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Herman v - UVic Law


									                                 Herman v. Graves, [1998] A.J. No. 452 (Q.B.)

 Damages — General damages — General damages for personal injury — Pre-trail loss of wages or earnings
— Prospective loss of wages or earnings — Special damages — Medical and hospital — Exemplary or punitive
damages — Conditions precedent (or when awarded).

Action by Herman for personal injury and punitive damages. Herman was 17 years old at the time of the
incident. He was driving a car and passed a truck being driven by a woman named Jackson. Graves was a
passenger in the truck. Herman applied his brake several times and Jackson and Graves began tailgating him at
an excessive speed. Both vehicles spun out and a collision occurred. Herman and Graves got out of their cars.
Herman claimed that Graves struck him in the face, that he then fell to the ground and Graves kicked and
punched him. Graves claimed that Herman swung at him first and that he hit Herman in response. Graves
banged the door of Herman's vehicle and then went back into his car and told Jackson to drive away, leaving
Herman on the ground. Jackson claimed that she never got out of the truck and did not see the fight. Graves
pleaded guilty and was convicted of mischief and assault causing bodily harm. Herman suffered severe
fractures of his nasal bones and a deviated septum. He underwent surgery which was only partially successful in
relocating the septal deviation so that there was permanent discomfort and difficulty breathing. Two further
surgeries were required to correct the problem. Herman claimed damages for past and future loss of income,
medical expenses, related costs and punitive damages.

   HELD: Action allowed. Herman was awarded $16,000 for medical expenses, related costs, and past and
future loss of income. Jackson was liable for $750 of that award. Punitive damages were awarded in the
amount of $3,500 from Graves and $1000 from Jackson. There was no credible evidence of provocation. Even
if there had been some incitement, the reactions of Graves and Jackson were excessive. Graves' actions were
callous and driven by anger. An award of compensatory damages was insufficient to achieve individual or
public deterrence and punishment. The criminal punishment was inadequate. Jackson used the truck as a
weapon of assault and ignored the physical attack of Herman by Graves. She received no criminal punishment.

                              REASONS FOR JUDGMENT
      MASON J.:--


¶1      One may characterize this as a "road rage" case. As a consequence of the alleged driving pattern of the
Plaintiff when he passed the Defendants' half-ton truck on the highway, there ensued a lengthy vehicle chase by
the Defendants of the Plaintiff. The Defendants caught and forced the Plaintiff off the road and thereafter the
Defendant Graves confronted the Plaintiff. An altercation took place. The main issue is whether or not the
Defendant Graves committed a battery on the Plaintiff. He sues for damages for personal injury as well as
punitive damages. Graves pleads the defences of self-defence and provocation.


¶2     On January 18, 1994 at approximately 10:30 in the evening, the Plaintiff Jesse Herman was driving his
younger brother, Christopher, home to Chestermere Lake from Calgary in his mother's Volkswagen Jetta. At
the time of the incident, both the Plaintiff and his brother were teenagers, Jesse 17 years of age and his brother,

¶3     While proceeding in an easterly direction along Highway 1A, between Calgary and Chestermere Lake,
they approached and passed the Defendant Graves' half-ton truck which was being driven by the Defendant
Jackson. According to Jesse and his brother, the passing was safe and without incident. When the Graves' truck
did not dim its bright beams after the passing, Jesse said he tapped on his brakes lightly several times to signal
the Defendant Jackson to dim her bright lights. Although there was a momentary dimming of the truck's bright
lights, they were quickly switched back up. Jesse said he repeated his previous manoeuvre, with the result that
the truck began tailgating. He increased speed and the chase was on. The chase continued for several
kilometres along Highway 1A, into the Town of Chestermere. In town, the chase continued for a number of
blocks along several streets until the Volkswagen was forced off the road by the truck.

