IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150626

Docket: S140306

Registry:
New Westminster

Between:

Jeremy MacKay

Plaintiff

And

Nachhatter Singh
Jhulley

Defendant

Before:
The Honourable Mr. Justice N. Kent

Oral Reasons for Judgment

TABLE OF
CONTENTS

INTRODUCTION. 3

THE APRIL 24, 2011 ALTERCATION. 3

LIABILITY. 8

INJURIES. 13

DAMAGES. 20

Non-pecuniary general damages. 20

Past and future loss of earning
capacity. 22

Special damages and future care. 31

Punitive damages. 32

CONCLUSION AND SUMMARY. 32

INTRODUCTION

[1]            
This case involves claims and counterclaims arising from an altercation
between the parties which occurred during the late evening of April 24, 2011 at
a residence located at 10708 Farms Road in Mission, BC. The parties
recount radically different versions of the same event and the Court is
required to determine the veracity and reliability of the evidence provided by
the key witnesses.

[2]            
In the course of the altercation, Mr. MacKay received a significant
blow to his head, sustaining a wound that required attendance in hospital for treatment.
He now complains of permanent headaches, dizziness, balance problems and
fatigue, all said to result from the head injury and which it is claimed render
him competitively unemployable for the balance of what would otherwise have
been his working life expectancy. He seeks substantial damages on that account.

[3]            
Mr. Jhulley claims that Mr. MacKay was the aggressor
throughout this incident and he counterclaims for damages for personal injuries
sustained, primarily bruising and contusions arising from the punches thrown by
Mr. MacKay. He also claims damages from Mr. MacKay for property
damage allegedly inflicted by the latter to certain farm equipment as well as
the house on Farms Road which was occupied by Mr. MacKay and his family.

[4]            
In the result, this Court concludes that Mr. Jhulley was the sole
instigator of the April 24, 2011 incident and is liable to Mr. MacKay for
the injuries inflicted upon the latter. However, Mr. MacKay is also found
to bear some degree of fault for placing himself in harm’s way. Damages are
assessed accordingly. Mr. Jhulley’s counterclaim is dismissed in its
entirety.

THE APRIL 24, 2011 ALTERCATION

[5]            
The residence at 10708 Farms Road is owned by Mr. Jhulley and sits
in the middle of his substantial blueberry farm. His own house is located a
short distance further down the road.

[6]            
The house at 10708 Farms Road was rented by the plaintiff’s spouse, Ms. Christina
Reyda, pursuant to a written tenancy agreement signed by her on May 31,
2007. The home was occupied by Ms. Reyda and Mr. MacKay along with
their two children. The couple had two more children during the tenancy, one
born December 20, 2007 and the other March 26, 2011. They subsequently had a
fifth child born August 25, 2012. All of these children have since been
apprehended by the Ministry of Child and Family Development and are currently
in foster care.

[7]            
Mr. MacKay is currently 39 years of age, having been born November
19, 1975. He attended a number of different schools, all in Richmond, BC,
repeating Grade 9 and quitting school on at least three occasions. He appears
to have completed Grade 9, passed some courses at a Grade 10 level before
quitting school altogether in the course of Grade 11. He has been in a
common-law relationship with Ms. Reyda since 1998.

[8]            
Mr. Jhulley is married and has two adult sons, Harbinder (“Harry”),
currently aged 31, and Jagdeet (“Jason”), currently aged 29. Harry, his wife
and two children live in another house owned by Mr. Jhulley and also
located on the farm. Jason still lives at home with his father and mother, Baljit.
All family members testified at this trial with the exception of Harry.

[9]            
For the first couple years, the relationship between landlord and
tenants was relatively cordial. Things started to deteriorate in mid-2009. At
that time Ms. Reyda applied for welfare and sought a reduction in rent
from $1,000 to $700 per month effective May 1, 2009. Mr. Jhulley signed
paperwork confirming the $700 rent for the purposes of Ms. Reyda’s
application for welfare. However, he contends that the reduction was only
supposed to be temporary.

[10]        
In February 2011, Mr. Jhulley issued a “Notice to End Tenancy” to Ms. Reyda
which triggered a dispute resolution hearing before the Residential Tenancy Branch
on March 23, 2011. At that time, the Residential Tenancy Branch declared the Notice
to end Tenancy ineffective and confirmed the $700 as the amount due. The altercation
between Mr. Jhulley and Mr. MacKay occurred one month later.

[11]        
Mr. Jhulley is convinced that Mr. MacKay has led his adult
children astray. In particular, he believes Mr. MacKay was operating a
marihuana grow-op in the rental house and that, over the years, Mr. MacKay
had introduced his sons not only to marihuana but also to hard drugs such as
heroin and cocaine.

[12]        
Mr. Jhulley’s version of the events on April 24, 2011 is as
follows:

·                
after a hard day’s work on the farm, he came home and was
enjoying a couple drinks in his hot tub;

·                
his son Jason arrived home and got into an argument with his
mother, demanding money which she refused to provide, whereupon he became
aggressive, screaming and punching the wall;

·                
he called the police who escorted Jason away from the property;

·                
after another couple of drinks, he then received a text from Mr. MacKay
insulting him as poor father who sends his children to jail;

·                
having been convinced that Mr. MacKay had inflicted damage
to his farm equipment on previous occasions, Mr. Jhulley then became
concerned about a tractor which had been parked in the field behind the house
rented by Ms. Reyda and her family; accordingly, he decided to drive over
to that property to move the tractor;

·                
when he arrived at the property he parked his truck beside the
barn and started to get out when he noticed Mr. MacKay marching towards
him brandishing a metal pipe;

·                
Mr. Jhulley then picked up a four-foot-long two-by-four
lying nearby in order to defend himself and the parties started to strike each
other, with Mr. Jhulley eventually landing a blow to Mr. MacKay’s
head;

·                
Mr. MacKay then grabbed Mr. Jhulley in a bear hug,
threw him to the ground, climbed on top of him and started to strike him in the
face several times before eventually putting him in an arm lock, restraining
him until the police arrived; and

·                
while waiting for the police arrival, Mr. MacKay smoked some
heroin offered to him by his wife and when approached by his son Jason urging
release of his father, threatened to break Mr. Jhulley’s arm.

