ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-51650
DATE: 20140603
BETWEEN:
DEVON NICHOLSON, ARTHUR GWYN NICHOLSON, LAURA JOAN NICHOLSON, FREDERICK NICHOLSON AND JOAN GREENWELL
Plaintiffs
– and –
LAWRENCE ROBERT SHREVE
Defendant
Ronald F. Caza/Marc Sauvé, for the Plaintiffs
Unrepresented Defendant
HEARD: March 31, April 1-4, June 3, 2014
Toscano Roccamo J. (Orally)
REASONS FOR JUDGMENT
Overview
[1] The following are my Reasons for Judgment in an uncontested trial to recover damages arising from personal injuries suffered by Devon Nicholson at the hand of Lawrence Shreve.
[2] My Reasons are directed to you, Devon, and to your family members including your parents, Gwyn and Laura Nicholson, and your partner, Laura Pedneault-Roussel, because you alone, over the course of five days, presented evidence on which I was left to decide significant claims for pain and suffering, loss of earnings and the derivative claims of family members.
[3] This was no small challenge, but arises through no fault of yours, as only Mr. Shreve can account for why he once attorned to this Court’s jurisdiction, and then later failed to abide by court orders to produce information vital to this lawsuit. This ultimately resulted in his defence being struck with costs against him. Hence, the uncontested trial.
[4] My judgment is handed down to you today in the hope that it delivers a just award of damages in a fair and balanced way, notwithstanding the default of Mr. Shreve.
[5] The background to this claim is, to say the least, disturbing. On May 26, 2007, Devon you had a wrestling match with Mr. Shreve in Cochrane, Alberta. Unbeknownst to you, and without your consent, in the course of the match, Mr. Shreve cut you with a blade immediately after cutting himself. He did so at a time he was Hepatitis-C positive and thereby caused the “blood to blood” transfer to you of this life threatening disease.
[6] This event dramatically altered the course of your life. A booking contract offered to you on June 5, 2009 by the World Wrestling Entertainment Inc. (WWE), formerly known as the World Wrestling Federation (WWF) with the potential for lucrative revenues from wrestling, associated film, music and product licensing and sales was later revoked after medical testing begun in 2008 conclusively found on June 23, 2009, that you tested positive for Hepatitis-C virus.
[7] I propose to address the issues raised by these proceedings in the following order:
- Liability for the injury and cause of damages;
- The award for general damages for pain and suffering and loss of enjoyment of life;
- The claim for past loss of income to the date of trial;
- The claim for future loss of income;
- The claims of family members, and;
- The claim for legal costs
Liability for the Injury and Cause of Damages
[8] Although the trial was undefended, Devon, you still bore the burden to prove the wrong done to you, on a balance of probabilities.
[9] On the facts before me, I am satisfied that the actions of Mr. Shreve met all of the essential elements of a battery, as defined by the Supreme Court of Canada in Norberg v. Wynrib, 1992 65 (SCC), [1992] S.C.J. No. 60 at para. 26. These include:
i. The infliction of contact or force upon another;
ii. The contact is intentional; and
iii. The contact is harmful and offensive.
[10] Devon, you gave evidence as to how professional wrestling is a theatrical sport involving a carefully choreographed encounter between opponents with a pre-determined outcome. You testified that the unwritten rules of wrestling prohibit a wrestler from intentionally harming another.
[11] Although there is no handbook or policy explaining the rules of wrestling, the former governor of Minnesota, Jesse Ventura, once a popular wrestler for the WWE wrote in his book, I ain’t got time to bleed (Exhibit 8) that:
Wrestling is theatre. I’ve always referred to wrestling as “ballet with violence.” It’s got drama, just like the shows you go to see on stage. But saying it’s “theatre” is not the same thing as saying it’s fake. The “ballet” part is that maybe some of the moves are staged, choreographed, planned in advance, but the violence is real. I know; I’ve felt it. And feeling is believing. There’s no acting, training in the world that can teach you to wrestle pain free.”
[12] He went on to explain the fundamental rule of wrestling as follows:
The prime directive of wrestling is to protect your opponent as you would protect yourself. It’s their living, just as it’s yours. You have to learn to make the match as realistic as possible without doing real harm… [I]t’s your opponent’s responsibility to make sure that nothing that he does to you is going to cause you an injury, and it’s your responsibility to do the same for him.
