Jewkes v. Scrosati, 2020 NSSC 228

SUPREME COURT OF Nova Scotia Citation: Jewkes v. Scrosati , 2020 NSSC 228 Date: 20200804 Docket: SAT No. 465231 Registry: Antigonish Between: Creighton Jewkes Plaintiff v. Pablo Scrosati Defendant DECISION Judge: The Honourable Justice John Bodurtha Heard: Oral decision: Written decision: Counsel: November 4, 5 and 6, 2019, in Antigonish, Nova Scotia August 4, 2020 August 26, 2020 Peter Coulthard, Q.C., for the Plaintiff Michael P.

Scott and Heather Wyse for the Defendant By the Court: Overview [ 1 ] This is a case about two teenage boys and their pride; pride that ultimately resulted in an altercation that ended their friendship. It is not a surprise that alcohol played a role. [ 2 ] On the evening of July 1, 2015, the Plaintiff, Creighton Jewkes (“Jewkes”), and the Defendant, Pablo Scrosati (“Scrosati”), were celebrating their graduation from Dr. John Hugh Gillis Regional High School in Antigonish. They were both at a graduation party and were consuming alcohol. Scrosati was intoxicated.

Jewkes had embarrassed Scrosati, in front of a couple of young female friends, by challenging his knowledge of First Aid and this made Scrosati angry. They both left the party close to midnight and went to The Wheel, a local pizza establishment in Antigonish.

[ 3 ] At The Wheel, while sitting at a table with a group of male and female friends, Jewkes reached across the table, grabbed Scrosati’s nipple, twisted it, and called him “sugar tits”. Scrosati pushed Jewkes’ hand away and kicked him underneath the table. This angered Scrosati and he left The Wheel. The others, including Jewkes, had Matt Sampson (“Sampson”) drive them to go find Scrosati, who was still very intoxicated. [ 4 ] They found him walking down the road and tried to get him into the car. Jewkes stepped outside the car and put his hands on Scrosati’s shoulders and asked him to get in the car.

Scrosati acted angrily towards Jewkes, pushing his hands off him, and refusing to get in the car. Scrosati found his way home but continued to simmer over his confrontations with Jewkes to the point where he engaged in text messages with Jewkes. The texts resulted in Scrosati leaving his residence at approximately 2:00 a.m. and walking to the residence of Sachin Mohandas (“Mohandas”) where Jewkes was spending the night. When Scrosati showed up, Jewkes was outside with Mohandas and Mohandas’ cousin, Sunil. [ 5 ] Jewkes saw the drunken Scrosati approaching with determination in his eyes and said, “Whoa, whoa, whoa.

Chill.” Scrosati was in no mood to “chill”. He pushed Jewkes and the two engaged in a fight that mainly involved them wrestling and rolling around on the ground. Jewkes did hit Scrosati a couple of times with a closed fist on the back of his head. The fight ended up, as many of their previous altercations had, with Jewkes getting the better of Scrosati. Jewkes had Scrosati pinned up against a tree in a submission hold. Jewkes got up and said, “We are done. This is over, let’s go inside.” Jewkes turned his back and started walking towards the house.

He picked up clothes on the ground belonging to Sunil and continued his walk towards the house. [ 6 ] Scrosati got up and went after Jewkes who, by now, was close to 20 feet away. Scrosati reached him in about three to four seconds, grabbed him by the shoulder, slapped the clothes out of his hands and blocked his way into the house. The two stood face to face, about a foot apart, staring at each other. Scrosati said, “I am going to count down from three and, if you don’t hit me, I am going to hit you.” Jewkes did not react; he did not retreat; he did nothing; his arms remained by his side.

He did not want to back away and “lose face”, but he also believed his friend would not hit him. He trusted Scrosati. Scrosati counted down, “Three-two-one”, and then unleashed a punch, breaking the left side of Jewkes’ jaw. Jewkes fell to one knee with blood coming from his mouth. Scrosati yelled, “You didn’t think I would do it, did you?” Jewkes, who was bleeding significantly and suffering from the blow, went inside. Scrosati remained outside. [ 7 ] As a result of the punch, Jewkes has had five surgeries to repair the break, three of which involved general anaesthetic.

His bite is no longer aligned properly. [ 8 ] The Court must determine whether this was a consensual fight. In my view the first fight between the two men prior to the punch to the jaw was consensual; therefore, any resulting bumps and bruises incurred as a result was clearly consensual. In any event, that altercation ended; it was over. [ 9 ] Scrosati then took it upon himself to attempt to engage Jewkes in another fight. He ran up to him, spun him around, slapped clothing out of his hands and blocked his entry into the house.

He told Jewkes that, if he did not hit him in three seconds, he was going to hit Jewkes. He counted down from three and hit Jewkes, breaking his jaw. This was not a consensual fight, evidenced by Jewkes’ language that the fight was over and his actions: he walked away from Scrosati, he did not hit Scrosati when confronted with the ultimatum, and Jewkes’ arms were by his side, neither in an offensive nor defensive position during those three seconds. [ 10 ] The Defendant has not convinced me that these are the actions of someone looking to engage in a fight.

I am also not persuaded that Jewkes could and/or should have retreated. Jewkes stood his ground but gave no indication he wanted another fight with Scrosati. [ 11 ] There is no need for me to determine whether the punch landed by Scrosati was excessive or unnecessary because of my finding that this was not a consensual fight. [ 12 ] Did Jewkes provoke Scrosati? Clearly, he had at the beginning of the night through his actions, but the punch that broke Jewkes’ jaw happened nearly two hours later. This is too long of a cooling-off period for Scrosati to claim he was provoked.

