2014 ONSC 198
FILE NO.: 10-23382
DATE: 2014-01-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Glenda Grayling and Kevin Grayling
Robert J. Hooper, for the Applicants
Applicants
- and -
The Corporation of Haldimand County
W. Colin Osterberg, for the Defendants
Defendants
HEARD: November 21, 22, 25, 26, 27, 2013
REASONS FOR JUDGMENT
LOFCHIK J.
OVERVIEW
[1] This is an action for damages for personal injuries which the female plaintiff sustained in a trip and fall incident occurring in the Town of Caledonia on November 25, 2009.
[2] The defendant, The Corporation of the County of Haldimand, was responsible for maintaining the sidewalks in the Town of Caledonia at the relevant time.
[3] The plaintiffs allege that Glenda Grayling’s fall was caused by the negligence of the defendant in failing to properly maintain the sidewalk in the area where the fall occurred.
[4] The defendant maintains that it took reasonable steps to maintain the sidewalk in a safe condition.
LIABILITY
FACTS
[5] At the relevant time the plaintiff, Glenda Grayling, was 49 years old and lived in Fisherville, Ontario with her husband Kevin, age 52, and her son Seth, age 11.
[6] On November 25th, 2009 the plaintiff was employed as a hairdresser at First Choice Haircutters, which was situated on the west side of Argyle Street in the Town of Caledonia. She had worked there since 2005.
[7] Her husband Kevin was employed at Shopper’s Drug Mart, also located on the west side of Argyle Street, a short distance north of the female plaintiff’s place of employment.
[8] On November 25, 2009 Mrs. Grayling’s hours of work were 9:00 to 5:00. Her husband Kevin’s hours were 8:00 to 4:00. They went to work separately.
[9] Before she went to work Glenda Grayling got a call from her husband saying he had forgotten his eyeglasses at home and asking that she bring them to work with her. She drove to work with the glasses and waited for another employee to arrive to keep an eye on the store then set out in a northerly direction on the west side of Argyle Street to deliver the glasses to her husband at the Shopper’s Drug Mart store.
[10] She got about half way to the Shopper’s Drug Mart store when she sustained the fall which gives rise to this action.
[11] She testified that while walking along the sidewalk she stubbed her toe due to a difference in the height between two slabs of the sidewalk. Stubbing her toe caused to take four or five quick steps forward and fall onto her right arm onto the grass next to the sidewalk.
[12] Exhibit 1 is a Joint Photograph Brief. She testified that the photos on pages 1 and 2 of Exhibit 1 show the sidewalk where she sustained her fall. She got up and walked the remaining half block to the Shopper’s Drug Mart store to deliver the eyeglasses to her husband.
[13] She noticed after she got up that her right arm hurt. As a result of her complaints of pain, her husband drove her to the hospital in Hagersville. On the way as they passed the spot where she fell she had her husband slow the car down and she pointed out the spot to him.
[14] At the Hagersville Hospital they took x-rays and advised her that she had a fracture of her upper arm at the rotator cuff. They put her arm in a sling, gave her some Tylenol 3 and referred her to a medical specialist.
[15] When shown Exhibit 1, the Photo Brief, she testified that the photo at the top of page 1 is looking north on Argyle Street, the photo at the top of pages 2 and 3 were looking south and the bottom photo on page 2 as well as the photo on page 4 are looking north.
[16] She testified that she did not see the defect in the sidewalk before she fell. When asked where on the sidewalk she was walking, she was uncertain but said it was probably in the middle of the sidewalk.
[17] She estimated that the height differential between the two slabs where she fell was one and a half inches.
[18] She testified that at the time of the fall she was wearing slip-on sandal type shoes. These were made Exhibit 6 at the trial. They have flat soles which do not appear to have excessive wear. I see nothing unusual about her footwear.
[19] On December 2, 2009 Kevin Grayling attended with a coworker and former coworker at the site where his wife fell for the purpose of taking photographs. The photos in Exhibit 1 (Joint Photo Brief) were taken at this time by a former coworker. The bottom photo on page 1 was taken with a ruler in the joint between the two slabs to show the degree of displacement between the slabs. The ruler itself was entered as Exhibit 8.
