IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111212

Docket: S070654

Registry:
Vancouver

Between:

Leo Paskalidis

Plaintiff

And

Caprice
Hospitality Inc. doing business as The Caprice Nightclub,
Joseph Stimac, Monty Cahley and Anthony Fabiano

Defendants

Before:
The Honourable Mr. Justice Ehrcke

Reasons for Judgment

Introduction

[1]            
The plaintiff seeks damages from the defendants for battery in an
incident at the Caprice Nightclub on Granville Street, Vancouver, on August 27,
2006. Both liability and damages are in issue.

[2]            
The Caprice Nightclub (the “Club”) is operated by the corporate
defendant, Caprice Hospitality Inc. The three personal defendants were all
employed by the corporate defendant and working as doormen or “bouncers” on the
evening in question. It is agreed by all parties that the corporate defendant
is liable if and only if one or more of the personal defendants are liable.

[3]            
The plaintiff alleges that he was assaulted by the bouncers at the front
entrance of the Club just as he was voluntarily leaving, and that he suffered a
broken jaw and rib injuries as a result.

[4]            
The accounts given in evidence by the plaintiff and the defendants
differ as to the details of the encounter, and as a result, the defendants deny
any liability for the plaintiff’s injuries. Accordingly, it will be necessary
to review the different versions of events from the point of view of the
various witnesses. As well, the Club had three security cameras that captured
images of some of the events, and that evidence must also be reviewed.

The Plaintiff – Leo Paskalidis

[5]            
Mr. Paskalidis is now 38 years old and would have been around 33 at
the time of the incident. He is 5’ 8” tall and weighs 160 pounds. He works as a
mortgage broker, realtor, and builder.

[6]            
Just after midnight on August 27, 2006, he and a friend, Danny Seng
Savang, went to the Caprice Nightclub after having dinner together. Neither of
them had consumed any alcohol until they arrived at the Club. Once there, the
plaintiff had two beers. He was not intoxicated. He was wearing blue jeans, a
jacket, and a silk shirt with short sleeves cut to the shoulders.

[7]            
After spending some time in the Club, Mr. Paskalidis decided to
take off his jacket to dance because it was hot. One of the bouncers, Mr. Cahley,
told him to put his jacket on. He asked why, and Mr. Cahley said it was
because of the dress code. He then asked why one of the women nearby was not
also told to put a jacket on, and he was told she did not have to because she
is a girl.

[8]            
Mr. Paskalidis testified that he told his friend Danny it was time
to go, and he started walking towards the front door, with his jacket on. As he
got to the hallway, he removed his jacket again because it was hot and he was
on his way out. He stopped at the coat check and asked if Jim or Peter were
around. The woman at the coat check did not know who he was talking about, and
he said “Never mind.”

[9]            
At that point, Mr. Paskalidis noticed one of the security staff,
Hnan Sharif, standing very close behind him and rubbing against him. Mr. Paskalidis
walked to the front door with his hands down, and he felt a push from behind. He
turned and saw his friend Danny walking towards the door. Danny and Mr. Sharif
grabbed each other. Mr. Paskalidis was 2-3 feet from them.

[10]        
Monty Cahley then came through the door, lunged at Mr. Paskalidis
and said, “Do you want to fuck with us?’’  Mr. Cahley grabbed him by the
throat, turned him, and pinned him to the door. Mr. Paskalidis pushed Mr. Cahley’s
face back with an open right hand, and with his fingers splayed. He was holding
his jacket in his left hand. He then felt a huge shove from behind, and he was
pushed against the brick wall beside the door outside the Club. Mr. Cahley
was still choking him, and he was holding him back with his open right hand.

[11]        
Another bouncer, Joseph Stimac grabbed Mr. Pasklalidis’ left arm,
in which he was still holding his jacket, which contained his wallet.

