COURT FILE NO.: 07-CV-326369PD2
DATE: 20120815
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SUKHJINDER DHALIWAL
Plaintiff
- and -
PREMIER FITNESS CLUBS INC.,
PREMIER FITNESS CLUBS,
CURZONS FITNESS GROUP INC. AND
CURZONS FITNESS CLUBS
Defendants
Don Harvey, for the Plaintiff
F. Scott Turton, for the Defendants
HEARD: June 19-22, 2012
Kenneth L. Campbell J.
I
Introduction
[1] The plaintiff, Sukhjinder Dhaliwal, has brought an action against the defendants, the Premier and Curzon Fitness Clubs, for a personal injury the plaintiff suffered while exercising on a weight machine in one of the defendants’ facilities located in Brampton, Ontario. The plaintiff seeks general damages in the range of $40,000 to $50,000, as well as compensation for loss of past income, loss of future earning capacity, and some special damages for medical expenses.
[2] Essentially, while using a vertical leg press weight machine, the plaintiff’s right foot slipped off the foot platform that controlled the movement of the weights. He quickly tried to restore the locking device to prevent the descent of the weights, but was unable to do so. When the weights came down, the distal phalanx of the small finger on his right hand was caught in the falling weight sled and crushed. In the result, the plaintiff lost this end portion of his small finger on his dominant hand.
[3] The plaintiff claims that this unfortunate event was caused by the defendants in failing to keep the fitness club premises reasonably safe for its members. More particularly, the plaintiff claims that his foot slipped off the platform because he had, just moments earlier, stepped in a puddle of water near a water fountain, which had caused the soles of his shoes to become wet and slippery. He had tried his best to dry his shoes off by stomping his feet on the ground and thought he had been successful in so doing. As the plaintiff exerted his legs to push up the substantial weight on the leg press machine, his right foot slipped off the platform. The end of his little finger on his right hand was the casualty of the accident.
[4] The defendants, on the other hand, contend that they did not breach their acknowledged duty to keep their commercial premises reasonably safe. The defendants argue that they did what they reasonably could to ensure that water spills near the water fountain were cleaned up in a timely way. They had hired a full-time cleaning company and this responsibility was supplemented by their own employees when necessary. This was simply an unfortunate accident that they could not reasonably have prevented. The defendants argue, in the alternative, that any potential breach of their duty to keep their premises reasonably safe did not cause the injury to the plaintiff. Rather, the plaintiff caused the accident himself. Knowing that he had stepped in water, the plaintiff did not ensure that his shoes were sufficiently dry to guarantee the safe operation of the vertical leg press machine.
II
The Key Events at the Fitness Club
The Plaintiff’s Evidence
[5] The plaintiff was the only witness to the critical events that took place at the fitness club on January 24, 2005. While his testimony was certainly not free from inconsistencies, I accept the main elements of his evidence as to how the accident took place. The plaintiff was generally a credible witness and his testimony made sense in the overall context of the case.
[6] On January 24, 2005, the plaintiff went to one of the defendants’ fitness clubs located in Brampton, Ontario after work. He had been a member there since 2002. He was a regular at the club, attending there to exercise most days.
[7] On this particular day, the plaintiff was focusing his exercise efforts on his legs. After warming up with some running for 15-20 minutes, he began the weight training part of his exercise regime by using the vertical leg press machine. The plaintiff had likely used this machine more than a hundred times and was very familiar with its operation.
[8] This vertical leg press is a weight training machine, common in most commercial fitness clubs. To operate the machine, a person lies on their back on a padded bench close to the floor, pulls their knees up close to their chest, and puts the bottom of their feet on a square metal foot platform above them. The weights are suspended on horizontal side poles at approximately the height of the foot platform. The person then extends their legs, pushing upward, thereby moving the weights up. Once the weights have been moved to this upward position, the person is then able to move aside, with their hands, the locking mechanisms the weights otherwise rest upon. This permits the weights to be moved up and down freely with the legs, and with as many repetitions as desirable. Once the repetitions are complete, the person again pushes the weights to the upward position, and then moves the handles of the machine inward again to restore the safety locking mechanisms. With the weight sled safely returned to its original locked position, the person can then get up from the bench. This machine is firmly bolted to the floor so that it cannot move from its fixed and stable position.
[9] In accordance with his usual leg workout, the plaintiff planned to perform four sets of repetitions using the vertical leg press machine, with increasingly greater weight on each set. The weight sled itself, without any weights attached, weighs 95 pounds. The plaintiff added two 45 pound weight plates on the machine for his first set. For the second set, the plaintiff put on two additional 25 pound weight plates. For the third set, the plaintiff had a total of 100 pounds of weight plates on each side of the machine. For the fourth and final set, the plaintiff put three 45 pound weight plates on each side of the machine. Accordingly, there was a total of 135 pounds of weight plates on each side of the leg press. With the weight of the sled itself, the total weight that the plaintiff intended to lift for his fourth set, was 365 pounds.
[10] After the completion of the third set, the plaintiff went to the water fountain for a drink of water. The vertical leg press machine used by the plaintiff is located at the back of the weight room. The water fountain is not in the weight room area, but rather is located in the hallway at the top of the stairs at the front of the weight room. The plaintiff had to walk roughly 90 feet to get to the water fountain. The return trip would, of course, be another 90 feet back.
[11] As he drank from the water fountain that day, the plaintiff noticed that the floor around the fountain was wet with water, and realized that his shoe was wet. He was wearing his regular Nike sport/gym shoes that day. Getting his shoes wet around the water fountain had happened to him before. When this had happened in the past, he had informed the management of the club.
[12] At the top and again at the bottom of the stairs that led from the area of the water fountain down to the weight room the plaintiff “stomped” his feet, trying to get the water off his shoes. Then he walked the remaining distance back to the vertical leg press machine. He “stomped” his feet again. As the plaintiff explained, he did his “level-best” to get as much water off his shoes as he could.
[13] While he did not touch or remove his shoes to examine or dry them, the plaintiff did look at the bottom of his shoes, and he thought they looked “okay.” He thought they were dry. He did not see any water. He could not say, however, whether there was any water still in the treads of his shoes. The plaintiff admitted that he knew it could be dangerous to use the vertical leg press machine when his shoes were wet. That was why he tried his best to get the water off his shoes.
