IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140819

Docket: S101644

Registry:
Vancouver

Between:

Enrique Alexander
Pacheco

Plaintiff

And

Tesfay Arega
Degife and Faron Tyler Bilitaki Wong

Defendants

Before:
The Honourable Mr. Justice Skolrood

Reasons for Judgment

Introduction

[1]            
The plaintiff, Enrique Pacheco, claims damages for battery arising out
of an incident that occurred in the early morning hours of May 31, 2008 on
Beach Avenue in Vancouver. A minor rear-end collision involving Mr. Pacheco’s car
and a car driven by the defendant, Tesfaye Degife, led to an altercation in
which Mr. Pacheco was struck in the head with a baseball bat (the “Incident”).

[2]            
A central issue to be determined is the identity of the person that
struck Mr. Pacheco. As there is no direct evidence on this point, it is
necessary to review the evidence of each witness in some detail. I will first deal
with the issue of liability and will then address Mr. Pacheco’s claimed damages
separately.

Liability for the Plaintiff’s Injuries

The Plaintiff’s Evidence

[3]            
Mr. Pacheco was born in El Salvador on December 29, 1981 and moved with
his family to Canada in 1988. He is currently 32 years old.

[4]            
He lives in Vancouver with his mother and younger brother.

[5]            
Mr. Pacheco has a high school education, having graduated from Burnaby
Central Secondary School in 2000.

[6]            
Mr. Pacheco claims to remember very little about the Incident. He said
that he was at a bar in Vancouver on the evening of May 30, 2008. Early in the
morning of May 31st, he left with two friends, Chris Herada and Nazanin Tanidegar.
He has known Mr. Herada since high school but had only recently met Ms.
Tanidegar.

[7]            
Mr. Pacheco testified that he recalled leaving the bar with them and
getting into his car to drive home. The next thing he remembers is waking up in
Vancouver General Hospital.

[8]            
It was put to Mr. Pacheco in cross-examination that he was the aggressor
in the Incident. Specifically, it was put to him that after leaving the bar, he
stopped his car in the middle of Beach Avenue. The car driven by Mr. Degife
came up behind him, honked and went around him. It was suggested that Mr.
Pacheco then chased Mr. Degife’s car and bumped into it. It was suggested
further that when Mr. Degife got out of his car, Mr. Pacheco punched him and
then Mr. Pacheco and his passenger, Mr. Herada, chased down Mr. Degife’s
passenger, Mr. Wong, and beat him.

[9]            
In response to each of these questions, Mr. Pacheco again professed to
have no recollection of any details of the Incident.

[10]        
It was also put to Mr. Pacheco that he has a problem with alcohol and
that when he drinks he gets aggressive. He denied this. He did however agree
that he was involved in a subsequent incident in 2010 when he punched a police
officer and that he was drunk at the time.

[11]        
Mr. Pacheco testified that this subsequent altercation occurred during
the 2010 Olympics when he got into a scuffle with someone on the street after a
hockey game. He said he was holding the person by the shirt collar when he was
grabbed from behind. He turned and punched the person who had grabbed him, who
turned out to be a police officer. He said that this was the only similar
incident before or after the Incident in issue.

[12]        
It was put to him that he was drunk on the night of the Incident. While
he agreed that he had been drinking at the bar that evening, he denied being
drunk when he left.

The Plaintiff’s Witnesses

[13]        
Mr. Pacheco called evidence from four additional witnesses.

[14]        
At the time of the Incident, Camila and Maciej Slusarczyk lived on the
12th floor of an apartment building in the 1000 block of Beach Avenue.

[15]        
Ms. Slusarczyk testified that she was woken up by honking and the sound
of a crash early in the morning of May 31, 2008. It was a warm evening so she
and her husband had their bedroom window open. She went to the window, looked
down and saw two cars on the street below. The one in front was a newer car and
the one in the rear was older.

[16]        
While she was somewhat unclear on the details, at one point she saw
people outside the two cars then she saw the driver of the older car start to
chase one of the people from the newer car who was wearing white pants. She
described the driver of the older car as being larger than the people in the
newer car. They disappeared from view, however she then went out onto her
balcony and saw the man with the white pants lying motionless on the grass
outside of the Vancouver Aquatic Centre, just down the block.

[17]        
Ms. Slusarczyk testified that the driver of the older car came back into
view, walked to the newer car and began to punch it. He then went back to his
car and it looked like he was going to get into the driver’s seat when he was
hit in the back of the head with a baseball bat.

[18]        
She said the driver of the older car fell and struck his head on the
pavement. He got up quite quickly, which surprised her, then he lay down in the
back seat of the older car.

[19]        
She could not identify who swung the bat but said that person was then
chased by two other men. She saw the person who had swung the bat throw it
away.

[20]        
The police and ambulance arrived and the driver of the older car and the
man in the white pants were taken away.

[21]        
In cross-examination, Ms. Slusarczyk said she saw three people being
taken away by ambulance: the driver of the older car, the man in the white
pants and the man who had swung the bat.

[22]        
Mr. Slusarczyk similarly testified that he was woken up by sounds in the
street below their apartment. When they heard the sound of the cars colliding,
his wife got up and went to the window but he stayed in bed. She then called
him to come and look.

[23]        
He looked into the street below and saw two cars, one of which he
identified as a Mitsubishi Eclipse and the other as an older Honda Civic. He
later agreed, based on a review of photographs, that the older car was a Toyota
Corolla.

[24]        
Mr. Slusarczyk testified that the two people in the Eclipse got out to,
in his words, confront the driver of the Corolla. He then saw the driver of the
Corolla chase one of the men from the Eclipse who was wearing white pants. Mr.
Slusarczyk moved to his balcony and he saw the man in white pants lying
motionless on the grass in front of the Vancouver Aquatic Centre.

[25]        
 Mr. Slusarczyk said that the driver of the Corolla walked back to his
car when the passenger from the Eclipse pulled a baseball bat out of the Eclipse’s
trunk and struck the driver of the Corolla in the back of the head. Mr.
Slusarczyk said that the driver of the Corolla fell and struck his head on the
ground. Mr. Slusarczyk heard the sound both of the bat striking his head and
his head hitting the ground.

[26]        
Mr. Slusarczyk also expressed surprise that the driver of the Corolla
was able to get up quite quickly and then he lay down in the back of the
Corolla.

[27]        
Mr. Slusarczyk was unable to identify any of the people that he saw
other than to note that the driver of the Eclipse was wearing white pants and
that both people in the Eclipse were smaller than the driver of the Corolla.

[28]        
In cross examination, Mr. Slusarczyk agreed that the driver of the
Corolla appeared to be the aggressor and that he chased the man in the white
pants, who was later seen lying prone on the grass in front of the Vancouver Aquatic
Centre.

[29]        
Mr. Slusarczyk agreed that he could not say for certain that the man in
the white pants was the driver of the Eclipse but that was his clear impression
from what he observed.

[30]        
Mr. James Beatty lives on the 15th floor of a building located at 1011
Beach Avenue.

[31]        
Mr. Beatty testified that in the early morning of May 31, 2008, he heard
what sounded like a fight in the street below. It was a warm evening so he had
his balcony door open.

[32]        
He went to the balcony and looked down where he saw one man lying on the
grass in front of the Vancouver Aquatic Centre and another man standing over
him beating him. He could not identify either man and the only distinguishing
feature that he could recall was that the man doing the beating was wearing a
white or light coloured t-shirt.

[33]        
Mr. Beatty said that the police arrived and the man in the light coloured
t-shirt ran away, heading down to a grassy picnic area adjacent to the Vancouver
Aquatic Centre.

[34]        
It would seem likely that this man was Mr. Herada, who apparently ran
off when the police arrived rather than returning to Mr. Pacheco’s car.

[35]        
Ms. Nazanin Tanidegar was a passenger in Mr. Pacheco’s car at the time
of the Incident. She testified that earlier in the evening she had been at a
club downtown with some friends. At some point she left with Mr. Pacheco, and a
man that she identified as Chris. She did not know his last name.

[36]        
Ms. Tanidegar said that they were driving along Beach Avenue when Mr.
Pacheco’s car bumped into another car. She said that Mr. Pacheco was on the
phone at the time, speaking to his girlfriend.

