COURT OF APPEAL FOR ONTARIO

DATE: 20000407

DOCKET: C32224

RE: ANGELIKI KOLLARAS, by her Litigation Guardian,
BARBARA KOLLARAS, THEODORE KOLLARAS, GEORGE KOLLARAS,
TOULA KLENTOS, ANASTIA KAZAKOS, and BARBARA KOLLARAS,
personally (Plaintiffs/Respondents) v. OLYMPIC
AIRWAYS S.A. and PANGIOTIS ROUSSOS (Defendants/Appellants)

BEFORE: LABROSSE, WEILER and SHARPE JJ.A.

COUNSEL: W. Brian Dawe,
for the appellant Olympic Airways S.A.

John M. Banfill, Q.C.,
for the respondents

HEARD: March 27, 2000

On appeal from the decision of Mr. Justice Gans dated April 28, 1999

E N D O R S E M E N T

[1] The appellant appeals the judgment of Gans J. awarding Angeliki Kollaras (the “respondent”) damages as a result of injuries sustained in the Athens airport. The respondents seek leave to appeal the disposition of the costs of the trial made by the trial judge.

[2] On April 13, 1990, the respondent was struck on the right temple when an automatic sliding glass door closed on her at the Athens airport (the “incident”). As a result, an action for damages was commenced against the appellant as the occupier and operator of the airport terminal building. A second action alleging medical negligence was also commenced with respect to an operation that was performed on the respondent’s brain shortly after the incident. The two actions were tried together in January and February 1999. In the first action, the respondent and members of her family were awarded damages against the appellant and the second action was dismissed without costs. No appeal is taken from the judgment in the second action.

[3] At trial, the appellant argued that the law to be applied in the determination of liability and damages was the law of Greece. The trial judge found that the appellant had failed to prove that the law of Greece was different from the law of Ontario. He carefully reviewed the extensive evidence of the circumstances relating to the incident and held that the appellant was the occupier of the premises and solely responsible for the maintenance and operation of the automatic sliding doors. Relying essentially on the evidence adduced on behalf of the appellant, he further held that the appellant permitted an unsafe condition to continue which could have easily been rectified. There had been no contributory negligence on the part of the respondent.

[4] At the time of the incident, the respondent was 68 years of age. Although, unknowingly, she suffered from a condition associated with Alzheimer’s disease, her medical history had been unremarkable. At the time of the trial, her condition had markedly deteriorated and she had become a victim of the disease.

[5] The trial judge found that the force of the blow to the respondent’s right temple was not trivial. Relying on the evidence of a medical expert, he also found that the trauma and stress associated with the incident and the subsequent brain surgery which was causally connected to the incident collectively served to unmask if not accelerate the onset of Alzheimer’s disease. He concluded that the respondent’s health problems had been accelerated by a period of three years. The trial judge recognized that the appellant was not obliged to compensate the respondent for the effects of the pre-existing condition which the respondent would have experienced in any event. (Athey v. Leonati (1996), 1996 183 (SCC), 140 D.L.R. (4th) 235 (S.C.C.).) He awarded the respondent damages for loss of enjoyment of life for a period of three years.

[6] The trial judge assessed the general and special damages, including compensation to the respondent’s daughter-in-law for attendant care based on the costs of hiring caregiver services. He also assessed damages under the Family Law Act, R.S.O. 1990, c. F.3 for members of the respondent’s family.

[7] While ordinarily a daughter-in-law would not fall within the category of persons entitled to make a claim for loss of affection under the Family Law Act, in the unusual circumstances of this case we note that here there was evidence that a support obligation had been assumed that was indicative of the relationship that existed prior to the accident.

[8] The appellant has in effect argued this appeal as a re- hearing of the action, with little consideration, if any, given to the findings of the trial judge. We essentially agree and adopt the trial judge’s extensive and considered reasons. His findings are based on the evidence and reveal no error of law.

[9] Accordingly, the appeal is dismissed with costs.

[10] The respondents seek leave to appeal the order of party-and- party costs made by the trial judge. They claim to be entitled to an award of solicitor-and-client costs.

[11] The trial judge recognized that the plaintiff had “bettered the offer in monetary terms”. Nevertheless, he concluded that, in all the circumstances, the respondents had not satisfied the burden imposed under rule 49.10 (3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This was a difficult situation, particularly because of the medical negligence action that had been tried with this action and dismissed without costs. The respondents were not entitled to recover all their costs from the appellant and the trial judge wisely issued directions for the assessment of costs.

[12] The trial judge was in a far better position that this court to assess this entire and complex situation. Considering the wide discretion which must be accorded to the trial judge on this issue, we see no proper basis to interfere.

[13] Leave to appeal is granted but this appeal is also dismissed with costs.

(signed) "J. M. Labrosse J.A."
(signed) "K. M. Weiler J.A."
(signed) "Robert Sharpe J.A."