[13]        
Mr. MacKay’s version of events, largely corroborated by the
testimony of his wife Ms. Reyda, is as follows:

·                
he was sitting at home with his family watching TV when he
started receiving abusive and threatening phone calls from Mr. Jhulley;

·                
a little later, Mr. Jhulley’s truck came bouncing down the
driveway towards the house with its horn honking;

·                
the truck came to a stop in front of the house and Mr. Jhulley
alighted carrying a metal pipe, whereupon he attempted to strike Mr. MacKay
who had stuck his head out the front window telling him to “fuck off”;

·                
the pipe did not hit Mr. MacKay at the time but tore the
curtain at the window and broke the windowsill;

·                
Mr. Jhulley then got back into his car and drove over to the
barn where he again parked his vehicle, got out of same with the pipe again in
hand, and started walking towards the house;

·                
in order to “protect his family” Mr. MacKay decided he had
to do something to stop this and so he went outside through the back door and
approached Mr. Jhulley unarmed;

·                
Mr. Jhulley started swinging the metal pipe at Mr. MacKay,
whereupon the latter started to back-pedal away for some distance but was
eventually struck in the head by the metal bar;

·                
Mr. MacKay fell to the ground stunned, but came to a few seconds
later to find a shocked-looking Mr. Jhulley standing above him, whereupon
he jumped up, grabbed Mr. Jhulley, threw him to the ground punching him
several times in the face and eventually grappling him into an arm lock in
which he was held until the police arrived.

[14]        
Following these events, Mr. Jhulley was arrested, charged and
eventually tried in the Provincial Court of British Columbia with three
offences under the Criminal Code, namely:

1.       an
assault upon Jeremy MacKay using a weapon, to wit, a metal bar contrary to
s. 267(a) of the Criminal Code;

2.       committing
an assault upon Jeremy MacKay, causing bodily harm to the complainant, contrary
to s. 267(b) of the Criminal Code; and

3.       knowingly
uttering a threat to Jeremy MacKay to cause death or bodily harm to the said
complainant, contrary to s. 264.1(1) of the Criminal Code.

[15]        
At the Provincial Court trial, both Mr. MacKay and his wife, Ms. Reyda,
testified, as did Mr. Jhulley and his son Jason, along with two of the
RCMP constables who attended the scene. The one-metre-long long metal pole,
which was observed at the time to have fresh blood along approximately six
inches of its length, was marked as an exhibit at the trial. Mr. MacKay
testified not only to the version of events set out above but also to a death
threat made by Mr. Jhulley during the course of his phone call before
driving over to the rental home. Mr. Jhulley testified to a similar
version of events as the one set out above except that, at the Provincial Court
trial, he said he was able to grab the pipe away from Mr. MacKay and
strike him once on the head before throwing the pipe away.

[16]        
In finding Mr. Jhulley guilty of all three offences, the Provincial
Court judge expressly disbelieved Mr. Jhulley’s account of the events,
finding that he was intoxicated at the time, that parts of his testimony simply
did not accord with common sense or were inconsistent with other more credible
evidence. The court concluded:

[66]      Looking at the evidence in totality, I find the
accused was the aggressor throughout and he first presented himself at the
complainant’s rented home with a metal pole in his hands. He swung at the
complainant several times through the front window and proceeded to the back of
the home. There, he approached the complainant and struck the complainant once
on the head with a metal pole, causing a wound. The complainant then defended
himself and did strike the accused in the right eye area with his fist.

[67]      I do not accept that
the accused was acting in self-defence … I find the complainant never acted
as the aggressor, he did not have an object in his hands when he approached the
accused, and he was simply defending himself throughout. The complainant never
carried out an unprovoked assault.

LIABILITY

[17]        
Once it became apparent during this trial that a number of issues of
both fact and law which had been determined (on a higher standard of
proof) against the defendant in the Provincial Court proceedings were proposed
to be re-litigated in the civil proceedings, I invited the parties to make submissions
respecting the common law doctrines of issue estoppel, improper collateral
attack, and abuse of process as discussed in Toronto (City) v. C.U.P.E.
Local 79, 2003 SCC 63.

[18]        
In that case, the Supreme Court of Canada explained how the doctrine of
abuse of process concentrates on the integrity of the adjudicative process and
involves the inherent power of the court to prevent misuse of its procedure in
a way that would bring the administration of justice into disrepute. The Court
ruled that permitting parties to re-litigate a criminal conviction in a
subsequent proceeding is a very serious matter and one which, except in
unusual circumstances, potentially undermines the credibility of the entire
judicial process, thereby diminishing its authority and aim of finality.

[19]        
The ruling in the Toronto case thus bars re-litigation of the
factual findings made by a criminal court and upon which any conviction rests
unless:

1.       the
first proceeding is tainted by fraud or dishonesty;

2.       fresh
and new evidence, previously unavailable, conclusively impeaches the original
results; or

3.       fairness
dictates that the original results should not be binding in the new context.

[20]        
With respect to the unfairness factor referred to above, the Court
suggested an example where the stakes in the original proceeding were too minor
to generate a full and robust response while the stakes in the subsequent
proceeding were much more considerable. Such an “inadequate incentive to defend”
the original process can be taken into account to determine if the
administration of justice would be better served by permitting the second
proceeding to go forward than by insisting that finality should prevail.

[21]        
In this case, Mr. Jhulley was charged with, and ultimately convicted
of, three very serious criminal offences carrying with them the prospect
of lengthy incarceration. It can hardly be said that these proceedings were too
minor to generate a full and robust response.

[22]        
Mr. Jhulley also argues that the original criminal proceeding was
tainted by the inadequacies of both defence counsel and the interpreter.
There is no meaningful evidence on either point and, of course, no appeal was
taken on that account.

[23]        
In my view, as occurred in McCaffery v. Arguello, 2014 BCSC 70, this
is a case where the law requires the findings of the Provincial Court in
respect of the criminal charges to have been conclusively established against Mr. Jhulley
in the present civil proceeding. Those findings include that:

·                
Mr. Jhulley uttered threats of death or bodily harm to Mr. MacKay
over the phone before driving over to the latter’s house;

·                
Mr. Jhulley was the aggressor throughout;

·                
Mr. Jhulley presented himself at the house with a metal pole
in his hands and swung at Mr. MacKay several times through the front
window before proceeding to the back of the home;

·                
Mr. Jhulley approached Mr. MacKay and struck him once
on the head with a metal pole causing a wound;

·                
Mr. MacKay defended himself by striking the accused in the
right eye area with his fist;

·                
Mr. Jhulley was not acting in self-defence;

·                
Mr. MacKay was never the aggressor, and did not have an
object in his hands when he approached Mr. Jhulley, rather he was
simply defending himself throughout; and

·                
Mr. MacKay did not carry out any sort of unprovoked assault.

