COURT FILE NO.: DC-06-20

DATE: 20080508

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

GREER, CRANE and GANS JJ.

B E T W E E N:

SLAVKA LITWINENKO,

Plaintiff (Appellant)

• and -

BEAVER LUMBER COMPANY LTD.,

Defendant (Respondent)

Christopher D.J. Hacio, Counsel for the Appellant

Alexander W. Demeo, Counsel for the Respondent

HEARD at Thunder Bay: DECEMBER 4, 2007

REASONS ON APPEAL

GREER J.:

[1] On August 18, 1998, Slavka Litwinenko (the “Appellant”) tripped and fell in a plaza in the City of Thunder Bay, where the Beaver Lumber Company Ltd. (the “Respondent”) has a store. The main entrance to the store has a ramp leading to it. The Appellant used the cement ramp to walk up to a walkway in front of the entrance to the store. Due to a shifting to the ramp and the walkway, which took place over the years preceding her fall, the ramp became somewhat higher than that of the walkway by about 3 to 3.5 inches. A “cold patch” was placed over this “lip” by either the plaza owner or the Respondent store. That patch had also receded over time, leaving a lip of 1 to 1.5 inches still exposed.

[2] On the day in question, while leaving the store, the Appellant tripped at this lip. She fell forward on the downward slope of the ramp, thereby seriously injuring her head, face, ribs and shoulder.

[3] The Appellant commenced an action against the Respondent. It finally went to trial after approximately 8 years. The Judgment of Mr. Justice John de P. Wright (the “Judge”) in this matter, was released August 10, 2006. He awarded the Appellant Judgment in the amount of $13,598, inclusive of housekeeping and general damages, plus pre-judgment interest, after finding the Appellant 50% liable for her own injuries. I found no evidence in the materials before me that the Costs were ever fixed by the trial Court. No Judgment or Order for Costs was before us when we heard the Appeal. The Costs Decision was released by the Judge on May 9, 2007 and I now have a copy. He fixed the plaintiff’s Costs at $6,115.16 and the defendant’s at $18,743.73. The formal Judgment has also been located in the Court file, having been issued and entered on December 10, 2007, after the Appeal was heard.

[4] The Appellant asks that the Judgment be set aside and that a new Judgment in the amount of $80,000 be awarded to the Appellant for general damages. Further, the Appellant asks that the Court reduce the amount of contributory negligence apportioned by the Judge. Lastly, the Appellant asks that the damages awarded for past and future loss of housekeeping be increased to $94,247, and that she be awarded the sum of $1,250.96 for assistive devices. The Appellant also asks for Leave to appeal the issue of Costs and asks this Court to fix the Costs of both the trial and the appeal.

Grounds for Appeal

[5] The Appellant’s grounds for the Appeal are summarized as follows:

1. The Judge misinterpreted and/or misconstrued the relevant and overwhelming medical evidence, which was admitted at Trial, when he concluded that the Appellant’s shoulder injury was not caused by the fall in question.

2. The Judge ignored relevant evidence given by both expert and lay witnesses about the Appellant’s shoulder injury.

3. The Judge miscomprehended and improperly applied the provisions of the Occupiers’ Liability Act, R.S.O. 1990 c.O.2 as amended (“OLA”), in finding the Appellant 50% liable for her own injuries.

4. The Judge failed to accept the rational and credible evidence presented by the Appellant about her injuries and the effect they had on her life.

5. The Judge failed to properly apply the principles as set down by the Supreme Court of Canada in Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458.

[6] Under s.19 of the Courts of Justice Act, R.S.O. 1990 c. an Appeal lies to the Divisional Court from a final Order of a Judge of the Superior Court of Justice for a single payment of not more than $25,000, exclusive of costs. The award by the Judge of $13,598, exclusive of costs, falls within s.19.

[7] Under s. 119 of that Act, on an appeal from an award for damages for personal injury, the Court may, if it considers it just, substitute its own assessment of the damages. Further, s. 134 provides as follows:

Unless otherwise provided, a Court to which an appeal is taken may,

(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;

(b) order a new trial;

(c) make any other order or decision that is considered just.

[8] With respect to the Court’s power to re-assess the damages awarded by the Judge to the Appellant, the Ontario Court of Appeal has held in Banihashem-Bakhtiari v. Axes Investments Inc. (2000), 2004 36112 (ON CA), 69 O.R. (3d) 671, that an appellate court is not justified in interfering with a damages assessment unless the amount awarded is so inordinately low or high that it must be a wholly erroneous estimate of the damages. Further, in that case, and in Eichmanis (Litigation Guardian of) v. Prystay (2004), 2004 18378 (ON CA), 185 O.A.C. 97, the Court of Appeal held that a re-apportionment of liability sought on appeal will only be granted in strong and exceptional cases.

Standard of Review

[9] The standard of review of the Judge’s decision in the Appeal before us was set out by the Supreme Court of Canada in Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4^th) 577. On a question of law, the test is a matter of correctness in which case the appellate court is free to replace the opinion of the trial judge with its own.

[10] On issues involving findings of fact, a judge is not to be reversed unless it can be established that the trial judge made a “palpable and overriding error”, as set out in Stein v. The Ship “Kathy K”, 1975 146 (SCC), [1976] 2 S.C.R. 802. Further, if a judge has considered all the evidence that the law requires him or her to consider and still comes to a wrong conclusion, this amounts to an error of mixed fact and law, and is subject to a more stringent standard of review than that of palpable and overriding error.

[11] The Appellant argued that the standard of review is one of correctness. We agree that this is the standard for pure questions of law. The Respondent says that the appropriate standard of that of “palpable and overriding error”, and that the Judge’s determination and apportionment of the issue of negligence is a question of mixed fact and law. This issue was dealt with in Housen, supra, where the Court held at para. 29:

When the question of mixed fact and law at issue is a finding of negligence, this court has held that a finding of negligence by the trial judge should be deferred to by appellate courts. In Jaegli Enterprises Ltd. v. Taylor, Dickson J. (as he then was) set aside the holding of the British Columbia Court of Appeal that the trial judge had erred in his finding of negligence on the basis that “it is wrong for an appellate court to set aside a trial judgment where there is not palpable and overriding error, and the only point at issue if the interpretation of the evidence as a whole.”

In the case before us, the Appellate is not asking that we set aside the trial and order a new trial. The Appellant was awarded some damages and asks this Court to substitute its own assessment of damages. The Appellant says that the Judge erred in the quantum of those damages, and in the categories awarded by him, and in the percentage the award was reduced by the contributory negligence attributed to the Appellant. She also says the Judge erred at law in his analysis of Athey, supra.

Background Facts

[12] At the time of her accident, the Appellant was 69 years of age. The evidence before the Judge was that the Appellant was in good health before the accident, that she owned her own home and that she was an avid gardener. There was evidence that the Appellant had been able to do all her own cooking and housework, that she had been able to paint and stain areas of the home, that she occasionally shovelled snow, maintained her own vegetable garden, babysat her grandchildren, took regular walks, as well as sometimes using a treadmill. Further, the Appellant regularly travelled to Italy before the accident.

[13] The Appellant’s medical history before the accident shows that she had some concerns about her hearing, that she sometimes had headaches, that she had scoliosis and was affected by degenerative disc problems, that she had occasional right shoulder pain and occasionally had an upset stomach. On the evidence before the Judge, it was uncontroverted that none of these symptoms in any way affected the Appellant’s ability to carry out her regular activities.