¶4      The Defendants told a much different story of what happened on the highway. Both Defendants stated
they were proceeding home to Chestermere Lake after shopping and having dinner in Calgary. They were
travelling at approximately 80 kms per hour in a 100 km zone. When the Volkswagen approached, Graves
suggested to Jackson that she speed up. She preferred to maintain the same speed. Both Defendants state that
after flashing its headlights, the Volkswagen passed them safely, but Jackson said that as they passed, the
passenger, Jesse's younger brother Christopher, made a rude gesture, "giving the finger" to her. Jackson and
Graves said that the Volkswagen pulled sharply back in front of them and slammed on its brakes. Jackson said
she applied her brakes hard, slowing the truck to approximately 40 kms per hour. Both Jackson and Graves said
they may have bumped the rear of the Volkswagen while both vehicles were in motion but neither could say for
certain that a collision occurred then. Jackson and Graves adamantly maintained that the Volkswagen
repeatedly slammed on its brakes on three, four or five occasions as they proceeded along the highway. Each
time, both said, they had to brake to avoid a collision.

¶5     Jackson and Graves admitted that they began chasing the Volkswagen. Their purpose, they said, was to
catch the boys, identify them, take them to their parents and tell the parents of Jesse's driving antics. Jackson
and Graves said that from time to time they were close enough to the Volkswagen to see that the occupants
were young boys but they could not identify them nor did they know them. Throughout the alleged braking
incidents on the highway, Graves and Jackson admitted they never took down the license plate number of the

¶6     There were numerous discrepancies between Jesse, his brother and the Defendants as to speeds, distances
and the manoeuvring of the vehicles during the chase. I am convinced that throughout the whole of the chase,
the truck was very close behind the Volkswagen and that excessive speed, at times above the speed limit, was
involved throughout the chase, both on the highway and in the Town of Chestermere. Jesse and his brother
were chased from the highway into town and up the street on which they lived with their parents. Jesse said he
was unable to stop or turn into the driveway of his home because of their speed, the close proximity of the truck
and the fact that the roads were icy in the town. I have no doubt the boys were running scared. The chase
continued around a cul-de-sac and down the road leading to the Golf Course Clubhouse. Jesse said in going
round the cul-de-sac, first the truck spun out and then his vehicle spun out. As a consequence, the truck closed
upon them and as they approached the Clubhouse, their vehicle was bumped and then pushed from behind by
the truck. He applied his brakes but was pushed for some distance, until the Volkswagen ended up partly off
the road and onto a vacant lot.

¶7    Both Defendants deny a collision occurred between the vehicles in town or that Jackson pushed the
Volkswagen off the road. They said the Volkswagen stopped suddenly and for no apparent reason.

¶8     Jesse said he got out of his mother's Volkswagen to check for damage to the vehicle. He saw Graves get
out of his truck and come towards him. Jesse complained to Graves about the damage caused to the

¶9      What happened next is hotly disputed between Jesse, his brother Christopher, and Graves. Jackson said
she remained in the truck which was immediately adjacent to the Volkswagen but claims not to have seen any
of the following events, even though she could hear voices.
¶ 10     Jesse said Graves walked right up to him and began screaming epithets, saying he was going to teach
him a lesson and not to mess with adults. Jesse said Graves struck him in the face several times before they
slipped and fell to the ground. Graves got up and began kicking him and punching him while he rolled himself
into a ball and put his arms over his head to protect himself. He was shocked, confused and completely
unprepared for the attack. He categorically denied taking a swing at Graves before he was struck.

¶ 11    To the contrary, Graves stated he exited his vehicle with the distinct purpose of finding out who these
boys were and taking them to their parents to complain about their driving. Graves said he asked Jesse where
he lived and when Jesse refused to tell him, he told Jesse he was going to take the keys to the car. At that point,
said Graves, Jesse swung at him and knocked his glasses off. In response, Graves said he hit Jesse once in the
face, and that the boy dropped to the ground. He admitted kicking the boy while he was on the ground, calling
him a coward and telling him to stand up and fight.

