ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-08-0030-00
DATE: 20120201
B E T W E E N:
Derek Enros and Michelle Enros
M. A. Klaiman, for the Plaintiffs
Plaintiffs
- and -
Adelaide Investments Inc. c.o.b. My Apartment Mississauga, Dubwiser Holdings Inc. c.o.b. My Apartment Mississauga and John Doe
Unrepresented and not appearing
Defendants
HEARD: January 11 and 12, 2012
REASONS FOR JUDGMENT
MacKenzie J.
Introduction
[ 1 ] This is a case wherein the plaintiffs claim damages against the defendants regarding an incident that occurred on or about May 6, 2006 while the plaintiffs were customers at the corporate defendants’ nightclub/bar in Mississauga (“the bar”).
[ 2 ] The damages claimed by the plaintiff Mr. Enros relate to personal injuries suffered by him when he was assaulted by other customers in the bar. The damages claimed by Mrs. Enros are founded under s. 61, Family Law Act , R.S.O. 1990, c.C.43 , and relate to loss of care, companionship and guidance and to her personal care for and of Mr. Enros necessitated by the personal injuries arising from the assaultive behaviour of the other customers.
Background
[ 3 ] Briefly, the plaintiffs and a small group of their friends were enjoying a social evening at the bar on May 6, 2006. In the latter part of the evening, Mr. Enros was accosted by three males, one of whom became very vocal in a hostile tone and manner, in effect accusing Mr. Enros of ‘disrespecting’ him because of what Mr. Enros described as an inadvertent jostling or bumping into such male as they were both walking on the crowded floor of the bar.
[ 4 ] In the result, one or all of the three males initiated an assault on Mr. Enros, knocking him to the floor, pinning him to the floor, and raining blows to his upper body. One of Mr. Enros’ friends in his group attempted to assist and defend Mr. Enros and, in turn, he was assaulted. A general melee ensued, albeit of short duration. The three aggressors departed the bar and have never been identified and thus named as defendants herein.
[ 5 ] Mr. Enros was left with bruising and swelling injuries on his head and upper body, but his most significantly serious and disabling injury was to his right ankle. This injury occurred when he was knocked off his feet and was pinned to the floor. The injury consisted of a comminuted fracture of his right ankle which required a surgical procedure within the following 24 hours of the incident. The procedure entailed the placement of a metal plate and numerous screws to stabilize the ankle.
[ 6 ] As a result, he was bedridden in a cast for some 6-8 weeks and was restricted completely from any weight-bearing activities during that period. About one year later, he was able to resume his work duties as a Corrections Officer but on a lighter scale; however, he continues to suffer pain and discomfort not only in his occupational activity but in his reduced involvement in his former recreational activities of coaching juvenile sports, namely, lacrosse and football.
Analysis
Liability and procedural aspects
[ 7 ] I begin by noting the basis of liability and procedural aspects of the case.
[ 8 ] The claim against the corporate defendants as owners/operators of the bar is founded on alleged breaches of their responsibilities under the Liquor Licence Act , R.S.O. 1990, c.L.19 and the Occupiers’ Liability Act , R.S.O. 1990, c.O.2.
[ 9 ] In essence, the plaintiffs allege that Mr. Enros’ injuries occurred by virtue of the corporate defendants’ failure to ensure a safe and social environment for customers of the bar. Such failure consisted of failing to monitor the alcohol consumption of customers and thereby preventing intoxicated customers from possibly fighting or otherwise harming other customers. In addition, it is alleged that once the above melee broke out, the bar’s security staff did nothing to intervene or attempt to intervene to end the melee.
[ 10 ] I turn now to the procedural aspects. The corporate defendants retained counsel who filed a statement of defence in answer to these allegations and served a jury notice. Thereafter, by order dated April 21, 2011, Whitaker J. removed the defendants’ counsel as solicitor of record on counsel’s motion.
[ 11 ] Paragraph 3 of such order provided for the defendants as corporations to either appoint new counsel or obtain an order under Rule 15.01 (2) , of the Rules of Civil Procedure , R.R.O. 1990, O. Reg. 194, permitting a person to represent the corporations. These options were to be completed within 30 days and in default, the order provided in para. 4 as follows:
- THIS COURT ORDERS that if the corporate defendant(s) fail to comply with paragraph 3 of this Order:
(a) the court may dismiss its proceedings or strike its defence;
[ 12 ] The defendants have failed to comply with the April 21, 2011 order since neither of these options has been exercised.
