Court of Appeal for Ontario

Date: 2001-09-20 Docket: C34528

Re: Mohamed Abdul Hussein, Randa Hussein, Yusuf Hussein, a minor by his Litigation Guardian, Mohamed Abdul Hussein, Houda Hussein, a minor by her Litigation Guardian, Mohamed Abdul Hussein, Malak Hussein, a minor by his Litigation Guardian, Mohamed Abdul Hussein, Kohder Hussein, a minor by his Litigation Guardian, Mohamed Abdul Hussein, and Sarah Hussein, a minor by her Litigation Guardian, Mohamed Abdul Hussein (Plaintiffs/Respondents) – and – Loblaws Supermarkets Limited and Whitehaven Holdings Ltd. (Defendants/Appellants)

Before: Morden, Carthy and MacPherson JJ.A.

Counsel: Mark W. Smith for the defendant/appellant Anne Mullins for the plaintiffs/respondents

Heard: September 18, 2001

Released Orally: September 18, 2001

On appeal from the judgment of Mr. Justice Kenneth C. Binks dated May 26, 2000.

ENDORSEMENT

[1] We think that there was evidence reasonably supporting the trial judge’s finding that Loblaws was liable under s. 3 of the Occupiers Liability Act and that in arriving at his conclusion he did not impose a standard of absolute liability. Although there was evidence that Loblaws had a system of maintenance with respect to its floors, there was no evidence that it was carried out on the day in question.

[2] With respect to contributory negligence, the trial judge reviewed the evidence relating to it and, although he should have made clear findings on the issue, it is reasonable to infer that he found that there was no contributory negligence on the part of the plaintiff.

[3] On the subject of general damages, we are satisfied that there was evidence on which the trial judge could have made the award he did, that he did not proceed upon a wrong principle, and that the result could not be called wholly erroneous.

[4] The difficulty that arises relates to the trial judge’s treatment of the claim for loss of income and the submitted inconsistency between his finding on this claim and that on the claim for general damages. While this causes us concern, it is not sufficient to persuade us that his findings relating to general damages and his resulting assessment were an error such that we should interfere with it. We would observe that, giving effect to the appellant’s position at his highest, Mr. Hussein suffered for 18 months following the accident. If this were accepted, it would reduce his general damages but, in these circumstances, he would be entitled to an award for loss of income. The total award might not exactly equal $60,000 but this is a factor to be taken into account.

[5] There was evidence supporting the Family Law Act awards to Mrs. Hussein and the two youngest children.

[6] The appeal is dismissed with costs.