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BC Contributory Negligence Assault Injury


Personal injury lawyers in Surrey for assault

Our personal injury lawyers in Surrey handle all kinds of Surrey personal injury cases from Surrey slip and falls to Surrey bicycle accidents and even personal injury cases in Surrey that arise from an assault. When you suffer a Surrey personal injury – no matter how serious – our MacLean Law personal injury lawyers in Surrey are here to help. We have offices in Kelowna, Surrey, Vancouver and Fort St. John and can be reached for a free consultation toll free at 1 877 602 9900.

Our personal injury lawyers in Surrey warn people that believe it or not, even if you are the victim of an assault, your own behaviour before the incident can have a considerable effect on your claim for injuries. Our personal injury lawyers in Surrey want people to know in advance that they need to take steps to keep themselves safe from harm and injury. Our first goal is to protect you from injury but if you do suffer a Surrey personal injury our focus is to get justice for you.

There are a variety of affirmative defenses that can be raised against tort actions. An “affirmative defense” admits the act as having taken place, but acts as an excuse for the defendant’s action, and negates or lessens civil liability. Affirmative defenses are, in effect, counter-charges brought against the tortious action, sometimes implicating the plaintiff himself and, in any event, barring the plaintiff’s claim completely or to a degree. A skilled Surrey personal injury lawyer will help you to avoid these pitfalls that a defence lawyer can and will use to minimize, reduce or even eliminate the money award in your case. MacLean Law’s personal injury lawyers in Surrey will tenaciously pursue your claim in the face of these attempts to block your recovery.

Because brawls or conflicts with private bar or club security or personnel tend to arise from the gradual escalation of mutual conflict, contributory negligence is commonly raised by insurance companies, for example, if the establishment is sued. If it can be proven that the plaintiff’s own negligent actions were the result of his damages, then the defendant’s liability is reduced proportionately under Section 1 of the Negligence Act (British Columbia).

MacLean Law’s Personal Injury Lawyers in Surrey Will Help Navigate the “Defences” that May Damage Your Case

The recent decision in Robinson v. Bud’s Bar Inc., 2015 B.C.J. No. 2111 offers a stark example of how even the victim can be found at fault – and pay the price. In that case, a bachelor party had been held to celebrate one defendant’s upcoming wedding. The bachelor was dressed exotically and carried a 32-pound metal ball with a two-foot chain, which his brother had supplied. The plaintiff happened to be at the same bar, and began teasing the bachelor about his clothes and upcoming nuptials. When the teasing escalated, a fight ensued and the plaintiff fell backwards, struck his head on the pavement, was knocked unconscious, and remained in a coma for several days. He suffered a serious traumatic brain injury.

Interestingly, the court found that while the ball and chain was an invitation for derision, it was not an invitation to invade the bachelor’s personal space and harass him:

How does provocation or contributory negligence operate in the circumstances?
131 Apart from provocation, the defendant Leelund Turner says that any damages that might be awarded to the plaintiff should be reduced for contributory negligence for the fault of the plaintiff. Contributory negligence it appears may have application even in cases of intentional torts: Logeman v. Rossa, 2006 BCSC 692, [2006] B.C.J No. 963 (QL), but here the plaintiff’s claim is advanced in negligence, not an intentional tort, and it seems clear that this defence is available to the defendant Leelund Turner if he satisfies the burden of establishing fault on the part of the plaintiff caused or contributed to his loss.
132 Section 1(1) of the Negligence Act, R.S.B.C. 1996, c. 333 provides:
If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault.
133 Has the defendant demonstrated that the plaintiff failed to use reasonable care for his own safety and the lack of care caused or contributed to the plaintiff’s injuries? Apportionment is based on fault. The definition of fault for the purposes of the Negligence Act was described in Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219 (B.C.C.A.):
[19] … The Negligence Act requires that the apportionment must be made on the basis of “the degree to which each person was at fault”. It does not say that the apportionment should be on the basis of the degree to which each person’s fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, “fault” means blameworthiness. So it is a gauge of the amount by which each proximate and effective causative agent fell short of the standard of care that was required of that person in all the circumstances.
134 I find it is useful to define provocation now because the facts that the defendant Leelund Turner relies on to establish contributory negligence overlap the facts relevant to provocation. As to provocation, I refer to this passage from Lewis N. Klar, Q.C., Tort Law, 5th ed. (Toronto: Carswell, 2012):
Provocation has been defined as “conduct which caused the defendant to lose his power of self-control, and which occurred at the time of, or shortly before, the tortious act of the defendant.” It generally involves insulting or taunting words, or conduct, which, although falling short of assault necessitating a defensive reaction, incite the defendant. Because the plaintiff’s conduct does not require that the defendant take protective action, but merely provokes an often-violent reaction, provocation is not regarded as a complete defence to an intentional tort, nor justification for tortious behaviour. Provocation operates as a type of contributory negligence, mitigating, though not eliminating, the plaintiff’s damages.
135 Several cases are relied upon by the defendants for the proposition that a finding of provocation operates to reduce an award of damages to the plaintiff.
136 In Erikson v Hall, [1995] B.C.J. No. 2475, [1996] B.C.W.L.D. 124 the court reduced the damages suffered by the plaintiff as he “provoked the assault on himself” by first attempting to assault the defendant in the context of a domestic dispute. In Holt v. Verbruggen, 1981 Carswell BC 582, [1981] B.C.J. No. 1427, the plaintiff’s damage award was similarly reduced on the basis that the plaintiff provoked the defendant during a hockey game. The plaintiff’s inflammatory language and provocative conduct was sufficient to reduce the damage award granted to the plaintiff in Postle v. Prebushewski, 1985 Carswell BC 1781, [1985] B.C.W.L.D. 4324. As the court described:
[21] … For if a plaintiff deliberately embarks upon a course of conduct which provokes another by words or gestures and an assault results, it cannot be said that the plaintiff is without blame. He has contributed to his injuries and must accept a share of the responsibility and resulting loss. It would be unfair in these circumstances to award that person full compensation for his losses if he has contributed to those losses.
137 In Pacheco, Skolrood J. discussed provocation in the context of fault under the Negligence Act. He said this in finding a defendant was not acting coolly and deliberately when provoked and struck the plaintiff from behind:
[105] In Bruce v. Coliseum Management Ltd, 165 D.L.R. (4th) 472, [1998] B.C.J. No. 2339 at para. 18 (C.A.) the court adopted the definition of provocation in Canadian Tort Law as follows:
In A.M. Linden, Canadian Tort Law, 6th ed. (Vancouver: Butterworths, 1997) at 81, provocation is explained as follows:
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 asserted that the effect of the immediate provocative acts upon the defendant’s mind was enhanced by those previous incidents being recalled to him and thereby inflaming his passion”. One cannot coolly and deliberately plan to take revenge on another and expect to rely on provocation as a mitigating factor.
138 Has the defendant Leelund Turner established that damages should be reduced for either or both of contributory negligence or provocation? The facts of the incident are relevant to both and I will now review whether the plaintiff was contributorily negligent or provoked the negligent conduct such that the damages should be reduced.
139 Although there are many cases that discuss contributory negligence and provocation, the particular facts, I find, are of great significance. The plaintiff referred me to a number of authorities, all quite different factually.
140 I find on the evidence that both men were intoxicated. I find that the plaintiff came up to the defendant Leelund Turner and teased him and persisted to do so despite being told to leave and being asked by his friend or friends to get going. I do not conclude that the defendant Leelund Turner held the plaintiff before pushing him as counsel suggested. I find the plaintiff had a reasonable opportunity to extricate himself from the situation. The plaintiff could easily have walked away but the plaintiff persisted to tease Leelund Turner. The push was sudden and careless but it followed the Leelund Turner’s plea to Mr. Robinson to leave him alone.
141 I find that in these particular circumstances the defendant Leelund Turner has satisfied me that the plaintiff was both contributorily negligent and provoked the negligent push. In these particular circumstances the concepts overlap to a degree. While I recognize that alcohol consumption is not itself negligence, here I find that the plaintiff was intoxicated to the extent that he persisted to be rude to the defendant Leelund Turner in close quarters despite being told to back away by Leelund Turner and being told by his friend that he should leave. I find that for Mr. Robinson to persist as he did to tease the defendant Leelund Turner at close quarters, he was partly at fault for the injury.
142 I think that the conduct of the plaintiff also amounted to provocation. While the plaintiff’s counsel says that the conduct does not meet the definition of provocation, I think in the circumstances of this case that it can easily be inferred from the evidence that the persistence of the plaintiff at close quarters that was rude and aggressive caused the defendant Leelund Turner to momentarily lose his power of self control and push the plaintiff abruptly, forcibly and carelessly away, resulting in the fall.
143 While I do not find that the defendant Leelund Turner has proven that had Mr. Robinson not been intoxicated, the drastic results of the fall would have been avoided, I think that Mr. Robinson must bear some responsibility because of his fault in approaching the defendant Leelund Turner and persistently teasing him at close quarters.
144 Accordingly although I find the defendant Leelund Turner liable, I find that both contributory negligence and provocation have been proven by the defendant Leelund Turner and that the damages incurred by the plaintiff as a result of the defendant’s negligence must be reduced by 30%.

At the time of trial, the plaintiff already was 24 years old, and had made a considerable recovery. However, he still exhibited cognitive and neurological deficits that caused ongoing permanent disabilities, including mental health challenges that required medication. Ultimately, his provocation cost him $237,000 of a $790,000 damage award.

Don’t let justice be turned into a blame game. If you have suffered a severe injury at fault of another, the personal injury lawyers at the Surrey office of MacLean Law firm are experienced, proven and relentless. It is our business to help you overcome the legal hurdles that insurance companies inevitably will put up to minimize the compensation that you may desperately need. The longer you wait to call; the other side will have to try to spin the evidence, and the storyline, their way. Call us across BC toll free at 1 877 602 9900 to speak confidentially and at no charge with one of our senior and highly experienced personal injury lawyers in Surrey. We have offices in Kelowna, Surrey, Vancouver and Fort St. John.

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