IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110928

Docket: S053622

Registry:
Vancouver

Between:

Elvis
Besic

Plaintiffs

And

Zoltan
Kerenyi, Canlan Investment Corp.
A.D.D. Holdings Corp., Canlan Ice Sports Corp.
and John Doe Referee

Defendants

Before:
The Honourable Madam Justice Russell

Reasons for Judgment

[1]         
In this case I am asked to assess the quantum of damages and costs to be
awarded to the plaintiff, Elvis Besic, against the defendant, Zoltan Kerenyi.
 Mr. Besic’s claim arises out of an assault and battery that took
place on July 2, 2003.  Mr. Besic obtained default judgment against
Mr. Kerenyi on April 12, 2011, after Wong J. ordered that
Mr. Kerenyi’s appearance and statement of defence be struck on the same
day.  Mr. Kerenyi is currently appealing Mr. Justice Wong’s
decision.

[2]         
Counsel for Mr. Besic filed a notice of discontinuance against the defendant,
A.D.D. Holdings Corp., as well as the defendants, Canlan Investment Corp. and
Canlan Ice Sports Corp. on March 7, 2008 and March 13, 2008, respectively.

[3]         
Counsel for Mr. Besic, Ms. Boles, advises me that she notified
counsel representing Mr. Kerenyi in his appeal of Wong J.’s order of the
hearing to assess damages.  No one attended on his behalf.

[4]         
As no evidentiary hearing took place on this matter, the findings of
fact and assessment of damages are based on Mr. Besic’s affidavit, as well
as the medical-legal reports of his treating physicians, specialists and
dentists pursuant to Rule 3-8(13)(a) of the Rules of Court.

FACTS

[5]         
On July 2, 2003, Mr. Besic and the defendant, Mr. Kerenyi,
were playing recreational soccer on opposing teams at Canlan Ice Sports Burnaby
8 Rinks in Burnaby, BC.  During the game, for reasons unknown to
Mr. Besic, Mr. Kerenyi tackled him to the ground, causing the referee
to stop play and issue Mr. Kerenyi a foul.  Mr. Besic stood up
and asked Mr. Kerenyi ““what” he “was doing?””, before turning and walking
away.  He had taken a few steps when the defendant punched him in the face
from behind.  Mr. Besic fell to the ground and was unconscious for a
few “moments”.  He states that blood was “gushing from his mouth” when he
regained consciousness and he had to be taken to Burnaby General Hospital by a
teammate.

[6]         
As a result of the battery, Mr. Besic suffered a fractured jaw
(mandibular fracture) and lost two teeth.  He had to undergo surgery at
the University of British Columbia Hospital, where doctors wired his jaw shut.

ASSESSMENT OF DAMAGES

Burden of Proof

[7]         
As a default judgment was obtained in this case, the allegations in the
statement of claim are deemed admitted.  However, this brings up the issue
of whether the quantum of damages must be proved, or if they too are admitted
as claimed by the plaintiff.  In McIsaac v. Healthy Body Services Inc.,
2009 BCSC 1716, Pearlman J. addressed this issue when the plaintiff obtained
default judgment against the defendant, after the statement of defence in that
case was struck.  After a review of the case law he concluded at
para. 44:

I take the following principles from these cases:

a)        
Generally, if a statement of defence is struck, the defendant is deemed to have
admitted the allegations of fact contained in the statement of claim. 
Where the defence is struck with damages to be assessed, all that remains in
issue is the assessment of damages.

b)        
The rule that the defendant is deemed to have admitted all of the allegations
of fact in the statement of claim is not immutable.  The plaintiff must
prove his or her claim for damages. …

[Emphasis added]

[8]         
Accordingly, Mr. Besic still has the burden to prove the damages he
suffered as a result of the battery, on a balance of probabilities.

