ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WANDA OLIVIER
Plaintiff
– and –
803295 ONTARIO INC., O/A PAT AND MARIO’S RESTAURANTS INC.
Defendants
O. Rosa, for the Plaintiff
S. Shoemaker, co-counsel
M. Nanne, for the Defendants
HEARD: September 11, 12, 13, 17 and 18, 2012
reasons for decision
JUSTICE E. GAREAU:
1This matter proceeded to trial initially before a jury, but at the conclusion of the evidence the jury notice was struck and the jury discharged for reasons released in writing on October 16, 2012.
2Evidence was heard on September 11, 12, 13, 17 and 18, 2012.
3The action was commenced by the plaintiff by way of statement of claim issued on March 2, 2009. The action involves a slip and fall which occurred on March 1, 2008 where the plaintiff fell at the restaurant owned and operated by the defendant and sustained an injury to her right arm.
4Both liability and damages are in dispute in this action.
Factual Background
5The plaintiff is 85 years of age. At the time of the accident, she was 81 years of age. At the time of the accident, the plaintiff was a resident of the Village of Bruce Mines, Ontario. Two years ago the plaintiff relocated to Sault Ste. Marie, Ontario where she now resides with her husband, Rene Olivier.
6The plaintiff was not employed at the time of the incident.
7On the day of the accident, March 1, 2008, the plaintiff and her husband drove from Bruce Mines, Ontario to Sudbury, Ontario to attend a surprise birthday party for the sister of the plaintiff, Jackie, who was turning 80 years of age.
8The surprise birthday party was held at the restaurant owned by the defendant and operated under the name of Pat and Mario’s Restaurant. The restaurant is located at the municipal address 1463 LaSalle Boulevard, Sudbury, Ontario. The plaintiff had not been to the restaurant before.
9The plaintiff arrived with her husband at Pat and Mario’s Restaurant between 4:45 p.m. and 5:00 p.m. The surprise birthday party was in the rear portion of the restaurant and known as the “back room”. The room is approximately 12 feet by 12 feet in size. Leading into the room there is a step which is a 5½ inch elevation with an overhang which extends one inch past the step. To the right of the step there is an 8 x 10 inch sign which has on it printed in red, “please watch your step”.
10It was at the elevation or step where the plaintiff fell. There is no dispute that the plaintiff fell and that it was at this elevation or step into the back room where the party was being held that the plaintiff’s fall occurred.
11As a result of the fall, the plaintiff suffered a broken right shoulder, which required surgical intervention and ongoing treatment including physiotherapy.
The Issues
A) Did the defendant take such care in all the circumstances that was reasonable to see that the plaintiff was reasonably safe while on the premises of the defendant?
12This issue deals with whether the defendant breached its statutory duty to the plaintiff under the Occupier’s Liability Act, R.S.O. c.0.2. There is no issue that the defendant meets the definition of “occupier” in Section 1 of the Act and that the legislation governs its relationship with the plaintiff while the plaintiff attended the premises of the defendant.
13Section 3 of the Occupier’s Liability Act, sets out the duty of care owed by the defendant to the plaintiff and reads as follows:
“3(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
(2) The duty of care provided for in Section (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.
(3) The duty of care provided for in subsection (1) applies except insofar as the occupier of the premises is free to and does restrict, modify or exclude the occupier’s duty.”
14The defendant takes the position that it has met its statutory obligation to the plaintiff and that its premises was reasonably safe and that it did all that it could to ensure the safety of the plaintiff while she was on the premises. The defendant’s position is that the plaintiff was, on more than one occasion, verbally warned of the step into the back room and the sign posted provided a sufficient warning to the plaintiff.
15The evidence of the plaintiff, Wanda Olivier, is that she attended at the defendant’s restaurant on March 1, 2008 to attend a surprise birthday party for her sister, Jackie, who was turning 80 years of age. The plaintiff indicated that she arrived at the restaurant at 4:50 p.m. It was a winter day, dusk at that time with snow on the ground. The plaintiff indicated that she was “excited” about attending her sister’s birthday party.
From that point there is a divergence in the evidence given by the witnesses who testified at the trial as to whether the plaintiff was met by someone from the restaurant or was met only by her niece, Vicky Naletto, and as to what route the plaintiff and Ms. Naletto travelled from the entrance of the restaurant to the back of the restaurant where the party room was located.
16The evidence of the plaintiff, Wanda Olivier, was that no restaurant staff met her at the front of the restaurant and that no restaurant staff was with her when she travelled from the front to the party room. It was Mrs. Olivier’s evidence that she “had not seen or heard any staff member up to the time she fell.”
This evidence was contradicted by the plaintiff’s niece, Vicky Naletto, who testified that a restaurant hostess came to the front of the restaurant and was with her and Mrs. Olivier as they proceeded from the front of the restaurant to the party room in the back.
