Herman v. Graves et al., (1998) 217 A.R. 275 (QB)

• Judge: Mason, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 29, 1998
• Citations: (1998), 217 A.R. 275 (QB)

Herman v. Graves (1998), 217 A.R. 275 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. MY.041

Jesse Herman (plaintiff) v. Larry T. Graves and Jeanette L. Jackson (defendants)

(Action No. 9501-12448)

Indexed As: Herman v. Graves et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Mason, J.

April 29, 1998.

Summary:

In an episode of road rage, Jackson chased Herman's vehicle. She eventually rear-ended it forcing it off the road. Jackson's passen­ger, Graves, got out and punched Herman in the face severely fracturing his nose. Herman fell and Graves began kicking him. Herman sued Graves for assault and battery and Jackson for assault.

The Alberta Court of Queen's Bench allowed the action. The court awarded Her­man compensatory damages and punitive damages against Graves and Jackson.

Damage Awards - Topic 110

Injury and death - Head injuries - Nose - In an episode of road rage, Jackson chased Herman's vehicle - She eventually rear-ended it forcing it off the road - Jackson's passenger, Graves, got out and punched Herman in the face severely fracturing his nose - Herman fell and Graves began kicking him - Jackson remained in the vehicle - As a result of the fractured nose, Herman, a 17 year old, suffered a deviated septum that blocked his nasal airway - Herman underwent surgery to correct the deviated septum - Herman, a choral singer, was sensitive about his appearance, felt that the injury made his voice sound more nasal and the breathing difficulties it caused affected his singing - Herman sued Graves for assault and battery and Jackson for assault - The Alberta Court of Queen's Bench allowed the action - The court awarded Herman compensatory damages of $16,000 against Graves and $750 against Jackson - See paragraphs 36 to 41, 73, 76.

Damage Awards - Topic 628

Torts - Injury to the person - Assault and battery - [See Damage Awards - Topic 110 ].

Damage Awards - Topic 2011

Exemplary or punitive damages - Assault and battery - Herman passed Jackson - Jackson claimed that Herman's brother made an obscene gesture and Herman twice hit his brakes after passing - Jack­son chased Herman - Eventually Jackson rear-ended Herman's vehicle, forcing it off the road - Jackson's passenger, Graves, got out and punched Herman in the face se­verely fracturing his nose - Herman fell and Graves began kicking him - Jackson remained in the vehicle - Graves and Jackson left the scene - They ignored a flyer seeking the assailants - Herman sued Graves for assault and battery and Jackson for assault and sought punitive damages - Graves had pleaded guilty to criminal assault and was sentenced to one day's imprisonment and one year's probation - The Alberta Court of Queen's Bench allowed Herman's action - The court held that Graves should pay $5,000 for punitive damages but reduced it to $3,500 con­sidering the criminal penalties - The court ordered Jackson to pay $1,000 punitive damages - See paragraphs 43 to 55, 61 to 63, 75, 76.

Damages - Topic 1017

Mitigation - In tort - Reduction due to plaintiff's conduct or provocation - The Alberta Court of Queen's Bench held that provocation could only be used to reduce exemplary or punitive damages and not compensatory damages - See paragraphs 64 to 70.

Damages - Topic 1017

Mitigation - In tort - Reduction due to plaintiff's conduct or provocation - Her­man passed Jackson - Jackson claimed that Herman's brother made an obscene gesture while passing and Herman twice hit his brakes after passing - Jackson chased the Herman vehicle - Eventually Jackson rear-ended Herman's vehicle, forcing it off the road - Jackson's passen­ger, Graves, got out and punched Herman in the face severely fracturing his nose - Herman fell and Graves began kicking him - Herman sued, inter alia, Graves for assault and battery - Graves claimed pro­vocation as a result of Herman's and his brother's actions - The Alberta Court of Queen's Bench rejected the defence of provocation where the events were far removed from the assault and Graves' and Jackson's actions were out of proportion - See paragraph 71.

Damages - Topic 1302

Exemplary or punitive damages - Assault and battery - [See Damage Awards - Topic 2011 ].

Damages - Topic 1323

Exemplary or punitive damages - Bar - Conduct of claimant - [See first Damages - Topic 1017 ].

