Bridge v. Dalton, 2013 ABQB 312

Court of Queen ’ s Bench of Alberta Citation: Bridge v. Dalton, 2013 ABQB 312 Date: 20130523 Docket: 0003 23512 Registry: Edmonton Between: Peter Bridge Plaintiff - and - Craig Douglas Dalton Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Background and Findings of Fact [ 1 ] Mr. Bridge originally sued Mr. Craig Dalton and his uncle, Mr. Roger Dalton, for damages in assault and battery. To avoid confusion, I will use his first name when referring to Mr.

Roger Dalton, and will refer to Mr. Craig Dalton as Mr. Dalton. [ 2 ] The incident that gave rise to this action occurred in and just outside the front door of the Whistle Stop Pub in Jasper,

Alberta on January 1, 1999. Both parties had been celebrating New Years Eve. Mr. Bridge was with friends and the Daltons were there together. [ 3 ] Initially there was a scuffle between Mr. Green (the bar manager) and Roger, when Mr. Green intervened in an argument between Roger and two female bar patrons. Mr. Bridge and two bar staff members then went to Mr. Green ’ s aid and pushed the Daltons out the front door. [ 4 ] Roger eventually pulled Mr. Green out the front door. He began punching Mr. Green while the latter was on his back on the ground and Roger was crouched over him. [ 5 ] Mr.

Bridge again decided to come to Mr. Green ’ s aid. He went to grab Roger by the shoulders to get him off of Mr. Green but, before he was able to do so, he was struck from the side by Mr. Dalton. Mr. Bridge felt blood pouring out of his eye and noticed Mr. Dalton laughing and pointing at him. Mr. Bridge moved in Mr. Dalton ’ s direction. At that point Mr. Bridge ’ s coat was pulled over his head. He then felt someone kicking him as he lay on the ground. Mr. Dalton denies kicking Mr. Bridge. [ 6 ] The police arrived and arrested and charged both Daltons with assault causing bodily harm.

Eventually Roger pled guilty to assaulting Mr. Green and Mr. Dalton pled guilty to assaulting Mr. Bridge. [ 7 ] Mr. Bridge was originally taken to the Seton Hospital in Jasper, where it was determined that they could not treat his eye injury. Therefore, Mr. Bridge was transported to the Royal Alexandra Hospital (and later the University of Alberta Hospital) in Edmonton for treatment of his injuries. [ 8 ] Records from the Seton General Hospital, Alberta Health Patient Transfer, Capital Health Authority, University of Alberta Hospital and Royal Alexandra Hospital confirm that Mr.

Bridge suffered a laceration on his upper right eye lid which required surgical repair by an Opthamologist at the Royal Alexandra Hospital. Photographs entered as exhibits at trial show a significant laceration and what appears to be scratching or bruising of the area. The records confirm that there was bruising of Mr. Bridge ’ s nose, intra orbital rim displacement and moderate sized orbital lower fracture. The fractures were left to heal without surgical intervention.

The medical records entered in relation to the injuries are dated between January 1, 1999 and January 13, 1999. [ 9 ] One of the medical records refers to numbness in Mr. Bridge ’ s teeth. Mr. Bridge alleges that he has had numbness in several of his teeth which was significant following the incident and lasted for a considerable period of time. It is now largely resolved. He has entered dental records for appointments between June, 1996 and February, 2007. The entry for March 19, 1999, indicates that Mr. Bridge reported tooth numbness initially and then pain following the New Year ’ s Eve injuries.

The records indicate that the number 13 tooth was especially painful and that it felt loose. As a result, the dental records indicate that Mr. Bridge was referred to Dr. Hawrish for a consultation. In the referral letter, Mr. Bridge ’ s dentist referred to Mr. Bridge reporting sensitive teeth following a facial trauma, as well as Mr. Bridge ’ s claim of numbness followed by increasing pain in the teeth located in the upper right quadrant of his mouth. Dr. Hawrish responded, by letter dated June 2, 1999, confirming Mr.