17As to the route followed from the front of the restaurant to the party room, both the plaintiff and Vicky Naletto testified that they went up two or three steps at the bar area and proceeded through the bar area to the party area. This route, through the bar area, is crowded, narrow, loud with noise and meant that travel was along a wall with a sharp turn into the party room. This route provided little opportunity to see the entrance to the party room before the step into the party room had to be navigated. This route also provided little opportunity to see an 8-inch by 10-inch sign on which was printed in red letters “Please watch your step”. This sign and its location is depicted in two photographs at Tab 2 in Exhibit 1 entered as evidence at the trial.
18The route which the plaintiff and Ms. Naletto testified they travelled is sketched out in orange on the diagram of the interior of the restaurant, entered as Exhibit 4. That route has the plaintiff and Ms. Naletto travelling directly through the bar area and then along a wall requiring a right-hand turn directly at the elevated step entrance into the party room. It was the evidence of both Ms. Olivier and Ms. Naletto that the plaintiff was not warned by any staff member about the step and it was the plaintiff’s evidence that she did not see the sign posted or the step before she entered the party room and fell. Ms. Naletto did say in her evidence that when they were at the entrance to the party room, she told the plaintiff to “watch your step” but assumes that the plaintiff did not hear this by the plaintiff’s comment “I wish someone had of told me that there was a step” uttered after she fell.
19The defendant called three witnesses who testified about the route travelled by the plaintiff and Ms. Naletto from the entrance of the restaurant to the party room. Malgorzata Sredniawski was employed at the defendant restaurant for a five-year period, her employment commencing in 2003 and ending in 2009. For the last 1½ years of her employment, Ms. Sredniawski worked in the capacity of a manager at the restaurant. Ms. Sredniawski was working as a manager in the evening when the plaintiff’s fall occurred. Ms. Sredniawski testified that the protocol of the defendant restaurant was for a hostess or manager to seat every guest taking them from the front of the restaurant to their seat. Ms. Sredniawski also indicated in her evidence that it was the restaurant’s protocol to point out steps to the patrons and all members of the restaurant were trained in these protocols. Ms. Sredniawski indicated that she saw the plaintiff with a gentleman at the front of the restaurant and saw a staff member named Danika speaking to the plaintiff. Ms. Sredniawski observed the plaintiff meet “a friend” at the front of the restaurant and a staff member named Danika speak to the plaintiff at the front of the restaurant and escort the plaintiff and her friend from the front of the restaurant toward the party room although Ms. Sredniawski indicated in her evidence that she lost sight of the plaintiff when she was enroute to the party room.
As to the route followed by the plaintiff from the front of the restaurant to the party room, it was the evidence of Ms. Sredniawski that the plaintiff travelled through the dining area and did not go through the bar area. This route of travel was marked by the witness in pink on the plan marked as Exhibit 4. The pink line drawn ends where the witness indicated that she lost sight of the plaintiff, which was approximately one half way through the dining room. This route of travel would have meant the plaintiff proceeded to the party room and the sign earlier referred to straight on.
20Ms. Sredniawski was very definite in her evidence as to the route the plaintiff travelled to the party room, indicating that the protocol of the restaurant was to get patrons to their tables by the easiest path, which was through the dining area, and that all staff members were trained on this protocol and policy.
21Ms. Sredniawski described the lighting in the party room and at the entrance to the party room as being “good lighting” and it was her evidence that the sign leading into the party room which reads “Please watch your step” was visible indicating that “it’s big”.
22In cross-examination, Ms. Sredniawski testified that there were written manuals, including training manuals, which were kept in the restaurant office. These manuals dealt with the safety of patrons in the restaurant but were not referred to by Ms. Sredniawski who indicated that “the policies are in her head – that is where they are kept.” These written manuals were never disclosed by the defendant and their existence was not known to the plaintiff prior to the evidence given by Ms. Sredniawski, which was part of the ongoing difficulty with disclosure that pervaded the trial of this action.
23In her statement given to Debra Kostinaniuk on December 11, 2008, entered as Exhibit 8, Ms. Sredniawski did not indicate that the plaintiff travelled through the dining room area to the party room nor did she indicate that the hostess, Danika, was in front of the plaintiff while escorting the plaintiff to the party room. This witness indicated that this was not asked of her by Ms. Kostinaniuk while giving her statement so she did not feel a need to disclose it. In this written statement, Ms. Sredniawski indicated that she did not observe the plaintiff fall.
