ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: Miller v. Her Majesty the Queen in Right of Canada, 2015 ONSC 669

COURT FILE NO.: 56039

DATE: 2015/01/29

B E T W E E N:

STEPHEN EDWARD MILLER

Thomas F. Delorey, for the plaintiff

Plaintiff

• and -

HER MAJESTY THE QUEEN, IN RIGHT OF CANADA, By its representative the Attorney General of Canada

Derek Edwards, for the defendant

Defendant

HEARD: May 26, 27, 28 and 29, 2014

LEACH J.

[1] This judgment follows a four day trial, during which the plaintiff Mr Miller advanced claims against the federal Crown.

[2] In particular, Mr Miller seeks compensation for alleged damages attributed to a slip and fall that is said to have occurred in January of 2006, while Mr Miller was an inmate of the “Pittsburgh Institution”, (a medium security correctional facility operated by Correctional Services Canada, near the community of Joyceville, Ontario).

[3] For the reasons that follow, I find that the defendant is liable, in the particular circumstances of this case, for damages sustained by Mr Miller because of the slip and fall in question. It nevertheless is liable only for a portion of those damages, owing to a degree of contributory negligence on the part of Mr Miller.

Background

[4] At trial, the plaintiff led evidence from the following three witnesses:

i. Stephen Edward Miller, (the plaintiff himself);

ii. Rose Marie Stafford, (who has known the plaintiff for the past 30 years, and been his spouse for the past 15 years); and

iii. Dr Rubina Malik, (who has been the plaintiff’s family physician for the past 15 years).

[5] On consent, the plaintiff also filed, as an exhibit, a three volume brief of documents. The first volume contained numerous productions from the Crown, including a “Report of Inmate Injury”, a map or diagram of the Pittsburgh Institute, and the “medical brief” compiled by the defendant in relation to the plaintiff over his time in custody. The second volume contains Dr Malik’s clinical notes and records, and the third volume includes further miscellaneous documents, including further records from Dr Malik and weather records from Environment Canada for the area near the Pittsburgh Institution for January 3-5, 2006, inclusive.

[6] The defendant led evidence from two witnesses:

i. Robert Healey, (a Registered Nurse employed by Correctional Service Canada, who was a member of the health care system at the Pittsburgh Institution during the time Mr Miller was incarcerated there); and

ii. Terry White, (a maintenance engineer who is now retired, but who formerly was employed by Correctional Service Canada, during Mr Miller’s time of incarceration at the Pittsburgh Institution, as a “works supervisor” responsible for maintenance of that facility, including involvement in arrangements for dealing with ice and snow).

[7] On consent, the defendant also filed, as an exhibit, its own one volume brief of documents. It included various documents, including the following: reports and memoranda relating to Mr Miller’s alleged falls and his “bed assignments” during his time at the Pittsburgh Institution; an outline of “Institutional Operational Procedures” (IOP) adopted by Correctional Service Canada for “Snow and Ice Removal and Control”; further weather records from Environment Canada for November 27-29, 2005, and December 10, 2005, for the area near the Pittsburgh Institution; photographs of the area where the slip and fall giving rise to this claim is said to have occurred; documents relating to maintenance work done at the Pittsburgh Institution at various times around the incidents said to give rise to Mr Miller’s claims, (although the documents are not entirely legible); and an “Inmate Handbook” said to have been made available to all those incarcerated at the Pittsburgh Institution during Mr Miller’s time there.

[8] Finally, the parties filed, on consent, a further exhibit consisting of a one page summary of answers to undertakings given by the defendant during the course of oral discovery examinations.

[9] I will be making more detailed reference to evidence and factual findings during the course of my liability and damages analysis set forth below.

[10] However, by way of general overview and context:

• Mr Miller says that, while he was an inmate at the Pittsburgh Institution in 2005 and 2006, he experienced two outdoor slip and fall accidents owing to the presence of winter snow and ice.

• He says the first occurred while he was walking along a road in the facility, and that the second occurred when he fell on the steps at an entrance to another inmate residence where he had gone to borrow coffee.

• Mr Miller claims only in relation to the second accident, which he says was caused by the defendant’s negligence. In particular, he says the accident was caused by the defendant’s failure to take reasonable and appropriate care, as an occupier, to see that persons entering on the premises would be reasonably safe. For example, he contends that the defendant failed to implement a reasonable system to ensure that the area in question was adequately shoveled, salted and/or sanded.

• The defendant questions whether the accidents took place as alleged by the plaintiff, and denies that any such accidents were caused by negligence on its part.

• The defendant emphasizes in particular that its rules prohibited visits such as that being made by Mr Miller at the time of the second alleged accident, and that its system of care and maintenance was reasonable and appropriate in the circumstances. It says the second accident, if it happened, was caused by Mr Miller’s own contributory negligence.

• The defendant also denies that Mr Miller has sustained any significant damages because of the alleged second accident. It relies in particular on numerous conditions, challenges and ailments that Mr Miller has experienced and will experience in any event, for reasons unrelated to that alleged accident.

[11] Before embarking on a more detailed review of the evidence, and discussion of issues relating to liability and damages, I note a number of general legal principles applicable to claims of this nature.

Applicable Law

OCCUPIER’S LIABILITY

[12] Pursuant to s.3(b)(ii) of the Crown Liability and Proceedings Act, R.S.C. 1985, c.C-50, the federal Crown “is liable for the damages for which, if it were a person, it would be liable, [in any province other than Quebec], in respect of … a breach of duty attaching to the ownership, occupation, possession or control of property is concerned”.

[13] In that regard, it was not disputed that the relevant duties and potential liability of the federal Crown, in the circumstances of this case, therefore are governed in large measure by the Occupier’s Liability Act, R.S.O. 1990, c.O.2, (“OLA”), and authorities which have interpreted and applied that legislation.

[14] General provisions and principles in that regard include the following:

• The OLA generally sets out the duty of care owed by occupiers of premises to persons who come onto those premises, with section 1 of the legislation defining “premises” so as to include “lands and structures, or either of them”, and defining “occupier” so as to include a party “who is in physical possession of premises” or “who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises”. It was not disputed that, for purposes of this action, the Pittsburgh Institution should be regarded as “premises” in respect of which the federal Crown was an “occupier”.

• One of the principal purposes of the OLA was to replace the “somewhat obtuse" common law of occupiers’ liability by a generalized duty of care based on the “neighbor” principle set down in Donoghue v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562 (H.L.)[1]. Pursuant to section 3(1) of the OLA, an occupier of premises now generally 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 … are reasonably safe while on the premises”, and where circumstances warrant, that requires positive action on the part of occupiers to make their premises reasonably safe. Of necessity, that statutory duty on occupiers is framed quite generally. The duty to take reasonable care in the circumstances to make the premises safe does not change, but the factors relevant to an assessment of what constitutes reasonable care necessarily will be very specific to each fact situation. They may include, among other things, factors such as the following: weather; the time of year; the size, nature and use of the particular area where a slip and fall occurred; the cost of preventative measures; and the quality of footwear worn by a claimant.[2]

• While the statute creates a positive obligation upon occupiers to ensure that those who come on to their premises are reasonably safe, the overall onus of proof remains on a plaintiff to prove, on a balance of probabilities, that a defendant occupier failed to meet the standard of reasonable care. In particular, the fact of injury does not create a presumption of negligence.[3]

• In fulfilling its statutory duty, it is not incumbent on a defendant occupier to guard against every possible accident that might occur. In discharging its duty to make premises reasonably safe, an occupier is only required to exercise care against dangers that are sufficiently probable to be included in the category of reasonably foreseeable contingencies. Where there is a known danger, (such as ice and snow conditions in Ontario during winter months), the occupier must have a reasonable system in place to ensure that users of a property will be reasonably safe from slipping and falling due to weather conditions.[4]

• In particular, a defendant occupier may refute any suggested breach of the statutory duty, and/or demonstrate the taking of reasonable care appropriate in the circumstances, by showing that it had a reasonable plan or scheme in place, (for example, to address possible safety concerns and minimize hazards by inspection, maintenance and monitoring), that was being followed at all relevant times. The plan need not be foolproof, or reduced to writing, so long as it is reasonable under all the circumstances. If evidence of compliance with such a plan or scheme at a specific time is lacking, a defendant occupier may establish routine compliance with the scheme or plan, from which the court may infer observance at the time in question. Conversely, a disorganized system involving multiple actors, poor communication, a lack of vigilance to ensure that such concerns are being properly attended to, and/or which allows for inappropriate delays in addressing problems and hazards, may not provide an adequate defence. While the overall onus remains on the plaintiff to prove his or her case, it is not up to the plaintiff to negative such a potential defence. It is up to the defendant to call evidence in support of such a defence.[5]

• The existence of customary practices which are unreasonable in themselves, or which are not otherwise acceptable to the courts, in no way ousts the duty of care owed by occupiers under s.3(1) of the OLA.[6]

• Pursuant to s.3(2) of the OLA, an occupier’s general statutory duty of care applies whether the danger is caused by the condition of the premises, or by an activity carried on on the premises.

