Damages reduced since ruling finds that injured party provoked other person
The Court of King’s Bench of Alberta recently reduced its award of damages for personal injuries in an assault and battery lawsuit upon determining that the plaintiff provoked the defendant by initiating physical contact.
The plaintiff and defendant first met around 2008. Their relationship soured over the years. When the plaintiff was in Egypt, his former spouse and his children moved in with the defendant for some time. The plaintiff suspected that the defendant was trying to pursue his then-wife.
The defendant became concerned about his safety due to the plaintiff stalking and harassing him. In 2013, the defendant got a restraining order. Though the defendant was told not to personally serve the restraining order on the plaintiff, he arranged a meeting at a Tim Hortons in northeast Calgary.
In the coffee shop, the plaintiff touched the defendant’s arm, which was allegedly a cultural greeting. The defendant responded by kicking and punching the plaintiff repeatedly even after the plaintiff turned away. Police arrived at the scene. An ambulance took the plaintiff to the hospital.
The plaintiff sued the defendant for damages for personal injuries for alleged assault and battery. The plaintiff claimed that the defendant attacked him unprovoked in Tim Hortons and later on verbally assaulted him at the courthouse on three separate occasions in 2017.
The plaintiff requested general damages of $100,000 for his injuries and $91,000 for loss of income. The plaintiff also wanted the defendant to reimburse the cost of the ambulance ride and the costs of medical reports that he obtained for the purposes of this litigation.
In Ismail v Hammad, 2024 ABKB 482, the Alberta Court of King’s Bench ordered the defendant to pay the plaintiff $1750 in total general damages, consisting of $2500 in general damages minus 30 percent for provocation.
The court also awarded the plaintiff $351.47 in special damages for the ambulance ride. However, the court dismissed his claim for lost income based on insufficient evidence.
The defendant committed assault and battery against the plaintiff, the court decided. The defendant used unreasonable and excessive force in the circumstances, which prevented him from relying on self-defence or consent by the plaintiff to the fight as defences, the court explained.
On the other hand, the plaintiff provoked the defendant by touching his arm, which the defendant perceived as a threat and as an act of initiating a physical altercation, considering the long and bitter history between the parties, the court determined.
The court rejected the plaintiff’s argument that the defendant verbally assaulted him thrice while at the courthouse. The court noted a lack of evidence backing this claim and the plaintiff’s inability to recall specific details.
