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Assault leads to damages award

Hauer & Co. > Damges  > Assault leads to damages award

Assault leads to damages award

In the recent case of Basic v. Barjaktarovic, 2019 BCSC 142, the court addressed issues on liability and damages with respect to an alleged assault and battery occurring in September 2012.  At some point, in or around October of 2010, the defendant, Mr. Barjaktarovic, asked the plaintiff to fix a broken metal gate at his home. To thank him for his help, Mr. Barjakarovic gave the plaintiff a bottle of homemade Slivovic brandy, which he accepted and took home with him, unopened. The plaintiff suffered from a delusional disorder, persecutory type, and seems to be one of long standing. The plaintiff’s paranoia has been described as progressive and has been present since at least 2007. He believed he was under surveillance by the RCMP. He also believed that Mr. Barjakarovic had urinated in the brandy before giving it to him.

At approximately 8:15 a.m. on Thursday September 27, 2012, the plaintiff had just dropped his son off at school and went to the coffee shop. After he parked his truck and walked out of the parking garage towards the entrance of the coffee shop, Mr. Barjaktarovic, who was sitting at a table outside the coffee shop, got up and walked toward him to confront him. He said that Mr. Barjaktarovic began to curse at him about the statements the plaintiff had made about him urinating in the brandy. Mr. Barjaktarovic punched him in the chin with a closed fist, causing him to be confused and unsteady on his feet, and then delivered a number of punches to his chest. The plaintiff went inside the coffee shop where he talked to an employee who called the police.

By the time the case went to trial Mr. Barjaktarovic had died. The Estate defendant denied that the incident occurred and alleged, in the alternative, that if physical contact is made out, that the plaintiff started the altercation and that Mr. Barjaktarovic was acting in self-defence or that Mr. Barjaktarovic was provoked by the plaintiff.

The Court could not reach a conclusion that some other person (John Doe) was the aggressor. The Court could not reach the conclusion that Mr. Barjaktarovic’s contact, if any, was made in self-defence. The Estate defendant contended that due to the plaintiff’s inconsistencies and paranoid beliefs, his evidence could only be accepted if corroborated.

The Court accepted that the event is one that plaintiff would be unlikely to forget. His description of the incident was consistent with the injuries documented by the hospital records in the 24 hours following the incident, and by the police photographs. The Court found nothing substantive with respect to minor inconsistencies of an event that occurred over six years ago. While the plaintiff did insist that a third man assisted Mr. Barjaktarovic in assaulting him, the Court found that the efforts of that person were to separate him from Mr. Barjaktarovic, and not to assist Mr. Barjaktarovic. There is no question that the plaintiff was injured on September 27, 2012. His injuries are consistent with the sort of incident he recounted.

The Court found no evidence upon which it could reach the conclusion that the plaintiff’s actions caused Mr. Barjaktarovic to lose his self-control or that Mr. Barjaktarovic was acting in self-defence.

Despite his paranoia, the Court accepted that the incident involved the plaintiff being attacked by Mr. Barjaktarovic, without justifiable provocation. His paranoia has resulted in unwarranted beliefs that he is the subject of a plot by the RCMP and others to harm him. While he clearly harboured the unreasonable belief that he does about the RCMP, those beliefs have to do with the basis for his misfortunes, and not the misfortunes themselves, other than the manipulation of his bank accounts and medical records. While the court rejected his view that the RCMP orchestrated or set up the incident, the fact remains that an incident occurred at the coffee shop and that the plaintiff sustained injuries as a result of that incident.

The Court found the plaintiff suffered one broken rib, which continued to cause him discomfort, and some injury to his temporo-mandibular joint (TMJ), exacerbating a pre-existing condition that remains problematic, in part, due to the injuries he sustained in the incident. The Court found that given that most of the plaintiff’s injuries resolved within a matter of weeks from the incident, with the notable exception of his chest pain, which the Court accepted is causally related to the incident.  The Court found that the addition of his chest and some of his breathing difficulties have played a modest role, but a role nonetheless, in his enjoyment of life. The Court found that he is entitled to $30,000 for non-pecuniary (pain and suffering) damages.

The plaintiff also received an award of $5,000 for aggravated damages due to mental distress and received an award of $5,000 for punitive damages to address the reprehensible aspect or the need for specific and general deterrence and denunciation of the conduct of Mr. Barjaktarovic. Special damages in trust were awarded for the Minister of Health in the amount of $1,090.47, for a total of $38,590.47, together with interest thereon, pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79.

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