IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Buchy v. Villars, |
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2008 BCSC 385 |
Date: 20080401
Docket: C996597
Registry: Vancouver
Between:
Dennis Wayne Buchy
Plaintiff
And
Kevin Villars and Shelter Island Restaurants Ltd.,
and Shelter Island Restaurants Ltd. doing business as
Tugboat Annies also known as Maritime Pub
Defendants
Before: The Honourable Mr. Justice Bauman
Reasons for Judgment
| Counsel for the Plaintiff |
J. M. Prodor and |
| Counsel for the Defendants |
A. L. Eged, K. S. Duffield and |
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Date and Place of Trial/Hearing: |
18-22 and 25-29 June, |
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Vancouver, B.C. |
[1] Dennis Wayne Buchy worked in the construction industry as a steel stud framer.
[2] He lived aboard a boat that he was restoring at the Shelter Island Marina in Richmond.
[3] Tugboat Annie’s is the pub attached to the marina. There, on a quiet Sunday evening on 11-12 April 1999, Mr. Buchy got into a minor dispute with his drinking pal, Brian Sereda.
[4] Buchy was escorted out of the pub by the bartender Kevin Villars. In the parking lot a fight ensued between the two. Villars threw only one punch. Tragically it landed with devastating consequences for Dennis Buchy.
[5] Mr. Buchy sues in assault and negligence. Mr. Villars pleads self-defence and the defendants generally deny any negligence on their part.
[6] Liability is the major issue. So too are the nature and full extent of Mr. Buchy’s injuries and damages.
[7] I will briefly identify the principal characters.
[8] Mr. Buchy was 48 years old in April 1999. He is approximately 6’ tall. At the time he weighed about 200 lbs. He was relatively physically fit.
[9] Brian Sereda was a friend of Mr. Buchy’s. He lived aboard his own boat at Shelter Island Marina. He is significantly shorter and lighter in stature than Mr. Buchy. The two often drank beer together and they played pool regularly at Tugboat Annie’s, a quiet marina-side pub popular with the live-aboards at the marina and residents in the area.
[10] Duane Laviolette also lived aboard his boat in 1999 at the marina. He was a casual acquaintance of Buchy’s and Sereda’s.
[11] The three men did not usually socialize together although, on the night in question, they were playing pool and sharing a few beers in the pub.
[12] Kevin Villars was the bartender that night at Tugboat Annie’s. He immigrated to Canada from Missouri.
[13] Mr. Villars is a big man, 6’4” and 215 lbs in 1999. He is a former professional football player, having played for the British Columbia Lions for several seasons in the mid to late 1980s. He also played and coached football in Europe.
[14] Mr. Villars is married to a Canadian woman. He currently resides in Blaine, Washington. There, he works with mentally handicapped adults and he commutes to Richmond and still works shifts at Tugboat Annie’s.
[15] It is relevant to the events which I will relate to note that Mr. Villars is an African-American.
[16] Daryl Kellett was the cook on duty at Tugboat Annie’s on 11-12 April 1999.
[17] These are the five principal witnesses to the events that evening. Mr. Kellett had a very limited view of the incidents. Mr. Buchy, unfortunately, has absolutely no memory of the weeks around the evening in question. Mr. Sereda was, I find, fairly intoxicated that night and his evidence should be given little, if any, weight.
[18] I record this evidence from Mr. Sereda's cross-examination:
Q Yeah. Now, sir, safe to say, and I think this is the word you used earlier on today, that you were kind of inebriated when all this was happening? And what I mean “all this” is I mean when you were knocked down and what happened after that.
A Yeah, I was pretty drunk.
Q Well, you’re telling [the police] the truth you didn’t – you don’t remember seeing [the Plaintiff] get hit or fall back?
A That’s probably true.
Q And you don’t remember it now?
A Yeah.
Q Yeah, okay. It’s safe to say, Mr. Sereda, that you’ve got a very bad recall about what happened from about 11 o’clock on that night, wouldn’t you agree with me?
A I would say it’s pretty close.
Q What I’m say is pretty close?
A Yeah.
[19] That leaves us with the two critical eyewitnesses, Duane Laviolette and Kevin Villars, although Mr. Kellett’s limited evidence does contain some important points.
[20] I will begin relating the chronology from the perspective of Mr. Laviolette.
[21] Mr. Laviolette is now 56 years of age and he owns two clothing stores in the Steveston Area. At the relevant time he was living aboard his boat at Shelter Island Marina.
[22] Mr. Laviolette liked to walk up to Tugboat Annie’s to play free pool on Sunday and Monday evenings. He said at trial that the pub had a “Cheers” like atmosphere and that there was a group of 20 or so men and women who enjoyed pool and beer on these occasions.
[23] On his way to the pub for dinner that Sunday evening at about 7:30 or 8:00 p.m., Mr. Laviolette passed Mr. Buchy and Mr. Sereda on the latter’s boat. They greeted each other and Buchy and Sereda indicated that they would come up to the pub later to play pool.
[24] Laviolette said that Mr. Buchy had a beer in his hand and that he was in a “very jovial mood”.
[25] Mr. Laviolette was only casually acquainted with Messrs. Sereda and Buchy, having only met Mr. Buchy on one or two occasions before that night.
[26] It was Mr. Laviolette’s evidence that he went up to the pub, ate dinner and drank a pint of beer over the course of the meal. He then started playing pool.
[27] According to Laviolette, Buchy and Sereda arrived in the pub around 9:30 p.m.
[28] Mr. Laviolette described the two men (T. 19 June 2007, p. 7, ll. 13-26):
Q When they came in Tugboat Annie’s and saw you, what if any observations did you make about the condition they seemed to be in, both mood and/or whether they had seemed to have been drinking?
A Well, I gathered they had been drinking. I basically knew that that’s what they were doing down on the -- on Brian’s boat before they got there, not that I’d physically seen them, but it was kind of obvious. They were jovial, but they were both in very good -- you know, good mood.
Q They were getting along with each other?
A Yes.
Q And both seemed to be in good spirits?
A Yes.
[29] The three men ordered a jug of beer and proceeded to play pool over the course of the next two hours.
[30] According to the evidence, a jug of beer contains three pints and the three men shared two jugs over this period, each man consuming about two pints.
[31] The three men played approximately 20 games of pool and while Buchy and Sereda had been drinking, according to Laviolette, their pool-play was very accurate; the two “were doing a good job of playing a fairly skilled game…”.