¶ 12     Graves stated that he was not angry until Jesse took a swing at him. Yet, after downing Jesse he
admitted to challenging Christopher to a fight. Christopher had gotten out of the car and pleaded with him not
to hurt his brother. He was terrified when Graves challenged him to a fight. He tried to get the license number
of the truck but the truck backed away from him. It was after Graves beat up on Jesse that Christopher heard
Graves say he would get their car keys. Christopher ran to their car, grabbed the keys and ran away.

¶ 13     Graves was so enraged he took hold of the left door of the vehicle and swung it against its hinges,
causing the door and the quarter panel in front of it to be damaged. After bending the door, Graves said he
simply walked away, got back into his truck 21 and told Jackson to drive home. According to Graves, he left
Jesse lying in the snow when they drove off. Jackson said she asked Graves what happened but, according to
her, Graves did not explain until they arrived home.

¶ 14     Jesse said he actually got up and spoke to Graves after being kicked and pummelled while on the
ground. For some strange reason, he invited Graves to his house to have a cup of tea with his parents. Graves
started to admit to this in cross-examination, but then denied it. Jesse said he then ran to a neighbouring house
to get some help. The occupants of the house refused to help Jesse. The boys went home.

¶ 15    Jesse presented a shocking sight, according to his father. He was completely covered in blood. His
winter jacket, shirt and pants were so badly stained they were thrown away. Jesse's nose was severely
fractured. He had bumps on his head and left temple region and a scrape along the left side of his head. Once
the bleeding was controlled, Jesse's father drove him to emergency at Rockyview Hospital in Calgary. After
emergency treatment, they returned at approximately 5:00 a.m. to Chestermere Lake.


¶ 20    Charges were laid against Graves…he pleaded guilty to committing an assault, causing bodily harm, to
Jesse Herman, contrary to Section 267(1)(b) of the Criminal Code.

¶ 21     On the charge of mischief, he was given a suspended sentence, put on probation for a year and required
to pay restitution for the damages to the vehicle. On the guilty plea to the assault occasioning bodily harm, he
was sentenced to one day in gaol and one year on probation.

¶ 22     In his testimony before me, Graves endeavoured to excuse his actions. First, he said he could not recall
the specific charges to which he had pled guilty. Then he said he did not report the incident to the R.C.M.P.
that evening in January because he was of the opinion that Jesse and his brother would be long gone by the time
the police were contacted. Jackson gave the same excuse. Graves admitted he deliberately did not contact the
R.C.M.P. after receipt of the bulletin, although he recognized he was the man for whom they were looking. He
admitted that he was prepared to let sleeping dogs lie.

¶ 24   Graves also agreed that there was some plea bargaining between his lawyer and Crown Counsel when
he appeared in criminal court…


A. Credibility and Assault and Battery


¶ 30     I have no doubt that both Defendants were incensed by their interpretation of the actions of Jesse and
his brother, and that their anger and frustration lasted throughout the chase and beyond. Graves got out of the
truck an angry man. I do not accept that his anger arose only after Jesse allegedly took a swing at him. There is
no doubt in my mind that these two boys were frightened by what had occurred. On all the evidence I am unable
to accept that Jesse was an aggressor in this situation at all. I am convinced that Graves attacked Jesse and
struck him more than once. Graves, at the time, was a man of 56 years of age. He was 200 lbs and 5 foot 10
inches, clearly a much larger, heavier man than Jesse who, at that time, was 5 foot 8 inches and 140 lbs. The
assault by Graves may be characterized as a thorough beating up of Jesse. Even after Jesse was on the ground
he was punched and kicked by Graves.

¶ 31    A further measure of Graves' anger was that after laying out Jesse, he challenged Christopher, the much
smaller boy, offering him a piece of the action if he wanted it. And when he could not get hold of the keys to
the vehicle, Graves was so angry that he twisted the driver's door of the Volkswagen on its hinges and did some
hundreds of dollars of damage to the left side of the Plaintiff's vehicle.

¶ 32     Having created that havoc and realizing its consequences, he never pursued his alleged purpose of
finding out who these boys were and taking them home to their parents. He left the scene, according to his
evidence, with Jesse lying on the ground in the snow. In other words, he ran away from the circumstances he
had created. He continued to run away after receiving the "bulletin" and knowing that he was the person for
whom the police were searching. He owned up to what he had done only after being identified by the boys,
arrested and charged.