[14] According to the plaintiff, at the beginning of his fourth set on the vertical leg press, he pushed the weight sled upward, and unlocked the safety mechanisms and pushed them to the side so that the weight sled could move freely up and down. He then bent his knees to allow the weight sled to come down toward him. He let the weight come down as far as he felt comfortable. Then, as he began to try to push the weight sled upward again, his right foot slipped off the foot platform toward him. At that point, his hands were still in the handles on the safety mechanisms. When his right foot slipped off the platform, he lost his balance and his whole body moved to the left. He knew he could not hold the entire weight with only one leg, so he quickly tried to move the safety lock mechanisms back into place. He was not successful. Instead, his right hand moved toward the downwardly moving weight sled, and the end of his right pinky finger got caught under the weight sled and was crushed.
[15] The plaintiff maintained that his right foot slipped off the foot platform as a result of the water that was still on his shoes from the water fountain area. The plaintiff testified that it was not the weight itself that was the problem. He had lifted even greater weight in the past. He was not worried about being able to lift the 365 pounds. Further, the plaintiff denied that the accident had anything to do with any type of problem with his right knee.
[16] When the accident happened, other members of the club quickly went to the aid of the plaintiff. They disengaged him from the leg press machine and took him to the reception area of the fitness club. Ms. Julie Catenacci, a club employee who was in the reception area at the time, immediately placed an emergency 911 call for an ambulance. However, when delays seemed inevitable, one of the other employees at the fitness club personally drove the plaintiff to the hospital.
[17] On the way to the hospital, the plaintiff told this club employee what had happened. The plaintiff said that his “shoes were wet” and this had “caused his foot to slip off the leg press” machine and, as a result, the weight dropped, causing his finger to get “chopped off.” When this club employee eventually got back to the fitness club that same evening, he recorded this conversation with the plaintiff on the Incident Report that had earlier been prepared by the management of the club.
III
The Aftermath - Medical Treatment
[18] The plaintiff was treated at the Emergency Department of the Georgetown Hospital. The accident at the fitness club effectively amputated the end phalanx on the fifth finger of the plaintiff’s right hand. At the hospital, the plaintiff went through a surgical revision of this amputation under a regional anesthetic. The wound was cleaned, stitched and dressed. The plaintiff took only a few days off from work, and returned shortly to his job at MSB Plastics. He was in occupational therapy for some three months. He made a relatively speedy recovery, but the amputation is a permanent and serious disfigurement of the plaintiff’s right hand.
[19] Unfortunately, the nail bed was not completely removed in the initial surgery and caused the plaintiff swelling and pain in the remaining portion of the fifth digit of his right hand. In 2009, the plaintiff underwent further surgery to remove this still-growing nail bed. The plaintiff spent just one day in the hospital, but the surgery left him with further stitches and on medication. The plaintiff was off work for three weeks.
[20] Unfortunately, the plaintiff still experiences pain and sensitivity in his finger, especially when it comes into contact with objects.
IV
The Liability Analysis
A. The Relevant Legal Principles
1. Occupier’s Liability – The General Legal Principles
[21] Under s. 3(1) of the Occupier’s Liability Act, R.S.O. 1990, chap. O.2, the occupier of premises “owes a duty to take such care” as in all of the circumstances of the case is “reasonable” to see that persons entering on the premises, and the property brought onto the premises by those persons “are reasonably safe while on the premises.” According to s. 3(2) this duty of care applies regardless of whether the danger is caused by the condition of the premises or by an activity carried on in the premises. Under s. 4(1) this duty of care, however, does not apply in respect of “risks willingly assumed” by someone who enters the premises.
[22] The leading decision construing these provisions remains Waldick v. Malcolm (1989), 1991 CanLII 8347 (ON CA), 70 O.R. (2d) 717 (C.A.) at para. 19, 25; Affirmed: 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456. According to this decision, the Act imposes an affirmative duty on occupiers to make their premises reasonably safe for persons entering them, by taking reasonable care to protect them from foreseeable harm. This duty is not absolute. Occupiers are not insurers liable for any damages that may be suffered by persons entering their premises. This standard of reasonableness requires neither perfection nor unrealistic or impractical precautions against known risks. However, occupiers are duty-bound to take such care as in all of the circumstances of the case is reasonable. In each case, the trier of fact must determine what standard of care is reasonable and whether that standard of care has been met. See also: A.M. Linden and B. Feldthusen, Canadian Tort Law (9th ed., 2011) at pp. 730-732, 745-750; Coleiro v. Premier Fitness Clubs (Erin Mills) Inc., [2010] O.J. No. 3396 (S.C.J.) at para. 17-18; Goody v. Costco Wholesale Corp., [2009] O.J. No. 3025 (S.C.J.) at para. 15-26; Kerr v. Loblaws, 2007 ONCA 371, at para. 15-29.
[23] As in other types of negligence cases, actions involving allegations of occupier’s liability require the plaintiff to establish the negligence of the occupier on the balance of probabilities. More particularly, the plaintiff must prove that the occupier breached their statutory duty of care by failing to take reasonable care to see that persons entering their premises were reasonably safe while on the premises. See: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 40-49; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3; A.M. Linden and B. Feldthusen, Canadian Tort Law, at pp. 253-254.
2. The Supermarket Slip and Fall Cases
[24] Considerable guidance in the practical application of these general legal principles can be gleaned from the wealth of jurisprudence dealing with “supermarket slip and fall” cases. The plaintiff relies heavily on these authorities in advancing his argument as to the defendants’ alleged liability in the present case.
[25] Leading authors A.M. Linden and B. Feldthusen, in their text, Canadian Tort Law, at p. 748, in accurately “generalizing” the practical effect of these many decisions, suggest that in order for supermarket occupiers to successfully defend themselves against such “slip and fall” claims on their premises, they must demonstrate: (1) that they have “implemented reasonable policies and procedures of maintenance” in their stores, such as “regularly scheduled sweeps and inspections”; and (2) that “such policies and procedures were actually followed on the day in question.” The occupier may be able to refute a prima facie breach of the statute by showing that there was “routine compliance” with the reasonable scheme put in place for inspection, maintenance, cleanliness and safety. In such circumstances, the trier of fact must be able to reasonably infer that the defendant’s system was in effect and observed on the date of the accident. See: Atkins v. Jim Pattison Industries Ltd. (1998), B.C.L.R. (3d) 183 (C.A.) at para. 3-8; Howden v. Westfair Foods Ltd., 2000 MBQB 162, [2001] M.J. No. 25 (Q.B.) at para. 23; Lebedynski v. Westfair Foods Ltd., 2000 MBQB 144, [2000] M.J. No. 422 (Q.B.) at para. 20; Hussein v. Loblaws Supermarkets Ltd., [2001] O.J. No. 3705 (C.A.) at para. 1; Heard v. Canada Safeway Ltd., [2008] A.J. No. 790 (Q.B.) at para. 53-58.
