Dunne v. Gauthier

2000 BCSC 1603 Citation: Dunne v. Gauthier Date: 20001106 2000 BCSC 1603 Docket: 12458 Registry: Dawson Creek IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: DAVID DUNNE PLAINTIFF AND: DAVID ALLAN GAUTHIER DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE R.D. WILSON Counsel for the Plaintiff: Leslie G. Dellow Counsel for the Defendant: In Person Date and Place of Hearing/Trial: 25 and 26 October 2000 Dawson Creek, BC I [1] The plaintiff claims monetary damages against the defendant for battery and assault. [2] I find the following facts. [3] In November 1996, Mr. Dunne was a school bus driver for School District 59 (Peace River South). [4] Mr. Gauthier's home was on the bus route served by Mr. Dunne. [5] Mr. Gauthier had four children, customarily riding on the bus driven by Mr. Dunne. [6] On the morning of 21 November 1996, the Gauthier children boarded the bus Mr. Dunne was driving, on schedule. Upon boarding, one of the children informed Mr. Dunne that they would not be returning on the bus following the school day. [7] On the afternoon of 21 November 1996, contrary to the earlier advice, three of the four Gauthier children boarded the bus driven by Mr. Dunne, for the return trip home. No inquiries were made, nor information volunteered, by anyone, concerning the absence of the fourth child, a six year old boy. By the time Mr. Dunne had collected the children, from the schools involved on his route, there were approximately 60 children on the bus. [8] Shortly after the departure of the bus from the school at which the three Gauthier children had been collected, Mr. Gauthier heard a recorded message on his telephone, from his six year old son, who was apparently in distress. [9] At approximately 3:20 on the afternoon of 21 November 1996, Mr. Gauthier telephoned the appropriate office of the school district, and spoke to Ms. Helene Friesen. Among other things, he was rude to Ms. Friesen, and told her that if his son was not on the bus when it got home, he would break both of Mr. Dunne's legs. He apologized for his use of profane language and hung up. [10] Ms. Friesen thereupon contacted her supervisor for instructions, and upon receipt of those instructions, arranged for the youngster to be driven home in the "shop truck". [11] Ms. Friesen then telephoned the Gauthier residence, at approximately 3:30 p.m., and spoke to Ms. Gauthier. Ms. Friesen explained the arrangements which had been made to Ms. Gauthier, and requested that Ms. Gauthier inform Mr. Gauthier of those arrangements. [12] The school bus with the three Gauthier children arrived at the Gauthier home at approximately 3:35 p.m. Fifteen children remained on the bus. Mr. Dunne saw Mr. Gauthier's truck blocking the roadway. [13] The three Gauthier children left the bus, and immediately thereafter, Mr. Gauthier entered and said something to Mr. Dunne about his child having been left at the school. Mr. Dunne reached for the telephone to call the bus garage. Mr. Gauthier took the telephone from Mr. Dunne's hand, tore the cord from its mounting and threw the instrument out of the bus. Then, without warning or provocation, Mr. Gauthier put his arm around Mr. Dunne's neck, twisted it and forced him down. I find that conduct to constitute the battery. Throughout that battery, Mr. Dunne was seatbelted into position, with his foot on the break and the bus transmission in the "drive" position. The bus was stopped on an incline. There was snow on the road. [14] Mr. Gauthier eventually ceased his battering of Mr. Dunne and told Mr. Dunne that if he ever saw him on the road, he would "take" him and the bus "out". [15] Mr. Dunne believed that Mr. Gauthier had the ability to "take" him and the bus "out" because Mr. Gauthier drove a large tractor-trailer unit. I find that Mr. Gauthier's conduct at that point constituted the assault. I further find that Mr. Gauthier's conduct throughout was arrogant and highhanded. [16] Thereafter Mr. Dunne continued his route and discharged all of the remaining children. He was later met by a colleague who drove him to the hospital for emergency medical care. II [17] As a result of the battery, Mr. Dunne suffered the following physical injuries, as confirmed by his general practitioner, Dr. Gorton: Facial abrasions Cervical neck strain Lumbar strain [18] The physical injuries were resolved within two weeks of the incident. [19] As a result of the assault and battery, Mr. Dunne developed the following emotional and psychological symptoms: (a) Profound humiliation at having lost control of the situation by permitting an angry parent to enter the bus in the presence of some 15 children who had been entrusted to his care; (b) Profound humiliation at being battered in the presence of those children; (c) An aversion to driving a school bus, in fear that Mr. Gauthier would perpetrate an intentional collision between his truck and the school bus, while the school