Reese v. Falkowsky (1996), 145 Sask.R. 66 (QB)
MLB headnote and full text
Raymond Reese (plaintiff) v. Edward Falkowsky and Lester Falkowsky (defendants)
(1993 Q.B. No. 341)
Indexed As: Reese v. Falkowsky et al.
Saskatchewan Court of Queen’s Bench
Judicial Centre of Yorkton
McIntyre, J.
June 14, 1996.
Summary:
The plaintiff sued the defendants for an assault and battery arising from an incident in which the plaintiff was struck numerous times with a bullwhip.
The Saskatchewan Court of Queen’s Bench found that an assault and battery was committed upon the plaintiff and that the defendants were liable as joint tortfeasors. The court awarded the plaintiff $5,000 non-pecuniary damages and $1,026.75 special damages. The court also awarded $2,000 punitive damages against the defendant Lester Falkowsky.
Damage Awards – Topic 205
Injury and death – Psychological injuries – Mental distress – The Saskatchewan Court of Queen’s Bench found that two defendants were liable as joint tortfeasors for an assault and battery committed upon the plaintiff process server – The plaintiff had been struck numerous times with a bullwhip when he went to a farm to serve an order nisi – There were markings and welts on his left hand, arms and the upper part of his left abdomen – Pain and discomfort for three to four months – The welts began to disappear after five or six months – The plaintiff suffered nightmares and was unable to sleep for over two years – He was fearful and depressed – The court awarded $5,000 general damages for the physical and psychological injuries – The court also awarded $2,000 punitive damages against one of the defendants only – The other defendant had been convicted of criminal charges arising from the incident – See paragraphs 10 to 24.
Damage Awards – Topic 628
Torts – Injury to the person – Assault and battery – [See
Damage Awards – Topic 205
].
Damage Awards – Topic 2011
Exemplary or punitive damages – Assault and battery – [See
Damage Awards – Topic 205
].
Damages – Topic 1322
Exemplary or punitive damages – Bar – Where wrongdoer criminally convicted – [See
Damage Awards – Topic 205
].
Torts – Topic 3181
Trespass – Assault and battery – General – The plaintiff process server attended at the Falkowsky farmhouse to serve an order nisi on Edward Falkowsky – A vehicle pulled into the driveway – Edward and Lester Falkowsky exited the vehicle and closed the farm gate – The plaintiff got into his truck – He observed Lester give Edward a bullwhip – Edward approached the plaintiff’s vehicle – The plaintiff’s window was down – Edward began whipping at the plaintiff with the bullwhip, striking both the plaintiff and his truck – The plaintiff backed up – Edward ran after him, yelling and screaming and continuing to strike the plaintiff and his vehicle with the bullwhip – The plaintiff drove out of the yard through the gate – The Saskatchewan Court of Queen’s Bench found that an assault and battery was committed and that Edward and Lester were liable as joint tortfeasors where they engaged in a concerted action to a common end – See paragraphs 2 to 9.
Torts – Topic 7100
Joint and concurrent tortfeasors – Elements of joint liability – What constitutes joint or concerted action – [See
Torts – Topic 3181
].
Torts – Topic 7162
Joint and concurrent tortfeasors – Joint tortfeasors – What constitutes – [See
Torts – Topic 3181
].
Cases Noticed:
Johnston v. Burton (1970), 16 D.L.R.(3d) 660 (Man. Q.B.), refd to. [para. 9].
Myers v. Haroldson (1989), 76 Sask.R. 27 (Q.B.), refd to. [para. 10].
Thompson v. Celebration Saloons Ltd. et al. (1992), 104 Sask.R. 138 (Q.B.), consd. [para. 13].
Swanson v. Mallow et al. (1991), 94 Sask.R. 217 (Q.B.), consd. [para. 14].
Belanger v. Belanger (1995), 132 Sask.R. 230 (Q.B.), consd. [para. 16].
Herbert v. Misuga (1994), 116 Sask.R. 292; 59 W.A.C. 292 (C.A.), refd to. [para. 19].
Authors and Works Noticed:
Rainaldi, Linda A., Remedies in Tort (1987)(Release 5) (1995 Update), c. 26, §18 [para. 9].
Waddams, Stephen M., The Law of Damages (Rev. 2nd Ed. 1991), pp. 11 to 28 [para. 19].
Counsel:
Doreen K. Clark, for the plaintiff;
No one appearing on behalf of the defendants.
This action was heard by McIntyre, J., of the Saskatchewan Court of Queen’s Bench, Judicial Centre of Yorkton, who delivered the following decision on June 14, 1996.
