Black v. Dugo, 2012 ABQB 553

Court of Queen ’ s Bench of Alberta Citation: Black v. Dugo, 2012 ABQB 553 Date: 20120907 Docket: 1103 01151 Registry: Edmonton Between: Dean Black Plaintiff - and - Vincent Segundo Dugo Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Dean Black seeks damages for personal injuries he suffered when assaulted by Vincent Segundo Dugo on April 17, 2009 in the parking lot outside a restaurant and pub in Edmonton. [ 2 ] This action was commenced on January 21, 2011.

On February 17, 2011 Master Smart ordered that Mr. Dugo be served substitutionally. Evidence before Master Smart indicated that Mr. Dugo had been present at his place of employment on February 3, 2011 when a process server attempted personal service of the Statement of Claim, but avoided service. Substitutional service was effected by serving an adult male person at Mr. Dugo ’ s place of employment on February 24, 2011. Mr. Dugo did not respond to the Statement of Claim. He was noted in default on April 5, 2011. It was ordered that Mr. Black ’ s damages be assessed in a hearing with

viva voce evidence on August 31, 2012. [ 3 ] Mr. Black testified that on Friday, April 17, 2009 at about 11:30 p.m. he and some friends were standing outside a restaurant and pub in the parking lot, smoking. They observed Mr. Dugo accompany a young woman who was very intoxicated to a car. The young woman could hardly stand. Mr. Dugo assisted her to sit in the driver ’ s seat of a car and put the keys in the ignition. Mr. Black intervened suggesting that it was not safe for the woman to drive. A physical altercation between Mr. Dugo and Mr. Black resulted. Mr.

Black ’ s friend intervened to try to stop the altercation. Mr. Dugo then smashed a beer mug into Mr. Black ’ s face. [ 4 ] Mr. Black ’ s face was cut and there was significant bleeding. Though his friends advised him to go to the hospital he did not do so. Rather he went home. He went to the hospital, the Royal Alex emergency department, two days later, on Monday, April 20, 2009. [ 5 ] The notes taken by the doctor who saw him in emergency are in evidence. They indicate what Mr. Black told the doctor: Hit in the face with beer mug Friday night. Some abrasions on right hand and face and bridge of nose.

Feeling dizzy, unstable walk. Things spinning around, but did not pass out. Noticed blood from nose and oral cavity yesterday and today. No headache, vision blurred, diplopia [double vision], weakness. Pain cheek bones both sides. No injuries anywhere else. No vomiting. Cough. Cannot eat because of pain. [ 6 ] X-rays were taken. They indicated: There is a slight deviation of the nasal bones towards the right. This is suspicious for an underlying fracture. The remainder of the facial bones are intact and no other fractures are demonstrated.

The paranasal sinuses are clear and demonstrate no evidence for mucosal thickening or air-fluid levels. [ 7 ] CT scans of the head and facial bones were taken. The former indicated: There is a minimally displaced fracture of the bilateral nasal bones deviated to the right. No other fractures are appreciated. To the extent visualized, the orbits, paranasal sinuses, mastoid air cells and remainder of the calvarium are unremarkable. Impression: No acute intracranial abnormalities are detected. However, there is a nasal bone fracture that is minimally displaced and deviated towards the right side.

The nasal bone fracture as described on the CT head scan is partially visualized and minimally displaced to the right. No other fractures are visible. [ 8 ] On May 1, 2009, in outpatient surgery, a closed reduction of Mr. Black ’ s nasal fracture, was performed by Dr. Mehling. Dr. Mehling ’ s Operative Report states: This 34-year-old gentleman was assaulted 2 weeks ago and presents now with a significantly displaced fracture of the bony nasal dorsum also involving the underlying septum. There is significant shift to the right and loss of patency of the right nasal airway.

The patient has a history of prior nasal fracture and indeed has previously undergone a septorhinoplasty in the Northwest Territories.

The report indicates that the surgery accomplished what it was intended to accomplish. [ 9 ] Mr. Black testified that after the surgery he was left with some scars, partial loss of his sense of smell and taste, a deviated septum, and a crooked nose. He continued to have pain for a few weeks after the surgery. [ 10 ] In August 2010, having been referred by Dr. Mehling, Mr. Black saw Dr. Keohane concerning functional and cosmetic concerns regarding his nose. Dr. Keohane is a specialist in rhinoplasty and facial rejuvenation surgery. Dr. Keohane ’ s report to Dr.