bus was occupied by school children entrusted to Mr. Dunne's care; (d) Avoidance of social occasions and environmental situations, for fear of encountering Mr. Gauthier; (e) Hypersensitivity to any encounter with Mr. Gauthier; (f) Depression; (g) Uncontrollable episodes of weeping. [20] Mr. Dunne was referred to a clinical psychologist, Dr. Raymond Shred, by his general practitioner, Dr. Gorton. Dr. Shred opined that Mr. Dunne met the D.S.M. IV diagnostic criteria for post-traumatic stress disorder. In Dr. Shred's opinion, the disorder is a result of the assault and battery of 21 November 1996. [21] Dr. Gorton also referred Mr. Dunne to a psychiatrist, Dr. T.J. Holden. Dr. Holden reported to Dr. Gorton on 7 July 1999. Among other things, Dr. Holden wrote: ... unfortunately, through no fault of his own, his pre-morbid personality seems to be exactly the type that would set an individual up for such a prolonged reaction, particularly at this stage of life. [22] I take Dr. Holden's opinion to be the description of an emotionally vulnerable person, a person with an "eggshell personality". See Gindis v. Brisbourne (1997), 39 B.C.L.R. (3d) 64 (S.C.) and A. (C.) v. C. (J.W.) (1997), 35 B.C.L.R. (3rd) 234 (S.C.), appeal allowed in part (1998), 60 B.C.L.R. (3rd) 92 (B.C.C.A.). [23] Dr. Holden's diagnosis, included, among other things, "major depressive disorder, mild severity but prolonged and untreated" with "P.T.S.D. (Post-Traumatic Stress Disorder) component)". III [24] As a result of his condition, precipitated by the assault and battery of 21 November 1996, Mr. Dunne was unable to perform his duties as a school bus driver from 21 November 1996 to early January 1997. [25] As well, the School District took seriously Mr. Gauthier's threat to "take out" Mr. Dunne and his school bus. The School District elected not to expose the school children to such a risk, and decided not to permit Mr. Dunne to drive a school bus for the District. The District did however, arrange to have Mr. Dunne transferred to a different position, in the school bus maintenance facility. [26] In May 1999 Mr. Dunne saw Mr. Gauthier's vehicle on the school bus maintenance facility property. This observation exacerbated his symptoms, and again he was absent from work between 2 May and 15 May 1999. In Dr. Shred's opinion, Mr. Dunne was justified in not attending his job for that period because Mr. Dunne had good reason to fear for his safety, given his present condition. [27] In the event, Mr. Dunne suffered a loss of pre-trial income of $3,423.94. As well, he incurred special damages in payment of medical expenses for his consultations with the various practitioners in the sum of $1,599.03. [28] Before 21 November 1996, Mr. Dunne lead a conventional social life and was involved in community events. His avoidance behaviours have seriously curtailed these pursuits. [29] As well, Mr. Dunne took a particular interest in raising pure-bred cattle. At 21 November 1996 he maintained a herd of approximately 80 head. His job as a school bus driver facilitated this diversion, because he was away from his farm for approximately two hours in the morning and two hours in the afternoon. Ample time was available to tend to his cattle. [30] His substitute position does not allow of such a schedule. By 1999 Mr. Dunne concluded that he could not maintain the cattle at the level which was obtained prior to 21 November 1996. He decided, therefore, to abandon his diversion which he had enjoyed. He sold the herd. Loss of that diversion has had an adverse effect on his enjoyment of life. IV [31] As I understand Mr. Gauthier, there are three grounds for his defence. [32] First, he told me during his argument, that some time before 21 November 1996, one of his vehicles had been vandalized, by a person or persons unknown, for a reason or reasons unknown. He was mindful of that villainy as he listened to the incoherent message from his distraught son. His anxiety over the unknown precipitated his conduct. [33] Mr. Gauthier's motive may be a relevant factor on a disposition following admittedly unlawful conduct; but I am not persuaded that it is a relevant factor in the assessment of damages, resulting from that admittedly unlawful conduct. [34] Second, Mr. Gauthier argues that Mr. Dunne's reaction to this brief, though violent, encounter is wholly unreasonable. It is out of all proportion to the magnitude of the insult. [35] In this case, that is not an answer. There is uncontradicted evidence that Mr. Dunne had a psychological susceptibility or vulnerability to trauma. The law in these circumstances is clear: ... The well-known "thin skull" rule, ... makes the tortfeasor liable for the plaintiff's injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff's losses are more dramatic than they would be for the average person. Athey v. Leonati, [1996] 3 S.C.R. 458 at 468. [36] And: Defendants who injure others must accept the