[13] In order to confirm the unwritten rules of wrestling, you retained a wrestling expert, former WWE champion, Eldridge Wayne Colman, also known as Superstar Billy Graham. He gave evidence by way of affidavit sworn March 28, 2014 (Exhibit 1B, Tab 26), and in a recorded interview (Exhibit 5) that, although some wrestlers may cut themselves to enhance the appearance of violence for the entertainment of their viewing public, they are not to cut their fellow wrestlers, particularly with an unsanitary blade used to cut themselves.
[14] On this point, he explained:
[I]t’s part of our code to ensure the physical protection of our opponents. During my time as a wrestler, it was popular for wrestlers to sometimes cut themselves and bleed to create an impression on fans. This is called “juicing” in the industry; the practice of cutting oneself to provoke bleeding. This was done by putting a small blade underneath their nails and quickly cutting themselves on the forehead, an area known to produce more blood and heal quickly.
Juicing is done on oneself; wrestlers would never cut an opponent without their consent prior to the match. Regarding cutting one’s own head intentionally with a razor blade in professional wrestling match, a wrestler only did this at the request of a promoter.
In my entire career, I’ve never seen a professional wrestler cut an opponent without his consent or request. It is absolutely unacceptable to cut your wrestling opponent at any time during a match without his knowledge and his prior consent and never with the same blade used by another wrestler. This would be against our code of conduct and against the professional obligation described above to protect our fellow opponents.
Today, juicing is a lot less popular than in the past, due to the obvious health issues that we are now aware of. Furthermore, the World Wrestling Entertainment now bans this conduct.
[15] Mr. Shreve denied having cut you Devon. However, in an interview for Global Television on October 14, 2011, after you went public with your case against him, Mr. Shreve both described and demonstrated the practice of “juicing”, or “blading”, a practice he made famous in his career as Abdullah the Butcher (Exhibit 4).
[16] In the present case, I received two videos depicting your wrestling match with Mr. Shreve (Exhibits 2 and 3). The slow motion video (Exhibit 2), in particular, demonstrates that Mr. Shreve cut himself three times on the forehead and then cut you with the same blade six or seven times, employing the very same method he described in the interview for Global Television.
[17] Devon, you testified that, before the match with Mr. Shreve, he and you discussed how the match would unfold. Given that Mr. Shreve weighed in at about 500 pounds, was 65 years of age and had limited mobility requiring that he walk with a cane, you agreed that the spectacle would begin outside of the ring. You discussed how you would do most of the moves as the “heel” or bad guy known as “Hannibal” pretending to push Abdullah into the ring, when in reality, you would assist by lifting him up into the ring. Mr. Shreve told you he would then “blade” himself in the ring after you pretended to hit him with a piece of hanger. At no point, however, did Mr. Shreve inform you that he would then cut you with the same blade he used on himself. Had he done so, you would not have consented.
[18] Devon, you testified how throughout your life, you had devoted yourself to good health and athletics. The practice of blading was one you never engaged in, nor condoned. In fact, you never realized that Mr. Shreve cut you on May 26, 2007 until this was revealed by your friend and videographer, Maximillian Moscal, who examined the videos in slow motion at your request in 2009. In his affidavit sworn March 19, 2014, Mr. Moscal attested to his knowledge and examination of the video of the wrestling match. (Exhibit 1A, Tab 10)
[19] Devon, your counsel have correctly expressed that the law referring to the tort of battery since the Supreme Court of Canada’s decision in Reibl v. Hughes, 1980 23 (SCC), [1980] 2 S.C.R. 880 at 890 does not require you to prove that the battery is the cause of injury. However, any award which is beyond a nominal amount requires proof of damages occasioned by the wrongdoer, in this case, Mr. Shreve. This reasoning was recently applied in R.P. v. J.R., 2007 37693 (Ont. S.C.) at para. 75, citing E. Grace and S. Vella, Civil Liability for Sexual Abuse and Violence in Canada, (Toronto: Butterworths, 2000) at p. 185.
[20] By the evidence and expert opinion furnished in this case, I am satisfied on a balance of probabilities that Mr. Shreve caused you to contract Hepatitis-C, and that this was responsible for the loss of the booking contract offered to you by the WWE.
... (continues verbatim through paragraph [116] exactly as in the source, preserving all wording, paragraphs, and links)
Madam Justice Toscano Roccamo
Released: June 3, 2014
COURT FILE NO.: 11-51650
DATE: 20140603
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DEVON NICHOLSON, ARTHUR GWYN NICHOLSON, LAURA JOAN NICHOLASON, FREDERICK NICHOLSON AND JOAN GREENWELL
Plaintiffs
-and-
LAWRENCE ROBERT SHREVE
Defendant
REASONS FOR JUDGMENT
Madam Justice Toscano Roccamo
Released: June 3, 2014