In addition, it was Scrosati who started the final fight and initiated the earlier fight when Jewkes wanted Scrosati to “chill”. [ 13 ] I find that Scrosati is entirely liable for the damages resulting from his punch that broke Jewkes’ jaw. Scrosati wanted to fight Jewkes that night. The two fought and it was over. Jewkes was the winner. Scrosati’s pride got the best of him and he hunted down Jewkes to engage in another fight. When Jewkes did not accept the invitation to hit Scrosati or choose to retreat, Scrosati felt he had no other choice but to hit Jewkes or be a “pussy”, according to his code. He hit him.

He must now live with the consequences of that punch. Background [ 14 ] At the beginning of the trial, the Court approved Scrosati’s request to withdraw his counterclaim, with costs to be determined after the hearing. [ 15 ] The parties submitted an Agreed Statement of Facts which addresses the medical procedures Jewkes had following the punch. I have also made additional findings of fact after hearing from several witnesses. Additional Facts The Friend Group [ 16 ] In 2015, Jewkes was 18 years old and had just graduated from Dr. John Hugh Gillis Regional High School located in Antigonish.

He met the Defendant, Scrosati, in grade seven or eight. Jewkes and Mohandas were childhood friends. Jewkes knew Sampson from elementary school. [ 17 ] Together with another six boys, they were all in the same friend group which was intact from grade seven or eight. Mohandas

was not a central member of the group; however, he has been a friend of Scrosati’s since grade three and he has known Jewkes since he was three years old. Jewkes became a part of the friend group around grade ten. [ 18 ] Various members of the friend group were always together for lunch, parties and dances. During lunch breaks they hung out together and “horsed around” a lot. It was a very competitive friend group of teenage boys; it was “dog eat dog”. Their primary source of entertainment was to mock each other if someone slipped up.

There were no long-term grudges because the target could be somebody different everyday. As a result, no animosity carried over. One day you could be the “tormentee”, the next day the tormentor. [ 19 ] Everyone wrestled within the group. Their rules were: no kicking, no punching, no biting. They would wrestle and try to get the other person to “tap out”. Tapping out was an action where you would tap the other person’s arm to signify the fight was over. There was a common understanding that, if a person taps out, you were to let them go. The wrestling matches were quite short -- less than five minutes.

The matches were good-natured, and the combatants would discuss the various moves and holds they used. The group remembered who won and lost and, if you lost, you would be made fun of. Scrosati and Jewkes wrestled a lot leading up to the incident. Jewkes won most of the wrestling matches between them. [ 20 ] Scrosati did not like to lose. He generally refused to tap out until the last second. It was a sense of pride to him and he did not like to tap out. On one occasion, at the St. FX gymnasium, Jewkes and Scrosati were wrestling. Jewkes had Scrosati in a headlock.

Scrosati would not tap out and Jewkes had to let him go before he passed out. Scrosati was angry that he let him go. He said, “Why did you let me go, the fight wasn’t over.” He called Jewkes a “pussy”. Scrosati’s definition of a pussy was somebody that did not have the nerve or “guts” to do something. The Party and The Wheel [ 21 ] Jewkes and Scrosati graduated in June 2015. There were a lot of graduation parties occurring. During the week leading up to July 2, 2015, Jewkes slept over at Scrosati’s house several times. [ 22 ] On the evening of July 1, 2015, the friend group went to a party.

Jewkes showed up without Scrosati. He saw an extremely drunk Scrosati at the party. Scrosati testified as to how drunk he was on a scale of one to ten, saying it was about a seven to eight. Jewkes had three to four vodka drinks but testified he was not drunk. Mohandas had three beers. Sampson, the designated driver, was not drinking. Sunil was drunk. [ 23 ] At the party, Scrosati was talking to a group of young female friends about First Aid. Jewkes came over and challenged Scrosati’s knowledge, embarrassing him in front of the group. This angered Scrosati. [ 24 ] The party ended around midnight.

Jewkes and Scrosati left around 11:30 p.m. with a group of friends. Sampson drove the group, which included Monique Gingras, Molly Flynn, Jewkes and Scrosati, to The Wheel to get pizza. Mohandas stayed behind because the car was full. [ 25 ] The group was at The Wheel eating pizza at 11:55 p.m.: see Exhibit 2 (left to right: Scrosati, Gingras, Sampson, Flynn and Jewkes). At The Wheel, Jewkes reached across the table, grabbed, and twisted Scrosati’s nipple, and called him “sugar tits” (a nickname Jewkes called Scrosati).

Scrosati became visibly angry and kicked Jewkes under the table immediately after the nipple twist. Scrosati left The Wheel after the kick and said he was going to McDonalds. He was still drunk and angry. The others remained at The Wheel. [ 26 ] After the group finished their pizza they got inside Sampson’s car and drove down the road to McDonald’s to see if they could find Scrosati. They found him. Sampson tried to convince Scrosati to get in the car but Scrosati was still very angry. He kept swearing and stumbling while talking with Sampson. Jewkes got out of the car and put his hands on Scrosati’s shoulders.

Scrosati pushed his arms away and said, “Get off of me.” Jewkes testified that he never saw Scrosati this angry before. Jewkes did not understand the reason for the anger and was very confused. [ 27 ] Sampson and Jewkes got back in the car and left Scrosati. They went to drop Flynn home and then Gingras. This took close to an hour. While driving back to town, there was a call on Sampson’s cell phone. Jewkes answered it; it was Scrosati. Once he realized Jewkes was on Sampson’s cell phone, Jewkes testified that Scrosati began berating him. It was close to 1 a.m. at this point.