[12]        
At this point Mr. Paskalidis saw another bouncer, Anthony Fabiano,
wind up to strike him. He was hit in his left rib cage and received a blow to
his face, which broke his jaw. He felt pain and blood in his mouth. Mr. Cahley
still would not stop choking him. He was then thrown out onto the sidewalk. He
managed not to fall on his face. He called the police, who came in 5-10 minutes.

[13]        
Mr. Paskalidis was taken by ambulance to St. Paul’s hospital.
Constable Lee spoke to him there, and he was later taken to Vancouver General
Hospital by ambulance. He says he was there for 7 days, and underwent an
operation on his jaw, which required 9 screws and plates. He said his jaw was
wired shut for 5-6 weeks, and his weight dropped to 140 pounds. He also had
excruciating pain in his ribs, numbness in his fingers and hands, and severe
pain in his jaw.

[14]        
In cross-examination, Mr. Paskalidis reiterated that no one ever
asked him to leave. He decided to leave on his own initiative and was in the
process of doings so when these incidents occurred. He reiterated that Mr. Sharif
rubbed up against him and “herded” him towards the door. Mr. Paskalidis
said that at the exit he turned around and asked Mr. Sharif why he was
behind him. Then, although he never pushed Mr. Sharif, nevertheless Mr. Sharif
shoved him through the door with both hands. Danny Seng Savang asked him what
he was doing, and at that point, Mr. Cahley came through the door and said
“Do you want to fuck with us?”

[15]        
Mr. Paskalidis was cross-examined about various passages from his
examination for discovery. He reiterated that Mr. Fabiano delivered two
punches, breaking his jaw and ribs. He agreed that he initially told the police
that he had four broken teeth, which turned out not to be the case, but he
explained that he did not know the exact nature of the injury to his mouth
until he was at the hospital.

[16]        
Mr. Paskalidis also maintained that he was in hospital for 7 days,
although the hospital records show an earlier discharge date. I find that Mr. Paskalidis
is mistaken in that part of his evidence, but I do not find that fact to
seriously detract from the credibility of the essential parts of his evidence
about the events on the evening in question at the Club.

Grant Fredericks

[17]        
Grant Fredericks was called by the defence to testify as an expert
witness in assembling and synchronizing video files and interpreting what is
depicted in the video. His qualifications are set out in his curriculum
vitae marked as Exhibit 3. His written report is Exhibit 4 and a CD he
prepared with a compilation of the videos from 3 different security cameras was
marked as Exhibit 5.

[18]        
Mr. Fredericks’ evidence was helpful in so far as he explained some
of the technical aspects of the security video footage. Also helpful was the
compilation CD he prepared, which makes it possible to watch simultaneously on
a single screen, the images from all three security cameras. The part of his
evidence that I did not find helpful was his opinions about what is depicted in
the videos. He was not present to personally witness the events shown in the
videos, and he does not personally know any of the participants. His opinions
are based on viewing the videos multiple times, with the benefit of his expert knowledge
of video technology.

[19]        
In my view, his expertise did not put him in a significantly better
position to interpret what is shown in the videos than any other careful
observer. Thus, for example, at page 8 of his report he writes about the
encounter between Mr. Sharif and Mr. Paskalidis at the exit door, as
captured on video camera 5. He writes:

Sharif stands behind Paskalidis for approximately sixteen
seconds. There is no contact between the men at this time.

Another employee, Cahley is seen walking with Mr. Seng
Savang toward the exit door.

Paskalidis is seen walking toward
the exit door at 00:46:20 (real-time reference produced by me for this report),
but stops inside the door and turns towards Sharif. There was no contact
between the men to this point.

[20]        
I have watched that portion of the video multiple times, and in my view
it is quite impossible to determine, as Mr. Fredericks purports to do,
that throughout this time there was no contact between the two men. The images
are distant from the camera, are fuzzy and in dim light, and for the most part,
one can barely see Mr. Paskalidis at all, since he is closer to the exit
door than Mr. Sharif, and Mr. Sharif’s body completely blocks out and
obscures any image of Mr. Paskalidis. The opinion that the two men had no
contact during this time is not based on anything that an objective observer
can see in the video.