• Pursuant to s.3(3) of the OLA, the duty also applies “except insofar as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty”. For example, an occupier may wish to put part of his property “off limits” rather than to make it safe, and in certain circumstances, that might be considered reasonable. Where no such effort has been made, however, the exceptions to an occupier’s statutory duty of care “will be few and narrow”.[7]

• In particular, although s.4(1) of the OLA also includes provisions indicating that an occupier’s duty of care “does not apply in respect of risks willingly assumed by the person who enters on the premises”, this is viewed by courts as an embodiment of “the volenti doctrine”, and given a similarly narrow interpretation and application. The defence operates as a complete bar to recovery, but was intended to be “a very narrow exception” to the occupier’s statutory duty of care, and only arises “where the circumstances are such that it is clear that the plaintiff, knowing of the virtually certain risk of harm, in essence bargained away his right to sue for injuries incurred as a result of any negligence on the defendant’s part”.[8]

RESPONSIBILITY FOR INMATES

[15] However, the matter before me is not governed entirely by OLA considerations, insofar as the circumstances also involve a claimant who was in the custody of the federal Crown at the time of the circumstances underlying the plaintiff’s claim.

[16] Various statutes and judicial authorities confirm that the federal Crown has various additional legal responsibilities in relation to prison inmates, and corresponding legal duties that are owed to those who are incarcerated in federal institutions.

[17] For example, pursuant to section 70 of the Corrections and Conditional Release Act, S.C. 1992, c.20, Parliament has indicated that the Correctional Service of Canada “shall take all reasonable steps to ensure that penitentiaries, the penitentiary environment, the living and working conditions of inmates and the working conditions of staff members are safe, healthful and free of practices that undermine a person’s sense of personal dignity”. This underscores the provisions of s.3(a) of the same legislation, which states that one of the fundamental purposes of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by “carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders”.

[18] Similarly, there are many authorities confirming that prison officials owe a duty of care to inmates for whom they are responsible, (i.e., a duty to take reasonable care for the safety of such persons). Liability for tort damages accordingly will be imposed upon the Crown, pursuant to what is now s.3(1)(b)(i) of the Crown Liability and Proceedings Act, R.S.C. 1985, c.C-50, if a plaintiff inmate establishes that such prison officials, acting in their regular capacity, did or failed to do something that was unreasonable in the circumstances, creating a foreseeable risk of harm to the plaintiff which resulted in injury or damages. See, for example: Timm v. Canada [1965] 1 Ex.C.R. 174, at paragraphs 17-18, adopted by the Supreme Court of Canada in MacLean v. The Queen, 1972 124 (SCC), [1973] S.C.R. 2.[9]

[19] The issue in such cases was not whether the Crown owed a duty of care to prison inmate claimants, but whether the alleged acts and omissions of prison officials fell below the standard of conduct of a reasonable person of ordinary prudence, having regard to all the surrounding circumstances.

[20] In that regard, prison officials are not guarantors of an inmate’s safety, and perfection or infallibility on their part is neither expected nor required. However, reasonable and adequate measures appropriate to the circumstances must be taken to protect the inmate from a reasonably foreseeable risk of injury, and predictable dangers. See, for example, Carr v. Canada, supra, at paragraphs 27-28, 33 and 35.

[21] In many if not most cases arising from a slip and fall allegedly experienced by an inmate while in federal custody, application of OLA considerations may very well suffice to resolve issues of liability.

[22] However, the OLA itself also preserves any higher statutory or other legal duties or liabilities owed by special classes of persons, which are not exhaustively described. In particular, s.2(9) of that Act reads as follows:

9.(1) Preservation of higher obligations - - Nothing in this Act relieves an occupier of premises in any particular case from any higher liability or any duty to show a higher standard of care that in that case is incumbent on the occupier by virtue of any enactment or rule of law imposing special liability or standards of care on particular classes of persons including, but without restricting the generality of the foregoing, the obligations of:

(a)innkeepers, subject to the Innkeepers Act;

(b)common carriers;

(c)bailees.

[Emphasis added.]

[23] Pursuant to s.3(b)(i) of the Crown Liability and Proceedings Act, supra, the federal Crown is “liable for the damages for which, if it were a person, it would be liable, [in any province other than Quebec], in respect of … a tort committed by a servant of the Crown”. [Emphasis added.]

[24] To the extent necessary, I find that the aforesaid specially legislated and judicially confirmed duties of care and liability owed by the federal Crown towards prison inmates therefore supplement those which also may be owed by the federal Crown as an owner and occupier of property.

CONTRIBUTORY NEGLIGENCE

[25] Whether the federal Crown is liable as an occupier of premises pursuant to the combined effect of the OLA and s.3(b)(ii) of the Crown Liability and Proceedings Act, supra, or liable in tort as it would be “if it were a person”, pursuant to s.3(b)(i) of the Crown Liability and Proceedings Act, supra, (for breaching the duty of care owed to the plaintiff as a prison inmate), any such liability may still be apportioned with the plaintiff in cases of contributory negligence. In particular:

• Pursuant to s.9(3) of the OLA, Ontario’s Negligence Act applies with respect to causes of action to which the OLA applies;

• Pursuant to s.3(b)(i) of the Crown Liability and Proceedings Act, supra, Ontario’s Negligence Act would apply to the federal Crown’s tortious liability “if it were a person”; and

• Pursuant to s.3 of the Negligence Act, R.S.O. 1990, c.N.1, in any action for damages founded upon the fault or negligence of the defendant, “if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively”.

[26] In assessing the possibility of contributory negligence on the part of plaintiffs who have slipped on snow and/or ice, courts have considered such factors as:

• whether the plaintiff knew or ought to have known of the possibility of ice and potential hazards being formed at the location in question, having regard to winter conditions, precipitation and temperatures;

• whether the prevailing circumstances, (such as lighting or the absence of obstructions or other distractions), would have permitted an ordinary person, paying reasonable attention, to notice the presence of the slippery surface;

• whether the plaintiff failed to keep a proper lookout and exercise proper caution, or had his or her attention focused elsewhere;

• whether the plaintiff was hurrying or otherwise failed to adjust his or her pace and movements to allow for the presence or possibility of slippery surfaces covered with snow or ice;

• whether the plaintiff’s balance was impaired owing to the ingestion of medications or alcohol; and

• whether the plaintiff’s footwear was suitable for walking on snow and ice.[10]

[27] However, the burden of proving any such contributory negligence, and its causation of the damages for which the defendant might otherwise be wholly responsible, lies on the defendant.

DAMAGES - CAUSATION

[28] In relation to damages, it was accepted that the plaintiff also had an obligation to prove, on a balance of probabilities, that any damages claimed were caused by the alleged slip and fall accident underlying this action. In that regard, pursuant to authorities such as Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311, Athey v. Leoni, 1996 183 (SCC), [1996] 3 S.C.R. 458, and Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181:

• As this is a simple “single defendant” case, (thereby not giving rise to any special circumstances that might require application of a “material contribution” approach, on an exceptional basis), the test for showing causation is the general “but for” test. In other words, it must be determined whether or not the plaintiff has demonstrated, on a balance of probabilities, that his alleged damages would not have occurred “but for” the defendant’s negligence.

• Determining whether the plaintiff’s injuries would have occurred without the defendant’s negligence is essentially a practical question of fact, and the “but for” causation test must be applied in a “robust common sense fashion”. In particular, there is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.

[29] With the above provisions, principles and guidance in mind, I turn now to a more detailed consideration of the evidence, and issues concerning liability and damages raised by this particular case.

Liability evidence and analysis

[30] In his statement of claim issued on November 15, 2007, the plaintiff initially alleged that he “was injured in two falls which occurred on or about December 1, 2005, and January 6, 2006, while he was an inmate at the Institution”. [Emphasis added.]

[31] In particular, it was alleged that:

• “In the first incident, the Plaintiff was walking along the roadway in the area of C Hood in the later afternoon”, when he “slipped and fell on ice which had been allowed to accumulate”; and

• “In the second incident, the Plaintiff was leaving House 23 in the afternoon when he fell on external concrete steps”.

[32] However, at the outset of trial, plaintiff counsel indicated and confirmed that, while Mr Miller still asserted that there had indeed been two slip and falls that occurred in the manner alleged, Mr Miller’s formal claim was being limited to one for damages said to have been caused by the second incident.

[33] For reasons set out below, the alleged first slip and fall nevertheless still has relevance, insofar as its existence, timing and reporting may help to explain and resolve possible inconsistencies in Mr Miller’s accounts of what happened, (and/or in records making reference to the falls), and establish the actual dates on which the alleged incidents may have occurred. That in turn may have a bearing on such matters as the relevance of weather data that formed part of the evidence tendered at trial.

LOCATION OF ACCIDENTS (IF ANY)

[34] There was no dispute that Mr Miller’s alleged slip and falls, if they happened at all, occurred at the Pittsburgh Institution; a federal prison facility, adjacent to the nearby Joyceville institution, located on Highway 15 approximately 22 kilometers north of Kingston, Ontario. In particular:

• Mr Miller arrived at the Pittsburgh Institution on or about March 2, 2005, (shortly after being processed through the Millhaven Assessment Unit), to serve the balance of a two year sentence imposed the month before, in relation to a number of “break and enter” crimes.

• Miller then remained in custody at the Pittsburgh Institution, living in various residential units to which he had been assigned, and working primarily in the facility’s kitchen operations, prior to his being released from custody in early 2007.

• The alleged slip and fall incidents are said to have occurred at the Pittsburgh Institution within that time frame, and in particular, at dates in or about December of 2005 and/or January of 2006.