[32] Mr. Villars was the on-duty bartender that evening. Mr. Laviolette had never had any difficulty in the past as a patron with Mr. Villars.
[33] The bar stopped serving at about 11:00 p.m. that evening with actual closing around 11:30 p.m. Mr. Laviolette said that at cut-off he was “feeling ok” and that he did not think that Mr. Sereda and Mr. Buchy were “that intoxicated”.
[34] Mr. Laviolette’s evidence then continues (T. 19 June 2007, p. 11, ll. 5-32):
A The three of us were sitting at -- at the bar part right beside the pool table and Brian was sitting right next to Dennis. I was on the other side on a corner, so I wasn’t directly beside them, and we were talking about how nice it is being on the water, boating -- Brian and I were -- and we were mentioning about waking up in the morning and seeing the ducks, and the geese and that swimming around the boat and just what a wonderful experience it was living down there and Dennis, who had had his boat in the yard up on – having it repaired for the last year-and-a-half or so, sort of took offense to it.
Like he -- as I remember him saying, “You guys and your ducks,” or actually used a four letter word before that and, you know, “I’m sitting up there in the yard and” -- you know, “What do you know?” and then he mentioned to Brian something about the fact that, “You don’t take your boat out anyway, so what do you know about” -- “You call yourself a boater,” or whatever, “but you never take you boat out,” and they were just joking back and forth.
It wasn’t -- they weren’t yelling at each other. It was kidding -- more kidding around. I remember -- and Dennis gave Brian a shove and Dennis [sic] flew off the chair because he’s not a very big guy.
[35] Sereda ended up on the floor and his pint glass of beer broke.
[36] Laviolette was asked if this incident led to a fight between Sereda and Buchy. He responded “not that I recall no”, and further (at T. 19 June 2007, p. 13, ll. 21-36):
Q So what did happen next?
A I believe they were still laughing and joking about it. Brian Sereda was trying to get up off the floor --
Q Did you --
A --and--
Q Did you notice when he was trying to get up off -- you say trying to get up off the floor. What if anything do you think was hindering that process for him?
A He was just down and trying to get up. He was -- he was kind of squashed halfway in-between the chair that fell over and the pool table.
Q And then what happened next, sir?
A Kevin came -- Kevin Villars came over and said, “That’s it. You guys have to leave.”
[37] It is Mr. Laviolette’s evidence that Mr. Villars then escorted Mr. Buchy out the two sets of doors to the parking lot. He indicated that he and Sereda were still in the pub “following along behind”. But I infer that Sereda and Laviolette did not immediately follow Villars and Buchy outside. There was an interval because on Laviolette’s evidence (T. 19 June 2007, p. 14, ll. 22-24):
A Well, Kevin had gone outside. Kevin Villars had gone outside with Mr. Buchy and they were having a discussion outside when we came out the door.
[38] I now reproduce a significant portion of the transcript covering Mr. Laviolette’s evidence on the actual minutes outside the bar (T. 19 June 2007, p. 14, l. 35 to p. 17, l. 40):
A Kevin was standing right at the door and – Kevin Villars and Brian -- I mean and -- sorry, and then Dennis was standing down off the steps a bit to his right.
Q And I take it from what you’ve told us that yourself and Mr. Sereda then exited.
A Yes.
Q Can you tell His Lordship what transpired then and tell it slowly as it unfolded over those next few minutes?
A Dennis started calling -- made some – calling Kevin a lot of names, saying, you know, that he spent a lot of money at the bar and that sort of thing and Kevin had told him that he was -- he was barred, that he couldn’t come in anymore.
Q You heard Kevin tell Mr. Buchy that you were barred from coming here anymore?
A Yes, and that’s when -- when Dennis Villars took -- he took exception to that.
Q Now, you’ve mentioned --
A Or Mr. Buchy, rather. Sorry. I have a hard time with the last names.
MR. CAMERON: That’s all right.
THE COURT: It’s okay.
MR. CAMERON: That’s all right.
Q Now, you have mentioned that it had been a discussion and I notice now you’re saying that it had become more heated. Did you see what sort of triggered that escalation?
A It was him -- it was Kevin telling Dennis he was barred.
Q And as it escalated, you’ve just told us that Mr. Buchy, Dennis, began to use profanities and get upset with Mr. Villars.
A Yes. Yeah, he used racial —— racial slurs and called him names and --
Q Do you recall what he might have said to Mr. Villars and just so you know, it’s all right to say it. This court has heard everything there is to hear.
A Right. Yeah. Well, he just said, “I’m going to take a piece of you, you black bastard.”
Q Now, when that was happening, was Mr. Villars still standing -- Kevin -- with the doors behind him to the pub?
A Yes.
Q How far away was Mr. Buchy at that point?
A I would say he was probably about eight feet away.
Q In your opinion, when you were watching this unfold where Mr. Villars was standing and where Mr. Buchy was standing as they had this argument or discussion, was there opportunity for – to you, do you believe, to Mr. Villars to just turn around and walk back into the pub and lock the door?
A Yes.
Q After this argument escalated and Mr. Buchy said the things you told us, what happened next?
A Well, that’s when Brian and I tried to convince Mr. Buchy just to go home and we said, “Just forget it. Let’s go back to the boat, have a beer down there. It’s not worth it.” You know, “Let’s just go home,” and then Dennis turned. We thought he was going to follow us.
Q Now, I’ll pause you for a second there. So at this point where you three -- or both of you, Mr. Sereda yourself began talking to Dennis. In your words, attempted to calm him down.
A Mm-hmm.
Q Was this also a period of time in which Mr. Villars, to your understanding, could have also left and locked the door?
A Yes.
Q What happened next?
A Dennis what I would characterize as snapped. He just became very agitated, went into a fighting stance. He brought his hands up and he charged at Kevin Villars.
Q And Dennis charged towards Mr. Villars, what did Mr. Villars do?
A He guarded himself. He kind of -- I think he was taken by -- a little bit by surprise. He didn’t jump out of the way or try to swing that I noticed. He didn’t even put hands up. He just kind of like stepped aside, and Dennis swung wildly a couple of times and as far as I could see, I didn’t even see him make contact with Kevin.
Q Now, when you say swung wildly, do you mean wild in the sense that it was frantic movements or do you mean wild in the sense of that it did not come near the target, or what do you -- what do you mean by that?