24The owner of the defendant restaurant, George Moutsatsos, also gave evidence as to the route followed by the plaintiff from the entrance of the restaurant to the party room. Mr. Moutsatsos has been the sole owner and operator of the Pat and Mario’s Restaurant in Sudbury, Ontario since 1984. Mr. Moutsatsos indicated in his evidence that the procedure and protocol at the restaurant is for a hostess to greet every guest at the door and to escort them to their table. Mr. Moutsatsos indicated that each new employee receives six weeks of training which is hands-on training without manuals or documentation. Mr. Moutsatsos indicated in his evidence that he saw the plaintiff enter the restaurant around “5-ish” on March 1, 2008 and that the hostess offered to lead the plaintiff and her niece to the table, but Ms. Naletto indicated that she knew where she was going and that the hostess followed Ms. Naletto and the plaintiff. As to the route travelled, it was the evidence of Mr. Moutsatsos that they travelled through the dining room area and not the bar area to the party room. Entered as Exhibit 5 is a seating plan of the restaurant as it existed on March 1, 2008. Mr. Moutsatsos marked with a “G” on the exhibit where he was when he first noticed the plaintiff. That has Mr. Moutsatsos in the bar area. Marked with an “X” on Exhibit 5 is where Mr. Moutsatsos saw the hostess, Danika, meet the plaintiff and marked with a “V” is where Mr. Moutsatsos first saw the plaintiff’s niece meeting at the three stairs. Mr. Moutsatsos placed the plaintiff meeting her niece at the stairs leading into the dining room area, which meant that they would have travelled through the dining room area and not the bar area. This is the same path of travel that Ms. Sredniawski indicated that the plaintiff, Ms. Naletto, and the hostess, Danika, took to the party room. Marked as an “S” on Exhibit 5 is where Mr. Moutsatsos indicated he lost sight of the plaintiff and her niece, which is when they entered into the dining room area. Mr. Moutsatsos did not see the plaintiff travel along the dining room area or enter into the party room.
25Mr. Moutsatsos indicated in his evidence that staff would not be allowed to take children or elderly people through the bar area to the party room and that the path through the upper level dining room to the party room is the only route that protocol and procedure would dictate that the staff travel to bring patrons from the front of the restaurant to the party room.
26As to the step and the sign warning of the step, Mr. Moutsatsos testified that the step itself is 5½ inches high with a lip portion of 1¼ inches and an extension on the step of ¼ of an inch. There was never any structural changes made to that step or the area around the step since Mr. Moutsatsos assumed ownership of the restaurant in 1984. The sign is located 40 inches from the floor and is 8 inches by 10 inches in dimension. The lettering on the sign is 1 ¾ inches. Mr. Moutsatsos described the purpose of the sign as a “courtesy to our guests”. Mr. Moutsatsos indicated that there was adequate lighting near the step with a 48 string of lights in the dining room area and a “big light” in the back room over the table. The lights in the upstairs dining room area cannot be dimmed and are 25 watt lights.
27There are difficulties with the evidence of Ms. Sredniawski and Mr. Moutsatsos with regard to the path followed by the plaintiff and her niece from the front of the restaurant to the party room at the rear of the restaurant. The difficulties with the evidence of Ms. Sredniawski was noted in paragraph 23 of my written decision dated October 16, 2012 setting out my reasons for striking the jury notice and discharging the jury in this action. Paragraph 23 of those reasons reads as follows:
“The difficulty with the evidence of Malgorzata Sredniawski is that this evidence of the path travelled by the plaintiff from the front of the restaurant to the party room was not disclosed by the defendant to the plaintiff prior to Ms. Sredniawski giving her evidence at the trial of this action. The plaintiff was lead to believe that there was no evidence that the defendant had concerning the path travelled by the plaintiff to the back room. It is true that the defendant had a “theory” that the plaintiff travelled through the dining room area to the back area because the restaurant protocol directed that patrons travelled this way and the plaintiff was aware that this was the defendant’s “theory” but the “evidence” of Ms. Sredniawski to support this “theory” was not provided by the defendant to the plaintiff prior to trial. The “theory” had been disclosed by the defendant to the plaintiff prior to trial, but the “evidence” in support of the theory had not been.”
Similarly, the difficulty with the evidence of Mr. Moutsatsos was identified in paragraph 27 and 28 of those same reasons as follows:
“In the evidence of George Moutsatsos, he indicates that he saw a hostess greet the plaintiff at the door and offer to bring her to the back room with this offer being rejected by the plaintiff’s niece who indicated that she knew where she was going and would take the plaintiff. Mr. Moutsatsos indicated that the hostess followed behind the plaintiff and her niece and testified that he personally observed the plaintiff and her niece travel through the dining room toward the back of the restaurant where the party room was. After Mr. Moutsatsos gave this evidence, counsel for the plaintiff raised an objection which again focused on the lack of disclosure provided by the defendant. On his examination for discovery, Mr. Moutsatsos did not disclose that he saw the plaintiff travel through the dining room area with a hostess trailing. On his examination for discovery, Mr. Moutsatsos related what other people, his employees, told him about what they observed and the plaintiff was led to believe that Mr. Moutsatsos had no direct evidence but only information which his employees had related to him.
In countering this objection, counsel for the defendant indicated that on his discovery, Mr. Moutsatsos was asked about the plaintiff’s fall and how he learned about the fall and not specifically about what he saw at the time the plaintiff entered the restaurant or about the route the plaintiff travelled to the back room where the fall had occurred.”