[35] The Pittsburgh Institution does not have the attributes of what many might regard as a conventional prison; i.e., a prison surrounded by walls, fences and wire.

[36] To the contrary, a casual observer looking at diagrams, maps and photographs of the facility might be forgiven for thinking it more closely resembles a residential suburban community; i.e., a community made up of winding roads, sidewalks, and rows of residential townhouse units with lawns and gardens, as well as nearby sports grounds, gymnasium and fitness facilities, and buildings dedicated to various social and educational activities.

[37] As emphasized in the written “Warden’s Message” distributed to arriving inmates, this is all quite deliberate.

[38] In particular, the minimum security facility is populated by inmates deemed to “require little institutional supervision”, who “are a low risk to escape”, and who “present a low risk to the community”. The environment and operation of the facility are intentionally “very similar to how [inmates] may live in many community neighborhoods”, with “programs and work opportunities designed to assist [them] in developing a positive lifestyle in preparation for [their] release”. This includes the provision of opportunities for inmates to upgrade their education, and to seek paid employment in a number of different fields; for example, the grounds-keeping and kitchen operations mentioned below.

[39] Each inmate residential unit, (reached by a paved walkway leading from a road in the facility to the unit’s entrance), is occupied by 5-8 inmates assigned to that unit or “house”. Those inmates share a kitchen and other common areas, but also are assigned to specific double or single occupancy bedrooms within the unit.

[40] It was not disputed that inmates, along with their other “housemates”, also are given a degree of responsibility for maintenance of their assigned unit, (although the precise nature and extent of such responsibility was a matter of disagreement between the parties, as discussed in more detail below).

[41] Mr Miller says the second slip and fall accident occurred at or near the entrance to residential unit 23, (also described as “House 23”), which was located across a road from his nearby residence in unit 19. Both units are located in what is known as neighborhood “C” of the Pittsburgh Institution.

[42] I was provided with several photographs of the area around the entrance to unit 23, (addressed in testimony from Mr Miller and Mr White), and make the following observations:

• The photographs were not taken during winter weather conditions, and show surfaces devoid of ice and snow.

• A walkway, paved with a tarred surface, leads from the nearby road, (not visible in the photographs), to the entrance of unit 23 and the adjacent unit 22, (located to the left of unit 23 as one looks at the two units from the approach walkway).

• Shortly before one reaches steps and a narrow landing leading to the exterior door of unit 23, the surface area changes from tarred pavement to interlocking brick. In the photographs provided to me, there are plastic chairs in that interlocking brick area which provide perspective. That in turn suggests that a person approaching the stairs and landing of unit 23, using the paved approach walkway from the road, normally would traverse approximately six feet of interlocking brick.

• Continuing towards unit 23, immediately beyond the interlocking brick surface are two stairs, with the top stair forming a narrow landing directly outside the unit’s exterior door. The stairs and landing have the same concrete surface. It is difficult to estimate the precise rise and run of the stairs and landing. However, using the same perspective provided by the plastic chairs, (one of which sits on the landing), and an apparently standard-sized mailbox mounted on a narrow wall immediately to the right of the landing, the rise of each stair seems to be approximately 6-8 inches, the run of the first stair seems to be approximately 1-2 feet, and the run of the landing seems to be approximately 2-3 feet.

• There is no railing on the stairs or landing, (and Mr White confirmed that, to his knowledge, the installation of such a railing has never been considered).

• The photographs provided to me stop short of showing the precise nature of what is located immediately above the area of interlocking brick and concrete stairs and landing, immediately outside the exterior entrance to unit 23. The photographs do show the base and lower sections of two square pillars on either side of the entrance, leading upwards, suggesting some sort of overhang or roof. However, the pillars seem to be located just a few feet feet away from the base of the stairs, (in the interlocking brick area), and anything supported by the pillars seems to be located at a height well above the doorframe. It seems clear to me that the stairs and landing therefore are exposed to the elements, at least in terms of any snow or rain that might descend or blow in from an angle.

[43] I will return to a more detailed description of where and how the second accident is said to have happened, in relation to the features of this area, when discussing the alleged mechanics of the relevant slip and fall incidents.

STEPHEN MILLER – CREDIBILITY AND RELIABILITY

[44] Before turning in more detail to matters of whether, how and when the slip and fall accident underlying this action took place, it seems appropriate to address, as a preliminary matter, my overall impressions of the plaintiff Mr Miller as a witness.

[45] I do so because he was the only one said to have been present at the time of the alleged slip and fall accidents, (including the one giving rise to the present claim), and although the plaintiff’s liability arguments find elements of support in the documentary exhibits and the testimony of witnesses other than Mr Miller, his credibility and reliability obviously are fundamental concerns in this case.

[46] In my view, Mr Miller was an entirely credible witness, in the sense of being truthful and sincere. My considerations in that regard include the following:

• As discussed in more detail below, Mr Miller is an amiable but obviously fragile person, who suffers from long-standing and well-documented anxiety issues and “panic attacks” requiring considerable ongoing medication. Indications of his challenges in that regard were manifest not only during cross-examination, but throughout the course of his testimony.[11] Despite his obvious interest in the outcome of the case, Mr Miller clearly was a reluctant witness who wanted the ordeal of testifying to be over as quickly as possible. In the result, his answers to questions bubbled forth in an entirely rapid and spontaneous way, without his taking any time whatsoever for reflection or fabrication.

• The simple and straightforward content of Mr Miller’s answers, coupled with the unchallenged evidence I received concerning his debilitating condition and limitations, (which have left him incapable of mastering even basic skills such as the ability to open a bank account, pay bills, or apply for jobs), reinforced my overall impression that he frankly is someone generally incapable of sustained or elaborate fabrication.

• I was impressed by the fact that Mr Miller repeatedly failed to seize obvious opportunities to buttress his case with favorable answers and denials which inherently would have been difficult for others to question or challenge. (For example, he easily could have said that he definitely was wearing the more appropriate of two types of footwear available to him, at the time of his alleged falls, but he instead candidly acknowledged that he was either “not really sure” about that, or that he was wearing a type of available footwear with less traction. He could have denied the presence or provision of shovels or ice-melt at or near his residence, and/or the residence where the underlying slip and fall was said to have occurred, but instead went no further than saying he personally “never noticed” any. He also could have denied that various comments attributed to him in forms or records had ever been read out to him for confirmation at the time of their preparation, because of his functional illiteracy, (described in greater detail below), but he instead quickly acknowledged that such reading and/or confirmation might have occurred at the time, without his being able to remember that having happened. I was similarly impressed by Mr Miller’s willingness to readily provide information that cast himself in a negative light, even in relation to matters that likely would not have emerged or have been capable of confirmation were it not for his candid answers. (For example, in response to questions from defence counsel, Mr Miller admitted without hesitation that he had consumed illicit drugs once while in prison, and that he also had used cocaine “a few times” since his release from custody.) In my view, these were all hallmarks of a truthful witness.

• As noted below, various aspects of Mr Miller’s testimony dovetailed with contemporaneous indications in the available documentation; (for example, about such matters as the timing and purpose of his attendances at the prison infirmary, and his documented use of an improvised towel neck brace only in the wake of his second slip and fall). Given that Mr Miller is functionally illiterate, and therefore completely unable to read or understand the available documentation, (thereby inherently limiting his ability to tailor his testimony to the documentation in a deliberate way), such consistencies between the available documentation and Mr Miller’s testimony also reinforced my impression of his credibility.

• I note that, in the immediate wake of Mr Miller reporting his alleged recent slip and fall (or falls) in January of 2006, the defendant’s own representatives looked into the matter, and confirmed both indirectly and directly that they had no concerns about Mr Miller’s credibility or candor. In particular, the defendant’s Investigating Officer, (Mr Witherspoon), completed his portion of a “Report of Inmate Injury” on January 24, 2006, recording Mr Miller’s account, at the time, that “He fell down steps to sidewalk”, and “thought it was snow on ground but it was ice and he slipped”. Mr Witherspoon then documented his opinion that “the accident was caused by … carelessness on the part of the inmate”; an opinion which, in my view, implicitly accepts that the accident did in fact happen as alleged by Mr Miller. The following day, on January 27, 2006, the defendant’s Director, (someone other than Mr Witherspoon but whose different signature is illegible), documented his opinion that there had not been “any misrepresentation or concealment” in relation to the accident reported by Mr Miller, and that “no further investigation [was] considered necessary”.

[47] In the result, I was quite satisfied that Mr Miller was a credible person and witness, insofar as the matters giving rise to this action were concerned. In particular, it seemed to me that he was doing his best to be truthful and sincere at all times during the course of his testimony, and that his conduct and reactions while in the witness box were entirely genuine.

[48] Of course, credibility does not entail reliability, (as an honest and sincere witness may still be mistaken), and there certainly were aspects of Mr Miller’s testimony that were demonstrably unreliable.

[49] In particular, there were numerous instances of Mr Miller being hopelessly confused, lost and bewildered when it came to dates, the passage of time, and the relative sequence of certain events. To cite but a few examples:

• Mr Miller was able to accurately recite the date of his birth, but misstated his own corresponding age by more than ten years.

