COURT FILE NO.: CV-12-00456669
DATE: 20140409
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
EUGENE TSE, SET TSE and MATTHEW TSE
Plaintiffs
– and –
JOEL BINNS, MICHAEL BINNS, HANS-HENNING DEPPE, MONIKA SCHULZE, HOLLYWOOD & RIVER VIEW COTTAGES also known as HOLLYWOOD COTTAGES
Defendants
Sam C. Pitaro, for the Plaintiffs
No one appeared for Joel Binns and Michael Binns, Defendants
No one appeared for Hans-Henning Deppe, Monika Schulze, Hollywood & River View Cottages also known as Hollywood Cottages, Defendants
HEARD: March 24, 2014
LEDERER J.:
Introduction
[1] In 2007, Eugene Tse and two friends arranged to spend the Victoria Day weekend together at Wasaga Beach, a popular summer resort area in the province of Ontario. In an incident involving a firecracker, Eugene Tse lost an eye. As a result, he launched this action against:
• Joel Binns, one of two people with whom he set out to spend the weekend. It was Joel Binns who had control of the firecracker,
• Michael Binns, the father of Joel Binns; and,
• the owners, operators and business of the cottage property on which the car Eugene Tse and his two friends were using was parked.
[2] The two other plaintiffs, Set Tse and Matthew Tse, are the parents of Eugene Tse. They made claims under the Family Law Act, R.S.O. 1990, c. F. 3. At the outset of the trial, counsel for the plaintiffs advised that the claims of the parents had been withdrawn and the action against the business, owners and operators of the cottage property had been settled.
[3] There was a cross-claim launched by the business, owners and operators of the cottage property; however, while no order had been taken out, counsel for the plaintiffs confirmed with the solicitor who represented those defendants that they had no intention of proceeding with the cross-claim.
[4] At the time of the accident, Eugene Tse was seventeen years old. By the time the action was commenced (May 15, 2009), he was past his eighteenth birthday, so that there was no need for a litigation guardian to be appointed. Joel Binns was at school with Eugene Tse; they were both in grade 12. While Eugene Tse was unaware of the precise age of Joel Binns, it seems safe to presume, in the absence of any Statement of Defence, that when the Statement of Claim was issued and the action instituted, Joel Binns was at least eighteen years of age.
[5] All that remains is the action brought by Eugene Tse against Joel Binns and Michael Binns. They did not respond to the Statement of Claim and were noted in default. The court is asked to grant default judgment and assess the damages.
Liability
[6] On a motion for default judgment, the facts, as pleaded in the Statement of Claim, are to be taken as proved. Eugene Tse augmented what is said in the pleading by evidence provided at the trial.
[7] On Saturday, May 19, 2007, Eugene Tse, Joel Binns and Sikander Zahid drove to Wasaga Beach. On the way, they stopped at a convenience store and picked up some snacks and firecrackers. They arrived Saturday afternoon, obtained the consent of people renting a cottage to park nearby and slept in the car.
[8] Michael Binns, the father of Joel Binns, was not present. He did not make the trip. The remaining defendants (the business, owners, operators of the cottage resort at which the car was parked) were not advised of the presence of the three young men and did not give their consent to the car being parked on the property.
[9] On Sunday, May 20, 2007, Eugene Tse, Joel Binns and Sikander Zahid woke up, went to a diner for breakfast and waited for the LCBO to open. They purchased some rum and food for the barbecue. They began to drink, not much but some. Eugene Tse said he had one drink of rum and one or two beers. Joel and Sakinder each had a couple of beers. They also had something to eat.
[10] Joel Binns went to the car to retrieve the firecrackers they had purchased at the outset of the trip. He wanted to fire them off. Eugene Tse objected. This was not a good idea. It would be better to wait until it was dark. Joel Binns disagreed and very quickly shot off at least one of the firecrackers. Eugene Tse was wearing sunglasses. He does not know with precision what happened. He could feel the sunglasses were not in place and saw blood dripping down from his face. He did not see Joel Binns light and throw the firecracker, but he felt pain immediately. The firecracker had struck his left eye.
[11] The people renting the nearby cottage called an ambulance. Eugene Tse was taken to the hospital in Collingwood and, then, on to Soldiers Hospital in Orillia. The eye could not be salvaged. It was removed and his head bandaged. In the following days, he went to St. Michael’s Hospital in Toronto to be assessed and, thereafter, a prosthetic eye was put in place at Lakeridge Hospital in Oshawa.