MR. EGED: We’re getting into a dicey area here, My Lord, and I understand my friend is trying to do the best he can with respect to not leading this witness, but he is, I notice, starting more and more to put suggestions to him about options of what happened. I would ask my friend to just ask plain old open-ended questions here.
MR. CAMERON: I take my friend’s point.
Q What do you mean when you say “swung wildly”?
A It’s at that point or when all this started to take place and Dennis decided to make this move towards Kevin that I myself thought, wow, I didn’t realize he was that intoxicated. Like it was obvious to me at that point in time just how intoxicated Dennis was because to see him swing the way he did and so kind off-balance, I thought he would then -- he’s a big guy and I thought he would handle himself better in his attack.
Q Now, you’ve said that you felt at that time that he was more intoxicated than you had previously believed --
A Yes.
Q -- and you say that you thought he looked off-balance?
A Yes.
Q Was there anything else in the way in which he made his attack, as you described it, that made you think that?
A Well, after he took the swings at Kevin, he lost his balance, staggered down off the -- the minor stairway there, the little step, and back and probably took four or five steps almost backwards, falling off balance where I thought he was going to actually fall right down on the ground, but he kind of regained his footing and by this time, he’s back probably by fifteen feet from the door and he regained his stance. He put his -- he refocused because he wasn’t focused, and I could tell that he was trying to line his eyes up to his target. He brought his hands up in a fighting stance again.
Q And I notice you’re holding your two hands up in front of you –
A Yes.
Q -- fists clenched.
A Right.
Q And this is what you say Mr. Buchy was doing at that time?
A Yes.
Q And then what happened next?
A Then Kevin, I guess, saw an opportunity because it was obvious he was going to get attacked again, and he took about three steps down from the stairs in a forward motion and hit Dennis once.
[39] Mr. Buchy was severely injured when his head hit the pavement and he spent months hospitalized. He has suffered a traumatic brain injury and, on any version of the evidence and the submissions of counsel, the altercation has had a catastrophic effect on his life.
[40] At the end of his examination in chief, Mr. Laviolette was asked to re-enact the last part of the altercation.
[41] Counsel described it for the record so (T. 19 June 2007, p. 20, l. 33 to p. 21, l. 8):
MR. CAMERON: Yes. For the record, the witness has indicated that he, in the role of Mr. Villars, is standing some eight feet away from my co-counsel, who is standing in the place of Buchy, and that the witness has indicated that the – that Mr. Villars - has acted out Mr. Villars stepping forward some three or four paces with a cocked right arm and at some -- and then swinging that arm towards the face of my co-counsel, acting out as best he can from his recollection how this blow was struck at the time, and that’s my description. I allow my friend to describe it as well.
THE COURT: Anything you want to add?
MR. EGED: It just seemed to be more like four or five paces to me, My Lord, but I –
THE COURT: Sure.
MR. EGED: -- wasn’t counting.
THE_COURT: Well, let’s ask the witness. In actuality, apart from your re-enactment, how many paces did you recall the defendant, Villars take towards the plaintiff?
THE WITNESS: Four -- about three to four steps, Your Honour.
[42] On cross-examination Mr. Laviolette was referred to his statements to police on the evening in question and later on 7 June 1999.
[43] I record this exchange (at T. 19 June 2007, p. 27, ll. 2-16):
Q Okay, and did -- and you appreciated that one of the matters the police were concerning themselves with was Mr. Villars having to defend himself. Correct?
A Yes.
Q And you told the police that in your opinion, he was defending himself. Correct?
A That’s correct.
Q And that was true then. Correct?
A Yes.
Q And it’s true now, isn’t it?
A Yes.
Q Now, it’s safe to say that Mr. Buchy was quite angry at Mr. Villars?
A Yes.
[44] Mr. Laviolette, of course, was not expressing a legal opinion on the issue of self-defence – he was offering a lay-person’s overall perception of the dynamics of the altercation between Mr. Buchy and Mr. Villars. As such, it is an important piece of evidence. Overall, Mr. Laviolette considered that Mr. Villars was in the position of defending himself from Mr. Buchy’s assaults. I should note that later in the cross-examination of Mr. Laviolette, counsel for the plaintiff complained that Mr. Laviolette did not in his statement actually tell police that he thought Mr. Villars was acting in self-defence and that this questioning was accordingly unfair.
[45] This matter was not pursued any further in the record.
[46] I have considered the fairness issue in considering the weight I would give this aspect of Mr. Laviolette's evidence. In my view, it is important that Mr. Laviolette fully agreed at trial that in his opinion Mr. Villars was defending himself.
[47] Mr. Laviolette also agreed with counsel that the attack on Mr. Villars by Mr. Buchy was “very sudden” and “unexpected”.
[48] The events leading up to Mr. Buchy’s ejection from the pub were reviewed again with Mr. Laviolette on cross-examination.
[49] In particular, Mr. Laviolette was asked if he could have gone to the washroom after he was told to leave the bar. Mr. Laviolette responded:
That’s quite possible. It wasn’t a big thing in my mind so I didn’t, you know, recall.
[50] At T. 19 June 2007, p. 40, l. 24 Mr. Laviolette was asked about the racist comment made by Mr. Buchy when the parties were outside the pub. I reproduce these questions and answers:
Q Now, you recall and you testified that Mr. Buchy made a racist comment to Mr. Villars. Correct?
A That’s right.
Q And you’d agree with me that Mr. Villars was not phased by that comment?
A Didn’t have any reaction to it. No.
Q So he didn’t become angry?
A No.
Q Now, sir, would you agree with me that Mr. Buchy swung two or three times at Mr. Villars?
A At least two times. Twice I’ve seen.
Q Excuse me, sir?
A He took at least two swings at --
Q Okay.
A -- Mr. Villars.
Q And, sir, you don’t know if any of those swings connected with Mr. Villars because you were standing behind -- directly behind Mr. Buchy when the swings were thrown.
A That’s correct.
Q So one or more of those punches could have landed. Correct?
A It’s possible.
Q You just didn’t see because of the angle you were at. Correct?
A That’s right.
[51] Mr. Laviolette was also questioned closely about his second statement to police to the effect that Mr. Villars swung at Mr. Buchy with his left hand.
[52] In his original statement Mr. Laviolette said that Villars made a right-handed punch (at T. 19 June 2007, p. 45, ll. 11-31):
Q What brings you around to thinking it was his right again?
