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TYPES OF DAMAGES - For personal injuries - Non-pecuniary loss

Wednesday, December 05, 2018 @ 8:36 AM  

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Action for non-pecuniary damages for personal injuries suffered when the plaintiff was forcibly escorted from a court house by two sheriffs employed by the defendant. The plaintiff, 60, had attended at the court house to file some documents. The sheriffs required that the plaintiff’s backpack be searched. The sheriffs claimed that he refused a request by a sheriff to search his backpack and struggled during the escorted removal. The plaintiff claimed that he consented to the search unwillingly but refused to move away from the backpack as requested while the sheriffs searched it. The plaintiff alleged that the sheriffs used excessive force in their efforts to remove him from the court house, causing the plaintiff to suffer a mild head injury and orthopedic injuries to his right arm. In the weeks following the takedown, the plaintiff had problems sleeping, nausea, vomiting, headaches, migraines, increased pain in his right arm and shoulder and decreased use of his right arm and shoulder.

HELD: Action allowed. The plaintiff was awarded non-pecuniary damages of $66,500. The court accepted that the plaintiff did not refuse to have his backpack searched and did not say that he refused consent, despite the sheriffs' testimony to the contrary. The plaintiff refused to move away from his backpack while it was being searched. The sheriffs were negligent since they did not make sufficient attempts in quality or in duration to de-escalate the situation, thereby escalating the situation. When the sheriffs took physical control of the plaintiff, they applied force to him although none of the circumstances set out in the Sheriff Policy Manual were present to justify the application of force. They did not act as reasonable sheriffs would have in all of the circumstances and were in breach of the standard of care. The plaintiff, however, had a negative attitude towards the authority of the sheriffs and displayed it throughout his interaction with the sheriffs. A takedown was not, however, as the Sheriff Policy Manual required, the minimum force necessary in the circumstances. The sheriffs both breached the standard of care in taking physical control of the plaintiff at the outset, in not communicating about what they were going to do in the face of danger they both recognized as soon as they took control of him and in not changing course prior to being in the dangerous position of being on the stairs. The comparative blameworthiness was overwhelmingly on the part of the sheriffs. The plaintiff was found five per cent negligent. This was a violent and traumatic event undertaken by peace officers who placed the plaintiff into a position that caused him pain due to his pre-existing injury, did not listen to him when he told them that, and then exacerbated that injury permanently. In addition, he suffered an open head wound and a concussion. The damage to his rotator cuff and the orthopedic pain was permanent and lasting. He was awarded $70,000 in non-pecuniary damages reduced by five per cent for contributory negligence.

Sweeney v. British Columbia, [2018] B.C.J. No. 3457, British Columbia Supreme Court, Matthews J., October 23, 2018. Digest No. TLD-December32018006