B. Is Graves entitled to the defence of self-defence?

¶ 33     Counsel for Graves argued that he was entitled to the defence of self-defence because, as he alleged, he
struck only one blow in self-defence which caused Jesse's nose fracture. Counsel for the defence would have
me slice into sections the battery of this lad and find Graves guilty only for what he did to Jesse while he was
lying on the ground. Having regard to all of the surrounding circumstances, not only at the time, but also
Graves' actions and conduct following these incidents, I am satisfied that such a proposition has no validity in
this case. On my assessment of all the evidence, I conclude that Graves went right to the attack of Jesse with
measured intent and action and pummelled the lad. Even if Jesse threw a punch first, which I reject, the beating
Graves laid on the boy far exceeded any justifiable self-defence. This was a serious battery.

¶ 34    His plea of guilty to both charges, particularly the charge of assault causing bodily harm was made after
consulting with counsel and plea bargaining. The weight to be attached to the finding of guilt, i.e., the guilty
plea, has real significance in this case, having regard to all of the circumstances and the conflict in the
evidence. See The Evidence Act, R.S.A. 1980, c.A-21, s. 27. Pleading guilty to assault causing bodily harm
sounds strongly against any defence of self-defence in the circumstances.

¶ 35     This case is clearly distinguishable on its facts from the case of Bruce v. Dyer, (1966), 58 D.L.R. (2d)
211 (Ont. H.C.), upheld on appeal [1970] 1 O.R. 482n (C.A.), where the assault and battery complained of was
only one blow struck in self-defence. I reject completely the submission of counsel for the defence on this issue
that Jesse's fractured nose resulted from a single retaliatory punch.


D. Exemplary/Punitive Damages

¶ 43    The issue here is whether there should be an award of exemplary or punitive damages.

¶ 44     Punishment is the primary purpose of an award of exemplary, or punitive, damages. Deterrence is also
a purpose. An award of punitive damages follows when the conduct of a defendant is so egregious that the
damages that should be awarded go beyond mere compensation of the plaintiff. Whether exemplary damages
should be awarded is focused on the defendant. Such an award serves to deter not only the defendant but also
others from committing such acts.

¶ 45    The Supreme Court of Canada has explained the circumstances where an award of punitive damages
may be appropriate. In Vorvis v. Insurance Corp of British Columbia, [1989] 1 S.C.R. 1085, McIntyre J.
explained the difference between punitive and aggravated damages (at pp. 1098-99):

       Punitive damages, as the name would indicate, are designed to punish. In this, they constitute
       an exception to the general common law rule that damages are designed to compensate the
       injured, not to punish the wrongdoer . . .

¶ 46    More recently, the Supreme Court of Canada summarized the purposes of punitive damages, and
outlined the type of conduct it finds deserving of such damages. In Hill v. Church of Scientology of Toronto,
[1995] 2 S.C.R. 1130, Cory J. stated (at p. 1208):

       Punitive damages may be awarded in situations where the defendant's misconduct is so
       malicious, oppressive and high-handed that it offends the court's sense of decency. Punitive
       damages bear no relation to what the plaintiff should receive by way of compensation. Their
       aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by
       which the jury or judge expresses its outrage at the egregious conduct of the defendant. They
       are in the nature of a fine which is meant to act as a deterrent to the defendant and to others
       from acting in this manner. It is important to emphasize that punitive damages should only be
       awarded in those circumstances where the combined award of general and aggravated
       damages would be insufficient to achieve the goal of punishment and deterrence.

¶ 47  Professor Waddams summarized the conduct of a defendant that will attract awards of punitive
damages (S.M. Waddams, The Law of Damages, Looseleaf ed. (Toronto: Canada Law Book) at para. 11.210):

       . . . malicious, high-handed, arbitrary, oppressive, deliberate, vicious, brutal, grossly
       fraudulent, evil, outrageous, callous, disgraceful, wilful, wanton, in contumelious disregard of
       the plaintiff's rights, or in disregard of 'ordinary standards of morality or decent conduct.'

