COURT FILE NO.: CV-13-476793
DATE: 20190115
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BORIS MILICIC
Plaintiff
– and –
LIBERTY ENTERTAINMENT GROUP, MILORAD NIKOLIC, JOVAN NIKOLIC, SINISHA BOGOJEVIX, MARKOV JEZDOVIC, NOVIA JEZDOVIC, MILINKO FILIPOVIC c.o.b. ABSOLUTE ENTERTAINMENT, and JOHN DOE SECURITY COMPANY
Defendants
Justin. Linden and Alyssa Barrs, counsel for the Plaintiff
John Lea and Gillian Mays, for the Defendant Liberty Entertainment
HEARD: January 14, 2019
REASONS FOR JUDGMENT
Darla A. Wilson J.
[1] This is claim for damages brought by the Plaintiff Boris Milicic (“Boris”) as a result of an assault that occurred on January 14, 2012, on the premises of the Liberty Grand, a facility owned and operated by the Defendant Liberty Entertainment Group (“Liberty”).
Background
[2] The Plaintiff was the victim of a vicious assault and sustained serious injuries. This action was commenced in 2013; three of the Defendants, Sinisha Bogojevix, Milorad Nikolic, and Jovan Nikolic were noted in default in 2014. The claim was dismissed against the Defendants Jezdovic. The Plaintiff settled his claims against the Defendant Liberty. He moves for default judgment against the three remaining Defendants who have been noted in default.
[3] Boris was born in Serbia in 1979. He played professional soccer and in 2011, he came to Canada to play on the Serbian White Eagles team. He had a signed contract for the season running from October 7, 2011 to March 31, 2012 for which he was paid $2000 per month [exhibit 1, tab 18].
[4] On January 13, 2012, Boris and his girlfriend, Ljiljana Popovic (“Ljiljana”), who was visiting from Serbia, attended a Serbian New Year’s party held at the Liberty Grand located at 25 British Columbia Road in Toronto. Boris and Ljiljana were sitting with some friends from Boris’s soccer team. Boris went outside to smoke a cigarette. It was there that he was assaulted by Bogojevix and the Nikolics, who then fled the scene. The police investigated and criminal charges were laid. The Defendant Jovan Nikolic pleaded guilty to the charge of assault.
The Evidence
Boris Milicic
[5] Boris has little recollection of the assault because he lost consciousness and sustained a head injury. He recalled that he was standing outside when he was hit from behind on the right side of his head. He fell to the floor and was dragged back into the premises where he continued to be struck around the face. He put his hands up in an effort to protect himself. The assault continued as Boris was struck and kicked repeatedly in the head. Boris testified that the assault was unprovoked and he did not know who beat him up.
[6] He was taken by ambulance to the Toronto Western Hospital where he was advised his jaw was broken in multiple places and he needed surgery. He was transferred to Mount Sinai Hospital where underwent surgery to repair his broken jaw; two plates and screws were needed to repair the fractures. He was discharged home on January 17, 2012.
[7] His jaw was wired shut for several weeks and he had to eat through a straw. His face was cut and bruised; he was unable to work or play soccer.
[8] With time, there has been improvement in his injuries; however, he has been left with ongoing headaches, memory and fatigue problems, inability to sleep, loss of hearing on the left side, numbness around his lips and difficulty eating. His jaw does not open/close properly. Boris also believes that he is more emotional and is subject to mood swings. Although he tries to carry on living a normal life, he feels that he is fighting with these issues.
[9] His soccer contract was extended for another six months after the assault and Boris returned to playing soccer in April, 2012. He suffered a knee injury in October 2012 which required surgery and he has not played professional soccer since that time. At his job installing doors and windows, he has to take a break after 3 or 4 hours of work because of fatigue. Boris does not feel he is continuing to improve; he is at a plateau. He has not taken any counselling because he was unable to find a psychologist who speaks Serbian. He tries not to take pain medication. If the pain or headache is severe, he will take non-prescription medication to alleviate the symptoms.
Ljiljana Popovic
[10] Ljiljana has known Boris since they were children growing up in the same town in Serbia. She is 35 years of age and she and Boris married in 2012. Ljiljana works as an operations manager for a logistics company.
[11] Ljiljana was living in Serbia but was visiting Boris in Toronto when the assault occurred. She recalled that Boris went out on the patio for a smoke while she remained at the table with their friends. She saw a crowd gathered around and it appeared that someone was being kicked while on the floor. Someone came to the table and told her that Boris was the victim. By that point, the crowd had moved outside so she ran out. The ambulance had arrived; Boris was covered in blood and his jaw was broken, his teeth were askew.
[12] She accompanied Boris to the hospital and stayed with him, sleeping at the hospital. After a couple of days, he underwent surgery to repair the various fractures in his jaw and afterwards, his jaw was wired shut for weeks. He had to eat through a straw and she had to help him.
[13] Ljiljana returned to Serbia in March, 2012. She came back to Ontario in August and they married. She testified that before the assault, Boris was in very good shape and he had played soccer his entire life. He came to Canada with the hope that he would play professionally. In the fall of 2012, he injured his knee and he had to stop playing soccer competitively.
[14] She notices that his personality is different since the assault. He has mood swings and gets angry easily now. He has memory problems and is constantly forgetting things so he has to write everything down. He cannot eat foods that are difficult to chew, such as steak, so she must ensure that their meals are made of soft foods.
Medical Reports
[15] Boris was assessed by a number of specialists for the purposes of the lawsuit and the reports were filed as part of exhibit 1 at the trial.