28I repeat the concerns I have with respect to the lack of disclosure prior to trial of the evidence given by Ms. Sredniawski and Mr. Moutsatsos with respect to the path travelled within the restaurant by the plaintiff and Ms. Naletto as indicated in paragraph 29 of my reasons which reads as follows:
“In my view, the position advanced by the defendant is not the proper approach with respect to the obligation of a party to make full disclosure of the evidence it has to support its case. There is an ongoing obligation of a party to disclose the evidence it has and intends to call at trial to support its theory of the case. The civil trial system is built on fairness to all parties and the proper dispensation of justice. Without fairness, the confidence in the administration of justice is eroded and the court should be vigilant to protect against this. Our legal proceedings have evolved to the point where full and complete disclosure is required to be made by the parties to each other. Well in advance of trial, parties are required to be made aware of the facts and the evidence which supports the claim being advanced. Without this requirement of full disclosure, the pre-trial process for the resolution of disputes without a trial is rendered meaningless as is the ability of counsel to advise their clients and obtain informed and meaningful instructions from their clients. We have long since abandoned the “trial by ambush” approach and where a party would shield behind a suggestion that it was not asked or not requested to justify why disclosure was not provided. A party to litigation has an active, open and ongoing obligation to disclose the evidence it is going to rely on to support its position, whether this is asked for or not. The court cannot ensure fairness to the parties or ensure a pre-trial system that is capable of resolving disputes between litigants without this.”
29If the court was left with just the evidence of Ms. Sredniawski and Mr. Moutsatsos as to the path travelled by the plaintiff and Ms. Naletto from the front of the restaurant to the party room, I would be inclined to accept the evidence of the plaintiff and Ms. Naletto and conclude that the route was through the bar area. However, the court also has to consider the evidence of Ilmar Jaas on this point. Mr. Jaas was called as a witness for the defendant. Mr. Jaas was a patron in the defendant restaurant on the evening of March 1, 2008. He indicated that he arrived at the restaurant at approximately 4:30 p.m. Upon his arrival, he was greeted by staff and escorted to his table in the upper dining room. On Exhibit 4, the portion marked in green is the pathway Mr. Jaas indicated that he travelled from the front of the restaurant to his table. This pathway is through the dining room area. On the seat plan, entered as Exhibit 5, Mr. Jaas indicated that he travelled along the green portion to the table identified as “9” on the exhibit and coloured in green. This table is directly in front of the party room at the rear of the restaurant.
Mr. Jaas described the lighting in the restaurant as “excellent”. He indicated that he did not have to use his glasses to read the menu which to him indicated that the lighting was good. Mr. Jaas’ back was to the party room. He was facing the dining room and not the party room. Mr. Jaas indicated that he saw the plaintiff come into the dining room with another woman and walked down the aisle past him and into the party room. Mr. Jaas indicated that a member of the restaurant was walking behind them. That staff member said “watch your step” and then a couple of moments later, Mr. Jaas heard a thump or a crash. At that point, Mr. Jaas turned around and saw the plaintiff lying on the floor in the party room.
30Mr. Jaas was cross-examined vigorously and thoroughly. Mr. Jaas recalled that the plaintiff was wearing a tan-coloured pant suit. Mr. Jaas identified the woman in the photographs at Tab 1 of Exhibit 1 as the plaintiff Wanda Olivier although he candidly admitted “he could be wrong”. The photograph is in fact a photograph of the plaintiff’s sister, who the birthday was in honour of.
Entered as Exhibit 7 was a statement given by Mr. Jaas to Debra Kostaniuk on November 10, 2008 and signed by Mr. Jaas on December 23, 2008. In that statement, Mr. Jaas indicated that “this party was going past us and ah the waitress said “please watch your step” and you could tell maybe one, two, three and then a loud crash and she just went down.”
In cross-examination, Mr. Jaas indicated that at the time the hostess told the plaintiff to “please watch the step”, the plaintiff was “about 9 feet from the party room.” Counsel for the plaintiff had Mr. Jaas identify the distance in the courtroom which was measured to be 11 feet by the use of a tape measure. So it appears that the plaintiff was between 9 to 11 feet from the party room when she was told by the hostess to watch her step. Mr. Jaas indicated in his evidence that it did not appear to him that the plaintiff heard what the hostess said to her concerning the step. The statement given by Mr. Jaas entered as Exhibit 7, does not indicate the path travelled by the plaintiff from the front of the restaurant to the party room. Mr. Jaas’ explanation for this was that he was not specifically asked about this so he did not mention this to Debra Kostaniuk when he gave his statement to her.
31Although Mr. Jaas identified the plaintiff’s sister as the person he saw pass him, as he identified in Exhibit 1, Tab 1, the fact is that it was only the plaintiff who fell in the party room on the evening of March 1, 2008 and it had to be the plaintiff who Mr. Jaas saw pass him through the upper dining room on her way to the party room at the back of the restaurant. Although Mr. Jaas’ back was to the party room and he did not actually see the plaintiff fall, I am satisfied that Mr. Jaas saw the plaintiff and Ms. Naletto travel through the upper dining room with the hostess following behind them. I have no reason to disbelieve the evidence of Mr. Jaas on this point. I found that Mr. Jaas gave his evidence in an honest, even-handed manner. He was not prone to embellish or exaggerate and was not evasive in the difficult questions put to him during cross-examination. Mr. Jaas has no vested interest in the outcome of this litigation.