[26] The decision in Coulson v. Canada Safeway Ltd. (1988), 1988 CanLII 3202 (BC CA), 32 B.C.L.R. (2d) 212 (C.A.) serves as an instructive example of this type of case. The plaintiff attended at the defendant’s supermarket at approximately 3:30 one Monday afternoon and slipped on some eggs that had been carefully broken and maliciously placed in the middle of one of the shopping aisles. The plaintiff fell and suffered a personal injury. She launched an occupier’s liability action against the supermarket. The store’s maintenance program to ensure the safety of its customers against such “slip and fall” problems was to ask its clerks to keep an eye out for potential hazards as they went about their other duties, hope that customers would report any spills they noticed on the floor, and ask that the floors be swept four times a day. While the trial judge dismissed the action, holding that the defendant had developed a reasonable maintenance program, the British Columbia Court of Appeal reversed this decision, holding that the supermarket had failed to keep its customers reasonably safe. Quoting from an earlier authority as to the legal obligations under the British Columbia “occupier’s liability” legislation, the court indicated, at para. 12, that to avoid liability the occupier must show: (1) that the occupier took steps to “put into place a system to safeguard against dangerous substances being allowed to remain” on the surface of the floors; and (2) that there was de facto implementation of that system by the people charged with the responsibility of complying with the system in place. In holding that the defendant supermarket had not met this legal standard, the Court of Appeal noted, at para. 13, that the defendant’s maintenance program took the “chance” that no one would be monitoring the aisles of the supermarket for significant periods of time, and that there was no evidence that any supermarket employee had been monitoring the aisles since they were swept at 8:00 a.m. that day.
B. Did the Defendants Breach Their Statutory Duty of Care, or Did the Defendants Keep the Premises of the Fitness Club Reasonably Safe for its Members?
1. Introduction
[27] Given this legal framework, the first issue for determination is whether the defendants were in breach of their statutory duty of care, or whether they kept the fitness club premises reasonably safe for its members as required by s. 3(1) of the Occupier’s Liability Act. Before drawing any conclusions in this regard, however, it will be useful to consider the evidence led as to the positive steps taken by the defendants in this regard.
2. The Maintenance System Put in Place by the Fitness Club
a. The Full-Time Cleaning Staff
[28] The Premier Fitness Club subcontracts the cleaning of the Brampton facility to a cleaning company, namely, Ramos Cleaning. This cleaning company is paid approximately $4,000 per month to keep the Brampton club clean. This was a “full-time” cleaning service.
[29] The arrangement was that Ramos Cleaning was to have one male and one female cleaner in the club at all times during club operating hours. Their duties were to clean the entire club throughout the course of each day, including regularly patrolling and inspecting the club for anything that required cleaning such as “spills or litter.” Their directions were to “keep it clean.” They were also required to wipe down the weight machines periodically during the day.
b. The Cleaning Obligations of the Fitness Club Staff
[30] Further, at the time of the accident in this case, the club also had a janitorial closet on the premises, which contained mops, brooms, buckets, rags and cleaning products such as detergents and disinfectants.
[31] If any club employees became aware of a water spill, either from being so advised by a member or personally seeing such a spill through their travels through the club, the employee was expected to take one of these mops and clean up the spilled water. This was an understood obligation of the employees on a “common sense” basis so as to quickly deal with any “immediate hazard.”
c. The Evidence of the Cleaning System in Place
[32] This evidence as to the cleaning obligation of the full-time cleaning staff from Ramos Cleaning and the supplementary duties of the fitness club staff, came from the discovery transcript of the Chief Financial Officer of Premier Fitness Clubs Inc., and from the answers to undertakings subsequently provided by the defendants. This evidence was read-in by counsel for the plaintiff, and I accept it as accurately reflecting the overall cleaning system that was in place in the club around the time of the accident.
d. The Corroborative Evidence of Ms. Catenacci
[33] The viva voce testimony of Ms. Catenacci, a Customer Service Representative with the club, confirmed that there was frequently water on the floor around the water fountain. As she described it, the members were somewhat “sloppy” when they filled their bottles and drank their water in this location. Ms. Catenacci also confirmed that the cleaners “regularly” mopped up the water in this area, as this was part of their job. While she was not always required to walk through the premises as part of her job, Ms. Catenacci testified that, to her knowledge, whenever there was any water on the floor in this area there was also a yellow “wet floor” warning sign in the area. I accept the evidence of Ms. Catenacci in this regard as to the general practice in the club.
e. The Perforated Mat By the Water Fountain
[34] While the plaintiff testified that there was no mat beneath the water fountain in January of 2005, Ms. Catenacci testified that there was always a mat in that location. The photographs that were subsequently taken of the area in 2009, showed a perforated mat underneath the water fountain. Ms. Catenacci testified that this same type of mat was in place beneath the water fountain in 2005 and earlier. She explained that there had always been a mat in that location because club members were frequently spilling water around the fountain. Ms. Catenacci had worked in the club between 2001 and 2007. She was a credible witness and I accept her evidence that this mat was located by the water fountain in January of 2005, at the time of this accident. The purpose of this perforated mat was obviously to permit club members to approach the water fountain without stepping in any water that may be around the fountain.
3. The Positions of the Parties
[35] The plaintiff argued that the defendants did not fulfill the important statutory duty cast upon them to keep the fitness club premises reasonably safe for their members. The plaintiff contended that there was a chronic problem in the club with water spilling from the fountain, and the defendants neither fixed the problem nor put a system in place that would reasonably ensure the safety of the members. According to the plaintiff, the defendants breached their statutory duty because there were no regular inspections of the water fountain area, and no logs kept to prove that such inspections had taken place.
[36] The defendants contend, on the other hand, that they did all that could be reasonably expected of them to protect the members of the fitness club. According to the evidence, they had a perfectly reasonable maintenance system in place in the club. They were not obliged to guarantee the safety of the club members. The defendants argue that the plaintiff has failed to establish that the defendants breached their statutory obligation under s. 3(1) of the Occupier’s Liability Act.