[24]        
These findings are completely dispositive of the liability issues in
this case, including Mr. Jhulley’s counterclaim for damages for personal
injury. I find Mr. Jhulley liable to Mr. MacKay for the tort of
assault and battery, and Mr. Jhulley’s counterclaim for personal injuries
sustained in the altercation is dismissed.

[25]        
I would add that even if I were not bound by the findings in the
criminal proceeding, I would nonetheless have made essentially the same findings
on the evidence in this case. Mr. Jhulley is an unreliable and incredible
witness who gave false testimony on numerous points. At his criminal trial, he
admitted striking Mr. MacKay with a metal pole, albeit in claimed self-defence,
but in the present trial he testified that he never laid hands on the pole at
any time but rather struck Mr. MacKay with a wooden two-by-four. The
evidence of the assault at the window, damaging both the curtain and the sill,
is overwhelming and Mr. Jhulley’s denial that any such incident
occurred is completely false. Similarly, his testimony that Mr. MacKay
took a break from assaulting him to recharge himself with a snort of heroin is
a complete fabrication and one so ludicrous that it beggars belief.

[26]        
There is simply no doubt that Mr. Jhulley, fuelled by a drunken
rage, drove over to Mr. MacKay’s house armed with a metal pole and intent
on inflicting grievous bodily harm. It is outrageous conduct for which he must
be held fully responsible not only in criminal court but in these civil
proceedings as well.

[27]        
Having said that, the issue of contributory fault on Mr. MacKay’s
part was irrelevant in the criminal trial and it is therefore open to this Court
to hear evidence and make findings on that particular issue.

[28]        
The elements of provocation in civil law are the same as in criminal
law. To establish provocation, it must be shown that the defendant or
accused acted “on the sudden” while experiencing a momentary loss of self-control
in response to the plaintiff’s conduct: R. v. Pappas, 2013 SCC 56 at paras. 34-36;
McCaffery v. Arguello, supra, at paras. 26-29.

[29]        
In this case, there is no basis in the evidence or in the findings of
the Provincial Court to establish that Mr. Jhulley acted “on the sudden”
in response to the immediately preceding provocative actions on the part
of Mr. MacKay. Provocation is therefore not a basis for attributing any
contributory fault to Mr. MacKay.

[30]        
There is, however, one basis upon which contributory fault can be
attributed to Mr. MacKay. The evidence establishes that Mr. MacKay
was inside the house with his family when Mr. Jhulley first presented
himself and swung the metal bar at the windowsill. There was no reason for Mr. MacKay
to go outside and confront Mr. Jhulley in such circumstances. Indeed,
common sense dictated that the safest thing to do would be to stay in the house
and call the police rather than proceeding outside to confront an enraged and
intoxicated Mr. Jhulley who was armed with a metal pole and seemingly
intent on doing serious harm to Mr. MacKay.

[31]        
By leaving the safety of his house and presenting himself unarmed in
front of Mr. Jhulley, Mr. MacKay recklessly endangered himself. Had
he stayed inside, the risk of serious injury would not likely have materialized
and this case would likely have gone no further than the criminal proceedings. Mr. MacKay’s
disregard for his own physical safety was clearly a contributing cause of the
injuries he ultimately sustained.

[32]        
In my view, however, the vast majority of fault for this incident and
for the injuries sustained by Mr. MacKay lies with Mr. Jhulley. He
formed the intent to inflict injury and carried out that intent in a vicious
manner. Mr. MacKay, on the other hand, while perhaps acting foolishly in
the circumstances, thought he was in some fashion protecting his family by
confronting Mr. Jhulley. His conduct is far less blameworthy.

[33]        
In the result, I allocate fault for Mr. MacKay’s injuries 85% to Mr. Jhulley
and 15% to Mr. MacKay himself.

[34]        
There remains to be considered Mr. Jhulley’s counterclaim for
property damage. These claims are not related to the assault incident of April
24, 2011 but rather constitute a stand-alone cross-claim in respect of which
the evidence is either non-existent or exceedingly weak.

[35]        
Mr. MacKay admits that he broke the window of Mr. Jhulley’s
tractor in August 2009. He claims it was an accident, as he was only
trying to attract the attention of Mr. Jhulley’s son by throwing a rock
against a window which he thought was plexiglass and would not break. He would
be liable for that damage except for the fact that the incident occurred in
August 2009 and the two-year limitation for prosecuting a claim for damages had
long since expired before the present proceedings were instituted.

[36]        
Insofar as Mr. Jhulley claims compensation for vandalism to his
excavator, the simple fact of the matter is that he has presented no evidence beyond
speculation that Mr. MacKay carried out the acts in question. Mr. MacKay,
of course, denies it. In the absence of any admissible evidence linking Mr. MacKay
to the damage, the claim cannot succeed.

[37]        
The last claim relates to damage to the house rented by Ms. Reyda.
Photographs clearly establish the existence of holes which have been kicked or
punched into walls and doors, as well as mildew/mould at various places and
sagging ceilings. Ms. Reyda testified that she had kicked the holes in the
wall, although she did not provide any reason for such conduct. No admissible
evidence was put in front of the Court to the effect that a marihuana grow-op
was actually present in the house. There is simply no evidence establishing
that Mr. MacKay inflicted the damage in question (as opposed to his wife
or other persons) and accordingly the claim must be dismissed.

INJURIES

[38]        
On the night of the assault, Mr. MacKay was taken to Mission
Hospital where he was kept overnight. The wound on his head was cleaned
and sutured. His various abrasions were also cleaned and treated.

[39]        
He was discharged home the following morning. He says he felt “horrible”
and was suffering from dizziness and vertigo. Everything was moving in circles
and he noticed acute sensitivity to light and sounds. He was nauseous most of
the time and recalls episodes of vomiting for several days.

[40]        
On April 26, 2011, he attended at the emergency department of Abbotsford
Hospital. He was sure something was wrong with him that had been missed at
Mission Hospital because he was tired, vomiting, and suffering from headaches
and dizzy spells. He was scared because he had never experienced anything like
this before. He received no particular treatment on that occasion.

[41]        
A CAT scan was taken at Abbotsford Hospital on May 10, 2011. The results
were clear. No bleeding or masses were noted.