[ 13 ] Before proceeding with the trial, counsel for the plaintiffs moved for an order striking both the defence and the jury notice. In default of appearance by the defendants to the plaintiff’s motion to strike such order was granted on January 12, 2012. In the result, the trial by judge alone proceeded as an undefended action, in pursuance of Rule 19.01(2)(a) and Rule 19.02(1)(a) of the Rules of Civil Procedure . In these circumstances, the allegations of fact in the statement of claim were deemed to be true.
Analysis:
The Evidence
[ 14 ] The evidence comprised of the testimony of the plaintiffs, Mr. Enros and Mrs. Enros, some members of the group in attendance at the bar who witnessed different aspects of the incident, and Mr. Enros’ work supervisor. In addition, the hospital records and surgeon’s report relating to the injuries and corrective measures were filed as exhibits.
[ 15 ] Mr. Enros testified as to the circumstances of the incident giving rise to his injuries.
[ 16 ] He described in detail his chance physical encounter by way of bumping into another male person while walking across the floor of the bar. He apologized to such person: he said he received no response from such person and continued on his path.
[ 17 ] A few minutes later, while on the dance floor with Mrs. Enros, she asked him whether he knew any of the three men who were standing at the side of the dance floor staring intently at them. He took a quick look at the persons described by his wife; he did not recognize any of them at the time and indicated to her that he did not know them. Another few minutes passed and he observed the three men who appeared to be gesturing to him to leave the floor and come to where they were standing close to the entrance foyer of the bar. He stated they appeared to be agitated and were speaking to or at him, but due to the music and noise in the bar, he was unable to hear what they were saying. He observed one of the men pointing towards the exit doors of the bar, but Mr. Enros was unsure of what the man meant or wanted by such action. Shortly thereafter, one of the individuals in the company of the other two persons came onto the dance floor and, in a highly agitated and angry manner, told Mr. Enros that he had “disrespected” him. At this point, he and a friend went to an area near the foyer away from the dance floor where the man who had spoken to him and his two friends were clearly upset and angry, calling him names and acting in a threatening or hostile manner. He said he then asked the man what he had done to disrespect the man and a dialogue ensued between the Mr. Enros and this man for a few minutes. He stated that he had noticed that during this dialogue some of the bars’ staff i.e. doorman, were close by observing the scene. He leaned forward to the man who was speaking to him to better hear what he was saying and when he leaned forward, one of the other two males punched him three or four times about the head and on the temple of the left side of his head. In the course of this assault, he lost his footing and twisted his leg, falling to the floor. During this assault, he was pinned to the floor by one or more of his assailants and believed he was struck in varying fashions by them or some of them at least a dozen times. After the pummelling in which one of his friends Mr. Schutz intervened (and was himself stuck on the head with a beer bottle), he was lifted from the floor but was unable to put any weight on his right leg. He also noted that during the assault, none of the four or five doormen or staff who were in the vicinity of the foyer where the melee occurred intervened; however, one or others of the staff directed them not to leave the bar since the three men who together or individually assaulted Mr. Enros were outside the bar.
[ 18 ] In due course, he left the bar in the company of his wife who drove their vehicle to their home, arriving there about 1:00 a.m.
[ 19 ] The next morning, the plaintiffs decided that Mr. Enros should attend at the emergency room of the local hospital due to the pain and appearance of his right ankle.
[ 20 ] At the hospital he underwent an operation of approximately 6 hours. An orthopaedic surgeon assessed the ankle fracture and stabilized the ankle by way of a plate and screws. Although he was discharged from the hospital that day in a soft cast, he was instructed that he could have no weight-bearing on his right leg for approximately 30 days and he was required to give himself daily injections with a blood thinner to prevent post-operative blood clotting and its potential dangers.
[ 21 ] Mr. Enros was essentially bedridden for the one month period and was unable to have any mobility, even with crutches, until approximately 6-8 weeks after the incident.
[ 22 ] He required extra-strength pain-killers, such as Percocet and Tylenol 3, to combat his constant pain and discomfort. After the 6-8 week period, the soft cast was removed but even with its removal and his increasing use of crutches, he never went downstairs from his bedroom on the second storey unless it was absolutely necessary.