[21]        
Significantly, this unfounded opinion conflicts with the testimony of Mr. Paskalidis
that Mr. Sharif was rubbing up against him at the coat check area.

[22]        
Mr. Fredericks’ report then continues:

Sharif is standing facing
Paskalidis and with his back toward the inside of the club. Paskalidis is
standing with his left side and his back toward the door. At 00:50:00,
Paskalidis’ head moves down in the image. Sharif does not move. At 00:50:20,
Paskalidis’ head moves forward toward Sharif and appears to come close to the
chest and right shoulder of Sharif as Sharif is moved backward. Paskalidis’
action is consistent with pushing Sharif.

[23]        
Again, numerous careful viewings of the videos leave me unable to
discern why at this point Mr. Sharif moves back slightly. From the video,
one cannot see Mr. Paskalidis push him. The backward movement could just
as likely have been caused by Mr. Seng Savang grabbing his arm when Mr. Sharif
pushed against Mr. Paskalidis.

[24]        
Again, Mr. Fredericks’ unfounded opinion is in conflict with the
testimony of Mr. Paskalidis, who testified that he was shoved from behind.

[25]        
Overall, I find that Mr. Fredericks’ opinion evidence about what he
thinks he sees in the videos is largely unfounded and unhelpful. I place little
weight on it, particularly when it conflicts with the testimony of witnesses
who were present at the time of the events in question.

[26]        
Mr. Fredericks testified that from watching the videos, he did not
see any images of Mr. Fabiano striking Mr. Paskalidis in the jaw or
ribs, and he did not see any images of Mr. Paskalidis being punched by anyone
at any time. However, in cross-examination, Mr. Fredericks admitted that
the view from camera 4 does not show all of the action, and he cannot say what
might have happened outside the camera view. He also admitted in
cross-examination that there is a period of about 5 seconds during which Mr. Fabiano’s
hands are not visible.

[27]        
Again, I find that Mr. Fredericks’ opinion evidence about what he
thinks he can or cannot see on the videos is of little assistance in
determining whether Mr. Paskalidis was struck, and if so, by whom. The
videos are blurry, poorly lit, and do not show complete motion, since they were
filmed at only three frames per second. It is not easy to decipher what they
show or do not show, but I am unable to find that Mr. Fredericks is in a
significantly better position to offer an opinion about what is depicted than
any other careful observer.

John Wong

[28]        
John Wong was on duty as the general manager of the Club that evening. At
the request of the police, he provided copies of the video from security
cameras 3, 4, and 5. However, he entered the incorrect starting time for one of
the videos, and as a result, the video from camera 4 is incomplete.

[29]        
Mr. Wong testified that Club policy required all of the security
staff who were involved in the incident to provide a written incident report. Although
he was satisfied that Mr. Fabiano was involved, he never received an
incident report from him.

Constable Lee

[30]        
Constable Lee is a member of the Vancouver Police who investigated this
incident following the 911 call from Mr. Paskalidis. He attended at the
Club and met Mr. Paskalidis, who was upset and who told him that he had
been assaulted. Mr. Paskalidis was spraying blood from his mouth as he
spoke to him.

[31]        
Constable Lee watched the security videos with Mr. Wong, and he
requested copies. The copy of video 4 turned out to be incomplete, but
Constable Lee did not know this until sometime later because he never checked
the copy that Mr. Wong had provided to him. When Constable Lee was later
informed by other investigators that video 4 was incomplete, he requested
another copy from Mr. Wong. What he received, however, was not a complete
copy of video 4, but rather a longer copy of video 5. Again, he never checked
the additional copy that he was given, and therefore, no complete copy of video
4 has been produced. According to John Wong, the original hard drive containing
that video has long since been erased.