A Try -- I tried to re -- rethink the motions that -- that Kevin went through when he came down off the steps, when he took the steps downwards and what his body movements were and -- and just the way that the hit happened, but I don’t – you know, I honestly can’t remember why I was confused on the right or left hand and I know I -- I seen him hit him, but as far as which swing he had, I don’t know. Maybe I was thinking that -- that Kevin was left-handed and it must have been his left hand even though at first, I thought he hit him with the right hand.
Q Is it safe to say, sir, you’re not sure which hand he hit him with?
A Not a hundred percent sure. No.
Q Okay. One punch. That’s all.
A That’s correct.
Q Nothing else?
A That’s right.
[53] This brings us to the critical evidence of Kevin Villars. According to Mr. Villars, around 11:00 p.m. it was quiet in the pub. The only people present were Laviolette, Buchy, Sereda, Kellett and someone else in the kitchen. Villars and Kellett were at one end of the bar. Villars had just poured himself an end-of-shift beer and he had taken a couple of sips out of it.
[54] In examination-in-chief Villars said that at this point he heard a glass break and the sound of a stool falling over. He ran down to the other end of the bar (T. 10 July 2007, p. 23, ll. 10-41):
A They’d be about right here, because this chair had fallen over, and they were right here on the floor, Dennis on top of Brian.
Q Okay. Now, is Dennis actually sitting on Brian, or how was --
A He was straddling him.
Q Straddling him?
A Yes.
Q And bent over at the waist straddling, punching down?
A Yes.
Q And what did you do?
A I came from behind and I pulled him off and I was like, okay, you gotta go, because you can’t be fighting in here.
Q Okay. What do you mean pulled him off?
A I just came from behind and just -- you know, just grabbed him. He -- he wasn’t concerned with me. He was concerned with trying to hit him. So I just pulled him off of him, broke the fight up, and then I was like saying, okay, you gotta go, you gotta go, and he was like, you know, don’t touch me, don’t touch me, except he was swearing.
Q Well, slow down -- slow down, Mr. Villars. We’re all trying to take notes here.
A Okay, sorry.
Q Tell us exactly what Mr. Buchy said, as you were lifting him off of Mr. [Sereda].
A Okay. Once I got him off and I said come on, man, you gotta go, you can’t be fighting in here, his -- his remarks were don’t fucking touch me, don’t fucking touch me.
[55] Mr. Villars said that he then took his hands off Mr. Buchy and tried to “corral him out the door”, which he successfully did. Mr. Villars then came back into the pub, having advanced as far as the second set of doors.
[56] Mr. Villars at trial stated that Mr. Buchy pushed the doors “really hard” as he left the pub.
[57] Mr. Villars got about eight feet into the pub when Mr. Buchy came back into the pub. I reproduce this portion of Mr. Villars’ evidence (T. 10 July 2007, p. 25, l. 38 to p. 26, l. 19):
Q Okay. And when you say he came back in, what do you mean he came back, what do you mean by that?
A He came back in and I heard the doors open, so I turned around and he’s back in the pub.
Q Is he inside the second --
A He’s inside -- he’s inside the first set and the second set, and he’s right -- like when I -- when I turned around he was right there trying to get back in, like all the way back in.
Q And what did you do?
A So I told him no, man, you gotta go, and then he--
Q Well, what did -- okay. You told him no, man, you gotta go, and what did you do?
A Well, I tried to -- I was corralling him, like I did at first, and I said no, you can’t come back in, you have to go.
So this time when he goes out he shakes the set of doors, like he’s -- his -- his temper is escalating, so he shakes the first set of doors really hard and he goes and opens them, so I’m like okay, so --
Q Now, how does he open the second set of doors?
A You mean to go outside outside? The first set of doors he goes, he shakes them really hard and he pushes them open, like he’s just doing this and he pushes them open. So then he goes through the second set of doors and he just pushes those open, so I go outside with him and try to calm him down.
[58] It was Mr. Villars evidence that he had previously had to discuss with Mr. Buchy his conduct in the pub and that he had successfully reasoned with him about an incident where Mr. Buchy had pinched a woman passing the end of the bar.
[59] After he accompanied Mr. Buchy out for the second time, Mr. Villars went outside with him (T. 10 July 2007, p. 27, l. 2 to p. 28, l. 2):
Q Why did you go outside, Mr. Villars?
A I went outside to try to de-escalate the situation. He was noticeably upset. In the past I’ve been able to talk to him and, you know, there was never a problem, it never escalated, so I just figured that I could talk to him and that he could calm down. He was obviously trying to get back in at Dennis. He was still mad at Dennis. I believe that’s why -- I’m assuming that’s why he came back in the bar. I already told him he couldn’t be in there, so -- but as we were outside his -- his anger turns towards me.
Q What was -- when you took him out, and he came back in, and you took him out again, did he say anything to you?
A Not that I can remember. He was saying some stuff. I don’t really remember what he was saying until we got outside the bar.
Q Okay. So when you get outside the bar what do you remember him saying to you?
A Well, he was saying I can’t believe you’re kicking me out, I don’t know why you’re kicking me out, I wasn’t doing anything. I can’t believe -- this is bullshit, I spend way too much money in there for you to be treating me like this. And he says things along those lines, and he just kept repeating that over and over.
Q In what sort of tone was he saying these things?
A He was yelling and as he repeated them he – you know, each time he repeated it got higher. He just -- I don’t know, he just -- ‘cause I couldn’t understand why I’m -- I -- he wasn’t fighting -- he wasn’t fighting with me. He was fighting with Brian, and I can’t understand why he would say he didn’t understand why I was kicking him out, because he was fighting, so it was just -- he was just yelling and not making a lot of sense.
Q And what were his body actions after you got out the door?
A He was walking back and forth, pacing and yelling these things to me.
Q And what were you doing?
A I was just standing by the door, hoping he’d calm down. I tried -- I was talking to him at first and then that didn’t seem to be working, so I figured that, you know, if I let him vent then he’d calm down and leave.
[60] We now come to the critical moments of the evening.
[61] Mr. Villars stated that at this point Mr. Buchy is not staggering. He is yelling and not slurring his words. “He’s noticeably upset”.
[62] The two were joined by Sereda and Laviolette coming out of the pub. Those two men tried to calm Buchy down (T. 10 July 2007, p. 33, l. 3 to p. 35, l. 42):
Q I’m going to try and do this the best I can, Mr. Villars. So just, please, walk us through that again slowly and -- and we’ll kind of get it on the record that way.
A Okay. So they turned to me. I go to grab this door right here. As soon as I grab the door, I don’t even get it open, he rushes me, hits me in the jaw, the left side.
