COURT FILE NO.: 472/09

DATE: 20140310

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHAEL KLURFELD and LUDMILLA KLURFELD

Plaintiffs

– and –

NOVA QUEST LOGISTICS INC., WAKEFERN FOOD CORPORATION, GROCERY DAYTON and MARKEL INSURANCE COMPANY OF CANADA

Defendants

Sergio Grillone, for the Plaintiffs

No one appearing for the Defendant Grocery Dayton

HEARD: November 12, 2013

JUDGMENT

Fragomeni J.

Background

1This matter proceeded only against the defendant, Grocery Dayton. The plaintiffs discontinued the action as against all other defendants. The defendant, Grocery Dayton, did not file a Statement of Defence, consequently, this matter proceeded by way of an undefended trial.

2The Statement of Claim in this matter was filed January 21, 2009. The allegations as against Grocery Dayton are set out at paragraphs 8, 10, 11, 12, 13, 14, 15, and 16 of the Claim as follows:

8. The Defendant, Grocery Dayton, is a corporation incorporated pursuant to the laws of New Jersey.

9. On or about the 22^nd day of January, 2007, the Plaintiff, Michael Klurfeld, was working under contract with the Defendant, NovaQuest Logistics, taking a shipment from Oakville, Ontario to the United States of America. The buyer of his last drop of goods was the Defendant, Wakefern Food Corporation, and the consignee was the Defendant, Grocery Dayton. The Plaintiff was dropping off goods at Grocery Dayton, 60 Tower Road, in Dayton, New Jersey. He was dropping off 11 skids to this location at approximately noon on January 22, 2007.

10. The Plaintiff, Michael Klurfeld, states, and the fact is, that he had previously received training in the safe operation of a counter balance fork lift truck and he provided proof of this to security personnel at Grocery Dayton.

11. Once a dock (dock number 13) was ready for the Plaintiff, Michael Klurfeld, to drop off his shipment, the Plaintiff was advised that there was no available staff to unload his trailer. He was given permission to unload his own trailer and use the equipment available at The Grocery Dayton facility.

12. The Plaintiff, Michael Klurfeld, used the electrical pallet stacker and proceeded to begin unloading his shipment. He removed three skids from the trailer and placed them in their appropriate location within the facility (indicated by markings on the facility floor). He then lifted two double-stacked skids in the next row and placed them on the trailer floor. Due to the fact that docks numbered 12 and 14 already had unloaded skis placed in front of them there was not enough floor space to manoeuvre the large electrical pallet stacker.

13. The Plaintiff, Michael Klurfeld, left the electrical pallet stacker next to the already unloaded skids (to be used at a later time to lift any remaining double-stacked skids) and returned to the receiving office to obtain a smaller electrical pallet jack in order to unload the lower skids from his trailer, taking into consideration the floor space restriction caused by the skids in front of docks numbered 12 and 14.

14. The Plaintiff, Michael Klurfeld, began to operate the electrical pallet jack in the correct manner, having to go around the skids in front of dock numbered 14 and at that time placed the jack handle at an upright 90% angle which requires the jack to immediately stop any movement. However, the power jack refused to stop and kept on pushing the Plaintiff towards the guardrail of the ventilation system. The Plaintiff only had time to move his right leg and right side of his body out of the machine’s way, and the power jack hit the Plaintiff’s left leg, squeezing his leg between the guard-rail, causing his leg to break.

15. The Plaintiffs state that the accident was caused solely by the negligence of the Defendants, the particulars of which are as follows:

(a) they failed to have the electrical pallet jack in a proper working order;

(b) they failed to have the electrical pallet jack in a proper state of mechanical repair suitable for the safe use thereof;

(c) they failed to properly inspect the electrical pallet jack prior to allowing the Plaintiff to take it to unload his truck;

(d) they failed to take reasonable care to prevent an accident which they saw or should have seen was likely to happen;

(e) they failed to take any or sufficient steps to ensure that the electrical pallet jack was reasonably safe;

(f) they failed to reasonably inspect or maintain the electrical pallet jack to ensure that it was reasonably safe;

