Powley v. Burge Date:, 2014 BCPC 133

Citation: Powley v. Burge Date: 20140428 2014 BCPC 0133 File No: C13619 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: KATHERINE POWLEY CLAIMANT AND: MICHELLE BURGE DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE POTHECARY Appearing on their own behalf: K. Powley Counsel for the Defendant: No Appearance Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: April 28, 2014 Date of Judgment: April 28, 2014 [ 1 ] THE COURT: This is a hearing with respect to evaluation of damages following an assault on Ms. Powley, the claimant, by the defendant, Michelle Burge. [ 2 ] The file has a bit of a chequered history, typically because it has been difficult to get Ms. Burge to court and she is not here again today. The last date that she was to be in court was March 21st, 2014. She was well aware of the date.

It is clear from the notes that have been left on the file that she chose to holiday in Kelowna instead of attending. [ 3 ] That being the case, a default judgment or an interlocutory judgment was entered by Judge Dossa on March 21st when she did not appear and the matter was adjourned to today for an assessment of damages. [ 4 ] In terms of evaluating the damages, I have heard from Ms. Powley about what happened and what the outcome was for her. [ 5 ] In terms of the events, these relate to the evening of March 12th, 2011, just over three years ago. Ms. Powley, with two friends, had gone to a local bar.

She and her friends were dressed for the evening in party clothes appropriate for going out for a special evening. She had, in fact, gone out that evening having been persuaded to go by her friends to have an evening out after dealing with the birth of a young child, as well as a subsequent separation that had been very difficult for her. So she had gone out in a good mood to have a pleasant social evening with her friends. The friends were a woman and a man. [ 6 ] For some reason when Ms. Burge arrived at this bar, she began to behave in an unusual way to Ms. Powley's female friend.

There were insults thrown in her direction, she was aggressive, and frankly speaking, fairly nasty to the friend. [ 7 ] Ms. Powley and her group sat at one side of the bar, at the far side, deliberately to be as far away from Ms. Burge and her group as possible. [ 8 ] Nonetheless, over the course of the next three quarters of an hour, Ms. Burge came over several times to continue her negative verbal comments to Ms. Powley's friend. [ 9 ] Ultimately, she came over one last time and this time apparently armed with a broken beer glass. Although Ms.

Powley did not see it herself, she was aware of the evidence provided at a trial where Ms. Burge was ultimately convicted of assault causing bodily harm to Ms. Powley. According to that evidence, Ms. Burge came armed with this glass already broken. [ 10 ] Ms. Powley was not aware of this. When she saw Ms. Burge starting to strike out at her friend, Ms. Powley tried to intervene by putting her arm out. That was an unfortunate action taken by Ms.

Powley because she is the one who ended up getting the brunt of the injury. [ 11 ] The glass cut her right arm just above and very close to the elbow area in a ragged cut, although clearly one from the depth of it that had to have been made by a cutting instrument of some kind - a broken glass would easily do that – and leaving a deep gaping wound as described by the doctor of some nine centimetres. The sketch and the photographs that have been submitted make it clear that it was jagged in parts, although smooth at the start. It was a very serious wound. [ 12 ] Luckily, one of the friends with Ms.

Powley had first aid training and was able to provide her with immediate assistance in the form of his shirt. She was taken to the hospital where she was treated on an emergency basis. She required some 20 stitches to close this laceration. She was advised that she was lucky in the sense that it had come very close to arteries or other parts of the arm that could have been a great deal more seriously impacted had they also been cut. [ 13 ] Her recovery was reasonably uneventful but it was made more difficult for Ms. Powley because her youngest child was about ten months old at the time.

She had been advised that she could not lift or do anything that required any strength from her right arm, otherwise she risked damaging the repair work that had been done to close the cut. She followed the advice and ultimately the stitches were removed. [ 14 ] She has been left with a substantial scar. It is not simply a line or a mark, but it is also a scar that, depending on how she is sitting with her arm in very ordinary postures, puckers. It is quite evident.

From my distance of some 10 or 12 feet, three years later, it is still easily seen and that is even after the beginnings of some treatment to minimize the scar. [ 15 ] The reality for Ms. Powley is that she is a single mom responsible for two children and has also had to manage her injury in the context of being a single mom. What that means is that the treatments and so forth that she has been able to obtain and additional treatment such as plastic surgery have all been put on hold because of her financial situation.

