Case link noted below.
The Plaintiff in this action was brutally assaulted and commenced this action in tort after the Defendant was found guilty of assault and confinement. The Judge found the Plaintiff to be credible and reliable at trial.
We have written multiple articles on the topic of credibility and reliability of a Plaintiff/Witness and wish to enumerate these cases here for your reference:
- Credibility – Collateral Witnesses;
- Credibility and Reliability of the Plaintiff’s Evidence;
- Liability Trial – Credibility and Reliability of a Witness;
- Evidence – Collateral Witnesses;
- Witnesses at Trial – Preparation;
The tort action in the subject action resulted in Default Judgment against the Defendant, with an award to the Plaintiff totaling $493,650, the breakdown of which is noted below.
This is a great case to review, which offers a good presentation of the incident, the injuries , treatment, life before and after the event, her career plans and the recommended treatment plan and loss of income and earning capacity.
Of note, the award also included an award of loss of past and future housekeeping which was a separate catergory, totaling $16,250.
The assault was the cause of multiple altering injuries involving concussion, abrasions, and bruising to her legs, torso, hands, arms and face, frequent headaches and nausea. The assault was traumatic and also resulted in significant psychological injury, PTSD, anxiety, panic, and social isolation. Her activities of daily living was impacted, including chronic pain to her back and spine, with periodic pain in her hands and knees. Amelioration was guarded and unclear. She “had an increased risk of future depressive episodes, which could further compromise her psychological and functional abilities across life realms.”
Dr. Daniela Porter, the expert in Physical Medicine and Rehabilitation provided evidence in this action, together with other experts. The evidence was accepted by the Court, leading to the following award:
(a) General Damages $100,000
(b) Aggravated Damages $25,000
(c) Past Housekeeping Capacity $6,250
(d) Future Housekeeping Capacity $10,000
(e) Future Care (Psychological) $50,000
(f) Future Care (Physical) $2,400
(g) Loss of Earning Capacity $300,000
Total award: $493,650
Read the Case here: Hollingshead v O’Reilly, 2020 ABQB 538 (CanLII)
The referenced case law relied upon
[20] In Shaw v Staples, 2013 ONSC 3290, the Plaintiff was the victim of a brutal sexual assault. As was the case here, the Defendant was convicted, and failed to defend the civil action. While this assault was not sexual, it was committed by an older and at times intimate friend of the Plaintiff, with inexplicable violence. The comments of Justice Gunsolus concerning the purpose of general damages are germane:
[65] In B.M.G. v. Nova Scotia (Attorney General), 2007 NSCA 120 (CanLII), [2007] N.S.J. No. 506 (NSCA), Justice Cromwell suggested taking a functional approach to the assessment of non-pecuniary damages in cases of sexual battery. The objectives of providing solace for the victim, to vindicate the victim’s physical autonomy and dignity, through an award of aggravated damages, account for the humiliation and degradation caused by the defendant’s conduct.
[66] Using this functional approach, damages are intended to cover a single loss, that being the plaintiff’s overall psychological condition and the consequent need for solace. These non-pecuniary damages are typically covered by a global sum. Such damages now include distress from psychological illness and common feelings such as anxiety, frustration and so on. Such anxiety and depression are at the core of such suffering, whether it is due to cancer or trauma.
[67] In determining damages to reflect the victim’s dignity, personal autonomy and pain and suffering, a number of factors must be considered, including but not limited to:
(a) The age and vulnerability of the victim;
(b) The frequency, level of violence, invasiveness and degradation of the assault;
(c) The consequences for the victim of the wrongful behaviour, including ongoing psychological injuries.
[21] The Court noted that case law indicates a range from as low as $25,000 to over $300,000 in such cases. It awarded $225,000 including $7,500 for Aggravated Damages.
[22] In Roberts v Safadi, 2018 ABQB 165, the Plaintiff was the victim of an assault resulting in physical and psychological injuries. After an extensive review general damage awards for such injuries ranging from $60,000 to $174,000. Justice Mandziuk awarded $140,000 in general damages, stating at para 54 and 55:
[54] The Plaintiff was deliberately injured by Safadi. His leg was severely damaged. As a result of the physical injury, the Plaintiff developed back problems and psychological problems. He will suffer to some degree for the rest of his life and may require surgery on his back. Prior to the incident, he was a healthy and well-adjusted individual able to be active and work in a physical job.
[55] The physical and the psychological are inextricably connected in many of the cases and certainly in the case at bar. I have looked at the cases addressing physical and psychological injuries separately in my analysis, but must assess a global amount that addresses the effects of the assault on the Plaintiff as a whole person. After reviewing the case law, the evidence of the Plaintiff’s pain and suffering, psychological damage, and the serious health issues that the Plaintiff has endured, I award him $140,000 in general damages.
[23] In my view, the circumstances of this case and the case law support the quantum of general damages sought by the Plaintiff in her Statement of Claim and before me in argument. I therefore award $100,000.
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