32On the totality of the evidence, I find as fact that the plaintiff’s route of travel from the front of the restaurant to the party room was through the upper dining room and not through the bar area as indicated by the plaintiff and her niece, Vicky Naletto. The route travelled was the route marked in green and pink on Exhibit 4 and in green on Exhibit 5 and not the route marked in orange on Exhibit 4 and marked in pink on Exhibit 5. This finding means that the steps and sign leading into the party room were directly in front of the plaintiff and that the plaintiff did not approach the steps or sign from the side as would be the case if the plaintiff had travelled through the bar area to get to the party room.
33By the admissions made by Ms. Sredniawski and Mr. Moutsatsos in their evidence, it is clear that there were many breaches of procedure and protocol by the restaurant employees on the evening of March 1, 2008 and in their interaction with the plaintiff, Wands Olivier.
34Malgorzata Sredniawski testified that if the hostess, Danika, was behind the plaintiff and her niece that this was a breach of the procedure and protocol in the restaurant. The hostess was to be in front and was to lead the patrons to their seat. This was the protocol that the staff were trained on at the Pat and Mario’s Restaurant. It was the evidence of Ms. Sredniawski that Danika, the hostess, was behind the plaintiff while travelling to the party room. This is confirmed by Mr. Jaas in his evidence. The proper protocol was for the hostess to be in front, leading the way, Ms. Sredniawski indicated to the court. Ms. Sredniawski also indicated in her evidence that a warning by a hostess 9 to 11 feet from the step leading into the party room would not be a sufficient warning. Ms. Sredniawski testified that the proper protocol and procedure would be to provide a warning in a more proximate location to the step itself.
35These various breaches of protocols and procedures in relation to restaurant staff’s involvement with the plaintiff Wanda Olivier were put to George Moutsatsos in cross-examination as follows:
“Q. Now, we’ve heard yesterday from Malgorzata – we heard and she told us about what she indicated was the protocol that would typically be followed to ensure that people are safe on the premises…
A. Yes, Sir.
Q. …right? And you heard what she said. And Malgorzata said that there were several things which were done or were not done that in the case of Mrs. Olivier walking or going through the restaurant, which breached the protocol that your own restaurant had with respect to ensuring the safety of its patrons – you heard that.
A. Yes.
Q. She said there was a breach of protocol didn’t she?
A. Yes.
Q. And just to particularize, she said that one of the things that has to be done and I think you said it this morning as well, that you have to…that the hostess is to lead people to the table.
A. Yes, Sir.
Q. Right? In this particular case, what we understand from the evidence – that didn’t happen, right? It didn’t happen.
A. Yes, Sir.
Q. The other thing is the suggestion…the suggestion in this particular case, that irrespective of whose version you accept in terms of who walked where – that people, guests, are not to walk through the restaurant or the bar or anywhere in the restaurant, going to their table on their own.
A. Yes, Sir.
Q. That’s correct. That, in fact, they have to be accompanied by a hostess who would be leading them to their table or to the private room, right?
A. To the private room, yes.
Q. Okay. And one of the…one of the things we heard during the evidence of Malgorzata is that in regard to the step that we’re talking about going into the private room – that the hostess is to warn of that step before the person actually gets there.
A. Yes, Sir.
Q. And the evidence that we seem to have heard in this trial, okay, and I’m…accepting whosever version, but one of the versions of what happened according to the defence, hearing from Mr. Jaas, was that this lady was advised or said she was told “watch your step” when she’s 9 to 11 feet from the step. Did you hear that evidence?
A. Yes, Sir.
Q. And Malgorzata said, that too is not in accordance with our protocol and policy.
A. Yes.
Q. You heard that.
A. Yes, Sir.
Q. Okay, and you also agree with Malgorzata when she says that people aren’t to be walking through this restaurant on their own without being lead by a hostess.
A. Yes, Sir.
Q. Right. Now, there’s no question that the person, anybody who comes to the step needs to be warned, right?
A. Yes, Sir. “
36Mr. Moutsatsos went on in his evidence to indicate his view of the significance of the breaches of protocol and procedures as follows:
“Q. Okay. We know from Malgorzata yesterday that there were several breaches of protocol in terms of bringing this lady to this private room, we know that.
A. Yes, Sir.
Q. Okay. And what I’m asking you is this – when all is said and done, I’m suggesting to you that these breaches of the protocol by your staff on the 1st of March of 2008 when they brought Mrs…Mrs. Olivier to that room, that those breaches of protocol really constituted a lack of reasonable care, isn’t that true?
A. I suppose.
Q. Okay. And that reasonable care that we’re talking about is a reasonable care that the law expects of you, isn’t that true?
A. Yes, Sir.”
37In my view, the aforementioned evidence of Mr. Moutsatsos is tantamount to an admission of liability or, at the least, a clear acknowledgement by him that the defendant did not take such care in all the circumstances that was reasonable to ensure that the plaintiff was reasonably safe while on the premises of the defendant restaurant. In my view, from the aforementioned evidence by Mr. Moutsatsos, there is an acknowledgement that there was a breach of the required care under the Occupier’s Liability Act.
38I do not rely solely on the admission of Mr. Moutsatsos to conclude that there was a breach of the care required under Section 3(1) of the Occupier’s Liability Act owed by the defendant restaurant to the plaintiff.