The Mohandases’ Residence [ 28 ] Mohandas’ and Scrosati’s homes are 200 to 300 metres apart. Sampson and Jewkes went back to Mohandas’ house and went inside. Scrosati started texting Jewkes. Mohandas was outside with Sunil who was still very drunk. Sunil had taken off some of his clothing and left it on the driveway. Jewkes was lying in bed when Scrosati started texting him again. The texts were as follows: Text messages – Scrosati You don’t understand but I don’t give a fuck come fucking fight u dumb count Cunt You really are a bitch Jewkes Do it I’m at Mohandass

Scrosati Come down then I’m outside Jewkes Come on up Scrosati I try you your a pussy if you don’t come I said first Jewkes I said first, are we fucking 7 years old Come up your the one whose freakin Scrosati I’ll go up the Jewkes Do it Scrosati I’m here you bitch [ 29 ] It was moments before Jewkes went back outside when Scrosati sent the “I’m here u bitch” text. Jewkes had been goofing around with Sunil and Mohandas in the driveway: see Exhibit 3 (Mohandas, Sunil and Jewkes) and Exhibit 4 (Sunil and Jewkes). Jewkes showed Mohandas the string of text messages from Scrosati.

The text messages irritated Jewkes. [ 30 ] This was the first communication Jewkes had with Scrosati since the phone call in Sampson’s car. At this time, Jewkes did not know where Scrosati was. The texts started at 1:50 a.m. It was about 15 minutes from the first text to the last one. The first and second texts were sent together, the third a couple minutes later. Jewkes still did not know why Scrosati was so angry. Jewkes described Scrosati as the “alpha” in the friend group.

Jewkes was not interested in fighting but felt he needed to say “do it” to “save face” or incur the resulting teasing from Scrosati for backing down. The First Fight [ 31 ] Scrosati walked briskly up the driveway of the Mohandases’ residence. His gaze did not deviate from Jewkes. He was very drunk, and he wanted Jewkes to see how angry he was, and that he was going to have a fight. Scrosati walked around, grunting, and swinging his arms. He had never previously had a fight with Jewkes rooted in anger. Jewkes testified that he had never seen anyone so angry.

Scrosati started yelling as soon as he saw Jewkes and went directly towards him. They were 15 feet apart at this point. Jewkes tried to talk to him. He said, “Whoa, whoa, whoa. Chill.” Jewkes tried to keep talking to him but Scrosati continued coming at him. Scrosati shoved Jewkes hard and continued towards him. Scrosati grabbed Jewkes and tried to start a fight. They started wrestling. Jewkes felt the safest way to subdue Scrosati was to put him in a headlock and try getting in close so he could not hit him. They ended up on the grass behind the driveway. Jewkes took him down to the ground.

They tussled all the way over to the corner of the driveway. The wrestling was different from before because of the demeanour of the combatants. It was more serious. [ 32 ] It was late now, after 2:00 a.m.; however, there were two lights from the garage which lit up the backyard. Mohandas was standing ten feet between them and the house. Mohandas did not do anything to intervene, but he saw the entire fight. He had an unobstructed view.

Towards the end of the fight, Jewkes had Scrosati in a headlock and punched the back of his head four times with a closed fist. [ 33 ] They were wrestling for a couple minutes and then Jewkes had Scrosati pinned. He was holding Scrosati down with his knee on Scrosati’s chest. Scrosati’s arm was sandwiched behind a tree and Jewkes held his other arm down. Scrosati could not get up. Jewkes had him subdued. Scrosati could not hit him in this position. Jewkes felt the situation had safely subsided and got up off Scrosati and said, “This is over. We are done, let’s go inside.” He began walking away.

The Non-consensual Fight [ 34 ] Jewkes headed back towards the house to go inside. Along the way he picked up Sunil’s clothes that were on the driveway. He was about 20 feet from the door in the garage to the house. Jewkes did not hear Scrosati coming from behind. Scrosati covered the distance in about three to four seconds and slapped the clothes out of Jewkes’ hands, grabbed his shoulder, came around in front of him and blocked the doorway to the house. They were about a foot apart, staring at each other.

Scrosati said, “I’m going to count down from three seconds and then I’m going to hit you.” Jewkes was taken aback by this statement, having thought the confrontation was over. [ 35 ] Jewkes did not respond to Scrosati’s comments. Jewkes did nothing as he stared at Scrosati. There was nothing preventing Jewkes from hitting Scrosati during those three seconds. Mohandas did not see anything that indicated Jewkes would hit Scrosati.

Scrosati counted down from three, taking approximately three seconds to finish the countdown. He then punched Jewkes on the left part of his jaw with his right hand. Jewkes recoiled from the force of the punch, fell to his knees, with blood beginning to gush from his mouth. Scrosati took a couple steps back, continued looking at Jewkes, took an aggressive stance and screamed, “You didn’t think I would do it, did you?” Scrosati testified that he thought Jewkes would walk away and let him have a “win”.

He testified, “I had to hit him because he didn’t hit me”, “I had to hit him to salvage my pride.” [ 36 ] Scrosati testified that, after Jewkes got up and said, “This is over. Let’s go inside” and walked away, Jewkes gave no sign he was going to fight anymore. Scrosati testified he got up and went after him. In his mind, the fight was not over and there was nothing Jewkes could have done to stop Scrosati from continuing the fight. Scrosati put himself between Jewkes and the house.

Jewkes walking away was not going to stop it. [ 37 ] Jewkes testified that, in those three seconds he had the opportunity to hit Scrosati, but he had no interest in hurting a friend. He did not believe his friend would hit him; his hands were by his side. Part of the reason Jewkes stood there was because he did not want to back down. His unwillingness to back down played a partial role, but he also did not think Scrosati would hit him. Jewkes was calling Scrosati’s bluff. Scrosati made it physically hard for him to get back inside.