(g) they failed to have a reasonable system of inspection and maintenance in place to ensure that the electrical pallet jack was reasonably safe;

(h) if they had a reasonable system of inspection and maintenance in place, which is denied, they failed to carry out in a reasonable manner the system of inspection and maintenance;

(i) they failed to employ a sufficient number of personnel to inspect and maintain the electrical pallet jack at the time in question;

(j) they failed to have properly trained personnel available to inspect and maintain the electrical pallet jack at the time in question;

(k) they failed to keep any or adequate records or logs of their employees’ or agents’ efforts to inspect and maintain the electrical pallet jack;

(l) they failed to take reasonable steps to ensure that the Plaintiff was safe while using the electrical pallet jack;

(m) they failed to ensure that the electrical pallet jack was in a proper state of repair.

3Pursuant to Rule 25.07(2) of the Rules of Civil Procedure, Grocery Dayton is deemed to have admitted these allegations as it relates to the liability issue. Rule 25.07(2) states:

(2) Subject to subrule (6), all allegations of fact that are not denied in a party’s defence shall be deemed to be admitted unless the party pleads having no knowledge in respect of the fact. R.R.O. 1990, Reg. 194, r. 25.07 (2).

Damages

Damages

4With respect to damages Rule 25.07(6) states:

(6) In an action for damages, the amount of damages shall be deemed to be in issue unless specifically admitted. R.R.O. 1990, Reg. 194, r. 25.07 (6).

5The plaintiff, Michael Klurfeld, sets out the particulars of his damages at paragraphs 17 to 20 of his Claim. Michael Klurfeld alleges that as a result of this incident he sustained permanent and serious impairment of important physical, mental and psychological functions including but not limited to a left tibia and fibula fracture, together with a spraining, straining, and tearing of the muscles, tendons, ligaments and nerves throughout his body. The injuries were accompanied by dizziness, shock, anxiety, depression, emotional trauma, chronic pain, insomnia, weakness, diminished energy and stiffness which continue to the present and will continue into the future.

6The plaintiff, Ludmilla Klurfeld states at paragraph 26 of the Claim that she has suffered damages for loss of care, guidance and companionship pursuant to the Family Law Act.

7At the undefended trial the plaintiffs filed a Book of Documents marked as Exhibit 1 at the trial. In addition to that filing both Michael Klurfeld and his wife, Ludmilla Klurfeld testified.

Evidence of Michael Klurfeld

Evidence of Michael Klurfeld

8The incident that gives rise to this claim occurred on January 22, 2007. Mr. Klurfeld is a truck driver by trade and he had picked up a load from Nova Quest Warehouse. He travelled to the State of New Jersey to the defendant, Grocery Dayton’s premises. When he arrived he was told Grocery Dayton could not unload his trailer. The only option he had was to unload the trailer on his own as he was given an electrical power jack to remove the skids from the trailer. During this process the power jack did not stop and it pushed him into the wall. He immediately felt pain and fell to the floor.

9The people in the warehouse noticed Mr. Klurfeld and they called for an ambulance. He was taken to the hospital and his leg was x-rayed. He was told he had two broken bones in his left leg. He had surgery the next day.

10On January 24, 2007 he travelled back to Ontario. On January 27, 2007 he saw his doctor. He was experiencing severe pain in his leg. As a result he was rushed to the emergency department at Oakville Hospital. On that day he was given painkillers. He attended again on January 29, 2007 and his leg was examined. It was swollen, black in colour and gangrene had set in. He was admitted and remained in the hospital for three days. He was discharged with orders to take painkillers and antibiotics.

11The surgery he had undergone inserted a permanent metal rod from his knee to his heel.

12After he was released from the hospital he underwent rehabilitation with Dr. Zalzal. He engaged in rehabilitation for about six months.

13Mr. Klurfeld stated that during this six month rehabilitation period, he never returned to work with Nova Quest. Near the end of that six month period Nova Quest ceased being in operation.