Bridge ’ s reports of tenderness and numbness and responses that were out of normal range, possibly requiring root canal therapy in the future. Mr. Bridge has not had any root canals. [ 10 ] Mr. Bridge alleges that Mr. Dalton caused a chipped eyebrow bone, scratched eyeball, ripped eyelid, broken nose, broken cheekbone, broken lower bone in his eye socket, and injury to his teeth. He seeks general damages in the range of $50,000.00 to $55,000.00 and aggravated damages between $10,000.00 and $12,000.00. He seeks interest from January 1, 1999 on any damage award. Issues [ 11 ] The issues that I must decide are:

a. Whether Mr. Dalton committed the torts of assault and battery against Mr. Bridge. In determining this issue, I must consider Mr.Dalton’s assertion that, when he struck Mr. Bridge, he was trying to protect himself and Roger and that he used reasonable force in doingso. b. If Mr. Dalton is liable, the quantum of damages to which Mr. Bridge is entitled and the dates between which interest shouldaccrue on any award. In determining this issue, I must consider whether Mr. Dalton’s actions were such as would attract aggravateddamages.

I must also consider the reasons why it took so long for the matter to get to trial. Analysis a. Did Mr. Dalton commit the torts of assault and battery against Mr. Bridge? When Mr. Dalton struck Mr. Bridge was he wastrying to protect himself and Roger and only used reasonable force in doing so? [12] Pursuant to s. 26 of the Alberta Evidence Act, Mr. Dalton’s guilty plea to assaulting Mr. Bridge constitutes proof that hecommitted the offence of assault. The weight to be given to the conviction in the context of related civil proceedings is to be determinedby the trial judge.

I conclude, as this Court did in Herman v. Graves, 1998 ABQB 471 , 1998 A.B.Q.B. 471, that having regardto all of the circumstances in this case, significant weight should be attached to Mr. Dalton’s guilty plea and, further, the guilty pleaweighs strongly against Mr. Dalton’s suggestion that he acted in defence of himself and Roger. [13] The evidence of the independent witnesses was overwhelming in supporting the conclusion that it was initially Roger whowas combative and aggressive. At the time when Mr.

Dalton alleges he was coming to Roger’s assistance because he feared for Roger’ssafety, Roger was on top of Mr. Green and was punching him repeatedly. It was Mr. Green who was in a vulnerable position, not Roger.Mr. Bridge had not struck anyone and had not acted in an aggressive manner at any point in the incident. He was in the process ofmoving toward Mr. Green and Roger when he was struck, blindsided, in the face. I reject Mr. Dalton’s evidence that he only struck Mr.Bridge once using his bare fist. At the very least, I am satisfied that he repeatedly kicked Mr.

Bridge while he was lying on the groundinjured, with his jacket pulled over his head so that he could not defend himself. Although no one could testify unequivocally that Mr.Dalton struck Mr. Bridge in the face with a sack of beer cans, I conclude that it is more likely than not that he used the beer cans (whichwere found lying on the ground immediately next to Mr. Bridge) rather than striking him once with his bare fist. The extent of thedamage to Mr. Bridge’s eye and facial bones is much more consistent with Mr.

Bridge’s impression (shared by some of the otherwitnesses) that the initial blow was struck using the sack of beer cans. However, even if that was not the case, the repeated kicking ofMr. Bridge would constitute the application of unreasonable force in any event. [14] To be clear, I do not consider that Mr. Dalton’s initial striking of Mr. Bridge was in defence of self or of Roger. Further, evenif Mr. Dalton were misguidedly coming to the aid of Roger (who in the circumstances was hardly in need of assistance) the force usedwas excessive and was not reasonably necessary to ward off Mr.

Bridge’s attempt to get Roger off of Mr. Green. Mr. Bridge argued thatit was not open to Mr. Dalton to argue provocation, and I do not find it necessary to address this argument in detail, since Mr. Dalton’sdefence was predicated on his assertion that he was defending himself and Roger in striking Mr. Bridge. Had Mr. Bridge argued that hewas provoked by Mr. Dalton, I would have rejected that argument, since there was nothing in the evidence to suggest that Mr. Bridgewas provoking, through words or actions, Mr. Dalton or anyone else during the entirety of the incident. b. If Mr.

Dalton is liable, what is the quantum of damages to which Mr. Bridge is entitled and for what period should interestaccrue on any such award? Is Mr. Bridge entitled to aggravated damages because of the nature of Mr. Dalton’s actions? What is thereason for the delay in getting the matter to trial? [15] While the evidence leads easily to the conclusion that Mr. Dalton is liable to Mr. Bridge for assault and battery, a lack ofevidence makes it difficult to award the damages sought by Mr. Bridge in relation to his injuries. Prior to or at the commencement oftrial, Mr.