Jewkes felt, if he had backed down, Scrosati would have “shredded him” the next time they saw each other. Jewkes could have extricated himself by walking away in the other direction, but Jewkes did not want to turn his back on him. In his mind, the fight ended when Jewkes got off Scrosati. He did not believe his friend would hit him. [ 38 ] After the countdown Jewkes did not see the punch coming. Jewkes was totally blinded by the punch and fell to one knee. Blood was gushing out of his mouth and he could not close his jaw. He began to “freak out”.

After the punch, Scrosati stood over him and was screaming and yelling. Jewkes went in the house and, while in the house, Sampson helped Jewkes with his injury. Jewkes was dazed and was bleeding. Mohandas’ mother, Minu, woke up. Minu and Sampson got Jewkes a towel. Jewkes was talking about loose teeth and tasting blood. Minu gave Jewkes cotton balls for his mouth and some ibuprofen. He slept in the basement. [ 39 ] Sampson and Mohandas walked Scrosati home about 20 minutes later. [ 40 ] Mohandas testified that, compared to other altercations between Jewkes and Scrosati, this one was a lot more serious.

He never saw someone get punched like that in real life. Jewkes was standing in a neutral position -- neither offensively nor defensively. The After-Effects of the Punch [ 41 ] Jewkes could not close his jaw. He felt two molars out of place. Jewkes called the dentist the next day (July 2 nd ) but was told he needed to go to the hospital. Jewkes went to St. Martha’s Emergency Department, where he was seen by Dr. Jurga. During the x-rays, Jewkes was advised that the jaw was broken in two places. [ 42 ] He then saw Dr. Brennan, a surgeon. It was apparent Jewkes needed surgery to fix the jaw. Dr.

Brennan was a hand specialist and did not feel comfortable operating on him because it was not his area of expertise. He referred Jewkes to a specialist in Halifax, Dr. Stein. [ 43 ] Jewkes and his mother went to Halifax on July 3 to meet with Dr. Stein. Agreed Statement of Facts [ 44 ] The parties submitted an Agreed Statement of Facts that reads as follows: 1. The Plaintiff, Creighton Jewkes (“Mr. Jewkes”) first met with Dr. John Stein (“Dr. Stein”) on July 3, 2015 on an urgent basis at his clinic at the Halifax Infirmary. Dr. Stein had advance information from a colleague, Dr.

Michael Brennan, a plastic surgeon in Antigonish, Nova Scotia, that Mr. Jewkes had sustained a mandible fracture. 2. Mr. Jewkes underwent surgery performed by Dr. Stein on July 4, 2015, which involved placing four screw “posts” above the gum line at the right and left, and top and bottom, with which his jaw was closed in his normal dental occlusion using wires spanning the top and bottom posts.

Incisions were made in the mouth and one small (five millimeter) incision was made below the left angle of the mandible to permit placement of the two titanium plates across each of the two fracture sites to stabilize the fracture fragments. 3. Mr. Jewkes was discharged from hospital on July 5, 2015. He was provided with instructions to avoid going to work or engage in any sporting activities for six weeks. He was also advised to maintain a liquid diet, as his jaw would remain wired shut for two weeks. 4. Mr. Jewkes was seen in the Outpatient Clinic at the QEII Health Sciences Centre on July 17, 2015.

At that appointment, the wires used to hold his jaw closed were exchanged for dental elastics. This permitted a progression of his diet to puréed foods. He was advised to continue with restrictions on work and sporting activities. 5. Mr. Jewkes was seen by Dr. Stein on July 27, 2015. Dr. Stein removed the four screws from Mr. Jewkes’ mouth and permitted eventual full jaw opening. Dr. Stein advised Mr. Jewkes that the restrictions on his diet could be removed. 6. At the appointment on July 27, 2015, Dr. Stein noted a very slight early contact on Mr.

Jewkes’ right-sided teeth and recommended to see his orthodontist to review his occlusion and compare it against his orthodontist’s dental castings/models. Mr. Jewkes was advised to maintain most contact sport restrictions for an additional three weeks but was advised that track and field athletics could resume. 7. Mr. Jewkes was seen again in the Outpatient Clinic on February 2, 2016. He was scheduled for a removal of the exposed hardware on the left gum line, which was removed uneventfully on February 18, 2016.

8. On approximately February 19, 2016, Mr. Jewkes attended his local emergency department with swelling on the left side. He was started on antibiotics by the local physician. 9. Mr. Jewkes was seen in follow-up at the Outpatient Clinic on February 22, 2016 and, by that time, there were no signs of infection. 10. On May 26, 2016, two additional plates from the right side of Mr. Jewkes’ mandible were removed. He was seen in follow-up in the Outpatient Clinic on June 6, 2016. At that time, he had normal occlusion and normal (45 millimeter) jaw opening. He had a complete recovery and was discharged.

Jewkes’ Testimony Regarding the Impact of a Broken Jaw [ 45 ] After the punch, without painkillers, Jewkes would rank the pain around seven to eight on a scale of one to ten. His teeth were dislodged. After the surgery, most pain was felt where he had been hit, but the painkillers lessened the pain. He was administered codeine, Tylenol 3, and liquid hydromorphone. His jaw was wired shut and he had a big pair of wire cutter scissors to cut the wires if he was choking. Jewkes always had them with him because sometimes he would be choking on clotted blood and mucus.