[20] There is a space of about one-eighth of an inch between the end of the ruler and the beginning of the inch scale.
[21] The bottom photo shows a one and one-quarter inch differential in height between the two slabs measured at the forward toe of the person in the top photo on page 1, which is a distance of about one-third of the width of the sidewalk easterly from the western edge of the sidewalk. The photo at the bottom of page 3 was taken at the same location.
[22] It was the evidence of Kevin Grayling that many people have tripped on the sidewalk in this area.
[23] Beth Losak-Lange who took the photos in Exhibit 1 testified that the ruler in the photo at the bottom of page 1 was sitting on the top edge of the slab nearest the camera in the photo at the bottom of page 1 of Exhibit 1. She was lying on the ground when she took the photo at page 4 of Exhibit 1. This photo shows that the height differential between the slab extends some distance east of where Kevin Grayling measured the height distance which is where there is a piece of orange coloured vegetation lodged in the crack between the two slabs (see bottom of page 1), although the height differential decreased further to the east.
[24] Neil Unwin, an independent insurance adjustor, was retained by the County to investigate the Notice of Claim filed by the plaintiff in December, 2009. Unfortunately because of a communication problem he investigated what appears to be the wrong stretch of sidewalk in the first instance.
[25] He returned to the scene on April 21, 2010 and took photos and measurements. His photo brief is marked as Exhibit 11 in these proceedings.
[26] Apart from the lapse of time between the fall and the date he attended at the correct site I am not satisfied as to the accuracy of his measurements for a number of reasons: firstly, there is about a one-eighth gap between the end of the ruler and the beginning of the scale on the ruler used for measurements. Secondly, when put on a flat surface it is clear that the device he used to measure is not level and could be off by as much as one-quarter of an inch. Thirdly, because of the length of the arms on the measuring device it does not measure the trip edge but rather the difference between two points back from the trip edge. Lastly, Mr. Unwin’s measurements seemed to indicate that the displacement between the two slabs is higher between the west edge of the sidewalk and its midpoint than it is at the west edge and the midpoint. When looking at the photo at the bottom of page 2 of Exhibit 1 and the photo on page 4 of Exhibit 1 it seems clear that the highest point of the northerly slab is at its west edge. It would appear as though the bottom of the northerly slab is almost equal to the top of the southerly slab. I place no weight on the evidence of Mr. Unwin.
[27] Donald Wilson testified that he is the road supervisor for the Corporation of the County of Haldimand and that his duties include overseeing the maintenance of roads and walkways. The County has technicians who do sidewalk inspections in Caledonia pursuant to a written Inspection and Maintenance Policy which was in force in 2009. Exhibit 2 contains a copy of a maintenance policy as well as the inspection and maintenance records for the relevant section of Argyle Street in Caledonia.
[28] Mr. Wilson testified that a technician walks the sidewalks once per year and classifies deficiencies as level 1, 2 or 3, with level 1 being the most moderate and 3 the most serious.
[29] The policy sets out the defects to be looked for in these inspections, the relevant one for the purposes of this action being “separations” which are described as the situation where two sidewalk panels have moved or leaned resulting in a height difference between the two panels. The policy describes the separation defects as follows:
Level 1 - less than one centimetre in depth (one-half inch).
Level 2 - 1.25-2.5 centimetres (one-half inch to one inch).
Level 3 - over 2.5 centimetres (over one inch).
[30] The policy required that all defects classified as Level 3 be scheduled for repair “as soon as practical and if necessary marked for public notice immediately”. All defects marked as Level 2 to be placed on a list for repair as soon as resources allow and all defects and hazards classified as Level 1 to be documented and reviewed on the next inspection.
[31] If a complaint was received about a defect it is was to be inspected, rated and dealt with according to the policy.
[32] Inspection records for the relevant section of Argyle Street indicate that inspections took place once per year. The records reveal the following:
DATE LEVEL 1 DEFECTS LEVEL 2 DEFECTS LEVEL 3 DEFECTS
30/June/2005 4 1 1
21/Sept./2006 30 1 1
15/Oct./2007 7 2 1
31/July/2008 5 4 1
06/July/2009 4(1 separation) 1(zero separations) 0
28/May/2010 8(four crack 1(crack) 0
4 delections)
[33] The records indicate that repairs were ordered to the relevant section of Argyle Street in August of 2008 but does not specifically set out what those repairs were.
