s
evidence was that she was standing on the internal landing when she heard a
commotion outside. She looked out and saw Joyce at the bottom of the stairs. She
says Darlene and Patricia were moving down the stairs to help Joyce but Ken was
just standing there. She says she got angry with Ken for not taking care of his
wife which is why she called him a “fucking idiot.”  In her version, Ken then
came after her but others intervened and she threw a beer at him in
self-defence.

[126]     Lucy’s
version of events is supported by the evidence of Diana who testified that she
was on the landing with Lucy when they heard the commotion outside. She also
said that she helped restrain Ken from getting to Lucy.

[127]     I am
unable to put any weight on the evidence of Diana. Of all of the witnesses, she
struck me as the one who was most attempting to tailor her evidence to assist
her friend Lucy. For example, her evidence that she perceived Joyce to be
intoxicated was forced and her credibility was undermined by her attempts in
cross-examination to bolster that evidence.

[128]     I was also
troubled by her evidence that when she and others decided to leave the party, they
simply walked by Joyce lying on the concrete pad, without stopping to offer
assistance. Her evidence on this point was that Ken was helping her and that
she did not see any blood so did not think that Joyce was seriously hurt. Keeping
in mind how narrow the stairs are and where Joyce was located at the bottom of
the stairs, it is apparent that Diana would have had to effectively step over
or around Joyce to leave.

[129]     This
causes me doubt as to whether events transpired as Diana testified. I note that
neither Ken nor Darlene, who it is generally agreed tended to Joyce at the
bottom of the stairs, testified that they saw anyone come or leave when they
were with Joyce.

[130]     On
balance, I accept Ken’s version of what transpired after Joyce landed at the
bottom of the stairs. I accept that he immediately went to Joyce’s aid then
went to go inside the house to get a towel for the bleeding. I also accept that
he initiated the confrontation with Lucy by asking why she had pushed Joyce
down the stairs.

[131]     Lucy’s
version is simply not believable. First, she says that when she looked out, she
saw Darlene and Patricia going down the stairs to assist Joyce. However, no
other witness, including Darlene, put either Darlene or Patricia on the back
deck at the time of the incident.

[132]     Further,
it was common ground between Ken and Lucy that earlier in the evening they had
a pleasant conversation about their time in school together. Given that, it
makes no sense that when she saw Joyce lying at the bottom of the stairs, her
reaction was not to offer assistance but rather to yell at Ken, call him a
“fucking idiot” and throw a beer in his face. To my mind, that response is more
consistent with Ken approaching Lucy and confronting her about why she pushed
Joyce and with there having been a prior issue between Joyce and Lucy.

Findings With Respect to the Incident

[133]     It will be
apparent from the above that I accept Joyce’s evidence that she was pushed down
the stairs by Lucy.

[134]     In coming
to this conclusion, I have considered and weighed the evidence of all of the
witnesses, taking account of the various discrepancies and inconsistencies in
that evidence. Recognizing that these frailties in the evidence render it
difficult to determine with absolute precision what transpired in the morning
of March 25, 2006, I nonetheless find that Joyce’s version of events is most
consistent with the “preponderance of probabilities.”

[135]     I would
note that this finding is supported by the way that Joyce was positioned at the
bottom of the stairs, with her head away from the stairs, and with the cut to
the back of her head. These factors are more consistent with her being pushed
backwards off the stairs than falling down them.

The Plaintiff’s Injuries

[136]     As noted
above, Joyce was taken to the Bulkley Valley District Hospital where she was
attended to, early in the morning of March 25, 2006. At that time, she received
six stitches to the back of her head. Joyce testified that she also had
considerable bruising down the left side of her body.

[137]     The most
significant injury suffered by Joyce was to her left wrist. An initial x-ray of
the wrist, taken on March 26, 2006, did not reveal a fracture but a subsequent
x-ray done on April 5, 2006 showed an undisplaced fracture of the distal radius
in her left wrist. A cast was applied which she wore until May 19, 2006.

[138]     Joyce
underwent physiotherapy treatments for her wrist beginning in early April 2006.
She attended 22 physiotherapy sessions over the course of approximately one
year. Joyce testified that her wrist continued to cause her pain and discomfort
for a considerable period of time, particularly given that her work as a dental
hygienist requires her to use both hands and wrists extensively. Joyce
described her left hand as the “mirror hand” in that, because she is right
handed, the left hand does things like holding the mirror and pulling the
patient’s cheek back while the right hand uses the dental instruments.

[139]     As a
result of her wrist injury, Joyce was away from work until June 2006. She
initially tried to return to work on a full time basis but quickly scaled back
from eight to six hours a day because of ongoing difficulties. It was not until
August of 2007 that she was able to return to working an eight hour shift.

[140]     In
addition to her wrist injury, Joyce testified that she began to experience
regular headaches following the incident. Sometime in 2008, she attended a work
seminar in Vancouver on temporomandibular joint (“TMJ”) issues which caused her
to consider whether her headaches were the result of a TMJ disorder. She spoke
to both her doctor and her dentist about this and she was sent for testing.