[42]        
Four years later, Mr. MacKay continues to complain of the same
symptoms. He has a high-pitched ringing tone in his right ear (tinnitus) and
has acute sensitivity to high-pitched sounds caused by things like dishes
clanging, children crying, air brakes, etc. (hyperacusis). He has sensations of
dizziness and spinning and feels constantly fatigued. He feels that he is
almost always fighting for balance and the fatigue and loud noises will often
trigger headaches and occasional vomiting. His sleeping pattern has completely
changed; whereas before the assault he regularly slept right through the night,
now he sleeps in cycles of one-and-a-half hours interrupted by getting up and
moving around and having a smoke before laying down again and trying to get
back to sleep. He finds that turning on the stove fan generates a noise that
sometimes helps him fall back to sleep.

[43]        
His working and recreational abilities have been severely affected. Any
sort of meaningful physical activity or exertion triggers dizziness and
fatigue. He tried a day’s work with a landscaping contractor but after only 10
minutes of exertion he felt dizzy and nauseous and had to lay down for a period
of time. He no longer rides his dirt bike or goes camping. Even taking his
young child to the park and following him around on the play equipment is
difficult. After 20 minutes he is compelled to sit down and he is plagued by
dizziness for several hours thereafter. He feels fatigued and needs to rest.

[44]        
He has become something of a recluse. He does not socialize or go out.
He does not have many friends. He tries to help out around the house a
little but he says he “feels useless”. He says he “just doesn’t feel right”,
that he is “constantly fighting it” but he “doesn’t know what [he] can do”. He
considers himself to be a burden on his wife and family since the dizziness and
fatigue prevent him from working or making any significant contribution around
the household.

[45]        
One of the interesting features of this case is that Mr. MacKay has
received almost no treatment for any of his complaints and has only attended
upon a physician at a walk-in clinic on very few occasions since the assault.
On behalf of Mr. Jhulley, it is argued that the largely subjective
nature of Mr. MacKay’s symptomology along with his “failure” to obtain
medical treatment suggests his condition is not serious and the lack of corroboration
militates in favour of a conclusion that ongoing disability has simply not been
proven on the balance of probabilities.

[46]        
It is also argued on behalf of Mr. Jhulley that Mr. MacKay has
an addiction to drugs (discussed more fully below) and that this too warrants
scepticism respecting subjective symptomology not capable of objective,
physical substantiation.

[47]        
Mr. MacKay’s wife, Christine Reyda, corroborates Mr. MacKay’s
complaints to some degree. She confirmed that he was essentially confined to his
bedroom for the first week or two following the incident, gradually staying up
a little longer each day. She confirms that he would only eat soup or very
light foods, but nonetheless was vomiting frequently during the first couple
weeks. In the first month he constantly complained of headaches, nausea,
dizziness and “head-ringing”.

[48]        
Ms. Reyda confirms that her husband is simply “not the same”. He is
lethargic and tired all the time and takes naps throughout the day. He
mispronounces words, something he never did before the accident, and has become
far more emotional, breaking out into tears and “crying fits” on several
occasions. He tries helping around the house once in a while but starts
sweating profusely and becomes tired necessitating a lay-down of one to three
hours. Noise seems to hurt him and his sleeping pattern at nighttime is broken
into two-hour periods.

[49]        
She described him as “easy to get along with” before the accident. Now
he is different and “just not there”. He cannot go out anymore or do any sort
of meaningful activity.

[50]        
Ms. Reyda was asked what she thinks the future holds for the
couple. She says she hopes to obtain some sort of minimum-wage job to help
support the family. However, her husband is “constantly dizzy” and although she
would like him to work, she does not think he is capable of doing so. She sees
herself being forced to care for her husband long into the future, something
which makes her “very sad”.

[51]        
Mr. Wayne Godolphin also testified as to his experience with Mr. MacKay’s
ability to work. He has full-time employment in the field of shoring and shotcreting
but he also operates a sideline tree service business. The work involves
removal, topping and thinning of trees. He works mostly alone but if he has a
bigger job he will bring in help. The helper will drag limbs to the chipper,
clean up the site, and carry out a variety of other physical tasks for which he
will be paid $15 an hour cash, sometimes $20 an hour if the worker is
particularly good.

[52]        
Mr. Godolphin was introduced to Mr. MacKay through a friend.
He was told that Mr. MacKay was looking for work. He knew that Mr. MacKay
had been injured but he called him up to see if he would come along for a day’s
work on one of his projects. Mr. MacKay agreed.

[53]        
Because Mr. MacKay had no car, Mr. Godolphin picked him up at
his home in Mission and then drove back to Abbotsford for the project. The
work entailed the removal and disposal of five fir trees.

[54]        
Mr. Godolphin says Mr. MacKay was “going good” for about 20
minutes but then he became sluggish. He told Mr. Godolphin that his head
was just pounding. It was clear to Mr. Godolphin that Mr. MacKay
was “pooped” and could not go on. He says he could tell that Mr. MacKay
was hurting. He told him to lie down which is what Mr. MacKay proceeded to
do. At some point Mr. MacKay picked up a rake and did some cleaning work. Mr. Godolphin
thinks Mr. MacKay was embarrassed by his inability to work but he could
tell that Mr. MacKay was completely spent and unable to do the job.

[55]        
Mr. Godolphin also confirmed that he hired Mr. MacKay to come
back on a couple other occasions in the future as a “watcher”. There was no
physical work involved, merely Mr. MacKay keeping an eye on Mr. Godolphin
while the latter was up in a tall tree doing aerial thinning. He says he called
Mr. MacKay to do the work because he could not find anyone else who was
available at the time.

[56]        
Mr. MacKay retained legal counsel shortly following the assault.
Counsel arranged for an assessment of Mr. MacKay by a physician who
specializes in otology (Dr. Longridge), a registered audiologist (Ms. Carol
Lau), an occupational therapist specializing in work capacity evaluation and
disability analysis (Mr. McNeil), and a specialist in vocational
evaluation and rehabilitation (Mr. Nordin). Each of these individuals
prepared expert reports setting out their respective assessments and
evaluations of Mr. MacKay’s medical or vocational disabilities and each
also testified at trial.

[57]        
Dr. Longridge conducted an assessment of Mr. MacKay on August
17, 2011. He specializes in the evaluation of tinnitus, hearing loss and
dizziness. He took a detailed history of Mr. MacKay’s complaints and
subjected him to a variety of procedures designed to test balance function. His
opinion, which was not seriously challenged at trial and which I accept in its
entirety, is that:

1.       Mr. MacKay
has permanent but mild tinnitus, which cannot be cured but which might be
ameliorated by the aids provided by the audiologist;

2.       Mr. MacKay’s
dizziness and disturbance of his balance system is attributable to inner ear
injury most probably caused by the assault;

3.       the
condition is long-term and permanent and there are no medications available to
treat same;

4.       fatigue
onset can be related to balance system impairments and this has likely occurred
in Mr. MacKay’s case;

5.       Mr. MacKay
is at risk and should avoid activities which may put him at hazard, i.e.
working at heights, operating dangerous equipment, etc.; and

6.       there
is some likelihood that Mr. MacKay will experience an earlier onset of further
age-induced balance difficulties later in life.