[12] The liability of Joel Binns would be hard to contest. Based on the available evidence and the Statement of Claim, he caused the lit firecracker to strike Eugene Tse in the left eye. The only allegation, in the Statement of Claim, directed at Michael Binns is that he allowed his son to purchase fireworks, when he knew this was dangerous and failed to provide his son with proper warnings and education on how to safely and properly use them. In the absence of any evidence reflecting on Joel Binns, his relationship with his father, the communication between them and anyone suggesting that Michael Binns did not owe a duty of care to Eugene Tse, I am obliged to and do accept that Michael Binns shares in the liability of his son in respect of the injuries suffered by Eugene Tse.
[13] Judgment will be entered against both Joel Binns and Michael Binns.
Injury
[14] The only injury referred to by Eugene Tse, at the trial, was the loss of his left eye.
[15] Eugene Tse had begun working part time at a fast-food restaurant. It was his intention to work there for the summer of 2007. Following the accident, he was unable to and did not return to that work.
[16] He had been scheduled to graduate from high school at the end of the school year in 2007. As it was, he was required to complete an English course that summer. His graduation from high school was delayed, but only for that reason.
[17] Eugene Tse has suffered a loss of peripheral vision. Activities which require eye/hand co-ordination can be difficult: the assembling of furniture, driving and parking all have difficulties associated with them.
[18] At the time of his recovery, he had sharp migraine headaches, as often as several times a day. They are now more intermittent, unexpected and occur as little as two to three times a week, up to four to five times a day. He deals with these headaches with over-the-counter medication. The duration can be short – ranging from less than a minute to five minutes.
[19] He can have some discharge of mucus from the eye. This is dealt with by the use of Kleenex. Eye drops are used to lubricate his prosthetic eye when the discharge is excessive.
[20] Eugene Tse testified that, over time, the vision in his right eye has degraded. There was no evidence that this deterioration was related to the loss of his left eye. He began wearing glasses two years after the accident. Today, he wears them regularly.
[21] Eugene Tse cannot read for long periods of time. He needs breaks. He has noticed a sense of restlessness in the course of his day-to-day living. At first, he was self-conscious about the appearance of the prosthetic eye.
[22] Prior to the accident, Eugene Tse had enjoyed sports such as volleyball; that is no longer possible. He does run regularly for fitness.
[23] Eugene Tse had been considering a career in music. At the time of the accident, he was preparing to take his grade 10 examination in music performance at the Royal Conservatory of Music. He was unable to practice and has never “picked it up again”.
[24] After his graduation from high school, Eugene Tse decided to take two years off school and work full-time. He went to work selling “home options”, such as water heaters and eaves troughs. He was paid on commission and he earned an average of $800-$1,000 per week. After less than two years (September 2007 to February or March 2009), he was laid off.
[25] His purpose, in working, had been to earn money to pay for his post-secondary education. After being laid off, he was accepted as a student at York University. In September 2009, he entered York University to study psychology. He has gone to school full-time, worked full-time and gone to school while working full-time. He anticipates completing his degree in December 2014. As matters presently stand, he has not worked since January 2013 and is planning to go to graduate school in either business or psychology. He has a B+ average.
Damages
(a) Out-of-Pocket
[26] Counsel for Eugene Tse has provided the following accounts:
Ambulance (Collingwood General & Marine Hospital) $45.00
Lakeridge Hospital Corporation $695.00
O.H.I.P. $5,457.61
SUB-TOTAL $6,197.61
INTEREST (pursuant to the Courts of Justice Act)
1.3% per annum, totalling 8.9% $551.59
TOTAL $6,749.20
(b) Lost Wages
[27] The plaintiff claims only for the summer of 2007:
$8.25 per hour x 27.5 hours per week x 14 weeks = $3,176.25
INTEREST (pursuant to the Courts of Justice Act)
1.3% per annum totalling 8.9% $282.69
TOTAL $3,458.94
(c) Non-pecuniary damages
[28] The loss of an eye is a serious injury. It will affect Eugene Tse each day for the rest of his life. He has had and continues to have migraine headaches with some frequency, albeit of short duration. There is a contingent risk associated with the passage of time and the potential for increased deterioration in his right eye. On the other hand, Eugene Tse appears to be coping well. His graduation from high school was delayed for only a few months and, while he has not continued with any plans he might have had for a musical career, there is no clear evidence that he would have chosen that path, or the degree to which he would have succeeded if he had not lost his left eye. He has proceeded with another choice: a post-secondary education in psychology with a view to going on to graduate school. There is no suggestion, given the direction he is going, that his future career will be greatly impacted by the loss of his eye. He is unable to play the sports he enjoyed when he was younger, but is accommodating with other options.
