Jeffrey M.K. Garrett

Following a trial where the plaintiffs were awarded $70,563 in damages, the successful defendant sought costs on a partial indemnity basis to the date of its offer to settle and substantial indemnity costs thereafter.

The court found that the defendant was only entitled to partial indemnity costs, as elevated costs require a clear finding of reprehensible conduct, which was absent here.

The court also reduced the costs claimed to account for some inefficiency in the defendant's use of two counsel at trial, ultimately fixing costs at $141,568.73.

The plaintiffs sued the defendant patron and the defendant bar owner for damages arising from an assault at the bar.

The plaintiff husband suffered a spiral fracture of his tibia when the intoxicated defendant patron jumped on him, and the plaintiff wife alleged she was assaulted and her breasts exposed during the altercation.

The court found the defendant patron liable for battery, as his criminal conviction for the assault was prima facie evidence and he failed to prove consent or lack of intent.

However, the court dismissed the action against the bar owner.

Although the bar over-served the patron, the court applied the test from Stewart v. Pettie and found that the patron's sudden violent outburst was not reasonably foreseeable, precluding liability in both common law negligence and under s. 39 of the Liquor Licence Act.

The plaintiff husband was awarded $50,000 in general damages and $4,600 for past income loss, while the plaintiff wife was awarded $2,000 in general damages.