4. Conclusion - The Defendants Breached Their Statutory Duty of Care
a. Introduction
[37] I am satisfied that the plaintiff has established that, in all of the circumstances of this case, the defendants failed in their affirmative duty to make their fitness club premises reasonably safe for their members by taking reasonable care to protect them from foreseeable harm. I hasten to add that I have reached this conclusion not because of any deficiency in the maintenance program that the defendants devised for their fitness club, but rather because there is a complete absence of evidence that this maintenance program was implemented and in proper and active use on the day of the plaintiff’s accident. There is not even any evidence that this maintenance program was routinely followed. There is, of course, little point in having an effective maintenance program to protect the safety of patrons, if it is not consistently and routinely followed in practice. As there is a total absence of evidence on this topic, I cannot be satisfied that the maintenance program was being fully and properly implemented in practice, especially at the time of the accident.
b. The Defendants’ Reasonable Maintenance System for the Fitness Club
[38] In my view, the defendants’ had devised a reasonable maintenance system for their fitness club to ensure the safety of their members.
[39] Recognizing that club members would frequently spill water on the floor around the fountain, the defendants placed a perforated mat beneath the fountain so that members could stand on the mat without getting their shoes wet. The defendants also hired a full-time cleaning service whose sole responsibility in the club was to keep the premises clean. Cleaners were expected to be working in the club at all times. Their only obligation was to clean the club. This obligation included regularly patrolling and inspecting the club for anything that required cleaning such as “spills.” In addition, the club employees themselves were obliged, on becoming aware of any water spills, to clean up any such spill to avoid any potential hazard. The club had a janitorial closet for this purpose. In my view, this maintenance system was designed to ensure that any water spills, which were inevitable in a fitness facility, would be quickly cleaned up. Finally, there was usually a yellow “wet floor” warning sign in the area of the fountain whenever the floor seemed to be wet, so as to caution the club members as to the potential dangers posed by the wet floor. Significantly, the water fountain itself was not located in the weight room itself, but rather was located in the hallway in the midst of the facility. This matter of geography would also itself assist in keeping any spilled water from entering the exercise rooms in the facility.
[40] Other possible alternatives would be unrealistic, ineffective and/or would effectively require the defendants to either guarantee the absence of any water spills on the floor of the fitness club, or become the insurer for any member injured on the premises as a result of a water spill.
[41] For example, the defendants might simply have removed the water fountain from the premises. Without access to water, the members of the club could not possibly spill any water, at least not from a club fountain. The plaintiff does not suggest that this step ought to have been taken by the defendants. Such a step would have been unrealistic. When people exercise they frequently require water to keep hydrated. It would be counter-intuitive for a fitness club to remove their members’ ready access to water during their exercise regimes.
[42] As another potential alternative, the defendants might have installed a different type of water dispensing device, such as a water cooler. The plaintiff did not offer this suggestion, and I am not convinced that such a device would have remedied the problem. Offering paper cups for drinking water around a cooler is not likely to decrease the water apt to be spilled around this area, and might actually increase the chances of water being spilled in the weight room area, as members could then carry their cups of water back to the work-out area. This would not improve the safety of the members of the fitness club.
[43] The defendants might also have hired someone to maintain a vigilant “guard” by the water fountain, with strict instructions to never leave the area during club hours of operation and to instantly clean up any water that might be spilled by members. This would come close to guaranteeing that there would be no problematic water spills in the area of the fountain. This was also not a suggestion made by the plaintiff. Moreover, this unrealistic step is not one that reasonably could be demanded of a fitness club. The law does not require occupiers to guarantee that no harm will come to persons entering their premises. As mentioned above, their duty under the legislation is not absolute. Occupiers are not insurers against any damages that may potentially be suffered by persons attending upon their premises. Occupiers are only required to take such care as is reasonable in all of the circumstances. Hiring a water fountain “guard” would be unreasonable.
c. Practical Implementation of the Maintenance System – On the Day of the Accident
[44] The plaintiff argued that, notwithstanding this evidence of the maintenance system the defendants had designed for the fitness club, the defendants still failed in their duty under s. 3(1) of the Occupier’s Liability Act as there was no evidence to prove that the defendants’ cleaners routinely followed any type of reasonably strict cleaning schedule and/or maintained a log of those regular inspections to ensure that the defendants’ directions were followed in practice. The plaintiff also argued that there was no evidence that this maintenance system was being followed on the day the plaintiff was injured in the fitness club. I agree with the plaintiff in this regard.
[45] In the present case, there is no evidence that the maintenance system designed for the fitness club by the defendants was in any way practically operational. It may have been operational – there is just no evidence before me that it was operational.
[46] First, there is no evidence that, on the day of the accident, there was even a single cleaner on duty in the defendants’ fitness club. No such cleaner was called as a witness to give evidence, and no business record was tendered to show that such a cleaner had been at work that day in the club. None of the witnesses who were called to give evidence in this trial testified about the presence of a cleaner in the fitness club on the day of the accident. Presumably, had there been any cleaners present at the fitness club throughout the club’s hours of operation on January 24, 2005, as the defendant’s maintenance system contemplated, it would have been easy enough to establish that fact. Instead, there is no evidence at all to suggest that this aspect of the maintenance system was operational that day.
[47] Second, even assuming that there were two cleaners in attendance at the fitness club on January 24, 2005, there remains no evidence as to the activities of those cleaners on the day of the accident. More specifically, there is no evidence that, if they were in attendance, they ever monitored the water fountain area or cleaned up any water that may have been spilled there at any part of the day.
[48] Third, there is no evidence establishing that, on January 24, 2005, anyone had placed a yellow “wet floor” warning sign cautioning members about the potential dangers of a wet floor.
[49] The defendants steadfastly maintain that, as a matter of law, the plaintiff has the burden of proof to establish that the defendants were in breach of their statutory duty to keep their fitness club premises reasonably safe for their members. While there are decisions that suggest that, in this context, the burden of proof of this affirmative defence rests upon the defendant, I need not determine that legal issue as, in this case, the result is the same regardless of which party bears the burden of proof. In other words, even assuming the plaintiff has the burden of proof, as the defendants contend, I would conclude that the plaintiff has proven that the defendants were in breach of their duty of care.
