McLean v. Thompson & Thompson Date:, 2011 BCPC 15

Citation: McLean v. Thompson & Thompson Date: 20110124 2011 BCPC 0015 File No: 36630 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MARJORIE MCLEAN CLAIMANT AND: RYAN THOMPSON and TANYA THOMPSON aka TANYA KNOWLES DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. R. HARRISON Counsel for the Claimant: R. Lammers Appearing on their own behalf: Ryan Thompson and Tanya Thompson Place of Hearing: Kamloops, B.C.

Date of Hearing: January 18, 2011 Date of Judgment: January 24, 2011 [ 1 ] This action arises out of injuries suffered in August 2006 by the Claimant when she was bitten twice by a large wolf-dog hybrid owned and kept by the two Defendants. The circumstances of that event and issues relating to liability were dealt with in a judgment given December 16, 2009: McLean v. Thompsons , 2009 BCPC 415 (CanLII) , 2009 BCPC 0415 . The present reasons relate to the determination of damages. [ 2 ] Ms. McLean, 57 years old at the time of the injuries, has claimed for lost wages in the amount of $1,355.47.

The amount of this aspect of the claim is not disputed by the Defendants. [ 3 ] Ms. McLean also claims $228.79 in special damages, being mileage charges at $.35 per kilometer for attendance from her home in Ashcroft to see her doctor in Logan Lake and for tests in Kamloops. The Thompsons take issue with Ms. McLean’s claim for mileage costs to see her doctor in Logan Lake, on the basis that there were other doctors she might have seen in Ashcroft and that the Defendants should not be saddled with this unnecessary cost. Ms. McLean responded that her family doctor, Dr.

Szezapaniak , had attended upon her for many years prior to these events and started treating her for these injuries while still in Ashcroft. When Dr. Szezapaniak moved her practice to the nearby community of Logan Lake, she continued to be Ms. McLean’s physician. I am satisfied that these travel expenses are reasonable and compensable costs. In addition, the $21.20 cost to Ms. McLean of an effective counselling book recommended by a mental health professional is not in dispute. Special damages will accordingly total $249.99. [ 4 ] General (non-pecuniary) damages are claimed by Ms.

McLean in the range of $20,000.00 to $25,000.00. The Defendants respond that general damages in the amount of $1,000.00 would be more appropriate. [ 5 ] Cases cited to me by the Claimant included Meloche v. Bezaire , [2005] O.J. No. 947 ; Sommerville v. Malloy , [1999] O.J. No. 4208 ; LeBlanc v. Bert , [2006] N.B.J. No. 338 and Gyorffy v. Johal , [1991] B.C.J. No. 763 . The Defendant cited Stanford v. Robertson (1946) 1946 CanLII 241 (AB KB) , 3 D.L.R. 313 ; Gaudry v. Binning 1996 CanLII 6795 (SK KB) , [1996] 149 Sask. R. 250 ; Sgro v. Verbeek (1980) 1980 CanLII 1745 (ON SC) , 111 D.L.R. (3d) 479 ; Strynatka v.

Forbes , [2002] BCPC 481 and Singh v. Chini [2005] CarswellOnt 7965 . [ 6 ] The injuries suffered by Ms. McLean as a result of the bites were not trivial or insignificant. She suffered two puncture wounds on each thigh. The bites were soon associated to large areas of bruising. The wounds had to be dressed and the dressings changed

frequently over the first two weeks. These were painful injuries at the time they occurred and the pain persisted for a considerable period of time. Ms. McLean was unable to work for two weeks. She was not physically able to fully resume ordinary activities for months thereafter. Persistent pain at the site of the bite injury on her left leg required surgical intervention under local anaesthetic more than a year after the injury occurred. A 2.6 cm subcutaneous mass was dissected and excised.

The surgery, which itself required some further recovery time, gave pain relief but both wound sites remain sensitive to pressure today. [ 7 ] As with many such cases, there was a significant degree of emotional distress following the attack. Ms. McLean suffered nightmares and flashbacks in the period immediately following the attack. She was weepy, anxious and emotional. She developed a persisting anxiety towards and fear of dogs, particularly with respect to large dogs large or dogs off leash. A loss of confidence inhibited some of her outdoor activities after she was physically able to resume them. [ 8 ] Dr.

Szezapaniak observed a number of physical and emotional symptoms which she described as meeting the diagnostic criteria of Post Traumatic Stress Disorder. Dr. Szezapaniak said she prescribed cognitive therapy for Ms. McLean. Ms. McLean pursued this in the fall of 2006 and found both the therapy and a handbook recommended by the therapist to be very helpful. Many of these nervous symptoms resolved within the first year, though Ms. McLean is still often anxious about dogs. [ 9 ] The two bite scars on the right thigh are both 1 cm across and 5.8 cm apart.

On the left thigh the two bite scars were 1 cm and .7 cm across respectively and 5 cm apart. Ms. McLean was also left with a 5 cm surgical scar on the left thigh between the two bite scars. Dr. Szezapaniak said that the scar areas were raised and prominent and were clearly visible when Ms. McLean wore shorts of a modest length, though they were not so prominent, she said, as to draw the eye immediately to them. Ms.

McClean described her scars as white in colour and said that she wore long shorts to hide the scarring, primarily to avoid the upsetting questions and discussions about their origins that their appearance provokes. [ 10 ] To be clear, I have accepted the evidence of Dr. Szezapaniak and I am satisfied that the evidence of Ms. McLean regarding the extent and impact of her injuries is not exaggerated. [ 11 ] Awards for general damages in the cases cited vary according to their facts and also of course on their age. For example, the 1946 award of $750 in the case of Stanford v.

Robertson , cited by the defendants, is no doubt worth many times that in current dollars. Chief Judge Baird Ellan, as she then was, commented in Strynatka v. Forbes in 2002 that a review of dog bite cases resulting in permanent scarring ranged between about $1000 to $5000, noting that cases involving children tend to be higher . On the facts found in this case, that range may be low. [ 12 ] In all the circumstances of this case, including the nature of the injuries suffered, the permanent scarring, the emotional distress, and the need for subsequent surgery to relieve Ms.

McLean’s pain, I assess general damages at $7,500. [ 13 ] The Cliamant is entitled to judgment against the Defendants in the amount of $1,355.47 for lost wages, $249.99 in special damages and $7,500 in general damages. The Claimant will also be entitled to filing and service fees. [ 14 ] The Claimant has also asked to be heard on an application for an order under Rule 20 (2) for payment of reasonable charges and expenses directly related to the conduct of the trial.

This matter is referred to the Judicial Case Manager for the scheduling of a one hour hearing on that application, as soon as reasonably possible. _______________________ Stephen R. Harrison Provincial Court Judge