14Mr. Klurfeld stated that as a result of his leg injury he could not return to long haul trucking. Mr. Klurfeld started working again in October 2007 and looked for work as a truck driver dealing with trucks that had an automatic transmission but was unable to find such work. Consequently, he and his wife opened their own company and he gradually over time reached his present work capacity. He is unable to work the same hours or do the same trips he did before as a long haul truck driver.

15As a result of a diminished work capacity his income loss is substantial.

16At the time of trial his restrictions continue to be the following:

• Swollen leg

• Knee pain

• Constant aching – he has to stop his truck to lift his leg and apply a cold pack

• Constant pain for which he takes Tylenol.

17Prior to the incident he was very active and had a good lifestyle. He was earning good money. Now he is very tired and needs to rest often. He was involved in baseball, soccer, volleyball, skating and skiing. He did repairs to his home.

18His understanding is that no future treatments are anticipated.

Evidence of Ludmilla Klurfeld

Evidence of Ludmilla Klurfeld

19Mrs. Klurfeld lives in Oakville with her husband. The incident has had an impact on their relationship. It has changed her life completely. Although she tries her best to support her husband she is not always successful. Mr. Klurfeld’s mood has changed very much. He is constantly depressed. Their personal life has changed. The intimacy in their relationship has changed. She now has also taken on more responsibilities around the house.

20When they opened up their own trucking company after Nova Quest closed, it was a very hard time for her. She had to learn about the business and it was stressful for her. She had no time for herself and her family. Her health began to deteriorate and she developed high blood pressure.

21Mrs. Klurfeld stated that she is now a different person.

Book of Documents

Book of Documents

22Exhibit 1 at this undefended trial is the Book of Documents containing the following five Tabs:

1. Bluepoint Valuation Economic Loss Report dated June 3, 2013;

2. Bloor-Christie Rehab Functional Capacity Evaluation dated June 20, 2012;

3. Bloor-Christie Rehab In-Home Assessment dated June 20, 2012;

4. Bloor-Christie Rehab Job Site Ergonomic Assessment Report dated June 20, 2012;

5. Clinical Notes and Records of Dr. Donskoy received July 12, 2011.

23At Tab 1 page 2, the Economic Losses – Executive Summary sets out the lost earnings for Scenario 1 (age 67) and Scenario 2 (age 62) see Schedule ‘A’ (attached).

24Tab 2 sets out the Bloor-Christie Rehabilitation report prepared by Dr. J.A. Nathanson. The date of assessment is June 20, 2012, 5 years 5 months post-accident. At page 12 of the report the following Summary of Impairments are noted:

Expressed Symptomatology:

• left lower leg pain

• grating of left knee

• difficulty doing knee bends

• difficulty re-extending knees

• difficulty driving with left foot on clutch

• swelling of ankle periodically

• inability to run

• difficulty walking stairs

Observed Impairments:

• existence of full length nail from patella to the ankle in the left lower limb

• likely development of scar tissue over the past 5 years

• development of chronic pain

• impairment in knee flexion left side

• impairment in knee re-extension from a flexed position

• heel walking impairment left side

• toe walking impairment left side

• full weight bearing left side impairment

• knee cap grating giving the appearance of patellofemoral syndrome

25Tab 2 relates to the Functional Capacity Evaluation and Tab 3 relates to Elana Yagudin, (Registered Nurse) In-Home Assessment.

26Tab 4 is the Bloor-Christie Rehabilitation Report relating to his employment issues.

27Dr. Zalzal prepared a letter dated October 10, 2007 setting out the following relating to his employment restrictions as a truck driver:

Wednesday October 10, 2007

To Whom It May Concern:

Re: Michael Klurfeld

Mr. Klurfeld is a patient of mine who suffered a fracture of his left tibia which was treated with an open reduction internal fixation. His injury occurred on January 23, 2007 in New Jersey. His fracture is healing and he is able to return to work however, he will have difficulty using the clutch in a manual transmission truck. Therefore, I recommend that he switch to an automatic transmission truck which will enable him to work longer hours with less discomfort.

If you require any further information please do not hesitate to contact my office at your convenience.