[14] The Appellant and her husband had regularly visited the store owned by the Respondent and had walked up the ramp in question, sometimes twice per week, before the day of the accident. The Appellant was further aware that the subject “lip” existed before she tripped over it and was injured. She, in fact, had made it a habit of avoiding this spot by parking to the right of the ramp where walking conditions were better. On the day of the mishap, she and her husband were not, however, able to park in their accustomed spot and had to park to the left of it, before using the ramp to enter the store. On her way out of the store that day, the Appellant tripped and fell on the ramp leading from the store.

[15] The Respondent, however, was aware that the concrete had shifted on the ramp, as it had tried to fix it with a “cold patch” of asphalt. Photos entered as exhibits at Trial show this. This was not a new patch and no effort had been made by the store to arrange to have the full ramp re-paved in order to remove the lip. The Respondent continued to invite its customers to walk up the ramp when it knew there was a levelling problem, thereby leaving it open for customers to trip and fall.

The Appellant’s injuries

[16] The evidence before the Judge was uncontroverted, namely that the Appellant suffered a serious trip and fall. She fell face downward on the concrete, hit her head and shoulder, broke her glasses, tore some clothing and her nose bled. An ambulance had to be called and she was required to remain in hospital for 4 ½ days. The Appellant also injured her right leg, right knee, right arm and shoulder, and ribs, as well as her head. The medical reports noted that she had “…bruising to Rt. side body, corner Rt. Eye & face Rt. shoulder...” and “…abrasions to Rt. Side face & eye shoulder.”

[17] The right leg injury resolved itself within a couple of months, and her ribs healed after about six months. In addition, her headaches finally abated to what they had been before the accident. The injury, which the Appellant claims has continued and has caused her to lose some mobility, is in respect of the right shoulder. It was the position of the Respondent, that this was not a serious injury and that the Appellant had a pre-condition of soreness in that shoulder. The Appellant denies having the suggested pre-condition. She said at Trial the pain returns when she uses the shoulder and subsides when it is immobile.

[18] There was evidence before the Judge from the x-rays done of the Appellant’s shoulder in 1989, that there was no abnormality in the shoulder. By June 11, 1993, another x-ray showed that there was early osteoarthritis involving the AC joint and shoulder joint. Further x-rays taken in 1996 after the Appellant injured her right shoulder while in Europe, show calcification in the soft tissue adjacent to the humeral head, but no bony abnormality, and that the same osteoarthritis was present that had been there in 1993.

[19] On August 1998, after the fall in question, the Appellant had a neurosurgical consultation with Dr. Chaudhuri because of the head injury. While this doctor did not examine the x-rays taken, he found that “Shoulder movements are full range and painless...this patient appears to have suffered from minor head injury and there is no evidence of intracranial dysfunction at this time.”

[20] On May 9, 1999, further x-rays were taken and it was found that there were “no significant bony or joint abnormalities re identified.” Dr. Jowett, the Appellant’s treating physician, made the following statement on May 20, 1999, in a note to Mr. W.A. Covello:

Likewise I believe her right posterior headaches and right shoulder pain due to aggravation of neck arthritis and possibly right shoulder arthritis aggravation due to the injury 18 Aug.98. (emphasis added)

The evidence is clear that the right shoulder injury was found by the Appellant’s treating physician to have been caused by the accident, and it appears to have aggravated earlier shoulder arthritic pain. Dr. Jowett also notes that lumbar back pain the Appellant was then experiencing was “…also likely an aggravation of previous lumbar problems due to trip and fall.” Unfortunately, Dr. Jowett died in the interim between the date of the accident and the 8 years it took this case to come to Trial. The Judge ignored the fact that it was clear both from the treating doctor’s notes and from pictures taken after the accident, that the right shoulder had been injured in the trip and fall.

[21] On July 18, 2001, Dr. J.L. Remus, a Thunder Bay orthopaedic surgeon, reported to Dr. John Nickerson, one of the Appellant’s other doctors, that:

I think she should have a repeat x-ray of her right shoulder joint and MRI of her right shoulder joint which will probably reveal evidence of rotator cuff entrapment and perhaps even a chronic tear.

Therefore, 3 years post-trip and fall, there is expert evidence documenting the right shoulder injury consequences of that accident, which evidence the Judge ignored or failed to apply appropriate weight.

[22] Furthermore, three years after the trip and fall, on July 19, 2001, a diagnostic imaging report on the right shoulder stated:

…moderate degenerative change at the acroioclavicular joint with decrease in the subacromial space and sclerosis and cystic change in the region of the greater tuberosity. The findings are suggestive of rotator cuff insufficiency with associated impingement.

Less than 4 months later, on November 6, 2001, an MRI report on the right shoulder was done because the Appellant was still complaining of some pain and stiffness. It stated, inter alia, “There is a full thickness complete tear in the supraspinatus component of the rotator cuff.” (emphasis added)

[23] The Appellant says that while her doctors, shortly after the trip and fall, concentrated on her head, leg and rib injuries, it was noted 8 months after the accident that she was still complaining of right shoulder pain. While, she further agrees, as do the experts, that she may have had some rotator cuff wear in her shoulder and some arthritic complaints before the trip and fall, there was, however, no full rotator cuff tear or on-going shoulder pain until after the mishap.

[24] The pictures taken of the Appellant’s injuries, right after the accident, clearly show the bruise to her right shoulder, and redness down her right arm, as well as extensive bruising around the right eye. These injuries and her other injuries are noted in the report of Dr. Chaudhuri made right after the trip and fall.

The Expert Evidence at Trial

[25] Three experts provided reports, namely Dr. Lloyd for the Appellant and Drs. Chow and Richman on behalf of the Respondent. Their views differed with respect to the Appellant’s injuries.

[26] Dr. Lloyd is an orthopaedic surgeon. He gave evidence at trial. He first saw the Appellant on May 12, 2005, 7 years post-trip and fall. The Appellant was then 76 years of age. He was of the view that even when the incident happened, she was of an age where there could be a “variety of pathologies”, which can be “…disturbed by a traumatic event.” With respect to a report already done by Dr. Chow, it is Dr. Lloyd’s opinion in his letter to the Appellant’s counsel, that:

I think his report is flawed, in that it does not take an appropriate holistic view of a patient who was in the elderly age group when the accident happened. It is a matter of reality that patients in that age group, who have comparatively minor injuries, seem to have the symbiosis disturbed on a permanent basis.

[27] Dr. Lloyd also testified at the trial. He had examined the MRI report and did not think too much emphasis should be placed on the rotator cuff “tear”, and that perhaps it should be considered a “defect”, which came about as a result of the accident and the Appellant’s pre-conditions. This observation does not discount the evidence that something had happened to the rotator cuff in the trip and fall, which, in time, created the pain and lack of mobility the Appellant was experiencing at Trial after an 8-year hiatus from the date of injury to Trial.

[28] In paragraph 31 of his Judgment, the Judge quotes three paragraphs from Dr. Lloyd’s Report, after noting that the Appellant’s pain “seems to be centered in the region of the right shoulder girdle.” He does not, however, say whether he is adopting these findings of Dr. Lloyd or not. Further, the Judge sets out the history of the Appellant’s “Shoulder problems” on pp.11-15 of his Judgment, so he was fully aware of the injuries caused to the Appellant’s shoulder by her trip and fall. He did not accept, however, that there was any “immediate tear/injury to her rotator cuff as a result of her fall.”