Non-pecuniary
Damages

[9]         
The purpose of non-pecuniary damage awards is to compensate the
plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”
(Jackson v. Lai, 2007 BCSC 1023 at para. 134; see also Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; and Kuskis v. Tin,
2008 BCSC 862 [Kuskis]).  While each award must be made with
reference to the particular circumstances and facts of the case, other cases
may serve as a guide to assist the court in arriving at an award that is just
and fair to both parties (Kuskis, at para. 136).

[10]      
There are a number of factors that courts must take into account when
assessing this type of claim.  Madam Justice Kirkpatrick, writing for the
majority, in Stapley v. Hejslet, 2006 BCCA 34, outlines the factors to
consider, 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).

[11]      
These are the factors I will consider as I evaluate Mr. Besic’s
damages.

[12]      
Prior to July 2, 2003, it appears Mr. Besic was in good health.
 Based on the report of his general physician, Dr. Frank Canderle, I
find that he did not have any previous injuries to his jaw or temporomandibular
joints.

[13]      
There is no doubt that Mr. Besic’s life has been altered by this
incident.  He had to undergo surgery to repair the fracture and his jaw
was wired shut for over a month.  He was placed on a liquid-only diet and,
consequently, experienced some short-term weight loss.

[14]      
The long-term consequences have been more severe.  Two of
Mr. Besic’s left molars were knocked out.  He has not had the
recommended dental repair performed so the gaps in his mouth are still there,
eight years later.  He either has to undergo surgery, risking further
nerve damage, or live without these two teeth for the remainder of his life.

[15]      
The mandibular fracture caused permanent damage to the trigeminal nerve.
As a result, Mr. Besic experiences numbness in his chin, lips and jaw.
 This causes him to drool while he eats and is a source of embarrassment.
 He does not notice if food has dripped, or become stuck, on his face
because he cannot feel it.  He finds himself constantly wiping his face in
an attempt to ensure no food is lingering there.

[16]      
The nerve damage has caused a prickling pain in his face and jaw.
 Both this and the numbness are unlikely to improve.  There is also a
possibility that a future facial injury could cause the numbness to worsen.

[17]      
Since the incident, Mr. Besic finds that he has issues with his
speech.  Occasionally, he will slur his words or mumble, particularly when
he becomes tired or is out in the cold.  He believes that this is as a
result of the numbness, although his neurologist, Dr. Frank Kemble, has
questioned whether that is, in fact, the cause.

[18]      
The mumbling is also a source of social awkwardness, especially at his
work at the North Fraser Pre-Trial Center in Surrey, where he is a correctional
officer.

[19]      
Mr. Besic still experiences pain in his jaw joints and muscles, as
well as neuropathic pain.  His jaw is often stiff, particularly in the
morning.  His temporomandibular joint clicks and pops, especially when he
eats.  This results in discomfort and headaches. Mr. Besic also
suffers extreme ear pain when he flies.

[20]      
In his affidavit, Mr. Besic states that after the battery he
suffered from anxiety, which has lessened over time.  There is no medical
evidence on the record to support this assertion.  I find that I cannot
give this uncorroborated evidence much weight and I have not factored into my
award for non-pecuniary damages any amount for his alleged psychological
condition.

CASE LAW

[21]      
Counsel for Mr. Besic submits that the appropriate award for
non-pecuniary damages in this case is $60,000 to $70,000.  After a review
of the case law, I would agree.  I find Mr. Besic is entitled to
$70,000 for non-pecuniary damages, with a 10% reduction for the failure to
mitigate.  The mitigation issue will be discussed further below.

[22]      
In support of her submission for non-pecuniary damages, counsel for
Mr. Besic cites two cases:  Pete v. Axworthy, 2004 BCSC 1563
and Gauld (Guardian ad litem of) v. Jameson (1994), 89 B.C.L.R. (2d) 79
(B.C.C.A).

[23]      
In Pete, the plaintiff was awarded $75,000 in non-pecuniary
damages when he suffered a broken jaw after being punched by a fellow inmate at
the Terrace Community Correctional Centre.  This amount was reduced by 10%
for Mr. Pete’s failure to follow up on his medical appointments (at para. 18).
 (At trial the defendant Crown was held to be negligent.  This was
overturned on appeal. However, the case is still applicable for the purposes of
assessing damages.)