Sincerely,

Paul Zalzal BASc, MASc, MD. FRCSC

Assistant Clinical Professor

Faculty of Medicine

Department of Surgery

McMaster University

Orthopaedic Surgeon

Oakville Trafalgar Memorial Hospital

Position and Submission of the Plaintiff

Position and Submission of the Plaintiff

28The plaintiff, Michael Klurfeld seeks general damages for physical and psychological damages in the range of $110,000.00 to $150,000.00.

29With respect to Mrs. Klurfeld, the plaintiff submits that the range is $40,000 - $60,000.

30With respect to the future loss of income, the retirement age can reasonably be set at an age between 62 and 67. The future care costs of $1,000 per year is reasonable in all of the circumstances.

Conclusion

Conclusion

31The defendant, Grocery Dayton has, pursuant to Rule 25.07(2) of the Rules of Civil Procedure, admitted all of the allegations by virtue of its not having filed a Statement of Defence.

Liability

Liability

32I am satisfied therefore, that liability attaches to Grocery Dayton and judgment shall issue as against it.

Damages

General Damages: For Pain and Suffering

General Damages: For Pain and Suffering

33I am satisfied that general damages for Mr. Klurfeld are properly set at $125,000.00.

34The FLA claim for Mrs. Klurfeld is set at $30,000.00.

Future Economic Loss

Future Economic Loss

35Considering the nature of the work that Mr. Klurfeld engaged in, I am satisfied that a retirement age of 62 as set out in Scenario 2 is more reasonable. In those circumstances the total loss is $799,100.00 with the contingencies noted.

36The future cost earnings were based on the following factors as set out in the report:

We calculated future lost earnings based on these factors:

a. expected annual earnings of $57,500 per year, based on the full year 2013 earnings as noted in Paragraph 32 (page 8)

b. expected earnings due to Mr. Klurfeld’s injuries of $25,600 per year until 2016, after which time annual earnings are reduced to $9,100. We calculated these amounts based on the following:

i. The total of Mr. Klurfeld’s 2013 income ($15,300) and add back for meals ($10,300), which totals $25,600.

ii. After 2 more years (at the latest), Mr. Klurfeld will require a new truck. It is standard to replace a truck every 5 years, and the current truck is 9 years old and has over 1.2 million kilometres. However, given his financial situation and earnings level, we understand that this will not be feasible. We assumed that at this time, he would have to find alternate employment, likely in a sedentary role.

iii. We assumed that he will work in a minimum wage position. The average male that works part-time works 17 hours per week. 17 hours multiplied by 52 weeks multiplied by $10.25 per hour (minimum wage) equals $9,100 per year.

c. an expected retirement age of 67, or about 13.8 years until retirement.

37The lost earnings for Scenario 2 is set out at page 14 of the report as follows:

54. Scenario 2 addresses the possibility that Mr. Klurfeld is unable to continue working to age 67 due to his injuries.

55. We used the same Present Value and contingency rates as we did for Scenario 1.

56. We have not included schedules for Scenario 2 in our Report, but the schedules can be made available upon request.

57. Annual earnings and all other items are the same as Scenario 1, with the exception that Mr. Klurfeld would retire at age 62 instead of 67 due to his injuries.

58. Based on the above, we calculated the following losses including contingencies:

a. Past lost earnings remain unchanged at $187,100

b. The Present Value of future lost earnings are $700,000 (before contingencies)

c. The Present Value of future lost earnings are $612,000 (with contingencies)

59. Total losses (including contingencies) in Scenario 2 are therefore $799,100.

38In dealing with the present value of Future Losses and Present Value with contingencies the reports set out the following at page 10:

38. In accordance with Section 53.09 (1) of the Rules of Civil Procedure, we applied the following discount rates:

a. -0.50% for the first 15 years after Today (that is, until June 3, 2028), and

b. For any years after 15 years from Today, a rate of 2.50% applies.