[29] Drs. Chow and Richman are both with AssessMed and prepared reports for the Respondent. Dr. Chow is a rehabilitation specialist and was involved in reviewing the report of the Occupational Therapy In-Home Functional Assessment done for the Appellant in May 2005. There is no indication that he personally examined the Appellant. He simply put her complaints down to her previous conditions. Dr. Richman then reviewed Dr. Chow’s report (only one of his letters was before us). He, too, did not examine the Appellant. He performed a “File Review of Causation of Medical Condition”, and makes mention in his report of Dr. Chow’s review. Dr. Richman, in his report of December 5, 2005, does agree, however, that trauma or injury can aggravate pre-existing conditions, but saw no causal effect of the accident on the Appellant. He concluded that “…despite all her medical conditions, in my medical opinion, they are not a result of the accident of August 18, 1998, and are a result of the normal aging process and arthritis.”

[30] The two rehabilitation specialists each prepared reports long after the trip and fall, based on the other medical evidence available, whereas all the doctors who had examined the Appellant over the years, found there was a causal connection between the Appellant’s shoulder injury and the trip and fall.

Other Evidence at Trial

[31] Two other rehabilitation reports were submitted in evidence; one dated March 30, 2005 was completed by Karen Pontello, an Occupational Therapist. On pages 9 and 10 of that Report, Ms. Pontello recommended that various items be purchased to assist the Appellant in decreasing repetitious movement of her upper extremeties. The Judge did not accept that the Appellant needed any of the six recommended items, the cost of which totals approximately $750. Ms. Pontello further recommended certain items in order to “increase the client’s safety with bathing”, which were allowed. These cost $250. Out of 5 other items relating to cleaning and safety in climbing the stairs, the Judge only accepted one item, being a light-weight vacuum at a cost of $150. He agreed with Dr. Chow, who was of the opinion that most of the items mentioned were not related to the trip and fall.

[32] Ms. Pontello also recommended 6 hours of homemaking per month, 2 days of spring-cleaning 2 times per year plus 2-3 hours of home maintenance per week. Using a report prepared by Professor Norman Bonsor, the Judge awarded the Appellant 8 hours a week for 78 weeks (1 ½ years) at $12 per hour, for a total of $7,500, giving a total special damages award of $12,197.19. This figure includes an OHIP claim for $2,489.90, glasses, ambulance, bed and new sheets for the new bed.

[33] Professor Bonsor is a Professor Emeritus of Economics at Lakehead University. He prepared a report to estimate the probable economic losses suffered by the Appellant as a result of the trip and fall, including past and future loss of housekeeping capacity. The statistics are shown in the report and are based on a 40% reduction in pre-injury ability and a 60% reduction at different ages of 80 and 85. He projects past losses and future losses. In his decision, the Judge does not refer to either past or future losses but only “the loss arising from the accident.”

[34] The Judge gives no reasons why he restricts compensation for loss of housekeeping capacity to 1 ½ years other than the fact that he says the Appellant would “need help weekly for the first six months”, and that her headaches would cause problems for a year and a half. He says that the Appellant’s “age and arthritis” would have caught up to her by then. There is no mention whatsoever about the shoulder injury, noting in paragraph 67 of his Judgment that “There seems to be no doubt that the plaintiff has now lost a significant degree of housekeeping capacity because of the impairment of hr (sic) right arm and back, and given her current age and the “absence of documented symptoms for almost 10 months following the accident…”.

[35] There is no mention anywhere in the Judgment to the lay witnesses who appeared at Trial and gave evidence as to the Appellant’s demeanour and behaviour before the trip and fall incident and the changes in her ability to do housework and everyday activities she had participated in before the incident.

[36] Judith Turner, a nurse, who lives across the street from the Appellant, gave evidence. She confirmed the Appellant’s own evidence that she cannot do the same chores in the yard and around the house that she did before the accident. She says that the Appellant “…gets tired and, and her shoulder starts bothering her and, and so she has to stop and sometimes she, she can’t go out maybe for a couple of days if she’s done – if she’s overdone it and her shoulder is bothering her.”

[37] Ms. Turner confirms that the Appellant’s daughter has to come almost every day to assist her, that her son-in-law helps, that her garden is now over-grown and on cross-examination, she said that the Appellant can no longer keep her house clean. The Judge either ignored this evidence or gave it no weight, but there is no mention of it in the Judgment.

[38] Cathy Ferguson, the Appellant’s daughter, gave evidence at Trial. No mention is made of her evidence by the Judge. Her evidence is that her mother has trouble using her right arm and is limited in doing many things. She also says that her mother has problems keeping the house clean. She also say s that her mother now eats TV dinners instead of cooking a full meal, which she did cook before the trip and fall. The Appellant, says her daughter, is no longer capable of hanging her washing on the line or painting walls and window frames, and is no longer able to garden like she used to. Ms. Ferguson said that she and her husband, other relatives and friends must now help the Appellant do all the tasks, if they are to get done. The Judge either ignored this evidence or gave it no weight, as there is no mention of it in the Judgment.

[39] Tony Migliazza, a physiotherapist, also gave evidence at Trial that by the end of 1996, the Appellant had responded well to earlier physiotherapy treatment and that she was discharged on December 24, 1996, with a home exercise programme to be done by her at home. The 1996 treatment came about as a result of an injury she had while in Italy with her husband. His evidence was that the Appellant had fully recovered from this injury by 1998 when the trip and fall occurred.

[40] Mr. Migliazza treated the Appellant after her trip and fall. He gave the Appellant a number of treatments during 1998 to 2000, which he says helped reduce her pain level and helped her to “manage a bit better”. His treatment notes, however, state that the Appellant’s, “…right shoulder continues to bother her on overhead work, but otherwise her strength and range has improved, however, not to the pre-accident level.” (emphasis added). He goes on to say that the “impingement” problems continued on in 2001 and treatments continued on until 2004 due to what Mr. Migliazza saw as an impingement of the rotator cuff. This evidence, in our view, is significant in helping to determine the extent of the Appellant’s on-going injuries, and confirms what every lay witness said about the Appellant’s condition. The Judge never mentions any of Mr. Migliazza’s evidence in his Judgment.

[41] While the Judge was not obliged, to summarize the evidence of all witnesses seen at Trial, in my view, he committed a palpable and overriding error in completely ignoring the evidence of witnesses other than Dr. Lloyd and the medical reports.

Analysis

Did the Judge Err at Law or Make a Palpable and Overriding Error?

[42] The key issue before us is not whether the Judge erred. Clearly, he did, in his conclusions on both liability and damages.

[43] In respect of damages, the key issue is whether there must be a new trial. That result generally happens if there are unresolved credibility issues, that is, conflicting medical evidence about which credibility findings were and could not be made. Those issues should be determined by a new trial, where the trier can see and assess the witnesses.

[44] Are there unresolved credibility issues? The Judge did not comment on Dr. Chow’s position that the Appellant’s shoulder injury was not accident related. He simply said that Dr. Chow concluded that age related functional degeneration need to be taken into account. Nor did he comment on the Appellant’s witness’ evidence to the contrary that the shoulder problem was accident related and continued to worsen as the 8 years went by between the accident and the trial.

