Johnson v. Roberts Date:, 2014 BCPC 263

Citation: Johnson v. Roberts Date: 20141104 2014 BCPC 0263 File No: 68516 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: TAYLOR JACOB JOHNSON CLAIMANT AND: ROY ROBERTS DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing in person: Mr. Johnson Appearing in person: Mr. Roberts

Place of Hearing: Nanaimo, B.C. Date of Hearing: October 30, 2014 Date of Judgment: November 4, 2014 [1] Mr. Johnson and Mr. Roberts were engaged in two altercations, separated by an interval of a few minutes, at an A& WRestaurant in Nanaimo on January 12, 2010. I presided at the trial of the ensuing action on October 30, 2014, more than four years afterthe event. Despite the passage of time, all of the witnesses professed to have a clear and certain recollection of the events. [2] Each of the parties alleges that the other assaulted him, and seeks damages for assault.

Liability [3] There are many conflicts in the evidence, discussed below. I attribute those differences primarily to two factors: a. The events happened more than four years ago. The police attended and interviewed the parties on the day in question. However, neither Mr. Roberts nor Mr. Johnson expressed an interest in a criminal prosecution and the police decided to close theirinvestigation without recommending charges. No further step was taken in relation to the matter until Mr. Johnson commenced thisproceeding on February 2, 2013.

As a result, more than 3 years passed before the witnesses were asked to summon up and recount theirrecollection of events. b. The events in question happened very quickly. In such circumstances, observations are easily confused. The conflicts in the evidence make it impossible for me to say with certainty what occurred.

This being a civil case, my duty is to makefindings of fact on a balance of probabilities, guided by the following principle: The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. Faryna vs Chorny [1951] BCJ #152; (BC CA), [1952] 2 DLR 354 [4] The altercations between Mr. Roberts and Mr. Johnson may properly be described as the consequences of road rage. Mr.Roberts and Mr. Johnson were proceeding toward the A&W Restaurant, each in his vehicle, Mr. Johnson in the centre lane and Mr.Roberts in the curb lane. Mr. Roberts complains that Mr.

Johnson swerved abruptly in front of him in a dangerous fashion and turnedinto the drive-through lane of the restaurant. Mr. Roberts parked his vehicle and walked over to confront Mr. Johnson, who was seatedin his vehicle in the drive-through lane placing his order. Angry words were exchanged, and bad language was used by both Mr. Robertsand Mr. Johnson. Ms. Mulholland, an employee of the restaurant who observed the event through the drive-through window, wasparticularly offended by the vile language used by Mr. Johnson. [5] Mr. Roberts alleges that Mr. Johnson spat in his face. Mr. Johnson denies that.

For the following reasons, I accept Mr.Roberts’ evidence, in preference to that of Mr. Johnson, on this point: a. Ms. Mulholland corroborates Mr. Roberts. She said that she saw Mr. Johnson spit in Mr. Roberts’ face before Mr. Roberts struckMr. Johnson. b. Another witness, Mr. Woods, observed the second altercation between Mr. Roberts and Mr. Johnson (described below), but notthe altercation at the drive-through window. Mr. Woods described Mr. Johnson spitting on all of the participants in the secondaltercation, which leads me to think that it was Mr.

Johnson’s chosen form of aggression, at least on the day in question. c. The circumstances of both altercations demonstrate clearly that Mr. Johnson had completely lost control of his temper during theevents in question. [6] In response, Mr. Roberts struck Mr. Johnson a backhanded blow. Mr. Johnson says that the blow was struck with a closed fist. Mr. Roberts says that he was unable to close his fist at that time, for medical reasons, and that he struck Mr. Johnson with an open hand. Mr. Johnson says that Mr. Roberts struck him on the nose, causing an injury later diagnosed as a deviated septum. Mr.

Roberts allegesthat he struck Mr. Johnson on the shoulder. I conclude that Mr. Roberts struck Mr. Johnson on the nose because: a. Mr. Johnson says that he did b. Mr. Roberts is unable to contradict Mr. Johnson directly. He says that he is unable today to recall where the blow landed,although he acknowledges that he aimed the blow at Mr. Johnson’s nose. c. When interviewed by the police on the day in question, Mr. Roberts told the police that he hit Mr. Johnson on the nose. d. The only contradictory evidence is that of Ms. Mulholland, who says that she saw the blow land on Mr. Johnson’s shoulder.

I donot accept that evidence because the blow was struck quickly and it would have been difficult for Ms. Mulholland to see clearly whatwas happening inside the Johnson vehicle from her position in the restaurant behind the drive-through window. [7] After striking Mr. Johnson, Mr. Roberts returned to the restaurant, washed his face and sat down with some friends, of whom

Mr. Woods was one. While Mr. Roberts was in the washroom, Mr. Johnson parked his vehicle and walked over to Mr. Roberts’ truck. He then kicked in the window of the truck and started kicking the metal siding of the truck, causing some damage to the sheet metal. Mr. Roberts’ companions drew this activity to his attention. Mr. Roberts went outside and seized Mr. Johnson. They tripped over a curb and fell to the ground, with Mr. Roberts on top. Others ran to the scene to assist Mr. Roberts in subduing Mr. Johnson, which was accomplished after a considerable struggle.

