Sun Article Link:
FULL DECISION: https://www.courts.gov.bc.ca/jdb-txt/sc/18/18/2018BCSC1832.htm
Sweeney v. British Columbia, 2018 BCSC 1832
Date: 20181023 Docket: S150601
 I understand apportionment between the sheriffs to be practically moot since British Columbia accepts that it is vicariously liable for their negligence. However it is not legally moot. I portion the sheriffs’ 95 per cent as 50 percent to Deputy Sheriff Bergen and 45 percent to Acting Sheriff Kain.
 Mr. Sweeney seeks general, or non-pecuniary, damages only.
 In a trilogy of cases in 1978, the Supreme Court of Canada set a rough upper limit of $100,000 (in 1978 dollars) for non-pecuniary damages: Andrews v. Grand & Toy Alberta Ltd.,  2 S.C.R. 229 at 261-62; Arnold v. Teno (Next friend of),  2 S.C.R. 287 at 333-34; and Thornton (Next friend of) v. School Dist. No. 57 (Prince George) et al.,  2 S.C.R. 267 at 270. In 2018, the rough upper limit, adjusted for inflation, is $382,681.
 In Stapley v. Hejslet, 2006 BCCA 34, leave to appeal ref’d  S.C.C.A. No. 100, at para. 46, the Court of Appeal set out a non-exhaustive list of factors to consider when assessing non-pecuniary damages: age of the plaintiff; nature of the injury; severity and duration of pain; disability; emotional suffering; loss or impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; loss of lifestyle; and the plaintiff’s stoicism.
 It is typical for courts to consider cases in which the plaintiff has suffered injuries similar in nature and duration to those of the plaintiff in the case at bar. Such cases act as a guideline, but should not be used to develop a “tariff” for injuries of a certain type: Lindal v. Lindal,  2 S.C.R. 629 at 637. Similar injuries may not have similar consequences for the injured person.
 Mr. Sweeney says the appropriate range of damages is $65,000-$80,000. He relies on Blackman v. Dha, 2015 BCSC 698; Embleton v. Innes, 2013 BCSC 851; Fillmore v. McKay, 2010 BCSC 1401; Lane v. Wahl, 2015 BCSC 1779; Zhang v. Ghebreanenya, 2015 BCSC 938; and Zhao v. Yu, 2014 BCSC 1915.
 I turn to the Stapley factors, some of which I have grouped as indicated by the headings that I use.
Age of the Plaintiff
 In relation to the first Stapley factor, age, this case is slightly unusual. Mr. Sweeney is at an age where many people are winding down their working careers and physical activities. In part due to Mr. Sweeney’s troubled and disrupted past, he is not in position to do so. Despite his 2010 injury which caused him to not be able to work as a warehouseman, he has found work as a janitor. He is an active volunteer, and plays a large role in his grandchildren’s life. He is physically active. He must now do those things with more pain and different pain than he had before, and with a recurrence of disruptive migraine headaches.
Nature of the Injury
 This was a violent and traumatic event undertaken by peace officers who placed Mr. Sweeney into a position that caused him pain due to his pre-existing injury, did not listen to him when he told them that, and then exacerbated that injury permanently. In addition, he suffered an open head wound and a concussion.
Severity and Duration of Pain; Impairment of Physical and Mental Abilities
 Mr. Sweeney had a quick and permanent recovery from the laceration to his head and his concussion. The damage to his rotator cuff and the orthopedic pain is permanent and lasting.
Disability; Loss or Impairment of Life; Loss of Lifestyle
 Mr. Sweeney has a real disability in terms of reduced strength. The pain and migraines impair his enjoyment of life.
 Mr. Sweeney’s situation is worse than it was before because he has more and different pain than he had before. He was cross-examined on this in some detail. He clearly was trying to explain that he has suffered a loss and I accept that. However, he did not give any evidence that pointed to a practical or functional difference.
 One example of this is with regard to swimming, which was a recreational activity he sometimes undertook with his granddaughters. He says that before the 2010 accident, he could swim a front crawl and a backstroke. He conceded that after 2010 he could not do either of those strokes, but he said he could still do a side stroke and dog paddle. However after 2010 and prior to the 2014 takedown, he did not go swimming with his granddaughters because of his limitations except on a couple of occasions. His evidence about those occasions was consistent with them being a very limited experience.
 There is no difference in his main personal recreational pursuit which is soccer. He is still able to play and does play. He could not do overhead throw-ins since the 2010 accident and he still cannot do them. He is able to continue to play as he did prior to the 2014 accident.
 Although there is no evidence of a psychological injury, Mr. Sweeney’s expressed scepticism as to whether people like him are treated fairly by authority figures. He testified that although he had been arrested several times prior to this incident, none of those arrests involved struggle on his part or what he considered to be inappropriate behaviour by the arresting authorities. This incident was different.
Affect on Family Relationships
 Mr. Sweeney’s family relationships are mildly impaired: he carries on but with reduced enjoyment due to his pain and headaches and a perception that he is not able to do what he used to.
 Mr. Sweeney is stoic. He accepts his limitations. When he gets short of temper or frustrated he tells himself he cannot afford to be that way and he carries on. His work as a janitor sometimes exacerbates his shoulder pain but he tells himself to carry on and push through.
Conclusion on Non-Pecuniary Damages
 Taking into account the Stapley factors, the authorities cited by all parties and the age of the authorities, I award $70,000 in non-pecuniary damages. I reduce those damages by 5% for contributory negligence, for a net award of $66,500.
 I award Mr. Sweeney damages in the amount of $66,500.
 Subject to any matters of which I am not aware relating to costs, I award Mr. Sweeney costs at Scale B. If the parties wish to address costs, they shall, within 30 days of these reasons, exchange written submissions of no more than five pages each and provide them to me through the registry within 35 days of these reasons. The parties may request an opportunity to speak to costs in their written submissions.