[24]      
The trial judge sets out the injuries suffered by Mr. Pete at
paras. 7 through 11.  He notes after the surgery to repair his
jaw, Mr. Pete could not chew properly and had to have his food blended by
corrections staff.  He experienced severe weight loss, weighing less than
100 pounds at trial, down from a starting point of 155 pounds.

[25]      
The surgery was ineffective and Mr. Pete’s jaw eroded, becoming
notably deformed.  Mr. Pete also experienced a numbing of his jaw
which caused him to drool.  This, understandably, diminished his quality
of life and caused him some embarrassment.  He was required to visit
numerous doctors and specialists, sometimes even having to travel out of town
to attend appointments.

[26]      
The Gauld case involved a dentist who needlessly removed 22 of
the plaintiff’s teeth, and applied braces and head gear to correct an overbite
(at para. 4).  As a result, the plaintiff had to undergo years of
corrective procedures, including wearing braces again and undergoing jaw and
chin surgery.  At the time of trial, she suffered from a tingling of her
mouth, a clicking in her jaw and required additional chin surgery and dental
work (at paras. 5-6).  She was awarded $60,000 for non-pecuniary
damages (at para. 15).

[27]      
These are the two cases cited by counsel.  There are many other
cases which may have assisted me in determining damages but which counsel did
not provide to the court.  The court in Pete alone reviewed ten
other cases involving injuries to the jaw.

[28]      
Counsel for Mr. Besic submits that these cases involved so many
other injuries irrelevant to Mr. Besic’s case that it renders them
unhelpful.  Admittedly, the trial judge in Pete did acknowledge
these cases fall on a broad spectrum in terms of facts and the amount of
damages awarded (at para. 13).

[29]      
Furthermore, some of these cases are dated, ranging from as far back as
1988.  However, a review of a few of them will be helpful in assessing
Mr. Besic’s damages.

[30]      
In the 2003 case of Vaillancourt v. Molnar Estate, 2002 BCCA 685,
the court awarded the plaintiff $125,000 for non-pecuniary damages as a result
of a car accident.  The plaintiff suffered a fractured jaw and chest wall
contusion.  She had to have her jaw wired shut for two weeks, was in
extreme pain and lost 30 pounds (at paras. 36-38).  She experienced
permanent numbness in her jaw and bottom lip which caused her to drool (at
paras. 41, 45).  She required further surgery involving a bone graft
and faced the possibility of chronic facial pain and arthritis in the temporoandibular
joint area (at para. 43).

[31]      
In Linnen v. Bradford (1993), 9 Alta. L.R. (3d) 55 (Alta. Q.B.),
the court awarded $70,000 to the plaintiff when a physiotherapist re-injured
her jaw after she had undergone surgery to repair it (at paras. 4-5, 20).
 As a result, she had to undergo another surgery, this time involving a
skin graft from her buttocks.  She was on a liquid diet for eight and
one-half months and lost 20 pounds.  The injury affected her social and
family life and she became depressed.  At the time of trial, she suffered
from periodic muscle and joint pain and numbness.  She also required
ongoing care (at paras. 8-12).

[32]      
The plaintiff in Drummond v. Fisher, [1992] CarswellBC 2303
(B.C.S.C.) (Westlaw), was awarded $150,000 in non-pecuniary damages. 
Ms. Drummond’s oral surgeon admitted liability after the seven surgeries
he performed on her jaw left her face deformed (at paras. 4-5, 8).
 To repair the problem, she required two surgeries involving bone grafts.
 She suffered from an infection, an ongoing severe deformity and numbness
in her lower lip that caused her to drool (at paras. 5-7, 25).  Her
personal relationships also suffered and there was concern she was suicidal (at
paras. 13, 25).