39In addition to the breaches of protocol and procedures that should have been in place for the protection of the plaintiff on the evening of March 1, 2008, there was an inherent danger in the steps themselves leading into the party room. These steps were not illuminated in any way by either lights on the steps or illuminating tape on the steps. Both could have been placed on the steps at little inconvenience and cost and should have been placed on the steps to alert patrons of the restaurant to an elevation of 5½ inches. The failure to have the steps illuminated in such a manner, either by lights or illuminating tape, in my view, constitutes a breach of the defendant’s duty to the plaintiff to ensure that the plaintiff is reasonably safe while on the premises as required under Section 3(1) of the Occupier’s Liability Act.
40As to the 8 by 10-inch sign at the entrance to the party room, I am not satisfied that either the size or location of the sign provided the plaintiff with a sufficient or adequate warning of the sign or of the inherent danger in the elevation in the walking surface of some 5½ inches.
41In examining and assessing the totality of the evidence, I answer the question posed in the issue section under paragraph (a) in the negative and find that the defendants did not take such care in all of the circumstances was reasonable to see that the plaintiff was reasonably safe while on the premises of the defendants and find that the defendants breached its statutory duty to the plaintiff under Section 3(1) of the Occupier’s Liability Act and find liability on the defendants.
(B) Contributory Negligence
Did the plaintiff contribute to her damages by her own negligence while on the premises?
42The imposition of a duty of care on the occupier and a finding that the occupier has breached that duty of care does not absolve the visitor to the premises from exercising care on his or her own behalf.
43It is well-established law that the defendant has the onus of establishing contributory negligence and must establish that the injured party did not act in his or her own interest by taking reasonable care of himself or herself, and so contributed to his or her own injury. As stated in Nance v. British Columbia Electric Railway Co. Ltd. 1951 374 (UK JCPC), [1951] AC 601 (PC): “A defendant must prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury.”
44The method the plaintiff travelled from the front of the restaurant to the party room is significant with respect to the issue of contributory negligence. The court has concluded, for the reasons articulated in the aforegoing paragraphs, that the plaintiff in fact travelled from the front of the restaurant through the upstairs dining room to the party room. The court did not accept the evidence of the plaintiff and Vicky Naletto on this point where they indicated the pathway travelled was through the bar area.
45Travel through the bar area to the party room would have provided the plaintiff with a distinctly different view of vision of the party room and, in particular, the elevated steps and sign then travel through the dining room. Travel through the bar area would have meant the plaintiff approached the party room from the side, turning left into the party room, offering little opportunity to see either the elevated step or the sign. On the other hand, travel through the dining room area meant that the plaintiff approached the party room head on, not from the side, offering the plaintiff a clear view of the elevated steps and the sign.
46The plaintiff was 81 years of age at the time of the accident. On March 1, 2008 the plaintiff attended for the first time at the Pat and Mario’s Restaurant in Sudbury, Ontario. The plaintiff had pre-existing difficulties with her legs as of March 1, 2008. She had two artificial knees but reported to the court that her artificial knees would not cause her to stumble. The plaintiff testified that she had no difficulty walking from the front of the restaurant to the party room. Mrs. Olivier indicated to the court that she was not taking any medications on the night in question that would affect her stability on her feet or the strength in her legs. A witness called by the defendants, Ilmar Jaas, noted in his evidence that he could see the plaintiff walk up through the upper dining room level toward the party room and that he observed that she had “no trouble walking through the tables” and that the plaintiff was “going at a half decent speed – at a good clip” as she proceeded through the dining room area toward the back room.
47Mr. Jaas also confirms the statement made by the plaintiff after she fell, to the effect that she wished someone had told her about the step. The evidence of Mr. Jaas was that the plaintiff was warned of the step by the hostess albeit 9 to 11 feet from the actual step. The evidence of the plaintiff’s niece, Vicky Naletto, is that she told the plaintiff to “step up” when they approached the elevation leading into the party room. The plaintiff is hard of hearing and obviously did not hear these statements prior to entering the party room.
48The plaintiff had previously fallen on steps in a restaurant. In her evidence, the plaintiff testified that in 2005 she was on the East Coast and fell in a restaurant when she tripped on a step going into the restaurant.
49The plaintiff described herself as being “excited” about going to the surprise birthday party for her sister at the Pat and Mario’s Restaurant. The plaintiff indicated in her evidence that she was looking at the floor “the entire time” she was walking through the restaurant to the party room and that when she approached the party room, she was looking into the room and “was not looking at the floor”. The plaintiff indicated that when she was looking into the party room, she saw a table with her sister, Maureen and other family members.
50The plaintiff was understandably excited about seeing her sister and celebrating her sister’s 80th birthday with her. Although the plaintiff was vigilant about watching where she was walking, looking at the floor while walking through the restaurant she was not so vigilant as she approached the party room and by her own evidence, her sight shifted from the floor area to inside the party room where her sister and other family members were seated. At the point in time she entered the party room, the plaintiff was not as diligent as she should have been or could have been in watching where she was going and, in my view, this lack of diligence contributed to her fall and the resulting damages and injuries that occurred to her.