[ 23 ] In the beginning of August 2006 approximately three months after the incident, he commenced a physiotherapy program which enabled him to put some weight on his right leg, having approximately four therapy sessions per week. He continued with a home physiotherapy program and returned to light duties at his workplace with the Toronto West Detention Centre on the first work day following Labour Day 2006.
[ 24 ] As of the first anniversary date of the incident, that is, May 2007, he stated his pain was more or less constant although it was more intense at work when he would spend a considerable time on his feet. He said he had lost the capacity to indulge in many of his social activities and domestic chores and duties. In this regard, he noted that prior to this incident, he had been actively involved in sports and particularly in coaching children’s lacrosse and football teams, as well as playing golf with friends. He further noted that before the incident he looked after the lawn care and snow shovelling at his residence. As a result of the accident, he had an approximate two year hiatus in his coaching activities, but was never able to return to his golf activities with his friends or any of his other activities because of a lack of stability in his right ankle. There had also been an approximate one year hiatus in his doing the domestic chores and that even walking was limited due to ongoing discomfort arising from his walking excursions. He described the initial difficult period when he was bedridden in terms of the burden that it had placed on this wife looking after him on an extensive care basis in addition to her other employment and domestic duties.
[ 25 ] On the issue of his economic losses, he pointed out that he had enjoyed regular increases in his income as a Corrections Officer; he referred to his various income tax returns commencing in taxation year 2001. He stated he became a fulltime corrections officer in October of 2005 and this change in his status created additional benefits, one of which was that he had a priority for overtime compensation. In this regard, his income tax returns from the year 2007 through and including 2010 disclosed a significant increase in income over the year 2005 ($92,000.00), and the year 2006 (being the year of his absence for approximately three months ($80,000.00). In taxation year 2007, his income tax return disclosed $116,000.00; in 2008, $118,000.00; in 2009 $119,000.00; and in 2010, $121,000.00. Mr. Enros testifies that the reasons for these increases is that during the years in question, he had been remunerated on the basis of approximately 1,000 hours of overtime paid at 1.5 times his normal hourly rate. He points out that as a full-time Corrections Officer, he has a priority claim to any overtime that becomes available and that the experience for the periods in question is overtime remuneration of approximately $1,000.00 per year. He stated he has no present indication that this overtime remuneration will change significantly in the future.
[ 26 ] On the question of his ongoing pain and discomfort from the injury since May 2006, I asked him to give an estimate of his pain level on a scale of 0-10, 0 being the absence of pain, and 10 being the maximum bearable pain level. I directed him to attempt to fix an “average” pain level taking into account all of his activities, both work and otherwise over the intervening four-five year period.
[ 27 ] He considered the question and said that his best guess was probably a figure of 2 max 3, within the 0-10 pain range.
[ 28 ] The plaintiffs also called as witnesses two of Mr. Enros’ friends and co-workers who were present at the incident, being Mr. Schutz and Mr. McEvoy. It is not necessary to review their evidence in that both these gentlemen, in the absence of each other pursuant to a witness exclusion order, confirmed in all material aspects the events giving rise to the incident and the particulars of the assault that was made upon Mr. Enros.
[ 29 ] The final witness for the plaintiff was Mrs. Enros. She also confirmed in all material aspects the evidence of Mr. Enros and the other two witnesses respecting the incident. She also testified at length about the post-operative treatment and circumstances of Mr. Enros and her involvement as caregiver to him during his six weeks of bedridden immobility and his subsequent rehabilitation to the point of his return to work duties in September of 2006. She emphasized that during the approximate six weeks of his immobility, things were very difficult in their relations; she noted that Mr. Enros was frustrated and angry at his situation of immobility, particularly in light of his previous regime of physical activities and that she found the situation extremely stressful in addition to her work and domestic duties in maintaining a companionable attitude and relations with Mr. Enros during this six week period. She indicated their interpersonal relations had ameliorated with the termination of his immobility and that they had recovered the good relationship that existed before the incident. She did, however, emphasize that the physical after-effects, in terms of pain and discomfort from the ankle injury, had not totally dissipated and that in some of his activities, it had become necessary for him to adopt special footwear so as to lessen the pain and discomfort from extended walking both in and out of his employment activities.
Assessment of Damages
[ 30 ] I turn now to the issues of damages.