Bridge indicated that he was abandoning his claim for certain types of damages, leaving his claim for general and aggravateddamages. [16] Mr. Bridge has the onus of proving the extent of his damages, which are directly related to the extent of his injuries and theireffect on him. Relevant to the issue of the extent of his injuries, Mr. Bridge did not lose any wages and if he missed any work it wasminimal. Mr. Bridge did not have to take any pain medication, except possibly while he was in the hospital immediately following theincident.

Both of these suggest that pain from the injuries was manageable and the injuries did not significantly impact Mr. Bridge’sactivities. I also consider it significant that Mr. Bridge did not provide any medical records after January 13, 1999, twelve days after the

injuries were suffered. [ 17 ] Mr. Bridge testified that he was initially told he might have to have facial reconstruction surgery because of the fracturing. However, he did not have to have surgery, and these injuries resolved on their own in a fairly short time period. And, while his eye injury looks extremely serious in the photographic evidence and did require repair by an Opthamologist, it healed amazingly well and left no obvious disfigurement or scarring. [ 18 ] Similar to Mr.

Bridge ’ s concern that the doctors originally told him he might have to have facial reconstructive surgery on the facial fractures, he expressed concern that he was told, within six months of the injuries, that he might require root canal therapy as a result of the injury to his teeth. However, he has not had any in the intervening twelve years. Mr. Bridge cannot be compensated on the basis of initial concerns that he might require additional treatment, when it turned out that he did not have to undergo that treatment and the injuries resolved on their own, apparently in fairly short order.

In that regard, there are no medical records to support any ongoing medical issues or treatment after twelve days following the incident. There are no dental records supportive of Mr. Bridge ’ s evidence that his dental numbness continued for many years following the incident. Even accepting that the numbness continued for a considerable period of time, there is no evidence that the numbness impeded any of Mr. Bridge ’ s activities. [ 19 ] I am satisfied that Mr.

Bridge has established that he suffered a significant tear into his eye lid, some fracturing in his eye socket/cheek bone area, some damage to his teeth and related scraping and bruising of his facial area. However, in the absence of any supporting medical evidence, I am not satisfied that the associated pain and discomfort would have extended beyond the normal healing time for such injuries, which I would expect to be in the area of 6 to 8 weeks (given that there was some fracturing). This is supported by the fact that there are no medical records to indicate that any follow up care was required. I accept Mr.

Bridge ’ s evidence that the tooth numbness did extend well beyond that time frame. [ 20 ] Mr. Bridge provided 5 cases in support of his position that he is entitled to general damages in the range of $50,000 to $55,000 and aggravated damages in the range of $10,000 to $12,000. In Spencer v. Rozon et al , 2000 BCSC 674 , the Supreme Court of British Columbia awarded Mr. Spencer $75,000 general damages and $25,000 aggravated damages ($96,150 and $32,050 after adjustment for inflation).

In that case the Plaintiff suffered significantly more serious injuries, in circumstances in which the Defendants' behaviour was much more egregious. [ 21 ] In Tootoosis v. Doe et al the Plaintiff was awarded general damages of $40,000 and exemplary damages of $10,000 ($44,840 and $11,210 after adjustment) for more serious and long lasting injuries suffered in a more serious attack than the circumstances in this case. [ 22 ] In Herman v.

Graves , 1998 ABQB 471 , the Plaintiff was awarded $16,000 (inclusive of prospective medical expenses, related costs and prospective lost income) in respect of severe fractures which required two surgeries. Adjusted for inflation the awards are $22,896 and $5,088.50. The Court took into account the criminal penalties imposed in the related criminal proceedings in awarding punitive damages of $3,500. [ 23 ] In Black v. Dugo , 2012 ABQB 553 , the Plaintiff was awarded $14,000 general damages and $5,000 punitive damages. The Plaintiff had suffered a fracture of the nasal bone that required surgery.

