Cooke v. Lavorato, (2000) 265 A.R. 243 (QB)

• Judge: Jones, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 26, 2000
• Citations: (2000), 265 A.R. 243 (QB);2000 ABQB 441

Cooke v. Lavorato (2000), 265 A.R. 243 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. JN.069

Robert Wayne Cooke (plaintiff) v. David Charles Lavorato and Laura Lavorato (defendants)

(Action No. 9601-07835; 2000 ABQB 441)

Indexed As: Cooke v. Lavorato

Alberta Court of Queen's Bench

Judicial District of Calgary

Jones, J.

May 26, 2000.

Summary:

The plaintiff sued the defendants for assault.

The Alberta Court of Queen's Bench dis­missed the plaintiff's action against the female defendant, holding that the plaintiff failed to prove his case. The court allowed the action against the male defendant.

Damage Awards - Topic 103

Injury and death - Head injuries - Lacer­ations and abrasions - The plaintiff alleged that the female defendant assaulted him - The defendant allegedly scratched and bruised the plaintiff's face and pulled out clumps of hair - The Alberta Court of Queen's Bench dismissed the action against the female defendant, holding that the plaintiff failed to prove that she assaulted him - However, the court provisionally assessed non-pecuniary damages at $2,500 - See paragraph 32.

Damage Awards - Topic 107

Injury and death - Head injuries - Bruises - [See Damage Awards - Topic 103 ].

Damage Awards - Topic 109

Injury and death - Head injuries - Frac­ture of facial bones - The male defendant assaulted the plaintiff by punching him several times during an altercation - The plaintiff, 32 years old at trial, suffered the loss of his eyesight in his left eye and a broken cheekbone - The cheekbone healed in a satisfactory manner - As a result of the eye injury, the plaintiff had trouble judging distance, tinting colour which directly related to his employment as an autobody painter and reading - He was no longer able to play ball - The Alberta Court of Queen's Bench awarded $80,000 non-pecuniary damages considering the seri­ousness of the assault, the fact that the plaintiff had been aggressive and obnox­ious at the time of the incident and future employment loss - The court refused to order punitive damages - See paragraphs 34 to 37.

Damage Awards - Topic 122

Injury and death - Head injuries - Hair - [See Damage Awards - Topic 103 ].

Damage Awards - Topic 226

Injury and death - Eye injuries - Loss of sight in one eye - [See Damage Awards - Topic 109 ].

Damage Awards - Topic 628

Torts - Injury to the person - Assault and battery - [See Damage Awards - Topic 109 ].

Damage Awards - Topic 2011

Exemplary or punitive damages - Assault and battery - [See Damage Awards - Topic 109 ].

Damages - Topic 1017

Mitigation - In tort - Reduction due to plaintiff's conduct or provocation - [See Damage Awards - Topic 109 ].

Torts - Topic 3196

Trespass - Assault and battery - Defences -Self-defence or defence of third party - Cooke was visiting his girlfriend - An argument occurred between Cooke and his girlfriend's roommate and an altercation ensued - The roommate telephoned her father, Lavorato - Lavorato arrived at the apartment - Cooke claimed that Lavorato approached him and punched him on the left side of the head, pulled him down, sat on top of him and continued to punch him in the head - Lavorato claimed that Cooke attacked him and that he was only defend­ing himself - Cooke was impaired and 100 pounds smaller than Lavorato - The Alberta Court of Queen's Bench held that Lavorato was liable for assault - The court could not determine how the altercation started - However, even if Cooke had attacked Lavorato, Lavorato used excessive force by continuing to punch Cooke after he had control of the situation - See para­graphs 27 to 31.

Cases Noticed:

Cook v. Lewis, [1951] S.C.R. 830, refd to. [para. 30].

Hatton v. Webb (1977), 7 A.R. 303 (Dist. Ct.), refd to. [para. 30].

Martin v. Martin et al. (1995), 159 N.B.R.(2d) 81; 409 A.P.R. 81 (T.D.), refd to. [para. 30].

Brake v. Parsons (1986), 59 Nfld. & P.E.I.R. 330; 178 A.P.R. 330 (Nfld. T.D.), refd to. [para. 30].

Cachay v. Nemeth (1972), 28 D.L.R.(3d) 603 (Sask. Q.B.), refd to. [para. 30].

Faltus v. Thomson et al. (1990), 106 A.R. 14; 73 Alta. L.R.(2d) 75 (Q.B.), refd to. [para. 30].

Faltus v. Bazel - see Faltus v. Thomson et al.

Cottreau v. Rodgerson (1965), 53 D.L.R.(2d) 549 (N.S.S.C.), refd to. [para. 30].

MacDonald v. Hees (1974), 18 N.S.R.(2d) 451; 20 A.P.R. 451; 46 D.L.R.(3d) 720 (T.D.), refd to. [para. 30].

Cullen v. Rice and Loringley Investments Ltd. (1981), 27 A.R. 361 (C.A.), refd to. [para. 30].

Hartlen v. Chaddock (1957), 11 D.L.R.(2d) 705 (N.S.S.C.), refd to. [para. 30].

Miska v. Sivec, [1959] O.R. 144 (C.A.), refd to. [para. 30].

Mann v. Balaban, [1970] S.C.R. 74, refd to. [para. 30].

Lee et al. v. Leeming (1985), 58 A.R. 204 (Q.B.), refd to. [para. 32].

Ellone v. Mesa (1997), 31 O.T.C. 120 (Gen. Div.), refd to. [para. 34].

Zachariais v. Snow, [1992] B.C.J. No. 1825 (S.C.), refd to. [para. 34].

Counsel:

H. Chipman, for the plaintiff;

B. Higgs, for the defendant.

This action was heard on May 1, 2 and 3, 2000, before Jones, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judg­ment on May 26, 2000.