[37]        
According to Ms. Tanidegar, the driver of the other car, which she said
was green, got out of his car, came to Mr. Pacheco’s car and punched Mr.
Pacheco through the driver’s side window. She said that Mr. Pacheco got out and
was fighting with the two men from the other car. Chris then got out of their
car so it was a two on two fight.

[38]        
Ms. Tanidegar testified that she heard sirens and Mr. Pacheco went to
his car, she thinks to move it. Someone then came up behind him and hit him in
the head with a baseball bat causing him to drop to the ground.

[39]        
Ms. Tanidegar could not identify either of the men in the green car,
other than to say that one of them was wearing white pants. She believes that
was the passenger in the green car.

[40]        
She said that she saw the bat taken from the trunk of the green car.

[41]        
In cross-examination, she agreed that she saw Mr. Pacheco and his
passenger chase the man in the white pants and beat him until he was
unconscious. She agreed that the other man from the green car was calling 911
and that she swore at him and told him to get off the phone.

[42]        
She denied that Mr. Pacheco was the instigator of the altercation. She
said the instigator was the man who punched Mr. Pacheco.

[43]        
Ms. Tanidegar testified that after seeing Mr. Pacheco get hit with the
bat, she went and sat at a bus stop then caught a taxi home. The most that she
could say about the person who swung the bat was that he appeared to be “middle
eastern”.

Evidence from the Defendants’ Examination for Discovery

[44]        
The plaintiff read in excerpts from the examinations for discovery of
both Mr. Degife and Mr. Wong that established that Mr. Degife and Mr. Wong were
in the green Mitsubishi Eclipse when it was hit from behind by the car driven
by Mr. Pacheco. The car was owned and was being driven by Mr. Degife. Mr. Wong was
in the front passenger seat.

The Defendants’ Evidence

[45]        
Of the two defendants, Mr. Wong testified and Mr. Degife did not.

[46]        
Mr. Wong was born on September 21, 1982 and is currently 31 years old.
At the time of the Incident he was 25 years old.

[47]        
He is currently employed full time as a shipper/receiver at a technology
company. In 2008, he was employed full time in a book bindery and also worked
in a warehouse.

[48]        
He has known Mr. Degife since they were both about 18 years old. They
met playing soccer and became close friends, living together for a period of
time.

[49]        
Mr. Wong testified that on the evening of Friday May 30, 2008, he and
Mr. Degife went to someone’s house in the West End of Vancouver to attend a
poker game. The game did not in fact materialize so they, along with another
friend of Mr. Wong’s, took a taxi to a pub in Gastown.

[50]        
Mr. Wong said that when they arrived, he realized that he did not have
his identification so they could not get into the pub. They decided to go home
so they took a taxi back to the West End, where Mr. Degife had left his car.

[51]        
Mr. Wong testified that by the time they returned to the car, he had
consumed three to five beers from a six pack that he had brought to the
intended poker game. He did not see Mr. Degife consume any alcohol.

[52]        
When they got into Mr. Degife’s car, they headed towards Beach Avenue
and turned to travel eastbound. While on Beach Avenue, they came up behind a
car stopped in the middle of the street. According to Mr. Wong, Mr. Degife
waited for a bit, then honked his horn. When the car did not move, Mr. Degife
honked again then went around the stopped car, passing it on the left side.

[53]        
He said they proceeded down the block and then slowed as they came to
the intersection of Beach Avenue and Thurlow Street, thinking there was a stop
sign. As they slowed down, their car was bumped from behind by another car. Mr.
Degife then pulled his car forward a bit and put it into park.

[54]        
According to Mr. Wong, Mr. Degife got out of the car while he stayed in
the passenger seat for 30 seconds or so. He then got out to see if there was
any damage to Mr. Degife’s car. He said while he was looking at the rear of Mr.
Degife’s car, he heard the sound of scuffling feet then loud talking. He also
heard Mr. Degife swear. He said he looked up and saw the driver of the other
car swinging widly at Mr. Degife.

[55]        
Mr. Degife was crouching down trying to ward off or block the blows. Mr.
Wong said that he then went to Mr. Degife’s aid. He swung his arm at the other
driver, knocking him into the other car. He then stepped in between Mr. Degife
and the other driver.

[56]        
According to Mr. Wong, the passenger of the other car then got out and
he and the other driver came after Mr. Wong. They chased him around several
parked cars and then followed him as he ran towards the front door of the Vancouver
Aquatic Centre. He said that at one point a bystander tried to stop the other
driver by putting up his hand. The other driver punched the bystander and
continued after Mr. Wong.

[57]        
Mr. Wong said that he fell onto the grass by the Vancouver Aquatic
Centre and the two men from the other car kicked and punched him and stomped on
his head against the curb until he was unconscious.

[58]        
His next memory is of waking up in the hospital.

[59]        
Mr. Wong testified that he did not see anyone with a baseball bat prior
to being rendered unconscious. He said that he had no knowledge of the bat or
where it came from. He did not know if there was a bat in the trunk of Mr.
Degife’s car as he did not look in the trunk.

Liability Findings

[60]        
Mr. Pacheco submits that the altercation that occurred in the early
morning of May 31, 2008, which resulted in him being struck with a baseball
bat, was started by the defendants Mr. Degife and Mr. Wong. He says that it was
Mr. Degife’s punch through the driver’s side window and Mr. Wong’s “attack” on
him that escalated the matter.

[61]        
While he did not say so directly, the impression he sought to leave with
the court was essentially that of an innocent victim. Certainly, there was no
acknowledgment by him either in his evidence or during his counsel’s submissions,
of the role that he played in the Incident.

[62]        
Mr. Pacheco is not an innocent victim. He was the aggressor and the main
catalyst that led to the Incident resulting in his injuries. The Incident
started when Mr. Pacheco caused his car to bump into the rear of the Eclipse. This
was either done on purpose or as a result of Mr. Pacheco following too closely
in an attempt to intimidate the occupants of the Eclipse. The Incident
escalated from there.

[63]        
Counsel for Mr. Wong submitted that Mr. Pacheco was the "author of
his own misfortune”. Based on the evidence, that is a fair characterization.

[64]        
That said, it does not disentitle him to damages if he can establish
that he was the victim of a battery and if there is no lawful defence to the battery.

[65]        
I will deal with Mr. Pacheco’s claims against each of Mr. Degife and Mr.
Wong separately.

[66]        
Starting with the claim against Mr. Wong, while Mr. Pacheco has sued
both of the defendants in battery, it was his submission that the evidence
leads to the conclusion that Mr. Degife swung the bat. With respect to Mr.
Wong, he says that while he may not have swung the bat, his actions accelerated
the altercation and caused or contributed to Mr. Pacheco being injured. The
specific action referred to is what he again characterized as Mr. Wong’s
“attack” on him.

[67]        
Mr. Wong did not attack Mr. Pacheco. I accept Mr. Wong’s evidence that
he saw his friend Mr. Degife being put upon by a much larger man and he moved
to protect his friend. He did that by knocking Mr. Pacheco sideways and then
inserting himself between Mr. Pacheco and Mr. Degife.

[68]        
His reward for coming to his friend’s aid was to be pursued by Mr.
Pacheco and Mr. Herada and then beaten senseless with multiple punches, kicks
and stomps to his head.

[69]        
There is no evidence that would permit a finding that Mr. Wong is liable
for Mr. Pacheco’s injuries. Indeed, the evidence clearly establishes that when
Mr. Pacheco was struck by the bat, Mr. Wong was lying unconscious on the grass
in front of the Vancouver Aquatic Centre as a result of what Mr. Wong’s counsel
quite properly described as Mr. Pacheco and Mr. Herada’s cowardly and savage
attack.

[70]        
The claim against Mr. Wong is therefore dismissed.

[71]        
With respect to Mr. Degife, Mr. Pacheco submits that Mr. Degife ignited
the altercation by punching him through his driver’s side window. However, the
only evidence of such a punch came from Ms. Tanidegar, and I did not find her
to be a credible witness. Her recollection of events was selective, which she
put down to the fact that the Incident occurred some six years ago, and her
evidence seemed tailored to assist Mr. Pacheco.

[72]        
Mr. Slusarczyk testified that he saw the two men from the Eclipse get
out of the car to confront the driver of the Corolla but he did not say that he
saw a punch being thrown.