[34] The records also indicate that in spite of only 8 Level 1 defects and one Level 2 defect reported in May, 2010, 29 repair cuts were made 5 in the vicinity of where the plaintiff fell.
[35] The maintenance policy was changed in 2013 as follows:
LEVEL 1 LEVEL 2 LEVEL 3
Surface Discontinuity less than 2 cm. 2cm. to 5 cm. greater than 5 cm.
(1 inch) (1 to 2 inches) (2 inches)
“All surface discontinuity classified as Level 2 and Level 3 to be marked for the public notice immediately and scheduled for repair as soon as practical”.
[36] Danielle Fletcher who has been employed by Haldimand County since February, 2009 testified that she arranges for sidewalk inspections and repairs. The sidewalks in the area relevant to these proceedings are inspected once per year. The inspections are either done by her or college students, generally Mohawk Civil Engineering students. She trains the students and they are given a ruler and inspection forms to carry out their duties.
[37] She testified that one inch is not considered a hazard. A major hazard is a deflection of over one inch.
LAW
[38] The Municipal Act provides as follows:
S. 44(1) The Municipality that has jurisdiction over a highway or bridge shall keep it in a
state of repair that is reasonable in the circumstances, including the character and
location of the highway or bridge.
(2) A Municipality that defaults in complying with subsection (1) is, subject to the
Negligence Act, liable for all damages any person sustains because of the
default.
(3) Despite (2), a Municipality is not liable for failing to keep a highway or bridge
in a reasonable state of repair if,
(a) It did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
(b) it took reasonable steps to prevent the default from arising; or
(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.
S. 44 Municipal Act, 2001, S.O. 2001, chapter 25.
[39] It is for the plaintiff to demonstrate that a condition of non-repair existed which in turn caused the plaintiff’s injury. Once the plaintiff has established this condition of non-repair, the onus shifts to the Municipality to establish that the condition of non-repair existed notwithstanding that it exercised proper care and diligence in the inspection and maintenance of the highway.
Sauve v. Ottawa Hydro Electric Commission, 1993, O.J. 680 (General Division), para 20
[40] The plaintiff must demonstrate that the city’s negligence was at least part of the cause for the plaintiff’s injury.
Cartner v. Burlington, (2008) O.J. (S.C.J.), para 18
Snell v. Farell 1990 CanLII 70 (SCC), [1990], 2 SCR 311
Kamin v. Kawartha Dairy Ltd. 2006 Can LII 3259 (ONCA)
[41] The plaintiff need not prove causation with scientific certainty, only on a balance of probabilities.
Carter v. Burlington supra para 18 and 22
Kamin v. Kawartha Dairy Ltd. supra
[42] An elevation difference between sidewalk slabs is not necessarily a “non-repair”. It must be noted that sidewalk installation is not an exact science. Sidewalk slabs are rarely, perfectly smooth, as pedestrians need a surface upon which traction is readily available. There is a sense that pedestrians should not be expecting a perfectly flat surface any more than if they were walking elsewhere and so consequently, it is not every accident that speaks of a non-repair. To hold otherwise, as MacFarland J. stated in Stojadinov et al. v. Hamilton (City) (1988) 41 M.P.L.R. 185, 1998 Carswell Ont. 582 at para 43, “would (be to) make the city virtually the insurer of every pedestrian who walks the streets.” The objective or duty of the municipality is “to keep the sidewalks in repair…in such a condition that a person using ordinary care of his or her safety can pass along it in safety.”(IBID. at para 45)
[43] Even though a state of perfection is not expected, the Ontario Court of Appeal appears to have established some bench marks as to when sidewalk elevations become non-repair. In Ford v. City of Windsor (1955) O.W.N. 873, the court ruled that a height differential between three-quarters of an inch and one inch constituted a non-repair. Similarly, in Daley v. Toronto (1960) O.W.N. 480, the court found that a height differential no greater than three-quarters of an inch was not a non-repair. Therefore, as Valin J. noted in his review of these cases in Blaqiere v. Burlington [1999] O.J. No. 2558 (Superior Court) at para 16, three-quarters of an inch appears to be “something of a judicial rule of thumb”. (See also Epifano v. Corporation of the City of Hamilton, [2005] O.J. 1463 (S.C.J.), para 9 and Boyce v. Woodstock [1993] O.J. 2532, at para 32.