[141]     On
February 11, 2009, she underwent a CT scan of her head which revealed “focal
degenerative activity in the left mandibular condyle.”  The imaging report further
notes: “This is an unusual location and raises the possibility that this could
be a result of previous trauma.”

[142]     Joyce was
examined by a dentist, Dr. Kinkela, on May 5 and June 16, 2009 and he found her
symptoms to be consistent with trauma to her TM joints, “particularly an
acceleration/deceleration type of an event that would illicit some soft tissue
strain on the TMJ supporting structures and lead to a subsequent inflammatory
response.”

[143]     However,
Dr. Kinkela also noted that he did not have any of Joyce’s records pre-dating
the incident so he could not conclusively state the cause of Joyce’s symptoms.

[144]     Joyce was
prescribed both a night and a day guard to wear in her mouth which are intended
to relieve pressure on the TMJ. Joyce testified that she wears the guards and
that they have been useful in reducing the frequency of her headaches.

[145]     One other
consequence of the incident according to Joyce has been an increased sense of
anxiety and periodic panic attacks. Her doctor prescribed her an antidepressant
that she continues to take as well as Ativan to deal with the panic attacks. Joyce
testified that she no longer takes the Ativan as the frequency of her panic
attacks has diminished.

[146]     Joyce
testified to the significant emotional upset and embarrassment she experienced
as a result of the incident, the effects of which continued to be felt at the
time of trial. She said that she strives to be a role model for her 17 year old
daughter, and in the community generally, and that it was traumatizing to be
involved in an incident of this nature.

Damages

Non-Pecuniary Damages

[147]     Counsel
for Joyce submitted that while arm fracture injuries tend not to attract
significant damage awards, the combination of the injury to Joyce’s wrist, the
gash to her head, her ongoing TMJ problems and the resulting anxiety issues
warrant an award of non-pecuniary damages in the amount of $50,000.

[148]    
This figure is arrived at by compiling the damages that might be awarded
for the individual injuries suffered by Joyce, and then rounding the total down
to $50,000.00. Specifically, counsel for Joyce quantifies the components of the
global award sought as follows:

a)     $20,000
for the wrist fracture, citing Thomson v. Friedman, 2008 BCSC 703
and Parsey v. Hankins, 2000 BCSC 357;

b)     $10,000
for the laceration to Joyce’s head, citing Dang v. Guiltner, [1999]
B.C.J. No. 1831, 1999 CanLII 2389 (S.C.);

c)     $15,000
for the TMJ injury citing Willeson v. Calgary (City of), 2007 ABQB 117
[Willeson]; and

d)    
$10,000 for the anxiety, citing Arnold v. Cartwright Estate, 2007 BCSC 1602.

[149]     The Willeson
decision, a case out of Alberta, is an example of where the court broke the
damages award down into discrete components as suggested by counsel for Joyce
here. However, the practice in British Columbia is to make a global award based
upon the cumulative effect of the plaintiff’s injuries.

[150]     Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities. The compensation awarded should be
fair to all parties, and fairness is measured against awards made in comparable
cases. Such cases, though helpful, serve only as a rough guide.
Each case depends on its own unique facts: Trites v. Penner, 2010
BCSC 882 at paras. 188-189.

[151]    
 In Stapley v. Hejslet, 2006 BCCA 34 [Stapley], the
Court of Appeal outlined the factors to be considered when assessing
non-pecuniary damages at para. 46:

[46] The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g) impairment of family, marital
and social relationships;

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton,
[2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[152]      The
assessment of non-pecuniary damages is necessarily influenced by the individual
plaintiff’s personal experiences in dealing with his or her injuries and their
consequences, and the plaintiff’s ability to articulate that experience: Dilello
v. Montgomery, 2005 BCCA 56 at para. 25.

[153]     In the
case at bar, there is no question that Joyce suffered real injuries that have
caused her considerable pain and suffering. In addition to the physical
injuries, I accept that she experienced emotional trauma as well. The physical
injuries were sufficiently healed by August 2007 so as to enable her to return
to work full time, although I accept she continues to experience occasional
difficulties with her wrist. By her account, the emotional issues have also
largely resolved.

[154]     Counsel
for Lucy did not provide extensive submissions on damages other than to note
that with respect to Joyce’s TMJ injury, her dentist’s clinical records record
TMJ problems predating the incident. Counsel for Lucy also points to Dr.
Kinkela’s report where he states that due to the absence of prior records, he
cannot conclusively state the cause of Joyce’s current symptoms. Neither party
however, addressed the causation question with respect to the TMJ issue and
whether it should be considered under the “thin skull” or “crumbling skull”
principle.

[155]     I am
inclined to accept Joyce’s evidence that she experienced an increase in
headaches following the incident and that any previous problems she had were
minor but were exacerbated by the injury she sustained in the incident.

[156]     Taking
account of all of the evidence and considering the factors articulated by the
Court of Appeal in Stapley I award Joyce $35,000 under this head.