[73]        
I am not satisfied on the evidence that Mr. Degife in fact instigated
the Incident by punching Mr. Pacheco. In fact, I think it is highly unlikely,
given the significant size difference between the two men, which would have
been apparent even with Mr. Pacheco sitting in his car.

[74]        
With respect to the battery on Mr. Pacheco, there is no direct evidence
identifying the person who swung the bat. None of the witnesses were able to
identify any of the individuals involved in the Incident, other than of course
Ms. Tanidegar who knew Mr. Pacheco and was in his car.

[75]        
The person closest to the scene was Ms. Tanidegar and the best that she
could say was that the assailant appeared to be “middle eastern.”  Of note, Ms.
Tanidegar agreed that she had previously seen the driver of the Eclipse on the
phone to the police and she had yelled at him to hang up. That person was obviously
Mr. Degife. However, in her testimony she did not identify the person who swung
the bat as the same person that had been making the phone call.

[76]        
It also is telling that when the police arrived, likely in response to
Mr. Degife’s phone call, Ms. Tanidegar did not stay to help identify Mr.
Pacheco’s attacker, or even to check to see if Mr. Pacheco was alright. Instead,
she caught a taxi and left the scene.

[77]        
The other people who testified to seeing Mr. Pacheco get hit with the
bat similarly could not identify the assailant with any certainty.

[78]        
Ms. Slusarczyk said that the person who swung the bat was then chased by
two other men. If this is accurate, it is not clear who these men were. One may
have been Mr. Herada although, according to Mr. Beatty’s evidence, Mr. Herada
likely ran from the scene after beating Mr. Wong when he heard the sirens. On
the evidence, Mr. Pacheco did not chase the person who struck him as he
immediately lay down in the back of his car after being struck.

[79]        
Mr. Slusarczyk testified that the passenger from the Eclipse took the
bat from the trunk and hit Mr. Pacheco. He was obviously mistaken about the
identity of the person as the evidence clearly establishes that Mr. Wong was
the passenger and he was incapacitated when Mr. Pacheco was struck. Mr. Slusarczyk
was also mistaken in his belief that it was the driver of the Eclipse who was
wearing the white pants.

[80]        
Notwithstanding these apparent errors, Mr. Slusarczyk’s evidence could
be taken to mean that it was the person in the Eclipse other than the man in
the white pants who took the bat from the trunk and struck Mr. Pacheco.

[81]        
Mr. Pacheco places considerable weight on the evidence of Mr. Slusarczyk
that the bat came from the trunk of the Eclipse. He submits that the only
people likely to know both that the bat was there and how to pop the Eclipse’s
truck were Mr. Degife and Mr. Wong. If Mr. Wong was incapacitated, it follows
that it was Mr. Degife who took the bat from the trunk and struck Mr. Pacheco.

[82]        
While, as noted, Mr. Slusarczyk was mistaken in various aspects of his
testimony, his evidence that the bat came from the trunk of the Eclipse was not
seriously challenged. Further, while there was some evidence of other people in
the vicinity, for example the person who sought to intervene to prevent Mr.
Pacheco from attacking Mr. Wong, there is no evidence of any person other than
Mr. Degife in immediate proximity to the two vehicles when Mr. Pacheco was
struck. Thus the theory, advanced by counsel for Mr. Wong, that some unknown third
party struck Mr. Pacheco, has no basis in the evidence.

[83]        
While acknowledging again that there is no direct evidence that Mr.
Degife struck Mr. Pacheco with the bat, considering the evidence as a whole,
the preponderance of probabilities supports a finding that it was Mr. Degife
who struck the blow (Bradshaw v. Stenner, 2010 BCSC 1398 at para 187).

[84]        
I therefore find that on a balance of probabilities Mr. Pacheco has
succeeded in establishing Mr. Degife committed the intentional tort of battery
on him.

Defences Available to Mr. Degife

[85]        
In his response to civil claim, Mr. Degife pleads that it was Mr. Pacheco
who assaulted him. While he does not plead the doctrine specifically, I read
the response as raising the defence of ex turpi causa non oritur actio (“ex
turpi”). Mr. Degife also pleads that by instigating the incident, Mr.
Pacheco voluntarily assumed the risk of injury i.e volenti non fit injuria (“volenti”),
and that he acted in self-defence. Lastly, he pleads that any injuries suffered
by Mr. Pacheco were caused or contributed to by Mr. Pacheco’s own fault. I will
consider each of these issues in turn.

Ex Turpi

[86]        
In Hall v. Hebert, [1993] 2 S.C.R. 159, the Supreme Court
addressed the policy underpinnings of the ex turpi doctrine in these
terms (179-180):

I conclude that there is a need
in the law of tort for a principle which permits judges to deny recovery to a
plaintiff on the ground that to do so would undermine the integrity of the
justice system. The power is a limited one. Its use is justified where allowing
the plaintiff’s claim would introduce inconsistency into the fabric of the law,
either by permitting the plaintiff to profit from an illegal or wrongful act,
or to evade a penalty prescribed by criminal law. Its use is not justified
where the plaintiff’s claim is merely for compensation for personal injuries
sustained as a consequence of the negligence of the defendant.

[87]        
As reflected in this passage, McLachlin J. (as she then was), speaking
for the court, drew a distinction between compensatory damages recoverable by a
plaintiff for personal injuries suffered as a consequence of tortious conduct,
and a profit or gain obtained from illegal conduct.

[88]        
More recently, the Supreme Court considered the ex turpi doctrine
again in British Columbia v. Zastowny, 2008 SCC 4, in the context of a
claim for damages for past wage loss resulting from a sexual battery which
included periods of time where the plaintiff was incarcerated. The Court
addressed its earlier decision in Hall and said:

[20] The question is, “under what circumstances
should the immoral or criminal conduct of a plaintiff bar the plaintiff from
recovering damages to which he or she would otherwise be entitled” (p. 169).
The following principles and approach are established in Hall v. Hebert
and are applicable in the present case.

1.     Application of the ex turpi doctrine in the tort context
invalidates otherwise valid and enforceable actions in tort (p. 169).

2.     Therefore, its application must be based on a firm doctrinal foundation
and be made subject to clear limits and should occur “in very limited
circumstances” (p. 169).

3.     The only justification for its application is the preservation of the
integrity of the legal system. This concern is only in issue where a damage
award in a civil suit would allow a person to profit from illegal or wrongful
conduct or would permit evasion or rebate of a penalty prescribed by the
criminal law (p. 169).

It would, in short,
introduce an inconsistency in the law. It is particularly important in this
context that we bear in mind that the law must aspire to be a unified
institution, the parts of which — contract, tort, the criminal law — must be in
essential harmony. For the courts to punish conduct with the one hand while
rewarding it with the other, would be to “create an intolerable fissure in the
law’s conceptually seamless web”: Weinrib, supra, at p. 42. We thus see
that the concern, put at its most fundamental, is with the integrity of the
legal system. [p. 176]

4.     The ex turpi doctrine generally does not preclude an award of
damages in tort because such awards tend to compensate the plaintiff rather
than amount to “profit”:

Such damages
accomplish nothing more than to put the plaintiff in the position he or she
would have been in had the tort not occurred. … [A plaintiff should get] only
the value of, or a substitute for, the injuries he or she has suffered by the
fault of another. He or she gets nothing for or by reason of the fact he or she
was engaged in illegal conduct. [pp. 176-77]

5.     The ex turpi doctrine is a defence in a tort action. The
plaintiff’s illegal conduct does not give rise to a judicial discretion to
negate or refuse to consider the duty of care which goes to the relationship
between a plaintiff and a defendant. It is independent of that relationship.
The defendant may have caused harm by acting wrongly or negligently, but the “responsibility
for this wrong is suspended only because concern for the integrity of the legal
system trumps the concern that the defendant be responsible” (pp. 181-82).

6.    
Treating the ex turpi doctrine as a defence
places the onus on the defendant to prove the illegal or immoral conduct that
precludes the plaintiff’s action. And as a defence, it allows for segregation
between claims for personal injury and claims that would constitute profit from
illegal or immoral conduct or the evasion of or a rebate of a penalty provided
by the criminal law.