¶ 48    In Halsbury's Laws of England, 4th ed., vol. 12, the learned authors note what questions the court
should ask itself before making such an award. They state (at para. 1190):

      Where exemplary damages may be awarded the court should ask itself whether the sum it
      proposes to award as compensatory damages, which may include an element of aggravated
      damages, is adequate not only for the purpose of compensating the plaintiff but also for the
      purpose of punishing and deterring the defendant. Only if it is inadequate for the latter
      purpose should the court consider awarding additional exemplary damages.
          The following considerations should be borne in mind: (1) that the plaintiff cannot recover
      exemplary damages unless he is the victim of the punishable behaviour; (2) that the power to
      award exemplary damages is a weapon that should be used with restraint; and (3) that the
      parties' means are relevant.

¶ 49     Because the purposes of a punitive damage award are deterrence and punishment, the factors a court
must look to include: (1) the effect of the combined award of compensatory and aggravated damages, i.e., is it
sufficient to achieve the goal of deterrence and punishment (Hill, supra); (2) the means of the defendant are
relevant (735619 Ontario Ltd. v. Stone (1989), 36 C.P.C. (2d) 313 (Ont. H.C.)); and (3) the adequacy of the
criminal punishment that may have already been given (Loomis v. Rohan (1974), 46 D.L.R. (3d) 423

¶ 50     The first factor is discussed in Herbert v. Misuga (1994), 111 D.L.R. (4th) 193 at pp. 212-14, where the
Saskatchewan Court of Appeal reviewed the trial judge's judicial exercise of discretion in considering whether
or not exemplary damages or punitive damages should be awarded. That case was quite similar to this
one. There, the defendant drove his truck into the plaintiff, a motor cyclist, whom he overtook and forced into
the ditch. The plaintiff suffered a broken leg. The defendant submitted in his defence that he only intended to
frighten and not strike the plaintiff, although he admitted that his act of steering his motor vehicle was
deliberate. The defendant had no previous criminal conviction, was 47 years old and had a young family. The
criminal court imposed a penalty of the maximum fine at the time for criminal negligence by way of summary
conviction. The civil trial occurred six years later. The trial judge decided against an award of punitive
damages, and the Saskatchewan Court of Appeal refused to overturn that decision.

¶ 51    Herbert provides a valuable review of the law respecting punitive damages and some direction to trial
judges as to exercising their discretion when considering an award of exemplary damages in cases such as this.

¶ 52     In the judicial exercise of my discretion, I am satisfied that an award of compensatory damages
reflecting the aggravating circumstances of this case is insufficient to achieve individual deterrence and
punishment or to signal public deterrence. An exemplary award is not so much to compensate the plaintiff, but
to express this Court's condemnation and outrage at Graves' conduct. He acted as a vigilante in the worst sense
- making himself accuser, judge and executioner of his idea of a fit sentence or lesson. Then he abandoned the
badly beatened boy. Finally, he callously ignored the parents' notification and chose not to inform the police or
report the incident. His actions were motivated by what is currently referred to as "road rage". Such conduct is
completely unacceptable. The taking of the law into one's own hands is to be rejected entirely. Our Courts
need to signal that such conduct in this country will not be tolerated. In my opinion, compensatory damages
here are inadequate to punish and deter this conduct.

¶ 53     As to the second factor, the Defendant's means, the evidence before me indicates that Graves was a man
of 60 years of age as at the date of trial and semi-retired. He manages real estate properties. He is a former
electrical contractor with operations in Calgary, Brooks and Athabasca. Jesse, the Plaintiff, at the time was a
student and working part-time. Today, he is employed by the same firm as his father and he works on a
contract basis. On this evidence, I find that imposing exemplary or punitive damages can be justified having
regard to Graves' means.