[ 31 ] The general (non-economic) head of damages is intended to give solace and compensation for pain and suffering and loss of the amenities of life. I am persuaded on the evidence that Mr. Enros who is now 40 years of age is likely to suffer continual pain and discomfort in his right ankle. I note in passing that the 2007 report of the orthopaedic surgeon who did the corrective surgery on Mr. Enros (Dr. Bischoff; Exhibit 1-A) indicated, among other things, that notwithstanding any improvements since the 2006 surgery, he did “not believe that he [Mr. Enros] will regain 100% of his pre-injury motion and that he [Mr. Enros] will be left with occasional aching, stiffness, and even swelling in the future.” These reservations by the orthopaedic surgeon less than a year after the incident have in fact been borne out by the evidence elicited at trial.
[ 32 ] I deal now with the assessment of general damage (non-economic) for Mr. Enros.
[ 33 ] I am persuaded that an appropriate award under this head of damages for pain and suffering, past, present and prospective, plus his loss of the amenities of life, is $50,000.00 and I accordingly award damages in this amount for this head of damages.
[ 34 ] On the general damages (economic), his counsel, Mr. Klaiman, has established Mr. Enros’ income loss on the following basis.
[ 35 ] He subtracts the income for the 2006 year, being the year of the accident, in the amount of $80,556.00 from his income of $116,098.00 in the year 2007, leaving a difference of $35,542.00. Counsel then takes the 2007 income of $116,098.00 and adds to it the 2008 income of $118,013.00, giving a total income for these two years of $234,111.00. He then takes an arithmetic average of the last mentioned sum by dividing it by the number two, resulting in an annual average income of $117,055.50. In the next step, he subtracts the 2006 income of $80,556.00 from this arithmetic average of $117,055.50, leaving a difference of $36,499.50.
[ 36 ] Counsel submits that this shows on an average basis the income loss from his employment in the year 2006 for the two succeeding years.
[ 37 ] As previously noted, Mr. Enros’ incomes for the years 2009 and 2010 exceed the $118, 013.00 by approximately $1-2,000.00, but counsel submits that an average should be calculated on the basis of two years following the year of the incident. In the result, counsel submits that the appropriate calculation of Mr. Enros’ income loss is $36,499.50 (rounded to $36,500.00).
[ 38 ] I find no error in principle in this approach. The disparity between his 2006 income when he became entitled to the extra compensation afforded by approximately 1,000 hours of overtime is clearly reflected in the reported incomes for the years 2007 and 2008. In the result, I fix the damages for economic loss representing the general (economic) head of damages at $36,500.00.
[ 39 ] I turn finally to the assessment of damages for Mrs. Enros under s.61 Family Law Act .
[ 40 ] I accept her evidence as well as the evidence of Mr. Enros that for a brief period of time, she suffered an acute loss of the care, companionship and guidance she would otherwise have received from Mr. Enros over the approximate three month period if he had not suffered the injury in question. There is no question that the loss of care, companionship and guidance at this period of time was marked and significant, but it was of limited duration. More importantly for the parties, that situation has ameliorated and did so within a relatively brief time following his return to some activity from his immobile state. I accordingly fix the award of damages under s. 61 of the Family Law Act , to Mrs. Enros in the amount at $3,000.00.
Costs
[ 41 ] I now address the issue of costs. Mr. Klaiman seeks costs on the partial indemnity scale for the entire action and this hearing which has lasted approximately a day and half. He has outlined to me his hourly rate and the value of his docketed time. On a partial indemnity basis, I fix costs at $12,000.00 relating to fees, inclusive of applicable taxes, plus disbursements as submitted in the sum of $2,517.00.
[ 42 ] The sums awarded herein shall bear both pre-and post-judgment interest in accordance with the Courts of Justice Act, such pre-judgment interest to begin on the date of plaintiff’s written notification to then counsel for the defendants that pre-judgment interest would be claimed accordingly.
[ 43 ] A judgment shall issue in accordance with the above findings and sums awarded.
MacKenzie J.
Released: February 1, 2012
Additional text
COURT FILE NO.: CV-08-0030-00
DATE: 20120201
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Derek Enros and Michelle Enros Plaintiffs - and – Adelaide Investments Inc. c.o.b. My Apartment Mississauga, Dubwiser Holdings Inc. c.o.b. My Apartment Mississauga and John Doe Defendants REASONS FOR JUDGMENT MacKenzie J.
Released: February 1, 2012