MacMillan v. Hincks, 2002 ABQB 283
| Judge | Bensler, J. |
| Court | Court of Queen's Bench of Alberta (Canada) |
| Case Date | December 17, 2001 |
| Citations | 2002 ABQB 283;(2002), 313 A.R. 150 (QB) |
MacMillan v. Hincks (2002), 313 A.R. 150 (QB)
MLB headnote and full text
Temp. Cite: [2002] A.R. TBEd. AP.111
David MacMillan (plaintiff) v. Steve Hincks (defendant)
(Action No. 950111722; 2002 ABQB 283)
Indexed As: MacMillan v. Hincks
Alberta Court of Queen's Bench
Judicial District of Calgary
Bensler, J.
March 19, 2002.
Summary:
MacMillan sued Hincks for damages for assault and battery. Hincks admitted that he struck MacMillan but alleged self-defence, consent and provocation.
The Alberta Court of Queen's Bench dismissed the action but provisionally assessed general damages at $15,000.
Damage Awards - Topic 232
Injury and death - Eye injuries - Blow out fracture - MacMillan went to Hincks' home, confronted him respecting a debt, swore at him and threatened him - Hincks told MacMillan to leave - MacMillan grabbed Hincks, pulled him outside and threw a punch - Hincks, a taller larger man, punched MacMillan once and told him to let go - When MacMillan did not, Hincks struck him once or twice more - MacMillan let go and the fight was over - MacMillan required eight stitches over his left eye and underwent surgery for a blow out fracture to his left eye orbit - The Alberta Court of Queen's Bench dismissed MacMillan's assault and battery action - Given MacMillan's provocative conduct and considering that he suffered no permanent disability to his vision, the court assessed general damages at $15,000 - The court held that punitive damages were not warranted - See paragraph 35.
Damage Awards - Topic 628
Torts - Injury to the person - Assault and battery - [See Damage Awards - Topic 232 ].
Damage Awards - Topic 2011
Exemplary or punitive damages - Assault and battery - [See Damage Awards - Topic 232 ].
Damages - Topic 1017
Mitigation - In tort - Reduction due to plaintiff's conduct or provocation - The Alberta Court of Queen's Bench stated that a controversial question in Canadian law was to what extent provocation mitigated damages - There were two lines of authority - One approach held that provocation could only mitigate punitive damages - A second approach held that a finding of provocation could mitigate general damages as well - The court adopted the second approach - See paragraph 34.
Damages - Topic 1017
Mitigation - In tort - Reduction due to plaintiff's conduct or provocation - [See Damage Awards - Topic 232 ].
Torts - Topic 3196
Trespass - Assault and battery - Defences -Self-defence - MacMillan went to Hincks' home, confronted him respecting a debt, swore at him and threatened him - Hincks told MacMillan to leave - MacMillan grabbed Hincks, pulled him outside and threw a punch - Hincks, a taller larger man, punched MacMillan once and told him to let go - When MacMillan did not, Hincks struck him once or twice more - MacMillan let go and the fight was over - MacMillan required eight stitches over his left eye and underwent surgery for a fractured left eye orbit - The Alberta Court of Queen's Bench dismissed MacMillan's assault and battery action - Hincks acted in self-defence and used reasonable force - MacMillan's consent to the fight was implied by his conduct and confrontational attitude - MacMillan's aggression and threats provoked Hincks - See paragraphs 24 to 33.
Torts - Topic 3199
Trespass - Assault and battery - Defences -Provocation - [See Torts - Topic 3196 ].
Torts - Topic 3200
Trespass - Assault and battery - Defences -Consent - [See Torts - Topic 3196 ].
Cases Noticed:
Myshrall v. Fraser Fort George (Regional District) et al., [1999] B.C.T.C. Uned. 149 (S.C.), refd to. [para. 18].
Mann v. Balaban, [1970] S.C.R. 74; 8 D.L.R.(3d) 548, refd to. [para. 24].
Bruce v. Dyer, [1966] 2 O.R. 705 (H.C.) affd. [1970] 1 O.R. 482 (C.A.), refd to. [para. 25].
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. 25].
Wackett v. Calder (1965), 51 D.L.R.(2d) 598 (B.C.C.A.), refd to. [para. 27].
Johnson v. Erickson, [1941] 1 W.W.R. 626 (Sask. Dist. Ct.), affd. [1942] 2 W.W.R. 524 (Sask. C.A.), refd to. [para. 27].
Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1; 92 D.L.R.(4th) 449; [1992] 4 W.W.R. 577; 12 C.C.L.T.(2d) 1; 68 B.C.L.R.(2d) 29, refd to. [para. 29].
Scalera v. Lloyd's of London, [2000] 1 S.C.R. 551; 253 N.R. 1; 135 B.C.A.C. 161; 221 W.A.C. 161; 185 D.L.R.(4th) 1, refd to. [para. 29].