During the weeks after his surgery, a yellow puss would come out of his mouth and he would let it drain out through his teeth. He could not eat solid foods and lost 15 pounds. He was on a liquid diet for the two weeks following the injury. [ 46 ] By August he was able to eat hamburgers and he went back to his lifeguarding duties at Bayfield Beach, Antigonish. His plans for school were to attend St. FX to study Human Kinetics. Jewkes also wanted to try out for track and field and he did so; however, he was not able to jump because the impact hurt his jaw. Dr.

Chiasson recommended no jumping until mid-September (such as high jump and long jump) and no contact sports until the end of September. His jaw would throb while training. He was also going to do basketball as part of his Human Kinetics degree, which he had to change. [ 47 ] Jewkes found that the jaw was not tracking properly and chewing on the left side bothered him. If he was talking for too long the jaw would get tight. He continues to feel the muscular imbalance in his jaw. [ 48 ] Currently, Jewkes says his jaw feels “pretty good”. It clicks every now and then; the teeth are off plane.

The lower lip has 60 to 70% sensation. The upper lip is fine, but his chin has no sensation. He chews on the right side to avoid the teeth on the left side that were dislodged. He is also unable to chew hard things on the left side of his jaw. Testimony of Janine Swales [ 49 ] With respect to his medical appointments, all the travel was facilitated by his mother, Janine Swales (“Swales”) taking him to and from all his appointments.

She paid for his medical prescriptions and for the meals that needed to be prepared while Jewkes’ jaw was wired shut. [ 50 ] She provided an accounting of the various medical physicians that Jewkes saw because of having his jaw broken. This is the same

summary that was put forward in the Agreed Statement of Facts. [ 51 ] When Jewkes had to travel to Halifax for medical appointments, she parked at the QEII. If she was required to stay overnight, she stayed at her brother’s place. The various prescriptions she purchased were hydromorphone, Tylenol 3, antibacterial mouthwash and nasal moisturizing spray. [ 52 ] She had to take time off work to look after Jewkes for the first couple of weeks. While at home, she prepared Ensure drinks, smoothies, soup, and melted chocolate. [ 53 ] Her drug plan covered 80% of the health insurance.

Issues [ 54 ] The issues to be determined in this trial are liability and damages. They can be broken down as follows: (

a) whether Scrosati is liable to Jewkes for any injuries sustained in the altercation on July 2, 2015; and (

b) if Scrosati is liable, what amount of damages is Jewkes entitled to? Liability [ 55 ] In determining whether Scrosati is liable to Jewkes for his injuries I need to consider whether the fight was consensual. Consent can be either express or implied. [ 56 ] If I reach the conclusion that this was a consensual fight, I must ask myself whether Scrosati used “excessive or unnecessary force” when he punched Jewkes in the jaw. Damages [ 57 ] If I find that Scrosati is liable to Jewkes for his injuries, I must determine whether the defence of provocation is available to Scrosati to mitigate the assessment of damages. Analysis

Consent [58] Consent, express or implied, is a complete defence to battery unless the force used by one of the combatants was “excessive orunnecessary force”. The onus is on Scrosati to establish the fight was consensual and that Jewkes’ consent was freely given and genuine: Norberg v. Wynrib, (SCC), [1992] 2 SCR 226, at paras. 26-27, Pacheco v. Degife, 2014 BCSC 1570, at paras. 95-96. [59] Courts have found that, unless the force which is used by one of the parties is excessive or unnecessary, individuals who engagein fights cannot complain of the injuries they suffer: MacMillan v.

Hincks, 2002 ABQB 283, at para. 29. Was There Consent by Jewkes, Either Express or Implied, to thePhysical Altercation with Scrosati? [60] There is no dispute that the battery occurred. The results are clear: it left Jewkes with a broken jaw in two places and dislodgedtwo teeth. [61] The first fight began with a string of texts from two teenagers at various levels of intoxication. [62] Jewkes was surprised to see Scrosati and both agreed that Jewkes tried to calm Scrosati down. He said, “Whoa, whoa, whoa. Chill”. Scrosati admitted that he was looking for a fight and that he was the aggressor.

This was the third time that night he had a disputewith Jewkes. Scrosati initiated the contact by storming up the driveway and shoving Jewkes. This resulted in a tussle that ended up withthe two of them wrestling on the grass. [63] From this point on, the witnesses, Jewkes, Mohandas, Sampson and Scrosati, have various versions of the fight and what led upto it. This is not surprising given that most of the witnesses had been drinking alcohol that night except for Sampson. [64] I accept the evidence of Mohandas who was an eyewitness to the entire fight.

He has no reason to alter his telling of events ormake one of the combatants more favourable in the Court’s eyes. He candidly recounted the events with no spin or bias. [65] Sampson’s evidence is useful for events before and after the altercation at the residence, but he was not present for the twoaltercations. I accept his evidence in describing events leading up to when he went into the Mohandases’ residence. [66] As for Scrosati, if his evidence conflicted with that of Mohandas or Sampson, I do not accept it because Scrosati was extremelydrunk that night.

Mohandas, while drinking, was not drunk, and Sampson was not drinking. [67] Jewkes’ evidence, if in conflict with Mohandas or Sampson, I do not accept it because he was drinking that night, following thesame reasoning as to why I would not accept Scrosati’s evidence. [68] However, there was a definite discrepancy in the giving of evidence between Jewkes and Scrosati. Jewkes was much morehesitant and reluctant to answer unfavourably. Jewkes was more reluctant to admit his involvement in the altercations with Scrosati.

Hisrecollection of some events did not make sense, such as Scrosati kicking him in the cheek, from across the table at The Wheel --something only he recalled and testified to -- which, given the seating arrangement of individuals at The Wheel, would be incrediblydifficult for no one to have noticed (see Exhibit 2 for the seating arrangement at The Wheel). Also at odds is his denial of, or inability torecall, punching Scrosati in the back of the head during their first altercation, something which both Scrosati and Mohandas testifiedoccurred.