Mehling states: He has suffered multiple nasal fractures. He has had a previous septorhinoplasty performed in approximately 2002. Subsequent to this he has had repeated trauma and recently underwent a closed reduction by yourself. He has other comorbidities. He is known to have asthma. Unfortunately he is a smoker. He has recently had a neck manipulation which apparently has caused him some significant discomfort and at the present time he is on morphine. On examination he has evidence of repeated trauma and surgery. He has a significantly displaced left nasal process.

The entire nose is shifted towards the right. Endonasal examination reveals a culminated crushed dislocation of the nasal septum. We had a realistic discussion as to the rationale behind further surgery as well as the limitations of further surgery. I have stressed to Dean that no matter what I do I can not get his nose back to his premorbid state and surgical intervention would be based on some attempt to improve nasal airflow and perhaps cosmesis. [ 11 ] Mr. Black testified that he understood he would have to quit smoking before the surgery which he discussed with Dr. Keohane could be done.

The surgery has not been done. [ 12 ] Mr. Black testified that he had problems with his neck which he linked to the assault. He had a previous neck injury. He noted that neck problems returned 2 or 3 weeks after the assault and that a few months after the nose surgery he was hospitalized for neck pain. The hospital records which are in evidence do not indicate any hospitalization for neck problems until August 2010 - about 16 months after the assault.

The records indicate that he went to hospital in November 2009 for the flu. [ 13 ] There was an orthopaedic consultation report in August 2010 at the time of his neck problems. The report indicates that Mr. Black told the doctor that at age 13 he was injured when he “ . . . did a flip off the roof into the pool and hit back of neck on pool ” . He said he had skull fractures on 4 previous occasions - 1998, 2002, 2008 and another time which the doctor did not record. There is no indication in the report that a causal connection between the assault and the neck problems was suspected by either Mr.

Black or the doctor. The assault is not mentioned in the doctor ’ s report. [ 14 ] As noted, in the same month Mr. Black was hospitalized with neck problems he saw Dr. Keohane regarding possible further nose surgery. Dr. Keohane ’ s report indicates that when he spoke to Mr. Black, Mr. Black linked his then current neck problems to a neck manipulation he had recently received. The same link is made in the orthopaedic report of August 2010 in which the doctor reports: Last night had neck manipulation from acupressurist. Initially felt relief, but after 2-3 hours pain was worse, now weakness as well. [ 15 ] Mr.

Black testified that at present he has breathing problems. He can ’ t breathe through his left nostril. His nose is crooked. His eye drips. His nose drips. He has a partial loss of his senses of taste and smell. There is no medical opinion evidence establishing a causal connection between some of these conditions and the assault, or as to a prognosis in respect of any of them. [ 16 ] At the time of the assault Mr. Black was employed. He worked in the maintenance of equipment rented out by his employer for use in the oil industry. Prior to that he worked in milling of “ pony rods ” used in the oil industry.

Prior to that he worked as a welder. He is presently 37 years old. He completed Grade 12 and 3 years of a 5-year welding apprenticeship program in Ontario.

[17] Mr. Black testified that he was off work after the assault for “up to a month or so”. After he returned to work, he testified, hewas depressed about his appearance. He had trouble breathing when doing some aspects of the equipment maintenance work involved inhis job. He became depressed. He started drinking more. There is no indication that he sought or obtained medical or any other kind ofassistance for these problems. [18] He stopped working after a few weeks. He did not work for “a few months”.

He then returned to work and is now makingmore than he was making prior to the assault. [19] There was no evidence offered to establish the amount of income he lost when off work in the time following the assault. [20] Mr. Black testified that the assault was reported to the police but no charges resulted. He did not testify as to hisunderstanding as to why no charges were laid by police. Fact Findings [21] As to the extent of Mr. Black’s injuries resulting from the assault by Mr. Dugo, I find that the evidence establishes on abalance of probabilities: - that Mr.

Black suffered a nasal bone fracture that was minimally displaced and deviated towards the right side; - that Mr. Black required and received closed reduction surgery on his nose; - that following the surgery Mr. Black continued to have a significantly displaced left nasal process. His entire nose is shiftedtoward the right. He has a culminated crushed dislocation of the nasal septum; - that though further surgery might improve nasal airflow and appearance, it would not return his nose to its pre-assault state; and - that Mr.