Q Do you see which hand he hits you with?
A No, I didn’t. It was just -- it was just like -- he was on me like that.
Q About what distance away from you were they --
A About five, six feet.
Q -- when --
A About five or six feet.
Q And then, sorry, after you got hit in the jaw --
A Mm-hmm.
Q -- what happened next?
A Then I got hit in the chest.
Q Okay. Could you tell who it was that was hitting you?
A Yeah. It was -- it was Brian -- I mean it was Dennis.
Q Dennis Buchy?
A Yes.
Q And so you get hit in the jaw, hit where?
A In the chest.
Q Where in the chest?
A In the -- like right in the -- kind of in the middle.
Q Well, what kind -- well, how are you --
A A punch.
Q A punch?
A Yeah.
Q Can you tell which hand he’s hitting you with --
A No.
Q -- either time?
A No.
Q Okay. And what happens to your body positioning?
A It pushes me from -- away from the door --
Q Yes.
A -- to this part of the building, in between the window and the door.
Q Okay. And you’re --
MR. EGED: Sorry, the witness is indicating, My Lord, a -- I guess that’s a vinyl siding section, between the door and the window to the right.
Q Go ahead.
A Okay. So at this time I’m turned around and I’m facing this way and --
Q You’re facing which way?
A I’m facing the vinyl siding.
Q Yes. Go ahead.
A Okay. And then he pushes me and I’m off balance and --
Q How does he push you?
A With a two-hand push.
Q Where?
A In the chest.
Q Okay. In which direction does he push?
A He pushes me towards the river. My back is to the river.
Q Okay.
A And when he pushed me all I could think is that my back was getting ready to hit the top of this light, and I’m thinking that -- you know, that I’m going to be hurt, so --
Q Okay. Hold on, Mr. Villars. That light you’re indicating is a light immediately to the right of the doors?
A Yeah, this one, yes.
Q Okay. And how -- how -- how tall is that light?
A Three-and-a-half feet.
Q Okay. And just -- and what’s the distance between that light and that siding, the building there?
A About four feet.
Q And there’s a little garden area there?
A Yes.
Q Okay. With the bushes?
A Yes.
Q Okay. Go ahead.
A So at this time I’m -- I’m just thinking I don’t want my back to hit this -- the top of that light post, so I bow down like this --
Q Okay. You’ve got to slow down here.
A Okay.
Q You bend over a little bit?
A Yeah, I bend over a little bit, yeah.
Q From the waist?
A Yes.
Q Okay. And what do you do then?
A And then I let my top hip hit -- hit this post, you know, like bump -- something is going to hit, so I let my hip hit instead of my back. I hit, spin off into the parking lot.
THE CLERK: You just want to keep your voice up.
MR. EGED:
Q Okay. So you -- you were saying you spin off, excuse me, into the parking lot?
A Yes. So I spin off into the parking lot and it knocks me off balance and whatever many revolutions, I’m not sure. I’m in the parking lot and I have to put one hand down, because I’m getting ready to fall, and then --
Q Which hand did you put down?
A I put my right hand down.
Q Did it actually touch the pavement?
A Yes, it did, because otherwise I would have fell.
Q Okay.
A So I put my hand down and as soon as I get my hand down he is charging me.
Q Okay. Now, you’re indicating --
A He’s already charging me.
Q Okay. You’re indicating that your hand is down and he’s -- you’re indicating that he’s coming at you from your -- directly from your left?
A Yes.
Q And which direction is he coming at you from?
A He’s coming at me from the door.
Q Okay. Go ahead.
A Okay. So once I, you know, stopped myself from falling I look up and he’s right there on top of me.
Q Okay.
A And at this point I don’t know what he was going to do. He’s coming at me, so I just was able to push myself up and just take -- and hit him once, and he just would have -- it wasn’t thought about it. It was just a reaction, just so he could -- he wouldn’t be on me, because I know if he got on me, I’m off balance, I don’t know what he would have did, kicked me, whatever, so I just wanted to get him off me.
[63] Mr. Villars clarified at trial that he did not see Mr. Buchy charge him because “I am spinning and off balance, and I put my hand down and he is already there…”.
[64] Mr. Villars at trial specifically denied that Mr. Buchy staggered badly backwards after the first altercation or that he, Villars, took a number of steps before striking the one blow.
[65] After Mr. Buchy fell to the ground Mr. Villars re-entered the bar, complained to Kellett that he had injured his hand and called 911. Police and ambulance personnel soon arrived.
[66] Mr. Villars was questioned by police and he voluntarily gave a number of statements. He was never charged with an offence.
[67] On cross-examination, counsel focussed on three alleged inconsistencies between versions of the incident given to police, at the time of Mr. Villars’ examination for discovery, and in his testimony at trial.
[68] These inconsistencies are said to be quite significant. I will deal with them in turn when I resolve the issue of credibility.
[69] They include:
(1) The suggestion that previous statements by Mr. Villars did not include the evidence he gave at trial that Mr. Buchy, in the bar, was straddling Mr. Sereda and punching down on him;
(2) The suggestion that Mr. Buchy came back into the bar after Mr. Villars initially escorted him out; and
(3) The suggestion that on leaving the bar the second time, Mr. Buchy violently shook the two sets of exit doors.
[70] I turn to the evidence of Daryl Kellett, the cook that evening at Tugboat Annie’s.
[71] He related that he was drinking a beer with Mr. Villars at the end of the evening. He heard a scuffle break out and a glass break. He testified that he watched as the defendant Villars went to the area of the disturbance and pulled Mr. Buchy off Mr. Sereda.
[72] He watched as Mr. Villars escorted Mr. Buchy out of the pub and he stated that Mr. Buchy was agitated and angry, telling Villars to “get your fucking hands off me”.
[73] Mr. Kellett said that Mr. Villars then stopped touching Mr. Buchy and calmly escorted him out of the bar. At that point, Mr. Kellett went into the kitchen to get a broom and dustpan to clean up the broken glass. When he returned to the pub itself, no one was there. He stated that Mr. Villars came in four to five minutes later, complained that he broke his finger, put his hand on ice and called 911.
[74] Mr. Kellett, on cross-examination, indicated that he did not recall the plaintiff coming into the bar again or mishandling the exit doors.
[75] The credibility of the two principal witnesses to the incidents that evening is, of course, important.
[76] As to the dynamics of the altercation in which the critical punch was thrown, the versions offered by Mr. Villars and Mr. Laviolette are different in a number of significant respects.