• Mr Miller was completely unable to indicate even the approximate date of his arrival at the Pittsburgh Institution, (apart from thinking that it may have been “in winter”). Without prompting, he exhibited similar difficulties when trying to recall the particular housing units to which he had been assigned during his stay there, the order in which the assignments had occurred, or the timing of the assignments.

• Although ambulance and hospital emergency department records confirm that Mr Miller was involved in a subsequent motor vehicle accident on August 24, 2008, the updated history he provided to his family doctor during a visit in December of 2008 included his apparently mentioning that the event had happened just “one week ago”.

[50] In that regard, Mr Miller candidly and repeatedly acknowledged that he always has had great difficulty remembering the timing and sequence of events. He repeatedly used the phrase “I don’t do dates”, and emphasized that dates simply “don’t register” with him. He candidly acknowledged that he did not know the reason why he “got confused quick” (sic) in relation to dates, but thought it was “maybe part of [his] disability”.

[51] Such comments were echoed in the testimony of his wife, Ms Stafford, who confirmed that Mr Miller was the “kind of guy who would get details wrong” in terms of sequencing, (with her often having to listen carefully before then sorting out the proper sequence of events he was trying to describe). She was not sure whether the problem stemmed from an inherent disability, or the large amounts of medication Mr Miller is required to take for his ongoing anxiety disorder. However, it is a phenomenon that Ms Stafford has witnessed throughout the 30 years she has known Mr Miller, (although she says it started getting worse approximately 10 years ago).

[52] A similar opinion was echoed in the testimony of Dr Malik, (Mr Miller’s family doctor). She says that, throughout the 15 years Mr Miller has been her patient, he has always been “an extremely anxious man” who is “very excitable and nervous”, which in turn has made it “very difficult to follow his train of thought” and obtain an accurate history of his various conditions and complaints.

[53] However, I am inclined to accept Mr Miller’s repeated indications, (echoing a view shared by Ms Stafford and Dr Malik), that despite his difficulty with dates and sequencing, Mr Miller is also quite capable of providing accounts of events that are nevertheless detailed, consistent and reliable, especially if the events have personal importance to him.

[54] In my view, this was quite evident not only in his detailed description of accidents and corresponding efforts to seek treatment, but also in relation to matters such as his former weight-lifting and fishing activities, in which he obviously had a keen interest. Moreover, as noted above, incidental details in his accounts were reflected in contemporaneous documentation which he could not read or understand, or therefore review in preparation for the giving of his testimony; a consideration which therefore reinforced my impression of his reliability, (as well as his credibility).

[55] Despite his difficulty with dates, I therefore generally found Mr Miller to be both a credible and reliable witness, in relation to his description of the central events underlying this action.

MECHANICS OF ACCIDENTS

[56] Again, Mr Miller was the only person said to have been present at the time of the alleged slip and fall accidents, and I therefore have only his evidence as to how they are said to have occurred.

[57] In relation to the first accident, Mr Miller’s testimony about the incident and its immediate aftermath included the following:

• He says the accident happened “later in the afternoon”, on a winter’s day that was “snowy”, “icy” and “slushy”.

• He says that, at the time of the accident, he was walking “up the road” that ran between the row of houses containing his own unit 19 and the row of houses containing unit 23. In further comments, he confirmed that he was walking on a paved surface used by “cars”, and an area which he says was kept clear by grounds people using shovels and “trucks”. From such answers, it was quite clear that Mr Miller was not talking about the walkway leading to unit 23, which obviously was not designed for vehicular travel.

• Mr Miller believed that, at the time of the first fall, he was “just out for a walk”, as he was inclined to “always do”, and probably wearing his “boots or shoes”.[12]

• He says he was “walking along”, when “all of a sudden” he “went up into the air” before falling on his “knee and butt”. He also believed it was his “left knee” onto which he had fallen.[13]

• Mr Miller said the injuries hurt “a little bit” at the time, that there was some bruising, and that he was “limping around” after he got up and shook the snow off his pants. He admittedly was “not 100 percent sure” of what he did immediately after the fall, but thought he had told someone of the incident, and was then “sent to the medical thing”; i.e., the prison infirmary or medical centre. He nevertheless could not recall receiving any medical treatment for what had happened. In his words, it “turned out to be nothing”, and “nothing came of it”. In particular, he continued his work in the prison kitchen area, and his regular work outs in the prison gym, without interruption.

• Because the first slip and fall turned out to be a minor incident with no lasting effects, Mr Miller said he probably felt no reason to mention it to his wife during telephone calls, and that he probably did not do so.

• Despite his general difficulty with dates and sequences, Mr Miller was quite sure that his slip and fall accident on the roadway happened prior to his later and separate slip and fall accident near the exterior entrance to unit 23.

[58] In relation to that second alleged accident, Mr Miller’s testimony about the incident and its immediate aftermath included the following:

• Mr Miller could not remember the date or day of the week on which the accident occurred. However, it was a winter’s day that was “cold”, “snowy” and “icy”, with an “ice storm” that left things “hard and slippery”. According to Mr Miller, it “had been snowy and icy the whole day and night” during the 24 hours before the accident happened. In cross-examination, he initially seemed to agree with suggestions that it may not have been snowing or that bad in the morning, and that it “started getting bad in the afternoon”. However, he eventually indicated that he simply could not remember with certainty if the weather had got worse during the day, and concluded by saying: “All I know is that it was bad when I went outside.”

• He could not recall being particularly tired that day, and denied using any illicit drugs on the day in question. Nor did he have any relevant vision problems.

• He says the accident happened when it was “still daylight” outside, “in the afternoon”, but when it was “getting close to evening”.

• Mr Miller says he left his house at unit 19 and went outside because he had discovered he was out of coffee, and had decided to borrow some from a “buddy” who lived in nearby unit 23. He did not ask his own housemates for coffee, as he and his friend in unit 23 had developed a practice, similar to that used by other inmates, of sharing their food budget in a shared way, as partners, to obtain better food.[14] In cross-examination, Mr Miller acknowledged and agreed that coffee was certainly not a necessity, but said he liked coffee and wanted it. He also confirmed that the only purpose of his trip to unit 23 was to borrow coffee before immediately returning to his home. (In his words: “I probably would have said ‘hi’, but that’d be it.”)

• Mr Miller said that he certainly would have put on his parka before going outside, but could not recall whether or not he put the hood up over his head.

• When asked about his footwear at the time of his second accident, Mr Miller’s initial confident response, during examination-in-chief, was that he was “wearing the shoes they issued”, as they were “all he had”, in that he “didn’t have overshoes”. However, upon further reflection during his examination-in-chief, he then said he was “not sure”, before then saying that he “probably” had boots on because it was cold. When asked about the matter again in cross-examination, Mr Miller’s answers waivered back and forth; e.g., from being “pretty sure” that he put his boots on, to reminding himself that he was “also issued runners”, and an admission that he was no longer really sure, after all the questions posed to him in that regard, as to what footwear he had on at the time of his second fall.

• Mr Miller said that, when he opened the door of his unit to the outside, there was “snow coming down”, as well as “ice” and “wind”, “like any other winter day”. He could see snow on the ground, and it was “snowing like it usually does” in that area.

• He says he then went from his own house at unit 19 to the entrance of “House 23” by crossing the road in-between the units, turning, and going “up a little ways”, before heading up the walkway to unit 23.[15]

• Up until the time of his fall, he says he walked a “normal walk”, “like [he] always walked”, without any hurry because of the cold.

• When asked in cross-examination if the road was slippery, Mr Miller said he was “sure it was”. In particular, he said he knew it was snowy, that there was snow on the ground, and “probably a bit of ice”.

• In examination-in-chief, when recounting and describing what he observed and encountered during his further progress, Mr Miller said it was “snowy” on walking up to unit 23, and that the sidewalk to unit 23 was “snowy and icy”. He then said the steps leading up to unit 23 “looked like ice and snow”, but that he was able to get up onto the landing. He added that, at the time he went up the stairs to the landing, it was “snowing and blowing”, and there was no indication that the area had been shoveled.

• Mr Miller said that, when he got to the front door of unit 23, he probably then stomped his feet to shake off the snow. He then knocked on the door to unit 23, but no one was there. He therefore turned around to head back the way he came, at which point the accident occurred.

• Mr Miller said he “went down the first stair” from the landing, but that his “foot started to slip” on that stair, at which point he “lost his footing” and “went up in the air backward”, with his “whole body in the air”. He says that, as he “fell backwards”, his “arm went back” behind him, and that he landed primarily on his arm and lower back. More specifically, referring to a photograph of the unit 23 entrance area, he explained that the arm stretched behind him hit the landing at the top of the stairs, that his lower back hit the first stair, and that his legs and feet wound up in front of him, hitting the interlocking brick area at the base of the stairs.

• Mr Miller said that, immediately after this second slip and fall, he was “lying there in pain”, as the incident had “shocked him”. He felt “sore” and “hurt”, but was then able to “get himself together” and back up on his feet while “grabbing his arm”. He says he looked at the stairs to unit 23 again, and could see they were “slippery and shiny”, with “ice underneath the snow” on the first stair, and in the area of the interlocking brick near the base of the stairs, (adding that there was “snow there too, of course”). In cross-examination, he confirmed that he did not need to wipe away snow to see the ice. He could see it “shining underneath the snow”.

