Johnson v. Sarty, (2006) 243 N.S.R.(2d) 8 (SC)

• Judge: Stewart, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 07, 2006
• Jurisdiction: Nova Scotia
• Citations: (2006), 243 N.S.R.(2d) 8 (SC);2006 NSSC 69

Johnson v. Sarty (2006), 243 N.S.R.(2d) 8 (SC);

    772 A.P.R. 8

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. AP.043

Monte Earl Johnson (plaintiff) v. Arnold Sarty and Adam Wade Sarty (defendant)

Arnold Sarty and Adam Wade Sarty (plaintiffs by counterclaim) v. Monte Earl Johnson (defendant by counterclaim)

(S.B.W. 220969; 2006 NSSC 69)

Indexed As: Johnson v. Sarty

Nova Scotia Supreme Court

Stewart, J.

April 7, 2006.

Summary:

The plaintiff and defendants were adjoining landowners engaged in a boundary dispute. The plaintiff trespassed onto the defendants' property to take pictures of a woodpile, alleging that the defendants cut the wood on his property. The plaintiff alleged that he was struck from behind with a piece of lumber by one defendant, then tackled to the ground by the other, resulting in personal injuries. The plaintiff brought an action for damages for assault. One defendant was subsequently convicted of assault with a weapon and mischief (destroying the plaintiff's camera). The other defendant was convicted of assault.

The Nova Scotia Supreme Court allowed the action. The plaintiff proved the assault on a balance of probablities. The court awarded $20,000 general damages for nonpecuniary loss, $33,112 for past lost income, $1,480 for the cost of future care and $752.95 special damages for medical reports. Given the criminal convictions, the court declined to award punitive damages. One defendant (son) was liable for $5,000, with the other (father) being liable for the balance.

Damage Awards - Topic 628

Torts - Injury to the person - Assault and battery - The plaintiff and two defendants (father and son) were adjoining landowners and embroiled in a boundary line dispute - The plaintiff, believing the defendants cut trees off of his property, trespassed onto the defendants' property to take pictures of a wood pile to prove his case - An altercation occurred - Rather than asking the plaintiff to leave, the father struck the plaintiff from behind with a piece of lumber, then the son tackled him to the ground - The father destroyed his camera - The father was convicted of assault with a weapon and mischief - The son was convicted of assault - Both were given suspended sentences and the father was ordered to make restitution for the value of the camera - The plaintiff sued for damages for assault - The 57 year old plaintiff suffered cuts and abrasions, painful shingles, a partially torn rotator cuff and a ruptured upper left arm bicep - The plaintiff failed to establish that his injuries were "persistently troubling, but not totally disabling" - Any functional impairment was minimal, although the ruptured bicep left the plaintiff disfigured - The Nova Scotia Supreme Court awarded, inter alia, $20,000 general damages for nonpecuniary loss and $33,112 for past lost income - The court denied a claim for punitive damages where both defendants had been criminally convicted - The son was liable for $5,000 and the father was liable for the balance.

Damages - Topic 1322

Exemplary or punitive damages - Bars - Where wrongdoer criminally convicted - [See Damage Awards - Topic 628 ].

Cases Noticed:

Smith v. Stubbert (1992), 117 N.S.R.(2d) 118; 324 A.P.R. 118 (C.A.), refd to. [para. 24].

Marinelli et al. v. Keigan et al. (1999), 173 N.S.R.(2d) 56; 527 A.P.R. 56 (C.A.), refd to. [para. 24].

Knott v. Hall (2003), 213 N.S.R.(2d) 5; 667 A.P.R. 5 (S.C.), refd to. [para. 24].

Kern v. Steele (2003), 220 N.S.R.(2d) 51; 694 A.P.R. 51 (C.A.), refd to. [para. 24].

Warner v. 2331653 Nova Scotia Ltd. et al. (2004), 226 N.S.R.(2d) 28; 714 A.P.R. 28 (S.C.), refd to. [para. 24].

Campbell-MacIsaac et al. v. Deveaux et al. (2003), 214 N.S.R.(2d) 129; 671 A.P.R. 129 (S.C.), refd to. [para. 24].

Cheevers v. Halifax (Regional Municipality) (2005), 234 N.S.R.(2d) 125; 745 A.P.R. 125; 2005 NSSC 153, refd to. [para. 24].

French et al. v. Hodge (2005), 231 N.S.R.(2d) 95; 733 A.P.R. 95; 2005 NSSC 44, refd to. [para. 24].

Daniel-Cuffy v. Pereira, [2005] O.T.C. 736; 2005 CanLII 30319 (Sup. Ct.), refd to. [para. 24].

Mason v. Moore, [2005] O.T.C. 773; 2005 CanLII 32204 (Sup. Ct.), refd to. [para. 24].

MacAulay v. Smith (2006), 242 N.S.R.(2d) 102; 770 A.P.R. 102; 2006 NSSC 19 (S.C.), rerfd to. [para. 24].

Counsel:

A. Franceen Romney, for the plaintiff;

Michael K. Power, for the defendants.

This action was heard on January 16-18, 2006, at Bridgewater, N.S., before Stewart, J., of the Nova Scotia Supreme Court, who delivered the following judgment on April 7, 2006.