CITATION: McKenzie v. 2266088 Ont. Ltd., 2016 ONSC 4149
COURT FILE NO.: CV-14-20448
DATE: 20160704
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Megan McKenzie, Plaintiff
AND:
2266088 Ontario Limited, carrying on business as The Bull & Barrel, Urban Saloon, Krystal Bozek and Samantha Gendreau-Stevens, Defendants
BEFORE: Carey J.
COUNSEL: Colleen M. Caza, for the Plaintiffs
Defendants not present or represented
HEARD: February 4, 2016
ENDORSEMENT on assessment of damages
[1] This relates only to the defendant Krystal Bozek.
BACKGROUND
[2] The plaintiff McKenzie brought her action against Ms. Bozek as a result of an assault which occurred on February 5, 2012. The statement of claim was issued on January 31, 2014. Despite service, no statement of defence was received and Ms. Bozek was noted in default on June 5, 2014.
[3] The allegations are therefore deemed admitted. They arise from an incident in the VIP room at the Bull & Barrel in the early morning hours of February 5, 2012. After throwing ice at the plaintiff while she was dancing with a friend, Ms. Bozek poured a drink over Ms. McKenzie that resulted in an altercation between them. During the altercation Ms. Bozek took a mason jar and hit the plaintiff with it, causing a laceration that required her to be taken to Hotel-Dieu Grace Hospital by ambulance. Ms. McKenzie was also kicked and punched.
[4] That laceration was 6.5 cm deep into the muscle layer of her left cheek and around the left side of her face, beginning at approximately 1.5 cm behind her left earlobe. It required surgery to be closed in a two layer fashion and arterial bleeding that required emergency treatment. There were also other 7 mm to 8 mm lacerations on her face. Surgery was performed by plastic surgeon, Dr. Isabelle Chow, on the same day as her admission.
EVIDENCE ON ASSESSMENT HEARING
[5] Ms. McKenzie gave compelling and moving evidence regarding both the incident which occurred February 4, 2012 as well as her efforts towards physical and emotional recovery from the attacks. It was clear that this was a totally unprovoked and unexpected attack, occurring as it did in the V.I.P. room of the Bull & Barrell. She clearly lost a lot of blood which covered her immediately after the attack. She testified as to being rushed to Hotel Dieu, a downtown Windsor hospital, and thinking that she was going to die.
[6] After some emergency surgery to mend a severed artery, Ms. McKenzie woke up with a breathing tube surrounded by frantic and worried family. The crowd gathering around increased her concern that perhaps she was dying. She was about half a day in the hospital before her release. She remains scarred on the right side of her face near the ear and earlobe which had to be stitched back into place. She testified as to “excruciating pain, when the stitches were removed some time after the surgery. She received steroid treatment in an attempt to reduce the scarring. She indicated she was off work for two weeks, missing seven shifts. She said her ear and face caused her constant pain for about a month.
[7] Shortly after the events, Ms. McKenzie returned to St. Michael’s School where she was finishing high school credits. She testified she was confronted in the bathroom by two young women who identified themselves as friends of her assailant. As a result of that confrontation, she dropped out of school and did not return.
[8] Ms. McKenzie stated, after the incident she became a horrible person, mean and closed to others. She felt paranoid and was afraid to go anywhere alone. She often had thoughts that she was being followed and suffered from anxiety attacks. She testified about some counselling she received for her anxiety and depression.
[9] I accept from Ms. McKenzie’s evidence, supported by medical records, that she has been left with a permanent scar on the left side of the face, has and will experience physical pain and psychological effects as a result of this unprovoked assault. I accept her evidence of ongoing headaches, numbness in the repaired area of her earlobe, depression and anxiety. I accept that she feels embarrassed and self-conscious about her injury and effect on her appearance. I accept her evidence that she left her educational upgrading at St. Michaels as a result of embarrassment about her injury and that put her in violation of the school’s strict absence policy. I accept that she left permanently as a result of being confronted by friends of Ms. Bozak in the school washroom and that she had not returned to school since.