• Mr Miller said his accident was definitely a “slip”, (as opposed to a “trip”), and that he “slipped because it was icy”, as there was “ice under the snow”. He says that he “didn’t see” any pail of ice-melt on the landing, and that there “wasn’t any salt or sand spread around the steps” at the time of his fall.

• According to Mr Miller, he “didn’t think [he] was hurt badly” that day, but made his way to the prison infirmary or medical area, where he told someone about his slip and fall. However, he says he was sent away fairly quickly from the medical area, after receiving a brief indication that he would “be fine”.

• Mr Miller says that, at about the same time he was being sent away from the infirmary, or shortly thereafter, an announcement was made over the prison public address system, advising all inmates living in neighborhoods “B” and “C” of the facility to return to their houses until further notice. According to Mr Miller, shortly after that announcement, the facility then “brought out the grounds people”, (which he also described as “the whole crew” and the “outside crew”), who were then “all over the place”, “salting the roads and sidewalks”, after which the inmates were told they could “then go back out”. Mr Miller was not sure of the reasons for that intervening activity, but assumed from the timing of the announcement that it was prompted by his fall, and an intention by prison authorities to address the slippery conditions outside.

• Mr Miller confirmed that he “didn’t hurt really bad until the next day”, at which point he was “in agony”, with a “really sore” back and excruciating neck pain; pain so bad that he could not move his neck from left to right. He says he returned to the prison medical area that day, looking for “pain killer” medication, but was told that it was “just a pinched nerve” and that he would have to fill out a form in order to see a doctor and get the desired pain medication.

• Mr Miller indicated that he then followed up as instructed by enlisting the assistance of fellow inmates to complete the required form on his behalf, so that he could then sign and submit it. In the meantime, however, while waiting to see a doctor, he “couldn’t move his neck from left to right”, his back was “killing him”, he was not getting any sleep, and he was unable to return to his paid work in the prison’s kitchen area. He says he was being given anti-inflammatories, such as Motrin, but that he was “not getting anything for the pain”.

• Mr Miller says that, in time, treatment for his injuries in prison included “orange pills”, and the making of arrangements for an x-ray. However, to deal with his ongoing neck problems from the second fall, he also began wearing a supportive neck collar he himself had fashioned from a towel. He continued doing so as needed until he was released from prison and returned to the care of Dr Malik, (after which the dates and nature of his treatment become more detailed and certain).

• Mr Miller says that, unlike the earlier slip and fall accident, the second one, and resulting onset of such severe pain, were developments significant enough that he described them to his wife in a telephone call shortly after the accident.[16]

[59] I found Mr Miller’s descriptions of the two accidents and their immediate aftermath to be credible and reliable, and found no reason to question their accuracy.

[60] In particular, despite the efforts of defence counsel to highlight possible inconsistencies between Mr Miller’s testimony at trial and various accounts provided by Mr Miller on earlier occasions, it seemed to me that there really were no significant deviations in that regard, especially when one recognizes the importance of bearing in mind which of two separate accidents Mr Miller may have been describing at different times.[17]

TIMING OF ACCIDENTS

[61] As noted above, the plaintiff’s statement of claim alleges that the two slip and falls occurred “on or about” December 1, 2005, and January 6, 2006, respectively.

[62] However, it was abundantly clear during the course of trial that there was lingering and considerable uncertainty about the exact dates on which the two accidents occurred.

[63] In my view, that uncertainty was fostered, in large measure, by Mr Miller’s aforesaid inability to recall dates with accuracy, which in turn caused him to provide various questionable dates to others, who then understandably included such questionable date references in the documentation they were preparing.[18]

[64] Uncertainty regarding the precise timing of the slip and fall accidents did not give rise to any limitation period concerns, (insofar as the statement of claim was issued on November 15, 2007, and there was no dispute that the falls had occurred, if at all, within the previous two years).

[65] Moreover, in my view, the possibility of the two slip and falls occurring on dates near to but not on December 1, 2005, and January 6, 2006, did not require a formal amendment to the plaintiff’s pleading, (having regard to such matters as the “on or about” date wording used in the statement of claim), and it is difficult to see how such an amendment would inflict significant prejudice on the defendant in any event.

[66] However, determination of the date on which the second slip and fall likely occurred was still a matter of some importance, since that in turn would determine the degree to which other tendered evidence, (such as date specific weather data and maintenance records), might be relevant.[19]

[67] For the reasons outlined above, it seems to me that, in determining the actual dates on which the two slip and falls occurred, little reliance can be placed on the specific date indications and estimates provided by Mr Miller, either directly through his testimony, or indirectly through the documentation simply recording and reiterating the date indications Mr Miller was providing to others.

[68] In my view, far more accurate and helpful indications of the timing of Mr Miller’s slip and fall accidents are found in the contemporaneous and dated “progress notes” prepared by the Health Services staff at the Pittsburgh Institution’s infirmary, the dated “Inmate Request” forms prepared by other inmates on Mr Miller’s behalf, and the “Report of Inmate Injury” form that was progressively completed on various dates between January 6 and January 27, 2006.

[69] In particular:

• The progress note entries suggest that, before January 6, 2006, Mr Miller’s most recent attendance at the prison infirmary occurred on December 21, 2005, when he retrieved various medications to treat his depression and anxiety.

• A progress note entry, made at 12:15pm on January 6, 2006, indicates that Mr Miller was in the prison infirmary, reporting a slip and fall on ice that occurred just ten minutes earlier. The note reads as follows: “IM [inmate] seen for c/o [complaint of] having slipped on ice and fall at 12:05 – onto his L knee – c/o pain – tenderness – able to ambulate – ROM [range of motion] good – Advised to apply ice – mild ROM exercises – motrin 600 est [?] – has card in possession.” [Emphasis added.]

• Progressive completion of the “Report of Inmate Injury” form then began with the filling out of its first three portions on January 6, 2006. In particular:

o The first portion was completed by the “Reporting Officer”, who completed his designated section of the form with a signature, (first name “David” but surname illegible), dated January 6, 2006. In his notations, the Reporting Officer indicated that Mr Miller was reporting an accident said to have occurred that same day at “12:05 hours“, “on roadway near sidewalk 3”, while Mr Miller was “walking”. The more detailed description of the accident provided to the Reporting Officer by Mr Miller was described as follows: “Walking along and fell onto the ice – Claims twisted and fell onto the L knee (left)”. The Reporting Officer also confirmed that first aid already had been rendered by the In-Service Health Care Unit. [Emphasis added.]

o Notations under the second portion of the same form, (“Inmate’s Statement of Account”), are clearly completed in the same handwriting as that used by the Reporting Officer in the first portion of the document, with the exception of Mr Miller’s signature. In particular, there is a note in the same handwriting, indicating that “IM agrees to same as above statement”. This is followed by Mr Miller’s signature, next to which the Reporting Officer, using the same earlier handwriting, has inserted the date January 6, 2006. All of this is consistent with Mr Miller’s functional illiteracy, and his corresponding need for assistance in the completion of documents.[20]

o The third section of the form, to be completed by the “Medical or Health Care Officer”, continues in the same handwriting, and ends with the same signature, (dated January 6, 2006), as those used in the form by the “Reporting Officer”, which in turn mirror the handwriting and signature found in the “progress note” completed the same day. In my view, this clearly indicates that the same person was acting in the dual capacity of “Reporting Officer” and “Medical or Health Care Officer” at the relevant time. In the third section of the “Report of Inmate Injury” form, the person has made notations indicating “injury reported at 12:05 hours” on January 6, 2006. Where asked to “describe fully injury when first examined”, the person has written “good ROM – 0 break in skin surface to L knee – wt bearing with slight limp”. The person also confirmed that the injury was not sufficient to require hospitalization, that it would not disable Mr Miller for his usual work, and that no further treatment was being prescribed. [Emphasis added.]

• Apart from progress note entries on January 19, 2006, which seem primarily directed towards ongoing concerns about Mr Miller’s hematuria, (i.e., blood in his urine), and renewal of anti-depressant and muscle relaxant prescriptions, there are no progress note entries between January 6 and January 23, 2006.

• At 9:15am on January 23, 2006, however, Mr Miller was back at the prison infirmary to see Health Services staff. An attending registered nurse made an entry in the progress notes that begins “Seen in HS re L side low back pain ongoing since Oct/Nov”. After some comments relating to Mr Miller’s ongoing urine and discharge concerns, the note entry continues as follows: “c/o neck pain when fell the other day on ice – could not pinpt which day he fell – can touch chin to chest – able to turn head L & R but c/o pain, numbness and tingling going down both arms – states when bends head backwards feels dizzy – did not pick up Robaxin and Motrin ordered by Dr [on January 19th] – issued today – to take Px as ordered - to advise HS if 0 improvement – advised 0 lifting”. A subsequent or continued progress note entry, apparently made by the same registered nurse later the same day, (January 23, 2006), says “will list for neck x-ray”. [Emphasis added.]

• On January 24, 2006, Mr Miller submitted an “Inmate Request”, (prepared for him by another inmate), to the prison infirmary. It apparently was the first such request submitted by him, in relation to a physical complaint, since July 5, 2005,[21] and it reads as follows: “I fell on the ice in C hood and from that time I have been in pain – back pain has been keeping me up at night. I have asked for pain killer but they have not given me any. I need to be off work for a few day (sic) until my back can feel better. Please ask doctor to see A.S.A.P.” [Emphasis added.]