[89]        
Various academics have taken different views on the applicability of the
doctrine in personal injury cases in light of the Supreme Court’s decision in Hall.
In Allen M. Linden & Bruce Fieldthusen, Canadian Tort Law, 9^th
ed. (Markham, Ont.: LexisNexis Canada, 2011) the writers interpret Hall to
mean that ex turpi is “no longer available at all in personal injury
cases, for there is no profit in receiving compensation for injury” (at 533).
The opposite view is espoused in G.J.L. Fridman, The Law of Torts in Canada,
3d ed. (Toronto: Carswell, 2010), where Fridman states that in a mutual fight
between two willing participants, “the defendant can rely not only on the plea
of consent but also on the maxim ex turpi causa” where consent is not
available (at 89), but “the damage suffered by the plaintiff must be a direct
and readily foreseeable result of the criminal purpose of the plaintiff” (at
102). Finally, in Lewis N. Klar, Tort Law, 5^th ed. (Toronto:
Thomson Reuters Canada, 2012), the author takes a more pragmatic approach,
noting that though a defence in the case of mutual fights can be
grounded on the basis of either the defence of consent or illegality, the
defence of illegality was severely curtailed by Hall (at 135), and as
such it is “now very unlikely that the defence of illegality can be
successfully used in personal injury cases to deny compensation to a wrongdoing
plaintiff” (at 567).

[90]        
I do not read Hall as foreclosing entirely the possibility that ex
turpi can ever be invoked in a personal injury claim, however it is clear
that the doctrine has limited application and is restricted to those cases in
which the damages claimed can clearly be characterized as profits for the
plaintiff’s illegal conduct.

[91]        
That is not the case here. While I have found that Mr. Pacheco was the
aggressor in the Incident, his claim for damages arises not as a direct result
of his own illegal or immoral conduct, but by reason of the battery committed
by Mr. Degife. As such, the doctrine of ex turpi has no application.

Volenti

[92]        
The doctrine of volenti non fit injuria, otherwise known as
voluntary assumption of risk, is premised on the “moral supposition that no
wrong is done to one who consents” and, because it is a complete bar to
recovery, courts have found it “only applies in situations where the plaintiff
has assumed both the physical and legal risk involved in the activity” (Crocker
v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186 at 1201-1202).

[93]        
To establish volenti, it must be “clear that the plaintiff,
knowing of the virtually certain risk of harm, in essence bargained away his
right to sue for injuries incurred as a result of any negligence on the
defendant’s part” (Dube v. Labar, [1986] 1 S.C.R. 649 at 658). The test
was further explained by the Court in Dube as follows (658-659):

The acceptance of the risk may be express or may arise by
necessary implication from the conduct of the parties, but it will arise, in
cases such as the present, only where there can truly be said to be an
understanding on the part of both parties that the defendant assumed no
responsibility to take due care for the safety of the plaintiff, and that the
plaintiff did not expect him to.

…To permit the defence to
succeed on facts showing merely that the plaintiff knew of the risk and yet
chose to undergo it is inconsistent with the decisions of this Court, supra,
which require not merely knowledge, but express or necessarily implied
acceptance of the risk of harm without recourse to law by the plaintiff, along
with an inference that the defendant, for his part, took no responsibility for
the plaintiff’s safety.

[94]        
The doctrine of volenti is more frequently considered in the
context of an action for negligence causing personal injury. In terms of
intentional torts, specifically battery, the same doctrine is typically
referred to as the defence of consent (Fridman, The Law of Torts in Canada
at 99). The difference between the two concepts, as described by Klar at 128,
is the difference between actually consenting to being struck versus engaging
in an activity in which one assumes the risk of being struck by virtue of the
nature of the activity.

[95]        
The defence of consent to physical interference must be established by
the defendant (Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000
SCC 24 at paras. 3-6), and, whether express or implied, is a complete defence
to battery where the consent is genuine and freely given (Norberg v. Wynrib,
[1992] 2 S.C.R. 226 at 246-247).

[96]        
It has been held that those who engage in mutual fights cannot complain
of injuries suffered in the course of the fight, unless the force which is used
by one of the combatants is excessive or unnecessary (Klar, Tort Law at
134).

[97]        
In the case at bar, it is again clear that Mr. Pacheco instigated the
Incident and was the aggressor. Thus, on the evidence, it can be said that he
engaged in a voluntary physical confrontation first with Mr. Degife, immediately
following the collision, and then in his pursuit and attack of Mr. Wong.

[98]        
However, at the time he was struck, Mr. Pacheco was not physically
engaged with either Mr. Degife or Mr. Wong and, in fact, had his back turned to
Mr. Degife. Further, even if it could be said that he engaged in consensual
fisticuffs with Mr. Degife, that does not necessarily translate into consent to
be struck with a weapon. See for example Dolson v. Hughes, 107 D.L.R.
(3d) 343, [1979] B.C.J. No. 832 where Taylor J. found the defence of volenti
inapplicable in circumstances where the plaintiff initiated a fist fight and
was struck in the face with a broken beer bottle by the defendant.

[99]        
I find that the defence of consent is not available to Mr. Degife. However,
as will be seen below, the fact that Mr. Pacheco created the risk of harm by violently
instigating the Incident, is relevant as a mitigating factor in the assessment
of damages.

Self Defence

[100]    
The onus of proving justification for a counter assault and proving that
the force used was not excessive rests on the defendant. This was addressed by
the Supreme Court in the case Mann v. Balaban et al, [1970] S.C.R. 74,
where the court held the following (at 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.

[101]    
See also Thomson v. Friedmann, 2008 BCSC 703, aff’d 2010 BCCA
277, where the court quoted Professor Fridman’s explanation of the defence at
para. 17:

Self defence imports the idea
that the defendant is under attack at the hands of the plaintiff, or reasonably
believes that he will be subject to such an attack, even if the plaintiff has
neither the intention nor the power to make such an attack. Even if the
circumstances entitle the defendant to claim he was acting in self defence, he
cannot escape liability unless he discharges the burden of proving that the
amount of force he used was reasonable in all the circumstances. This will
depend on the court’s assessment of the situation, taking into account the form
and nature of the plaintiff’s attack on the defendant and the reasonableness of
the response of the defendant.

[102]     As Mr.
Degife led no evidence, it cannot be said that he satisfied the burden on him
to prove that in striking Mr. Pacheco with a baseball bat from behind he was
acting out of an instinct of self-preservation and used no more force than was
necessary in the circumstances. As such, he has not satisfied the onus on him
of establishing the defence of self-defence.

Provocation

[103]    
Section 1(1) of the Negligence Act, R.S.B.C. 1996, c. 333
provides:

If by the fault of 2 or more
persons damage or loss is caused to one or more of them, the liability to make
good the damage or loss is in proportion to the degree to which each person was
at fault.

[104]     “Fault” as
used in this section has been interpreted to apply not only to negligence actions
but also to intentional torts like battery (Valerio v. Silveira, 2011
BCSC 1055 at para. 207). Thus, where a plaintiff provokes an assault or battery
by reasons of his or her own conduct, the plaintiff may be found at fault,
leading to an apportionment of liability under s. 1.

[105]    
In Bruce v. Coliseum Management Ltd, 165 D.L.R. (4^th)
472, [1998] B.C.J. No. 2339 at para. 18 (C.A.) the court adopted the definition
of provocation in Canadian Tort Law as follows:

In A.M. Linden, Canadian Tort Law, 6th ed. (Vancouver:
Butterworths, 1997) at 81, provocation is explained as follows:

In order to amount to provocation, the conduct of the
plaintiff must have been "such as to cause the defendant to lose his power
of self-control and must have occurred at the time of or shortly before the
assault." Prior incidents would have relevance only "if it were
asserted that the effect of the immediate provocative acts upon the defendant’s
mind was enhanced by those previous incidents being recalled to him and thereby
inflaming his passion". One cannot coolly and deliberately plan to take revenge
on another and expect to rely on provocation as a mitigating factor.

[106]     The court
endorsed the analysis and findings of the Newfoundland Court of Appeal in Hurley
v. Moore (1993), 107 D.L.R. (4^th) 664 (Nfld. C.A.) where it held
that provocation does not operate as a defence but is a factor to be considered
in assessing damages; see also Kuehn v. Hougen, 1997 ABCA 325, [1997]
A.J. No. 982.