[32]        
Both Constable Lee and John Wong testified that they watched the entire
video from camera 4 and the other videos on the night in question, and did not
see anyone hitting Mr. Paskalidis. Given the carelessness that both of
them exhibited in failing to produce a full and complete copy of video 4, I
place little weight on their recollections of what they think they remember
from watching the videos more than five years ago.

Hnan Sharif

[33]        
Hnan Sharif is 6’ 6” tall and weighs 250 pounds.

[34]        
He testified that he was working as a doorman at the Club on August 26,
2006, and near the end of his shift he was notified that someone had taken off
some clothing. He approached Mr. Paskalidis, told him his dress was
inappropriate, and that he would have to leave. He followed him to the door,
but did not have any contact with him. At the door, Mr. Paskalidis turned
and would not leave. According to Mr. Sharif, Mr. Paskalidis pushed
him, and he pushed back. Danny Seng Savang then stepped between them, and he
turned his attention to him. By this time, Mr. Paskalidis was outside the
door being restrained by Mr. Cahley. Mr. Sharif saw a bit of a
scuffle in which Mr. Stimac was also involved.

[35]        
In cross-examination, he agreed that Mr. Paskalidis was leaving the
Club on his own accord, voluntarily, but refused to leave when he got to the
door.

[36]        
Mr. Sharif said that he prepared a written incident report for the
Club that night, as did Mr. Cahley and Mr. Stimac. He said they were
all in the same room when they wrote their reports.

[37]        
Mr. Sharif agreed in cross-examination that it is possible that he
bumped into Mr. Paskalidis. He said it is also possible that Mr. Paskalidis
did not push him, but merely bumped. He said he did not remember anything
specific about the scuffle outside, because he was restraining Mr. Seng
Savang, who had pushed him.

[38]        
Mr. Sharif agreed that he did not know how the scuffle outside
started. He said he did not remember Mr. Fabiano being present, but having
now seen the video, he agrees that he was involved in the struggle with Mr. Stimac,
Mr. Cahley, and Mr. Paskalidis.

[39]        
He was asked about that part of the incident where Mr. Paskalidis
was thrown towards the sidewalk. He said bouncers are not supposed to throw
someone onto the sidewalk, because they can get hurt. He said they are trained
not to do that.

Monty Cahley

[40]        
Monty Cahley was working as a security guard at the Club that night in
August 2006. He is 6’ tall and weighed about 205 pounds at that time. He
noticed the plaintiff at the downstairs bar wearing a sleeveless shirt,
contrary to the dress code. He asked him to put his jacket back on, but he did
not. He said that Mr. Paskalidis became verbally aggressive. He told him
that if he did not like the Club’s policy, he was more than welcome to leave.

[41]        
Mr. Paskalidis then put his jacket on and started to leave the Club.
As he walked to the front doors, he took his jacket off again and then
proceeded to the coat check area. Mr. Paskalidis then went to the doorway,
turned, and shoved Mr. Sharif, who pushed him back.

[42]        
Mr. Cahley said he stepped in between them, and the plaintiff
grabbed at his throat. He swept his hand away, and the plaintiff then put his
hand in his eyes. Mr. Cahley received assistance from Mr. Stimac and Mr. Fabiano.
He reached around the plaintiff’s waist, lifted him up, and carried him to the
ropes. He denied putting his hand on the plaintiff’s throat or banging his head
against the door. He said none of them struck Mr. Paskalidis even once. In
cross-examination he said it is improbable that someone struck Mr. Paskalidis
without his seeing it because he does not believe that the staff would do that.

Joseph Stimac

[43]        
Joseph Stimac was working outside as a doorman at the Club on the night
in question. He did not see how the incident started. When he first saw the
plaintiff, he was already struggling with Mr. Cahley and Mr. Fabiano
at the entrance doors. He assisted them by holding the plaintiff’s arms. He
does not recall any words being spoken during the struggle and did not see any
blood. He did not see Mr. Fabiano punch the plaintiff in the jaw, nor did
he see Mr. Cahley push his head against the door frame. Mr. Cahley
grabbed the plaintiff around the waist and escorted him onto the Granville
Street sidewalk. The police then came, and placed Mr. Stimac in handcuffs,
but he was released after 15 or 20 minutes.