• A further progress note entry made by the same registered nurse on January 24, 2006, says “listed for Dr re shoulder, back pain”. [Emphasis added.]

• Progressive completion of the aforesaid “Report of Inmate Injury” form, (commenced on January 6, 2006), also resumed on January 24, 2006. In particular, the next or fourth portion of the form was completed by “G. Witherspoon”. (In his testimony, Mr White indicated this was likely “Glen Witherspoon”, a correctional manager at the Pittsburgh Institution in 2006, who was thought to have since retired.) Mr Witherspoon dated his signature January 24, 2006. He did so after writing “He fell down steps to sidewalk – He thought it was snow on ground but it was ice and he slipped”, and after Mr Witherspoon had noted his view that “the accident was caused by … carelessness on the part of the inmate”.[22] [Emphasis added.]

• On January 25, 2006, the same registered nurse wrote an answer on the Inmate Request form submitted the previous day, indicating “You have been listed for a neck x-ray & then listed for the Dr”. [Emphasis added.]

• A progress note entry dated January 26, 2006, indicates that Mr Miller was again at the infirmary, complaining of back pain.

• On January 27, 2006, progressive completion of the aforesaid “Report of Inmate Injury” form then resumed, and was completed by the “Director” of the Pittsburgh Institution filling out the fifth and final portion of the document. The Director dated his or her illegible signature January 27, 2006, after indicating an opinion that there had been no misrepresentation or concealment in the case, and that no further investigation was considered necessary.

• A progress note entry prepared by a registered nurse on January 30, 2006, includes indications that Mr Miller “while up continues to c/o lower back pain R side with pain shooting down R leg – ongoing L shoulder pain”. A separate entry made later the same day, apparently by a doctor capable of prescribing medication, made an underlined diagnosis of “acute torticollis”, (i.e., a twisted neck caused by muscular pain), with a further indication that “The Motrin/Robaxin is not helping”, and a referral to physiotherapy. The doctor also continued Mr Miller’s Motrin prescription, and replaced it with a prescription for Indocid, (a different medication used for pain and inflammation of joints and muscles). [Emphasis added.]

• A progress note entry dated February 3, 2006, (apparently made by a doctor able to render prescriptions), directed that Mr Miller also take Naproxen, (a further anti-inflammatory medication), in addition to his anti-depressants.

• A progress note dated February 6, 2006, includes references to “ongoing c/o cervical neck pain with L arm radiation, also c/o pain with light pressure/palpitation to mid cervical region – claims inmate take Indocid as Px’d – Took [?] – and states it made him whoozy – c/o insomnia – c/o neck pain, currently wearing a homemade c-spine collar – will D/C Indocid as per IM’s request – relisted for MD ASAP status”. [Emphasis added.]

• A progress note entry dated February 7, 2006, apparently made by a physician, reads as follows: “Retested re neck pain. This fellow has a torticollis which continues. Unable to fit in today but will get X-ray. X-ray c-spine, D/C Indocid … Try Arthrotec [another anti-inflammatory medication] … Already booked for physio. Now apparently has pain down arm which is not consistent with torticollis so will look for a disc/spinal stenosis.” [Emphasis added.]

[70] There are further and later entries in the progress notes and other prison medical documentation making additional reference to such matters as Mr Miller’s ongoing c-spine neck pain, acute torticollis, upper thoracic pain, left arm numbness and weakness, loss of function in his left upper triceps, complaints generally following the extensor nerve from the brachial plexus, and taking of anti-inflammatory and/or pain medication.

[71] For present purposes, however, I think the various dated references noted above, combined with Mr Miller’s testimony as to how the two accidents happened, and their immediate physical consequences and treatment, are sufficient to justify findings, on a balance of probabilities, that:

• Mr Miller’s first slip and fall accident, (which resulted in no significant or lingering injuries), occurred on January 6, 2006; and

• Mr Miller’s second slip and fall accident, (which initiated the neck, shoulder, triceps and back difficulties and complaints underlying his current claim for damages), occurred on a date between January 19 and January 23, 2006, and on January 22, 2006, in particular.

[72] In that regard, I note in particular that the accident location, description and consequence information being recorded on January 6th is noticeably and significantly different in nature to that being recorded over two weeks later on January 23-24th, and that the differences generally conform to the two distinct accidents and associated consequences described by Mr Miller in his testimony.

[73] Moreover, it seems obvious that whatever happened to Mr Miller on January 6th was relatively inconsequential, (in that no further treatment was thought necessary, and it prompted no further attendances at the infirmary or requests for follow up treatment of any related ailments over the next two weeks), whereas some kind of significant event or change, shortly before January 23rd, then prompted a barrage of attendances, complaints, doctor involvement, changes of medication, x-ray requests and referral to physiotherapy, to address new and distinct physical ailments and concerns.[23]

[74] The only reasonable conclusion, in my opinion, is that Mr Miller’s second and much more serious slip and fall accident intervened, and that it did so during the progressive completion of the “Report of Inmate Injury” form. (This in turn led to understandable confusion, whereby the first three portions of that document addressed the first accident, whereas the last two portions of the document effectively were focused on the second, separate and distinct accident.)

[75] In particular, although plaintiff counsel suggested that the second and more serious slip and fall accident occurred on January 6, 2006, that the isolated references on that date to Mr Miller’s left knee did not preclude the possibility of other injuries being sustained and discussed that day, and that Mr Miller’s other injuries then progressively continued or evolved to the point of his seeking further treatment for those same injuries on January 23, 2006, in my view none of those suggestions square with Mr Miller’s evidence that injuries sustained in the second fall caused him immediate and excruciating pain for which he sought treatment as soon as possible, and which became an absolute priority for him the day after his second accident. It therefore seems highly unlikely that there would have been any failure to mention or document such injuries or complaints on January 6, 2006, (or at any time during the two weeks that followed), if Mr Miller had experienced such injuries that day.

[76] Pursuant to the above findings, determinations of liability for the second slip and fall accident therefore will be approached on the basis that it occurred on or about January 22, 2006.[24]

[77] In my view, this second slip and fall was the accident Mr Miller was describing in the following previous accounts supplied to others before trial:

• The account he provided to the prison infirmary attendant on January 23, 2006, indicating that he “fell the other day on ice”.

• The account he asked his fellow inmate to include in the “Inmate Request” form completed January 24, 2006, in which Mr Miller said that he “fell on the ice in C hood”.

• The account he provided to Mr Witherspoon on January 24, 2006, documented in the fourth portion of the aforesaid “Report of Inmate Injury” form, saying that Mr Miller “fell down steps to sidewalk” and “thought it was snow on ground but it was ice and he slipped”.

• The account he provided to Ms Stafford within days of the accident, indicating that he had slipped when going down stairs, and fallen backwards onto the stairs.

• The account he provided to Mr Henderson, (a prison physiotherapist), documented in a “Referral for Consultation and Report” form completed March 10, 2006, that he “fell on ice 2 months ago”.

• The account he provided to Dr Malik on September 27, 2006, (as documented in her progress note of that date, and repeatedly echoed in the clinical history Dr Malik provided during the course of her successive referrals of Mr Miller to the neurology department of London Health Sciences Centre, the radiology department at St Joseph’s hospital prior to Mr Miller’s MRI scans, and the Hand and Upper Limb Clinic of St Joseph’s Hospital), saying that “while in jail he fell backwards onto outstretched L arm”.[25]

• The account he provided to Dr Novelle on February 26, 2007, indicating that “he fell down a flight [of] stairs, in which his left arm was outstretched behind him while he hit the ground”.

• The account he provided to Dr Faber on March 21, 2007, indicating that “he reports falling down a flight of stairs after slipping on some ice”.

[78] In noting and describing the evidence of such earlier reports by Mr Miller concerning his second slip and fall, on January 22, 2006, I do so not for the impermissible purpose of finding that his testimony at trial is bolstered by previous consistent statements, but to explain why I reject defence submissions that Mr Miller, over time, has given accounts of his second accident that were inconsistent in any material way.

[79] In particular, while the extent of information and detail provided by Mr Miller in his various accounts may not have been entirely the same, in my view this is not the same thing as Mr Miller providing information and details that were in any way contradictory. He has simply described the same incident, in the same way, but in more or less detail from time to time.

[80] Before moving on from the timing determinations outlined above, I note that January 22, 2006, is a date in respect of which no weather data from Environment Canada was provided by the parties, but in respect of which I was provided with medical, maintenance and rule/operations documentation.

[81] I also have testimony of Mr White and Mr Miller, outlined below, as to general conditions and procedures that existed (or did not exist) at the facility during the time period surrounding that date.

RELEVANCE OF RULE PROHIBITING INMATE VISITS TO OTHER UNITS

[82] Before turning to a broader consideration of the defendant’s possible liability for the accident, I think it appropriate to address what the Crown submitted was a key if not controlling and determinative consideration in this case; i.e., that at the time of slip and fall giving rise to this claim, Mr Miller was in clear violation of the Institution’s rule prohibiting inmates from visiting the residential units or “houses” of other inmates, and therefore in a place where he was not supposed to be.

[83] The existence of such a rule was confirmed by the Inmate Handbook, the provisions of which include, (on page 6, under the capitalized heading “SMALL GROUP LIVING RESPONSIBILITIES”), the following statement, in bold print:

Residents are not permitted to have inmates from other areas of the institution visit them in their houses. In-house residents may visit other inmates in their rooms, but they must return to their own bedrooms for formal counts and at curfew.

