Judge finds the defendant occupier failed in its duty to ensure that the plaintiff was reasonably safe while on the premises.
CT v. Havcare Investments Inc. 2021 ONSC 2175
The Reasons for Judgment of The Honourable Madam Justice A. Ramsay, Ontario Superior Court of Justice were released on April 6, 2021.
The Plaintiff, CT, a former tenant of an apartment in an apartment complex located at 500 Dawes Road (“the premises”) owned by the defendant Havcare Investments Inc. (“the defendant”), brings an action for damages against the defendant for breach of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “Occupiers’ Liability Act”) and breach of the Negligence Act, R.S.O. 1990, c. N.1 (“Negligence Act”).
On the evening of September 27, 2012, Ms. T, age 70 at the date of trial, tripped and fell on a wooden post that was protruding out of the ground in a grassy area at the back of the premises. She sustained a serious fracture of her upper right (dominant) arm, which required two surgeries. She is seeking compensation for pain and suffering, future treatment costs, loss of housekeeping and handyman capacity and miscellaneous out-of-pocket expenses. The defendant denies liability and submits that the plaintiff never fell as she said she did, and that her fall was possibly caused by her pre-existing medical conditions or her weight. The defendant, represented by Ms. Krebs, a non-lawyer who is also the president, officer and principal of the corporate defendant, contends that the premises were always well maintained and well lit.
The Court found the plaintiff and her family members to be truthful and credible witnesses. With respect to the defendant Madam Justice Ramsay stated “I did not find Ms. Krebs to be a truthful and credible witness. The Court accepted the plaintiff’s version of events.
Dr. Robin Richards, orthopaedic surgeon, provided expert evidence for the plaintiff. In his opinion “Ms. T sustained a displaced spiral fracture of the right humeral shaft (the arm bone), which was broken in two pieces (comminuted).” He testified that she may also have sustained associated injuries, and possibly a rotator cuff injury, not yet investigated and diagnosed. He also noted that “She developed two complications from her injury, a nonunion (her fracture did not heal) and radial palsy (with resultant pain and weakness of the arm). The weakness related to the radial palsy improved. Her fracture healed but she is left with pain and functional limitation in her right dominant arm.” He also testified that there is a possibility that Ms. T’s pre-existing diabetes and COPD may have negatively influenced her healing process, “the former would have affected her healing, and the latter, if she was coughing a lot, could contribute to nonunion”. This opinion resulted in the Court finding “With respect to her right arm, the plaintiff was a thin skull plaintiff…” Madam Justice Ramsay found “Dr. Richards’ testimony to be impartial and of assistance to the court. He did not appear to be an advocate on behalf of either side…”
Disposition of the Court
Non-pecuniary damages – $150,000.00; Damages for loss of housekeeping and handyman capacity:
Past – $20,000.00; Future – $25,000.00; Future care costs (treatment and medication) – $15,000.00;
OHIP subrogated claim – $26,626.36 for a total damage es in the amount of $236,626.36
The plaintiff is entitled to prejudgment interest pursuant to the Courts of Justice Act, plus costs to be assessed.