Sirois et al. v. Gustafson et al., 2002 SKQB 452

• Judge: Klebuc, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 14, 2002
• Jurisdiction: Saskatchewan
• Citations: 2002 SKQB 452;(2002), 226 Sask.R. 28 (QB)

Sirois v. Gustafson (2002), 226 Sask.R. 28 (QB)

MLB headnote and full text

Temp. Cite: [2002] Sask.R. TBEd. DE.036

Tyron Sirois and Tanya Henschel (plaintiffs) v. Al Gustafson and TransX Ltd. (defendants)

(2001 Q.B.G. No. 196; 2002 SKQB 452)

Indexed As: Sirois et al. v. Gustafson et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Klebuc, J.

November 14, 2002.

Summary:

The plaintiffs, Sirois and Henschel, sued Gustafson for damages arising from an assault and battery committed by Gustafson. They also sued TransX Ltd. on the ground that it was vicariously liable for the intentional torts committed by Gustafson, who was its employee. Gustafson counterclaimed for damage to the tires of his truck, allegedly caused by Sirois' erratic driving. He also cross-claimed against TransX for mental anguish and stress he suffered as a consequence of TransX's having breached its contractual obligations to him and for an order requiring TransX to indemnify him for any damage award he might be required to pay. TransX cross-claimed against Gustafson for indemnification based on Gustafson's contractual obligation to hold it harmless from all claims arising from its conduct.

The Saskatchewan Court of Queen's Bench found that Gustafson committed the torts of assault and battery upon Sirois and Henschel and awarded them damages of $2,070 and $3,000 respectively. The court dismissed the plaintiffs' claim against TransX because it was not vicariously liable for Gustafson's conduct regardless of whether their relationship was one of employer and independent contractor or one of employer and employee. The court dismissed Gustafson's counterclaim against the plaintiffs and his cross-claim against TransX and held that TransX was entitled to a judgment against Gustafson for its costs of the action.

Damage Awards - Topic 200

Injury and death - Psychological injuries - Anxiety state or neurosis - [See Damage Awards - Topic 201 ].

Damage Awards - Topic 201

Injury and death - Psychological injuries - Emotional reaction causing mental or physical symptoms - Gustafson was driving a truck in the same area that Sirois was driving his car - Sirois vented his disapproval of Gustafson's driving by giving him "the finger" - When both vehicles stopped at a red light, Gustafson exited his truck with a large hammer, approached Sirois' car, and struck and shattered its driver's side window and windshield - Sirois suffered a minor laceration to his cornea, which caused him short term discomfort - He also experienced minor anxiety attacks and nightmares for six or seven weeks - Henschel suffered no direct physical injury, but experienced emotional stress which aggravated her ulcerative colitis, which had previously been under control - The Saskatchewan Court of Queen's Bench held that Gustafson committed an assault and battery - The court awarded $1,000 general and aggravated damages to Sirois and $2,000 general and aggravated damages to Henschel - The court also awarded punitive damages of $1,000 to each of Sirois and Henschel - See paragraphs 18 to 22.

Damage Awards - Topic 233

Injury and death - Eye injuries - Lacerations - [See Damage Awards - Topic 201 ].

Damage Awards - Topic 2011

Exemplary or punitive damages - Assault and battery - [See Damage Awards - Topic 201 ].

Damage Awards - Topic 2404

Aggravated damages - Assault - [See Damage Awards - Topic 201 ].

Damage Awards - Topic 2405

Aggravated damages - Battery - [See Damage Awards - Topic 201 ].

Master and Servant - Topic 3700

Liability of master for acts of servant - Torts - Wilful acts - Assault and battery - Gustafson entered into an agreement with TransX to provide a truck and driver to pull TransX's semi-trailers - Gustafson was driving a truck in the same area that Sirois was driving his car - Sirois vented his disapproval of Gustafson's driving by giving him "the finger" - When both vehicles stopped at a red light, Gustafson exited his truck with a large hammer, approached Sirois' car, and struck and shattered its driver's side window and windshield - The Saskatchewan Court of Queen's Bench held that, assuming that an employer-employee relationship existed between TransX and Gustafson, TransX was not vicariously liable for the torts of assault and battery committed by Gustafson - Gustafson's conduct was not directly or implicitly authorized by TransX and it did not form an inherent part of the task of driving a large truck for a carrier - See paragraphs 23 to 33.