[50] In reaching this conclusion, I draw an adverse inference against the defendants from their failure to call evidence on this topic. In my view, when the defendant in an occupier’s liability case is perfectly positioned to tender any available evidence as to the practical implementation of their maintenance system, and they call no evidence in this regard, it is only appropriate for the court to draw an adverse inference against the defendant as to the nature of the evidence that the occupier might have called.
[51] In the present case, for example, within a day or two of January 24, 2005, the defendants knew that the plaintiff had lost the end of his small finger on this right hand in an unfortunate accident at their Brampton fitness club. The defendants also knew that the plaintiff attributed the cause of this accident to “wet shoes.” The defendants could easily have quickly secured all of the available evidence as to what had taken place on the day of the accident in terms of the activities of their employees and their cleaners, so as to be able to lead that evidence in the event of legal action by the injured plaintiff. The absence of any such evidence in this case suggests to me that, had that evidence been led, it would not have been helpful to the defendants in their defence of this action.
d. Conclusion
[52] Accordingly, for these reasons I am satisfied on the balance of probabilities that the defendants failed in their legal duty to make their fitness club premises reasonably safe for their members by taking reasonable care to protect such persons from foreseeable harm. The defendants permitted a puddle of water to collect near the water fountain in their fitness club, near the weight room, knowing that their members frequented that water fountain during the course of their fitness routines. Moreover, there was no evidence that, on the day of the plaintiff’s injury, the reasonable maintenance system devised by the defendants was in any way practically operational.
C. Did a Water Spill in the Fitness Club Cause the Plaintiff’s Injury?
1. Introduction
[53] One of the important factual issues that must be determined in this case is whether or not the negligence of the defendants, in breaching their legal duty to keep the premises of their fitness club reasonably safe for the members, caused the damages suffered by the plaintiff. This turns on whether, as a matter of fact, the plaintiff’s foot slipped off the vertical leg press platform (which immediately led to the plaintiff’s finger injury) because of water on his shoe from the area of the water fountain. Without this necessary causal connection between the water fountain spill and the plaintiff’s finger injury, there can be no liability on the part of the defendants. To find liability, the negligence of the defendants must have caused the plaintiff’s injury. The plaintiff contends that this causal connection has been established. The defendants argue otherwise.
2. The Legal Standard for Causation: The “But For” Test
[54] Recently, in Clements v. Clements, 2012 SCC 32, the Supreme Court of Canada helpfully restated the law in relation to causation in tort cases. More particularly, McLachlin C.J.C., delivering the judgment of the majority of the Court, reaffirmed the general applicability of the “but for” test for causation. McLachlin C.J.C. noted that, on its own, proof by an injured plaintiff that a defendant was negligent does not render that defendant liable for the loss. The plaintiff must also prove that the defendant’s negligence caused the injury. McLachlin C.J.C. confirmed that the legal test for showing causation is the “but for” test in which the plaintiff must prove, on a balance of probabilities, that “but for” the defendant’s negligence, the plaintiff’s injury would not have occurred. Inherent in the very nature of this causation test, is the requirement that the defendant’s negligence was necessary in bringing about the injury. In other words, the plaintiff must establish that his or her injury would not have occurred without the defendant’s negligence. The resolution of this causation inquiry is a factual inquiry into what likely happened, but it requires the “but for” causation test to be applied pragmatically in a “robust common sense fashion.” The legal burden on the issue of causation remains with the plaintiff. See: Clements v. Clements, at para. 6-14, 46; A.M. Linden and B. Feldthusen, Canadian Tort Law, at pp. 120-132; Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, at para. 14-33; Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, at para. 13-20; Walker Estate v. York Finch General Hospital, 2001 SCC 23, [2001] 1 S.C.R. 647, at paras. 87-88; Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, at para. 78; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at para. 18-23.
[55] In Clements v. Clements, at para. 13, 46, McLachlin C.J.C. also observed that, exceptionally, a plaintiff may be able to recover by establishing that the defendant’s conduct “materially contributed” to the “risk of the plaintiff’s injury.” This alternative standard will be applied where: (a) the plaintiff has shown that his or her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly responsible for the loss; and (b) the plaintiff, through no fault of their own, is unable to show that any one of the potential tortfeasors was, in fact, the necessary or “but for” cause of the injury, as each defendant can point to the other as the possible “but for” cause of the injury. In such cases, the law, as a matter of policy, refuses to permit the defendants to escape liability by pointing the finger at another wrongdoer. In such circumstances, defendants may be held liable if they materially contributed to the risk of the plaintiff’s injury. See also: Cook v. Lewis, 1951 CanLII 26 (SCC), [1951] S.C.R. 830; Snell and Resurfice Corp. v. Hanke, at para. 18-29.
[56] In the present case, the plaintiff is obliged, if he is to be successful in this action, to satisfy the “but for” test of causation. The alternative “material contribution to risk” standard simply has no application. Applying the “but for” standard in this case, the question that must be resolved is whether the accident that injured the plaintiff’s finger would have occurred but for the negligence of the defendants? Said another way, in practical terms, would the plaintiff’s foot have slipped off the weight sled platform, directly resulting in the plaintiff’s injury, but for the fact that he stepped in the puddle of water by the fountain left there by the defendants’ negligence? If the accident would still have occurred, regardless of the negligence of the defendants, then their negligence cannot properly be said to be the cause of the plaintiff’s loss.
3. Some Preliminary Factual Determinations
[57] Before turning to the critical question of whether the injury to the plaintiff’s finger was caused by his foot slipping off the foot platform on the vertical leg press machine due to water that had remained on his shoes, there are two preliminary factual determinations that must be addressed.
[58] First, it must be determined whether there was, in fact, water on the floor area around the water fountain in the fitness club on January 24, 2005 just prior to the plaintiff’s injury. Of course, if there was no water in that area, it could not have been an operative cause of the plaintiff’s damages. I find that there was water in this area. The plaintiff testified that there was indeed water in this area. He noticed this water after he stepped in it when he went to get a drink from the water fountain. I accept his evidence in this regard. Having water on the floor in this area of the club was, on the evidence, a relatively common issue in the fitness club. Accordingly, I have no difficulty concluding that there was water on the floor of the fitness club in this area on the day of the accident.
[59] Second, it must be determined whether the plaintiff got this water on the bottom of his Nike sport shoes just prior to the accident. Again, the plaintiff clearly testified how, prior to his fourth set on the vertical leg press machine, he went to the fountain for a drink of water and stepped in the water on the floor in this area. Again, I accept his evidence in this regard. There is no evidence to the contrary.