51Considering the totality of the evidence and the circumstances from the time the plaintiff entered the Pat and Mario’s Restaurant on March 1, 2008 to the time she fell while entering the party room at the back of the restaurant, I assess the appropriate apportionment of negligence to the plaintiff at 25%.
(C) Damages
(a) General Damages
52As a result of the fall on the elevated step leading into the party room at the Pat and Mario’s Restaurant in Sudbury, Ontario on March 1, 2008, the plaintiff suffered a fractured right shoulder. Mrs. Olivier was treated on the evening of the accident at the Sudbury General Hospital. After receiving treatment at the hospital, the plaintiff stayed overnight in Sudbury, Ontario and returned to her home in Bruce Mines, Ontario by vehicle the next day. The plaintiff then saw a physician in Thessalon, Ontario who referred her to Dr. Michele Cheong, who is an orthopedic surgeon.
53The court had the benefit of viva voce evidence from Dr. Cheong. Dr. Cheong indicated that she first met and examined the plaintiff on March 6, 2008, some 6 days after the fall occurred. On a review of the notes from the Sudbury General Hospital and the x-rays taken of Mrs. Olivier at the hospital, Dr. Cheong concluded that the plaintiff’s shoulder was fractured, that the shoulder was out of place and that surgical intervention was necessary to hold the shoulder in place and to allow it to heal. Surgery on the plaintiff’s shoulder was performed by Dr. Cheong on March 12, 2012. The bones were pinned to the top of the shoulder by threaded K wire, which is a pin with wires left out of the skin, which are removed at a later time. During the surgical procedure, the arm and shoulder is manipulated to the proper position, at which time the pins are inserted to keep the shoulder in place. X-rays confirm that the shoulder is properly in place and the pins properly inserted.
54After the surgery on March 6, 2008, Mrs. Olivier was followed up by visits with Dr. Cheong, initially each 2 to 3 weeks and then on an as-needed basis. The K wires which were inserted into the plaintiff’s shoulder were removed on April 9, 2008. Dr. Cheong reported to the court that Mrs. Olivier attended all appointments as arranged and followed all instructions given to her by Dr. Cheong with respect to her treatment. For a period of time, Mrs. Olivier’s right arm was placed in a sling and she received an injection by Dr. Cheong on one occasion to provide temporary relief from the pain that the plaintiff was experiencing. That injection was done on May 28, 2009.
55Dr. Cheong last treated the plaintiff on March 16, 2010. Dr. Cheong reported to the court that at that point she expected “no further improvements” in the condition of the shoulder and that shoulder had reached a point of “tolerable pain”. Dr. Cheong indicated in her evidence that by March 16, 2010 she was satisfied with the healing of the fracture and that the plaintiff’s shoulder was “as good as it was going to get”.
56Dr. Cheong observed the plaintiff to experience a loss of range of motion in her right shoulder and arm. From her elbows to her fingers in her right arm, the plaintiff had full range of motion, but a reduction in motion from her elbow up to her shoulder in her right arm. Dr. Cheong also noted that a loss of some strength in the right arm was experienced by Mrs. Olivier. Dr. Cheong indicated in her evidence that the plaintiff reported to her a reduction in her activities during the day and difficulties with sleeping during the night. Dr. Cheong noted that because of the plaintiff’s age, it is likely more difficult for her to recover from an injury and the healing potential may take a little more time than with a person who is younger.
57In addition to the aforementioned surgical intervention, the plaintiff had physiotherapy treatments which were recommended by Dr. Cheong and continued until February, 2009.
58In addition to the fracture to her right shoulder, the plaintiff indicated in her evidence that she still experiences pain in her hip area and that she had a headache from the fall when her head hit the floor in the party room with the headache persisting for approximately one week post accident.
59In her evidence to the court, the plaintiff noted a diminishment of her quality of life and a limitation on her activities as a result of the fall at the defendant restaurant. She reported that she can’t lift pots, can’t reach in the upper cupboards, has stopped vacuuming and can mop the floor, but must stop when the pain persists. Mrs. Olivier has 29 grandchildren and indicated that she cannot lift her younger grandchildren, cannot wash her hair and requires assistance to dress herself. Mrs. Olivier indicated in her evidence that most of the household responsibilities and work around the household have shifted to her husband since the injury to her shoulder.
60It is not surprising that Mrs. Olivier had pre-existing injuries and medical conditions given the fact that she is currently 85 years of age and was 81 years of age at the time of the accident. Mrs. Olivier’s pre-existing injuries were fully canvassed during the trial of this matter and the plaintiff was cross-examined on this by counsel for the defendant. The plaintiff’s pre-existing medical concerns include two artificial knees, some numbness in her feet, neck surgery for vascular disease, loss of hearing, cataract surgery, hip surgery and mini-strokes. There was no evidence before the court concerning any previous injury or difficulty to the plaintiff’s right shoulder or arm and I am satisfied that there should be no deduction from the amount that should be ordered for general damages for any pre-existing injury that existed at the time of the plaintiff’s fall on March 1, 2008.