[44]        
In cross-examination, Mr. Stimac agreed that he is unable to say if
anyone threw any punches before he became involved.

Antonio Fabiano

[45]        
Antonio Fabiano was working as an outside doorman for the Club that evening.
He was stationed at the front door, letting people in and checking their I.D.

[46]        
He was examined for discovery on June 9, 2008. At that time he recalled
little about the incident, except that two of his colleagues, Mr. Stimac
and Mr. Cahley, had been placed in handcuffs for a period of time. Mr. Fabiano
did not recall having any contact with the plaintiff.

[47]        
At trial, he said that his recollection of that night was still hazy and
vague, but having now seen the video, he agreed that he participated in the
ejection of the plaintiff. He testified that he did not strike the plaintiff,
even once. He said he has participated in thousands of ejections and has never
struck a patron.

Analysis

[48]        
A convenient and accurate summary of the law in relation to assault,
battery, and self-defence may be found in Buchy v. Villars, 2008 BCSC
385, aff’d 2009 BCCA 519, at paras. 109-112:

[109]    This brings us to the plaintiff’s cause of action in
assault and negligence.

[110]    I will first deal with the claim in assault or, more
accurately, as the defendant Villars struck a blow to the plaintiff, the tort
of battery.

[111]    The tort was discussed by the Supreme Court of
Canada in Mann v. Balaban et al., [1970] S.C.R. 74 and, in particular,
the onus on the defendant pleading self-defence was noted by Justice Spence for
the majority (at p. 87):

In an action for assault, it has
been, in my view, established that it is for the plaintiff to prove that he was
assaulted and that he sustained an injury thereby. The onus is upon the
plaintiff to establish those facts before the jury. Then it is upon the
defendant to establish the defences, firstly, that the assault was justified
and, secondly, that the assault even if justified was not made with any
unreasonable force and on those issues the onus is on the defence.

[112]    While the parties cited a number of cases on the
issue of self-defence, I believe an accurate summary of the law is contained in
Linda D. Rinaldi, ed., Remedies in Tort, looseleaf (Toronto: Carswell,
1987) vol. 1 at 2-30 to 2-31 (footnotes omitted):

1. Self-Defence

§19      “The law gives every one
the right to defend himself against either a threatened or an actual attack
from another. The right of self-defence proceeds from and is limited by the
necessity to ward off the danger of such an attack. Therefore the right of
self-defence commences when the necessity for such defence begins and it
terminates when the necessity for such self-defence comes to an end. The law,
however, requires that the force used in defending oneself must not he out of
proportion to the severity of the attack. An attack by fists may be answered by
fists but not with deadly weapons such as knives and guns. In exercising the
right of self-defence one must use only such force as on reasonable grounds the
person attacked believes to be necessary for his own defence. In short,
self-defence means defence, not counter-attack.”

§20      Self-defence is usually
pleaded as a defence to a battery action where the defendant has struck the
plaintiff in response to an attack or perceived attack by the plaintiff. It is
a complete defence. If the defendant reasonably perceives an attack to be
imminent, he may still be entitled to rely on self- defence although he has
struck the first blow. However, force may only be used to repel or prevent an
attack, not to punish an aggressor for past actions or as a guise for a
counter-attack.

§21      In preventing or repelling an attack, no more than
reasonable force may he used. What is reasonable depends on the facts and
circumstances of the case, including the nature and seriousness of the attack
or threatened attack, the relative size and strength of the combatants, and
whether the acts complained of took place after the threat was averted. The
seriousness of the resulting injury is not necessarily indicative of the use of
unreasonable force, as even acts which cause serious injury may be justified as
self- defence:  “it has long been held that an attacked person defending himself
and confronted with a provoking situation is not held down to measure with
exactitude or nicety the weight or power of his blows.”  Where a person uses
more than reasonable force, he himself may he liable for battery.

