Phillips v. Rogan, 2011 MBQB 287

• Judge: Cameron, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 28, 2011
• Jurisdiction: Manitoba
• Citations: 2011 MBQB 287;(2011), 273 Man.R.(2d) 26 (QB)

Phillips v. Rogan (2011), 273 Man.R.(2d) 26 (QB)

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. DE.010

Reginald Lyle Phillips (plaintiff) v. Lori Joan Rogan (defendant)

(CI 16/90; 2011 MBQB 287)

Indexed As: Phillips v. Rogan

Manitoba Court of Queen's Bench

Flin Flon Centre

Cameron, J.

November 28, 2011.

Summary:

The defendant shot the plaintiff three times with a .22 pistol. The plaintiff obtained summary judgment declaring the defendant civilly liable for the incident. At issue was the quantum of damages.

The Manitoba Court of Queen's Bench assessed damages.

Damage Awards - Topic 55.1

Injury and death - Body injuries - Stomach - The defendant shot the 21 year old plaintiff once in the stomach and once in each of his shoulders - He underwent surgery to remove the bullet from his stomach, which necessitated the removal of a portion of his small bowel - The bullets in his shoulders were not removed - He remained hospitalized for 13 days - He initially had to live with his mother because he was unable to care for himself - He continued to suffer digestive problems and pain in shoulders - After one year, the bullet in the right shoulder migrated to the surface and was removed in the doctor's office - For two years he was unable to participate fully in his hobbies - Thereafter, he had less problems participating, but still suffered pain in his left shoulder - The pain interfered with his casual activities for about eight years, at which point the last bullet was removed - He was now able to fully enjoy his hobbies and leisure activities, although he still periodically suffered pain - He suffered from nightmares and continued to have them occasionally - He had trouble trusting people - He stated that he was embarrassed by his scars - Now happily married with one child and helping to raise two of his spouse's children - He sought $150,000 in general damages relying on the psychiatric component of his claim for the increased amount - The medical reports indicated that he was recovering well from his injuries - The Manitoba Court of Queen's Bench stated that the onus was on the plaintiff to prove damages and that caution had to be exercised when considering claims of this nature - There was no independent psychiatric evidence - The medical reports were inconsistent with the extent of the injuries otherwise described - The plaintiff's scars did not appear to be severe and did not justify a significantly higher amount of damages - The court awarded the plaintiff $50,000 in general damages - See paragraphs 15 to 25.

Damage Awards - Topic 57

Injury and death - Body injuries - Shoulder - [See Damage Awards - Topic 55.1 ].

Damage Awards - Topic 65

Injury and death - Body injuries - Bladder or bowels - [See Damage Awards - Topic 55.1 ].

Damage Awards - Topic 73.1

Injury and death - Body injuries - Scarring - [See Damage Awards - Topic 55.1 ].

Damage Awards - Topic 199

Injury and death - Psychological injuries - General - [See Damage Awards - Topic 55.1 ].

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - The defendant shot the 21 year old plaintiff once in the stomach and once in each of his shoulders - At the time, the plaintiff was going to school and apprenticing as a carpenter earning $12 per hour - After the shooting he was unable to work as a carpenter - He went on social assistance for brief periods, then worked as a dishwasher and later a cook - He now worked as a shop helper - He claimed $254,000 for lost income (what he would have earned if he had worked 1700 hours a year less what he earned) - The plaintiff did not call any evidence in support of the claim - He indicated that at times he had been unable to find employment because of the poor economy - The medical reports indicated that the plaintiff was recovering well from his injuries - The Manitoba Court of Queen's Bench stated that the plaintiff's loss of income was unsupported by evidence and inconsistent with the principles enunciated in Bachalo v. Robson et al. (Man. C.A.) - The court awarded the plaintiff $20,000 for loss of his earning capacity and 3% for the loss of opportunity to invest - See paragraphs 26 to 33.

Damages - Topic 106

General principles - Evidence and proof - Onus of proof - [See Damage Awards - Topic 55.1 ].

Damages - Topic 1532

General damages - Elements of general damages - Mental distress or emotional upset - [See Damage Awards - Topic 55.1 ].

Damages - Topic 1681

General damages - Evidence - General - [See Damage Awards - Topic 55.1 ].

Interest - Topic 5009

Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Calculation of (incl. rate) - The defendant shot the plaintiff - At issue was the quantum of damages - The Ministry of Health, Medical Services of the Province of Saskatchewan requested $6,038.42 for the expenses incurred in caring for the plaintiff and interest totalling $12,193.29 - The Manitoba Court of Queen's Bench awarded $6,038.42 for the medical care provided but declined to award $12,193.29 in interest where there was no evidence as to how the figure was arrived at - The court set the interest rate for the amount due for medical care at 6.5 percent from the date the statement of claim was filed until December 31, 2000 - From January 1, 2001, to the date of judgment, the court set the rate at three percent, which was the approximate average of the quarterly rates between January 2001 and October 2011 - See paragraphs 34 to 36.

Practice - Topic 7458

Costs - Solicitor and client costs - Entitlement to - Rare, exceptional or complex cases - On December 8, 1988, the defendant shot the plaintiff - The plaintiff sued for damages for injuries suffered and obtained summary judgment - A trial was held to assess the quantum of damages - The plaintiff requested solicitor and client costs, asserting that because it took so long to locate the defendant, he was delayed in concluding the action - The Manitoba Court of Queen's Bench denied the request - In Manitoba, costs were only allowed on a solicitor-client basis in exceptional circumstances - The plaintiff had not establish the existence of such circumstances - The court awarded the plaintiff costs in accordance with the tariff - See paragraph 38.

Cases Noticed:

Mooney v. British Columbia (Attorney General) et al., [2004] 10 W.W.R. 286; 202 B.C.A.C. 74; 331 W.A.C. 74; 2004 BCCA 402, refd to. [para. 17].

Silva v. Valmana, [2003] O.T.C. 578; 123 A.C.W.S.(3d) 694: 2003 CanLII 21884 (S.C.), refd to. [para. 18].

Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), refd to. [para. 20].

Fehr v. Brodowski et al. (2000), 145 Man.R.(2d) 267; 218 W.A.C. 267; 2000 MBCA 23, refd to. [para. 22].

Muskego v. Apetagon (2000), 149 Man.R.(2d) 159 (Q.B.), refd to. [para. 23].

Bachalo v. Robson et al. (1998), 129 Man.R.(2d) 1; 180 W.A.C. 1 (C.A.), appld. [para. 26].

Schrump et al. v. Koot et al. (1977), 82 D.L.R.(3d) 553 (Ont. C.A.), refd to. [para. 26].

King v. Syryk (2011), 269 Man.R.(2d) 190; 2011 MBQB 211, refd to. [para. 27].

Anastasiadis v. Johnston et al. (1990), 63 Man.R.(2d) 192 (Q.B.), refd to. [para. 30].

Hrynchuk v. Fetterly et al. (1995), 101 Man.R.(2d) 51 (Q.B.), refd to. [para. 30].

Liebrecht v. Egesz et al. (2000), 150 Man.R.(2d) 257; 230 W.A.C. 257; 2000 MBCA 132, folld. [para. 35].

Counsel:

Greg L. Bauman, for the plaintiff;

L.J. Rogan, appeared in person.

This matter was heard by Cameron, J., of the Manitoba Court of Queen's Bench, Flin Flon Centre, who delivered the following judgment on November 28, 2011.