Wade v. Martin, [1955] 3 D.L.R. 635 (Nfld. S.C.), refd to. [para. 29].
Suderman v. Shannon, [1983] B.C.J. No. 928 (Co. Ct.), refd to. [para. 29].
Mazurkewich v. Ritchot (1984), 30 Man.R.(2d) 245 (C.A.), refd to. [para. 29].
Jamieson v. Kraus, [1995] B.C.J. No. 1858 (S.C.), refd to. [para. 29].
Kuhlman v. Fehr, [1998] Sask.R. Uned. 129 (Q.B.), refd to. [para. 29].
Miska v. Sivec, [1959] O.R. 144 (C.A.), refd to. [para. 32].
Evans v. Bradburn (1915), 25 D.L.R. 611 (Alta. C.A.), refd to. [para. 32].
Hurley v. Moore (1993), 112 Nfld. & P.E.I.R. 40; 350 A.P.R. 40; 107 D.L.R.(4th) 664 (Nfld. C.A.), refd to. [para. 32].
Herman v. Graves et al. (1998), 217 A.R. 275 (Q.B.), refd to. [para. 34].
Semenchuk v. Davy (1997), 122 Man.R.(2d) 37 (Q.B.), refd to. [para. 34].
Bruce v. Coliseum Management Ltd. et al. (1998), 113 B.C.A.C. 113; 184 W.A.C. 113; 165 D.L.R.(4th) 472 (C.A.), refd to. [para. 34].
Chopra v. Eaton (T.) Co. et al. (1999), 240 A.R. 201 (Q.B.), refd to. [para. 34].
Nichol v. MacKay (1999), 180 N.S.R.(2d) 76; 557 A.P.R. 76 (C.A.), refd to. [para. 34].
Authors and Works Noticed:
Fridman, Gerald Henry Louis, The Law of Torts in Canada (1989), vol. 1, p. 65 [para. 29].
Klar, Lewis N., Tort Law, pp. 99, 103 [para. 29].
Linden, Allen M., Canadian Tort Law (6th Ed. 1997), p. 78 [para. 27].
Counsel:
B. Clark, for the plaintiff;
T.C. Platnich, for the defendant.
This action was heard on December 17, 2001, before Bensler, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on March 19, 2002.
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Jagodnik v. Oudshoorn, [2015] A.R. TBEd. JL.104
...is defined as "conduct that would cause a reasonable person to lose self-control": Wilson at para 17; see also MacMillan v Hincks , 2002 ABQB 283 at para 32. "The defendant must prove that the conduct of the plaintiff caused the defendant to lose his or her power of self-control shortly bef......
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MacKinnon v. Bonnar, 2006 NSSC 55
...is not to be preferred to that of the Defendant and his witnesses. [18] The Defendant has referred me to MacMillan v. Hincks (2002) 313 A.R. 150 (Alta Q.B.) where the Court had to assess credibility where there were conflicting versions of the event. At paragraph 18, the Court set out the a......
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Jewkes v. Scrosati, 2020 NSSC 228
...is excessive or unnecessary, individuals who engage in fights cannot complain of the injuries they suffer: MacMillan v. Hincks, 2002 ABQB 283, at para. Was There Consent by Jewkes, Either Express or Implied, to the Physical Altercation with Scrosati? [60] ......
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Rama v Van Meer,
...is permitted to protect himself from actual violence or a threat of immediate violence by the use of force (see MacMillan v Hincks, 2002 ABQB 283) (MacMillan). [56] When claiming self-defence, a defendant must establish that there existed actu......
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Jagodnik v. Oudshoorn, [2015] A.R. TBEd. JL.104
...is defined as "conduct that would cause a reasonable person to lose self-control": Wilson at para 17; see also MacMillan v Hincks , 2002 ABQB 283 at para 32. "The defendant must prove that the conduct of the plaintiff caused the defendant to lose his or her power of self-control shortly bef......
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MacKinnon v. Bonnar, 2006 NSSC 55
...is not to be preferred to that of the Defendant and his witnesses. [18] The Defendant has referred me to MacMillan v. Hincks (2002) 313 A.R. 150 (Alta Q.B.) where the Court had to assess credibility where there were conflicting versions of the event. At paragraph 18, the Court set out the a......
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Jewkes v. Scrosati, 2020 NSSC 228
...is excessive or unnecessary, individuals who engage in fights cannot complain of the injuries they suffer: MacMillan v. Hincks, 2002 ABQB 283, at para. Was There Consent by Jewkes, Either Express or Implied, to the Physical Altercation with Scrosati? [60] ......
-
Rama v Van Meer,
...is permitted to protect himself from actual violence or a threat of immediate violence by the use of force (see MacMillan v Hincks, 2002 ABQB 283) (MacMillan). [56] When claiming self-defence, a defendant must establish that there existed actu......