For the reasons given above, I accept the evidence of Mr. Roberts and Mr. Woods, to the effect that Mr. Johnson spat upon them during this struggle. [ 8 ] It is clear that Mr. Johnson assaulted Mr. Roberts, and that Mr. Roberts assaulted Mr. Johnson, during the first altercation. To spit in the face of another is an assault. To strike the spitter in retaliation is also an assault: R vs Tait 2005 BCPC 40 ; [2005] BCJ #288 R vs Teclesenbet 2009 ABPC 23 ; [2009] AJ #113. Those authorities make it clear that the blow struck by Mr. Roberts cannot be justified on the ground that Mr.

Johnson initiated or provoked the conflict by spitting in Mr. Roberts’ face. [ 9 ] I conclude that Mr. Roberts did not assault Mr. Johnson during the second altercation. Section 494(2) of the Criminal Code authorizes the owner of property to arrest without warrant a person whom the owner finds committing a criminal offence in relation to that property. Mr. Johnson’s attack on Mr. Roberts’ vehicle was

an act of mischief, and an offence under

section 430 of the Criminal Code.

Section 25 of the Criminal Code authorized Mr. Roberts to use as much force as was reasonably necessary to effect the arrest. There is no evidence to support an inference that Mr. Roberts used more force than was reasonably necessary for that purpose. Damages [ 10 ] I have not found any guidance in the jurisprudence respecting the appropriate quantum of general damages to be awarded for an assault consisting of the act of spitting in a person’s face. Such an assault rarely causes any lasting harm. Despite the fear of communicable disease, very few diseases are transmitted in that way.

However, such an assault is not trivial. The experience is disgusting, and most people suffer a period of anxiety about the possibility of disease transmission, even if that anxiety is, objectively, unwarranted. Doing my best to assess damages fairly, I would award Mr. Roberts $1000 in general damages for this assault. [ 11 ] Mr. Johnson has reimbursed Mr. Roberts’ auto insurer for the damage to his truck, but has not reimbursed Mr. Roberts for his $300 deductible. Mr. Roberts also incurred an expense of $181.65 for hepatitis vaccination because he feared infection from Mr. Johnson.

I conclude that the vaccination was a reasonable step to take in the circumstances. As a result, I award Mr. Roberts $481.65 in special damages. [ 12 ] The assessment of Mr. Johnson’s damages is more complex. His family doctor confirms that he suffered from no malady of the nose before the incident in question. His surgeon diagnosed him with a deviated septum immediately after the incident. It is a fair inference, which I draw, that the deviation of his septum was the result of one or both of the altercations described in the evidence. [ 13 ] Mr. Johnson said that, after Mr.

Roberts struck him, blood was pouring out of his nose and down his shirt-front. If that were so, one could infer that the deviated septum was caused by the blow administered by Mr. Roberts. Mr. Roberts, Ms. Mulholland and Mr. Woods all say that they saw no blood on Mr. Johnson at any time. It would be incorrect to describe Ms. Mulholland and Mr. Woods as disinterested witnesses. They clearly do not like Mr. Johnson and were deeply offended by his behaviour. However, I am unwilling to conclude that they were dishonest in their evidence. If Mr.

Johnson had been bleeding as he describes, it would certainly have been observed by each of them. I conclude that Mr. Johnson’s evidence on this point is an exaggeration. [ 14 ] There is no other basis on which I could infer that the deviation of Mr. Johnson’s septum was caused by Mr. Roberts’ blow, rather than the later struggle in the parking lot. Mr. Roberts is liable for the consequences of the former, but not for the consequences of the latter. [ 15 ] Mr. Johnson is training to become a chef.

He complains that the deviation of his septum has impaired his senses of smell and taste, and so hindered his professional advancement. However, despite that difficulty, he has succeeded in completing all of his professional milestones in a commendably brief period of time. There is no evidentiary basis for an award for impairment of income- earning capacity, even if one could conclude that the deviated septum was the result of the blow struck by Mr. Roberts. [ 16 ] Mr. Johnson is entitled to general damages for the blow struck by Mr. Roberts.

In the absence of any proof of adverse sequelae, I think that $1000 is a fair assessment of those damages, and I award that amount. Disposition [ 17 ] Setting off one award against the other, Mr. Roberts is entitled to judgment for $481.65. Success being divided, each party will bear his own costs. November 4, 2014 _________________________ T. Gouge, PCJ