[49]        
Applying the law to the evidence, I make the following findings.

[50]        
The scuffle between the defendants and the plaintiff occurred after the
plaintiff was outside the front door of the Club. It is clear from the
testimony of Mr. Sharif that Mr. Paskalidis was leaving the Club
voluntarily of his own accord and had reached the front door before there was
any confrontation. This is confirmed by watching the video. The scuffle did not
start until Mr. Paskalidis was at the front door. He was outside of the
Club, although still on Club property, between the front door and the public
sidewalk.

[51]        
I am satisfied that the plaintiff’s jaw was broken during that scuffle
that took place after he was outside the front door of the Club. Clearly, his
injuries had not yet occurred during the interaction between the plaintiff and Mr. Sharif
when he was still inside the Club. Constable Lee confirms that the plaintiff
was spitting blood when he spoke with him a few minutes later. From the video,
it is clear that although the plaintiff was thrown to the sidewalk, he did not
strike his head or face. He immediately called 911. Constable Lee arrived
within a few minutes. The plaintiff’s testimony is that he received his
injuries during the scuffle outside the front door. I accept that that is true
and accurate.

[52]        
What is more difficult is to determine the precise moment when his jaw
was broken. The position of the defence is that when looking at the videos, one
cannot see a specific blow that would be the cause of the broken jaw. On the
other hand, the videos do not constitute a complete record of the interaction
between the defendants and the plaintiff outside the door of the Club. This is
so for three reasons. First, the videos were recorded at only three frames per
second. Because the incident took place very quickly, this means that there are
unrecorded gaps in the action from one frame to the next. Second, the video
cameras were positioned in such a way that there is an area by the front door
that is not visible. It appears that Mr. Fabiano was standing in this
blind spot, and therefore we do not have a complete record of his actions, or
indeed of anything else that occurred in that blind spot. Third, the video from
camera number 4 is truncated. That video only commences several seconds after
the confrontation in front of the door was underway.

[53]        
The video, therefore, does not persuade me that the plaintiff’s injuries
were not caused by a blow or blows from the defendants. On the contrary, I am
satisfied that there is no other reasonable explanation of how the plaintiff could
have sustained his injuries.

[54]        
The plaintiff testified that he saw Mr. Fabiano strike the blows
that broke his jaw and that caused injury to his ribs. Mr. Stimac and Mr. Cahley
testified that they did not strike such blows. Mr. Fabiano testified at
his examination for discovery that he had little recollection of these events. At
trial he said that he did not recall that he was involved until he saw the
videos, but he now agrees that he participated in the plaintiff’s ejection. He
said his present recollection is hazy and vague. He denied striking the
plaintiff, yet this denial was not based on a recollection of the event, but
rather on his general statement that he has never struck any patron. Unlike the
other defendants, Mr. Fabiano did not prepare a contemporaneous written
incident report, even though this was required by Club policy. His failure to
do so remains unexplained.

[55]        
From a consideration of all the evidence, I am satisfied on a balance of
probabilities that the testimony of Mr. Paskalidis is accurate when he
says that his injuries were caused by blows inflicted by Mr. Fabiano. I
make this finding notwithstanding the video record, which I have found to be
incomplete for the reasons stated above, and notwithstanding the testimony of Mr. Fabiano,
whose testimony is of dubious reliability due to his hazy recollection and his
failure to follow Club policy requiring a written incident report.

[56]        
The next issue is whether the conduct that resulted in the injuries to Mr. Paskalidis
were justified in some way. I am satisfied that they were not. I have already
found as a fact that the plaintiff was leaving the Club voluntarily and had
reached the front door before any trouble started. Something then occurred at
the front door, which is undocumented by the video camera evidence. It is
possible that Mr. Paskalidis said something to the defendants that they
took exception to.