[58]        
Ms. Lau conducted an audiological assessment of Mr. MacKay on
February 15, 2012. The test battery administered to Mr. MacKay
revealed:

1.       normal
hearing in both ears;

2.       tinnitus
matched to 8.0 kHz, which is a moderate handicap but which can be reduced with
therapy and binaural white-noise generators (aids); and

3.       reduced
sound tolerance (hyperacusis) which will likely limit Mr. MacKay’s ability
to tolerate noisy activities or environments.

[59]        
She opined that both the tinnitus and hyperacusis were likely caused by
the assault.

[60]        
Mr. McNeil conducted his assessment of Mr. MacKay’s work
capacity on April 7, 2014. His opinion regarding Mr. MacKay’s work capacity
is summarized as follows:

Based on the assessment results, Mr. MacKay
did not present with the capacity to be competitively employable (i.e. to
obtain and sustain an industrial work pace). While he demonstrated the strength
to perform short periods of light to modified medium strength tasks, he did not
demonstrate the capacity to maintain a competitively employable work pace. For
example, he would be severely restricted in his capacity to perform occupations
that require prolonged static standing and/or prolonged walking, restricted
performing sustained below waist level work including bending, crouching,
kneeling, and restricted performing prolonged overhead work. He is not capable
of performing occupations that require climbing or working at heights. Based on
measurement results he would not be capable of working in occupations in the
medium to heavy physical demands characteristics. For example, he would be
unable to work in occupations such as in the majority of trades which typically
fall into the medium to heavy physical demands. Finally, he would be unable to
work in occupations requiring manual material handling such as warehouse work.

[61]        
The defence retained Ms. Shannon Smith, an occupational therapist
whose expertise in functional capacity evaluation was not contested, to carry
out a review and critique of Mr. McNeil’s report. Ms. Smith did not
undertake her own assessment of Mr. MacKay but rather critiqued the
methodology, testing and conclusions presented in Mr. McNeil’s report. She
expresses the opinion that Mr. McNeil “overstates or generalizes
disability on the part of Mr. MacKay in a fashion that is not supported
by the test data” and considers his conclusion that Mr. MacKay is not
competitively employable as a “very broad statement, not really supported by
test data”. With respect to Mr. MacKay’s overall work tolerance and his
ability to work on a part-time or full-time basis, she opines “insufficient
testing has been conducted to make any accurate determination in this regard”
but she nonetheless goes on to state, “From a physical perspective, I assume Mr. MacKay
would be employable in jobs meeting the restrictions outlined in the report.”

[62]        
While Ms. Smith’s qualifications are worthy of respect, her
critique of Mr. McNeil’s methodology leaves much to be desired and I am
unable to afford her opinions much weight in the circumstances. Mr. McNeil
is also a well-respected occupational therapist whose qualifications in the
field of functional capacity evaluation were not challenged and who has been qualified
as an expert witness in that regard on several occasions. His opinion in
this case is based upon considerable experience as well as actual testing and
observation of Mr. MacKay. The defence could have undertaken its own
independent testing and observation of Mr. MacKay but for reasons
that were not disclosed, elected not to do so. In the absence of actual testing
and observations of Mr. MacKay that directly challenges or refutes Mr. McNeil’s
data and opinion, I am inclined to accept the latter as correct.

[63]        
Both parties submitted reports from experts who specialize in the area
of vocational rehabilitation. Mr. Nordin’s report is based upon an
interview of Mr. MacKay conducted March 25, 2014, as well as a battery of
vocational testing completed the same day. His opinion is that, as a result of
the injuries sustained in the accident, Mr. MacKay is not currently
employable in any meaningful sense, and will remain so, absent an
improvement in his condition. The defence report by Ms. Samantha Gallagher
is again confined to a critique of Mr. Nordin’s assessment. She essentially
concludes there is “little information regarding the severity of Mr. MacKay’s
current symptoms and the impact on his level of function on a day-to-day basis”
and that “more detailed information is necessary to assess Mr. MacKay’s
employment potential”. As with the work capacity evaluation, it would have been
much more useful to the Court for the defence to have retained Ms. Gallagher
to carry out her own detailed independent testing and assessment. Still, I have
found some of her observations to be helpful and will include them in the loss
of earning capacity assessment set out below.

DAMAGES

[64]        
Mr. MacKay claims damages for non-pecuniary loss, past and future
loss of earning capacity, past and future medical expenses, and punitive damages.
I will address each separately.

Non-pecuniary general damages

[65]        
Non-pecuniary general damages are intended to compensate the injured
party for pain and suffering, loss of enjoyment of life, and/or loss of
amenities. The compensation awarded should be fair to all parties, and fairness
is often measured against awards made in comparable cases. Such cases, though
helpful, serve only as a rough guide as each case depends on its own unique
facts.

[66]        
A useful, often cited, list of factors that may influence an award of
this type of damages can be found in Stapley v. Hejslet, 2006 BCCA 34,
and 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;

(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).

[67]        
The plaintiff submits that an award of non-pecuniary damages in this
case should be made in the amount of $120,000. In support of his submissions,
the plaintiff cites various cases involving tinnitus or balance problems where
awards under this heading were made ranging from $90,000-$200,000. Most of
those cases involved injuries more extensive than those sustained by Mr. MacKay
and in some instances also included post-traumatic stress disorder.

[68]        
For his part, the defendant suggests that any award for non-pecuniary
damages should be in the range of $25,000 and cites cases, some rather dated
and including at least one jury award, where such damages have been awarded in
the range of $15-$18,000 for a plaintiff who sustained injuries causing
dizziness, headaches, vertigo and balance problems.

[69]        
In the present case, the plaintiff is 39 years old. At the time of the
injury he was in the prime of his life and, notwithstanding a severe leg injury
in 2010, had no meaningful physical impairments. All of that has changed. His
ability to function, whether in the home or work environment, has been severely
impaired. Even minimum exertion triggers headaches, dizziness and fatigue. His
sleeping pattern has been significantly altered. He has constant ringing in his
ears and a much reduced tolerance for noise. His relationship with his wife and
family has significantly changed and is much impaired.

