Liability if Pushing or Physical Contact causes Injury

Most personal injury cases arise from motor vehicle collisions and slip and fall accidents. However, sometimes person injury suits can be brought forward to compensate someone who was injured in an assault or physical altercation, whether or not the action was intended to cause harm to the victim. A person injured in a physical altercation does not necessarily have to have reported the incident to police to have a valid case for a negligence suit.  Under any circumstances where you suffer serious injuries due to another person’s reckless action, you are entitled to seek compensation for losses resulting from your injuries.

This was the issue being addressed in the civil trial, Robinson v. Bud’s Bar Inc., when a man suffered a significant head injury after being pushed by another man.   The injured man brought a law suit against two brothers, one of whom was charged with pushing him.

Facts of the case

Sometimes prospective grooms dress in peculiar outfits for their bachelor party, but significant alcohol consumption and carousing is even more common at such events.  In this particular case, the prospective bridegroom, Leeland, was provided an outfit by his friends and brother, which included a lace shirt, pink tights, a feather boa, and a heavy ball and chain attached to his ankle. After a fun and uneventful evening of drinking at a local bar and while dressed in this manner, Leeland and his brother, Laine, began walking to a nearby motorhome which had been rented for the event, with the rest of their friends following at some distance behind.

Leeland described himself as somewhat intoxicated when he left the bar, but his brother Laine had not been drinking.  While on route, the two brothers encountered the plaintiff with his friends, who had attended the same bar and were intoxicated to various degrees. The plaintiff proceeded to tease Leelund about his clothing and remarked that his ‘life was over’ presumably due to his impending marriage.  At that point, Laine crossed the street to avoid further ‘drunk talk’ with the plaintiff, but contrary to Laine’s expectations, his brother did not follow.  Instead, the two men continued to argue and the plaintiff gradually moved closer to the defendant until the two men were less than a foot apart.  Responding to the provocation, Leelund placed his hands on the plaintiff’s shoulders and gave him a push. The plaintiff fell backwards, hit his head against the pavement, and suffered a traumatic brain injury.

The issue to be decided by the judge in this case are: the liability of Leeland; the liability of his brother, Laine; whether they are jointly liable; and if proven negligent, what damages should be awarded to the plaintiff.  The plaintiff was seeking general damages (for pain and suffering), income loss, loss of earning capacity (future wages), cost of future care, as well as expenses for his parents.

The liability of the defendants

The plaintiff’s injury was caused by his fall. In turn, his fall was caused by the defendant’s push. But does this make the defendant liable for the injury? The short answer is yes.

It is interesting to note that the plaintiff did not argue the act as assault. Instead, the plaintiff asserted the following points:

• first, that the defendants both owed the plaintiff a duty of care
• second, that the defendant failed to observe such duty of care when he negligently pushed the plaintiff back, resulting in the serious injury
• third, that the brother, Laine, violated the standard of care by leaving the ball and chain on Leeland who was both tired and intoxicated, and also by walking away from his brother when there was the possibility of danger, regardless whether it was foreseeable or predictable.

The defendant, Leeland, made the following assertions:

• first, that he was not negligent;
• second, that his conduct was in self defense and that it was reasonably necessary to protect his personal space from the plaintiff; and
• third, that if the defendant is liable for negligence, then the amount of damages should be reduced due to the provocation and contributory negligence on the part of the plaintiff.

The brother, Laine, argued the following.

• first, that he did not owe a duty of care to the plaintiff
• second, that he did not create an inherently dangerous situation that led to the injury
• third, by walking away, he was promoting a positive example for the others to follow
• fourth, even if he had a duty of care, a reasonably prudent person would not have intervened under the circumstances of this incident, and even if he had, his intervention may have inadvertantly caused the plaintiff to fall

In resolving the issue of negligence, the court ruled in favor of the plaintiff.  The judge concluded that, unless Leelund was acting in self-defense, he owed the plaintiff a duty of care when he physically pushed back the plaintiff. Taking into consideration that Leelund was larger than the plaintiff, the judge concluded that he was negligent in forcefully, suddenly, and carelessly pushing back Robinson. The judge went on to say that, “if a person decides to touch or move a person without that person’s consent, they have an obligation to use reasonable care and the defendant by the manner of moving the plaintiff, that is pushing him abruptly, failed in that respect.” 

On the issue of self-defense, the court also ruled in favor of the plaintiff. The defendant was unable to prove self-defense. Although Robinson’s acts were undoubtedly annoying, persistent, and rude, there was no proof of an actual threat on his part. When Robinson invaded his personal space, Leelund could have turned away, walked around or stepped back from the plaintiff. Moreover, even if there was an actual threat, the force used by Leelund was declared as excessive after considering all circumstances surrounding the event.

On the issue of provocation and contributory negligence, the court ruled in favor of the defendant. It declared that there was provocation and contributory negligence on the part of the plaintiff. In the deterimination that the plaintiff was liable for provocation and contributory negligence, the court considered the following facts:

• both men were intoxicated
• the plaintiff initiated the confrontation
• the plaintiff persisted in his actions after being told to stop by Leelund, Laine and another friend
• the plaintiff invaded the personal space of the defendant while teasing him

Considering all the aforementioned factors, it was determined that the plaintiff’s actions played a significant role in the defendant’s loss of self-control. The presence of provocation and contributory negligence reduced the amount of damages received by the plaintiff by 30 percent.

Consequences of this Injury Case

The plaintiff in this case suffered a serious brain injury, far more severe than one would normally expect from a fall of this nature.  However, he also made a remarkable recovery, better than anticipated by his physicians.  The injured man was in a coma and unconscious in intensive care for several days after the fall. As a result of the injury, the plaintiff suffered seizures; his cognitive functioning was impaired; and he has experienced personality and behavioural changes.  Among his symptoms are: memory impairments, difficult concentrating and paying attention, impaired motivation, tremors, an impaired sense of taste, and greater discomfort in social situations.  For the most part, these symptoms are considered permanent disabilities for the plaintiff.

The charge of negligence against the defendant brother was dismissed. However, Leeland was found 70% liable for the plaintiff’s injuries. The injured man was awarded almost $800,000 in the following damages, subject to 30% for contributory negligence.

• $250,000 in general damages, for his pain and suffering and loss of enjoyment in life
• $40,000 for past income loss
• $350,000 for loss of earning capacity (loss of future earnings)
• $110,000 for cost of future care (rehabilitation and attendant care costs)
• $40,000 in trust claim for his father

After examining the details of Robinson v. Bud’s Bar Inc., it is easy to see how a simple push may result in serious consequences, both for an injured plaintiff and the offender. If the push results in serious injury and is accompanied by a finding of negligence, an injured person may be entitled to damages for losses resulting from their injuries. 

If you or someone you love experienced a serious injury in an accident resulting from any form of careless or negligent behaviour, call an Injury Lawyers of Ontario office to find out about your legal rights in seeking owed compensation.  The highly respected and knowledgeable attorneys in the ILO group have offices in many Ontario communities, with connections to local medical professionals who play an important role in your recovery and in providing substantiating evidence for your claim.  Call an ILO attorney today to find out how we can help.