[107]     Valerio
involved an alleged battery between ex-spouses. The court held that the
initial battery (the defendant grabbing the plaintiff’s wrist) arose as a
result of the plaintiff refusing to stop throwing away the defendant’s personal
items, and was escalated by the plaintiff kicking the defendant, who grabbed
her foot in response leading to her injuries. The court found that s. 1 of the Negligence
Act applied, and held the plaintiff  25% responsible for her injuries.

[108]    
Similarly, in Adkens v. Hunter, 2003 BCSC 97, the plaintiff was
found 25% responsible for the injuries he suffered as a result of a vicious
attack by the defendant by reason of the plaintiff’s provocative conduct. In
coming to this conclusion, Slade J. held that the loss of self-control
necessary to establish provocation may be inferred from the evidence:

[104]    Where clear evidence of provocative behaviour by a
victim of assault is present, the loss of self-control on the part of the
assailant may be inferred (Bruce v. Coliseum Management Ltd., [1998]
B.C.J. No. 2339, at para. 20).

[105]    Such an inference cannot
be made if it is contrary to the evidence. There is clear evidence of
provocative behaviours, including implied threats, on the part of Mr. Adkens.
These would naturally have been on Mr. Hunter’s mind as he walked away from the
Adkens residence with Mr. Adkens in pursuit.

[109]     In Bruce,
the plaintiff was found 30% responsible for his injuries because he
initiated the confrontation with the defendant bouncer at a bar, who in turn
responded with disproportionate force.

[110]     In the
case at bar, there is no evidence from Mr. Degife about his state of mind. However,
there is clear evidence of extensive provocative behaviour on the part of Mr.
Pacheco. As noted, he instigated the Incident by bumping his car into the rear
of the Eclipse, either on purpose or as a result of following too closely
behind in an attempt to intimidate the occupants of the Eclipse, he engaged the
much smaller Mr. Degife in a fist fight, he, along with Mr. Herada, pursued and
beat senseless Mr. Wong and, when he returned to his car, he beat on the
Eclipse.

[111]     In the
circumstances, a loss of self-control on the part of Mr. Degife is easily
inferred. It is true that the physical confrontation between Mr. Degife and Mr.
Pacheco had ended by the time that Mr. Pacheco was struck but, on the evidence,
the entire Incident happened very quickly and the degree of violence exhibited
by Mr. Pacheco throughout was significant, particularly his stomping Mr. Wong’s
head into the curb. Thus, it cannot be said that Mr. Degife’s actions in
striking Mr. Pacheco were “cool and deliberate” so as to eliminate provocation
as a mitigating factor.

[112]     In Valerio
and Adkens, the plaintiffs were found 25% liable for their provocative
conduct. In Bruce, the plaintiff was found 30% liable. The conduct of Mr.
Pacheco here was far more egregious than the conduct of the plaintiffs in those
cases. As noted in paragraph 63 above, it is fair to characterize Mr. Pacheco
as the principal author of his own misfortune. As such, he bears primary
responsibility for his injuries. That said, Mr. Degife is not entirely
blameless, as he chose to swing a bat at Mr. Pacheco’s head when Mr. Pacheco
had his back turned.

[113]     Taking all
of the circumstances into account, I find that Mr. Pacheco is 75% liable and
Mr. Degife 25% liable for Mr. Pacheco’s injuries.

Damages

[114]     Mr.
Pacheco claims the following damages:

a)    $125,000 in
non-pecuniary damages;

b)    $15,000 for past
wage loss;

c)     $50,000
for loss of future earning capacity;

d)    $5,000 for the
cost of future care; and

e)    $11.34 in special
damages.

[115]     In
addition, Mr. Pacheco seeks recovery of $13,636.02 on behalf of the Ministry of
Health pursuant to the Health Care Costs Recovery Act, S.B.C. 2008, c.
27 (the “HCCRA”).

The Plaintiff’s Evidence

[116]     Mr.
Pacheco said that he was in the hospital for about a week. He experienced
considerable pain in his face and head. When he returned home, he was still in
a great deal of pain. He said that for the next few months he largely stayed at
home to rest, sleeping 12 or more hours per day.

[117]     He
attended treatment at Vancouver Coastal Health’s post-concussion clinic where
he was given exercises to help with his brain function. He said that he was
experiencing dizziness and memory problems. He was also sensitive to bright
light which is also why he stayed at home following the Incident.

[118]     On the
recommendations he received at the post-concussion clinic, he tried to deal
with his memory issues by writing things down in a notebook. He said that he
still experiences periodic memory problems.

[119]     Mr.
Pacheco testified that prior to the Incident, he spent his leisure time going
out with friends to the beach, swimming at the lake and playing football and
baseball. Since the Incident, he no longer goes out to bars or night clubs as
he said he does not want to put himself in a position where something similar
could occur again. He is back playing baseball with friends and he likes to
fish, which he finds relaxing.

[120]     Mr.
Pacheco had a girlfriend at the time of the Incident who he had dated for about
a year and a half. That relationship ended two or three months after the
Incident. Mr. Pacheco partly blames the injuries he suffered in the Incident
for the break up. He said he rarely went out and even found talking on the
phone difficult.

[121]     He has a
new girlfriend now with whom he has been in a relationship for about a year and
a half.

[122]     Mr.
Pacheco testified as to his earnings history. In 2002 and 2003 he recorded no
income and from 2004-2007 he did not file income tax returns. Mr. Pacheco
admitted on cross-examination that prior to 2008, he largely earned income
through the sale of illegal drugs. At some point prior to 2008, he spent four
months in jail.

[123]     In 2008,
he reported $20,312 in gross business income. This was from a painting business
that he started with a friend under the name Brothers Different Colours
Painting Ltd. His net income was reported as $7,927, subsequently revised to
$7,316.

[124]     Mr.
Pacheco did not file an income tax return in 2009.

[125]     In 2010,
he reported total income of $9,802. That comprised approximately $8500 earned
working in a greenhouse and a further $1,300 working as a movie extra.

[126]     In 2011,
the only income he reported was $1,350 earned delivering appliances for Legion
Transport Ltd.

[127]     In 2012 he
reported just under $18,000 in income derived from ongoing work with Legion
Transport and work installing kitchen cabinets.

[128]     In 2013,
he reported total income of $21,055, comprising just over $18,000 in employment
income and about $2,600 in employment insurance benefits. The employment income
came from work at Grier Sprayfoam Contracting, a company that does spray
insulation and fireproofing.

[129]     Also in
late 2013, Mr. Pacheco completed a course in civil structural drafting at
Vancouver Community College. He says he hopes to get work in this field at some
point but has been unsuccessful so far due to a lack of experience.

[130]     With
respect to the painting business, Mr. Pacheco testified that he tried to return
to painting a few months after the accident but he had difficulty climbing
ladders due to his dizziness. His partner therefore took on more of the work. This
ultimately led to a disagreement about who would be paid what and they ended up
terminating the business.

[131]     As can be
seen from his earnings history, he has largely had odd jobs since.

The Medical Evidence

[132]     Mr.
Pacheco tendered three expert reports, one dated March 26, 2014 from his family
physician, Dr. Martinez, and two reports dated December 27, 2010 and May 19,
2012 from a neuropsychologist, Dr. Cohen.

[133]     The
reports were served in accordance with the Rules and neither doctor was
required to attend for cross examination. Accordingly, the three reports were
admitted into evidence pursuant to Rule 11-7(2)(b)(ii).

[134]     Both
doctors opine that Mr. Pacheco suffered a mild Traumatic Brain Injury (“TBI”) as
a result of the Incident.

[135]     Dr.
Martinez notes in his report that Mr. Pacheco consulted him on July 18, 2008
following his discharge from hospital. He recorded Mr. Pacheco complaining of
mild headaches but he denied experiencing any balance issues, dizziness or
visual problems. According to Dr. Martinez, Mr. Pacheco’s neurological
examination was normal.

[136]     Mr.
Pacheco was next seen on September 12, 2008. Dr. Martinez notes in his report
that Mr. Pacheco “was alert, orientated to person, time and place, and he had a
completely normal neurological examination.”