[45] The Judge assessed damages for the shoulder injury by saying this was a case of a “crumbling skull plaintiff” and wrongly said she had a pre-existing rotator-cuff injury, when there was no medical evidence to support this finding. He then assessed general damages in paragraph 70, without saying what injuries these damages actually covered.

[46] It is the position of the Appellant that the Judge erred in law in failing to properly apply the principles in Athey v. Leonati, supra. The Judge, on p.8 to 10 of his Reasons deals with the issue of causation and the “but for” test, which has been applied by the Court in that case. While the Judge mentions the Athey case name in paragraph 32 and quotes, in full, paragraphs 13 to 20 inclusive and 34 and 35 of that case under his headings of “Causation”, and heading “The Thin Skull and “crumbling Skull” Doctrines”, he never analyzes how the case applies nor does he apply it to the Appellant’s situation.

[47] The fact that the Appellant had some back and heart problems prior to the trip and fall, and was experiencing some arthritic pain in her body, does not mean that she was a “crumbling or thin skull plaintiff”. In paragraph 17 of Athey, supra, the Supreme Court of Canada held:

There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by the negligence.

This principle was ignored by the Judge, when he found the Appellant’s shoulder to be a “crumbling skull”, which reduced the Respondent’s liability to the Appellant and thereby reduced the general damages, to which she was entitled. He further made, in my view, a palpable and overriding error when he ignored the extent of the Appellant’s other injuries to her head, face, ribs, right leg and knee, when he stated in paragraph 62, “I accept that she did not sustain any musculoskeletal damage as a result of this fall.” Even if this statement was meant to apply just to the shoulder injury, he ignored the findings of Drs. Jowett and Remus, both of whom documented the injury to the shoulder.

[48] It is clear from Athey, supra, in paragraph 27, that a future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation. The Judge restricted the Appellant’s injuries and calculation of special damages to 1 ½ years after the trip and fall, and seemed to say that any further pain and discomfort and disability was to be put off to the aging process and previous problems. This finding totally ignored the fact that the Appellant’s case did not come to Trial for 8 years and that there was medical evidence that her condition worsened as each year went by.

[49] It was unfortunate for the Appellant that two of the key witnesses, her husband and her treating physician, Dr. Jowett, both died after the trip and fall and before the case came to Trial. These were two other persons who had first-hand knowledge about the Appellant’s injuries.

Analysis

[50] The Judge, in paragraph 70, of his Reasons assesses the Appellant’s general damages at $15,000. This sum was reduced by 50%, despite the Judge’s finding in paragraph 10 of his Reasons that the Respondent occupier, had “failed in its duty to see that persons on the premises were reasonable (sic) safe”, and that the cold patch used by it “was not adequate as events proved.” The Respondent knew of the danger, as the patch was put on the lip. The area, however, had subsided further, given that the lip was 1-1 ½ inches high at the time of the trip and fall, when it had previously been 3-3 ½ when the patch was first put on.

[51] In his analysis of the provisions of the Occupiers’ Liability Act, (“OLA”) the Judge notes that liability for the Appellant’s injuries arises from the OLA and that the Respondent failed in its duty to see that the premises were reasonably safe and that mere knowledge of the risk by the Appellant is not sufficient to absolve the Respondent from liability. This, however, is not a “volenti” case, and once the danger was known to the Respondent, it should have taken proper steps to correct the “lip”. The mere patch applied was not sufficient to provide invitees with a smooth surface on which to approach and exit from the store. Indeed, such repair work would not have been all that difficult for the Respondent as a purveyor of building repair materials. The Judge ignores this evidence and places the onus on the Appellant to have avoided the trip and fall. The Judge ignores the “but for” test in Athey, supra. But for the Respondent’s failure to properly correct the fault in the ramp, the Appellant would not have tripped and fallen.

[52] The Judge attributes 50% liability to the Appellant’s negligence for failing to avoid the “lip” when she descended the ramp. No mention is made of the angle of the ramp and the visibility of the “lip” to the Appellant when she was descending down the ramp. A number of pictures were entered as exhibits at Trial, which clearly show the shoddy job the Respondent made of patching the ramp. The Judge’s decision, in my view, in apportioning 50% liability to the Appellant is unreasonable in these circumstances. He ought not to have said that the Appellant was, “…to some extent, the author of her own misfortune.”

[53] Furthermore, the Judge says in paragraph 22, that “…we now live in an age of apportionment and that apportionment should be liberally applied.” He gives no supporting reasons given for apportioning 50% negligence to the Appellant, other than this.

[54] A trial Judge must determine fault or neglect under the Negligence Act, R.S.O, c. N.1 and under section 3 apportion the damages in proportion to the degree of fault or neglect found against the plaintiff and the defendant. This is done on the basis of the standard of conduct to be expected of a reasonable person in the circumstances. The Court is to compare the culpability or blameworthiness on the part of each person in order to determine the degree of liability. See: Apportionment of Fault in Tort, David Cheifetz, c. 1981, at pp. 99-102. The Judge, however, in this instance, incorrectly decides in paragraph 24 that the Appellant is “the author of her own misfortune”, simply because she knew of the problem, had avoided it on most visits to the store, but on this occasion was unable to do so. He says nothing of the duty of the Respondent to have properly repaired the ramp in a timely manner. He then attributes 50% liability to the Appellant, when this type of apportionment under the said Act, should only be done where there is not sufficient evidence to apportion it otherwise. I find that the Judge erred in law in this regard and did not apply the proper legal principles in making such a finding. In Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 1997 2374 (BC CA), 43 B.C.L.R. (3d) 219 (BCCA), the Court found that, “Such an approach to apportionment is wrong at law” when the court is assessing degrees of fault and not degrees of causation.

[55] There was sufficient evidence before the Judge to properly apportion negligence without taking a liberal view and applying it 50:50. The Appellant was using the ramp for the purpose it was intended, namely for entering and exiting the Respondent’s store. In my view, at best, a momentary lapse of looking up instead of down does not at law make the Appellant 50% liable. See: Baker v. York (Regional Municipality) (2006), 2006 81804 (ON SC), 84 O.R. (3d) 279 (O.S.C.J.).

[56] It is the Appellant’s position that no negligence should be attributed to her for her injuries. While, as I have said, I do not see the 50% negligence attributed to the Appellant as tenable at law in the circumstances of this case, I do not see it as a case for zero contributory negligence. The Appellant knew of the problem with the ramp and had historically tried to avoid it. She used the ramp because the regular parking the Appellant and her husband had used was not available. Such knowledge should have caused the Appellant to be on a careful lookout at all times. Hers, however, was a monetary lapse of attention. Given that fact, the Appellant should only have been held 15% responsible for the mishap under these circumstances. The Judgment should be varied accordingly.

[57] I find that the Judge’s assessment of general damages at $15,000 so inordinately low in comparison to the injuries suffered by the Appellant, that it must be varied. In this respect I find that he made a wholly erroneous estimate of damages, which amounted to a palpable and overriding error. As indicated above, he appears to have ignored much of the evidence before him in respect of what injuries were actually caused by the accident. The Judge’s award of damages must therefore be set aside pursuant to s.119 of the Courts of Justice Act, supra and assessed by this Court. It would be an injustice to send the matter back for a new Trial, given the Appellant’s age and state of health. The medical evidence was before the Court so there is no need to have it re-heard. Under s.119 of the Courts of Justice Act, the Court may, if it considers it just, substitute its own assessment of the damages. In my view, in the circumstances of this case, this is the just thing to do. The Judge found that the Appellant was entitled to damages, but erred in how he apportioned negligence, and erred in not explaining how he reached such an inordinately low amount. The Court has the power to re-assess such damages, and has done so. See: Banihashen v. Bakhtiari, supra.