[84] Moreover, the same Inmate Handbook indicates, (on page 7, under the capitalized heading “CONDUCT”), that “an inmate commits a disciplinary offence when he … is in an area prohibited to inmates without authorization”. Immediately before this is an express statement emphasizing that “Inmates are responsible for informing themselves of the rules, and ignorance is not accepted as an excuse for violations”.

[85] Existence of the non-visitation rule also was confirmed in testimony from Mr White, who indicated that he had seen the Inmate Handbook on occasion, and was familiar with the rule that “residents from other houses were not to attend at or come into a house to visit”. By way of explanation, Mr White emphasized that, despite possible surface appearances, the Institution “is a jail” and the residents “are inmates”. He understood that the rule was in place to help control problems with gambling, drug use, the circulation of other contraband such as tobacco, and other “illegal activity”.

[86] Moreover, I find as a fact that a copy of the Inmate Handbook, containing the non-visitation rule, was issued to Mr Miller when he was being processed through the Millhaven Assessment Unit, immediately prior to his arrival at the Pittsburgh Institution. In that regard:

• Content of the Handbook confirms an obvious intention to ensure its regular distribution to individual inmates as they were arriving at the facility. For example, after a short cover page, table of contents, and page setting out the facility’s location and contact numbers, the very first sentence of the Handbook opens the Warden’s Message by saying “Oh behalf of the staff, Citizen’s Advisory Committee and Inmate Committee, I would like to welcome you to Pittsburgh Institution.” [Emphasis added.]

• Mr White testified that the Inmate Handbook “absolutely would be made available to inmates”.

• The “Men’s Health Status Admission Assessment” form completed by the Millhaven Assessment Unit in relation to Mr Miller, on March 2, 2005, expressly documents and confirms that he was issued the “Inmate Handbook and Health promotion material”.

• Although Mr Miller testified that he had no memory of having seen the Inmate Handbook before, nor any recollection of anyone handing him the document before it was presented to him in the witness box, this hardly seems surprising given his functional illiteracy and corresponding inability to distinguish written documents.

[87] For a number of reasons, however, it seems to me that the existence of the rule, physical presentation of the Inmate Handbook to Mr Miller, and apparent violation of the non-visitation rule by Mr Miller at the time of his second slip and fall, do not have the decisive impact suggested by the defendant on the particular facts of this case.

[88] First, although the non-visitation rule may have existed on paper, it also seems to have been a rule “more honour’d in the breach than the observance”, (to use Hamlet’s often repeated characterization). In that regard:

• Mr Miller’s reaction to the suggestion of such a rule, during cross-examination, certainly seemed to be one of genuine surprise and amazement. When the written rule was read out to him by defence counsel, Mr Miller emphatically stated “That’s not true!”, before embarking on a spontaneous and extended account of many visits by inmates between houses to “play cards”, “visit buddies”, and have “pot luck” dinners. Mr Miller emphasized that inmates were quite able to come and go between their different houses, and that he personally had seen that done “hundreds of times”, in every neighborhood of the facility, throughout his stay at the Pittsburgh Institution. In fact, he was confident that he personally had been inside 90 per cent of the houses there, most frequently as an invited guest for meals.

• During his examination-in-chief, even Mr White volunteered that, despite the written rule prohibiting visits to other houses, “inmates would do it anyway”, and that they in fact did so “quite often”. Moreover, there was a striking contrast between Mr White’s emphasis on frequently hearing guards “ream inmates out” for failure to maintain their housing units, and the complete absence of any suggestion that he had ever witnessed any episodes of discipline related to the non-visitation rule.

• While I have no doubt that the written non-visitation rule provides a useful instrument for control and discipline if and as needed by the prison authorities, there is an obvious tension between that particular rule and the overall goal of the Institution, (emphasized on the cover of the Inmate Handbook itself), to “mirror the community as much as possible”. In the circumstances, it seems unsurprising that inmates would be inclined to visit other houses, (in a manner similar to visits made in normal communities), and that such visits might be tolerated in practice in the absence of any noticeable concerns.

[89] Second, at least insofar as Mr Miller is concerned, it seems to me that there are fundamental considerations of fairness that must temper the extent to which the defendant is able to rely on the Inmate Handbook and the usual manner of its promulgation through distribution of the Handbook to inmates on their arrival at the institution. In my view, this is an area where the Crown’s supplementary duties of care, owed to individual prison inmates, comes to the fore. In particular:

• As noted above, prison officials are not guarantors of an inmate’s safety, and perfection or infallibility on their part is neither expected nor required. However, reasonable and adequate measures appropriate to the circumstances must be taken to protect an inmate from a reasonably foreseeable risk of harm, and predictable dangers. In my view, that includes the taking of reasonable and adequate steps to ensure effective communication of any rule considered important to the Institution’s determination of other systems designed to ensure inmate safety.

• In the case of Mr Miller, prison officials knew or ought to have known from the outset that Mr Miller was quite incapable of reading any documentation provided to him, including the content of the Inmate Handbook. In that regard, the admission form completed by authorities at the Millhaven Assessment Unit, on March 2, 2005, simultaneously confirmed that Mr Miller was issued the Inmate Handbook and that he was “functionally illiterate”. Moreover, based on my observations at trial, it would have been painfully obvious, to anyone making even modest inquiries as to the extent of that indicated illiteracy, that Mr Miller had no capacity whatsoever to independently understand any information provided to him in writing, and that he certainly would not have been able to comprehend or digest the Inmate Handbook.[26]

• Notwithstanding such realities, it seems nothing was done by prison authorities to communicate the non-visitation rule to Mr Miller, apart from providing him with a copy of the Inmate Handbook.[27] In particular, Mr Miller testified that no one had ever read or told him about the non-visitation rule set forth in the Inmate Handbook, prior to trial, and his evidence in that regard was not contradicted in any way.[28]

• If the non-visitation rule was indeed something important or essential to the institution’s determination of other measures taken to ensure inmate safety, then it seems inappropriate for the Crown to suggest it had no independent obligation to ensure that Mr Miller actually knew of the rule, (given his illiteracy and corresponding inability to read the Inmate Handbook), or that responsibility for carrying out such an obligation essentially could be delegated to other inmates. To the contrary, it seems to me that the Crown had a duty to take reasonable and adequate measures to ensure that such a rule was brought home to Mr Miller, (as an inmate in its care, with a known and relevant disability), and that simply was not done.

[90] Third, in my view care must be taken not to reintroduce, by indirect and incremental means, a system of law whereby occupier liability is determined on the basis of how a claimant came to be present on particular premises, and the extent to which that presence was authorized or prohibited by the occupier. In that regard:

• Such “category of entrant” distinctions, (analogous to “trespasser”, “invitee” and “licencee”), were precisely what the Legislature set out to abolish through passage of the OLA.[29]

• As noted above, section 4 of the OLA preserves only a few residual means whereby an occupier can negate or limit its otherwise applicable general duty of care based on the type of entrant, and it seems to me that none of them apply in the circumstances of this case.[30]

• I find that the defendant also has failed to establish that the situation is governed by s.3(3) of the OLA, in the sense of the occupier having chosen, in a reasonable way, to put the relevant area of the facility “off limits” instead of making it safe.[31] As a matter of common sense, a prison facility might very well do that in relation to certain areas; e.g., by taking effective measures, for security reasons, to ensure that few if any persons were to access certain areas in or around the facility. But that hardly seems the case in relation to the entrance area to unit 23. In that regard, not only was the “non-visitation” rule not strictly enforced, but the evidence of Mr White made it clear that the entrance of unit 23 inherently was a “high traffic” area in any event. As the principal entrance to that unit, it would have been used regularly by the 5-8 inmates assigned to that house, (coming and going in pursuit of their daily activities and assignments), and possibly also by the corrections staff who visited the unit at least every four hours.[32] Beyond this, Mr White agreed that the relevant entrance area would have to have been kept safe and accessible at all times for health, fire and safety reasons. In my view, the circumstances therefore preclude any finding that the defendant reasonably restricted, modified or excluded its general legislated duty of care in relation to the entrance area to unit 23.

[91] For all these reasons, I am not persuaded that the particular non-visitation rule relied upon by the defendant represents any effective bar to Mr Miller’s claim, or by itself takes the case outside of the generally mandated approach for determining such claims.

[92] At most, it is but one of many factors to consider in determining what constituted reasonable care of the unit 23 entrance area, at the time of Mr Miller’s accident.

[93] Having said that, I do not regard it as a very persuasive factor, for the reasons I have outlined.

[94] Without limiting the generality of the foregoing, it seems to me that the defendant occupier had a general obligation to keep the entrance area reasonably safe for the many people who were using, or may have needed to use, the entrance area to unit 23. As indicated by Mr White’s testimony, employees of the defendant occupier were aware that this included the possibility of other inmates such as Mr Miller visiting the house, in contravention of the written but loosely enforced “non-visitation” rule.

LIABILITY – SYSTEM OF MAINTENANCE RELIED UPON BY DEFENDANT

[95] The defendant did not seriously dispute that normal and expected winter conditions in the area of Pittsburgh Institution would create hazards such as those encountered by Mr Miller at the entrance to unit 23.[33]

[96] To the extent necessary, I find that the relevant premises regularly were exposed to ice and snow conditions during winter months, thereby presenting a known danger; a danger which had materialized at the entrance to House 23 at the time of Mr Miller’s second slip and fall accident, (based on his description of the hazardous accumulation of ice on the relevant steps).