[57]        
I find it unlikely that he initiated a physical struggle by pushing or
striking anyone before he himself was pushed or struck. First, this finding is
consistent with Mr. Paskalidis’ testimony. Second, it is clear now, and it
would have been clear to Mr. Paskalidis at the time, that the defendants
were much bigger than he is, and that they significantly outnumbered him. It
would have been folly for him to strike one of them. Moreover, he had no reason
to push or strike anyone since he was leaving the Club in any event.

[58]        
In whatever manner the incident started, I find that the force used was
excessive. The videos do not show Mr. Paskalidis throwing any punches. His
hand is in the face of Mr. Cahley, but this is to push him away, not to
strike or injure him. Moreover, throughout the struggle, Mr. Paskalidis
has the use of only his right hand. His left hand is holding onto his jacket
throughout. Had Mr. Paskalidis been motivated to fight with the
defendants, he would have dropped his jacket in order to have the use of both
his arms. What we are left with, then, is a struggle between three large and
strong bouncers, and the plaintiff, whose ability to engage in a fight is
limited by the fact that he has the use of only one hand.

[59]        
In addition, it is significant that by the time the scuffle started, Mr. Paskalidis
had already voluntarily made his way outside the front door. Although he was
still on Club property, this is not a case in which the use of force was
required in order to get an unruly patron out of the Club’s interior premises.

[60]        
In all the circumstances, I find that the force used against the
plaintiff was unreasonable, unjustified, and excessive.

[61]        
Although the blows that caused the injuries were thrown by Mr. Fabiano,
I find that the defendants were acting in concert and aiding each other in this
enterprise and are jointly and severally liable. This is not a case where their
actions are justified as either self-defence or defence of another, nor are
their actions justified or excused by the provisions of the Liquor Control
and Licensing Act, R.S.B.C. 1996, c. 267, or the Occupiers
Liability Act, R.S.B.C. 1996, c. 337.

Damages

[62]        
The plaintiff seeks general damages, special damages, and aggravated and
punitive damages. He does not seek damages for lost income, either past or
future, nor does he seek damages for the cost of future care.

[63]        
The claim for special damages is limited to $160 for physiotherapy
treatment. I am satisfied that is appropriate, and I make that award.

[64]        
The plaintiff seeks an award for general or non-pecuniary damages in the
amount of $100,000. The defendants submit that that is excessive, and a much
more modest award should be made.

[65]        
According to the plaintiff’s testimony, he suffered a broken jaw and rib
injuries as a result of the punches he received. He testified that he had an
initial surgery for his broken jaw, and then subsequent surgery about 6 months
later to remove the hardware from his face. He said he suffered headaches and
neck pain for 2-3 years, and had restricted motion of his neck. He said that
his fingers still feel numb sometimes.

[66]        
A number of medical reports were filed on behalf of the plaintiff. Dr. Salvian
provided an independent medical report dated January 5, 2007, based on medical
records and an examination of Mr. Paskalidis on January 2, 2007. He found
no evidence of cervical spine injury or disc disease, but opined that the
symptoms of numbness and tingling could be attributed to thoracic outlet
syndrome related to the incident at the Club. As to prognosis, he wrote:

I can only comment on his
paresthesias (numbness and tingling) in the arm. These symptoms seem to be
getting better. They were constant and they were present during the day and
frequently at night. Now they occur only at night and he is sleeping much
better. The injury now was about four months ago and I suspect that he will
continue to improve if he follows the conservative therapy.