[16] Dr. Hamilton, the neuropsychologist, in her report of November 2016, was of the opinion Boris was depressed and that he exhibited symptoms of Post-Traumatic Stress Disorder. He also has post-concussive symptoms including headaches, cognitive and emotional changes. She recommended psychological treatment.
[17] Dr. Rockman is another psychologist who assessed Boris in December 2016. She concluded that he has an adjustment disorder with mixed anxiety and depression. She recommended psychological treatment and learning pain management skills.
[18] Counsel for the Defendant Liberty had Boris assessed by Dr. Berry, a psychiatrist. In his report dated July 25, 2018, Dr. Berry noted Boris has difficulties with memory and concentration which he related to the emotional sequelae as opposed to brain damage from the assault. Dr. Berry agreed that Boris has depression and PTSD and he, too, supported counselling to deal with these issues.
[19] Dr. Grushka, specialist in oral medicine, examined Boris in 2016 and again in 2018. She found Boris had undergone significant changes in his temporomandibular joints. He has a restricted range of motion in his mouth and has been left with paresthesia and numbness of his chin and lip. He cannot eat a normal diet and has pain in the muscles when he chews. She opines that these changes are permanent and severe.
Analysis
[20] Boris was the victim of a vicious, unprovoked attack by thugs, who then fled the scene. He was beaten and kicked about the head by the Defendants who have been noted in default. As a result, he suffered numerous fractures to his jaw and a concussion, along with other less serious injuries. The fractures were expertly repaired but Boris has been left with ongoing pain and limitations. I accept the evidence of Boris, who struck me as a man who minimizes his problems and simply carries on.
[21] I was impressed with Ljiljana, who testified without embellishment and who was able to offer the best evidence about the changes in Boris following the assault, because she has known him since they were children. She is clearly devoted to her husband but she described personality changes as well as ongoing pain and limitations. These observations are supported by the medical opinions of Dr. Hamilton, Dr. Grushka, Dr. Rockman and Dr. Berry.
[22] Boris sustained multiple fractures of his jaw which have left him with ongoing pain and restrictions on what he can eat, as well as numbness in the face and lip area. He also sustained a concussion and continues to experience sequelae from that including memory problems, mood swings and depression. He has symptoms of PTSD, which is no surprise given what happened to him.
[23] Boris is a young man; the facial paralysis and difficulties with his jaw and temporomandibular joints will not improve. There is hope for some improvement with his emotional sequelae if he obtains appropriate treatment. Based on the evidence, I am of the opinion his damages for pain and suffering and the loss of amenities of life should be fixed at $125,000.
[24] The specialists agree that counselling is indicated and perhaps a course in pain management; these modalities are not covered by OHIP. The Plaintiff shall be awarded the sum of $25,000 to cover the cost of treatment in the future.
[25] The claim of OHIP is agreed at pursuant to their letter of December 21, 2018 marked as exhibit 2, at $2,296.87
[26] I turn now to the loss of income claim. On the evidence, I cannot find that the end of Boris’s professional soccer career was due to the assault, though it may have played some role. I am sure the absence from the game in the months immediately following the assault did not assist the Plaintiff with his soccer career. However, Boris did return to the game following the assault and it appears that his career was ended as a result of an injury to his anterior cruciate ligament suffered in the fall of 2012, which required surgery in November. There was no medical evidence filed on this point so it is difficult to be certain but I am not persuaded on a balance of probabilities that the Plaintiff would have continued his soccer career but for the assault.
[27] To his credit, Boris has gone on to start up his own business installing windows and doors. I accept that he is not as productive at work as a result of his fatigue and pain and he requires the assistance of others. The nature of his work is physical and given that he was an athlete, in the absence of the assault, he would not need assistance as he currently does.
[28] Boris does not have post-secondary education nor was he trained in a trade. Because he had only been in Canada a relatively short time before the assault, he had not established a specific career path. I am of the view that the injuries from the assault have had a negative effect on his ability to work in a physical occupation. With his pain complaints and limitations, he has suffered a loss of competitive advantage in the work place, which I assess at $50,000.
Conclusion
[29] The Plaintiff shall have judgment against the Defendants Milorad Nikolic, Jovan Nikolic and Sinisha Bogojevix in the sum of $202,296.87 plus interest.
[30] Mr. Linden has provided a bill of costs for my consideration. The disbursements total $33,490.82 and they are appropriate. The Plaintiff is entitled to costs which I fix in the sum of $30,000 plus HST, an amount I consider to be reasonable in the circumstances, taking into consideration the factors enumerated in Rule 57 of the Rules of Civil Procedure as well as the work necessary to bring this matter to trial. The Nikolic and Bogojevix Defendants shall pay to the Plaintiff costs fixed in the sum of $30,000 plus HST of $3,900 plus disbursements of $33,490.82 for a total sum of $67,390.82.
D.A. Wilson J.
Released: January 15, 2019
COURT FILE NO.: CV-13-476793
DATE: 20190115
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BORIS MILICIC
Plaintiff
– and –
LIBERTY ENTERTAINMENT GROUP, MILORAD NIKOLIC, JOVAN NIKOLIC, SINISHA BOGOJEVIX, MARKOV JEZDOVIC, NOVIA JEZDOVIC, MILINKO FILIPOVIC c.o.b. ABSOLUTE ENTERTAINMENT, and JOHN DOE SECURITY COMPANY
Defendants
REASONS FOR JUDGMENT
D.A. Wilson J.
Released: January 15, 2019