39. As shown in Schedule 2, we applied these rates and arrived at a present value of future losses of $651,000.

40. We applied contingencies for the following possibilities:

a. Mr. Klurfeld may pass away before age 67

b. Mr. Klurfeld may have become disabled before age 67 even if not for the Incident

41. We did not apply any other contingencies, such as a labour force or unemployment contingencies. Other than disability, labour force statistics take into account people who leave the workforce to parent, retire or other similar issues. The only reason Mr. Klurfeld would have left the workforce before age 67 is disability, so no further contingency is needed.

42. Because Mr. Klurfeld is self-employed, we did not include an unemployment contingency.

39The Survival Contingency and Disability Contingency are set out at pages 11 to 13 as follows:

43. Based on the Life Tables noted in the Scope of Review (Page 17), annual survival rates for the average 53-year old male are as follows:

[See Schedule ‘B’]

44. We applied these statistics to the lost earnings and arrived at lost earnings after the survival contingency of $614,000.

45. We reviewed the probability that Mr. Klurfeld would have been unable to work in the future due to disability. We looked at two factors, both based on the 2006 PALS (see Scope of Review – Page 17):

a. The number of males that are disabled in Ontario between ages 53 (Mr. Klurfeld’s age Today) and 67 (Mr. Klurfeld’s retirement age).

b. The number of disabled people in Canada that do not work due to their disability between ages 53 and 67. Ontario and gender-specific figures are not available in this category.

46. By looking at the number of disabled people and the percentage of disabled people that cannot work due to their disability, we can calculate the probability that Mr. Klurfeld would have:

a. become disabled, and

b. not been able to work as a result

47. Based on the 2006 PALS, we noted that the following percentages of Ontario males would have a disability of some sort. This ranges from 18.6% at age 53 to 58.2% at age 67:

[See Schedule ‘C’]

48. We know that this information includes all disabled males, and that a good portion of these males work despite their disabilities. We noted the following percentages of disabled people and non-disabled people that are in the labour force (meaning that they work or want to work):

Age range

Disabled

Not Dis.

% (below)

15-24

51.7%

66.2%

21.9%

25-34

66.9%

86.8%

22.9%

35-44

68.5%

88.7%

22.8%

45-54

62.7%

88.8%

29.4%

55-64

42.5%

65.1%

34.7%

The last column shows the percentage of disabled people that don’t work due to their disabilities.

49. As an example, 62.7% of 45 to 54 year-old disabled people are in the labour force despite their disabilities (see the highlighted row). Of non-disabled people, 88.8% are in the labour force.

50. This means that about 63 out of every 100 disabled people are in the labour force and about 89 out of every 100 non-disabled people are in the labour force. This means that 26 out of 89 people would have been in the labour force if not for their disability. We divided 26 into 89 and concluded that 29.4% (16/89) of 45-54 year-old disabled people cannot work due to this disabilities.

51. We multiplied the numbers of disabled males in each age group by the likelihood that they would not be able to work due to their injuries. For example:

a. 18.6% of 45-54 year-old males have some form of disability

b. 29.4% of 45-54 year-old people cannot work due to their disabilities

c. Therefore, 5.5% of 45-54 year-old males are not working due to their disabilities (18.6% x 29.4%)

d. Therefore, 94.5% of 45-54 year-old males work, disabled or not (100%-5.5%).

52. Based on these calculations, we calculated the following disability contingencies:

[See Schedule ‘D’]

53. In Schedule 3, we applied the disability contingencies and arrived at the present value of future lost earnings after contingencies of $572,000.

Future Care Costs

Future Care Costs

40The future care cost at $1,000 per year is allowed at $26,100.00.

41Judgment to Issue as follows as against Grocery Dayton as follows:

1. To Mr. Klurfeld

General Damages for Pain and Suffering $125,000

Total Lost Earnings $799,100

Future Care Costs $ 26,100

To Mrs. Klurfeld

Family Law Act $ 30,000

TOTAL $980,200

2. Pre-Judgment interest in accordance with section 128 of the Courts of Justice Act R.S.O. 1990, c.C. 43 as amended;

3. Post Judgment interest in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 as amended.

42The plaintiff shall file written submissions on costs within 20 days.

Fragomeni J.