Black continues, 3 years and 4 months after the assault, to experience reduced breathing flow through his left nostril andnasal dripping. [22] In my view the evidence presented is insufficient to establish on a balance of probabilities that the assault had any otherphysical consequences for Mr. Black. In particular it was not proved that his subsequent neck problems were casually connected to theassault. General Damages [23] As to general damages, counsel referred me to several authorities in support of his submission that general damages should beassessed at between $22,000 and $30,000.

Only two of the authorities were from this jurisdiction. [24] One of Alberta authorities was Baptiste v. Baptiste (2001) 2001 ABQB 910 , 302 A.R. 124. There Lee J. dealt witha claim by a plaintiff who suffered a fractured arm, broken nose, aggravation of previous cheek-bone injuries, a blackened and swolleneye, and cuts and bruises. The injuries were suffered in an assault. Though he awarded $30,000 general damages in total, Lee J.considered each of the individual injuries separately.

As to the broken nose, the only evidence referred to in the decision was that thenose had been broken and that the plaintiff had a deviated septum. If there was evidence of medical treatment of nose injury it was not

mentioned in the decision. [25] Lee J. reviewed several authorities and awarded $3500 general damages for the nose injury. The major injury in the case wasthe broken arm for which Lee J. awarded $22,000 general damages. [26] Mr. Black’s injuries are more serious than the nose injury assessed by Lee J. in Baptiste. [27] The second Alberta case is Herman v. Graves 1998 ABQB 471 , [1998] 9 W.W.R. 542. Though counsel referredonly to the

summary of this case in the Canada Personal Injury Quarterly, I have consulted Mason J.’s full judgment. [28] The Plaintiff in Herman was assaulted in a road rage situation. Mason J. described the injuries suffered by the Plaintiff, JesseHerman, as follows: (para. 36) The medical report from Dr. Cebuliak, the emergency doctor at the Rockyview Hospital, describes Jesse as suffering severe palpablefractures of his nasal bones with apparent depression and displacement of the fracture fragments and a deviation of the nasal septum.

Thereport also describes that Jesse had obviously been struck in other parts of his body, but the effects of those injuries were overwhelmedby the effects of the nasal fracture. Dr. Gillis, a medical specialist in facial and nasal reconstructive surgery, completed a closed reduction of the nasal fracture on February2, 1994. Dr. Gillis attempted to relocate the septal deviation, but with only modest success due to the resiliency of the cartilaginoustissues involved. Dr. Gillis' prognosis was some permanent displacement of the septum with continuing discomfort, particularly when wearing glasses.

Hewas of the opinion the deviated septum would make it difficult for Jesse to breathe normally through his nasal passages. The prognosisproved correct. In October 1997, Jesse consulted Dr. Gregory Waslen, a specialist in plastic surgery, with complaints as to the shape of his nose and hisinability to breathe adequately through his nasal airway. On examination, Dr. Waslen noted that Jesse's nasal bones were deviated with the right forced outward and left inward and a bony humpwhere healing had caused a new bone. The nasal airway was obstructed due to a deviated septum cartilage. Dr.

Waslen, in his medicalreport, described remedial surgical treatment as involving a correction of the deviated septum, by straightening of the nasal bone throughosteotomy and refracture. This required a one day surgical procedure with general anaesthesia. Time-off work is estimated at 2-3 weeks,with full activity resumed by 6 weeks. Dr. Waslen estimated he could correct the problem from 90% to 95% which might well include asecond operative correction. It is estimated the cost of such surgical procedures, including anaesthesia and hospital surgical facilities is$4,500.00.

During his testimony, it was obvious that Jesse is sensitive about his appearance, due to the crookedness of his fractured nose. This wasmore eloquently described by the evidence of his father and his brother. At the time of the accident, Jesse was a member of the AnglicanCathedral Church choir in Calgary. Today he is a member of a professional choral group. Jesse states frankly that he cannot say that theinjury affected his voice, but he thinks his tone is now more nasal.

