VIEN QUANG LAM v. AU KWAI FUNG AND TAI VAN HUYNH, 2003 ABQB 264

Lam v. Forster, 2003 ABQB 264 Date: 2003 03 24 Action No. 9603 18420 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON BETWEEN: VIEN QUANG LAM AND AU KWAI FUNG AND TAI VAN HUYNH Plaintiffs - and - DOUGLAS BLAIR FORSTER, BRENT JASON CALLAN, JOHN DOE, DAVID DOE AND KINGSWAY INNS LTD. Defendants _______________________________________________________ REASONS FOR JUDGMENT of the HONOURABLE MR. JUSTICE R. PAUL BELZIL _______________________________________________________ APPEARANCES: C. Kenneth W. Kolthammer (Kolthammer Batchelor & Fedorak)

For the Plaintiffs Gregory W. Jaycock (Parlee McLaws LLP) For Kingsway Inns Ltd.

Part I - The Action [ 1 ] On September 23 rd , 1994, the Plaintiffs Vien Lam and Tai Huyhn attended at the premises of Kingsway Inns Limited where they consumed alcohol in Pinky ’ s Lounge. As they departed, they encountered the Defendants Douglas Blair Forster and Brent Jason Callan whereupon a fight broke out, as a result of which Lam and Huyhn were severely assaulted.

Prior to this, Forster and Callan had been briefly in Rock Central, another licensed establishment on the Kingsway premises. [ 2 ] Lam and Huyhn bring action against Forster, Callan and Kingsway, as well as Joe Doe and David Doe, representing employees of Kingsway. [ 3 ] Lam and Huyhn claim for damages for personal injuries, together with special damages and loss of income. The Plaintiff Au Kwai Fung is the wife of Lam and claims for loss of consortium. [ 4 ] Forster and Callan, although served with notice of trial, did not attend or participate in the trial.

An agreement as to damages was reached between the Plaintiffs and Kingsway. [ 5 ] An Agreed Statement of Facts was filed and, as well, oral evidence was presented.

Part II - The Evidence [ 6 ] The key portions of the Agreed Statement of Facts are as follows: 8. On September 23, 1994, the Plaintiffs Lam and Huynh, and three other individuals, attended Pinky ’ s as visitors. They arrived in the early evening, and Lam and Huynh each consumed between two and six glasses of beer while at Pinky ’ s. 9. The Defendants Forster and Callan attended at the Kingsway premises on the same day, and arrived at approximately 10:00 p.m. 10.

The Plaintiffs Lam and Huynh, and one of their acquaintances, left Pinky ’ s between 10:00 p.m. and 11:00 p.m., and they first encountered the Defendants Forster and Callan in the sidewalk area outside of the Pinky ’ s entrance-exit. There was a minor altercation when Lam, Huynh, Forster, and Callan first encountered one another, at which time no Kingsway security or other staff were present. 11.

The Defendants Forster and Callan left the scene of the altercation and entered Rock Central using the main (eastside) entrance-exit, where the Manager and Head of Security, Larry Edmond Lavallee, heard of the altercation from the Defendant Forster, who had previously worked for him. 12. Mr. Lavallee then instructed his staff not to let the Plaintiffs or anyone with them into Rock Central should they attempt entry, and asked the Defendants Forster and Callan to leave by a different exit, located at the northwest corner of the building. Forster and Callan

complied. 13. Shortly thereafter, a second altercation involving Lam, Huynh, Forster, and Callan occurred in the vicinity of the red “ X ” on Tab 1 hereto, resulting in the injuries giving rise to this litigation. No Kingsway security or other staff were present when this altercation occurred. The second altercation was discovered to be ongoing at 10:47 p.m. by security guards employed by the neighbouring shopping mall. The security guards and the Edmonton Police Service attended to the situation. 14.

Upon admission to the Royal Alexandra Hospital, the Plaintiff Lam had an ETOH/blood alcohol level of 39.3 millimoles/L (equivalent to 0.18 mg/ml), and the Plaintiff Huynh had an ETOH/blood alcohol level of 19.2 millimoles/L (equivalent to 0.088 mg/ml). [ 7 ] Survey plans and photographs of the premises were exhibited before me. The main lobby entrance to the premises faced south onto Kingsway Avenue. There was a permanent taxi stand at this main entrance. The east wall of the premises is 256 feet long. There were entrances to Pinky ’ s Lounge and Rock Central along the east wall.