[44] With respect to the system of inspection that can rebut a prima facie case of non-repair causing damages, it must be emphasized that the statutory language and the case law employs the adjective “reasonable”. This is an objective assessment based on the conditions or circumstances of the particular location, for example, it is recognized that a high pedestrian traffic area requires more vigilance. It should be noted that the evidence before me is that the section of sidewalk in question is considered to be a high pedestrian traffic area.
ANALYSIS
[45] I’ve come to the conclusion that in all likelihood the trip ledge which caused Mrs. Grayling’s fall was between three-quarters of an inch to one and one quarter inches. Looking at the differential in the photographs in Exhibit 1, I have concluded that indeed a trip hazard existed.
[46] There was a state of disrepair of the sidewalk. Although there was an inspection system, there was no evidence about the degree of measurement of areas of concern or if an area of concern less than one inch was spotted. There is no evidence of repair.
[47] The evidence before me is that in general the system for assessing the state of repair of a sidewalk provided for estimate of displacement by viewing. While a sidewalk walker had a ruler with them, this was used only when there was some doubt as to the amount of displacement. No measurements of the actual displacement were recorded on the inspection sheet. Danielle Fletcher testified that at the time one inch of displacement was not considered a hazard and that only displacements of over one inch were classed as a major hazard.
[48] There would appear to be no repairs to the trip ledge between the inspection date of May 7, 2009 and the date of the fall being November 25, 2009. In the May inspection report there was only a class 1 hazard of, that is of less than half an inch reported.
[49] It is unlikely that any weather conditions or indeed any conditions between the end of May and November would cause the deflection to increase significantly and I would conclude that even though the town did check the sidewalk for trip ledges in the spring of 2009 this was more than a minor trip ledge and was missed in the inspection.
[50] I am satisfied that the female plaintiff fell on the defendant’s sidewalk which was in an unsafe condition caused by its failure to maintain it.
[51] I find that both sides bear some responsibility for the accident and the attendant injuries sustained by Glenda Grayling. The plaintiff did not pay enough attention to where she was walking. The differential in the height of the two slabs of the sidewalk was there to see as shown in the photographs.
[52] On the other hand, the defendant in its spring 2009 inspection failed to recognize the hazard or, recognizing it, failed to act with reasonable dispatch in effecting repairs.
[53] I find that both parties are 50 percent liable for the damages suffered by the plaintiff Glenda Grayling.
DAMAGES
General Damages
[54] Mrs. Grayling appears to have been in good health prior to her fall of November 25, 2009 without any orthopaedic problems or medical problems that would interfere with her normal routine of living. She had not suffered any fractures prior to this incident.
[55] She and her husband and son lived in a one and a half story house with no basement situate on two acres of property with a barn. The property also had a flower garden and vegetable garden, a pool and a large patio. They had lived at this location for about 15 years at the time of her fall.
[56] Mrs. Grayling shared the work about the house with her husband, including some outside gardening, laundry and inside housekeeping.
[57] She and Kevin were married in 1996 and they shared social activities together, including going to the movies and shopping. She was also involved with social activities with girlfriends on occasion.
[58] The injury Mrs. Grayling sustained was first diagnosed as a fracture of the greater tuberosity in the shoulder joint, later ultrasound discovered a full thickness tear of the rotator cuff.
[59] She has since the fall had difficulty with a minimum amount of social activities, difficulty with domestic chores and difficulty performing the tasks of her job as a hairdresser.
[60] She saw Dr. Sadler, an orthopaedic specialist two weeks after the fall. She was told there was no need for surgery and was encouraged to use her arm to prevent the shoulder from freezing up, although it was originally put in a sling at the hospital. She was not prescribed any medication other than Tylenol 3 and told she could go back to work in a couple of months.