4. What Caused the Plaintiff’s Foot to Slip Off the Platform?
a. Introduction
[60] Given those preliminary factual determinations, consideration must now be given to the question of the real reason why the plaintiff’s right foot slipped off the foot platform on the vertical leg press machine. In other words, the key question is whether the injury to the plaintiff’s finger was caused by water on the sole of the plaintiff’s right shoe that caused his foot to slip off the platform, or whether there is some other explanation for the accident.
[61] While the plaintiff did his “level best” to try to remove all of the water from his shoes, he did not dry them with a towel. He simply “stomped” his feet, walked some 90 feet in the shoes back to the weight machine, “stomped” his feet again, and visually examined the bottom of his shoes as they were on his feet. He thought there was no longer any water on his shoes. I am satisfied, however, that the plaintiff was simply mistaken in reaching this conclusion. Water on the soles of his shoes is, in my view, the most obvious and sensible explanation for the accident. The other posited explanations for the accident are, by comparison, quite unconvincing.
b. The Substantial Weight Was Not the Issue
[62] I reject the defendants’ suggestion that the plaintiff simply crumbled under the overwhelming weight that he had placed on the leg press machine. In this regard it is important to recall that the plaintiff had used this very machine probably more than a hundred times before, and had never experienced a problem. While the weight on the machine for the fourth set was, no doubt, very substantial, legs can be very powerful, and the plaintiff testified that he had successfully lifted even greater weights on this machine. In my view, it was not the substantial weight on the leg press machine that caused the plaintiff’s foot to slip off the foot platform.
c. The Plaintiff’s Right Knee Did Not Give Out as a Result of an Injury
[63] I also reject the defendants’ suggestion that the plaintiff’s right knee gave out as a result of a previous and ongoing injury to that right knee. The plaintiff’s medical records indeed establish that, at the beginning of March of 2004, after working out at the gym, the plaintiff suffered a painful injury to the medial collateral ligament of his right knee. In the result, the plaintiff missed three weeks of work. However, there were no medical appointments in connection with this injury after March 25, 2004. Accordingly, it appears that the plaintiff’s knee injury was resolved some nine or 10 months before the accident. There is certainly no evidence to suggest that this medical problem was continuing at the time of the accident in January of 2005.
[64] The plaintiff’s medical records also establish that, around August 24, 2005, the plaintiff suffered a painful injury to his right foot, which led to further chronic pain in his right knee. However, as this injury did not take place until seven months after the accident, this evidence is hardly probative in establishing that the plaintiff was suffering from any right knee problems in January of 2005. Further, the absence of any knee or leg-related medical appointments for the plaintiff during the 17 month period between March 25, 2004 and August 24, 2005, suggests that there were no problems with the plaintiff’s right leg at the time of the accident in January of 2005.
[65] There is simply no evidence in support of the suggestion that, at the time of the accident, the plaintiff had suffered any type of injury to his knee. None of the medical records following the plaintiff’s accident on January 25, 2005 suggest that there was any issue or injury to the plaintiff’s right knee. Moreover, it is hard to imagine how a knee injury would cause the plaintiff’s leg to slip forward out of the vertical leg press machine toward him. If anything, logic would suggest that, if the plaintiff had experienced a new injury (or recurrence of an old injury) to his right knee, his leg would simply have crumbled beneath him. Instead, as the plaintiff described, this was a “slip” of the right foot.
d. The Accident Was Caused by Water on the Plaintiff’s Shoe
[66] The plaintiff effectively testified that his right foot slipped off the platform on the vertical leg press machine because of water that must have remained on his right shoe.[^1] I accept this evidence. Indeed, it seems to me that it is the only plausible explanation for the accident.
[67] Importantly, the plaintiff’s theory as to what caused his leg to slip off the foot platform was largely confirmed by the testimony of Michael Sinnot, an expert in biomechanics. Mr. Sinnot was called by the defendants to generally discuss the biomechanics involved in the use of the vertical leg press machine and, more particularly, to establish that the accident could not possibly have happened if the plaintiff had kept his hands in the handles of the locking mechanism. Mr. Sinnot gave that opinion evidence. However, the evidence of Mr. Sinnot, especially in cross-examination, extended to other topics. Importantly, his testimony included all of the following:
- If there was water on the soles of the plaintiff’s shoes, this would reduce the traction available and increase the likelihood of slippage. In short, the plaintiff’s feet would become more slippery.
- If the user of the vertical leg press machine had water in the treads of the shoes, in lifting the heavy weight, the rubber treads would compress, and the water in the treads could become more of an issue. In short, the extra pressure employed in the exercise itself could cause the shoe to become more slippery.
- If the right foot of an equipment user slipped off the foot plate, his body might move to the left and might cause his right hand to move upwards.
e. Conclusion
[68] In conclusion, I find that, in all of the circumstances of this case, the plaintiff has established that the accident which ultimately led to the injury of the plaintiff’s finger was caused by the defendants’ negligence in breaching their statutory duty under the Occupier’s Liability Act. Said another way, I conclude that, but for the defendants’ breach of their statutory duty to keep the premises of their fitness club reasonably safe, the plaintiff would not have suffered the injury to his finger.
[69] Having concluded that the defendants breached their statutory duty of care to keep the fitness club premises reasonably safe for its members, and that the water spill near the water fountain was the operative cause of the accident that resulted in the injury to the plaintiff’s finger, the next issue is the assessment of the quantum of the damages suffered by the plaintiff.
V
Quantum of Damages
A. Introduction – The Position of the Parties
[70] The plaintiff seeks general damages in the range of $40,000 to $50,000 for the amputation of the final phalanx of the fifth finger on his right hand. The plaintiff also seeks damages in the amount of $2,400 for past lost income. He was away from work for a total of approximately three weeks in connection with his finger injury and subsequent medical surgeries and treatments. The plaintiff also seeks damages for loss of future earning capacity in the amount of $20,000. Finally, the plaintiff also seeks special damages for medical expenses and drug prescriptions totaling $4,724.21.
[71] The defendants contend that that plaintiff’s general damages should be in the range of $25,000, that there should be no award for past lost income or loss of future earning capacity, and that the special damages for medical expenses and drug prescriptions, limited to the finger injury, amount to only $3,104.84.