Torts - Topic 2530

Vicarious liability - Master and servant - Employer - Liability for acts of employees - [See Master and Servant - Topic 3700 ].

Torts - Topic 3182

Trespass - Assault and battery - Assault - What constitutes - Gustafson was driving a truck in the same area that Sirois was driving his car - Sirois vented his disapproval of Gustafson's driving by giving him "the finger" - When both vehicles stopped at a red light, Gustafson exited his truck with a large hammer, approached Sirois' car, and struck and shattered its driver's side window and windshield - The Saskatchewan Court of Queen's Bench held that Sirois, and his passenger Henschel, had reasonable grounds to fear harmful or offensive contact by Gustafson and his conduct therefore constituted an assault - Gustafson also committed the tort of battery when he broke the windshield and driver's side window of Sirois' car while Sirois and Henschel occupied the same - Gustafson's submissions that he acted out of self-defence, or that Sirois provoked him to act, were rejected - See paragraph 17.

Torts - Topic 3191

Trespass - Assault and battery - Battery - What constitutes - [See Torts - Topic 3182 ].

Torts - Topic 3196

Trespass - Assault and battery - Defences - Self-defence or defence of third party - [See Torts - Topic 3182 ].

Torts - Topic 3199

Trespass - Assault and battery - Defences - Provocation - [See Torts - Topic 3182 ].

Cases Noticed:

I. de S. & Wife v. W. de S. (1348), Year-Book, 22 Liber Assisarum, folio 99, refd to. [para. 15].

Dodwell v. Burford (1669), 86 E.R. 703, refd to. [para. 16].

Herbert v. Misuga (1994), 116 Sask.R. 292; 59 W.A.C. 292; 111 D.L.R.(4th) 193 (C.A.), refd to. [para. 19].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12; 204 D.L.R.(4th) 542, refd to. [para. 24].

Saint John (City) v. Donald, [1926] S.C.R. 371; [1926] 2 D.L.R. 185, refd to. [para. 25].

Doiron v. Devon Capital Corp. et al. (2002), 319 A.R. 387 (Q.B.), refd to. [para. 26].

P.A.B. v. Children's Foundation et al., [1999] 2 S.C.R. 534; 241 N.R. 266; 124 B.C.A.C. 119; 203 W.A.C. 119; [1999] 8 W.W.R. 197; 174 D.L.R.(4th) 45, refd to. [para. 27].

G.T.-J. et al. v. Griffiths et al., [1999] 2 S.C.R. 570; 241 N.R. 201; 124 B.C.A.C. 161; 203 W.A.C. 161; 174 D.L.R.(4th) 71; [1999] 9 W.W.R. 1, refd to. [para. 27].

Brezinski v. Schultz, [1975] 3 W.W.R. 467 (Sask. Q.B.), refd to. [para. 29].

Evaniuk v. 79846 Manitoba Inc. (1990), 68 Man.R.(2d) 306 (Q.B.), refd to. [para. 29].

Verbeek v. Stefura and St. Albert Motor Inn (1972) Ltd. (1981), 26 A.R. 497 (Q.B.), refd to. [para. 29].

Cave v. Ritchie Motors Ltd. (1973), 34 D.L.R.(3d) 141 (B.C.S.C.), refd to. [para. 29].

Griggs v. Southside Hotel Ltd. and German, [1947] 4 D.L.R. 49 (Ont. C.A.), refd to. [para. 29].

Authors and Works Noticed:

Cooper-Stephenson, K., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 92 to 99 [para. 19].

Klar, Lewis N., Remedies in Tort (looseleaf Ed., release 2002), vol. 4, pp. 26-52.7 to 26-59 [para. 29]; 26-67, 26-68 [para. 25].

Linden, Allen M., Canadian Tort Law (7th Ed. 2001), pp. 42 to 49 [para. 15].

Linden, Allen M., and Klar, Lewis N., Canadian Tort Law, Cases, Notes and Materials (10th Ed. 1994), c. 2, p. 46 [para. 15].

Counsel:

Katharine L. Grier, for the plaintiffs;

Al Gustafson, on his own behalf;

Murray W. Douglas, for the defendant, TransX Ltd.

This action was heard before Klebuc, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on November 14, 2002.