Torts - Topic 3182

Trespass - Assault and battery - Assault - What constitutes - Herman passed Jackson - Jackson claimed that Herman's brother made an obscene gesture while passing and Herman twice hit his brakes after passing - Jackson chased the Herman vehicle - Eventually Jackson rear-ended Herman's vehicle, forcing it off the road - Jackson's passenger, Graves, got out and punched Herman in the face severely fracturing his nose - Herman fell and Graves began kicking him - Jackson remained in the vehicle - Herman sued Graves for assault and battery and Jackson for assault - The Alberta Court of Queen's Bench allowed Herman's action - Jackson had used the vehicle as a weapon of assault by chasing and rear-ending the Herman vehicle - The court held that Jackson was not a joint tortfeasor in the assault and battery by Graves - See paragraphs 56 to 61.

Torts - Topic 3199

Trespass - Assault and battery - Defences - Provocation - [See second Damages - Topic 1017 ].

Torts - Topic 7162

Joint and concurrent tortfeasors - Joint tortfeasors - What constitutes - [See Torts - Topic 3182 ].

Cases Noticed:

Bruce v. Dyer (1966), 58 D.L.R.(2d) 211 (Ont. H.C.), affd. [1970] 1 O.R. 482 (C.A.), refd to. [para. 35].

Vorvis v. Insurance Corp. of British Col­umbia, [1989] 1 S.C.R. 1085; 94 N.R. 321; 58 D.L.R.(4th) 193; [1989] 4 W.W.R. 218; 36 B.C.L.R.(2d) 273; 90 C.L.L.C. 14,035; 25 C.C.E.L. 81, refd to. [para. 45].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129, refd to. [para. 46].

735619 Ontario Ltd. v. Stone (1989), 36 C.P.C.(2d) 313 (Ont. H.C. Master), refd to. [para. 49].

Loomis v. Rohan (1974), 46 D.L.R.(3d) 423 (B.C.S.C.), refd to. [para. 49].

Herbert v. Misuga (1994), 116 Sask.R. 292; 59 W.A.C. 292; 111 D.L.R.(4th) 193 (C.A.), refd to. [para. 50].

Check v. Andrews Hotel Co. et al. (1974), 56 D.L.R.(3d) 364 (Man. C.A.), refd to. [para. 64].

Shaw v. Gorter (1977), 77 D.L.R.(3d) 50 (Ont. C.A.), refd to. [para. 64].

Reeves v. Pollard (1977), 10 A.R. 349 (T.D.), refd to. [para. 64].

Lane v. Holloway, [1967] 3 All E.R. 129 (C.A.), refd to. [para. 64].

Fontin v. Katapodis et al. (1962), 108 C.L.R. 177 (Aust. H.C.), refd to. [para. 64].

Landry v. Patterson (1978), 93 D.L.R.(3d) 345 (Ont. C.A.), refd to. [para. 64].

Hurley v. Moore (1993), 112 Nfld. & P.E.I.R. 40; 350 A.P.R. 40; 18 C.C.L.T.(2d) 78 (Nfld. C.A.), refd to. [para. 64].

Murphy v. Culhane, [1976] 3 All E.R. 533 (C.A.), refd to. [para. 64].

Miska v. Sivec (1959), 18 D.L.R.(2d) 363 (Ont. C.A.), refd to. [para. 71].

Cassell & Co. v. Broome, [1972] A.C. 1027 (H.L.), refd to. [para. 74].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed. 1976), vol. 12, para. 1190 [para. 48].

Klar, Lewis N., Tort Law (1996), pp. 39 [para. 57]; 40, 41, 43 [para. 58].

Linden, Allan M., Canadian Tort Law (6th Ed. 1997), p. 45 [para. 57].

Waddams, Stephen M., The Law of Dam­ages (Looseleaf Ed.), paras. 11.210 [para. 47]; 11-470 [para. 55]; 11.450 [para. 68].

Counsel:

C.R. Suntjens, for the plaintiff;

J.A. Clark, for the defendants.

This action was heard before Mason, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the fol­lowing judgment on April 29, 1998.