Another inconsistency arises around his testimony of not getting out of Sampson’s vehicle to try to get Scrosati in the car,something to which both Sampson and Scrosati testified. [69] Scrosati testified openly and candidly. If his answer was going to portray him in a negative light, he was prepared to accept it. [70] I accept the evidence of Mohandas and Scrosati that Jewkes landed punches to the back of Scrosati’s head. [71] Scrosati testified he was drunk, angry, and out of control. He was not going to be stopped from this fight.

He testified this wasthe first time he had ever had an altercation with Jewkes rooted in anger. Jewkes testified that he had never seen Scrosati in this angeredstate before. Jewkes was confused over the anger and did not know what to do. [72] The evidence is clear from the first fight that the two individuals engaged in a wrestling match. Scrosati and Jewkes weretumbling on the ground, Jewkes threw punches, Jewkes overpowered Scrosati and had him pinned to the ground and his arm wedged upagainst a tree. Jewkes got up and said, “This is over. We are done, let’s go inside,” and walked away.

Jewkes was finished fighting. [73] In Jewkes’ mind the fight was over and his actions demonstrated that he had no interest in continuing the fight with Scrosati. [74] I find that the first fight, that took place at the Mohandases’ residence, ended before the second fight ensued. This was not oneprolonged fight, but two separate fights. [75] The fight was not over for Scrosati. His pride was damaged. He needed to “save face” and, more importantly, he needed to bestJewkes. [76] He got up and went after Jewkes. He got in front of him and blocked his path to the door of the house.

He was in Jewkes’ faceand said, “If you don’t hit me in three seconds, I am going to hit you.” He counted down from three. When Scrosati reached one, hepunched Jewkes in the jaw, breaking his jaw in two places and dislodging two teeth. Jewkes had never been hit that hard and Mohandasconfirmed the viciousness of the blow.

[ 77 ] At the time of the blow, Jewkes was face to face with Scrosati, but his hands were by his side, neither in an offensive nor defensive stance. He just stood and stared at Scrosati. He said nothing and did not act aggressively. He stood his ground. [ 78 ] If Jewkes was interested in continuing the fight with Scrosati, why did he not hit him? He did nothing but watch his friend count down. Why? Partially, because he wanted to “save face” and not back down but mainly because he trusted his friend and did not believe he would hit him. Jewkes did not expressly consent to this fight.

Is standing your ground implied consent? I am not persuaded that Jewkes gave implied consent by standing and staring at Scrosati. Had there been some form of aggression towards Scrosati, such as a head butt, foreheads touching, staring him down, or arms raised in a fighting position (this list is not exhaustive), the situation may have been different but, in my opinion, something more is required than Jewkes standing a foot apart, face to face with Scrosati, to be indicative that the second altercation was consensual. [ 79 ] Scrosati had blocked Jewkes’ way to get back inside the house.

I do not accept that, because Jewkes did not turn and go in another direction, he had consented to the altercation. What was Jewkes to do -- turn his back on the person he had just engaged in a fight with, a person witnesses described as displaying anger that this friend group had never seen before? [ 80 ] Jewkes tried to calm Scrosati down before the first fight by telling him to “chill”. After getting up from pinning him, Jewkes said it was “over”. He was making his way to the house, only to have Scrosati get up, run over, and block his way. Where was Jewkes to go?

Scrosati had blocked his way into the house and testified that he was not going to be stopped from having this fight with Jewkes. This fight was a matter of pride for Scrosati. He was not going to back down because if you backed down you were a “pussy”. He did not want to be a “pussy” or the person who gave up. [ 81 ] Scrosati believed that Jewkes would walk away. He was not asking Jewkes to fight because Scrosati believed that Jewkes would walk away and Scrosati could salvage some pride. Jewkes stood there believing his friend would not hit him.

Unfortunately for both parties, Jewkes did not walk away and Scrosati hit him. Scrosati was stuck. He had no other choice but to hit Jewkes, it was either salvage his pride or be a “pussy” -- a concept that did not sit well with Scrosati. Scrosati had to answer his own challenge. After he hit Jewkes, fuelled by booze, anger and frustration with Jewkes, he screamed, “You didn’t think I would do it, did you?” [ 82 ] Jewkes did not think Scrosati would hit him. His hands were by his side. He trusted his friend.

Scrosati knew Jewkes would not hit him and acknowledged as much with his comment. [ 83 ] Jewkes did not implicitly consent to this fight. His belief was he could stand there and a fight would not ensue because he trusted his friend. [ 84 ] The onus is on the defence to establish that Jewkes consented to another fight. They have not met this burden. Jewkes did not consent to the fight that resulted in his broken jaw. [ 85 ] Scrosati was the aggressor and initiated contact during the first fight. He was drunk and extremely angry at the time.

Excessive or Unnecessary Force [ 86 ] Even if Jewkes had provided implied or express consent to the fight, Jewkes cannot consent to the use of excessive force. [ 87 ] I accept the caselaw presented to me from defence counsel that those who engage in consensual fist fights should accept some degree of responsibility for the injuries that occur and, if Jewkes’ jaw was broken during that initial skirmish, this decision could be entirely different.

However, in this case, Scrosati broke Jewkes’ jaw after Jewkes had gotten up, walked away, picked up clothing from the driveway, verbally declared the fight over, and was heading back inside the house. At that point, Jewkes had withdrawn his consent -- he was no longer interested in fighting Scrosati. [ 88 ] I find that there was no genuine consent by Jewkes to the second fight, either express or implied, because Jewkes told Scrosati they were done, and he was going inside. The fight was over. Therefore, it is not necessary for me to address excessive or unnecessary force.