[58] The Appellant provided us with a Chart of General Damages in respect of cases of injuries she says were similar to hers. The awards of damages were shown when the case was decided and those damages were up-dated to what they would equal today. Three of the four cases related to persons who were working and were unable to return to work. One was where the prospects for surgery were poor, and one was where 2 surgical procedures were performed, which did not alleviate the plaintiff’s weakness in the shoulder and right arm continued. In each case the plaintiffs were younger than the Appellant.

[59] On the other hand, all the evidence before the Judge shows that the Appellant had been very active and in reasonably good health before the trip and fall. I am of the view that the Appellant’s injuries and resulting physical problems are similar to those of the plaintiff in Barniske v. Mohamed, [2003] O.J. No. 810 (Ont. S.C.J.), where the plaintiff suffered a concussion, soft tissue injuries, shoulder abrasions, other abrasions and was diagnosed with rotator cuff tendonitis with an overlap problem with cervical spine mechanical pain. Nine years post-accident this 30-year old plaintiff continued to suffer stiffness and irritation along the collarbone and shoulder and neck, which limited his ordinary work and recreational activities. The Court in that case awarded the plaintiff general damages of $55,000, which translates into $58,352.55 in today’s dollars, says the Appellant.

[60] There is a further comparator in Anderson v. Mill Town Trucking Ltd., [2001] B.C.J. No.767 (B.C.C.A.), where a 60-year old man suffered neck, shoulder, back injuries with pain in the right shoulder beginning about 1 year post-accident. This injury led to a repair of the rotator cuff and the Judge awarded $45,000 damages, equivalent to $50,500 today.

[61] I find that the Judge misapprehended and improperly applied the provisions of the OLA and the Negligence Act and failed to accept the rational and credible evidence presented by the Appellant about her injuries and the on-going nature of them 8 years post trip and fall. I therefore set aside the Judge’s award of $15,000 and substitute damages of $45,000 in its place as of the date of the Judgment plus post-judgment interest at the said Courts of Justice Act rate.

[62] With respect to the special damages award, under s.134 of the Courts of Justice Act this Court has the power to make any order that ought to have been made or make any order that is just. I find that the Judge again made a palpable and overriding error here in ignoring the evidence of Ms. Pontello, Professor Bonsor and Mr. Migliazza, all of which showed that the Appellant required special equipment to assist her in housekeeping and that on-going housekeeping help would be needed. I would therefore vary the Judge’s special damages award as follows by allowing these additional amounts to the Appellant:

1. The sum of $750 to allow the Appellant to purchase the 6 items listed in paragraph 1 of Ms. Pontello’s recommendations.

2. For housekeeping services, and using Dr. Bonsor’s report, the Judge awarded the Appellant $7,500 in total for a period of 1 ½ years. Since I have found that the Appellant’s pain and debilitation caused by the injuries still continue and will do so in into the future, I adopt and apply the reasoning on p.10 of the Bonsor Report. Using age 80 as the loss base and using Dr. Bonsor’s calculations, I find the total award for past and future loss of housekeeping services to be $71,958. I have applied the age of 80 as being reasonable, given her medical history. I award that sum as the Appellant’s special damages for housekeeping services.

3. I accept the Judge’s finding that $4,697.19 are appropriate other damages, including OHIP, as listed in paragraph 63 of his Judgment. I would not disturb that finding.

Conclusion

[63] Judgment shall therefore issue for the Appellant in the amounts of $45,000 for general damages plus special damages for loss of housekeeping services of $71,958, plus $750, and $4,697.19 as noted above, for a total of $122,405.19, less 15% of $18,360.78 for a balance of $104,044.41. Pre-Judgment interest and Post-Judgment interest on those amounts shall be at the Courts of Justice Act rate. Orders to go accordingly.

[64] The Appellant, being successful on the Appeal, is entitled to her Costs at Trial and on the Appeal. Leave is granted to the Appellant to appeal the Costs at Trial. If the parties cannot otherwise agree on those Costs and the Costs before us, we will receive brief written submissions 30 days of the release of these Reasons, with Respondent’s submissions to be 15 days thereafter and any Reply by the Appellant 10 days after that. Counsel shall submit time dockets and an appropriate Bill of Costs under the Rules.

Greer J.

I agree ___________________________

Gans J.

Crane J.: (Dissenting):

[65] In my view, the appellant has failed to meet the tests of appellate review.

DECISION

[66] The leading case on standard of review is the Supreme Court’s decision in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, in which the court held that the standard of review on a question of law is “correctness”, on a finding of fact is “palpable and overriding error”, and on a question of mixed fact and law is also “palpable and overriding error”.

STANDARD OF REVIEW FOR FINDINGS OF FACT

[67] In 2005, the Supreme Court in H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, addressed the standard of review for findings of fact by a trial judge. According to the Supreme Court, the standard of review for findings of fact (and inferences of fact) is “palpable and overriding error”, and its equivalents include “clearly wrong”, “unreasonable” and “not reasonably supported by the evidence” (para. 110).

[68] The court stated that while the standard of review for findings of fact, has long been recognized as being “palpable and overriding error”, this description should not eradicate other formulations for the governing standard (H.L., supra, at para. 55). The court stated as follows (H.L., supra, at para. 55):

“Palpable and overriding error” is at once an elegant and expressive description of the entrenched and generally applicable standard of appellate review of the findings of fact at trial. But it should not be thought to displace alternative formulations of the governing standard. In Housen, for example, the majority (at para. 22) and the minority (at para. 103) agreed that inferences of fact at trial may be set aside on appeal if they are “clearly wrong”. Both expressions encapsulate the same principle: an appellate court will not interfere with the trial judge's findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.

[69] The Supreme Court also referred to its earlier decision in Housen, supra, and stated (H.L., supra, at para. 67):

Speaking for the majority, Iacobucci and Major JJ. held that all findings of fact, whether based on direct or circumstantial evidence, are only reviewable on a standard of palpable and overriding error. In their view, a panoply of policy reasons command appellate deference. These include the need to limit the cost of litigation and to promote the autonomy of trial proceedings, two reasons that are unrelated to the superior vantage point of the trial judge in hearing viva voce evidence.

In the following three paragraphs, the Supreme Court described, in further detail, the meaning of “palpable and overriding error” and “clearly wrong” (H.L., supra, at paras. 69, 70 and 71 respectively):

As I have already mentioned, there is no meaningful difference between a standard of “clearly wrong” and a standard of “palpable and overriding error”. As Iacobucci and Major JJ. noted in Housen, at para. 5, the New Oxford Dictionary of English (1998) defines “palpable” as “clear to the mind or plain to see” (p. 1337 (emphasis added)). Moreover, no error could lead to a reversal unless it was “overriding” in the sense that it discredits the result.