[10] The report of Dr. Rueben Schnayer confirmed a diagnosis of Post-Traumatic Stress Disorder (P.T.S.D.). I accept it is causally connected to the assault. I further accept Dr. Schnayer’s finding that Ms. McKenzie has flashbacks and nightmares and continues to feel insecure and hyper vigilant.
LIABILITY
[11] I find on the facts before me, and as a result of the operation of Rule 19.02(1)(a) that Ms. Bozak, having been noted in default, is deemed to have admitted the truth of the allegations made in the Statement of Claim. In addition, I accept on the sworn evidence of Ms. McKenzie that Ms. Bozak is 100 per cent liable for the damages flowing from her assaultive behaviour. The attack with the mason jar was entirely unprovoked and unwarranted. As Ms. McKenzie was in the V.I.P. room at the Bull & Barrell, she felt she was in a safe area where such a vicious attack would be unlikely to occur.
DAMAGES
[12] Ms. McKenzie was absent for six shifts as a result of her injury. Her calculated wage and benefit losses are set at $249.69
[13] There is an O.H.I.P. subrogated claim that has been made out in the amount of $3,969.60.
[14] Future medical expenses to cover ten (10) counselling sessions are claimed and allowed at $1,800.
General Damages
[15] The plaintiff claims general damages of $75,000.
[16] The plaintiff provided the court with the following cases which have dealt with similar types of injuries to the head and face area:
(a) Sica v. Doe and Melkos, 2014 ONSC 1534, 2014 CarswellOnt 3164
(b) Culver v. 624671 B.C. Ltd. et al, 2006 BCSC 1241, 2006 CarswellBC 2046
(c) Bras v. Pietraszek, [2005] O.J. No. 1659, (Ont. S.C.J.)
(d) Schultz v. Weinmeyer (12 October 2006), Windsor 05-CV-005068-CM (Ont. S.C.J.)
(e) Kerins v. Deroche, 2004 CarswellOnt 2181
(f) Carr v. O’Hurley-Pitts, 2004 CarswellOnt 2921
(g) Hwang v. Ricketts, 2004 CarswellOnt 218
(h) Burton v. Daciw, 2003 CarswellOnt 3833
[17] The Burton case, from approximately 13 years ago, is most similar to Ms. McKenzie’s claim. The plaintiff was hit by a beer bottle which was thrown over the shoulder of the defendant, hitting the plaintiff in the head causing a two to three inch gash beside her eye and resulting in heavy loss of blood and the requirement of stitches. There, Pierce J. awarded $50,000 in general damages and $10,000 in punitive damages for a wound which was swollen and bruised for a month based on intimidation felt by the plaintiff in going out socially. I note that it is necessary to take into account the fact of inflation in assessing an appropriate award. In my view, $75,000 is an appropriate award.
[18] The plaintiff earlier settled a claim with The Bull & Barrel. The net amount of that settlement, after fees, was $25,000. Pursuant to the Ontario Court of Appeal in Laudon v. Roberts, (2005), that amount is deducted from the General Damages.
Punitive Damages
[19] It is appropriate, notwithstanding Ms. Bozek was charged and jailed for her offence, to make an award in addition to general damages of punitive damages, and I fix those damages at $15,000.
CONCLUSION
[20] Damages will be awarded to the plaintiff as follows:
Wage and benefit loss $ 249.69
O.H.I.P. Claim 3,969.60
Future medical 1,800.00
General Damages $75,000.00
(less settled claim) 25,000.00 50,000.00
Punitive Damages 15,000.00
$71,019.29
COSTS
[21] Costs will be assessed against the defendant, Krystal Bozek, in the amount of $5,836.
“original signed and released by Carey J.”
Thomas J. Carey
Justice
Date: July 4, 2016