Provocation [ 89 ] Provocation is not a defence to a claim for assault or battery, but it should be considered in mitigating damages: Nichol v. MacKay , 1999 NSCA 112 , at paras. 14-15 . [ 90 ] Provocation must occur at or shortly before the assault: MacMillan v. Hincks , at para. 32 . [ 91 ] Scrosati testified that he was angry with Jewkes over three things at the beginning of the night:

a) the discussion about lifeguarding v. First Aid;

b) Jewkes twisting his nipple at The Wheel in front of their friends; and

c) Jewkes referring to him as “sugar tits”. None of these actions paint Jewkes as a particularly outstanding citizen, but they are fairly innocent actions between 18-year-olds. However, Scrosati was drunk at the time and took these actions seriously. It angered him, especially since all three actions took place in front of a group of young female friends. [ 92 ] The Court has difficulty accepting Scrosati’s alleged defence of provocation for two reasons. First, the last of these actions that angered Scrosati took place approximately 90 to 120 minutes before the altercation at the Mohandases’ residence.

Clearly, this did not occur at the time of, or close to the time of, the fight. Scrosati had enough time to cool off from any provocation, if any existed. Second, Scrosati admits to being the initiator of the altercation. He went up to the residence to fight Jewkes and he was not going to be stopped. Jewkes may have challenged Scrosati to “save face” by responding to Scrosati’s texts, but it was never his intention to fight Scrosati. When Scrosati showed up, Jewkes tried to calm him down. He did not start the fight. Scrosati cannot rely on provocation if he is the one who started the fight: Jagodnik v.

Oudshoorn , 2015 ABQB 456 , at paras. 36 and 37 . In addition, Scrosati never said that he was provoked, even after he was punched on the back of the head during their first fight. [ 93 ] The Defendant argues provocation is a live issue. The text messages are inviting/provoking Scrosati and it was an unwise

decision by Jewkes to stare Scrosati down. However, Mohandas recanted this version of his statement about Jewkes staring Scrosatidown when he testified. He said he was not sure why he said that, but Jewkes was not staring Scrosati down. The two individuals werestaring at one another. The Court finds this significant because it removes any form of aggression from Jewkes. Jewkes is entitled tostand in his space, which he did. He took no aggressive actions. There was no provocation. [94] In Hurley v. Moore (Nfld.

CA), (NL CA), [1993] NJ No 283, 107 DLR (4th) 664, 112 Nfld. & PEIR 40, 18CCLT (2d) 78, 43 ACWS (3d) 926, the Newfoundland Court of Appeal cited Justice Linden’s text for the definition of provocation atpara. 36: Justice Linden at p. 70 of this text defines provocation in these terms: In order to amount to provocation, the conduct of the plaintiff must have been ‘such as to cause the defendant to lose his power of self-control and must have occurred at the time of or shortly before the assault’.

Prior incidents would have relevance only ‘if it were assertedthat the effect of the immediate provocative acts upon the defendant's mind was enhanced by those previous incidents being recalled tohim and thereby inflaming his passion. One cannot cooly and deliberately plan to take revenge on another and expect to rely onprovocation as a mitigating factor. [Footnotes Omitted] [95] Jewkes did not cause Scrosati to lose self-control. Scrosati was the aggressor/initiator throughout both altercations that occurredat the Mohandases’ residence.

He was angry from much earlier in the night and that anger never subsided, but Jewkes did nothing toreincite those previous incidents which had occurred close to two hours previously. [96] I am not convinced that there was justifiable provocation that would result in this Court reducing the amount of damages Jewkesis entitled to. Damages General Damages [97] General damages are often described as compensation for pain and suffering in a case of physical injury. They are awarded tocompensate the injured party for what they have lost by way of enjoyment of life and amenities: Trenholm v.

H & C Trucking Ltd., 2014NSSC 90, at para. 243. [98] Jewkes underwent five separate procedures from his broken jaw, of which three were performed under general anaesthetic. Hislast medical appointment was in March of 2016. [99] This was a frightening experience for Jewkes and there is no doubt that it has had psychological and physical effects on him. Hewas required to carry wire cutters for two weeks in case he was choking, and somebody had to cut the wires to save his life. He lived off aliquid diet for close to a month. He needed to put off his university exams for a period of time.

He lost sensation in his lips and he cannotfeel food on his chin. It is painful to chew on the left side of his mouth. [100] The Plaintiff argued that the range of damages is $18,000-$35,000 and is seeking $25,000 in general damages and an interest rateof 2.5% from July 15, 2015 until the day of trial. [101] The Defendant believes there are clearer cases to suggest a range and refers the court to Albus v. Stevenson, 2001 SKQB 574, andBuhay v. Robb, 2000 SKQB 125. In Albus, the Plaintiff sustained a broken jaw in one place and underwent a 45-minute medicalprocedure.

The wires were removed later in a 20-minute procedure. The Court awarded damages of $10,000. [102] In Buhay, the Plaintiff suffered a break of the right mandible and, under local anaesthesia, was treated with a closed reduction. After four weeks, the wires used to keep his jaw closed were removed. There is no indication in the decision that any hardware wasinserted. [103] I find Jewkes’ injuries to be more significant than those suffered by the plaintiffs in Albus and Buhay. By comparison, Jewkes’initial surgery was close to seven hours long. The mandibles on both sides of his jaw were broken.

He underwent an open reductioninternal fixation where the gums were excised to realign the bones. His injury required the insertion of four titanium plates which wereheld in place with 17 screws. As well, there were four “screw posts” placed above the gumline at the right, left, top and bottom of the jawto be held closed with wires and then elastics. [104] In addition to the initial surgery, Jewkes underwent two further surgeries, all under general anaesthetic, to remove the hardwarefrom his mouth. Jewkes also had two avulsed molars.

