As discussed in previous blog articles on assault injuries, in law an assault is the intentional creation of the apprehension of immediate harmful or offensive conduct but without actual touching. On the other hand, battery occurs whenever unlawful force is intentionally inflicted on another person that is either physically harmful or offensive to his reasonable sense of dignity.
The main difference between assault and battery is that an assault can occur without actual physical touching as noted in a previous blog post.
Because battery involves the infliction of physical harm, it is obvious that an action can be brought against the person who committed the attack. This is because the attacker physically and directly carried out the battery.
In Andrews v. Shelemey 2021 BCSC 2221, a physical altercation occurred between 3 individuals at a private residence. The injured claimant brought an action against 2 of these individuals alleging that they came to his house after a dispute between them regarding a transmission repair he completed. He alleged that without provocation he was attacked causing him to suffer serious injuries. One of the assailants who denied that he assaulted the injured claimant failed to attend the trial. The other defendant who did attend the trial conceded that an altercation happened, but he alleged it was the injured claimant who started it.
The injured claimant and the defendants (assailants) all had dramatically different versions of what happened. Because there were no independent witnesses, the trial judge assessed the credibility of their evidence and preferred the evidence of the injured claimant over the evidence of the defendants. The factors that were considered by the trial judge when assessing credibility were based on the following summary of the law:
Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Faryna at para. 356).
Having preferred the evidence of the injured claimant regarding the incident, the trial judge concluded that the defendants were liable in both assault and battery before turning to awarding compensation to him.
Based on the medical evidence presented at trial, the injured claimant sustained a number of physical injuries including the following:
- Fractured sternum;
- 2 fractured ribs;
- Compression fracture to the L3 vertebrae
- Broken molar
- Minor cuts and abrasions
- Low back and neck pain
- Psychological injuries
As a result of the physical injuries, the injured claimant was unable to return to work in his previous position as an auto mechanic. Instead, he was limited to part-time light level seasonal work such as mowing lawns. He was also no longer able to cook or to work on cars for fun which is what he previously enjoyed.
The trial judge awarded a total of $652,706.00 in damages which included an award for $100,000.00 for pain and suffering also known as non-pecuniary damages.
Part of this overall award also included $10,000.00 for aggravated damages which take into account intangible injuries such as distress and humiliation that may have been caused by a defendant’s behaviour. In addition, $25,000.00 was awarded for punitive damages to punish the wrongdoer for conduct which is harsh, vindictive, reprehensible or malicious in nature. Unlike the other damage awards, punitive damages are intended to punish the wrongdoer (defendant) as opposed to compensating an injured claimant to deter others from acting in a similar way.