It is a common misconception that if you have suffered an injury as a result of an assault, your only recourse is through the criminal justice system. Depending on certain factors, this may not be the case and you may be entitled to also pursue compensation for your injuries and losses against the assailant.
In this case, the 33 year-old female plaintiff was attending a party at a dinner dance hall in 2007 (13 years ago). She was dancing on the dance floor when suddenly and without warning she was deliberately (and aggressively) pushed to the floor by the defendant causing her to fall onto the floor resulting in a fractured elbow which required hospitalization for 5 days and surgery. As a result of the elbow injury, the plaintiff was disabled from returning to work for some time. This had a devastating impact on her as the women’s clothing shop specializing in Indian attire which she owned and operated ultimately went out of business. Furthermore, she was left with permanent limitations in her elbow into the future.
In this case, the plaintiff was awarded $120,000 for pain & suffering plus additional compensation for her loss of earnings.
It is important to note that the above case is not a motor vehicle accident matter and, therefore, is not subjected to any “caps” and/or the “no fault” system that ICBC has invoked and/or announced.
Further, because the defendant’s actions were clearly high handed and intentional, the plaintiff also sued for aggravated and punitive damages. Although she was not successful in being awarded punitive damages, she was successful in her pursuit of aggravated damages. As the Court stated:
 …put simply, aggravated damages are compensatory; punitive damages are not. While there may be some overlap in the facts relevant to establishing each of these heads of damage, each rests upon a different foundation and the purpose of awarding each is different.
 Aggravated damages are awarded to compensate a plaintiff for actual damage that is aggravated by the defendant’s high-handed conduct. Intangible elements such as grief, humiliation or embarrassment can provide the foundation for such an award. They are measured by the plaintiff’s suffering: Huff at 299.
 In contrast, the objects of punitive damages are retribution, deterrence and denunciation as opposed to compensation. In Bowen Contracting Ltd. v. B.C. Log Spill Recovery Co-operative Association, 2009 BCCA 457 at para. 23, the Court of Appeal summarized the following ten principles which the Supreme Court of Canada found, in Whiten v. Pilot Insurance Co., 2002 SCC 18, to apply when considering punitive damages:
1. Punitive damages are not limited to particular "categories" of wrongs, although by their nature they will "largely be restricted to intentional torts";
2. The general objectives of punitive damages are punishment, deterrence of the wrongdoer and others, and denunciation;
3. Since the primary vehicle of punishment is criminal law, punitive damages should be resorted to only in "exceptional cases and with restraint";
4. The use of pejoratives such as "high-handed" or "oppressive" does not provide useful guidance (or discipline) to judges or juries and a more principled approach is desirable. (Notwithstanding this, the Court said at para. 94 that punitive damages are to be imposed only if there has been "high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.");
5. In setting punitive damages, the court should ask itself "in particular" how an award would further one or other of the objectives of the law and what is the lowest award that would serve the purpose;
6. It is "rational" to use punitive damages to relieve a wrongdoer of its profits where compensatory damages would amount to "nothing more than a licence fee to earn greater profits through outrageous disregard of the legal or equitable rights of others."
7. A "formulaic" approach should be avoided. The court should focus not on the plaintiff's loss but on the defendant's misconduct;
8. The overall award should be rationally related to the objectives for which punitive damages are awarded;
9. Juries should receive more help from judges concerning the function of punitive damages and factors governing such awards and the assessment of a proper amount;
10. Punitive damages are not "at large" and an appellate court may intervene if an award exceeds the outer boundaries of a rational and measured response to the facts of the case.
 In addition, punitive damages are considered only after the remainder of the damage award has been determined because if the other components are sufficient to meet the objectives of punitive damages, there is no need for a further award: Morrow at para. 300; Rycroft at para. 164.
 In my view, there are intangible elements to Ms. Singh’s suffering as a result of the assault that have not been adequately compensated by the non-pecuniary damages award. Ms. Singh was pushed to the floor by a virtual stranger out of the blue, in the presence of her friends and acquaintances. This was embarrassing. She was humiliated in front of her community. She lost friendships as a result. Much of her social network was destroyed. These circumstances warrant additional compensation to augment the non-pecuniary damages already awarded. I award Ms. Singh $10,000 in aggravated damages.
 Dr. Reddy’s conduct was clearly wrong and it warrants sanction. There is a need to denounce and deter such self-indulgent, uncivilized, and dangerous conduct. However, I have already awarded Ms. Singh damages exceeding $350,000. In my view, an award of that magnitude, which is not likely to be covered by any insurance policy, sufficiently achieves the objectives of retribution, deterrence and denunciation. Accordingly, I decline to make a punitive damages award.
What does this mean for you?
In you have suffered an injury as a result of an assault, you may have the right to claim compensation for your injuries and losses. In fact, in addition to damages for pain and suffering and income loss, you may also have the ability to pursue aggravated damages and punitive damages depending on the circumstances. As noted above:
- To prove aggravated damages, it will be important to evidence that the defendant’s conduct was high-handed, intentional, and that it caused you suffering such as, inter alia, grief, humiliation, or embarrassment.
- To prove punitive damages, it will be important to consider and evidence the 10 steps noted above.
The personal injury lawyers at Holness and Small Law Group have over 20 years of experience in representing individuals who have been injured as a result of an assault. Contact us for a free initial legal obligation to learn more about your legal rights.