Martin v. Martin et al., (1995) 159 N.B.R.(2d) 81 (TD)

• Judge: Riordon, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 23, 1995
• Jurisdiction: New Brunswick
• Citations: (1995), 159 N.B.R.(2d) 81 (TD)

Martin v. Martin (1995), 159 N.B.R.(2d) 81 (TD);

    159 R.N.-B.(2e) 81; 409 A.P.R. 81

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Lucien Martin (plaintiff) v. Zoel Martin, Ludger Martin, Vernon Martin and Donat Martin (defendants)

(N/C/130/84)

Lucien Martin (plaintiff) v. Simeon Martin (defendant)

(N/C/132/88)

Indexed As: Martin v. Martin et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Newcastle

Riordon, J.

January 23, 1995.

Summary:

Lucien Martin was assaulted by Zoel Martin. Lucien Martin lost an eye and later lost his eyesight. Lucien Martin sued Zoel Martin for damages. Ludger, Vernon and Donat Martin were included as defendants on the ground that they acted in a conspiracy and in concert with Simeon Martin to inten­tionally assault and cause Lucien Martin harm. Lucien Martin also commenced a second action for damages against Simeon Martin.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the claim against Zoel Martin and assessed damages accordingly.

Damage Awards - Topic 226

Injury and death - Eye injuries - Loss of sight in one eye - Lucien (aged 32) was assaulted by Zoel - Lucien lost his left eye - Lucien also suffered from an inherited blinding condition of the eyes called Macular Corneal Dystrophy and was blind in his right eye - While partial vision was restored to the right eye, Lucien was only able to see shadows and was legally blind - Lucien had been a self-employed fish­er­man - He had a grade nine education - Lucien stopped fishing and began a lobster trap manufacturing business - His partici­pation in sports such as hockey, bowling, golfing etc. was curtailed - Lucien sued Zoel for damages - The New Brunswick Court of Queen's Bench, Trial Division, awarded nonpecuniary damages of $150,000 - See paragraphs 36 to 41.

Damage Awards - Topic 230

Injury and death - Eye injuries - Loss of sight in both eyes - [See Damage Awards - Topic 226 ].

Damage Awards - Topic 231

Injury and death - Eye injuries - Aggra­vation of pre-existing condition - [See Damage Awards - Topic 226 ].

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - Lucien (aged 32) was assaulted by Zoel - Lucien lost his left eye - Lucien also suffered from an inherited blinding condition called Macular Corneal Dystrophy and was legally blind in his right eye - Lucien had been a self-employed fisherman - Lucien stopped fishing and began a successful lobster trap manufacturing business - The business had annual sales of $180,000 and was valued between $300,000 and $400,000 - Lucien sued Zoel for damages including loss from reduction of earning capacity - The New Brunswick Court of Queen's Bench, Trial Division, held that the loss from reduction of earning capacity could not be calculated - Nevertheless, the court included com­pensation for reduction of earning capacity as part of the $150,000 award of non­pecu­niary damages - See paragraphs 43 to 47.

Damage Awards - Topic 2011

Exemplary or punitive damages - Assault and battery - Lucien bested Simeon in a fight - Lucien did the same on the follow­ing day - Four hours later, Simeon's brother Ludger arrived at Lucien's property and picked a fight with Gabriel - Ludger's brothers Vernon, Zoel and Donat arrived to get Ludger as the fight was ending - Zoel (who had been drinking) and Lucien ar­gued - As Ludger and his brothers were leaving, Zoel attacked Lucien, knocked him down and continued to strike - Lu­cien's left eye had to be removed - Lucien sued Zoel for damages - Zoel pleaded self-defence as well as consent - The New Brunswick Court of Queen's Bench, Trial Division, allowed Lucien's action against Zoel and awarded, inter alia, puni­tive damages of $10,000 - See paragraph 42.

Damages - Topic 1549

General damages - Personal injury - Impairment of earning capacity - [See Damage Awards - Topic 492 ].

Practice - Topic 7021

Costs - Party and party costs - Entitle­ment to - Successful party - Exceptions - Conduct - Lucien bested Simeon in a fight - Later, Sim­eon's brother Ludger arrived at Lucien's property and picked a fight with Gabriel - Ludger's brothers Vernon, Zoel and Donat arrived to get Ludger - As Donat and his brothers were leaving, Zoel attacked Lu­cien, knocked him down and continued to strike - Lu­cien's left eye had to be removed - Lucien sued Zoel for damages - Lucien also sued Simeon, Vernon, Donat and Ludger as conspirators and joint tort­feasors - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the claims against Simeon, Vernon, Donat and Ludger - However, the court declined to award them costs and opined that if costs had been awarded, Lucien could recover them from Zoel - See paragraph 50.