He has lost sensation in his lower lip and the sensation in his chin. [105] I award $20,000 in general damages and an interest rate of 2.5% from July 15, 2015 until the day of trial to the Plaintiff. Cost of Care [106] The Plaintiff is seeking $2,000 for Swales’ cost of care for Jewkes. In support of that position, the Plaintiff has provided thedecision of Crane v. Worwood, (BC SC), at page 19: Donnelly v. Joyce, followed most recently by our Court of Appeal in Hall v.

Miller, states that where a relative provides services needed asa result of the plaintiff’s injuries, which could be provided by a third party, the plaintiff may be awarded damages for their reasonablecost. The maximum award under this head is the cost of obtaining the services outside the family. Where the opportunity cost to the care-

giving family member is lower than the cost of obtaining the services independently, the court will award the lower amount. On the basis of this line of cases, an award can be made to Mrs. Crane and Alicia for the value of the services rendered by Mr. Crane. But there is no authority for the proposition that the award should be the full amount of Mr. Crane’s opportunity cost if it exceeds the reasonable value of the services. [ 107 ] Similar to the case in Crane , what is the evidence and how is it quantified in this case? [ 108 ] Swales stayed home to take care of Jewkes for the first couple of weeks.

While the evidence before me is limited and difficult to quantify, Wood, J. (as he then was) found in Trenholm v. H & C Trucking Ltd. , supra , at para. 269 , that: “Individuals who provide services and assistance to injured family members which go beyond what reasonably might be anticipated under normal circumstances may receive compensation on a quantum meruit basis.” [ 109 ] The evidence is clear that Swales has been a loving and devoted parent to Jewkes. She has provided all the assistance she can to Jewkes, from making meals, to driving him to various medical appointments, and providing comfort and support.

In addition, she took time off work to take care of Jewkes. [ 110 ] I am prepared to award a modest quantum meruit award in the amount of $1,000. Travel, Meals, and Accommodation Expenses [ 111 ] Jewkes is seeking recovery based on provincial government rates for travel, meals, and accommodation expenses. The expenses were incurred and paid for by Swales. The distances provided were 440 kilometres round trip from Antigonish to Halifax and 240 kilometres round trip for Antigonish to Truro.

A travel rate of $0.4366/km for 2013 was provided to the Court as the best evidence of a rate: (see Civil Service Master Agreement , April 1, 2012 – March 31, 2015, Articles 32, 32.05 and 32.06). [ 112 ] The Defendant argues that the issue with mileage is it is a derivative claim predicated on the doctrine of quantum meruit : see Trenholm , supra , at para. 269. Are the services beyond what would be reasonably anticipated or does this fall within the ambit of what you would expect someone to effectively do?

I find, in these circumstances where Jewkes was receiving general anaesthetic, it is unrealistic to think he would be driving back and forth to his medical appointments. Swales should receive compensation for her mileage at the government rate in the amount of $1,813.76. [ 113 ] With respect to meals and accommodations, Swales stayed with her brother when she had to overnight in Halifax because of Jewkes’ medical procedures. I find this is an expense that should be covered given the fact that Jewkes had no other means of transportation back and forth from Halifax.

I rely on the same reasoning for travel expenses when awarding meals and accommodations at the government rate in the amount of $707.50. Interest on Out-of-Pocket Expenses [ 114 ] I award interest on out-of-pocket expenses at a rate of 5%. Subrogated Government Claim [ 115 ] Scrosati does not take any issue with the amounts for the subrogated government claim should he be found liable.

As a result of my finding that Scrosati is entirely liable for the damages caused, he is therefore liable for the subrogated government claim in the amount of $13,881.34: see Exhibit 1, Tab 5, pp. 132 & 134 and section 18(1) of the Health Services and Insurance Act, R.S., c. 197. Lost Wages for Jewkes [ 116 ] The Court is not prepared to accept Swales’ evidence regarding Jewkes’ lost wages because of the Best Evidence Rule.

Jewkes could have spoke to this directly and provided Scrosati’s counsel the opportunity to cross-examine. [ 117 ] The Plaintiff submitted Exhibit 1, Tab 8, which showed various amounts earned by Jewkes for refereeing from 2012-2014 to support Jewkes’ claim for lost wages. I find there is nothing to be drawn from the documents because they do not relate to the relevant time period and none of the witnesses spoke about any lost income resulting from Jewkes’ inability to partake in soccer refereeing.

There was no evidence that Jewkes missed any income from games he was scheduled to referee. [ 118 ] Exhibit 9 was a calendar for the months of July and August. It was put to Swales in support of the lost lifeguarding wages for Jewkes for those months. The Court places little to no weight on this document because there was little to no evidence indicating where the document came from, how it was generated, and what inferences the Court was to draw from it. There was not sufficient evidence to be gleaned from the calendar to support a claim for lost wages.

Prescription Amounts [ 119 ] I am satisfied that Swales is entitled to be reimbursed in the amount of $32.42 for the amounts she paid for the prescription drugs that she purchased for Jewkes. Conclusion [ 120 ] I find that Scrosati is entirely liable for the injuries sustained in the altercation on July 2, 2015. I find that the fight was not

consensual. I find damages resulted from the punch thrown by Scrosati and he is one hundred per cent liable for the damages that resulted. [ 121 ] If the parties are unable to reach an agreement with respect to costs, I will receive submissions within 60 days from the date of this decision. [ 122 ] I would ask counsel for the Plaintiff to prepare the Order. Bodurtha, J.