[67]        
Dr. Michelle Williams prepared a medical/legal report dated July
29, 2011, based on her consultation with Mr. Paskalidis on January 25,
2011. Dr. Williams is a dentist with a specialty in oral medicine, and her
report deals with the injuries to the plaintiff’s mouth. Under the heading
“Assessment” she wrote:

Mr. Paskalidis was involved
in an altercation on August 27, 2006. I did not have the opportunity to
evaluate him at or around that time and, as such, am unable to comment with
certainty on the specifics of the initial injury. Records reviewed clearly
document mandibular fractures requiring surgical repair. Post operatively Mr. Paskalidis
expressed concerns regarding residual facial asymmetries, altered lip and chin
sensation, jaw related pain and an altered occlusion. Facial asymmetries have
been well address[ed] by Dr. K. Bush (plastic surgeon) and altered lip and
chin sensation have been well addressed by Dr. R. Keyes (neurologist). I
will defer to their expert opinions in this regard. Specific to the jaw related
symptoms it is my opinion that Mr. Paskalidis has developed a
temporomandibular (TM) disorder. Clinical and radiographic findings support the
presence of an internal derangement of the left TM joint, a left TM joint
arthralgia and myofascial pain involving the left side masticatory musculature.
At the time of assessment findings were considered mild to moderate in
severity.

[68]        
Under “Suggested Management” she commented:

It is my opinion that there is no
related indication for orthodontic, surgical or restorative initiatives.

[69]        
In her Summary she concluded:

Mr. Paskalidis was involved in an altercation on August
27, 2006 in which he sustained traumatic mandibular fractures requiring
surgical repair. It is my opinion that this accident was the precipitating
event for the development of the symptomatic jaw disorder described. Although
improved there are ongoing symptoms requiring conservative TM therapy,
including occlusal appliance wear. Although professional supervision is
indicated during the initial phase of treatment (six to twelve months) the main
emphasis is on self-care.

I have not had the opportunity to
evaluate Mr. Paskalidis’ response to care and, as such, am unable to
comment, with certainty, on his prognosis at this time. In similar
circumstances the prognosis is favourable for gradual and progressive
improvement in residual jaw-related symptoms over time. Whether complete
symptom resolve will ever be achieved remains unclear. In isolation his TM
condition has not been disabling. It should not impair her choice of
work-related or leisure time activity.

[70]        
Counsel have referred me to a number of cases involving the assessment
of damages for somewhat similar injuries in somewhat similar circumstances,
including:

Lyons v. Kingstreet Investments
Ltd., 2001 NBQB 138;

Culver v. 624671 B.C. Ltd.,
2006 BCSC 1241;

Tootoosis v. John Doe, 2006
SKQB 75;

Lawrence v. John B. Pub Ltd.,
1997 CarswellBC 1091 (S.C.);

Besic v. Kerenyi, 2011 BCSC
1277;

Singh v. Clay, 2011 BCSC
1172;

Albus v. Stevenson, 2001 SKQB
574;

Miclash v. Canada, 2003 FCT
113;

Smith v. Doucette, 2006 NSSC
67;

Leighton v. Best, [2009] O.J.
No. 2145 (Sup. Ct.);

Glover v. Fell, [1999] B.C.J.
No. 1333 (S.C.).

[71]        
The awards for non-pecuniary damages in those cases were between $10,000
and $65,000, with most clustering in the range of $25,000 to $40,000. Given the
nature of the assault and the nature of the injuries suffered by Mr. Paskalidis,
I assess and award him non-pecuniary damages in the amount of $45,000.

[72]        
I am not satisfied that an award should be made for aggravated or
punitive damages. This was a very brief incident where emotions ran high and
the defendants overreacted resulting in the use of excessive force. I am not
satisfied that there was a deliberate attempt to humiliate the plaintiff or
that he is entitled to compensation for hurt feelings caused by the nature of
the defendants’ conduct. The objectives of punitive damages are sufficiently
met in the award of compensatory damages: Whiten v. Pilot Insurance Co.,
2002 SCC 18.

Summary

[73]        
All the defendants are jointly and severally liable for the assault on
Mr. Paskalidis. The plaintiff is awarded special damages of $160 and
general damages of $45,000. I make no award for aggravated or punitive damages.

The
Honourable Mr. Justice W.F. Ehrcke