Loss of Earnings

[157]     As noted,
Joyce was away from work until June 2006 then returned on a part time basis
until August of 2007.

[158]    
The evidence established that Joyce’s gross earnings for the years
2005-2011 were as follows:

[159]     Counsel
for Joyce notes that her earnings in 2006 were $12,847.06 less than her total
earnings in 2005 which is attributable to the time that she missed due to her
injuries. With respect to 2007, he notes that her earnings that year were
$3,765.63 less than in 2005, but $10,787.67 less than in 2008. However, there
was evidence that Joyce’s hourly wage rate increased in 2008 which likely
accounts for that increased difference.

[160]     In my
view, it is appropriate to assess Joyce’s past wage loss by comparing her
earnings in 2006 and 2007 to her previous 2005 earnings. Using the figures set
out above, Joyce’s loss totals $16,612.69. The parties agreed that from this
amount there must be deducted disability benefits received from Canada Life
($3,462.50) and employment insurance benefits ($3,717.00) leaving a total award
payable to Joyce of $9,433.19.

Special Damages

[161]     Joyce
claims special damages in the amount of $1,227.20, comprised of the replacement
cost of a contact lens lost at the time of the incident ($66.00), dry cleaning
of the blood from her leather jacket ($81.20), replacement of her blouse
($50.00), physiotherapy costs (22 visits at $40.00 per visit-$880.00) and
physician fees to complete insurance forms ($125.00), and the cost of a wrist
brace ($25.00).

[162]     Joyce
testified that the first three items were paid by victim services but must be
repaid if she recovers damages in respect of those matters. It came out in the
evidence that in fact, Joyce only paid $10.00 per physiotherapy visit as the
balance was paid by Ken’s insurance. No receipts were provided with respect to
the other claimed expenses.

[163]     In the
circumstances, I award the sum of $500.00 in special damages.

Aggravated Damages

[164]     Joyce
advances a claim for aggravated damages resulting from the embarrassment and
emotional trauma associated with the assault. Counsel for Joyce suggests that
$10,000 is an appropriate award under this head.

[165]     Counsel
for Lucy submits that only Joyce’s husband Ken witnessed the incident and the
fact that she told other people that she was assaulted, resulting in additional
embarrassment, cannot add to her damages.

[166]    
Madam Justice Gerow in Thomson v. Friedmann, 2008 BCSC 703 at
paras. 29 and 30, provides a helpful summary of the law governing aggravated
damages:

…Aggravated damages are a compensatory award that takes
account of the intangible injuries such as distress and humiliation caused by a
defendant’s insulting behaviour. Aggravated damages are often claimed as
compensation for mental distress caused by a defendant’s behaviour. Aggravated
damages will frequently cover conduct which would also be subject to punitive
damages, but their role is compensatory. They are designed to compensate a
plaintiff and are measured by the plaintiff’s suffering such as pain, anguish,
grief, humiliation, wounded pride, damaged self-confidence or self-esteem, and
similar matters caused by the conduct of a defendant: Vorvis v. Insurance
Corp. of British Columbia, [1989] 1 S.C.R. 1085.

[30] There is a close
relationship between aggravated and punitive damages. The harshness of a
defendant’s conduct may give rise to both types of damages. However, it is
important that a plaintiff not be compensated twice for the same harm or a
defendant punished twice for the same type of moral culpability: Huff v.
Price (1990), 51 B.C.L.R. (2d) 282 (C.A.).

[167]     I accept
that Joyce suffered humiliation and emotional trauma as a result of the assault.
However, that emotional upset has been acknowledged in the award of non-pecuniary
damages and, in my view, to award additional aggravated damages would result in
double compensation for Joyce. I therefore decline to award aggravated damages.

Punitive Damages

[168]     Unlike
aggravated damages that are intended to compensate the plaintiff, punitive
damages are awarded to condemn the conduct of the defendant where that conduct
has been high-handed, malicious, arbitrary or highly reprehensible such that it
departs to a marked degree from ordinary standards of decent behaviour (Whiten
v. Pilot Insurance Co., 2002 SCC 18 at para. 94.)

[169]     Counsel
for Joyce submits that the unprovoked assault by Lucy, someone of standing in
the local community, is deserving of condemnation and, accordingly, an award of
punitive damages.

[170]     While I
have found that on a balance of probabilities, Lucy assaulted Joyce by pushing
her down the back stairs of the Namox residence, I have also noted that the
nature of the evidence was such that it is not possible to get a clear picture
of what transpired during the evening in question.

[171]     In the
circumstances, I cannot conclude that an award of additional punitive damages
is warranted.

Summary

[172]     In
summary, I find that Joyce was assaulted by Lucy when Lucy pushed her down the
stairs at the Namox residence early in the morning of March 25, 2006.

[173]    
I further find that Joyce is entitled to the following:

[174]     Unless
there are circumstances that I am not aware of, Joyce is entitled to her costs
at Scale B.

”Skolrood J.”