ONTARIO SUPERIOR COURT OF JUSTICE

OSHAWA COURT FILE NO.: 56893/08
DATE: 2012-07-31

BETWEEN :

Hailey Mathers, Janet Avery and Jordan Mathers by her Litigation Guardian, Janet Avery

Plaintiffs

— and —

1654713 Ontario Inc. o/a Rimrock Pub and Live Entertainment Hot Spot, 858241 Ontario Limited, Sean Reon Balgobin, Jennifer Elizabeth Saunders and Jade Evelyn Darlington

Defendants

COUNSEL:

Kyle C. Armagon for Hailey Mathers et al, Plaintiffs

No counsel present for the Defendants

HEARD: May 23, 2012

Sosna J.

REASONS FOR JUDGMENT-Damages

[ 1 ] On August 18, 2006, at 2:30 a.m. Hailey Mathers left the Rimrock Pub with a friend to go home. She had played pool in the bar during the evening but had not consumed any alcohol. Without prior warning she was senselessly attacked and beaten by three strangers, Sean Balgobin and two females, Jennifer Saunders and Jade Darlington. Mathers was punched in the face, thrown to the ground and repeatedly kicked to her back area and the side of her head. She was bitten on her right upper thigh. Her purse was also stolen. The three assailants were arrested at the scene and have since been convicted of assault related charges.

[ 2 ] Mathers was taken to the hospital by ambulance and treated for her injuries. Those injuries were found to be a broken nose, multiple lacerations to her scalp, an extended open laceration to her forehead, significant facial swelling surrounding her eyes and cheekbones, a bite mark to her upper thigh, damage to her teeth which were shifted because of the assault and a cracked tail bone. She remained in the hospital for 7 hours being x-rayed, and having her wounds cleaned. No fractures were identified and she was released.

[ 3 ] Her injuries led to ongoing medical issues. She experienced concussion like symptoms which included daily headaches with stabbing pains at times twice a day, some memory and balance problems, and difficulty sleeping. The headaches were treated with a regiment of pain killers for over a two-year period. The headaches have abated since, but in the interim she experienced flashbacks, panic attacks, depression, and anxiety, all consistent with post traumatic stress. She was referred to a psychologist who she met on 13 visits in a one-year period commencing July 2007. Mathers has become socially isolated, still distressed over her attack and extremely anxious that she not accidently have any future contact with her assailants who she believes still reside in the jurisdiction.

[ 4 ] Her fractured nose has healed and surgery was not recommended. However Mathers continues to experience breathing problems. She reports that the cracked tailbone has healed irregularly resulting in her hands falling asleep and her thighs going numb. She is scheduled for surgery this year to correct a lateral tear to her knee and remove a floating bone, all of which stemmed from the attack she suffered.

[ 5 ] Mathers testified the incident has also adversely affected the emotional health of her daughter Jordan, age eight at the time. Jordan was traumatized by her mother’s visible injuries, and after learning of the details surrounding the gratuitous assault on her mother, Jordan was fearful of being alone, often cried, and required close supervision. To address these issues Jordan required psychiatric counselling for a number of months. That assisted in Jordan’s recovery to the extent that this year she was placed on her school’s Honour Roll.

[ 6 ] Janet Avery, Mathers’ mother testified that as a result of the ongoing medical issues faced by her daughter being a single parent, she devoted countless hours assisting her granddaughter Jordan and Mathers preparing meals, doing all the household chores, and transporting both her daughter and granddaughter over several years to their medical appointments.

[ 7 ] Not being able to return to work because of her injuries, Mathers lost her employment as a personal support worker. On March 4, 2009 she was awarded $11, 324.25 for loss of income, out of pocket expenses, and general damages by the Criminal Injuries Compensation Board for her injuries. She has found work as a personal support worker at another facility, but continues to experience medical and psychological issues which require ongoing treatment and counselling.

ASSESSMENT OF DAMAGES AND COSTS

[ 8 ] On written materials introduced, viva voce evidence at the assessment hearing, and submissions of counsel on behalf of the plaintiffs the following is awarded:

[ 9 ] General damages to Hailey Mathers in the amount of $60,000.00 plus pre- judgment interest in accordance with Section 128 of the Courts of Justice Act R.S.O. C.43.

[ 10 ] Punitive damages in the amount of $10,000.00.

[ 11 ] Pursuant to Section 61 of the Family Law Act , R.S.O. 1990, c. F-3, $10,000.00 in damages to Jordan Mathers, and $5,000.00 in damages to Janet Avery, plus pre- judgment interest in accordance with Section 128 of the Courts of Justice Act .

[ 12 ] Costs on a partial indemnity basis in the amount of $16,000.00 inclusive of disbursements, GST/HST.

The Honourable Mr. Justice Sosna

DATE RELEASED: July 31, 2012