Assault Victims successfully claim Damages

Posted by Injury Lawyers of Ontario on April 18, 2018

If you were injured in an assault, whether or not the assailant was found guilty of a criminal assault charge, you may be eligible to claim damages for any injuries stemming from the assault, including psychological injuries.  You may also be entitled to long-term disability (LTD) benefits if your injury prevents you from being able to complete the essential tasks of your job (and if you have LTD coverage).  If you were injured as a result of anyone’s negligent action or your LTD benefits were unfairly denied, call a respected personal injury lawyer at Injury Lawyers of Ontario to find out about your legal rights in the matter and get strong legal representation against the negligent party and/or insurer.

Assaults may arise out of many different circumstances, including a domestic assault incident, but any such event that results in injury and losses for a victim of assault may be grounds for a personal injury claim.  The following three cases involve different scenarios that gave rise to a civil suit for damages.

Kerins v. Deroche: Aggravated assault in a tavern results in civil suit  

In Kerins v. Deroche, a man sought damages after he was assaulted in the face by another patron at a Fox and Fiddle tavern in Richmond Hill.  The defendant smashed a glass into the plaintiff’s face when the plaintiff mistakenly sat in a seat the defendant was reserving for a member of his group. The assault ripped the skin of the (then) 20-year old plaintiff’s lips, nose, eye and cheek. He was transported by ambulance to York Central Hospital, where about 200 stitches were needed to close the wounds, mostly in his mouth.  The procedure to repair his face, including re-aligning his upper lip, lasted about 4 to 5 hours and required 25 needles to freeze his face. 

The defendant pled guilty to a criminal charge of assault causing bodily harm.

The plaintiff later underwent reconstructive surgery which improved the appearance of scarring; however, he was left with some permanent disfigurement. For a year and a half after the assault, the plaintiff largely remained indoors because cold weather caused him pain and numbness. He wore a bandana to hide his injuries for as much as 10 months.  In addition to his physical injuries, the plaintiff suffered emotionally from the assault; he continued to feel self-conscious, embarrassed and humiliated in connection with his appearance.

Justice Bryant asserted that the plaintiff suffered from a ‘vicious assault’ and his scarring is permanent, although the impact of the scars is more emotional than physical.  The judge awarded the plaintiff $45,000 in general damages for pain and suffering, as well as an award for past loss of income.  The amount to be awarded was reduced by $17,500 already received in a settlement with the Fox and Fiddle tavern. 

Shaw v. Shaw: Domestic assault case

Another case, Shaw v. Shaw arose after a woman was allegedly assaulted by her husband. The alleged assault resulted in a serious fracture to the plaintiff’s right wrist, requiring surgery and the insertion of a metal plate and screws.  The plaintiff gave evidence that she suffers ongoing pain and some disability due to the injury and has required medical care and therapy.

The defendant was found not guilty of the criminal charge of assault causing bodily harm and he denied assaulting his wife.

In the civil suit, the onus was on the plaintiff to show, on a balance of probabilities, that her husband intentionally caused harmful contact.  (A civil action carries a different onus of proof than a criminal trial, where the Court must make a determination based on reasonable doubt).

In Shaw, the trial judge did not dispute the fact that the plaintiff badly injured her wrist after an argument with her husband; however, there was some question whether the injury resulted from her husband’s actions or an accidental fall on the front walkway of their home.  The judge found weaknesses in the evidence given by both parties, but was more inclined to believe the plaintiff’s testimony, which was corroborated by statements made by the arresting officer and the defendant’s then 16-year-old son.

The judge concluded that the defendant pushed or threw the plaintiff out of the house and thus caused the injury to her right wrist.  As a result of the accident, the plaintiff has a reduced range of motion in that wrist and also suffers significant ongoing pain and discomfort.  As she is right-hand dominant, the injury impacts her ability to function in tasks necessary for daily living, many of which she does while in pain. The court  awarded the plaintiff $65,000 in general and aggravated damages, $25,000 in loss of competitive advantage, and an amount for future care costs (to be determined post-trial by an actuary).

DiGiorgio v. Smardenka: Assault between neighbouring Toronto business owners

The third civil suit arose following an altercation between two men who owned neighbouring businesses, a video store and a tavern, on Bloor Street in Toronto.  The tavern owner became enraged when he found garbage (left by a customer of the other business) in the laneway behind the store which blocked access to his bar.  The altercation resulted in extensive injuries to the store owner, including broken ribs.

There was disagreement in the testimony of the two men describing the altercation.  It was alleged that after an initial exchange of pushes, which was initiated by the bar owner, the store owner fell to the ground where he was repeatedly kicked by the other man.  Police officers who came to the scene declined to charge the bar owner with assault.

In DiGiorgio v. Smardenka, the injured man sought damages against the owner of the bar who allegedly assaulted him. In addition to being kicked, the plaintiff alleged that the defendant also gouged his eyes and tore off his glasses while he was in a fetal position on the ground. The plaintiff testified that, as a result of the incident, he is now fearful of future assaults by the defendant.  He also suffers from recurring headaches, as well as breathing problems and chest pain, likely associated with his fractured ribs.  The plaintiff was not hospitalized for his injuries, but his account was substantially corroborated by medical testimony.  Two medical experts for the plaintiff, a physician and psychologist gave evidence that the plaintiff suffered emotional damage – he repeatedly re-lives, and is distressed by, the events of the assault and has developed post-traumatic stress disorder (PTSD) as a result of the attack. This diagnosis was shared by a psychiatrist testifying for the defence.  None of the physicians believed that the plaintiff exaggerated his injuries and the judge concluded that the plaintiff’s emotional and physical complaints are genuine. 

The plaintiff and defendant related a different version of the events, but the judge found the defendant’s testimony to lack credibility and believed that the plaintiff gave an accurate account of the altercation.  The judge concluded that the plaintiff met the onus of proving, on a balance of probabilities, that he suffered ongoing physical and psychological injuries resulting from the assault by the defendant.  It was noted, however, that the plaintiff’s injuries were not disabling and did not interfere with his work.   The judge awarded general damages for pain and suffering in the amount of $50,000, as well as special damages for out-of-pocket expenses.

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