The entrance to Pinky ’ s Lounge was approximately at the mid-point of the east wall whereas the entrance to Rock Central was approximately 50 feet from the northeast corner. [ 8 ] The northwest entrance to Rock Central was approximately 134 feet west of the northeast corner. This entrance, which is not visible from the east entrance to Pinky ’ s Lounge, is at the rear of the hotel complex, facing an adjacent shopping centre. [ 9 ] These events occurred at night on September 23 rd , 1994. There was no evidence of what, if any, artificial lighting was present.

Thus, it is not clear if a person standing at the northeast corner could identify someone at the northwest corner without walking over to that area. [ 10 ] The Plaintiffs Lam and Huynh, speaking through a Cantonese interpreter, have very poor memories of what occurred that night.

Both suffered brain injuries as a result of the severe beating, which injuries exacerbated their difficulties in remembering what occurred. [ 11 ] They do recall that after they consumed beer for several hours at Pinky ’ s Lounge, they voluntarily left the lounge at which time there was some form of an altercation with Forster and Callan.

There is no evidence that there was any prior history of ill will between them, or that they even knew each other, and neither offered any explanation as to why there was an altercation or who initiated it. [ 12 ] Lam testified that after leaving Pinky ’ s Lounge, he and Huynh wanted to call a taxi.

There is no evidence that they had driven to the premises and thus did not have a vehicle parked anywhere on the premises or adjacent to the premises. [ 13 ] Sometime later, a second altercation with Forster and Callan occurred at which time Lam and Huynh were severely assaulted. [ 14 ] Their friend, Wai Lau, observed the assaults and confirmed that Forster and Callan severely beat Lam and Huynh and proceeded to kick their heads repeatedly and viciously.

He offered no explanation as to why these altercations occurred. [ 15 ] There is no evidence that any physical confrontation occurred between the two groups in Pinky ’ s Lounge and no evidence that any employees of Kingsway at any time assaulted these Plaintiffs or, indeed, observed their assault by Forster and Callan. [ 16 ] The evidence discloses that the actual assault occurred on property adjacent to the Kingsway property.

Part III - Liability of Kingsway [ 17 ] The Plaintiffs argue that liability should be fixed on Kingsway as it owed a duty of care to reasonably foresee that the Lam

and Huynh would not be assaulted by Forster and Callan once they were asked to leave Rock Central. [ 18 ] Kingsway does not dispute that it owes a duty of care to its patrons, but argues that no liability arises on these facts as the assault perpetrated by Forster and Callan was not reasonably foreseeable. [ 19 ] Given that Lam and Huynh have very poor memories of what occurred, and given that Forster and Callan did not testify, coupled with the fact that no Kingsway staff observed either altercation, there are significant gaps in the evidence before me.

Some conclusions can be drawn from the evidence, however. [ 20 ] Lam and Huynh left Pinky ’ s Lounge voluntarily and used the door on the east side of the premises. At the time that they left Pinky ’ s Lounge, there is no evidence that any altercation had occurred or that staff of Kingsway had any awareness that anything was about to happen.

There is no evidence as to how or why the altercation occurred initially between Lam, Huynh, Forster and Callan. [ 21 ] It is uncontroverted that the original altercation was minor, and there were no staff present from Kingsway to observe it or make any determination that future conflict between the two groups was likely. There is no evidence as to who the aggressors were regarding this first altercation.

Moreover, there is no evidence that after the first altercation occurred, there was any indication from words or actions that the altercation would continue at a later time or that Forster and Callan wanted it to continue. Had they wanted to continue the initial altercation, presumably they would have not walked into Rock Central. [ 22 ] Forster and Callan entered Rock Central using the main eastside entrance, and after they did so, Lavallee spoke to Forster.

There is no evidence as to what was said, and in particular, no evidence of what Forster said about what caused the original altercation or how serious it was. Moreover, there is no evidence as to whether what Forster said was truthful or untruthful. Lavallee did not testify as he cannot be located. [ 23 ] There is no evidence that Forster gave any indication that a continued dispute with Lam and Huynh was likely or being contemplated.

There is no evidence that Forster and Callan were under the influence of alcohol and no evidence that they acted belligerently towards any patrons or staff in Rock Central. [ 24 ] There is no evidence as to how long this discussion took place, or, indeed, how long Forster and Callan stayed in Rock Central, although they did leave voluntarily by the northwest door.