[77] I will first deal with Mr. Laviolette. He is an independent witness who could not be said to be a close friend of the plaintiff’s. I have no hesitation in saying that Mr. Laviolette has endeavoured throughout to truthfully recount the events of that evening.
[78] I do however have concerns with the reliability of a number of his reported observations.
[79] First, I note that Mr. Laviolette had consumed some beer that night – apparently three pints over the course of the evening. This is not a lot of alcohol but it is a factor to consider in testing the reliability of Mr. Laviolette’s recollections.
[80] Second, Mr. Laviolette tended to downplay the anger of the plaintiff in his altercation with Mr. Sereda. I doubt this evidence. Mr. Laviolette said that Mr. Buchy “gave Brian a shove” and he “flew off the chair” (the transcript says “Dennis flew off the chair” but Mr. Laviolette obviously meant to say this of Mr. Sereda).
[81] This suggests a certain amount of violence on the part of Mr. Buchy.
[82] As well, Mr. Buchy was obviously quite angry at this point – witness Mr. Kellett’s evidence that Buchy was agitated and angry and told Villars to “get your fucking hands off me”.
[83] Mr. Laviolette did not relate that Mr. Villars had to pull Mr. Buchy off the fallen Brian Sereda. Mr. Villars' evidence to this effect is corroborated by Mr. Kellett.
[84] Mr. Laviolette could not recall if he went into the bathroom at this point in the evening before leaving the pub. Villars thought that he had and Mr. Laviolette thought that that was quite possible; that it’s “one of those details that fades with time”.
[85] Turning to the events outside the pub, Mr. Laviolette was adamant that Mr. Villars strode towards Mr. Buchy before throwing the punch. Mr. Laviolette demonstrated for the Court that Mr. Villars advanced on Mr. Buchy with a “cocked right arm…then swinging that arm towards [Mr. Buchy]”. Yet, as we have seen at one point shortly after the incident, Mr. Laviolette thought that Mr. Villars struck Mr. Buchy with his left hand.
[86] Again, I note in Mr. Laviolette’s explanation quoted above that “… I tried to re-think the motions that – that Kevin went through when he came off the steps, when he took the steps downwards…”.
[87] The fact is, as the photographic evidence makes clear, there are no steps at the front entrance to the pub. There is only the curb drop.
[88] This type of inconsistency is to be contrasted with the certainty with which Mr. Laviolette maintained his version of the incident at trial.
[89] The actual fight outside the pub clearly happened quickly. One must remember this, and the well-known frailties associated with eye-witness evidence, when one weighs the reliability of the details which Mr. Laviolette relates.
[90] Finally, I doubt the reliability of Mr. Laviolette's recollection that Mr. Buchy, outside the pub, suddenly was staggering and showing signs of significant intoxication.
[91] Mr. Samila, an expert Alcohol Analyst, agreed with counsel on cross-examination that a seasoned drinker, with a resulting tolerance to alcohol, can function quite normally at the 200 mgs/100 mls level. I find that this describes Mr. Buchy that evening.
[92] Mr. Samila further testified that with a seasoned drinker one would not expect the subject to show no signs of intoxication followed by sudden staggering and stumbling.
[93] As to Mr. Villars, I found him to be a truthful man who gave his evidence in a frank and straightforward manner. Of course I appreciate that he is vitally interested in the outcome and I have assessed his evidence in the light of that self-interest.
[94] Counsel submits that on his discovery Mr. Villars gave false evidence in denying that he had been sipping a beer on the job at the end of the evening. I do not conclude that this was intentionally false evidence.
[95] Mr. Villars, at trial, maintained that he had simply forgotten this point and he did admit it to the police in his statement after the incident.
[96] I will deal next with what counsel suggested were the very important inconsistencies in Mr. Villars’ evidence over the years which I have noted above.
[97] As to the incident between Mr. Buchy and Mr. Sereda in the pub, while Mr. Villars did not apparently previously provide the graphic detail of that incident which he provided at trial, it is clear that in previous statements he said that Buchy “assaulted” Sereda and that he ejected Mr. Buchy for fighting.
[98] Further, Mr. Villars’ evidence that the altercation between Mr. Sereda and Mr. Buchy was more violent and angry than Mr. Laviolette suggests is corroborated by Mr. Kellett’s evidence as to what Mr. Buchy angrily said as he was escorted from the area and Mr. Laviolette’s own evidence that Mr. Sereda “flew” off his chair. And the glass in Mr. Sereda’s hand did break. This suggests a sudden and swift fall off the chair, not a playful shove.
[99] As to Villars’ evidence at trial that Mr. Buchy re-entered the bar immediately after his first eviction, this is an important detail, but I accept that Mr. Villars simply did not consider it to be so at the time. While Mr. Kellett did not see this incident, it could have occurred while he was getting the broom and dust pan to clean up the glass.
[100] Mr. Villars was in a very stressful situation that evening. What motivated him then is captured in this exchange with counsel on cross-examination (T. 10 July 2007, p. 92, l. 30 to p. 93, l. 14):
A No, that didn’t happen either. He came at me, he hit me once, twice, pushed me in the chest, and then I stumbled into the parking lot.
Q You realized when this all happened and the police showed up that everyone found Dennis Buchy lying about 12 to 15 feet outside the doors; correct?
A That’s what --
Q That’s where --
A I estimated 12, so.
Q So the bottom line is this didn’t happen in the pub and it didn’t happen at the door, it happened about 12 to 15 feet in the parking lot; correct?
A Yes.
Q And you knew there was going to be a lot of questions about that, how did you end up out there that far out of your pub; correct?
A I wouldn’t -- somebody’s lying there hurt, I’m not thinking about trying to have an alibi, he was hurt, I went to call the police. They told me to go check and see if he’s hurt for sure, if you need an ambulance or come back in, I’m not thinking about an alibi.
Q I’m not suggesting that, I’m just saying you knew it was going to be important.
A Well no, I didn’t know that. I didn’t know that. That’s the last thing on my mind. There’s a -- there’s a guy laying there that’s hurt, and I had something to do with getting him that way, I was not thinking about how many feet he was from the door or anything like that, I was just trying to get some help there to him.
[101] This, I conclude, is the answer of a truthful witness trying to recall, as best he can, through the blur of events that evening.