[33]      
In the more recent case of, Leighton v. Best, [2009] O.J.
No. 2145 (Ont. Sup. Ct. J.) (QL), not referred to in Pete, the
plaintiff suffered three fractures in his jaw after being punched in the face
during a hockey game.  The plaintiff lost one tooth and had to have his
jaw wired shut for seven weeks (at paras. 5, 23-25).  He lost 25
pounds; he could not play hockey for the rest of the season and he was unable
to coach his children’s teams.  To fix his teeth he underwent two root
canals.  Nevertheless, he still had three dead teeth and was left with a
gap that required further dental work.  At the time of trial he was still
suffering from jaw pain when he chewed, clicking in his temporomandibular joint
and his bite was off (at paras. 23-28).  Mr. Leighton was
awarded $35,000 in non-pecuniary damages.  The court indicated that it
reduced the award as Mr. Leighten had started the scuffle, albeit
unintentionally (at paras. 29-31).

[34]      
I find $70,000 to be an appropriate amount for Mr. Besic’s
injuries.  While Mr. Besic does not suffer from a deformity of the
jaw or dramatic weight loss, like the plaintiff in Pete, he does suffer
from some similar injuries, such as numbness in the face and jaw, as well as
jaw pain.  He also experiences the resulting social embarrassment these
injuries cause.

[35]      
The court in Pete was clear that the $75,000 award of
non-pecuniary damages reflected the six years from the incident to the trial,
but not after, as Mr. Pete died shortly after trial.

[36]      
Mr. Besic’s injuries may not be as severe as those suffered by the
plaintiff in Pete.  However, he has had to live through eight years
of pain and numbness and he will continue to live this way for the remainder of
his life.  His ability to speak and to eat with ease has been impacted,
which in turn has affected his work and social life.  He also faces the
prospect of another surgery to replace the missing teeth.

[37]      
While the injuries and pain suffered by the plaintiff in Gauld also
appear more severe than Mr. Besic’s, the plaintiff in that case was
awarded $60,000.  However, Gauld is a 1994 case and, to make the
award comparable in 2011 dollars, I would need to increase the figure.
 Furthermore, as Mr. Besic’s nerve damage cannot be reversed, he is
entitled to a higher award.

[38]      
It is clear Mr. Besic’s pain and suffering has not been as serious
as the plaintiffs in Vaillancourt, Linnen or Drummond.  He
did not require numerous surgeries, or serious surgeries involving bone grafts.
 Nor was his personal and professional life impacted as severely.  He
went on to marry and gain employment as a correctional officer.  He does
not have permanent disfigurement or deformities of the face.  Accordingly,
his damage award should be lower than the amount awarded in these cases.

[39]      
Mr. Besic’s case is similar to Mr. Leighton’s in several ways.
 Both plaintiffs had their jaws wired shut for several weeks, had to miss
out on recreational sports for a time, suffered from jaw pain and a clicking
and popping of the temporomandibular joint, as well as required dental surgery.
 However, Mr. Besic’s case can be distinguished from
Mr. Leighton’s in two ways, warranting a higher award.  First,
Mr. Besic did not intentionally or unintentionally provoke
Mr. Kerenyi into hitting him.  Second, while Mr. Leighton did
suffer serious injuries to his jaw, there is no indication he had permanent
nerve damage causing numbness or pain, or the resulting social embarrassments.

FAILURE TO MITIGATE

[40]      
Upon review of the evidence before me, I find that Mr. Besic’s
non-pecuniary damages should be reduced by 10% for his failure to fully
mitigate.

[41]      
The test for determining whether a plaintiff has failed to mitigate was
set out in the recent British Columbia Court of Appeal case of Gregory v.
Insurance Corporation of British Columbia, 2011 BCCA 144.  The court
in that case stated the test at para. 56:

I would describe the mitigation
test as a subjective/objective test.  That is whether the reasonable
patient, having all the information at hand that the plaintiff possessed, ought
reasonably to have undergone the recommended treatment.  The second aspect
of the test is “the extent, if any to which the plaintiff’s damages would
have been reduced” by that treatment.  The Turner case, on
which the trial judge relies, uses slightly different language than this
Court’s judgment in Chiu: “there is some likelihood that he or she would
have received substantial benefit from it …”.

