19 Nov Damages Awarded for Assault

In the case of Azak v. Chisholm, 2018 BCSC 1051, a verbal confrontation lead to the Defendant assaulting the Plaintiff in his yard.  The Plaintiff sustained serious bodily injuries and sued the Defendant for damages.

The Plaintiff rented a house on Lot 60.  Due to flooding, Lot 60 was regraded and this caused a portion of Lot 61 to be undermined.  A cedar retaining wall and fence on Lot 61 began to sluff and collapse. The owner of Lot 60 hired the Defendant contractor to remove the debris, prepare a solid base and build a concrete-block retaining wall along the property line between Lot 60 and Lot 61.

The property line between the lots was surveyed and the Defendant began work. The Plaintiff returned home from a trip to find a concrete-block retaining wall had been partially-constructed between the lots. This upset him, as he did not agree with its location. The Defendant testified that from the outset of the construction, he and his crew were verbally assaulted by the Plaintiff and their access was repeatedly blocked by the Plaintiff’s vehicles.

One morning, the Plaintiff and Defendant got into a verbal altercation about the retaining wall. The Plaintiff testified that Defendant jumped down from the wall, kicked the Plaintiff in his right arm, grabbed the front of his jacket and punched him three to four times in the face. The Plaintiff did not fight back. The Defendant’s version of the incident was similar.  As a result of the assault, the Plaintiff suffered a fractured cheek, fractured nose, sore arm and headaches.

The issue to be decided at trial was whether the Defendant committed the tort of battery upon the Plaintiff.  If he had, the Court then had to decide what damages, if any, the Plaintiff was entitled to.

The tort of battery is a form of trespass against the person. It consists in the direct, intentional application of force to another person’s body in a manner that, in the view of a reasonable person, is harmful or offensive.

The Court held that the Plaintiff confronted the Defendant about the project in a belligerent manner that the Defendant did not like. There was an angry exchange during which each of them insulted the other, culminating in the Defendant jumping down from the top of the retaining wall and striking the Plaintiff several times. The Court held that the Plaintiff had discharged his onus of proving that the Defendant made direct physical contact with him when he intentionally punched him in the face, actions that any reasonable person would find to be harmful.

The onus then shifted to the Defendant to demonstrate he was acting in self defense. The Defendant submitted that he felt threatened and was concerned about his safety and that of his crew. However, the Court found that the Defendant’s reaction was unreasonable and totally disproportionate to the circumstance he was in. The Defendant’s claim of self defense was rejected.

Since the Plaintiff had demonstrated that the Defendant committed the tort of battery upon him and the Defendant had failed to demonstrate he was acting in self defense, the Defendant was liable to the Plaintiff in damages.

The Plaintiff suffered significant injuries as a result of the battery. He also suffered embarrassment and humiliation from his facial swelling and bruising. He had ongoing and persistent headaches. However, the Court decided that the assault had very little, if any, impact on the Plaintiff’s lifestyle.

Having taken into account the severity of the injuries sustained by the Plaintiff and the suffering the Plaintiff had to endure for approximately one year, the Court found that an appropriate award for non-pecuniary damages was $25,000.