[61] She saw Dr. Sadler again in April of 2010 and testified that he didn’t do anything at the time and that she has not seen him since. Dr. Sadler was unable to make any further diagnosis in April, 2010 because the x-ray equipment to which he had access was not functioning at the time of her visit. He suggested seeing her another day but this did not happen.
[62] In the summer of 2011 she was experiencing pain in her left shoulder, however, this was resolved after an injection given by Dr. Cividino, to whom I will refer later.
[63] She was off work totally from the date of the fall, November 25, 2009 to February 1, 2010, and then went back on limited hours between February 1, 2010 and May 1, 2010, when she returned to a 35 hour a week schedule at work. Between February and May, 2010 she was working three days per week and testified that these hours were about all she could do, that she was unable to do any significant housework during this period. She was getting very little sleep because of the pain in her shoulder.
[64] Even at the time when she went back to work she was able to do very little housework or socializing.
[65] She subsequently started taking Monday’s and Tuesday’s off and worked Wednesday’s through Saturday’s. She asked for these days off because of the pain and the days off have helped ease the shoulder pain.
[66] She testified that she is now working reduced hours, missing approximately 10 hours a week.
[67] She saw Dr. Robert Dunlop, an orthopaedic surgeon, in June of 2012 and he has rendered an opinion that the fracture in the right shoulder and the rotator cuff tear were as the result of the fall of November 25, 2009. Dr. Dunlop advised her against doing things that caused her pain such as vacuuming, reaching into a washer and weeding. He was unable to give a true prognosis because Mrs. Grayling had not had any treatment in the form of injections or otherwise. He recommended physiotherapy and possibly cortisone injections into the shoulder.
[68] She saw Dr. Cividino in December of 2012 and obtained a cortisone injection into her right shoulder. She testified that prior to this cortisone injection the pain was not bad in the morning but bad by the end of the day. She was experiencing pain in the right shoulder and up her neck.
[69] She was pain-free right after the cortisone injection for a couple of months but after a couple of months the pain began to return and she started having problems with her shoulder again.
[70] Dr. Cividino has advised her that a cortisone injection once per year is permissible and would likely be beneficial. At the time of trial it was almost a year since the cortisone injection and she was still feeling the benefits of the injection although the benefits seemed to be waning.
[71] She saw Dr. Matthew Denkers, an orthopaedic surgeon, in September of 2013 and in discussions with him it was decided that surgery for the shoulder was not warranted at that time and that she would be treated with cortisone injections as warranted.
[72] Both Dr. Cividino and Dr. Dunlop have recommended physiotherapy which she has not pursued she says due to the cost.
[73] So far as functional limitations at work are concerned, she testified that she does the work that she did before but it is painful to do so. She does not do as many customers as she used to in a day because she is working slower. She says it helps to take breaks while cutting hair during the day. She has physical limitations in reaching above shoulder level or lifting anything heavy such as a laundry basket full of clothes.
[74] Prior to the cortisone injection she had problems reaching to cut hair but the cortisone injection was helpful for about 10 months in allowing her to do her work. She notices she is now having problems again.
[75] She testified she has problems doing things such as laundry at work and needs to ask for help in doing things such as taking the garbage out at the end of the day. She testified that she can still drive but she doesn’t go out very much with her girlfriends due to the pain in her arm. She testified that before the fall she was walking for about an hour a day for the purpose of losing weight but does not walk much now for fear or falling.
[76] So far as domestic chores are concerned, she states that her ability to do housekeeping has changed significantly. She has trouble making beds, for instance, and needs help in doing so. She doesn’t do much vacuuming or washing the floor, nor does she do dishes very often. She does do laundry but it takes longer and she needs help doing such things as reaching in to remove clothes from the dryer. She testified that she does try to clean the bathrooms but needs help in doing so.
[77] She testified that her son Seth helps with some of the domestic chores and that her husband Kevin has picked up the load since November of 2009. The cortisone shot helped her do domestic chores at home for a period of time but now after 11 months she testified that she does about 50 percent of the work that she did before the fall. She has tried washing floors and does do dusting but all of this causes her pain.