[137]     Dr.
Martinez states in his report that after the September 12, 2008 visit, he saw
Mr. Pacheco several times between that date and January 13, 2013 for reasons
unrelated to his injuries. He conducted a telephone interview with Mr. Pacheco
on March 26, 2014 for the purpose of preparing his report.

[138]     During
that telephone interview, Mr. Pacheco apparently reported symptoms of decreased
concentration, recurrent episodes of mild postural dizziness, problems with
“word finding” and the need for more sleep.

[139]     Dr.
Martinez notes in his report, under the heading of prognosis, a concern for
increased possibility of epilepsy after a TBI, particularly where the patient
suffered a subdural hematoma as did Mr. Pacheco. He also noted an increased
risk of developing Parkinson’s disease.

[140]     These were
general observations as Dr. Martinez did not note any symptoms of those
afflictions in Mr. Pacheco. In fact, as of the date of his report, Dr. Martinez
had not seen Mr. Pacheco in connection with his injuries for approximately five
and a half years.

[141]    
Dr. Cohen provided two very detailed reports. His first report, dated
December 27, 2010, sets out the results of extensive testing that Dr. Cohen
conducted. At page 20 of his report, Dr. Cohen provides the following summary:

Mr. Pacheco presents with largely intact cognitive
functioning on a range of cognitive tests. Globally, both Enrique’s IQ and
memory capacity are at least Average. Executive functioning was largely
intact as well, with no marked deficits in deductive or conceptual reasoning,
sequencing, or verbal fluency and output more generally. However, siginificant
deficits in visual working memory, visual sustained attention and visual
response control were observed. In the main, these were the principal cognitive
deficits recorded in the present assessment.

The present findings are for the
most part consistent with Mr. Pacheco’s report that he is not currently
experiencing extensive cognitive difficulties and that he has returned to his
previous level of functioning. The present findings do however suggest deficits
in visual attention in particular.

[142]    
At page 22 of his report, Dr. Cohen states that the identified cognitive
deficits “do not appear to have resulted in broad effects on Mr. Pacheco’s
daily functioning.”  However, he goes on to note that the identified deficit in
visual memory and attention may impact his ability to learn and maintain new
information. In terms of the effect on Mr. Pacheco’s employability, Dr. Cohen
opines at page 26:

From a cognitive perspective
however, I would not anticipate that the presently identified deficits would
affect Mr. Pacheco’s capacity to perform most tasks associated with his more
recent employment roles, such as painting, general construction labour, or the
type of greenhouse work he described to me on interview. Therefore, overall Mr.
Pacheco’s prognosis for continued adequate functioning within his current work
is generally positive. However, difficulties with visual attention may result
in errors on novel visual tasks, when otherwise reading or learning new skills,
jobs or task that require attention to visual details, and/or when completing
some clerical jobs. The degree to which the presently identified deficits might
affect Mr. Pacheco’s future employability would therefore depend on to the type
of and to what degree he engages in vocational training.

[143]     Dr.
Cohen’s second report, dated May 19, 2012 followed an updated assessment of Mr.
Pacheco on December 8, 2011.

[144]     While the
second report reiterates much of what was set out in the original report, Dr.
Cohen notes Mr. Pacheco reporting some cognitive difficulties experienced
during the drafting program that he took at Vancouver Community College. Specifically,
he records Mr. Pacheco as saying that he struggled to learn new information and
that he required help from a tutor.

[145]    
In his conclusions in the second report, Dr. Cohen states:

Test findings reveal that Mr.
Pacheco presents with largely intact cognitive functioning in most respects, at
least as measured on the present tests. Average range memory skills were
present for the most part, with Enrique demonstrating High Average
overall visual memory. Visual Working memory is adequate, but significantly low
for an individual with his visual memory capacity.

[146]    
With respect to Mr. Pacheco’s employability, Dr. Cohen states:

With respect to vocational
capacity, Mr. Pacheco remains with mild cognitive difficulties as revealed by
the assessment findings, and there would therefore be at least some potential
concerns about his employment prognosis over the longer term. I note that
Enrique is reporting that he is coping in his vocational training program,
albeit with extra help and effort, in his current college program. Mr.
Pacheco’s cognitive weaknesses would therefore likely affect his work
performance to a limited degree only. I would describe his prognosis with
respect to vocational capacity as overall positive, with only some mild
concerns about his ability to keep up with new learning. Principally, as noted
above it may take Enrique longer and require more effort for him to learn and
retain new vocational skills. It is possible that this could in turn affect
such aspects of his employment as advancement or promotions.

[147]     Thus, as I
read Dr. Cohen’s opinions, Mr. Pacheco’s cognitive functioning is largely
intact subject to some mild degree of deficit with visual working memory and
attention functioning which may impede his ability to process new information.

[148]     One thing
that is lacking in Dr. Cohen’s reports is a clear opinion that the ongoing
deficits were caused by the battery with the baseball bat. Dr. Cohen did not
have available to him information that would have enabled him to measure Mr.
Pacheco’s visual memory and attention functioning baseline, as evidenced by his
comment at the end of his first report that it would be helpful to have
collateral information from family members to better assess any changes to Mr.
Pacheco’s cognitive functioning after the Incident.

Non-Pecuniary Damages

[149]     Mr.
Pacheco cites Zhang v. Law, 2009 BCSC 991, and Traynor v. Degroot, 2002
BCSC 441, in support of his claim for non-pecuniary damages in the amount of
$125,000.

[150]     In Zhang,
the court awarded $125,000 to a plaintiff who suffered serious injuries,
including depression that was subsequently exacerbated by tragedy in the
plaintiff’s personal life. The combined effect of the physical and emotional
symptoms had a profound impact on the plaintiff’s life.

[151]     In Traynor,
the court awarded $120,000 to a young woman, 22 years old at the time she was
struck by a taxi while crossing the street, who suffered a significant
traumatic brain injury as well as various fractures.

[152]     In my
view, the Zhang and Traynor decisions are of little assistance in
that the injuries suffered by the plaintiffs in those cases are far more severe
than those suffered by Mr. Pacheco.

[153]    
Counsel for Mr. Wong referred me to Moore v. Briggs, 2011 BCSC
599, where Madam Justice Dillon awarded the plaintiff $40,000 in non-pecuniary
damages following an assault. Madam Justice Dillon described the plaintiff’s
injuries as follows:

[4] The plaintiff remained in hospital for two weeks
following the assault. Initially, he could not walk or eat. He had severe pain
in his head and neck. He could not talk properly.

[5] Following release from hospital, the plaintiff stayed
with his mother who took two weeks off work as a care aid to look after her son.
The plaintiff suffered headaches, numbness in his neck, and vomiting. He
required assistance with walking and personal care. After these two weeks, he
was able to maintain food but could not walk without assistance for another
month. He had dizziness when he looked downwards.

[11] As a result of the assault, the plaintiff continues to
have some problem with memory. This has improved over time such that it does
not interfere with work or enjoyment of life, but still lingers. He also has
difficulty with attention span and focus. He continues to have almost daily
headaches. These often interrupt his sleep. He noticed that eye near the
indentation in his temple was “lazy”, a couple of times a week at first and now
hardly noticeable.

[12] For about four years after
the assault, the plaintiff had problems with balance such that he could not
walk a straight line and was dizzy when he looked down.

[154]     Madam
Justice Dillon reviewed a number of cases, including three assault cases, Matthew
v. Tattrie, 2009 BCSC 263,Coutts v. Truong, 2000 BCSC 1561 and Sage
v. Renner, 2007 BCSC 1357, in arriving at her determination of $40,000 in
non-pecuniary damages.

[155]     Awards of
non-pecuniary damages in other cases provide a useful guide to the court,
however the specific circumstances of each individual plaintiff must be
considered as any award of damages is intended to compensate for the pain and
suffering experienced by that person. Moreover, the compensation award must be
fair and reasonable to both parties; see Miller v. Lawlor, 2012 BCSC 387
at para. 109 citing Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229, and Trites v. Penner, 2010 BCSC 882 at paras. 188 – 189.

[156]    
The factors that the court must consider when assessing non-pecuniary
damages are well known and have been set out in a number of cases, including by
the Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34 at para. 46. I
have taken those factors into consideration.