61In his closing submissions to the court, counsel for the defendants suggested that an appropriate assessment of the plaintiff’s general damages was in the $20,000.00 range given the plaintiff’s age, her pre-accident condition and her post-accident treatment and recovery. In support of general damages at that level, counsel for the defendant relied on the case of Simonoff v. North York (City) [1986] O.J. No. 1998, a decision of the then Ontario District Court. In this 1986 decision, the court assessed general damages for injuries to the plaintiff’s shoulder, eyebrow and knee at $7,500.00. The position of counsel for the defendant was that although this case was 26 years old, in current dollars the award equated to roughly $14,000.00 and provided guidance to the court with respect to the assessment of general damages.
62In his closing submissions to the court, counsel for the plaintiff suggested a range of general damages between $40,000.00 to $50,000.00.
63The defendants did not elicit any independent evidence on the issue of the medical condition of the plaintiff or damages. There was no evidence adduced at trial to suggest that the plaintiff failed to mitigate her damages. On the totality of the evidence, there is no doubt that the plaintiff’s fall on the steps leading into the party room at Pat and Mario’s Restaurant in Sudbury, Ontario on March 1, 2008 caused the injuries sustained by the plaintiff. The injury to the plaintiff’s right shoulder was serious and significant. The injury can be objectively assessed and it was established on the evidence that the plaintiff suffered a fracture to her right shoulder. The plaintiff required surgical intervention, ongoing care by an orthopedic surgeon and physiotherapy treatment for 10 months post-accident. By March, 2010, the plaintiff’s injury had healed and stabilized to the point where there would be no further improvement likely in the future. The plaintiff’s injury is of a permanent nature and on the evidence before the court, it is easily concluded that the plaintiff has enjoyed a reduction in the quality of life and the activities which she is able to participate in as a result of the injury she sustained in this accident.
64I see nothing untoward about the plaintiff’s suggestions for the range of general damages in this case and I assess the plaintiff’s general damages at $50,000.00.
(b) Special Damages
65The plaintiff’s claim for special damages total $5,531.98. the invoices for these special damages are particularized in Exhibit 2 (document brief – damages). Produced at Tab A in Exhibit 2 is a copy of a cheque from Rene Olivier, the plaintiff’s husband, payable to Bob and Marila Summers in the amount of $3,500.00 and dated November 14, 2008. On the cheque there is the following notation “For use of condo 204 St. Bernard Towers.” Produced at Tab B in Exhibit 2 is an invoice marked paid from Health Gear Medical Safety Inc. in the amount of $1,015.99. The invoice is dated March 24, 2008 and has the following notation “Pride Deluxe Petite lift out chair”.
66The plaintiff gave evidence concerning the documents in Exhibit 2 and her special damages claim. Ms. Olivier testified that she and her husband were living in Bruce Mines, Ontario at the time of the accident and after and they rented a condominium in Sault Ste. Marie, Ontario in the winter months of 2008 and early 2009 to be closer to her appointments for physiotherapy in Sault Ste. Marie in the winter months. The cost of the condominium rental was $3,500.00. The payment of $1,015.99 to Health Gear was for an electronic chair. Ms. Olivier testified that she had difficulty getting out of a chair without the use of her right arm and the electronic chair was required as a result of her injury to her right arm and shoulder.
67I have no difficulty with the expense of $1,015.99 as a necessary expense as a result of the injury the plaintiff sustained and accept it as a legitimate special damage claim in this action.
68I have concerns about the expense of $3,500.00 for the condominium rental. Physiotherapy treatments were stopped in February, 2009. Bruce Mines, Ontario, where the plaintiff was residing is 47 kilometers southeast from Sault Ste. Marie, Ontario, where the physiotherapy treatments took place. There was no evidence led about the frequency of the physiotherapy treatments or the weather conditions in November, December, 2008 and January and February, 2009 that would lead me to conclude that the renting of a condominium was necessary and required. If the plaintiff was residing in a larger city it would not be unusual to travel 47 kilometers by vehicle for medical appointments or ongoing medical treatments.
69On the evidence before me, I am not satisfied that the condominium rental of $3,500.00 incurred by the plaintiff was a necessary or reasonable expense required by the plaintiff for her ongoing medical treatment and accordingly, this claim for special expenses is denied.
CONCLUSION
70For the aforegoing reasons, judgment will issue in favour of the plaintiff in the amount of $38,261.99 (75% of general damages of $50,000.00 and special damages of $1,015.99) plus pre-judgment interest in accordance with the Courts of Justice Act.
71If the parties cannot agree on the issue of costs, counsel are to provide written submissions to the court no longer than five pages in length, excluding attachments, by February 8, 2013. These submissions shall have attached to it a bill of costs and any written offers exchanged.
Justice E. Gareau
Released: January 16, 2013
COURT FILE NO.: 24731/09
DATE: 2012-01-16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WANDA OLIVIER
Plaintiff
– and –
803295 ONTARIO INC. O/A PAT AND MARIO’S RESTAURANTS INC.
Defendants
REASONS FOR DECISION
Justice E. Gareau
Released: January 16, 2013