B. The Uncontested Expert Evidence of Dr. Krajden
[72] The October 2, 2009 report of Dr. Krajden, the plastic and reconstructive surgeon who treated the plaintiff for his injury, was filed as an exhibit, on the consent of the parties, for the truth of its contents. In his report, Dr. Krajden offered all of the following:
- The plaintiff sustained a traumatic amputation of the distal phalanx on his fifth finger on his dominant right hand on January 24, 2005. The plaintiff was treated at the Georgetown Hospital where he underwent a surgical revision of the amputation under regional anesthesia.
- This amputation is a “permanent and serious disfigurement” of the plaintiff’s right hand. The plaintiff dislikes the appearance of his hand, as the injury to his finger is visible.
- As a result of this amputation injury to his finger, the plaintiff suffered “decreased grip strength, cold intolerance and discomfort that is exacerbated by any type of repetitive duties or heavy gripping.” The plaintiff also has hypersensitivity in his fingertip.
- The plaintiff endured a second surgery to his finger when it was discovered that there was some residual nail bed growing in the remnant of his finger. The nail bed caused the plaintiff “quite severe pain” and had to be surgically removed, together with a revision of the damaged tissue. This took place on August 5, 2009. The stump of the finger is now well-healed and has a range of motion within normal limits.
- The plaintiff no longer attends a gym for weight lifting as he experiences discomfort in his finger when involved in “heavy gripping.”
- When the plaintiff was working as a truck driver, his injury rendered him unable to perform certain job-related tasks, such as “hand pumping.” His sensitivity to cold also reduced the number of hours he was able to work outside in the winter months.
- Individuals with this type of amputation injury often have long-term complaints and limitations involving the use of high-frequency vibration tools, exposure to cold weather, decreased power and dexterity, as well as the “obvious psychological sequelae of missing part of ones finger.”
- The plaintiff is an “excellent candidate” for a prosthesis to give him the appearance of a normal finger-tip. Such devices are custom made, are not covered by OHIP, cost approximately $5,000 each, and with normal wear and tear need to be replaced approximately every five years.
C. General Damages
[73] I agree with the defendants that general damages cannot reasonably be assessed at any more than $25,000. The authorities relied upon by the plaintiff in support of an award of general damages approaching twice that amount are, with respect, not factually comparable to the present case. In the only finger amputation case relied upon by the plaintiff, namely, Narayan v. Djurickovic, [2003] B.C.J. No. 1748 (S.C.); Affirmed:[2005] B.C.J. No. 224 (C.A.), $33,000 was awarded for general damages in regard to the partial amputation of two fingers and scarring on the hand and body from skin grafts. This decision and others actually support the more modest award of $25,000 in general damages urged by the defendants. See: Nichols v. Keyzer, [2000] O.J. No. 4356 (S.C.J.) at para. 2, 39-42, 69-70; Jahangiri-Bojani v. Brudderer, [2001] B.C.J. No. 2025 (S.C.) at para. 109-113.
D. Other Damages
[74] The plaintiff has sought reimbursement for past lost wages as a result of having to be away from his work for a total of three weeks in 2009. In my view, the plaintiff has established that he was away from work for this period of time and is entitled to reimbursement for the wages he would have earned for this period. Given his declared income earnings for the 2009 tax year, I calculate these damages at a total of $780 (three weeks at an average of $260/week).
[75] The plaintiff has made a claim for special damages for medical expenses and drug prescriptions. After examining these expenses, I agree with the defendant that the plaintiff is only entitled to these special damages to the extent that they relate to his finger injury, which I calculate to total $3,104.84.
[76] The plaintiff has made a claim for an additional $20,000 in damages for his loss of future earning capacity. While the plaintiff is only required, in personal injury cases, to establish a “reasonable chance of such loss or damage” occurring in the future, I see no basis in the evidence to award such damages. To me they seem entirely speculative. See: Schrump v. Koot (1977), 1977 CanLII 1332 (ON CA), 18 O.R. (2d) 337 (C.A.) at para. 12.
[77] The plaintiff has also made a “future care cost” claim for a prosthesis for his amputated finger. The plaintiff has expressed his dislike for the aesthetic appearance of his injured finger, and has declared his interest in obtaining a prosthesis. He testified, however, that he did not purchase one himself as they were expensive and he could not afford to buy one. Dr. Krajden has indicated that the plaintiff is an “excellent candidate” for such a prosthesis and has estimated its cost at $5,000. Dr. Krajden has indicated that, given expected wear and tear, this prosthesis will need to be replaced every five years. The plaintiff has, quite reasonably, suggested that he will likely need no more than four such prosthetic devices during his life. Accordingly, I assess these damages at a total of $20,000. As this will be a future cost incurred by the plaintiff over time, the required calculation will have to be made pursuant to rule 53.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
E. Conclusion
[78] In conclusion, simply adding together all of these various individual damages results in a grand total of damages in the amount of $48,884.84.
VI
Contributory Negligence
A. Introduction
[79] Having settled upon the quantum of the damages suffered by the plaintiff as a result of the fitness club accident on January 24, 2005, the next issue to consider is whether, and the extent to which, the plaintiff must accept personal responsibility for those damages. This issue must be considered as the defendants argue that the plaintiff should be found responsible for contributory negligence in causing his damages. Indeed, the defendants suggest, more specifically, that the plaintiff should be held 75% responsible for the damages he suffered. The plaintiff, on the other hand, contends that he should not be held responsible for contributory negligence and, if he is, that it should be in a significantly reduced proportion to that suggested by the defendants.
B. The Law
[80] Contributory negligence can potentially arise in three ways. First, the plaintiff’s negligence may have been a contributing cause of the accident that resulted in the damages if the plaintiff’s acts or omissions contributed to the sequence of events leading to the accident. Second, the plaintiff, while not being a cause of the accident, may have put him or herself in a position of foreseeable harm. Third, the plaintiff may have failed to take precautionary measures in the face of foreseeable danger. See: Zsoldos v. Canadian Pacific Railway Co. (2009), 2009 ONCA 55, 93 O.R. (3d) 321 (C.A.) at para. 54.