The Court observed that criminal sanctions ought to be considered in determining the appropriate level of punitive damages where they are appropriate. There having been no criminal sanction imposed on Mr. Dugo, the Court did not reduce the $5,000 punitive damage award as had been done in Herman . The circumstances which attracted the punitive damages award against Mr. Dugo were that he had smashed a beer mug into Mr. Black ’ s face after Mr. Black had intervened to try and prevent a highly intoxicated woman from driving a vehicle. [ 24 ] In Baptiste v. Baptiste et al , 2001 ABQB 210 , which Mr.

Bridge provided in relation to his claim for aggravated damages, the Plaintiff was awarded $10,000 as punitive or aggravated damages. The Court concluded that the “ group ” or “ gang ” nature of the assault against the Plaintiff, in a “ humiliating and undignified circumstance ” ought to be sanctioned by way of punitive or aggravated damages. The Court noted that there had been no criminal sanction imposed. [ 25 ] I conclude that the circumstances and the nature of the injuries in this case are most similar to those in Black , which is a very recent decision of this Court. Unlike the Plaintiff in Black , Mr.

Bridge did not require surgery to repair the fractures to his orbital bones.

However, he did require significant repair to his eye lid and suffered other injuries not sustained by the Plaintiff in Black . I conclude that general damages of $20,000 are appropriate in this case. [ 26 ] Mr. Bridge sustained his injuries in the midst of a "bar fight" instigated by an intoxicated person (Roger) and joined in by an even more intoxicated person (Mr. Dalton). Although Mr. Bridge feels that Mr.

Dalton's laughing at him after having struck him in the face was aimed at humiliating him, I do not conclude that the injuries occurred in a humiliating or undignified circumstance (per Baptiste and other authorities). His actions in pulling Mr. Bridge's coat over his head and in kicking him were offensive and deserving of denunciation but in context do not rise to the level that would attract aggravated or punitive damages. I do not consider that the general damages award is insufficient, necessitating augmentation by way of an award for aggravated damages.

Nor, in light of the circumstances leading up to the assault and battery and having regard to Mr. Dalton's high level of intoxication, can I conclude that he acted with malice. In this case, Mr. Dalton was subject to criminal sanction and I conclude that that deterrence, combined with general damages in the amount of $20,000, is adequate punishment and ought to have the effect of deterring Mr. Dalton from engaging in such conduct in the future. Accordingly, I conclude that Mr.

Bridge is not entitled to aggravated damages. [ 27 ] Both parties blamed each other for the 13 year delay in bringing this matter to trial. Mr. Dalton's evidence in relation to the incident conflicted with the accounts given by the other witnesses and in many respects was not believable. He admitted that he attempted to have the Plaintiff's counsel removed from the file. The basis of his complaint to the Law Society was that he objected to counsel obtaining a credit check without his consent. He indicated that the law suit had caused financial hardship and that he had lost jobs over it.

Yet he did not take actions aimed at bringing it to a conclusion. To the contrary, Mr. Bridge asserted that Mr. Dalton's actions were aimed at avoiding a conclusion and provided specific examples of delays caused by Mr. Dalton. [ 28 ] Mr. Bridge denies that the delay was due to his actions. He submits that he had been attempting to set the matter for trial since 2009, following ongoing refusals of the Defendants to set Examination for Discovery dates and Mr. Dalton's attempts to have his Counsel removed from the file. I accept Mr. Bridge's submissions regarding Mr.

Dalton's ongoing attempts to delay the action and to avoid Mr. Bridge's efforts to complete steps in the law suit, including Mr. Dalton's delays in setting Examinations for Discovery and in answering undertakings. I attribute the delay in bringing this matter to trial to Mr. Dalton and therefore award interest to Mr. Bridge from January 1, 1999. Conclusion [ 29 ] Accordingly, Mr. Bridge is awarded: 1. General damages in the amount of $20,000; and 2. Interest on the amount of the award from January 1, 1999. [ 30 ] Mr. Bridge has indicated his desire to speak to costs following the issuance of this Judgment.

If the parties are unable to agree on costs, they are to contact my assistant to arrange a date on which costs can be addressed. Heard on the 13th day of February, 2013. Dated at the City of Edmonton, Alberta this 23 rd day of May, 2013.

D.L. Shelley J.C.Q.B.A. Appearances: Ms. M. A. Wolowidnyk for the Plaintiff Mr. C. Dalton Self-represented Defendant