[29] Counsel for Eugene Tse has provided cases considering the value of the loss of sight in one eye; in particular, four from the province of Ontario:
[30] Gill Estate v. Marriot, 1999 CarswellOnt 3871 (Ont. S.C.J.): A man with many tribulations in life lost all the sight in his right eye and part of the vision in his left due to the failure of an ophthamologist to make a timely referral to a retinal specialist. The plaintiff was about 39 years of age at the time. He died at 45 while the trial was underway. An award for non-pecuniary damages of $75,000 was made. Adjusted to the 2011 value of a dollar, counsel for Eugene Tse says this amounted to $95,572.
[31] Lafond v. Roska, 2008 CarswellOnt 7224 (Ont. S.C.J.): A 54-year-old man was assaulted and knocked unconscious. He suffered permanent loss of his left eye, headaches and depression. As a result, he took early retirement from work. Non-pecuniary damages of $95,000 were awarded. Adjusted to the 2011 value of a dollar, counsel for Eugene Tse says this amounted to $99,973.
[32] Semple v. Conron 1993 CarswellOnt 2056 (Ont. S. C.J.): The 37-year-old plaintiff was left with a limited visual field arising from the failure of an optometrist to correctly diagnose her glaucoma. Had he done so when he first examined her (three years before he made the correct finding), treatment would have arrested the progression of her condition. Non-pecuniary damages of $75,000 were awarded. Adjusted to the 2011 value of a dollar, counsel for Eugene Tse says this amounted to $105,913.
[33] Wood v. Cobourg District General Hospital, 1999, CarswellOnt 3271 (Ont. C. A.): The 32-year-old plaintiff went to the hospital with a headache. The staff assessed the cause as benign. In fact, she had a brain tumour that was bleeding. She needed surgery. She suffered the permanent loss of the left visual field in each eye. She could no longer drive, there was a curtailment of her recreational activities and clumsiness, accompanied by a lack of depth perception. Non-pecuniary damages of $100,000 were awarded. Adjusted to the 2011 value of a dollar, counsel for Eugene Tse says this amounted to $130,097. This included a three percent reduction. The Court of Appeal reduced this by a further 22% (a total of 25%) to take into account the loss the plaintiff would have suffered even if there had been no negligence.
[34] There are three distinctions worth noting. All four of the plaintiffs in these cases were older than Eugene Tse. One of them died while the trial was underway. Three of the four were suing treatment professionals for negligence in their care, which is to say, they were already at risk. The plaintiff, in Wood v. Cobourg District General Hospital, seems to have suffered more impact on her daily living.
[35] Eugene Tse seeks $125,000 in non-pecuniary damages. Given his younger years, this is appropriate.
For non-pecuniary damages $125,000
INTEREST (pursuant to rule 53.10 of the Rules of Civil Procedure)
5% per annum totalling 32.4% $40,500
TOTAL $165,500
OVERALL TOTAL $175,708.14
[36] I award judgment for the plaintiff against the defendants, Joel Binns and Michael Binns, in the amount of $175,708.14.
Costs
[37] The plaintiff seeks his costs on a partial indemnity scale. He should have them. A Costs Outline was provided. It is based on counsel’s time, including trial, of 55.4 hours at $300 per hour, plus the assistance of a more junior lawyer for only 5 hours at $150 per hour.
[38] The amount requested for fees is $19,628.10. This is inclusive of HST.
[39] The amount requested for disbursements is $4,033.86. This, too, is inclusive of taxes.
[40] These values are reasonable and within the range. I award costs to the plaintiff to be paid by the defendants, Joel Binns and Michael Binns, in the amount of ($19,628.10 + $4,033.86) $23,661.96.
LEDERER J.
Released: 20140409
COURT FILE NO.: CV-12-00456669
DATE: 20140409
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
EUGENE TSE, SET TSE and MATTHEW TSE
Plaintiffs
– and –
JOEL BINNS, MICHAEL BINNS, HANS-HENNING DEPPE, MONIKA SCHULZE, HOLLYWOOD & RIVER VIEW COTTAGES also known as HOLLYWOOD COTTAGES
Defendants
JUDGMENT
LEDERER J.
Released: 20140409