[70]        
There is no doubt the plaintiff has suffered a substantial loss of
enjoyment of life. And it appears that all of these difficulties are permanent
in nature and indeed, some will be exacerbated with age.

[71]        
In all of these circumstances, and having regard to the awards in the
cases cited before me as a rough guide, I assess non-pecuniary general damages
in the sum of $75,000. The actual award to Mr. McKay in that regard must
be reduced by 15% to account for his allocation of fault in that amount.

Past and future loss of earning capacity

[72]        
Personal injury lawsuits almost invariably include claims for damages
for loss of past and future earnings which the plaintiff would have earned, had
the defendant’s tortious conduct and the resulting injury not occurred. Since
the seminal case of Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229, it has been acknowledged that, technically speaking, it is not loss
of earnings for which compensation is being made but rather it is for loss or
impairment of a capital asset, namely, the plaintiff’s capacity to earn
income. The courts usually hold the value of a particular plaintiff’s capacity
to earn is equivalent to the value of the earnings that he or she would have
received, whether in the past or in the future, had the tort not been
committed.

[73]        
Valuation of the loss may be measured in different ways. Sometimes,
particularly where the plaintiff was engaged in steady, long-term, likely
permanent employment before the accident, the loss can be measured with a
starting point reference to the actual earnings the plaintiff would have
received before deducting what the plaintiff actually earned (past loss) or
will likely earn in the future (future loss). Those are the relatively easy
cases.

[74]        
More difficult are the cases where there is no meaningful history of
steady employment or where the plaintiff’s income has been sporadic or highly variable.
In such cases an assessment of loss of both past and future earning
capacity necessarily involves consideration of the hypothetical. In the Andrews
case, the Supreme Court of Canada framed the notion, repeated many times since,
of “gazing deeply into the crystal ball”. This permits, and indeed
requires, future and hypothetical possibilities to be taken into account so
long as they are a real and substantial possibility and not a mere speculation,
and there exists a sufficient evidentiary foundation for same.

[75]        
In the present case, assessment of loss of earning capacity is
challenging. Two factors in particular loom large. The first is the sporadic
nature of the plaintiff’s participation in the workforce before the accident
and the highly variable nature of the income he managed to earn over the years.
The second is the plaintiff’s history of drug addiction and criminal
drug-related activities.

[76]        
The plaintiff is a poor historian and can provide only the vaguest
details of much of his employment history. He completed kindergarten to Grade 9
and did not complete Grades 10 or 11, quitting school in the process two or
three times. He told Mr. Nordin that he was put on Ritalin for attention
deficit hyperactivity disorder in Grade 2, which helped with
concentration, but which was discontinued in Grade 8. He also advised Mr. Nordin
that he had some (unspecified) “difficulty with the law” in his later high
school years.

[77]        
Mr. MacKay attempted to obtain his GED (i.e. high school
equivalency) in his 20s but did not complete the courses.

[78]        
Mr. MacKay quit high school for the final time in the 1994-95
school year. He appears to have moved to Mission with Ms. Reyda
approximately 10 years later. In that first decade he worked at various jobs,
firstly at a soils business, driving a bobcat and loading hoppers. He does not
remember why this work came to an end. Thereafter he did some casual roofing
and painting work for a friend and at some point also worked at a New York
Fries food outlet at a mall. Later, he secured a job at the golf shop at Quilchena
Golf Course in Richmond before eventually moving to Mission.

[79]        
In Mission, Mr. MacKay’s first work was as a swamper and driver for
Ray’s Moving Co. for nine months or possibly a year. It is not clear why that
work came to an end.

[80]        
With the benefit of payroll records from Westminster Steel Inc., it can
be ascertained that Mr. MacKay worked with that enterprise during the
periods April 2005 to June 2006, and again July 2007 to January 2009. His
T4 earnings for the year 2008, during which time he was working full-time
at Westminster Steel, were $43,000 and this appears to have been the high point
of his annual earnings history before the accident.

[81]        
Mr. MacKay is not sure why he took a year off from Westminster Steel
but believes he worked at another light industrial business for at least part
of the time during that one year.

[82]        
Mr. MacKay says he was forced to quit his job at Westminster Steel
in January 2009 because his truck broke down and he had no way to travel to New Westminster
where the plant was then located. Westminster Steel went into bankruptcy in
2010.

[83]        
In the two years before the assault incident Mr. MacKay worked very
little. He had a very short stint at the North Delta fish plant and
thereafter did some roofing work for “Ramsey Roofing”, a friend who paid him on
a cash basis.

[84]        
In January 2010 Mr. MacKay broke his right leg while dirt biking.
It was a severe injury which he says kept him out of the workforce for at least
nine months. The family was essentially living on welfare benefits received by Ms. Reyda
during this time.

[85]        
Mr. MacKay is vague about the amount of work he did with Ramsey Roofing.
He says he earned approximately $1,000 per roof and he believes there were three
to four such roofing jobs in the fall of 2010 and a similar number in early
2011. It should be noted that Mr. Ramsey has since been convicted of
murder and is incarcerated. Continued employment at Ramsey Roofing, even on a
casual basis, was a tenuous prospect at best by the time the assault incident
occurred in April 2011.

[86]        
Since April 2011, Mr. MacKay has had no employment with the
exception of the three occasions when he worked as a “watcher” for Mr. Godolphin’s
tree business on a cash basis.

[87]        
On February 28, 2013, Mr. MacKay was arrested for drug trafficking.
It was a sting operation by the RCMP and Mr. MacKay was caught selling
crack. He was charged with two counts of trafficking heroin and cocaine
respectively and one count of possession. He pled guilty on June 12, 2014 and
was sentenced to four months’ incarceration on October 31, 2014. He served 81
days at the Fraser Regional Correctional Centre and was discharged on January 19,
2015.

[88]        
Mr. MacKay was again arrested in December 2013 and charged with
possession for the purpose of trafficking. His wife, Christine Reyda, was also
arrested and charged with the same offence at the same time. It was at this
time that the couple’s five children were all apprehended by the Ministry of
Child and Family Development and placed in foster care where they still remain
to this day. These subsequent criminal charges have not yet proceeded to trial
but are scheduled to do so shortly.

[89]        
Mr. MacKay has been smoking marihuana on a daily basis since age
17. He also experimented with hard drugs in high school but claims he did
not consume such drugs at any time thereafter until late 2011 or January 2012.
He was offered heroin at a social gathering and rapidly became addicted. He
introduced his wife to the drug and she too became addicted. They used heroin
daily, initially in small amounts but then in increased quantities. Initially
the habit cost $25 a day but eventually rose to $100 a day for both Mr. MacKay
and his wife. He paid for his habit by delivering drugs to customers of
the “Mission drug line”, a local criminal organization.

