17 Dec Assault During Bar Fight
The case of Petersen v. Stadnyk, 2006 BCSC 806, is about a fight between the Plaintiff and the Defendant. The fight ended with them falling to the floor, one on top of the other, where the Plaintiff dislocated his shoulder and broke his ankle. He sued the Defendant for damages for those injuries on the grounds of assault.
A person commits an assault when he or she applies force or threatens to do so without the other person’s consent. It is not an assault to apply force in self-defence, if that force is no more than necessary for the purpose and not excessive.
This incident occurred at a restaurant/bar just after last call. One of the servers was sitting at the bar taking a break. The Plaintiff approached her from behind and ran his fingers through her hair. She told him to stop. He did this twice more and both times she told him to stop. At that point, the Defendant stepped in and there was an exchange of words. The Plaintiff punched the Defendant hard in the face and the Defendant grabbed the Plaintiff to move him away. As they grappled, the Plaintiff punched the Defendant again. They separated when, without warning, the Plaintiff punched the Defendant in the face. The Defendant grabbed the Plaintiff in order to avoid further punches and they both fell to the floor.
The issue was whether the Defendant committed an assault or whether he acted in self-defence.
The Court concluded that the Plaintiff and the Defendant initially became involved in a consensual fight. The second part of the fight was a separate event. Once they were pulled apart, both had the full opportunity to desist from further action. The Defendant did but the Plaintiff did not. He deliberately positioned himself to hit the Defendant in the face. It was a sucker punch. The Defendant hit back and grabbed onto the Plaintiff. That was a reasonable choice in the circumstances. The Court held that he did not assault the Plaintiff – it was self-defence. The fall was an accident so the Defendant was not responsible for the Plaintiff’s injuries. The Plaintiff was the author of his own misfortune and his claim against the Defendant was dismissed with costs.