ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO: CV-11-1205-00
DATE: 2012-07-06
BETWEE N:
XI LIU AND JING YI
Stephen Firestone, for the Plaintiffs
Plaintiffs
- and -
VINCENZO DEMASI, ALSO KNOWN AS VINCE DEMASI
No one appearing for the Defendant
Defendants
HEARD: June 12, 2012
AMENDED JUDGMENT
Van Melle, J.
[ 1 ] This matter came on for trial as an undefended action as Mr. Demasi failed to file a Statement of Defence. At the outset of trial, I was advised by Mr. Firestone that the matter had been transferred to a Simplified Rules action. As well, the Statement of Claim was amended so that Mr. Liu’s claim was $90,000.00 and Ms. Yi’s claim was $15,000.00. I endorsed the Record accordingly.
[ 2 ] On July 9, 2010 the Plaintiffs were walking their dog. As they passed the Defendant’s residence at 60 Poplar Avenue, two dogs came out headed straight for the Plaintiffs’ Chihuahua. Mr. Liu scooped up the Chihuahua and the dogs turned their attention to Mr. Liu biting him several times.
[ 3 ] Mr. Liu sustained the following injuries:
- Right inner arm:
- 3 cm. bite requiring 3 staples
- Outer arm:
- 1 cm. bite requiring 2 staples
- Right forearm:
- Scratch from a bite
- Left calf:
- 2 cm. bite requiring 3 staples
- 1 cm. bite requiring 2 staples
- 2 cm. and 1 cm. bites requiring no staples
- Right flank:
- 5 - 1 cm. bites
[ 4 ] Mr. Liu was treated at the Emergency Department of Trillium Hospital where he received a tetanus shot, antibiotics and the wounds were cleaned and stapled.
[ 5 ] Liability is not an issue. There is no defence filed and I accept the Plaintiffs’ version of events.
[ 6 ] Mr. Liu claims:
a) General damages of $35,000.00 to $40,000;
b) Loss of income of $26,185.94;
c) Future scar revision surgery $866.00;
d) Out of pocket expenses of $550.00.
[ 7 ] Ms. Yi claims:
a) Housekeeping of $2,504.60;
b) FLA claim of $4,000.00 to $4,500.00.
[ 8 ] Photographs of the injuries at the time of the attack and as of May 9, 2011 were filed as exhibits. Mr. Liu testified that the scars have not changed much since the May 9 th photographs.
[ 9 ] In addition to the records from Trillium, three medical reports were filed. Two reports (August 2, 2011 and May 4, 2012) from Dr. Sammy J. Sliwin a Plastic Surgeon and a report jointly signed by Dr. Baguio and Dr. Rowe dated May 8, 2012.
[ 10 ] On June 28, 2012 I received a copy of the clinical notes of Dr. E. Lo, the family doctor at the time of the incident.
[ 11 ] Dr. Sliwin reports:
… he [Mr. Liu] had staples placed in some of these and was later treated by his family doctor who removed these and he now presents with the following complaints: the ones on the inside of his right arm and his left leg occasionally hurt and they get hot and itchy which feels like pain to him. They are red. He used to play soccer but cannot run any more as this bothers him. He has become very self-conscious of this especially after a recent trip back home where his mother asked him to hide his arm because she was unable to see it. He became quite aware of other people’s reactions. He no longer wears shorts.
On examination of these lacerations on his arm and his left leg, on the inner arm the scars are considered hypertrophic. They are raised, elevated and they are tender. On the outer arm they are discoloured but they are mostly flat. On the right flank, they are discoloured but mostly flat. On the left leg, they are elevated and tendered.
[ 12 ] In May of this year, Dr. Sliwin wrote a follow-up letter. He said:
On examination today, nine months after his previous visit, the lesions are red, firm and slightly less raised than the previous time. They are itchy to touch and on pressure they elicit pain.
[ 13 ] Dr. Silwin went on to say that he had discussed with Mr. Liu scar revision which would cost $750.00 plus HST for a total of $866.00.
[ 14 ] Mr. Liu testified that he was considering the revision surgery.
[ 15 ] Dr. Arnell Baguio wrote that although he had met Mr. Liu on November 21, 2011 for a “new patient meet and greet” visit, he was not able to formally assess Mr. Liu until May 8, 2012.
[ 16 ] Dr. Baguio wrote:
On my clinical assessment, Mr. Liu reports to me that he has had functional impairment since his injury. Specifically he is limited in exercise capacity because of pain in his left calf with running. Prior to the injury he could play soccer for 3 hours at a time, but since the injury he is limited to about 15 minutes before he experiences significant discomfort in his left leg. He also sustained bites to his right flank and right arm. From my assessment he is not functionally limited because of the residual effects from bites to these areas. He does, however, experience some anxiety and is self-conscious about wearing short sleeves which would reveal the scars secondary to the initial injuries. He also experiences occasional itchiness over the areas where he was injured. If he scratches these areas he experiences some discomfort and pain.
[ 17 ] He went on to say:
In summary, Mr. Liu presents with multiple hypertrophic scars secondary to dog bites sustained on July 9, 2010. He reports being limited in some of his day-to-day activities since the injury, namely with physical activity and sports, but also being self-conscious because of the scars he has been left with. Given my limited relationship with Mr. Liu I can only report on what you have sent me and what I was able to attain from our limited encounters, a new patient meeting on Nov. 21, 2011 and a brief assessment of his injuries today, May 8, 2012. I would encourage you to contact his previous family physician, Eddie Lo, if you have not already done so, as he may have seen him closer to the time of the injuries. As you know I can only report on my limited knowledge of the events and what I assessed at the clinic today.