[102] This is reflected again in Mr. Villars’ evidence that he believed he struck Mr. Buchy in the jaw when all of the medical evidence suggests that the blow landed at or around Mr. Buchy’s eye. Mr. Villars was mistaken but he made no effort to tailor his evidence to the case as it unfolded.
[103] On this point, Mr. Villars said on cross-examination (at T. 10 July 2007, p. 97, ll. 10-18):
A You know, this was a tragic thing that happened and some of the events in there, you know, I might not have got all clear, but the fact that he attacked me and he ended up hurt is still in my mind, so I’m sure that I -- he attacked me and I hit him in his face and he fell. And his eyes were still open, his back hit the pavement, and then his head, and then the lights went -- I mean his eyes closed. And that’s what I remember.
[104] Finally, Mr. Villars’ evidence that the first assault by Mr. Buchy caused him to stumble away from the door of the pub out towards the parking lot is corroborated by Mr. Laviolette (T. 19 June 2007, p. 43, ll. 39-43):
Q My understanding is that Mr. Villars, through the attack by Mr. Buchy, was put off-balance and stumbled away from the door, out towards the parking lot. Do you recall that?
A That’s correct.
[105] This evidence is interesting when it is joined with Mr. Villars' evidence that Mr. Buchy then came towards him, from the door of the pub, in the second attack.
[106] This scene is not unlike that described by Mr. Laviolette, except that the roles of Buchy and Villars are reversed. It is not inconceivable that Mr. Laviolette could simply be so confused in his recollection.
[107] I conclude, on weighing all of the evidence, that the dynamics of the altercation in the parking lot were much closer to the evidence of Mr. Villars than to that of Mr. Laviolette. Further, I conclude that Mr. Villars' estimate of the amount of time he was outside the pub is incorrect. He admitted that he was not wearing a watch that evening and that his estimate of time could be wrong. I prefer the evidence of Mr. Kellett that the time outside the pub was more in the range of four to five minutes.
[108] As to the issue of time generally, all the witnesses were likely inaccurate, especially on the point of when events began to happen that evening – it was likely some time after 11:30 because the emergency personnel arrived at the scene at 00:20 hours.
[109] This brings us to the plaintiff’s cause of action in assault and negligence.
[110] I will first deal with the claim in assault or, more accurately, as the defendant Villars struck a blow to the plaintiff, the tort of battery.
[111] The tort was discussed by the Supreme Court of Canada in Mann v. Balaban et al., [1970] S.C.R. 74 and, in particular, the onus on the defendant pleading self-defence was noted by Justice Spence for the majority (at p. 87):
In an action for assault, it has been, in my view, established that it is for the plaintiff to prove that he was assaulted and that he sustained an injury thereby. The onus is upon the plaintiff to establish those facts before the jury. Then it is upon the defendant to establish the defences, firstly, that the assault was justified and, secondly, that the assault even if justified was not made with any unreasonable force and on those issues the onus is on the defence.
[112] While the parties cited a number of cases on the issue of self-defence, I believe an accurate summary of the law is contained in Linda D. Rinaldi, ed., Remedies in Tort, looseleaf (Toronto: Carswell, 1987) vol. 1 at 2-30 to 2-31 (footnotes omitted):
1. Self-Defence
§19 “The law gives every one the right to defend himself against either a threatened or an actual attack from another. The right of self-defence proceeds from and is limited by the necessity to ward off the danger of such an attack. Therefore the right of self-defence commences when the necessity for such defence begins and it terminates when the necessity for such self-defence comes to an end. The law, however, requires that the force used in defending oneself must not he out of proportion to the severity of the attack. An attack by fists may be answered by fists but not with deadly weapons such as knives and guns. In exercising the right of self-defence one must use only such force as on reasonable grounds the person attacked believes to be necessary for his own defence. In short, self-defence means defence, not counter-attack.”
§20 Self-defence is usually pleaded as a defence to a battery action where the defendant has struck the plaintiff in response to an attack or perceived attack by the plaintiff. It is a complete defence. If the defendant reasonably perceives an attack to be imminent, he may still be entitled to rely on self- defence although he has struck the first blow. However, force may only be used to repel or prevent an attack, not to punish an aggressor for past actions or as a guise for a counter-attack.
§21 In preventing or repelling an attack, no more than reasonable force may he used. What is reasonable depends on the facts and circumstances of the case, including the nature and seriousness of the attack or threatened attack, the relative size and strength of the combatants, and whether the acts complained of took place after the threat was averted. The seriousness of the resulting injury is not necessarily indicative of the use of unreasonable force, as even acts which cause serious injury may be justified as self- defence: “it has long been held that an attacked person defending himself and confronted with a provoking situation is not held down to measure with exactitude or nicety the weight or power of his blows.” Where a person uses more than reasonable force, he himself may he liable for battery.
[113] These statements of the law were generally accepted by Justice Sigurdson, of this Court, in Glover v. Fell, [1999] B.C.J. No. 1333 (S.C.) (QL).
[114] In considering the defence in the context of the scenario described by Mr. Villars, which I have accepted in its critical aspects, Mr. Villars struck Mr. Buchy in response to Mr. Buchy’s attack on him.
[115] Mr. Villars did so in an effort to repel the attack of Mr. Buchy and not to punish Mr. Buchy as “an aggressor for past actions or as a guise for a counterattack”.
[116] While the blow by Mr. Villars had devastating consequences, I find it to be reasonable force in the context of Mr. Buchy’s attack(s) and the relative size and strength of the combatants.
[117] While Mr. Villars was previously a professional athlete, his uncontroverted evidence was that he has no training in boxing or martial arts and, in the circumstances, I accept that he would not have known the force with which he struck Mr. Buchy, let alone have the ability to measure with a nicety that force.
[118] Finally, in all the circumstances I find that Mr. Villars did not act unreasonably in not immediately retreating into the pub. He stayed outside to watch the men leave in an orderly fashion. He felt that he could calm Mr. Buchy down. The suddenness of Mr. Buchy’s attack precluded retreat.
[119] I should add that even if I accepted Mr. Laviolette’s version of the incident, I would still conclude that Mr. Villars has made out his plea of self-defence.
[120] Mr. Laviolette described the blow in this way (T. 19 June 2007, p. 17, ll. 37-40):
A Then Kevin, I guess, saw an opportunity because it was obvious he was going to get attacked again, and he took about three steps down from the stairs in a forward motion and hit Dennis once.
[121] Mr. Laviolette was of the view, at least at trial, that Mr. Villars was defending himself. I conclude that even on his version of the events, that is true as a matter of law.