The “palpable and overriding error” standard, apart from its resonance, nevertheless helps to emphasize that one must be able to "put one's finger on" the crucial flaw, fallacy or mistake. In the words of Vancise J.A., “[t]he appellate court must be certain that the trial judge erred and must be able to identify with certainty the critical error” (Tanel, at p. 223, dissenting, though not on this issue).

And yet, again as indicated earlier, I agree with Bastarache J. that there is no meaningful difference between

concluding that it was “unreasonable” or “palpably wrong” for a trial judge to draw an inference from the facts as found by him or her and concluding that the inference was not reasonably supported by those facts.

(Housen, at para. 104)

The Ontario Court of Appeal in Waxman v. Waxman, 2004 39040 (ON CA), [2004] O.J. No. 1765 (C.A.), leave to appeal dismissed [2004] S.C.C.A. No. 291, stated that absent statutory direction to the contrary, appellate courts must defer to a trial judge’s findings of fact unless the court is satisfied that the finding was a “palpable and overriding error” (para. 291).

[70] In the following two paragraphs, the Court of Appeal described in further detail what is meant by “palpable and overriding error” (Waxman, supra, at paras. 296 and 297):

The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear: Housen at 246. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, 1996 217 (SCC), [1996] 1 S.C.R. 254 at 281.

The “palpable and overriding” standard applies to all factual findings, whether based on credibility assessment, the weighing of competing evidence, expert evidence, or the drawing of inference from primary facts (Waxman, supra, at para. 300). A trial judge’s findings of fact are entitled to a high degree of deference, and such findings are not to be set aside absent “palpable and overriding error” on the part of the trial judge (JB Printing Ltd. v. 829085 Ontario Ltd. (c.o.b. Squire Graphic Associates), [2004] O.J. No. 5014 (C.A.) at para 5).

STANDARD OF REVIEW FOR MATTERS OF LAW

[71] With respect to the standard of review for matters of law, the Ontario Court of Appeal in Amertek Inc. v. Canadian Commercial Corp., 2005 23220 (ON CA), [2005] O.J. No. 2789 (C.A.), leave to appeal dismissed [2005] S.C.C.A. No. 439, followed the Supreme Court’s decision in Housen, supra, and stated that the standard of review is “correctness” (paras. 66 and 67 respectively):

The leading case on standard of review is Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, in which the court held that the standard of review on a pure question of law is correctness whereas on findings of fact it is palpable and overriding error.

STANDARD OF REVIEW FOR QUESTIONS OF MIXED FACT AND LAW

[72] The Supreme Court in Housen, supra, at para. 26, explained the nature of mixed fact and law issues as involving the application of a legal standard to a set of facts. The court also stated that while both mixed fact and law and fact findings may involve drawing inferences, the difference between the two categories is whether the inference drawn is factual or legal.

[73] According to the Supreme Court, a finding of negligence by a trial judge involves the application of a legal standard to a set of facts, and is therefore a question of mixed fact and law (Housen, supra, at para. 36). The Supreme Court stated the following with respect to the standard of review for questions of mixed fact and law (Housen, supra at para. 36):

Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of "mixed law and fact". Where the legal principle is not readily extricable, then the matter is one of "mixed law and fact" and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge's interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.

[74] In JB Printing Ltd. v. 829085 Ontario Ltd. (c.o.b. Squire Graphic Associates), [2004] O.J. No. 5014 (C.A.) at paras. 6 and 7, the Ontario Court of Appeal stated that negligent cases require findings of fact and law, and citing to Housen, supra, such findings are subject to review only in the presence of a “palpable and overriding error”. Other decisions by the Ontario Court of Appeal, since Housen, supra, have also stated that a trial judge’s findings on questions of mixed fact and law can be interfered with only if there is a “palpable and overriding error” (Young v. Ontario (Minister of Finance), 2003 23640 (ON CA), [2003] O.J. No. 4832 (C.A.), leave to appeal dismissed [2004] S.C.C.A. No. 52; Mercier v. Royal & Sunalliance Insurance Co. of Canada, 2004 5551 (ON CA), [2004] O.J. No. 3264 (C.A.)).

[75] The Ontario Court of Appeal in Algoma Steel Inc. v. Union Gas Ltd., 2003 30833 (ON CA), [2003] O.J. No. 71 (C.A.) at para. 19, stated that while a less deferential standard may be appropriate with respect to questions of mixed fact and law, a standard of correctness is not appropriate for such questions. The Court of Appeal in Algoma Steel, supra, at para. 19, elaborated on this point by citing to the Supreme Court’s decision in Housen, supra, as follows:

However, where the error does not amount to an error of law, a higher standard is mandated. Where the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrong conclusion, then this amounts to an error of mixed law and fact and is subject to a more stringent standard of review: Southam, 1997 385 (SCC), 144 D.L.R. (4th) 1, supra, at paras. 41 and 45. While easy to state, this distinction can be difficult in practice because matters of mixed law and fact fall along a spectrum of particularity. This difficulty was pointed out in Southam, supra, at para. 37:

... the matrices of facts at issue in some cases are so particular, indeed so unique, that decisions about whether they satisfy legal tests do not have any great precedential value. If a court were to decide that driving at a certain speed on a certain road under certain conditions was negligent, its decision would not have any great value as a precedent. In short, as the level of generality of the challenged proposition approaches utter particularity, the matter approaches pure application, and hence draws nigh to being an unqualified question of mixed law and fact. See R.P. Kerans, Standards of Review Employed by Appellate Courts (1994), at pp. 103-108. Of course, it is not easy to say precisely where the line should be drawn; though in most cases it should be sufficiently clear whether the dispute is over a general proposition that might qualify as a principle of law or over a very particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future [emphasis added].

[76] In Housen, the court was considering the standard of review in respect of a finding of negligence. Iacobucci and Major JJ. said the following at para. 29:

When the question of mixed fact and law at issue is a finding of negligence, this Court has held that a finding of negligence by the trial judge should be deferred to by appellate courts. In Jaegli Enterprises Ltd. v. Taylor, 1981 26 (SCC), [1981] 2 S.C.R. 2, at p. 4, Dickson J. (as he then was) set aside the holding of the British Columbia Court of Appeal that the trial judge had erred in his findings of negligence on the basis that “it is wrong for an appellate court to set aside a trial judgment where there is not palpable and overriding error, and the only point at issue is the interpretation of the evidence as a whole” (see also Schreiber Brothers Ltd. v. Currie Products Ltd., 1980 11 (SCC), [1980] 2 S.C.R. 78, at p. 84).

THE STANDARD OF REVIEW ON A TRIAL JUDGE’S APPORTIONMENT OF FAULT

[77] The Supreme Court in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, stated that a negligence case requires findings of fact and law, and that the standard of review for such findings requires a stringent standard (paras. 29 and 30 respectively):

In Jaegli Enterprises Ltd. v. Taylor, 1981 26 (SCC), [1981] 2 S.C.R. 2, at p. 4, Dickson J. (as he then was) set aside the holding of the British Columbia Court of Appeal that the trial judge had erred in his finding of negligence on the basis that “it is wrong for an appellate court to set aside a trial judgment where there is not palpable and overriding error, and the only point at issue is the interpretation of the evidence as a whole” (see also Schreiber Brothers Ltd. v. Currie Products Ltd., 1980 11 (SCC), [1980] 2 S.C.R. 78, at p. 84).