[157]     The
evidence in this case establishes that Mr. Pacheco suffered a mild TBI when he
was struck with the bat. He was taken to hospital by ambulance where he
remained for a week. On his release, he largely stayed home for a few months as
a result of his symptoms, which included dizziness and memory loss. He was
treated at the Vancouver Coastal Health post-concussion clinic where he was
provided with exercises to assist with his memory issues.

[158]     By
September 2008, approximately three months after the Incident, he reported to
Dr. Martinez that he was completely asymptomatic.

[159]     Dr. Cohen
again notes minimal cognitive impairment with the exception of a mild deficit
in visual attention and memory, which Dr. Cohen says does not limit Mr. Pacheco
in his activities of daily life.

[160]     Mr.
Pacheco has modified his activities somewhat as a result of the Incident. For
example, he says that he no longer goes to night clubs as he does not want to
put himself in a position where something similar could occur again. He is back
playing baseball with his friends and he enjoys fishing. He also claims some
lingering memory problems.

[161]     On the
evidence, Mr. Pacheco’s injuries and their lingering effects are significantly
less severe that those suffered by the plaintiff in Moore, who was
awarded $40,000 in non-pecuniary damages. Taking all of the circumstances into
account, I find that a reasonable award of non-pecuniary damages for Mr.
Pacheco is $30,000.

Past Wage Loss

[162]     Counsel
for Mr. Pacheco concedes that quantification of past income loss is difficult
given Mr. Pacheco’s earning history but submits that $15,000 is a reasonable award.

[163]     As noted
above, there is no evidence of any income earned in the years prior to 2008. That
year, Mr. Pacheco started the painting business with his friend and reported
gross business income of approximately $20,000, with a net income of
approximately $7,300.00.

[164]     Mr.
Pacheco testified that he missed at least a couple of months of work at the painting
business and that when he returned he could not climb ladders. He said that the
fact that his partner had to pick up the slack for him led to the dissolution
of the business.

[165]     However,
there is no evidence on which the court can quantify any wage loss during that
period as there is no evidence as to how Mr. Pacheco was paid, how income was
divided between him and his partner or whether they lost business as a result
of first his absence and then later his alleged diminished ability to work.

[166]     As also noted
above, Mr. Pacheco’s subsequent work history is spotty. He did not file an
income tax return in 2009 and said that he does not remember if he worked that
year. In 2010, he reported income of $9,802, largely earned working in a green
house, but in 2011 his reported income dropped to $1,350.

[167]     His most
remunerative years, at least in terms of reported income, were 2012 when he
earned approximately $18,000 and 2013 when he earned approximately $21,000. In
2013 he was also going to school for his drafting course.

[168]     Mr.
Pacheco did not testify that he is unable to find work in the drafting field as
a result of his injuries suffered in the Incident but rather because he lacks
experience. Apart from the few months that he missed painting right after the
Incident, Mr. Pacheco has provided no evidence of any actual income loss, or of
any lost opportunity to earn income, due to the injuries suffered in the
Incident.

[169]     In short,
the evidence does not establish that Mr. Pacheco has suffered an identifiable
past wage loss and I decline to award him damages under this head.

Loss of Future Earning Capacity

[170]    
The principles governing an assessment of damages for lost earning
capacity are well described by Mr. Justice Voith in Brewster v. Li, 2013
BCSC 774:

[142] The legal
framework for the assessment of the plaintiff’s future wage loss claim has been
described numerous times. The decision of Reilly v.
Lynn, 2003 BCCA 49, 10 B.C.L.R. (4th) 16 contains a
useful summary of some of the principles and approaches that are to be used when
assessing future earning capacity:

[100] An award for
loss of earning capacity presents particular difficulties. As Dickson J. (as he
then was) said, in Andrews v. Grand & Toy Alberta Ltd.,
[1978] 2 S.C.R. 229 at 251:

We must now gaze more deeply into
the crystal ball. What sort of a career would the accident victim have had?
What were his prospects and potential prior to the accident? It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made: The Queen v. Jennings, supra. A capital asset has
been lost: what was its value?

[101] The relevant
principles may be briefly summarized. The standard of proof in relation to
future events is simple probability, not the balance of probabilities, and
hypothetical events are to be given weight according to their relative
likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27. A
plaintiff is entitled to compensation for real and substantial possibilities of
loss, which are to be quantified by estimating the chance of the loss
occurring: Athey v. Leonati, supra, at para. 27, Steenblok
v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of
the loss of earning capacity may involve a comparison of what the plaintiff
would probably have earned but for the accident with what he will probably earn
in his injured condition: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the inquiry; the
overall fairness and reasonableness of the award must be considered: Rosvold
v. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder
v. Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of
the Court is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
(C.A.). Finally, since the course of future events is unknown, allowance must
be made for the contingency that the assumptions upon which the award is based
may prove to be wrong: Milina v. Bartsch, supra, at 79. In
adjusting for contingencies, the remarks of Dickson J. in Andrews v.
Grand & Toy Alberta Ltd., supra, at 253, are a useful guide:

First, in many respects, these contingencies implicitly are
already contained in an assessment of the projected average level of earnings
of the injured person, for one must assume that this figure is a projection
with respect to the real world of work, vicissitudes and all. Second, not all
contingencies are adverse … Finally, in modern society there are many public
and private schemes which cushion the individual against adverse contingencies.
Clearly, the percentage deduction which is proper will depend on the facts
of the individual case, particularly the nature of the plaintiff’s occupation,
but generally it will be small[.][Underlining added in Reilly v. Lynn.]

[171]    
In Morgan v. Galbraith, 2013 BCCA 305, the Court of Appeal,
citing its earlier decision in Perren v. Lalari, 2010 BCCA 140,
described the approach to be taken by the trial judge when assessing a claim
for loss of future earning capacity. Madam Justice Garson stated at para.
53:

…in Perren, this Court
held that a trial judge must first address the question of whether the
plaintiff had proven a real and substantial possibility that his earning
capacity had been impaired. If the plaintiff discharges that burden of proof,
then the judge must turn to the assessment of damages. The assessment may be
based on an earnings approach…or the capital asset approach

[172]     As I
understand Mr. Pacheco’s position, the loss of earning capacity claim is based
largely on the fact that he lost the painting business when he and his partner
could not agree on how to divide the money after Mr. Pacheco’s return to work.
He attributes the loss of the business to the symptoms resulting from his
injuries.

[173]     Mr. Pacheco
testified that they started the painting business in 2008. While no exact date
was given, presumably it was in the spring some time before the Incident on May
31, 2008. As noted, Mr. Pacheco reported gross income from that business for
all of 2008 of approximately $20,000 but there was no evidence of where that
figure came from apart from Mr. Pacheco’s vague testimony that they had
painting jobs throughout 2008.

[174]     In his
evidence, Mr. Pacheco identified only one specific painting job that the
business had, that being a car wash on First Avenue. However, there was no
evidence of any other jobs that they had lined up and no basis on which the
court can assess whether the business would in fact have continued and, if so,
how much Mr. Pacheco would have earned.

[175]     In any
event, Dr. Martinez again reports that Mr. Pacheco was free of symptoms by September
2008 and Dr. Cohen opined that Mr. Pacheco has no vocational limitations in his
current chosen fields of employment.

[176]     Mr.
Pacheco did testify that he had some difficulty with the course work in the
drafting program and that he required the assistance of a tutor. However, he
did successfully complete that program. He also said in his evidence that he
likely would have had difficulty with the program regardless of the injuries
from the Incident given that he has always had difficulty with math.

[177]     Mr.
Pacheco’s recent spotty employment history is unrelated to his injuries from
the Incident. Again, he said that he has not found drafting work due to lack of
experience. The job he had in 2013 for Grier Sprayfoam ended because he thought
there was no opportunity for advancement.

[178]     Taking all
of the evidence into account, Mr. Pacheco has not proven a real and substantial
possibility that his earning capacity has been impaired and I decline to award
damages under this head.

Cost of Future Care

[179]     Mr.
Pacheco claims $5,000 for the cost of future care. He submits that the basis
for this claim is found in Dr. Cohen’s reports. For example, in his first
report, Dr. Cohen states that Mr. Pacheco would benefit from Occupational
Therapy support given his “possible” need to address his ongoing cognitive
difficulties.