[90]        
Mr. MacKay checked into the Creekside Detox facility on May 20,
2014. He left two days later without completing the program.

[91]        
Mr. MacKay claims that he has been drug-free since his discharge
from jail in January 2015 after going through “cold turkey” withdrawal during
that incarceration. He says he will be entering a Ministry-approved residential
rehabilitation facility for three months following completion of this trial so
that reunification of the parents with the children might occur later this year.

[92]        
Mr. Jhulley, of course, tells a different story. He is absolutely
convinced that Mr. MacKay has been a drug dealer for many years and that,
indeed, he introduced both of his sons to hard drugs as far back as 2009. Mr. Jhulley’s
28-year-old son, Jason, testified to the same effect at the trial. His evidence
was that both he and his brother became friends with Mr. MacKay in the
summer of 2009 and from that point forward they purchased $60 worth of drugs
from Mr. MacKay each week, including marihuana, cocaine and heroin.

[93]        
Jason Jhulley also testified to some of the same effect in the Provincial
Court trial of the assault charges laid against his father. In that instance
the court found his testimony to be “rambling, somewhat disingenuous, and
overly partial to his father”.

[94]        
I too found Jason Jhulley’s presentation as a witness to be rather odd.
He answered in a rather staccato fashion, invariably agreeing with whatever
proposition was put to him, almost always using the phrase “yes, yeah”. Having
said that, however, it must also be said that his testimony remained consistent
throughout cross-examination.

[95]        
Jason’s mother and Mr. Jhulley’s wife also testified at the trial.
During that testimony, she presented to the Court the cocktail of drugs
currently being prescribed for her son Jason. They include Lorazepam, which is used
to treat anxiety disorders; Olanzapine, used to treat schizophrenia and manic
episodes; and Teva Haloperidol, an antipsychotic typically used to treat
agitation or aggressiveness. Jason obviously has some significant challenges in
his life and it is not difficult to see why his parents are so distressed at
his condition. I am, however, obliged to treat his evidence with caution and I
conclude that his testimony respecting Mr. MacKay’s drug dealing in the
period 2009-2011 is unreliable.

[96]        
In recognition of Mr. MacKay’s heroin and related legal problems,
the claim for past loss of income to date of trial is limited to the seven-month
period from the date of the assault to January 1, 2012. It is claimed that
during this time Mr. MacKay would have been doing roofing work for Ramsey
Roofing, getting paid $1,000 cash per roof. Given the reported average earnings
of a roofer for the year 2010, as presented by the plaintiff’s expert economist,
counsel submits an award of $15,000 for past loss of earning capacity
would be reasonable.

[97]        
For his part, the defendant submits there is simply no reasonable
evidentiary basis for any past loss of income award and suggests that no award
at all is the appropriate outcome.

[98]        
Whether Mr. MacKay would have continued working for Ramsey Roofing
is a hypothetical possibility but it is one that is properly taken into
consideration so long as it is a real and substantial possibility and not mere
speculation. In my view, it is likely that Mr. MacKay would have undertaken
some form of income-generating employment for at least part of the seven-month
period between the end of April 2011 and January 1, 2012. His earnings in
the preceding seven-month period were modest, likely somewhere between $5,000
and $9,000. In such circumstances, the loss of past earning capacity during the
period in question is reasonably assessed in the amount of $7,000. As with the
other awards in this case, this amount must be reduced by 15% to account for
the allocation of fault to Mr. MacKay in that amount.

[99]        
The claim for loss of future earning capacity in this case is very much
an exercise of gazing into the proverbial crystal ball. Given the permanent
nature of Mr. MacKay’s injuries and resulting disabilities it is reasonable
to conclude and I find as a fact that Mr. MacKay is currently unemployable
in any meaningful sense and will remain so absent an improvement in his
condition. The more difficult question is assessing what would Mr. MacKay’s
future employment picture have looked like had the April 24, 2011 assault and
resulting injuries not occurred.

[100]     The
plaintiff has produced a number of actuarial calculations generated by Mr. Sergiy
Pivnenko, a consulting economist who has been qualified as an expert witness by
this court on previous occasions. The defence responded with their own expert
economist, Mr. Darren Benning, who likewise has been qualified as an
expert witness by this court on numerous occasions. Their respective reports
purport to calculate the present value of Mr. MacKay’s future loss of
income based on historic occupation-specific earnings data (roofers and metal
fabricators) and education-specific earnings data (Grades 11-13 and 9-10 level
of education respectively) and having regard to various “labour market
contingencies” accounting for participation in the workforce, unemployment,
part-time work and the like.

[101]     Mr. Pivnenko
calculates Mr. MacKay’s projected loss of earnings from 2016 to 2045
(age 70) to be approximately $810,000. Mr. Benning, on the other hand,
calculates the same loss based on average earnings applicable to unskilled work
for persons without high school education to be approximately $515,000. He
points out, however, that Mr. MacKay’s historical earnings reflected on
his 2008-2010 income tax returns were much lower than the statistical averages,
that a termination date of age 70 is completely unrealistic for the two
occupations identified by Mr. Pivnenko, and that the proper application of
labour market contingencies would in any event have reduced Mr. Pivnenko’s
pre-accident income estimates by approximately 40%.

[102]     I
generally prefer Mr. Benning’s approach to that of Mr. Pivnenko. To
the extent such calculations are even relevant, I find it appropriate to consider
earnings based on 2011 National Household Survey data applicable to BC males
who have not completed high school and who are working in unskilled
occupations. I also consider it more appropriate to undertake income
calculations to Mr. MacKay’s age 65 and to employ labour market contingencies
based on the same 2011 National Household Survey.

[103]     Mr. Benning
correctly observes there are various reasons why it might be expected that Mr. MacKay’s
contingency-adjusted future earnings would have been below the average had the
assault incident not occurred. He incorporates that possibility by providing
illustrative estimates of past and future without-accident income reflecting
10, 25 and 50% contingency reductions. His resulting estimates of future
without-accident income are thus calculated in the range of $287,000 to $570,000.