[42]      
Dr. Sujay Mehta, D.M.D., indicates in his report dated May 31,
2011, that Mr. Besic has been remiss for both his failure to attend
follow-up appointments and for his refusal to take medication to control his
pain (at p. 6).

[43]      
There is some evidence that Mr. Besic has taken medication to treat
his symptoms in the past.  Dr. Canderle’s report notes that
Mr. Besic was prescribed anti-inflammatories and Tylenol 3 on various
doctor’s visits from 2003 to 2006.  However, Dr. Mehta states that
other medications, such as Gabapentin, could be prescribed to help treat his
jaw pain and numbness, as well as the pain he experiences when he flies.
 In fact, Dr. Mehta notes he had previously prescribed Gabapentin, as
well as Neurontin, as analgesics in 2004, but that Mr. Besic, “has made it
clear … [that he] is not keen to take medications” (at p. 6 of his
report).  It appears that Gabapentin was also suggested by
Dr. Charles Tai in 2006 and Dr. Canderle in 2007, although it is
unclear whether it was prescribed by either doctor (at pp. 4, 7 of
Dr. Canderle’s report).  Dr. Mehta notes that, “Without
medications, I would then agree Mr. Besic will have to live with this pain
for the rest of his life” (at p. 6 of his report).

[44]      
Three doctors on three separate occasions have suggested to
Mr. Besic that the use of certain medications should help with his
symptoms and reduce the pain he is in.  Despite these recommendations, for
reasons which remain uncertain, Mr. Besic does not appear to be currently taking
any medication.  I find this to be not only unreasonable, but also
unnecessary.  Based on the medical evidence, I find that some of the
damage Mr. Besic incurred as a result of the battery would have been
reduced had he chosen to take the medication as recommended.  I therefore
deduct 10% from his non-pecuniary damages award of $70,000.  This reduces
the amount to $63,000.

COST OF FUTURE CARE

[45]      
Mr. Besic asks the court to award him $10,000 to pay for dental
implants to replace the two missing teeth knocked out when Mr. Kerenyi
punched him.  Dr. Graham Matheson, D.M.D., M.S.D., has provided an
estimate of the cost of the implants in this amount.

[46]      
In Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229,
the Supreme Court of Canada defined a claim for the cost of future care as “…
a pecuniary claim for the amount which may reasonably be expected to be
expended in putting the injured party in the position he would have been in if
he had not sustained the injury” (at p. 241).

[47]      
If not for the battery, Mr. Besic would still have the two teeth
that were knocked out.  It is, therefore, reasonable for him to receive a
monetary award to pay for a surgery to have them replaced.  However,
expert opinion on whether Mr. Besic should receive these implants is
conflicting.

[48]      
Dr. Matheson reviewed Mr. Besic’s CT scans and found that his
jaw bone would support small teeth implants to replace the two that fell out.
 He concludes that while there is a risk for further nerve damage,
Mr. Besic is already suffering from numbness in his jaw.  If the
nerve is damaged during placement, the damage would be minimal (p. 1 of his
report).

[49]      
On the other hand, Dr. Mehta has strongly advised against
Mr. Besic receiving this procedure.  In his medical-legal report
dated May 31, 2011, Dr. Mehta states, “I think this is utterly
preposterous why anyone would think placing a titanium screw in the bone so
close to the region innervated by a nerve previously damaged and sending pain
signals would be a good idea”.  Dr. Mehta states that it is likely to
further worsen his pain in the “trigeminal nerve region” (at p. 7).