This more stringent standard of review for findings of negligence is appropriate, given that findings of negligence at the trial level can also be made by juries. If the standard were instead correctness, this would result in the appellate court assessing even jury findings of negligence on a correctness standard. At present, absent misdirection on law by the trial judge, such review is not available. The general rule is that courts accord great deference to a jury’s findings in civil negligence proceedings:

The principle has been laid down in many judgments of this Court to this effect, that the verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it.

(McCannell v. McLean, 1937 1 (SCC), [1937] S.C.R. 341, at p. 343)

[78] In Jaegli Enterprises Limited v. Taylor (Guardian ad litem of), 1981 26 (SCC), [1981] 2 S.C.R. 2, the plaintiffs were successful at trial in receiving a judgment against one of the defendants for negligence; however, the action against several other defendants was dismissed. On appeal, liability was apportioned against defendant A and defendant B jointly and severally. The Supreme Court allowed the appeal by defendant A, stating that it was wrong for an appellate court to set aside a trial judgment where there was no “palpable and overriding error”. The court set aside the British Columbia Court of Appeal’s decision so far as it apportioned liability to defendant A.

[79] The British Columbia Court of Appeal in Ayers v. Singh, 1997 3410 (BC CA), [1997] B.C.J. No. 350 (B.C.C.A.) at para. 14, explained the Supreme Court’s decision in Jaegli Enterprises Limited, supra, as follows:

The decisions of trial judges in relation to questions of negligence and contributory negligence are matters exclusively for the trial judge, as was made clear by the Supreme Court of Canada in Jaegli Enterprises Ltd. v. Ankenman (1981), 1981 26 (SCC), 124 D.L.R. (3d) 415.

[80] In Ayers, supra, at para 8, the court dismissed the appellant’s appeal with respect to the trial judge’s finding that the defendant was negligent and that the plaintiff was not contributorily negligent. The court phrased the issue as whether the trial judge “made a palpable and overriding error in his consideration of the question of contributory negligence” (para. 9).

STATEMENT OF LAW ON NEGLIGENCE

[81] A cause of action for negligence arises if the following elements are present: (1) the claimant must suffer some damage; (2) the damage suffered must be caused by the conduct of the defendant; (3) the defendant’s conduct must be negligent, that is, in breach of the standard of care set by the law; (4) there must be a duty recognized by the law to avoid this damage; (5) the conduct of the defendant must be a proximate cause of the loss or, stated in another way, the damage should not be too remote a result of the defendant’s conduct; (6) the conduct of the plaintiff must not be guilty of contributory negligence and must not voluntarily assume the risk (Allen Linden and Bruce Feldthusen, Canadian Tort Law 8^th ed. (Canada: LexisNexis Canada Inc., 2006)).

[82] The Supreme Court addressed the issues of foreseeability and causation in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333. The Supreme Court reaffirmed that liability for negligence requires breach of a duty of care arising from a reasonably foreseeable risk of harm; the court stated as follows (para. 6):

Liability for negligence requires breach of a duty of care arising from a reasonably foreseeable risk of harm to one person, created by the act or omission of another: Jordan House Ltd. v. Menow, 1973 16 (SCC), [1974] S.C.R. 239, at p. 247, per Laskin J. (as he then was). By enforcing reasonable standards of conduct, so as to prevent the creation of reasonably foreseeable risks of harm, tort law serves as a disincentive to risk-creating behaviour: Stewart v. Pettie, 1995 147 (SCC), [1995] 1 S.C.R. 131, at para. 50, per Major J. The major elements of a tort action -- duty, breach causing injury and cause -- reflect "the principle of moral wrongdoing which is the basis of the negligence law": L. Klar"Downsizing Torts", in N. J. Mullany and A. M. Linden, eds., Torts Tomorrow: A Tribute to John Fleming (1998), 305, at p. 307.

[83] The Supreme Court also reaffirmed that the test for determining causation remains the “but for” test (Resurfice Corp., supra, at para. 21):

First, the basic test for determining causation remains the "but for" test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory [page343] negligence may be apportioned, as permitted by statute.

THE “BUT FOR” TEST AND “MATERIAL CONTRIBUTION” TEST IN ATHEY v. LEONATI

[84] Major J. for the Supreme Court in Athey v. Leonati, 1996 183 (SCC), [1996] S.C.J. No. 102 at paras. 14 and 15, stated that the general test for causation is the “but for” test, which requires the plaintiff to demonstrate that the injury would not have occurred but for the negligence of the defendant. However, the “but for” test is unworkable in some cases, therefore the court has recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury.

[85] It is to be in mind that the “material contribution” test discussed by Major J. in Athey, supra, refers to the extent of causation to determine liability, not the extent of damages.

[86] In 2007, the Supreme Court in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, elaborated on the “but for” test and “material contribution” test in Athey v. Leonati. The Supreme Court in Resurfice Corp., supra, at para. 25, stated that the “material contribution” test applies only in special circumstances. Special circumstances require two requirements: (1) it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test, and (2) it must be clear that the defendant breached a duty of care owed to the plaintiff thereby exposing the plaintiff to an unreasonable risk of injury and the plaintiff must have suffered that form of injury. The court further stated, at para. 25, “In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the ‘but for’ test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a "but for" approach.”

[87] The Supreme Court provided the following two examples where the “material contribution” test would apply (Resurfice Corp., supra, at paras. 27 and 28):

One situation requiring an exception to the “but for” test is the situation where it is impossible to say which of two tortious sources caused the injury, as where two shots are carelessly fired at the victim, but it is impossible to say which shot injured him: Cook v. Lewis, 1951 26 (SCC), [1951] S.C.R. 830. Provided that it is established that each of the defendants carelessly or negligently created an unreasonable risk of that type of injury that the plaintiff in fact suffered (i.e. carelessly or negligently fired a shot that could have caused the injury), a material contribution test may be appropriately applied.

A second situation requiring an exception to the “but for” test may be where it is impossible to prove what a particular person in the causal chain would have done had the defendant not committed a negligent act or omission, thus breaking the “but for” chain of causation. For example, although there was no need to rely on the “material contribution” test in Walker Estate v. York Finch General Hospital, this Court indicated that it could be used where it was impossible to prove that the donor [page345] whose tainted blood infected the plaintiff would not have given blood if the defendant had properly warned him against donating blood. Once again, the impossibility of establishing causation and the element of injury-related risk created by the defendant are central. [emphasis added]

[88] The Ontario Superior Court in Penny v. Royal & Sun Alliance Insurance Co. of Canada, [2006] O.J. No. 2858 (S.C.J.) at para. 54, stated that the decision in Athey, supra, did not change the law of causation but rather established an alternative approach to establishing causation when the “but for” test is unworkable on the facts of a particular case.

[89] The British Columbia Court of Appeal in T.W.N.A. v. Clarke, 2003 BCCA 670, [2003] B.C.J. No. 2747 (B.C.C.A.) at para. 16, highlighted the distinction between the cause of loss and damage versus the assessment of damages as stated in Athey, supra:

Determining the cause of loss and damage must be kept separate from the assessment of damages to compensate for that loss and damage, since different principles govern the two questions. The analytical distinction between causation and compensation may be illustrated by reference to Athey v. Leonati. The appellant in that case suffered a disc herniation as a result of the combined effect of a pre-existing disposition and injuries he had sustained in two motor vehicle accidents. Major J., speaking for the court, distinguished between causation and the assessment of damages in his summary of the applicable principles:

[41] ...If the injuries sustained in the motor vehicle accidents caused or contributed to the disc herniation, then the defendants are fully liable for the damages flowing from the herniation. The plaintiff must prove causation by meeting the "but for" or material contribution test. Future or hypothetical events can be factored into the calculation of damages according to degrees of probability, but causation of the injury must be determined to be proven or not proven.