I am prepared to assume that Forster and Callan stayed in Rock Central for only a few minutes, but am also prepared to assume that within that few minutes Lam and Huynh could have easily walked the short distance to the front of the premises to hail a taxi at the taxi stand. [ 25 ] While the Agreed Statement of Facts makes reference to Lavallee telling his staff not to let the Plaintiffs enter, it is not clear the extent to which Lavallee was given a description of the Plaintiffs although I am prepared to assume that he was told that they were male and of Asian origin.

There is no evidence that Lam and Huynh tried to enter Rock Central in pursuit of Forster and Callan or otherwise. [ 26 ] With respect to the second altercation which resulted in serious injuries to Lam and Huynh, there is no evidence as to whether Forster and Callan sought out these Plaintiffs or whether they sought out Forster and Callan, or whether they encountered each other accidentally. [ 27 ] It is uncontroverted that the Kingsway premises are very large, comprising a hotel complex. It is also uncontroverted that the hotel had a taxi stand at the main lobby, facing south.

Thus, if Lam and Huynh had wanted to hail a taxi, they would have walked south towards the main lobby and not north towards the entrance to Rock Central located on the northwest corner of the complex. [ 28 ] It is clear that the assault took place off of Kingsway property. Plaintiff ’ s counsel argues that the fact that the assault took place off Kingsway property is irrelevant if there was a breach of duty of care to Lam and Huynh which arose while they were on the premises, even if they had left the Kingsway premises.

[ 29 ] It has long been recognized that licensed establishments serving alcohol to patrons owe a duty of care not only that patrons will be reasonably safe in using the premises, but, as well, patrons will be reasonably safe on leaving the premises. The duty of care is not restricted to the dangers posed by the consumption of alcohol. [ 30 ] Murphy v. Little Memphis Cabaret Inc. , [1996] O.J. No. 4600 involved a claim for damages against a tavern. The Plaintiff Murphy and a friend had been drinking in the tavern and got into an altercation with a group of four other patrons.

Tavern staff ejected Murphy and his friend through the front door whereas the group of four was ejected through the rear exit. Evidence at trial disclosed that as Murphy and his friend were being ejected, one of the group of four observed that they were being ejected through the front door and exclaimed, “ They ’ re leaving through the front. ” Zuber, J. of the Ontario Court of Justice (General Division) said the following at paras. 8 and 9: 8 On all of the evidence I [sic] find that it was obvious that the fracas that had began within the tavern was not over and would continue. Mr.

Bornais who had some experience in these matters was surprised that Murphy and Cairns were put out at the same time that the group of four was ejected. It was his view that the trouble makers should have been ejected first and that the other two kept inside until the four had departed. Mr.

Resendes the karaoke leader also testified that he was surprised that the two groups were ejected at the same time. 9 It is in my view obvious that it was eminently foreseeable that when Murphy and Cairns were ejected from the tavern that they would be attacked by one or more of the group of four. [ 31 ] Zuber, J. accepted that liability attached to the tavern under these circumstances and imposed liability on the basis that there was imminent danger to the Plaintiff which had originated within the tavern. [ 32 ] The following passages appear at paras. 13 through 18: 13 The second question that arises, is the ambit of the duty.

Mr. Shulgan concedes that if his client had reached home or some other destination and had then been assaulted by any one of the four, the duty of the tavern would not reach so far. He places his case on the narrower proposition that the tavern keeper had a duty to exercise reasonable care in expelling a patron where the danger that awaits is imminent and originated within the tavern. 14 In my respectful view, this proposition is valid and finds support in Jordan House v. Menow.

In that case the Supreme Court found that the duty on the hotel keeper was to take care with respect to the expulsion of an intoxicated patron because of the danger that attended the intoxication. In Dunn v. Dominion Atlantic Railway (1920), 92 D.L.R. 149 the Supreme Court of Canada found a railway responsible in ejecting an intoxicated passenger. The passenger was subsequently killed by another train.

The Supreme Court found that the railway had a duty to exercise due care in putting the passenger off the train. 15 In both those cases the duty to use reasonable care in expelling a patron related to an intoxicated patron. However, I do not regard the principle that emerges from those cases as being confined to the intoxicated patron. 16 It is not necessary or even prudent to attempt to define the outer limit of that duty. The strength of the common law rests in its experimental and inductive quality - moving from case to case in the development of principle.