She is well employed but she does not have a lot of extra money supporting a teenager and a younger child. She also cannot afford to take time off work for recovery from the various treatments. [ 16 ] It goes without saying that the clothing she was wearing on that evening was ruined as a result of all the blood from this very deep cut. [ 17 ] The treatment that she and her doctor had discussed with respect to minimizing or reducing the scar has begun with laser therapy. However, it would seem likely that it is going to need plastic surgery at some time in the future.

It would be better were it done sooner but that is not something she is able to do.

[ 18 ] The pain was managed primarily with Tylenol 3. Again, being a mother with young children, she seems to have worked through that as much as she could simply because she had to.

At the beginning, she had the assistance of her older son, who was a teenager at the time, to deal with the baby, but that, of course, was not a long-term plan because he had to get back to school. [ 19 ] The impact in terms of the personal impact upon her was exacerbated during her divorce trial when the fact of her having been injured while at a bar became an issue on the trial in terms of her lifestyle with the inference being drawn that because she had been injured, she had clearly been involved in a bar fight as opposed to having been the victim of an assault as was obviously found from the criminal conviction verdict that had been entered. [ 20 ] In assessing damages with respect to this matter, I have been provided with two cases by Ms.

Powley. As I commented to her, in my research looking for British Columbia cases dealing with similar matters, the only two cases that came out of all of the ones that I looked at, the dozens, were in fact the same two cases that she had given to me and so I do take some guidance from those cases. They are both B.C. Supreme Court cases. One is Springett v. Shanklin , 2001 BCSC 853 , a decision of Mr. Justice Warren; the second is Kim v. Kwak , 2006 BCSC 641 , a decision of Mr.

Justice Rice. [ 21 ] Both of these relate to incidents that took place in and around –- I think one at a restaurant and one in a drinking establishment where glass was used and ultimately injured the other party. In one case it was a broken beer bottle and in the other case, a beer mug. [ 22 ] What those cases most specifically do is break down the variety of different sorts of damages that can be awarded and the different reasons. [ 23 ] Some of the ongoing difficulties that Ms.

Powley has had include ongoing stiffness in her arm from where the injury took place (it is very close to the bend in her elbow) and of course the scarring. She is a young woman, now 39, she works in a professional capacity. Having a scar of this nature which can be simply described as ugly is a difficult thing for a young woman to have to contend with. She can dress to cover it, but that is not always a realistic alternative. [ 24 ] In reviewing the cases and the damages, I have noted particular things. [ 25 ] Firstly, in terms of the costs of these matters to Ms.

Powley, the two weeks that she missed off work as a result of the injury were not reimbursed to her through work. She had used her sick leave up for the year and did not have other sick leave available to her, so that cost she bore herself. Her shoes and dress were destroyed. The laser treatment is recommended at five to seven sessions; plastic surgery has been recommended at a cost of around $5,000. In terms of plastic surgery, if she does follow through with that which I believe she will, that will also necessitate another two weeks off work.

Hopefully it will heal uneventfully. [ 26 ] All of these different matters total approximately $10,000. So with respect to this matter, in terms of general damages I am fixing those at $10,000. [ 27 ] In terms of special damages for the various items I have set out, I am awarding $10,000. [ 28 ] Then, as is described in these other cases, in this case Ms. Burge armed herself with this glass to come and hurt actually the friend of Ms. Powley. It was a particularly nasty weapon. Broken glasses in bars are notorious for the damage that they do to people. In this case Ms.

Powley, without any contributory negligence on her part, simply thought she was assisting her friend from being hit by Ms. Burge. She did not realize she was, in fact, saving her from being badly cut and badly injured by Ms. Burge. I am satisfied that it is appropriate in these circumstances that I award punitive damages as well. That is in the amount of $5,000. [ 29 ] So damages total $25,000. There are also costs relating to filing fees and service fees of $236.00. So that is the award: $25,236.00. [ 30 ] With that award, Ms.

Powley, you will want to get a book from the registry called "Getting Results" and they will tell what you can do to try and collect it. That may be harder. [ 31 ] KATHERINE POWLEY: I understand she's going to make it difficult. But I want to thank you, Your Honour, for understanding my position as a victim. And I don't know why I'm crying now, but -- [ 32 ] THE COURT: Well, you came very well prepared. I do appreciate that.

You described your story directly and straightforwardly, and I appreciate that too. [ 33 ] KATHERINE POWLEY: I just want to thank you again for understanding my position from the beginning -- sorry. [ 34 ] THE COURT: That is okay. Good luck to you. [ 35 ] KATHERINE POWLEY: Thank you so much. (ORAL REASONS FOR JUDGMENT CONCLUDED)