[78] Before November, 2009 she did some gardening and weeding but can’t do much work in the garden anymore. She says she tried it but was unsuccessful in continuing. She testified that weeds just don’t get done as Kevin doesn’t do much gardening and weeding.
[79] Almost two years ago her husband purchased and installed a hot tub and she says that sitting in the hot tub with her husband massaging her shoulder helps temporarily ease her discomfort.
[80] The current state of her injury appears to be more or less permanent, as are the significant discomfort and disabilities which the injury causes. Mrs. Grayling continues to lack strength and endurance in the use of her right dominant arm. Physically she cannot apply pressure through her right arm, lift or carry heavier items or complete repetitive arm movements against resistance or sustain her arm overhead for periods of time. These physical limitations impact her ability to contribute to homemaking, housekeeping and outdoor maintenance tasks. Mrs. Grayling is not able to maintain both work and household responsibilities due to her arm/shoulder strain and fatigue.
[81] Seth Grayling, Glenda’s son, testified that he is in grade 10 at Cayuga Secondary School and that prior to his mother’s injury he had some chores to do around the house, mostly keeping his room clean and sometimes walking the dog. He testified that when he came home on November 25, 2009 his mother was on the couch with her arm in a sling and since that time he has had to do more things around the house such as carry things and do more cleaning up chores. He was doing significantly more chores during the November to February period but was not able to give any estimate as to the time he spent aiding his mother.
[82] After his mother went back to work in February he still did work around the house and is still helping out with chores such as carrying out the laundry basket for her, helping her out of a chair, picking up things from the floor as well as the household chores he did before. Since the time of the injury he has been helping his mother get up out of the chair in the living room and notices that she continues to complain about the right arm occasionally.
[83] I would assess her general damages for pain and suffering and loss of amenities of life on 100% basis in the amount of $50,000.
FUTURE CARE COSTS
[84] Mrs. Grayling has been assessed by two occupational therapists, Leony Hettinger, at the behest of plaintiff’s counsel, and Bonnie Koreen, at the behest of the defence. Their reports form part of the Joint Expert’s Brief, Exhibit 5. They, not surprisingly, have made different assessments concerning Mrs. Grayling’s disability and the cost of future care and assistance in living.
[85] Based on the evidence before me I make the following findings with respect to future care costs:
Cost Total
Physio Assessment/Physio Therapy to age 60 $ 560.00 $16,697.24
Equipment Needs
Moist Heat $ 60.00/year
Wheeled Laundry Basket $ 11.30
$ 1,984.37
Housekeeping up to age 70 $ 4,936/year $ 75,735.00
Gardening/Window Cleaning/ $ 2,834/year $ 50,114.18
Curtain Washing to age 70
Grand Total $144,530.79
Note: I have provided for physiotherapy to age 60 on the recommendation of the occupational therapists and other services to age 70 on the basis of whether or not she had received this injury the plaintiff would be probably be requiring these services at that age.
LOSS OF INCOME TO DATE
[86] The plaintiff testified that prior to the fall she was working 35 hours per week making $10.60 per hour. After the fall she was unable to work between November 25, 2009 and February 1, 2010 and that between February and May she was working only 3 days per week losing 14 hours per week due to the injury.
[87] The time off from work was corroborated by the evidence of Heidi Lorinez, assistant manager at Glenda Grayling’s place of employment.
[88] The plaintiff is entitled to compensation for loss of income during this period which I calculate as follows:
November 25, 2009 to February 1, 2010
10 weeks x 35 hours x $10.60/hr = $3,710.00
February 1, 2010 to May 1, 2010
13 weeks x 14 hours x $10.60/hr = $1,929.20
Total: $5,639.20
LOSS OF INCOME MAY 1, 2010 TO NOVEMBER 27, 2013
[89] In 2008, the plaintiff’s hourly rate was increased to $10.60 from $10.00 per hour. She testified that she took two weeks holidays per year.
[90] Income records filed indicate the following earnings to date:
2008 $15,492.00
2009 $17,750.00 (11 months)
2010 $15,234.00 (10 months)
2011 $19,309.00
2012 $18,641.00
[91] When one calculates working 50 weeks at 35 hours per week at $10.00 per hour and $10.60 per hour, her yearly income would be $17,000.00 and $18,550.00 respectively. These calculations are inconsistent with the plaintiff working 10 hours per week less after the accident than at the time of the accident, except for the period November 25, 2009 to May 1, 2010 for which she is being compensated.