[50]      
In his affidavit, Mr. Besic indicates he wishes to proceed with the
surgery despite Dr. Mehta’s opinion.  I find that this is a decision
open to Mr. Besic to make. He states that he continues to have problems
eating on the left side of his mouth where the teeth are missing.  This
forces him to chew all of his food on the right side.  The one-sided use
of his jaw causes further stiffness and pain.  Mr. Besic’s counsel
submits that Mr. Besic understands the risks of the surgery, but has
decided the potential benefits outweigh those risks.

[51]      
Faced with conflicting opinions from two experts, Mr. Besic has
made a decision that is reasonable and justified.  I find that he is
entitled to receive $10,000 in damages so that he may receive the surgery from
Dr. Matheson.

SPECIAL DAMAGES

Past Income Loss

[52]      
Mr. Besic claims $6,000 in past income loss as a result of being off
work for two months following the battery.  He claims a net loss of $5,000
from his job as a delivery person for White Glove Delivery, as well as a net
loss of $1,000 from his work as a self-employed soccer coach.

[53]      
As was noted at the start of these Reasons, even where the plaintiff
obtains default judgment against the defendant, he or she is still required to
prove his or her claim for damages.  Default judgment does not relieve a
plaintiff of this burden.

[54]      
Based on the affidavit evidence presented to me, Mr. Besic has not
met his burden of proving past income loss.

[55]      
As evidence of his past income loss, Mr. Besic has provided income
tax returns for the years 2001 to 2005, and a tax summary for 2006.  These
do not support a claim for a loss of $6,000 for two months’ work.  His
total income for 2001 and 2002 were $3,336 and $1,083, respectively.  For
2003, his income was $4,147 and for 2004, Mr. Besic earned $18,434.

[56]      
Granted, Mr. Besic’s income may be lower for 2003 after being off
work for two months due to his fractured jaw.  However, he returned to
work at the beginning of September.  If he were in fact making $2,500 per
month working for a delivery company, his income for the rest of 2003 would
have been more than the $4,147 stated on his income tax return.  The
numbers simply do not add up.

[57]      
Other than paragraph 5 of Mr. Besic’s affidavit, there is no
evidence before this Court that he would have made $6,000 in July and August of
2003 if the battery had not occurred.  More is needed to prove his wage
loss on a balance of probabilities.  An affidavit from White Glove
Delivery outlining Mr. Besic’s earnings prior to July 2, 2003, for
example, would have been helpful.

[58]      
Counsel for Mr. Besic submits that evidence that Mr. Besic had
started at White Glove Delivery before the incident can be found in the
medical-legal report of Dr. Canderle.  Dr. Canderle does note in
his report that when he treated Mr. Besic in 2003, Mr. Besic
mentioned he was working at a delivery company (at p. 7).  Counsel
further points to Dr. Canderle’s report, as well as the section of
Mr. Besic’s income tax return for 2003 entitled “Other Income”, for
evidence of his self-run soccer school.  However, Dr. Canderle’s
report is merely hearsay corroboration for the wage loss claim.
 Furthermore, neither document assists the court in determining the amount
of wages which were lost as a result of Mr. Besic being off work.

[59]      
There is insufficient evidence to award Mr. Besic damages for past
wage loss.

[60]      
Mr. Besic provided the court with a receipt showing payment for his
surgery at UBC Hospital in the amount of $1,103.80.  He was reimbursed
$999 of that by his insurance company.  He is asking for the remaining
amount of $104.80 to be paid by the defendant.  I find that
Mr. Kerenyi is responsible for the $104.80.

SUMMARY

[61]      
For the reasons outlined above, I award damages to Mr. Besic as
follows:

·                
non-pecuniary damages: $63,000

·                
cost of future care: $10,000

·                
past income loss: $0.00

·                
medical expenses: $104.80

[62]      
Mr. Besic is not seeking aggravated or punitive damages.

COSTS

[63]      
Mr. Besic is entitled to recover his costs throughout to be
assessed in accordance with Scale B as set out in s. 3 of Appendix B of
the Rules of Court.

“RUSSELL, J.”