[180]     In his
second report, Dr. Cohen notes the “potential” need for a moderate level of
psychotherapy support if Mr. Pacheco were to develop symptoms of depression or
poor social adjustment.

[181]     On the
evidence, Mr. Pacheco has not sought treatment for any injuries suffered in the
Incident since he last saw Dr. Martinez in September of 2008. Further, Dr.
Cohen’s recommendations are based on the possibility of Mr. Pacheco needing
treatment in the future if his condition changes. I do not read Dr. Cohen’s
reports as recommending specific treatments to address the injuries that Mr.
Pacheco suffered in the Incident.

[182]     In my
view, Mr. Pacheco has not established that he is entitled to damages for the
cost of future care.

Special Damages

[183]     The only
special damages claim is $11.34 for pain medication following the Incident. That
claim is not contested.

The HCCRA Claim

[184]     I now turn
to the claim under the HCCRA. In support of that claim, Mr.
Pacheco has filed a Minister’s certificate under s. 16 of that Act establishing
health care costs incurred of $13,636.02.

[185]     A very
helpful review of the HCCRA can be found in MacEachern v. Rennie, 2009
BCSC 652. Essentially, the statute creates a mechanism by which the provincial
government can recover the costs of health care services provided to a
beneficiary under the Medicare Protection Act, R.S.B.C. 1996, c. 286,
resulting from the negligence or wrongful act of another person.

[186]     Section 2
of the HCCRA establishes a beneficiary’s right of recovery and s. 3 obliges a
plaintiff who commences a legal proceeding for damages for personal injury to
include a claim under the HCCRA. That is what occurred in this case. Independent
of this obligation, the government is empowered under s. 8 to commence its own
action for recovery of such health care costs.

[187]     I have not
been referred to any cases in which the court has considered a situation, as in
the case at bar, where liability has been apportioned between the person who
incurred the health care costs i.e. the beneficiary, and the person who caused
the injuries, i.e. the wrongdoer.

[188]     Section 17
of the HCCRA provides that where it is determined in a legal proceeding that
the personal injury of a beneficiary was caused, in whole or in part, by the
negligence or wrongful act or omission of two or more wrongdoers, those
wrongdoers are jointly and severally liable for the percentage of the health
care costs that is equal to the percentage of fault attributable to them.

[189]     That
section has no application here as the definition of “wrongdoer” expressly
excludes the beneficiary who received the health care services.

[190]     As noted, s.
2(1) of the HCCRA establishes the beneficiary’s right to recover from a
wrongdoer. Section 2(2) provides that this right exists “whether or not the
personal injury was caused in whole or in part by the wrongdoer.”  Thus, the
fact that Mr. Degife was found only 25% liable for Mr. Pacheco’s injuries does
not preclude a claim under the HCCRA.

[191]     However, I
do not read s. 2(2) as making a wrongdoer 100% liable for the health care costs
where, as here, the wrongdoer has been found only partially liable for the
injuries giving rise to the costs. Rather, the HCCRA is silent on that point.

[192]     In the
circumstances, it is in my view appropriate to apply, by analogy, the
principles of apportionment drawn from the Negligence Act, R.S.B.C. 1996,
c. 333. Pursuant to ss. 1 and 2 of that Act, where a plaintiff is found
to be contributorily negligent, he or she may recover from the defendant
wrongdoer only that proportion of the loss that corresponds to the defendant’s
fault. Under s. 4 of the Act, if the plaintiff is blameless and there are two
or more wrongdoers, those wrongdoers are jointly and severally liable for the
whole of the plaintiff’s loss (Leischner et al. v. West Kootenay Power &
Light Ltd. et al. (1986), 24 D.L.R. (4th) 641, 70 B.C.L.R. 145 (C.A.).

[193]     In the
case at bar, the plaintiff Mr. Pacheco has been found to be 75% responsible for
his injuries and Mr. Degife 25%. I therefore find Mr. Degife liable for 25% of
the HCCRA claim, or $3,409.00.

[194]     Under s.
20(1) of the HCCRA, the court is obligated to designate the amount of any
judgment applicable to the health care costs recovery claim. Thus, for the
purposes of section 20(1), the designated amount is $3,409.00.

[195]     Under s.
20(2), the designated amount is a debt due to the government by Mr. Degife.

[196]     Under s.
20(3), if the amount of the debt has been paid out as part of the judgment, the
person receiving the funds holds them in trust for the government. However, the
HCRRA does not direct that the health care costs recovery amount must be paid
to the plaintiff as part of the judgment.

[197]     Accordingly,
on the unique facts of this case, the appropriate approach in my view is to
designate the sum of $3,409.00 as the amount applicable to the health care
costs recovery claim in accordance with s. 20 of the HCCRA, but to exclude it
from the amount payable by Mr. Degife to Mr. Pacheco.

[198]     It will
then be open to the government to determine whether it wishes to pursue
recovery of this debt from Mr. Degife. I note that the government has a broad
discretion as to whether to pursue claims under the HCCRA. For example, while s.
6(1) authorizes the government to intervene in a proceeding in which there is a
health care services claim and/or to assume conduct of that claim, s. 6(2)
provides that the government may “as it sees fit, pursue, discontinue or settle
all or any part of the health care services claim.”

Mr. Degife’s Counterclaim

[199]     Mr. Degife
brought a counterclaim against Mr. Pacheco seeking damages for the injuries he says
that he sustained as a result of being assaulted by Mr. Pacheco.

[200]     Pursuant
to Rule 3-4, a counterclaim is to be heard at the same time as the main action,
unless an order to the contrary is issued under Rule 3-4(7.1). Here, there was
no such order thus Mr. Degife’s counterclaim was before the court.

[201]     Mr. Degife
provided no evidence of any injuries sustained. Absent any evidence on which to
base an award of damages, Mr. Degife’s counterclaim must be dismissed.

Conclusion

[202]     In
summary, Mr. Pacheco is entitled to damages totalling $30,011.34, reduced by
75% to account for his proportionate fault. As a result, Mr. Pacheco is
entitled to judgment against Mr. Degife in the amount of $7,503.00.

[203]     I
recognize that providing Mr. Pacheco with damages of any magnitude may be seen
as compensating him for his deplorable conduct in initiating a violent
altercation. However, as the authorities have made clear in their
interpretation and application of the doctrines of ex turpi and volenti,
engaging in illegal or antisocial behaviour is not by itself a bar to
recovery of damages for personal injury.

[204]     That said,
it should be apparent from the apportionment of liability between Mr. Pacheco
and Mr. Degife that in awarding damages to Mr. Pacheco, the court in no way
condones Mr. Pacheco’s actions and in fact considers him principally
responsible for the injuries that he sustained. At the same time, it
acknowledges that Mr. Degife must also bear some responsibility for his actions,
given that there were other courses of action available to him, including
walking away after the worst of the violence had subsided.

[205]    
In terms of costs, the normal rule as encapsulated in Rule 14-1(9) is
that the successful party is entitled to recover its costs, unless the court
orders otherwise. In deciding whether to depart from that rule, reference is
often made to the decision of Mr. Justice Bouck in Fotheringham v.
Fotheringham, 2001 BCSC 1321, where he set out a four part inquiry (at
para. 46):

1.     First, by
focussing on the “matters in dispute” at the trial. These may or may not
include “issues” explicitly mentioned in the pleadings.

2.     Second, by
assessing the weight or importance of those “matters” to the parties.

3.     Third, by
doing a global determination with respect to all the matters in dispute and determining
which party “substantially succeeded,” overall and therefore won the event.

4.    
Fourth, where one party “substantially succeeded,” a consideration of
whether there are reasons to “otherwise order” that the winning party be
deprived of his or her costs and each side bear their own costs.

[206]     The
central issue in dispute at this trial was whether Mr. Pacheco was entitled to
recover damages for the injuries that he sustained as a result of the Incident.
While I have awarded him damages, given that he was found 75% liable, it cannot
fairly be said that he was substantially successful in the action. That point
is made even clearer when comparing the amount awarded of $7,503.00 to the
amount claimed of approximately $195,000.00.

[207]    
I therefore decline to award Mr. Pacheco his costs. Mr. Pacheco and Mr.
Degife will bear their own costs. Mr. Wong is entitled to recover his costs
from Mr. Pacheco.

“Skolrood
J.”