¶ 54    Finally, it is necessary to consider the third factor - the adequacy of the criminal punishment imposed
on Graves. Graves pleaded guilty to a charge of assault causing bodily harm and received punishment of one
day and probation for one year. I am mindful of the fact that having pleaded guilty to such a charge, Graves
now has a criminal record, as well he should. That must, of course, be part of the consideration.

¶ 55    Both counsel referred me to the text of Waddams' The Law of Damages, Looseleaf edition, as a guide
for my consideration in determining whether or not exemplary or punitive damages should be awarded in this
case where criminal proceedings preceded the civil trial. I quote from that text as follows (at para. 11-470):

      Difficult problems arise in considering the relationship of exemplary damages to criminal
      proceedings. Where the defendant has been convicted and sentenced before the
      civil trial, Canadian courts have generally held that exemplary damages should not be
      awarded. In Natonson v. Lexier, Taylor J. said: 'The defendant was sentenced to a
      period of imprisonment, and having thus received punishment, the imposition of punitive
      damages for the benefit of the plaintiff would be a double punishment.'
      This principle has been widely followed, though doubted in some cases. Difficulties arise
      where the defendant, though convicted, has received a punishment considered
      lenient by the civil court or has received an absolute or conditional discharge. For the civil
      court to accept a criminal disposition as an absolute bar to exemplary damages seems
      anomalous; the defendant receives a financial benefit from a criminal conviction. On the
      other hand, for the civil court to add to the punishment seems a usurpation of the function of
      the criminal court. If the defendant has been acquitted, on the other hand, there seems to be no
      bar to an award of exemplary damages. . . .It seems that the most rational solution is
      for the civil court to consider the extent of the criminal punishment and to reduce accordingly
      the exemplary damages that otherwise would have been appropriate. The objection that, by
      thus adding to punishment, the civil court usurps the function of the criminal court is, in
      effect, an objection to the whole concept of exemplary damages.
               [my emphasis]
F.    Provocation


¶ 64      Once the court has determined that punitive damages should be awarded, provocation, in these
circumstances, must be considered. Provocation by Jesse of the Defendants' wrongful conduct would be
relevant to the award of damages. The issue that remains unclear in Canadian law is whether provocation is
considered to reduce or extinguish the punitive or exemplary damages only (Check v. Andrews Hotel Co. Ltd.
et al. (1974), 56 D.L.R. (3d) 364 (Man. C.A.); Shaw v. Gorter (1977), 77 D.L.R. (3d) 50 (Ont. C.A.); Reeves v.
Pollard (1977), 10 A.R. 349 (S.C.T.D.); Lane v. Holloway, [1967] 3 All E.R. 129 (C.A.); Fontin v. Katapodis
et al. (1962), 108 C.L.R. 177 (H.C. Aust.); Landry v. Patterson (1978), 93 D.L.R. (3d) 345 (Ont. C.A.)); or the
compensatory damages also (Hurley v. Moore (1993), 18 C.C.L.T. (2d) 78 (Nfld. C.A.); Murphy v. Culhane,
[1976] 3 All E.R. 533 (C.A.)).

¶ 65     In Check, the Manitoba Court of Appeal accepted that the law in Canada was that provocation could
only be used to reduce an award of punitive damages. In reaching this conclusion, the Court of Appeal
examined the Australian and English decisions. In Lane, the English Court of Appeal adopted Fontin, where
the High Court of Australia determined that reducing an award of compensatory damages because of the
plaintiff's provocative behaviour deprived the plaintiff of a legal right (at 184). The Manitoba Court of Appeal
considered the cases falling both ways on this issue and decided provocation goes to reduce only punitive
damages, not the compensatory award. In that case, however, no punitive or exemplary damages were awarded.
¶ 66    The Ontario Court of Appeal followed a similar line of reasoning in Shaw and came to the same
conclusion. The Ontario Court adopted Lane (Shaw at 52): provocation is a factor which could reduce only
punitive damages. The Ontario Court of Appeal again affirmed this position in Landry in 1978 after Lane was
brought into question in England. Landry reviewed Shaw (Ont. C.A.), Lane (Eng. C.A.) and Murphy (Eng.
C.A.). The court noted that the more recent decision of the English Court of Appeal in Murphy distinguished
Lane to such an extent as to render Lane meaningless in England. Speaking for the Ontario Court of Appeal,
MacKinnon A.C.J.O. answered the question about the effect of Murphy on the law in Canada (at 349):

      The answer to that question appears to me to be that Lane v. Holloway has not been overruled
      [by Murphy], nor indeed has Fontin v. Katapodis, whose reasoning was also relied on by this
      Court, and Shaw v. Gorter stands as an authority binding on us.