risks related thereto, such as a frail skull or a weak heart. They must also, I think, accept the risk attendant, in a suitable case, on aggravating the condition of a psychotic. Leonard v. B.C. Hydro and Power Authority, [1965] 50 W.W.R. 546 at 553 (B.C.S.C.). [37] Third, Mr. Gauthier contends that he is insolvent. Any award this court would make to Mr. Dunne would be futile because Mr. Gauthier has not the resources to pay such an award. [38] Impecuniosity of a party is not a relevant factor on an assessment of damages. In Andrews v. Grand & Toy Alberta Ltd. (1978), 83 D.L.R. (3d) 452, the Supreme Court of Canada said, at p. 463: An award must be fair to both parties but the ability of the defendant to pay has never been regarded as a relevant consideration in the assessment of damages at common law. The focus should be on the injuries of the innocent party. Fairness to the other party is achieved by ensuring that the claims against him are legitimate and justifiable. V [39] In the assessment of damages, Mr. Dunne seeks the inclusion of aggravated damages. [40] Aggravated damages may be awarded as a component of general damages if the battery has occurred in humiliating or undignified circumstances. [41] The notion of aggravated damages was canvassed in Robitaille v. Vancouver Hockey Club Limited, [1981] 3 W.W.R. 481 (B.C.C.A.). The facts were these. Mr. Robitaille was a professional hockey player. He sued the hockey club which employed him, for damages for personal injuries he had sustained while playing hockey. Mr. Robitaille had recurring trouble with a shoulder injury which the Club's doctors and management contributed to mental, rather than physical, causes. Mr. Robitaille was ordered to play, and apparently sustained a minor spinal cord contusion in a game on 12 January 1977. Although he had been promised medical attention, his injury was ignored. In another game one week later, Mr. Robitaille sustained another spinal cord injury which left him permanently disabled. At p. 510, the Court of Appeal approved this statement of the law by the trial judge: ... If, in addition to committing the wrongful act, the defendant's conduct is "highhanded, malicious, conduct showing a contempt of the plaintiff's rights, or disregarding every principal which actuates the conduct of a gentleman", (to quote a few examples taken from the authorities) his conduct is an element to be considered as a circumstance of aggravation which may, depending upon its extent or degree, justify an award to the injured plaintiff in addition to the actual pecuniary loss which he has sustained. I do not think that it can be stated with any precision what may be classed as aggravating circumstances but malice, wantonness, insult and persistent repetition have always been regarded as elements which might be taken into account. [42] The factors of highhandedness and humiliation are present in this case. An award of aggravated damages is therefore appropriate. VI [43] In Keirstead v. Lehoux, [1997] B.C.J. No. 399, this court approved the following passage from A.M. Linden, Canadian Tort Law, 3rd Edition (Toronto: Butterworth's, 1982) at p. 40: So seriously is the tort of battery viewed by the courts, that, unlike the situation in negligence, a defendant will be held liable for all of the consequences of his wrongful conduct, whether they were intended or not and whether they were foreseeable or not. [44] I have followed Keirstead in that regard. [45] I agree with Mr. Gauthier that the precedents relied upon by Mr. Dunne, in the assessment of damages, are clearly distinguishable on their facts. However, those precedents do indicate a range for awards for these torts in this court. I assess Mr. Dunne's general damages at $15,000, which is inclusive of aggravated damages of $5,000. [46] In summary, Mr. Dunne is awarded the following: General damages, inclusive of aggravated damages $15,000 Past wage loss 3,425 Special damages 1,600 TOTAL $20,025 [47] In addition, Mr. Gauthier will pay court order interest, calculated on Registrar's rates, on the past wage loss. [48] Mr. Gauthier has requested the cancellation of the registration of a charge against title to real property, Parcel Identifier No. 014-459-639. That charge was registered pursuant to an order made 17 April 2000. The charge was authorized as a condition of an order adjourning the trial of this matter, on Mr. Gauthier's application, of 17 April 2000. The trial has now concluded. I will therefore order that the Registrar of Land Titles at Prince George shall cancel that charge upon presentation of a certified copy of the entered order arising from these reasons. [49] Finally, Mr. Gauthier will pay Mr. Dunne's costs of this action. Those costs will be assessed on Scale 3. "R.D. Wilson, J." The Honourable Mr. Justice R.D. Wilson November 30, 2000 -- Memorandum to the Legal Publishers advising the date of the release of the Reasons for Judgment.