Torts - Topic 3196

Trespass - Assault and battery - Defences - Self-defence - Lucien bested Simeon in a fight - Lucien did the same on the fol­lowing day - Four hours later, Simeon's brother Ludger arrived at Lucien's property and picked a fight with Gabriel - Ludger's brothers Vernon, Zoel and Donat arrived to get Ludger as the fight was ending - Zoel (who had been drinking) and Lucien ar­gued - As Ludger and his brothers were leaving, Zoel attacked Lucien, knocked him down and continued to strike - Lu­cien's left eye had to be removed - Lucien sued Zoel for damages - Zoel pleaded self-defence as well as consent - The New Brunswick Court of Queen's Bench, Trial Division, held Zoel liable for dam­ages - Even if it was self-defence, the level of force used was excessive - See paragraphs 1 to 18.

Torts - Topic 3200

Trespass - Assault and battery - Defences - Consent - [See Torts - Topic 3196 ].

Torts - Topic 5706

Conspiracy - What constitutes - Lucien bested Simeon in a fight - Lucien did the same on the following day - Sim­eon went home to bed - Four hours later, Simeon's brother Ludger arrived at Lu­cien's property and picked a fight with Gabriel - Ludger's brothers Vernon, Zoel and Donat arrived to get Ludger - Donat convinced his brothers to leave - How­ever, Zoel (who had been drinking) and Lucien argued - As Donat and his brothers were leaving, Zoel at­tacked Lucien, knocked him down and continued to strike - Lucien's left eye had to be removed - Lucien sued Zoel for damages - Lucien also sued Simeon, Vernon, Donat and Ludger as conspirators and joint tortfeasors - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the claims against Simeon, Vernon, Donat and Ludger - See para­graphs 18 to 31.

Torts - Topic 7100

Joint and concurrent tortfeasors - Elements of joint liability - What constitutes joint or concerted action - [See Torts - Topic 5706 ].

Cases Noticed:

Johnston v. Burton (1970), 16 D.L.R.(3d) 660 (Man. Q.B.), dist. [para. 20].

Fillipowich v. Nahachewsky (1969), 3 D.L.R.(3d) 544 (Sask. Q.B.), folld. [para. 21].

Newcastle (Town) v. Mattatall, Porter and Harris et al. (1988), 87 N.B.R.(2d) 238; 221 A.P.R. 238 (C.A.), dist. [para. 22].

Boyd v. Sumner Co. and Fraser and Trav­elers Indemnity Co. (1959), 50 N.B.R.(2d) 339; 131 A.P.R. 339 (S.C.C.), consd. [para. 40].

Poole v. Morgan (1987), 50 Alta. L.R.(2d) 120 (Q.B.), consd. [para. 40].

Drolet v. Parenteau, [1991] R.J.Q. 2956 (Que. S.C.), consd. [para. 40].

Mahoney v. Jarvis, [1993] O.J. No. 248 (Ont. Gen. Div.), consd. [para. 40].

Crossman v. Stewart (1977), 5 C.C.L.T. 45 (B.C.S.C.), refd to. [para. 40].

Moffatt v. Witelson (1980), 29 O.R.(2d) 7 (H.C.), refd to. [para. 40].

Meilleur v. Uni Crete Canada Ltd. (1985), 32 C.C.L.T. 126 (Ont. H.C.), refd to. [para. 40].

Guimond v. Stewart and Richard (1990), 110 N.B.R.(2d) 238; 276 A.P.R. 238 (T.D.), refd to. [para. 40].

Roundall v. Brodie (1972), 7 N.B.R.(2d) 486 (Q.B.), refd to. [para. 42].

Allard v. Flann (1982), 48 N.B.R.(2d) 178; 126 A.P.R. 178 (T.D.), refd to. [para. 42].

Swanson v. Mallow et al. (1992), 97 Sask.R. 202; 12 W.A.C. 202 (C.A.), refd to. [para. 42].

Sprague and Sprague v. Larocque (1985), 67 N.B.R.(2d) 137; 172 A.P.R. 137 (T.D.), consd. [para. 46].

Statutes Noticed:

Limitation of Actions Act, R.S.N.B. 1973, c. L-8, generally [para. 29].

Rules of Court (N.B.), rule 59 [para. 50].

Authors and Works Noticed:

Fridman, G.H.L., The Law of Torts in Canada (1st Ed. 1990), vol. 2, pp. 347, 348 [para. 19].

Counsel:

G. Robert Basque and René Basque, for the plaintiff;

George Martin, for the defendants.

This case was heard at Newcastle, New Brunswick, on August 3, 4 and 5, 1993, before Riordon, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Newcastle, who delivered the following judgment on January 23, 1995.