[81] Contributory negligence does not depend upon any duty of care, but rather depends upon the objective foreseeability of harm to oneself. More specifically, a person will be guilty of contributory negligence if they ought to have foreseen that, if they did not act as a reasonable, prudent person, they might hurt themselves. A reasonably prudent person, by definition, considers whether a course of action might cause harm to themselves. While the test is clearly an objective one, if the plaintiff personally, subjectively appreciated the general nature of the risk, they will not be able to contend that the harm was not objectively foreseeable. Provided that this test of objective foreseeability is met, the plaintiff will be held responsible for contributory negligence even if they did not also foresee the mechanism by which the accident would occur, or the nature of the injury that could result. See: Rizzi v. Marvos (2008), 2005 CanLII 34561 (ON CA), 78 O.R. (3d) 142 (C.A.) at para. 39-44; Leave denied: [2008] S.C.C.A. No. 200; Avco Financial Services Realty Ltd. v. Norman (2003), 2003 CanLII 47436 (ON CA), 64 O.R. (3d) 239 (C.A.) at para. 26; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 CanLII 307 (SCC), [1997] 3 S.C.R. 1210, at para. 76.
C. Analysis and Conclusion
[82] I have no difficulty concluding that the plaintiff was guilty of contributory negligence in connection with the finger injury he suffered on January 24, 2005. Indeed, it is fair to observe that the plaintiff, to a significant extent, was the author of his own misfortune.
[83] The plaintiff candidly admitted that he knew operating the vertical leg press machine could be dangerous if his shoes were wet. This subjective knowledge explains why the plaintiff “tried his level best” to get the water off his shoes by “stomping” his feet before beginning his fourth set on the leg press. Accordingly, the plaintiff subjectively foresaw the risk of danger to himself if the used the leg press machine with wet shoes. Even without the plaintiff’s testimonial admission with respect to this issue, I would still have concluded that a reasonably prudent person would have foreseen the personal danger in operating the vertical leg press machine with wet shoes.
[84] Not only did the plaintiff personally foresee the risk of harm from operating the leg press machine with wet shoes, he was negligent in failing to ensure that his shoes were not wet before beginning his fourth set on the machine. While the plaintiff testified that, when he started his fourth set, he thought that there was no water on his shoes, the plaintiff was, as I have found, wrong in this conclusion. Moreover, the plaintiff failed to take the steps that a reasonably prudent person would have taken in such circumstances to remove any risk of danger. There were a number of sensible options that the plaintiff might have undertaken, any one of which might have prevented the accident that caused his finger injury. More particularly:
- The plaintiff could have secured a towel and carefully dried his shoes so as to ensure that, when he began to use the vertical leg press again, his shoes were completely dry.
- Instead of simply relying upon a visual check of the bottom of his shoes while they remained on his feet, the plaintiff could have taken the time to physically check the soles of his shoes (maybe after removing them) to determine for sure whether or not they were wet.
- The plaintiff could have decided that, not being positive as to whether or not his shoes were still wet with water, it was simply not worth running the risk of harm, and refrained from engaging in his fourth set on the machine.
[85] In the result, the plaintiff was guilty of contributory negligence in relation to the damages he suffered as a result of his finger injury. Indeed, it is accurate to say that the plaintiff conducted himself in a way that fell within each of the three types of contributory negligence. First, the plaintiff’s negligence was an operative cause of the accident that resulted in the damages suffered by the plaintiff. His actions certainly contributed to the sequence of events leading to the accident. Second, even if the plaintiff had not been engaged in causing the accident by his conduct, the plaintiff put himself in a position of foreseeable harm by operating the vertical leg press with water on his shoes. Third, as I have just sought to illustrate, the plaintiff failed to take reasonable precautionary measures in the face of foreseeable danger.
[86] Having concluded that the plaintiff was guilty of contributory negligence in relation to the injury to the damages he suffered, I must apportion the damages between the defendants and the plaintiff in accordance with the “degree of fault or negligence found against the parties respectively.” See: Negligence Act, R.S.O. 1990, chap. N.1, s. 3. See: Snushall v. Fulsang (2005), 2005 CanLII 34561 (ON CA), 78 O.R. (3d) 142 (C.A.).
[87] In all of the circumstances of this case I apportion the damages, according to the degree of fault found against the parties, at 50:50 as between the plaintiff and the defendants. In short, I apportion the damages equally between the parties. It was the negligence of the defendants that resulted in the plaintiff getting water on his shoes in the first place. But for that negligence by the defendants, the plaintiff would not have suffered his finger injury. However, realizing that he had stepped in water near the water fountain, and fully appreciating the risk of danger that was inherent in operating the vertical leg press machine with wet shoes, the plaintiff commenced his fourth set on the machine without taking any of the reasonably prudent steps necessary to ensure that his shoes were dry and there was no personal risk in continuing to use the machine. In these circumstances it is only fair that the plaintiff shoulder equal responsibility for the damages collectively caused by the negligence of the parties.
VII
Conclusion
[88] In the result, as I have assessed the total quantum of the damages in this case at $48,884.84, and as the plaintiffs are responsible for half of these damages, judgment will be in favour of the plaintiff in the amount of $24,442.42. Judgment shall issue accordingly.
[89] The only remaining issue is the costs of this action. In the event that the parties cannot agree on the issue of costs, they should follow the following timetable regarding the filing of their costs submissions.
[90] Counsel for the plaintiff shall file his bill of costs and written submissions on costs by August 29, 2012. Counsel for the defendants shall file his bill of costs and submissions on costs by September 12, 2012. These written submissions from the parties on any and all of the costs issues shall be no longer than five pages each, excluding the bill of costs and excluding, of course, copies of any authorities that the parties may elect to provide in support of their respective arguments. To the extent that any reply submissions are necessary, the plaintiff shall file such submissions, which shall be no longer than two pages, by September 19, 2012.
Kenneth L. Campbell J.
Released: August 15, 2012
COURT FILE NO.: 07-CV-326369PD2
DATE: 20120815
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SUKHJINDER DHALIWAL
Plaintiff
- and -
PREMIER FITNESS CLUBS INC.,
PREMIER FITNESS CLUBS,
CURZONS FITNESS GROUP INC. AND
CURZONS FITNESS CLUBS
Defendants
REASONS FOR JUDGMENT
Kenneth L. Campbell J.
Released: August 15, 2012
[^1]: I note only in passing, as it is not evidence that is substantively admissible, that the plaintiff has been completely consistent in his own explanation for the accident. As the fitness club “Incident Report” for this accident reflects in its “Comments” section, on his way to the hospital immediately after the accident, the plaintiff told a club employee that his “shoes were wet” which “caused his foot to slip off the leg press” and, as a result, the weight dropped and “chopped” off his little finger. The plaintiff repeated that same version of events at his discovery and, of course, in his trial testimony.