[92] The plaintiff explains the income figures by the fact that she was earning commissions on sales as well as her hourly rate, however, there is no evidence before me as to the amount of commissions except at Tab #8B of Exhibit 3, pages 35 through 37 which show minimal commissions in January and February 2011 (the year in which she made $19,309).
[93] In December 2012 she received a shot of cortisone which improved the condition of the right shoulder so it is unlikely that her income would decline due to her injury in 2013 and future, particularly when she would be getting weekly assistance with domestic chores.
[94] Based on her evidence and that of her assistant manager, I would allow the sum of $1,000 per year for loss of income to date subsequent to May 2010, which would bring the total amount of loss of income to date to $9,000.00.
[95] For future loss of income based upon the above, I would calculate reasonable compensation for loss of future income to age 65 to be $12,000.00.
SPECIAL DAMAGES TO DATE
[96] OHIP has a subrogated claim in the amount of $657.34 and judgment will issue in favour of OHIP for that amount.
FAMILY LAW CLAIM OF KEVIN GRAYLING
[97] The plaintiff Kevin Grayling has brought a claim in this action pursuant to s. 61 of the Family Law Act. Since his wife’s fall, Kevin has had to help with laundry and housekeeping which she did on her own before the fall. He has also had to do additional chores outside the home. He testified that this involves 25 to 30 extra hours per week.
[98] He testified that he and his wife’s social life is diminished because of the requirement for him to do the extra chores, and due to his wife being in pain and exhausted after work.
[99] Immediately after the accident, he missed 5 to 6 days work because he had to stay home and help his wife. At the time of the accident, he was earning $14.00 per hour working 8 hours per day. He was able to put in less time helping with household chores and looking after his wife after she went back to work in February 2010, but he still has to help her with housework which he did not do before.
[100] I find that Kevin Grayling had to undertake significant work by way of housekeeping and other services while the plaintiff was disabled in the period November 2009 to May 2010, and he continues to perform additional services from what he did prior to her injury.
[101] I find a reasonable allowance for loss of income, value of services for nursing, housekeeping and other services that the plaintiff Kevin Grayling has provided for the plaintiff Glenda Grayling and an amount to compensate Kevin Grayling for loss of guidance, care and companionship he might reasonably have expected to receive from the plaintiff had the injuries to her not occurred to be $10,000.00.
[102] Judgment to issue in favour of Kevin Grayling for the value of services for nursing, housekeeping or other services, and for loss of guidance, care and companionship as a result of the injury suffered by Glenda Grayling in the amount of $10,000.00.
[103] In summary, I find that judgment should issue as follows:
In favour of Glenda Grayling:
For general damages: $ 50,000
For future care costs: $ 144,530
For loss of income to date $ 9,000
For loss of future income $ 12,000
Total $ 215,530
Less 50% reduction for contributory negligence $ 107,765
Total Due $ 107,765
[104] In favour of Kevin Grayling:
Family Law Act damages 10,000 x 50% = $5,000
In favour of OHIP $ 657.34 x 50% = $328.67
[105] The plaintiffs are entitled to prejudgment interest from October 25, 2010 to date on the amounts awarded for general damages, loss of income to date, Family Law Act damages and the OHIP subrogated claim.
COSTS
[106] Counsel may make written submissions with respect to costs of no more than 5 pages standard font; the plaintiff’s submissions are to be delivered within 2 weeks from the date hereof; the defendant’s submissions within two weeks of receipt of the plaintiff’s submissions or the due date for same whichever is earlier and any reply by the plaintiff within one week from the date of receipt of the defendant’s submissions.
The Honourable Mr. Justice T.R. Lofchik
Released: January 17, 2014
2014 ONSC 198
FILE NO.: 10-23382
DATE: 2014-01-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Glenda Grayling and Kevin Grayling
Applicants
- and –
The Corporation of Haldimand County
Defendants
REASONS FOR JUDGMENT
LOFCHIK J.
TRL:mw
Released: January 17, 2014