[122] That brings us to the claim against the defendants in negligence.
[123] As to the defendant Villars, these particulars of negligence are pleaded in the amended statement of claim:
14. The particulars of negligence of the Defendant, Villars include/without limitation:
1. Striking the Plaintiff in a manner he knew or ought to have known was likely to cause serious injury;
2. Excessive force,
3. Failure to assist the Plaintiff to leave the pub and return home safely;
4. Failure to remain inside the pub and avoid physically striking the intoxicated Plaintiff who was too intoxicated to defend himself.
[124] The first two are subsumed in my finding on self-defence.
[125] As to the last two, it is true that the plaintiff’s blood alcohol was tested and that it registered at .20, well above the legal limit. But I find that the plaintiff was an experienced drinker and that evening he gave off no signs of any significant intoxication.
[126] More importantly, I find that there is no evidence that Villars or the defendants’ other staff over-served Buchy that evening.
[127] The plaintiff shared two pitchers of beer with two other men over the course of at least two hours. That is not over-service.
[128] Villars was reasonably assisting the plaintiff to leave the pub and return home safely. Indeed, that is why Mr. Villars remained at the door of the pub to watch Mr. Buchy and his friends on their way.
[129] As I have indicated above, there was nothing unreasonable in Mr. Villars accompanying Mr. Buchy outside of the pub. Mr. Villars lawfully ejected Mr. Buchy for fighting and he reasonably stood watch to ensure that Mr. Buchy actually did leave the property.
[130] This is not a case like those cited by the plaintiff in Lawrence v. John B. Pub Ltd., [1997] B.C.J. No. 1158 (S.C.) (QL) or Pereira v. Airliner Motor Hotel (1972) Ltd., [1997] M.J. No. 424 (Q.B.) (QL).
[131] First, the defendant Villars acted reasonably in exercising his right to eject Mr. Buchy from the pub under s. 46(1) of the Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267.
[132] Second, in so exercising that right I cannot find any deficiency in Mr. Villars’ conduct or in his training to handle such incidents, limited as it may have been.
[133] The plaintiff cites the Court of Appeal’s decision in Walstrom v. Coole Hotel Co. (B.C.C.A.), [1991] B.C.J. No. 2949 (C.A.) (QL) and submits in argument:
As in Walstrom, the Defendant Villars, as a bartender and bouncer, should have been able to deal with Mr. Buchy in a manner which recognized both Mr. Buchy’s state of intoxication and that while he was being unruly, he was leaving for the night. The fact that Mr. Buchy was willing to leave should have been the end of the matter and any restrictions on Mr. Buchy’s attendance at Tugboat Annies could have been discussed on Mr. Buchy’s next visit to the pub. Following Mr. Buchy outside and engaging him in an argument and effectively goading him, while drunk and agitated, into a one-sided fight is not acceptable conduct by a person in the position of the Defendant Villars.
[134] That characterization of the facts is simply not the case which I have found.
[135] Mr. Buchy’s level of intoxication was not evident. It was not clear that “he was leaving for the night”. Mr. Villars did not engage Mr. Buchy in an argument; he was letting him vent; trying to calm him down, a tactic which had worked in the past.
[136] Mr. Villars did not goad Mr. Buchy into a one-sided fight. Mr. Buchy, on the contrary, struck suddenly and without notice. In Mr. Laviolette’s words, Mr. Buchy “snapped” and regrettably, he has paid a very dear price for that impulsiveness.
[137] On the issue of the negligence of the corporate defendants generally, I note the commercial host cases: Jordan House Ltd. v. Menow and Honsberger (1973), 38 D.L.R. (3d) 105 (SCC), and Steward v. Pettie, [1995] 1 S.C.R. 131.
[138] Liability in Jordan House was imposed on the hotel in the circumstances described by Justice Laskin (as he then was)(at p. 112):
Given the relationship between Menow and the hotel, the hotel operator’s knowledge of Menow’s propensity to drink and his instruction to his employees not to serve him unless he was accompanied by a responsible person, the fact that Menow was served not only in breach of this instruction but as well in breach of statutory injunctions against serving a patron who was apparently in an intoxicated condition, and the fact that the hotel operator was aware that Menow was intoxicated, the proper conclusion is that the hotel came under a duty to Menow to see that he got home safely by taking him under its charge or putting him under the charge of a responsible person, or to see that he was not turned out alone until he was in a reasonably fit condition to look after himself. There was, in this case, a breach of this duty for which the hotel must respond according to the degree of fault found against it. The harm that ensued was that which was reasonably foreseeable by reason of what the hotel did (in turning Menow out) and failed to do (in not taking preventive measures).
[139] That is not in any way the case at bar. The plaintiff was not over-served; he was not "apparently in an intoxicated condition"; Villars did try to see the plaintiff home safely in the company of his friends. The risk of harm associated with the plaintiff suddenly turning on Villars and the need for the latter to repel his attack was not foreseeable in the circumstances of the relationship between the two men in the past.
[140] Even if Villars over-served Buchy that evening, that is not an end to the enquiry. In Stewart v. Pettie, Justice Major (for the court) held (at para. 36):
It is true that applicable liquor control legislation in Alberta, and across the country, prohibits serving alcohol to persons who are apparently intoxicated. Counsel for the respondents pressed that point in argument. There are, however, two problems with this argument. The first is that it is not clear that there was any violation of liquor control legislation in this case, given the fact that Pettie was apparently not exhibiting any signs of intoxication. Moreover, even if it could be said that Mayfield was in violation of legislation, this fact alone does not ground liability: The Queen in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. Without a reasonably foreseeable risk of harm to him or a third party, the fact of over-serving Pettie is an innocuous act. Therefore, liability on the part of Mayfield, if it is to be found, must be in their failure to take any affirmative action to prevent the reasonably foreseeable risk to Gillian Stewart.
[141] In the case here, I can find no failure on the part of the defendants "to take any affirmative action to prevent the reasonably foreseeable risk to " Mr. Buchy. There was no failure to act; there was no reasonably foreseeable risk.
[142] It follows that I have concluded that the plaintiff has not made out his case in assault, battery or negligence.
[143] I do not believe that it is appropriate in the circumstances to make a provisional assessment of damages.
[144] The action is dismissed. Costs may be spoken to if necessary, otherwise, the defendants will have their costs on Scale B.
[145] I commend all counsel for prosecuting this case with tenacity, vigour and skill.
"Bauman J."