MacDonald v. Hees, (1974) 18 N.S.R.(2d) 451 (TD)

• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 22, 1974
• Jurisdiction: Nova Scotia
• Citations: (1974), 18 N.S.R.(2d) 451 (TD)

MacDonald v. Hees (1974), 18 N.S.R.(2d) 451 (TD);

    20 A.P.R. 451

MLB headnote and full text

MacDonald v. Hees

Indexed As: MacDonald v. Hees

Nova Scotia Supreme Court

Trial Division

Cowan, C.J.T.D.

February 28, 1974.

Summary:

This case arose out of a claim for damages for personal injuries arising out of an assault and battery. The defendant ejected the plaintiff from a motel room. The plaintiff and a companion entered the defendant's motel room after midnight. The defendant was asleep. The plaintiff had been drinking and opened the door which was left unlocked. The plaintiff and the defendant were acquainted. The defendant reacted to the plaintiff's entry quickly and shoved the plaintiff toward the door. The plaintiff fell through a closed screen and glass door and was injured.

The Nova Scotia Supreme Court allowed the plaintiff's action and awarded the plaintiff $6,000.00 general damages for personal injuries including an amount for aggravated damages for personal indignity.

Torts - Topic 3198

Trespass - Assault and battery - Defences - Expulsion of the plaintiff from premises - Whether the defendant used excessive force - The plaintiff and a companion entered the defendant's motel room after midnight - The defendant was asleep - The plaintiff had been drinking - The plaintiff and the defendant were acquainted - The defendant reacted quickly to the plaintiff's entrance into the motel room and shoved the plaintiff toward the door - The plaintiff fell through a closed screen and glass door and was injured - The Nova Scotia Supreme Court, Trial Division, allowed the plaintiff's action for damages - The Supreme Court stated that the force used by the defendant to eject the plaintiff from the motel room was excessive in the circumstances.

Torts - Topic 3210

Trespass - Assault and battery - Evidence - Burden of proof - The Nova Scotia Supreme Court, Trial Division, stated that the plaintiff in an action for assault must prove that he was assaulted and then the onus is on the defendant to prove that the assault was justified and that the defendant used reasonable force in the circumstances - see paragraph 17 - The Supreme Court stated that such a burden of proof applies equally to a battery - see paragraph 18.

Damages - Topic 972

Aggravation - Aggravated damages arising from the circumstances of the injury - Personal indignity - The defendant used excessive force when the defendant ejected the plaintiff from a motel room - The plaintiff suffered facial lacerations resulting in facial disfigurement - The Nova Scotia Supreme Court, Trial Division, included an amount for aggravated damages in the plaintiff's award of general damages - see paragraph 36.

Damages - Topic 1296

Exemplary damages - General principles - The Nova Scotia Supreme Court, Trial Division, stated that exemplary damages are limited to claims against government employees for oppressive action and to claims where the defendant has profited by his conduct - see paragraphs 37 and 38.

Damage Awards - Topic 103

Head injuries - Facial lacerations resulting in permanent scarring and disfigurement - 43 year old male businessman - The Nova Scotia Supreme Court, Trial Division, awarded the plaintiff $6,000.00 general damages for personal injuries including an amount for aggravated damages for personal indignity - see paragraphs 32 to 39.

Cases Noticed:

Eisner v. Maxwell, [1951] 1 D.L.R. 816, folld. [para. 17].

Mann v. Balaban et al., [1970] S.C.R. 74; 8 D.L.R.(3d) 548, folld. [para. 17].

Green v. Goddard (1704), 2 Salk 641, folld. [para. 26].

Collins v. Renison (1754), Sayer 138; 96 E.R. 830, folld. [para. 27].

Rookes v. Barnard, [1964] A.C. 1129, folld. [para. 37].

Unrau v. Barrowman (1966), 59 D.L.R.(2d) 168, refd to. [para. 38].

McKinnon v. F.W. Woolworth Co. Ltd. et al. (1968), 70 D.L.R.(2d) 280 (Alta. A.D.), refd to. [para. 38].

McElroy v. Cooper-Smith and Woodman, 62 D.L.R.(2d) 65; [1967] S.C.R. 425; 60 W.W.R. 85, refd to. [para. 38].

Cassel & Co. Ltd. v. Broome, [1972] 2 W.L.R. 645; [1972] 1 All E.R. 801, folld. [para. 38].

Authors and Works Noticed:

Salmond on Torts (16th Ed.), pp. 122 [para. 17]; 124 [para. 18]; 130 [para. 22]; 131 [paras. 25, 27].

Flemming, Law of Torts (4th Ed.), p. 25 [para. 36].

Fridman, G.H.L., Punitive Damages in Tort (1970), 4 C.B.R. 373 [para. 38].

Counsel:

J.T. MacQuarrie and Bruce Wildsmith, for the plaintiff;

A.W. Cox, Q.C., and Michael S. Ryan, for the defendant.

This case was heard by COWAN, C.J.T.D., at Halifax, Nova Scotia, on February 22, 1974. The judgment of COWAN, C.J.T.D., was delivered on February 28, 1974.