Ismail v Hammad, 2024 ABKB 482 highlights the importance of securing expert evidence to support a personal injury claim. 

BACKGROUND

The Plaintiff, Salm Ismail, and Defendant, Amir Hammad, were involved in an altercation at a Tim Hortons on January 2, 2013. The two had known each other since 2008 and had a long history of conflict revolving around Salm’s ex-wife. Amir had obtained a restraining order against Salm and intended to serve the order at the Tim Hortons. Once at the coffee shop, Salm touched Amir’s arm, Amir responded by repeatedly punching Salm. Two customers then pinned down Salm while Amir continued to punch him. Salm was injured and left the scene in an ambulance. 

TRIAL

Amir relied on the defences of consent and self-defence. He argued that if general damages are awarded they should be reduced because Salm provoked the fight. 

The justice found Salm may have consented to a fight when he touched Amir, but Amir could not rely on the defence of consent because his response to Salm’s touching was excessive and unreasonable. The Justice continued this line of reasoning to dismiss the argument of self-defence, concluding that Amir’s continued attack when Salm was pinned to the ground could not be self-defence. It was found Salm had provoked Amir’s attack and as such general damages should be reduced by 30%. There is no uniform approach to the law of provocation in Canada, but in Alberta it can be used to reduce general damages. When deciding a 30% reduction was appropriate, the Justice considered both the fact that it was Salm who first touched Amir, and Salm’s history of stalking and harassing Amir.

Salm called no experts to assist with assessing damages. Salm claimed $100,000 for general damages, $91,000 for loss of income, and the cost of the ambulance. 

The Justice accepted Salm’s assertion that his neck was injured but concluded it was caused by one of the bystanders, not Amir. A detective was able to testify Salm had a swollen and black eye which the Justice accepted was caused by Amir’s punches. For his eye injury Salm was awarded $2,500, which was reduced by 30% to $1,750 due to his provocation of the fight. Salm provided limited evidence and no witnesses to support his loss of income claim. He produced a contract with no promise of hours and several return to work certificates from a doctor, who did not testify. Salm was awarded nothing for loss of income. Salm was awarded $351.47 for the cost of his ambulance as he was able to provide the bill to the Court. In total, Salm was only awarded $1,750 in general damages and $351.47 in special damages.  

CONCLUSION 

After a decade of litigation, Salm was awarded a total of $1,750 in general damages to compensate for his injuries. The key takeaway is if you are unable to provide the court with expert evidence, you may only be awarded a nominal sum for the most obvious of physical injuries.