¶ 67     The Newfoundland Court of Appeal has taken a contrary position. In Hurley, the court reviewed the
developments in the law on provocation as it affects damages. Steele, J.A. concluded that "Murphy v. Culhane
is virtually a complete repudiation of the Court's position in Lane v. Holloway" (at 93-94). This being the case,
Steele J.A. felt the only course was to adopt the Murphy v. Culhane position back into Canadian law (at
97). Consequently provocation could be assessed as a mitigating factor in reducing both the award of general
(i.e., compensatory) damages as well as punitive or exemplary damages.


¶ 68    Punitive damages are focused on the conduct of the defendant and the appropriate punishment. Punitive
damages are unrelated to the compensation a plaintiff receives. Professor Waddams has made an analogy to
criminal law (The Law of Damages at para 11.450):

      [Provocation] has, however, an obvious relevance to exemplary damages, because just as in
      the criminal law, where provocation by the victim is always relevant to sentencing,
      provocation by the plaintiff will usually reduce the impropriety of the defendant's reaction,
      and so may reduce or extinguish the award of exemplary damages.

¶ 69     The arguments against also reducing the compensatory damages are based on the notion that by his or
her provocative conduct the plaintiff somehow contributed to the loss. The reasoning is that the defendant's
conduct should not be considered in a vacuum but rather considered in relation to the provocative behaviour of
the plaintiff. If provoked by a plaintiff, a defendant may have acted in an unusually savage manner.

¶ 70    Although this has long been an unclear issue, I accept the position of the Ontario and Manitoba Courts
of Appeal. Provocation is a factor to be considered in the reduction of exemplary or punitive damages
only. Moshansky J. also took this position. In Reeves v. Pollard (1977), 10 A.R. 349 (S.C.T.D.), a case decided
after Murphy v. Culhane, he stated (at 350):

      Unfortunately for the defendant, provocation does not disentitle an injured party to
      compensatory damages for the actual injury. The law is quite clear in that
      regard. Provocation, however, serves to diminish or extinguish exemplary and punitive
      damages. In this case I find the defendant acted under serious provocation in striking the
      plaintiff and accordingly I hold that the plaintiff not be entitled to any exemplary or punitive
      damages under the circumstances. The plaintiff, however, in my view, is entitled to
      compensatory damages in the circumstances for the actual injury sustained. Provocation does
      not affect the amount of these damages.


¶ 71 The next question is whether there was provocation on Jesse's part. In this case, Jesse's "provocation", if
any, was slowing down and flashing his brake lights, coupled with the defendant Jackson's belief that she saw
Jesse's brother "give her the finger". Even if this were provocation, the chasing, rear-ending and beating were
far out of proportion to such provocation. The car chase then ensued. At the time of the physical assault and
battery by Graves, the vehicles had come to a stop and Jesse and Graves had alighted from their vehicles. I
have found Jesse committed no acts of provocation at that time to justify Graves' vicious attack. Any
provocative conduct of Jesse to be considered in assessing punitive damages must occur at the time of or shortly
before Graves' behaviour (Miska v. Sivec (1959), 18 D.L.R. (2d) 363 at 367 (Ont.C.A.); see also Hurley v.
Moore, supra, at 88, paras 36 and 37). In my opinion, even if Jesse's initial actions on the highway amounted to
provocation, that was too far removed from Graves' battery or Jackson's assault. I find no defence by
provocation and, therefore, no justification to reduce the awards of exemplary or punitive damages on that


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