DECISION

[90] The trial judge correctly set the test for the determination of duty of care with regard to the defendant as that under section 3 of the Occupiers Liability Act, R.S.O. c. O.2. The trial judge found liability against the defendant upon a breach of its duty of care thereunder. The trial judge correctly directed himself on the saving provisions with respect to the occupier’s duty of care under section 4 of the Occupiers Liability Act as determined in the jurisprudence (Waldick v. Malcolm (1991), 1991 71 (SCC), 83 D.L.R. (4th) 114 (S.C.C.); Crocker v. Sundance Northwest Resorts (1988), 1988 45 (SCC), 51 D.L.R (4th) 321 (S.C.C.). The trial judge correctly directed himself through section 9(3) of the Occupiers Liability Act to the Negligence Act, R.S.O. 1990, c. N.1.

[91] The trial judge correctly noted that the determination of contributory negligence is a factual issue. In cases tried by a judge sitting with a jury, a finding of contributory negligence is within the sole jurisdiction of the jury. Here, the trial judge made findings of fact, each of which is supported by evidence. Those findings of fact include: that the danger of tripping existed, but the danger was obvious; the danger could have been easily avoided; the color difference made the rise in the ramp standout; many store customers (“the main door of a major enterprise”, paragraph 24) traversed this risk without difficulty; “a minimum of care would see one past the danger”; the plaintiff had fixed in her mind that the elevation on the ramp was a risk to her of tripping -- to the extent that as a frequent customer of the defendant store, she had, on some occasions, taken an alternative route through the rear doors.

[92] The trial judge found the risk was easily seen by the plaintiff, that she knew of it and that with reasonable care for her own safety, she would have stepped over this one inch to 1½ inch elevation.

[93] I conclude there was evidence to support the trial judge's finding of contributory negligence.

[94] The judge having found that the defendant was negligent under the Occupiers Liability Act and the plaintiff was negligent under the Negligence Act, then addressed the issue of proportional negligence.

[95] Somewhat as an aside, in reference to paragraph 22 of the reasons for judgment, it is my view that the trial judge was merely making his own observation that the jurisprudence has found that balancing is required between the strict wording of section 4(1) of the Occupiers Liability Act and the development of the concept of fault apportionment.

[96] The trial judge apportioned fault equally between the plaintiff and the defendant. The trial judge does not say he could not determine proportion of fault (s.4 Negligence Act). Indeed, he specifically states that he allocates the negligence.

[97] I cannot in conscience find that a 50/50 allocation of fault violates the standard of appellate review. The trial judge heard the evidence, he assessed the witnesses, and clearly in this case there was negligence on each of the parties as found on the facts by the trial judge. There is no palpable and overriding error. I would not interfere to impose some other allocation of fault; to do so would in effect, require the setting aside of the findings of fact on the issue of liability made by the trial judge. There is nothing exceptional or extraordinary about this case. (Sparks v. Thompson, 1974 146 (SCC), [1975] 1 S.C.R. 618 at paragraphs 15, 16, and 22; Latta vs. Ontario, [2005] O.J. No. 4736 (C.A.); Eichmanis (Litigation guardian of) v. Prystay (Children’s Lawyer for) (2004), 2004 18378 (ON CA), 185 O.A.C. 97 (Ont. C.A.)).

[98] Logically speaking, it is just as likely as not, that the zero proportion of negligence attributed to the plaintiff in Waldick v. Malcolm, supra, is due to the reluctance, indeed the disinclination, of the appellate courts to interfere with the apportionment decision of the trial judge, as it is that decision made by the trial judge was approved on an independent assessment by each of appellate tribunals.

Blair J.A. refused, rightly in my view, to revisit the findings of Austin J. as to the issue of contributory negligence.

S.C.C., supra, @ 130

DAMAGES

[99] It is readily apparent that the determination of the damages assessment was pivotal on the credibility of the plaintiff’s evidence. The trial judge noted in his Reasons on Costs “that almost the entire eight days of trial were taken up with the evidence of the plaintiff” (paragraph 23). The issue upon which the appeal on damages turns is whether or not the trial judge committed an appealable error upon his finding of fact that the appellant “did not sustain any musculoskeletal damage to her right shoulder as a result of a fall” (paragraph 62, Reasons for Judgment).

[100] My task is to review the Reasons for Judgment with the Appeal Record to determine whether or not there is evidence to support the finding of the trial judge. The evidence in part is that Mrs. Litwinenko's right shoulder was examined in hospital following her fall and the findings of the examining orthopedic surgeon were that her shoulder was pain free with a full range of movement. The clinical notes and records of the appellant’s general practitioner (deceased at the time of trial) showed no recorded shoulder complaints until April 30, 1999. The appellant, an elderly lady, presented at trial with a medical record of periodic arthritis and shoulder symptoms predating the subject fall. Dr. Lloyd, the orthopedic surgeon retained by the appellant’s solicitors for assessment and opinion, stated at trial that the appellant’s right shoulder complaints could only be related to the trauma of the subject fall if the appellant presented with immediate shoulder complaints following that fall. Dr. Lloyd implied that the appellant had a defect in her right rotor cuff, a consequence of a prior deterioration that gradually evolved. Each of the medical specialists retained by the respondent's solicitors for assessment and opinion concluded that the rotor cuff and right shoulder complaints were not related to the subject fall.

[101] We are not trying this case, and it is not for us to select the evidence upon which findings of fact are made. I conclude that there is credible evidence to support these critical findings of fact made by the trial judge. Consequently, I find no appealable error on the findings.

ASSESSMENT OF DAMAGES

[102] The trial judge indicated that he was persuaded by the appellant’s counsel at trial that the accepted claim for loss of housekeeping capacity should be assessed separately than the general damage assessment non-pecuniary loss, notwithstanding that the housekeeping claim is one of non-pecuniary loss to this appellant at the time of trial. At paragraph 70 of the Reasons for Judgment. The trial judge says the following:

In assessing the general damages I am mindful that having allowed a specific sum for the loss of housekeeping capacity, an item previously included in general damages as the loss of an amenity of life, the "standard" general damage figure should be reduced although not necessarily by the amount allowed under special damages. On the other hand, I am mindful of the fact that time lost as a result of injuries is even more important to the aged than to those who are younger.

[103] The trial judge found symptoms attributed to the subject trip and fall to have lasted approximately 1½ years, to the point where the appellant had more or less recovered to her pre-accident state, excluding symptoms attributed to age and non-related arthritis. Given these findings of fact, the assessment of $15,000.00 together with the loss of housekeeping capacity of $12,000.00 is not so inordinately low as to constitute an error in law.

[104] I would dismiss the appeal.

Crane J.

Date Released: May 8, 2008

COURT FILE NO.: DC-06-20

DATE: 20080508

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

GREER, CRANE and GANS JJ.

B E T W E E N:

SLAVKA LITWINENKO

• AND -

BEAVER LUMBER COMPANY LTD.

REASONS ON APPEAL

Greer J.

Date Released: May 8, 2008