[104]     It is
important to emphasize that the assessment of damages for loss of future
earning capacity is a matter of judgment and is not a calculation according to
some mathematical formula. In that regard, I refer to a summary of Madam
Justice Stromberg-Stein in Jurczak v. Mauro, 2013 BCCA 507:

[34]      When determining whether there should be damages
for loss of future earning capacity, the court is required to look into the
future, which cannot be known with any certainty. Mr. Justice Finch (as he
then was) provided some guidance to help determine what factors courts ought to
be considered: Brown v. Golaiy at para. 8:

[1]  whether the plaintiff has been
rendered less capable overall from earning income from all types of employment;

[2]  whether the plaintiff is less
marketable or attractive as an employee to potential employers;

[3]  whether the plaintiff 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

[4]  whether the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

[35]      Quantifying a loss may be aided by some
mathematical calculation, but there is no particular formula. As stated in Rosvold
v. Dunlop, 2001 BCCA 1:

[8]        The most basic of those
principles is that a plaintiff is entitled to be put into the position he would
have been in but for the accident so far as money can do that. An award for
loss of earning capacity is based on the recognition that a plaintiff’s
capacity to earn income is an asset which has been taken away. Where a
plaintiff’s permanent injury limits him in his capacity to perform certain
activities and consequently impairs his income earning capacity, he is entitled
to compensation. What is being compensated is not lost projected future
earnings but the loss or impairment of earning capacity as a capital asset. In
some cases, projections from past earnings may be a useful factor to consider
in valuing the loss but past earnings are not the only factor to consider.

…

[11]      The task of the court is
to assess damages, not to calculate them according to some mathematical
formula. Once impairment of a plaintiff’s earning capacity as a capital asset
has been established, that impairment must be valued. The valuation may involve
a comparison of the likely future of the plaintiff if the accident had not
happened with the plaintiff’s likely future after the accident has happened. As
a starting point, a trial judge may determine the present value of the
difference between the amounts earned under those two scenarios. But if this is
done, it is not to be the end of the inquiry. The overall fairness and
reasonableness of the award must be considered taking into account all the
evidence.

…

[18] The assessment of
damages is a matter of judgment, not calculation. …

[Emphasis added; citations
omitted.]

[36]      This process is “an assessment rather than a
calculation” and “many different contingencies must be reflected in such
an award”: Barnes v. Richardson, 2010 BCCA 116 at para. 18.
“Ultimately, the court must base its decision on what is reasonable in all of
the circumstances. Projections, calculations and formulas are only useful to
the extent that they help determine what is fair and reasonable”: Parypa v.
Wickware, supra, at para. 70.

[37]      With that said, if there are mathematical aids that
may be of some assistance, the court should start its analysis by considering
them. For example, in Henry v. Zenith (1993), 31 B.C.A.C. 223 at paras. 44-48,
82 B.C.L.R. (2d) 186 (C.A.), this Court held that a trial judge’s failure
to consider an economist’s projections of a plaintiff’s lost future earning
capacity contributed to the judge committing an error in principle, which
“resulted in a wholly erroneous estimate of the damages”.

[38]      In cases where the
future is hard to predict, a global approach to assessing the loss of future
earning capacity is preferable. …

[105]     There is
no doubt that the injuries sustained by Mr. MacKay have rendered him less
capable of earning income in a competitive labour market. However, he has a
low level of education and his pre-assault future employment prospects were
limited to unskilled labour. His pre-assault employment history reflected a long-standing
pattern of relatively short-term jobs in a variety of manual labour positions,
which suggests that he likely would have continued changing jobs quite
frequently in the future. He did not work much in the year-and-a-half
before the assault and demonstrated very little motivation to find work during
that time. Full-time full-year employment earnings whether to age 65 or 70 were
not a realistic future prospect.

[106]     Also of
great significance is Mr. MacKay’s history of drugs and criminal activity.
He is an addict and he consumed heroin on a daily basis for at least the period
January 2012 through October 2014. He was unable to complete treatment at a
detox facility. While he hopes to remain drug-free in the future following the “cold turkey”
withdrawal forced upon him in jail, recidivism is a realistic prospect
that cannot be ignored. In British Columbia v. Zastowny, 2008 SCC
4, the Supreme Court of Canada affirmed a 30% reduction of a future income loss
award to reflect what in that case was a high risk of recidivism.

[107]     Taking all
of these factors into account, including having regard to Mr. Benning’s
calculations of average earnings applicable to low skill jobs adjusted by an
overall negative contingency in the range of 40 to 50%, a realistic assessment
of Mr. MacKay’s future loss of earning capacity is $250,000. The ultimate
award under this heading is that sum reduced by 15%, reflecting the percentage
of fault allocated to Mr. MacKay.

Special damages and future care

[108]     The
parties are agreed that special damages are properly assessed in the following
amounts:

[109]     A claim
for the cost of future care is presented by the plaintiff in respect of
the replacement of the binaural noise generators every five to seven
years, as prescribed by the audiologist Carol Lau. The cost of these hearing
aids is currently $1,750 but, as with most electronic devices, that cost will
likely decline to some degree in the future. A one-year supply of batteries for
those aids currently costs approximately $275. The parties did not provide
detailed calculations based on the present value of these future costs but an
assessment of $12,000 under this heading would be reasonable.

[110]     Both of
these awards must also be reduced by 15% to reflect the allocation of fault to Mr. MacKay.

Punitive damages

[111]     Although
the plaintiff’s statement of claim sets out a claim for punitive damages, no
submissions were made in this regard at the conclusion of the trial. In any
event, in my opinion, punitive damages are not appropriate in this case. Mr. Jhulley
has been tried, convicted and sentenced in the criminal courts. That is
sufficient punishment in the eyes of the law and a further award of punitive
damages in the civil proceedings would serve no purpose.

[112]     I might
add that Mr. Jhulley’s liability in these proceedings is not likely to be
covered by insurance and enforcement of the judgment granted in this case may
well entail hardship and put Mr. Jhulley’s farm at risk. This is an
entirely just outcome in the circumstances but also underscores the absence of
any requirement for punitive damages in this case.

CONCLUSION AND SUMMARY

[113]     Mr. Jhulley
is liable to Mr. MacKay for the tort of assault and battery. However, Mr. MacKay
is not entirely free of blame for the consequences of the April 24, 2011
assault and he is allocated 15% of the fault for the loss and damage sustained.
Damages are accordingly awarded to Mr. MacKay in the following amount:

[114]     Mr. Jhulley’s
counterclaim has no merit and is dismissed in its entirety.

[115]    
Since Mr. MacKay is the successful party in this litigation, he is
entitled to costs. Unless circumstances exist which would warrant otherwise, in
which event the parties may address the issue, costs are awarded to Mr. MacKay
to be assessed under Scale B and in accordance with Appendix B of the Supreme
Court Civil Rules.

“The Honourable Mr. Justice N. Kent”