ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
pardu, lederman and kiteley jj.
B E T W E E N:
MARC LEONARD
Plaintiff
(Respondent)
- and -
ANDREW DUNN
Defendant
(Appellant)
Anthony J. O’Brien, for the Respondent
Peter M. Callahan, for the Appellant
HEARD at Toronto: May 2, 2008
PARDU J.: (Orally)
1The defendant appeals from a judgment of Low J. awarding the plaintiff damages for assault committed after the whistle was blown to stop play in a hockey game. After the plaintiff and defendant collided, the referee stopped play as was his practice in this non-contact league.
2The trial judge found that during the stoppage of play, the defendant punched the plaintiff in the face with his gloved hand. He did so with sufficient force to break two of the plaintiff’s incisors and to put the plaintiff’s tooth marks into the plexi-glass visor of his helmet. The blow caused bleeding, swelling, bruising and pain. The plaintiff was stunned, he spat out his two broken teeth. The referee called a match penalty on the defendant and issued a five game suspension.
3At paragraph 21, Low J. went on to note: “I have made the finding that the defendant’s punch to the plaintiff’s face was not in the course of advancing the game. It occurred when the play had been stopped by the official,” and further, “this was not a fight, it was a unilateral attack.”
4The defendant argues that he is not liable because the plaintiff voluntarily assumed the risk of the injury he suffered and that he expressly waived and released the defendant with respect to any injury, whether caused by the negligence of the defendant or otherwise.
5The trial judge found that the defendant deliberately and forcefully punched the plaintiff after play was stopped and that the punch was not for the purpose of advancing the game.
6The trial judge made the distinction between assumption of risk of injury during a competitive hockey game (even with no contact rules) and the fact that the plaintiff did not assume the risk of a “deliberate unprovoked attack after stoppage of play”. Based on the evidence, the trial judge made no palpable error in making those findings.
7The trial judge did not err in weighing all of the circumstances to assess the scope of the waiver signed by the plaintiff and in concluding that the plaintiff had not consented to force of the nature applied by the defendant and that the waiver did not bar recovery for the defendant’s conduct.
8The defendant also challenges the trial judge’s award of $7,547.46 in special damages for dental work. The trial judge’s findings on the issue of damages are found at paragraph 24:
“The special damages claimed include the cost of the temporary repair ($447.46), the amount reasonably to be expended for a permanent restoration of the teeth #21 and #22 by way of post, core and crowns, and the cost of a crown for tooth #11 in order to match the colour of the two central incisors. I am satisfied that a permanent restoration is reasonable, necessary and does not result in betterment. Root canal treatment had been applied to the two teeth some years prior and the teeth were asymptomatic and were not mobile. I am not satisfied on a balance of probabilities that the plaintiff would have lost the teeth in any event. The cost quoted for the post, core and crown restoration for the #21 and #22 teeth, including periodontal work that may be required, is $5,900. The evidence does not indicate that the plaintiff requires implants. The plaintiff’s teeth were not mismatched in colour prior to the assault. The work to tooth #11 to match it in colour to the adjacent incisor is reasonable. Although it is aesthetic rather than structural work, I am satisfied that it is necessary work if the plaintiff is to be restored to his position prior to the attack. The cost is $1,200 for the crown for tooth #11. I assess the total special damages at $7,547.46.”
9The defendant argues that the plaintiff’s witness did not have the expertise to opine as to the nature, scope and cost of future dental work. She had been a dentist for ten years at the time she testified and had the expertise necessary to give opinion evidence in the area of post, core and crown restoration, the basis upon which damages were calculated. The fact that rest of the restorative work is yet to be done is irrelevant.
10In the result, the appeal is dismissed.
COSTS
11Costs to the Respondent on the appeal fixed at $7,500.00.
PARDU J.
LEDERMAN J.
KITELEY J.
Date of Reasons for Judgment: May 2, 2008
Date of Release: May 21, 2008
COURT FILE NO.: 557/06
DATE: 20080502
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
pardu, lederman and kiteley jj.
B E T W E E N:
MARC LEONARD
Plaintiff
(Respondent)
- and -
ANDREW DUNN
Defendant
(Appellant)
ORAL REASONS FOR JUDGMENT
PARDU J.
Date of Reasons for Judgment: May 2, 2008
Date of Release: May 21, 2008