In this case it is sufficient to say that the tavern owner had an obligation to exercise reasonable care in expelling Murphy from the tavern in view of the fact that imminent danger which originated within the tavern awaited him outside the door. 17 Turning to the next question, I find that the tavern failed in its duty towards Murphy. Turning again to Jordan House v. Menow, Laskin, J. observed at p. 248: There is, in my opinion, nothing unreasonable in calling upon the hotel in such circumstances to take care to see that Menow is not exposed to injury because of his intoxication.

No inordinate burden would be placed upon it in obliging it to respond to Menow ’ s need

for protection. A call to the police or a call to his employer immediately come to mind as easily available preventive measures; or a taxi- cab could be summoned to take him home, or arrangements made to this end with another patron able and willing to do so. 18 In the case at hand no inordinate burden would be placed on the tavern keeper in obliging him to allow Murphy and Cairns to stay inside the tavern until the group of four had departed the area or to call a taxi for Murphy and Cairns or to allow them to call a taxi or to summon the police.

The failure to do any one of these simple things in my view constitutes a breach of the duty owed to the plaintiff. [ 33 ] The Supreme Court of Canada in the case of Stewart v. Pettie , 1995 CanLII 147 (SCC) , [1995] 1 S.C.R. 131 said the following at para. 39: ...courts have increasingly required a duty to act where there is a “ special relationship ” between the parties. Canadian courts have been willing to expand the kinds of relationships to which a positive duty to act attaches.

Wilson J. reviewed cases where the courts will require a positive action on the part of the defendant, and said at p. 1197: The common thread running through these cases is that one is under a duty not to place another person in a position where it is foreseeable that the person could suffer injury. [ 34 ] I accept that Kingsway owed a duty of care to Lam and Huynh who had been patronizing one of the licensed drinking establishments on the premises.

I do not accept, however, that Kingsway became a guarantor or insurer of the safety of patrons. [ 35 ] The real issue is whether or not on this evidence Kingsway breached a duty of care to Lam and Huynh in that it was or should have been foreseeable that they would be assaulted by Forster and Callan. [ 36 ] A number of cases, in addition to the Memphis decision, were cited to me, and I note that each of these cases very much turns on its own facts.

In my view, the somewhat murky evidence here presents a markedly different factual situation than the factual situation which was presented before Zuber, J. in the Memphis case. [ 37 ] Here, it is uncontroverted that there was no altercation within Pinky ’ s Lounge. Staff did not observe any altercation whatsoever between Lam, Huynh and Forster and Callan, and indeed the only knowledge which Kingsway had of the first altercation was the information given to Lavallee by Forster.

There is no evidence as to what Forster said or whether what he said was truthful or untruthful. [ 38 ] Unlike the situation in the Memphis case, there is no evidence here that there was any verbal or physical clue that the altercation was likely to continue. Moreover, while the size of the tavern in the Memphis decision is not described in the decision, it appears that it was a stand alone establishment whereas Pinky ’ s Lounge was part of a large hotel complex.

When Forster and Callan left Rock Central by the northwest door, they would have been approximately 200 feet and around the corner of the premises from the entrance to Pinky ’ s Lounge. [ 39 ] There is no evidence that when Forster and Callan entered Rock Central, they were belligerent or caused a disturbance, and it is uncontroverted that they left voluntarily when asked to do so by Lavallee.

There is no evidence as to how long Forster and Callan stayed in Rock Central, and even if I were to assume that they only stayed for a short period of time, there is no evidence as to how it was that Forster and Callan encountered Lam and Huynh a second time, which led to the serious beating. This is a critical gap in the evidence as on Lam ’ s testimony Lam and Huynh should have walked in the opposite direction towards the south taxi stand. [ 40 ] On the evidence, there is no rational explanation as to why Lam and Huynh were at the northwest corner of the premises or anywhere near that location.