He has continued to have breathing difficulties throughout this timewhich have not helped his singing. [29] Mason J. assessed general damages at $16,000 inclusive of prospective medical expenses ($4500), related costs, andprospective loss of income. [30] In my view Mr. Black’s injuries were very similar to those assessed by Mason J. if not a bit less serious. Backing out the

inclusions in Mason J.’s assessment and adjusting for 14 years inflation, in my view a proper general damages assessment for Mr.Black’s injuries is $14,000. Damages for Loss of Income [31] As to the effects of his injuries to Mr. Black’s employment, while I accept that he lost some work immediately after theassault and later after his initial return to work, the evidence does not establish the amount of loss that resulted. Neither does it establishthat the second period of unemployment was caused primarily by the assault. Proof of the amount of a plaintiff’s past loss of income isnot difficult.

It can easily be established with employment records and income tax assessments. It is especially easy when the defendantis not present to question the records submitted. In this case no records were submitted whatsoever. The evidence does not establish aquantum for loss of income. There will be no award in that respect. Punitive Damages [32] In Herman Mason J. assessed punitive damages of $3500. The defendant in that case had plead guilty to a charge of assaultcausing bodily harm. He was sentenced to one day in jail and one year probation.

Mason J. held that if there had been no criminalprosecution he would have fixed punitive damages of $5000. [33] Mason J. reviewed the authorities relating to punitive damages at length. Those authorities establish that: Punitive damages may be awarded in situations where the defendant’s misconduct is so malicious, oppressive and high-handed that itoffends the court’s sense of decency. and It is important to emphasize that punitive damages should only be awarded in those circumstances where the combined award of generaland aggravated damages would be insufficient to achieve the goal of punishment and deterrence.

Hill v. Church of Scientology of Toronto (SCC), [1995] 2 S.C.R. 1130 per Cory J. at p. 1208 [34] Mason J. also cited the following description of the task of assessing punitive damages contained in the jury direction of LordReid in Cassell & Co. Ltd. v. Broome [1972] A.C. 1027 (H.L.) at 1089: The only practical way to proceed is first to look at the case from the point of view of compensating the plaintiff.

He must not only becompensated for proved actual loss but also for any injury to his feelings and for having had to suffer insults, indignities and the like.And where the defendant has behaved outrageously very full compensation may be proper for that. So the tribunal will fix in their mindswhat sum would be proper as compensatory damages.

Then if it has been determined that the case is a proper one for punitive damagesthe tribunal must turn its attention to the defendant and ask itself whether the sum which it has already fixed as compensatory damages isor is not adequate to serve the second purpose of punishment or deterrence. If they think that that sum is adequate for the second purposeas well as for the first they must not add anything to it. It is sufficient both as compensatory and as punitive damages. But if they thinkthat sum is insufficient as a punishment then they must add to it enough to bring it up to a sum sufficient as punishment.

The one thingwhich they must not do is to fix sums as compensatory and as punitive damages and add them together. They must realise that thecompensatory damages are always part of the total punishment. [35] Counsel for Mr. Black suggested that punitive damages should be $15,000. He submitted that they should be greater than the$10,000 awarded by Lee J. in Baptiste because the assault here was committed with a glass beer mug and could easily have caused veryserious injury or worse. While that observation is correct, I note that Lee J., after referring to Mason J.’s punitive damages assessment in

Herman , arrived at a $10,000 punitive damages assessment because the assault on the plaintiff in that case had been carried out by 3 members of a group of 7 men who surrounded the plaintiff when he arrived at a drinking party. I cannot conclude that the danger inherent in the situation in which Mr. Black was assaulted is greater than it was in the situation in which Mr. Baptiste was assaulted. [ 36 ] Further, the damage actually caused by Mr. Dugo was significantly less than the damage caused by the defendants in Baptiste . I have assessed the compensatory damages for Mr. Black ’ s injuries at $14,000.

In my view the appropriate level of punishment to Mr. Dugo is achieved by awarding a further $5,000 in punitive damages. This is the level of punitive damages which Mason J. would have assessed in Herman if there had been no criminal sanction against the defendant there. Conclusion [ 37 ] Special damages in addition to loss of income, which I have previously disallowed, were claimed in the Statement of Claim. No evidence in that regard was presented. [ 38 ] In conclusion, I award Mr. Black general damages of $14,000 and punitive damages of $5000. I also award him costs which I fix at $1000 plus disbursements.

Heard on the 31 st day of August 2012. Dated at the City of Edmonton, Alberta this 7 th day of September 2012. Brian R. Burrows J.C.Q.B.A. Appearances: Stewart G. Baker, Q.C. for the Plaintiff The Defendant had been noted in default and did not appear.