[ 18 ] There are no other medical reports. The notes and records of Dr. Lo are completely unhelpful, and there are no reports from a psychologist or psychiatrist to verify Mr. Liu’s anxiety. Both Dr. Silwin and Dr. Baguio rely heavily on self-reporting by Mr. Liu.
[ 19 ] There is no question that Mr. Liu received a number of dog bites. Giving him the benefit of the doubt and accepting that he was affected in the manner that he says he was, in my view general of $30,000.00 are appropriate.
LOSS OF INCOME CLAIM
[ 20 ] Mr. Liu claims loss of income for three time periods:
July 9, August 1, 2010 which was the time that he was off work and not receiving any income from his job as a commissioned car salesperson at Scarboro Mazda;
August 2010, for the amount of money that he could have made;
September 2010 for the amount of money that he could have made.
[ 21 ] Mr. Liu testified that July, August and September are the busiest months in a car dealership. This was supported by the testimony of Amandeep Bassi, Sales Manager at Scarboro Mazda.
[ 22 ] Mr. Liu testified that he could have earned at least $15,000.00 to $20,000.00 per month during this time. In fact he earned nothing for the last three weeks in July; $13,207.20 for the month of August and $8,721.86 for the month of September for a total of $21,929.06.
[ 23 ] He is claiming the median between $15,000 to $20,000.00 ($17,500.00) as being reflective of what he would actually have earned on a monthly basis. That would have been $13,125 for the 3 weeks in July, an extra $4,292.80 in August and an extra $8,778.14 in September for a total of $26,185.94.
[ 24 ] Mr. Liu testified that he was unable to earn as much as he could have because due to anxiety and difficulty in moving, he was unable to reach new customers as quickly as some of the other salespeople.
[ 25 ] Although Mr. Bassi testified that a salesperson could earn $15,000.00 to $20,000.00 per month for those three months, he was unable to say that any of the other 6 salespeople earned this amount, or indeed more, to take into account the fact that some of them would have looked after Mr. Liu’s potential customers.
[ 26 ] On June 28 I received additional documentation that I had requested from counsel, regarding the loss of income claim.
[ 27 ] Evidence of what Mr. Liu could have earned in 2010 can be obtained by looking at what Mr. Liu actually earned the following year when he was working full-time during those months. In July, 2011 Mr. Liu grossed $7,160.67. In August 2011 he grossed $3,245.08 and in September he grossed $5,661.08 for a total of $16,066.83.
[ 28 ] In 2010 his total income according to his Notice of Assessment was $48,431.00 and in 2011 his total income was $60,421.00.
[ 29 ] It seems to me that the difference between his income in 2011 and 2010 would reflect his loss of income for 2010. That difference is $11,990.00. It is possible that the economy in 2010 was slightly better than that in 2011 so I will award him $15,000.00 for loss of income.
OTHER DAMAGES
[ 30 ] Mr. Liu’s claim for revision surgery is allowed as is his claim for out-of-pocket expenses.
MS. YI’S CLAIMS
[ 31 ] Ms. Yi testified that at the time of the accident, she was working full-time. When she was at home, she would cook for 6 hours a night (4 hours more than usual) for a three week period, to ensure that Mr. Liu would have food for the next day. Before the accident she would perform housecleaning duties for 30 minutes per day. Because Mr. Liu was not available to help her, she had to perform housekeeping duties for 1.5 hours per day for 3 weeks. She also performed nursing duties for 2 hours per day for two weeks, in that she cleaned Mr. Liu’s wounds, helped him bathe and then would clean the bathroom.
[ 32 ] By my calculation, this means that she would come home from work and work at home for another 9.5 hours. When I pointed this out to Mr. Firestone he acknowledged that there might be some overlap.
[ 33 ] Exhibit 12 is an affidavit from Marla Tennen, a registered nurse, who confirmed that in 2010 the market rate for a housekeeper was $15.32 per hour and the market rate for a personal support worker was also $15.32 per hour.
[ 34 ] The total claim for this head of damages is $2,504.60.
[ 35 ] Ms. Yi advances a claim as well pursuant to section 60 of the Family Law Act . As Ms. Yi and Mr. Liu commenced cohabitation in April of 2007 she is entitled, pursuant to the Family Law Act , to advance that claim.
[ 36 ] At the time of the incident, Ms. Yi and Mr. Liu were planning their wedding for the following September. As a result of the injuries Mr. Liu and Ms. Yi fought often in the time leading up to their wedding. There were also some intimacy difficulties as Mr. Liu did not like to be touched after sustaining his injuries.
[ 37 ] I will grant the housekeeping claim for $2,504.60. I am prepared to grant $3,000.00 for the Family Law Act claim.
COSTS
[ 38 ] I have reviewed the cost submissions and award $9,000.00 inclusive of disbursements and HST.
[ 39 ] Judgment will issue as follows:
Mr. Liu:
General Damages:
$30,000.00
Loss of Income:
$15,000.00
Future scar revision:
$866.00
Out-of-pocket expenses:
$550.00
Ms. Yi:
Housekeeping:
$2,504.60
FLA Claim:
$3,000.00
Costs Pre-judgment interest
$9,000.00 $638.80
Total:
$61,559.40
Van Melle, J.
Released: July 6, 2012
COURT FILE NO: CV-11-1205-00
DATE: 2012-07-06
ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: XI LIU AND JING YI Plaintiffs - and - VINCENZO DEMASI, ALSO KNOWN AS VINCE DEMASI Defendants AMENDED JUDGMENT Van Melle J.
Released: July 6, 2012