This raises the troubling possibility that they walked over to confront Forster and Callan as they exited the northwest entrance to Rock Central. If this did occur, clearly, no liability could attach to Kingsway. [ 41 ] Even if I were to assume, however, that there was some other legitimate reason for Lam and Huynh to have been at the northwest corner of the premises, there is nothing in the evidence from which I can conclude that Kingsway could reasonably have foreseen that Lam and Huynh would have been at the Northwest corner of the premises and thus in position to meet Forster and Callan

once they were asked to leave Rock Central through the northwest entrance. [ 42 ] Cases like the Memphis case have imposed liability where it was apparent that someone would be in imminent danger. I do not accept on this evidence that Kingsway or any of its staff would or should have been aware of any imminent danger to Lam and Huynh as they would have only have had marginal secondhand information as to what had transpired originally, and there was no evidence that staff were expecting any further altercation to occur or that it would have been reasonable to foresee a further altercation.

It was prudent for Kingsway staff to have asked Forster and Callan to leave by the northwest door of Rock Central. On this evidence, Kingsway was under no duty to do more. [ 43 ] Plaintiffs ’ counsel argues that Kingsway staff should have escorted Forster and Callan outside. I do not accept that there was any duty to escort patrons outside under such circumstances where there has been no disturbance caused in the premises and no evidence that any further altercation was likely or being contemplated.

It must be borne in mind that if Kingsway staff had escorted Forster and Callan outside, there would then be fewer staff in Rock Central to supervise the remaining patrons who are owed a duty of care as well. [ 44 ] I conclude that no liability attaches to Kingsway on this evidence, and thus the actions against Kingsway Inns Ltd., John Doe and David Doe is dismissed.

Part IV - Liability of Forster and Callan [ 45 ] The evidence of Wai Lau, which I accept, is that Lam and Huynh were overpowered by Forster and Callan, and that after they were on the ground they were viciously kicked in the head and face areas.

There is no evidence that Lam and Huynh were able to protect themselves and thus were largely defenseless. [ 46 ] Irrespective of how or why the fight started, Forster and Callan, once Lam and Huynh were on the ground, had no legal right to continue the fight, and even if the initial altercation was consensual, there is no authority in Canadian law which allows anyone to severely injure another except in a case of self-defence.

There is no evidence before me that Forster and Callan were acting in self- defence. [ 47 ] I conclude, accordingly, that Forster and Callan are liable on the evidence before me for assaulting Lam and Huynh.

Part V - Damages [ 48 ] Lam and Huynh were severely injured by the assault perpetrated by Forster and Callan. Lam sustained facial smash injuries, together with some brain damage. Huynh suffered a basal skull fracture and suffered a complete loss of vision in his right eye. A series of medical reports were exhibited before me confirming the extent of injuries sustained. [ 49 ] At the outset of the trial, counsel for the Plaintiffs and counsel for Kingsway reached an agreement on damages without prejudice to the issue of liability. The agreement is as follows: (

a) Lam General Damages $107,000.00 Loss of Income $ 10,000.00

Total $117,000.00, inclusive of pre-judgment interest (

b) Huynh General Damages $120,000.00 Loss of Income $ 10,000.00 Future Loss of Income $ 20,000.00 Total $150,000.00, inclusive of pre-judgment interest [ 50 ] In addition, the Plaintiffs are entitled to recover the subrogated claims of the Alberta Hospital Services Commission. [ 51 ] Forster and Callan are not bound by any agreement as to damages reached between the Plaintiffs and Kingsway. [ 52 ] Having reviewed the medical records exhibited before me, however, I am satisfied that the agreement as to damages for both Lam and Huynh is reasonable and supported by the evidence, and am prepared to assess damages against Forster and Callan in these amounts. [ 53 ] No evidence was led regarding the loss of consortium claim of Au Kwai Fung, the wife of Lam, but I am prepared to award her damages for loss of consortium in the amount of $10,000.00, inclusive of pre-judgment interest. [ 54 ] The evidence before me is that Forster and Callan viciously assaulted Lam and Huynh, and the evidence of Wai, which I accept, is that they kicked Lam and Huynh in the head while they were on the ground and actually drove the heels of their shoes into the bridges of their noses.

These were particularly vicious assaults in circumstances wherein clearly they had completely overpowered Lam and Huynh. [ 55 ] The conduct of Forster and Callan was vicious and egregious and warrants an award of punitive and exemplary damages in the amount of $25,000.00 for each of Lam and Huynh.

Part VI - Costs [ 56 ] The Plaintiffs are entitled to recover their costs from Forster and Callan. If Kingsway claims costs, they are to be spoken to within ten days. HEARD on the 19 th day of March, 2003. DATED at Edmonton, Alberta this 24 th day of March, 2003.

__________________________ J.C.Q.B.A.