[97] The defendant occupier accordingly was required to have a reasonable system in place to ensure that users of the property would be reasonably safe from slipping and falling due to such weather conditions.

[98] At trial, the defendant argued strenuously that it had such a system in place.

[99] In that regard, the defendant relied primarily on the testimony of Mr White, as well as documentation reflecting the policies and practices adopted by the defendant to deal with ice and snow removal.

It nevertheless seemed to me that much of the evidence tendered by the defendant in that regard had little relevance, in terms of demonstrating the maintenance systems the defendant had in place in relation to the entrance area outside the exterior door of unit 23.

[100] For example, Mr White spoke at considerable length about the efforts that he, other prison staff, and an outdoor “crew” of 20-30 trained and supervised inmates formally employed by the institution in exchange for payment of a relatively modest hourly wage ranging from $4.75 to $6.90,[34] would make to routinely clear and remove snow, and otherwise deal with ice and otherwise slippery conditions on the grounds of the Pittsburgh Institution. In that regard:

• Mr White provided considerable detail about the personnel and equipment used, (including trucks, snowplows, small blowers, wheelbarrows, shovels and manual salt and sand spreaders), the schedule of operations, plowing routes that were followed, and the monitoring and reporting systems put in place to supplement regular efforts “as required”, (e.g., in response to heavy snowfalls, obviously severe weather conditions, and/or calls from security indicating that roads and walkways were “getting slick” and asking that someone be “sent out” to address the situation).

• Such testimony was buttressed by records such as “Overtime Reports”, and “Work Order Information” confirming the considerable time devoted to outdoor maintenance, and snow removal in particular, during the winter months in late 2005 and early 2006.

• Mr White also made reference to an “Institutional Operational Procedures” (IOP) document published by Correctional Service Canada, numbered 254.3 and dated July 30, 2003, dealing with “Snow Removal and Control”. Its expressly stated objective was “to outline the process used in case of unsafe road conditions in and around the institution and to set responsibilities for inmates and staff [to] ensure the safety of roads at all times as much as possible considering changing weather conditions”. Amongst other things, the document goes on to state:

o that “it is the responsibility of staff and inmate to use the tools put at their disposal to ensure safety of roads for themselves and others”;

o that “sanding boxes are available all around the institution as well as Ice-Melt containers outside of each house”;

o that “it is the responsibility of each staff (sic) and inmate to spread sand on any unsafe roads before venturing to walk on these surfaces and to inform the I/C of the need to call the inmates who have been assigned to shoveling snow and sanding of the roads”; and

o that “staff and inmates should not walk on any surface without first verifying it is safe”.

[Emphasis added.]

[101] However, it became clear during the course of Mr White’s testimony that most of the efforts and systems he was describing intentionally were devoted to roads, walkways and areas other than the outdoor entrances of inmate housing units and the walkways leading from roads to those entrances, in respect of which a different winter maintenance system applied.

[102] In particular, Mr White repeatedly indicated and confirmed that responsibility for outdoor winter maintenance of the entrance area to any particular housing unit, (including the cement pad and steps outside each unit’s exterior doorway, and the walkway between the housing unit and the edge of the passing road), was assigned instead to the inmates living in that housing unit. According to Mr White, those specific inmates, (and not any prison staff or paid inmates working with the outdoor maintenance crew), were the people required to keep such areas shoveled, and treated with ice-melt or salt as necessary.[35]

[103] To that end, Mr White says that each such housing unit was provided with a shovel, access to a supply of ice-melt or sand, and a plastic pail and scoop to spread such material on the walkway and steps leading to the housing unit. In particular, Mr White indicated that if a housing unit’s supply of ice-melt, salt or sand was running low, inmates could replenish it by attending at the prison’s maintenance shop during daylight hours to be given a bag of such material, and/or by taking such material from unlocked boxes/bins located around the various neighborhoods. According to Mr White, a supply of such material therefore was “readily available if one wanted to use it”.

[104] When asked how the institution would know whether or not residents of a particular unit actually had carried out their outdoor winter maintenance responsibilities, (in relation to their unit’s entrance area and approach walkway), Mr White indicated that any failings in that regard would be identified and brought to the attention of security through various means, including:

• inmates “squealing” on each other;

• guard staff who, when making their regular neighborhood rounds in all types of weather, (including snowy conditions), would check houses and pay attention to entrances and doors;

• members of the works department detecting problems before then calling security to “put a bug in their ear”; and

• “basically, by anyone who sees such measures not being taken” registering a complaint with security.

[105] According to Mr White, security then would deal with any such identified failings by following up with the house residents in question. In that regard, Mr Whyte emphasized that he personally had witnessed security “reaming out inmates” for allowing icy conditions to develop on the walkways to their housing units.

[106] However, it was confirmed through answers to undertakings that there were no security inspection reports maintained in relation to the area around House 23; e.g., to indicate whether or not the inmates residing therein were attending to such outdoor winter maintenance.

[107] Mr White also acknowledged in cross-examination that he had no knowledge or information to confirm whether or not the inmates residing in House 23 actually had a shovel or ice-melt available to them in January of 2006.

[108] When questioned further about possible documentation confirming existence of the winter maintenance system Mr White was describing for each housing unit’s entrance and approach walkway, he indicated and acknowledged the following:

• He did not know and could not say whether the aforesaid IOP document had ever been made available to inmates, but did confirm his understanding that the “road” references in that document would not include the walkways and steps leading to each housing unit at the Pittsburgh Institution;[36]

• He did not know of, nor had he ever seen, any IOP document directing staff or house inmates as to what the latter were obliged to do to keep their own house entrance landings and walkways clear of snow and ice; and

• He did not see anything in the Inmate Handbook telling inmates how to maintain the area from the door of their assigned housing unit to the road.

[109] I also received testimony from Mr Miller about such matters, which included the following:

• Although Mr Miller acknowledged an initial “orientation” period after his arrival at the Pittsburgh Institution, to his knowledge, neither he nor his housemates ever received rules or instructions from anyone in authority concerning residential unit maintenance tasks, or “house rules” in that regard. (Nor did Mr Miller have the ability to read any written rules concerning inmate responsibility for maintenance, in any event.) Mr Miller says that he and his fellow housemates simply were “told the rules” by other inmates.

• In that regard, Mr Miller confirmed that inmates were given various responsibilities “for keeping the inside of the house clean”. In particular, individual inmates not only had to keep their assigned bedrooms in order, but were also given various specific “daily chores inside”, (such as cleaning floors, vacuuming, dusting and tidying), to keep the interior of the unit “in proper form”. However, Mr Miller says that all such assigned maintenance tasks were inside, and that he and his housemates were “never told to do anything outside”. Neither he nor any of his housemates ever attended to maintenance tasks around the exterior of their assigned residential units, as far as he could remember. Mr Miller says it was the “grounds people”, (including inmates paid for their services), who would “do the outside” maintenance.

• In particular, Mr Miller says that he and his various housemates were never told to do anything about removal of snow or ice around or outside their assigned unit. Again, he personally never did that, and never saw any of his housemates do that. He says it was understood that the grounds people, (alternatively described as the “outside crew” or “work crew”), would look after such things.

• Mr Miller “never noticed” and does not remember there being a shovel or ice-melt in any of the housing units he occupied during his time at the Pittsburgh Institution, (and the facility’s records confirm that he occupied four such units during his incarceration there). He says he never used such items, and “never ever salted anything”. Nor did he ever see any of his other housemates using such items.

• Mr Miller thought there may indeed have been bins of sand or salt mix at the end of the various house walkways, near the roads. However, he thought they were “for the grounds people”. Once again, he personally never used them, and never saw other house residents using them.

• When Mr Miller was supplied with a printed copy of the defendant’s IOP no. 254.3, relating to “Snow and Ice Removal and Control”, he could neither read nor recognize the document, but once again generally denied having ever received any documents or instructions from the authorities about how to behave in that regard.

[110] In my view, having regard to all of the above evidence, there are numerous problems and concerns with the “system” relied upon by defendant, in purported satisfaction of its duty to ensure that those approaching the entrance to House 23 would be reasonably safe from slipping and falling due to winter weather conditions.

[111] First, there obviously was a significant degree of delegation inherent in the particular system of maintenance and safety adopted by the defendant occupier in this case. In particular, the relevant system described by Mr White contemplated that it would be carried out not by the defendant and its employees, (whether regular management and staff of Correctional Services Canada, or inmates employed by the defendant as groundskeepers in exchange for remuneration), but by inmates who would not be acting as paid employees of the defendant. As noted above, the defendant owes duties of care towards inmates that are not limited to its duties as an occupier. However, as far as the entrance area to House 23 was concerned, responsibility for the safety of prison inmates, (including the responsibility for the safety of visiting inmates such as Mr Miller), essentially was being left to the inmates themselves. In my view, there is an important distinction between executing a responsibility for the safety of others indirectly, (e.g., through effective and carefully monitored delegation to a third party charged with executing the responsibility on the duty holder’s behalf), and the duty holder essentially telling others, for whom it has responsibility, that those others must look after themselves. One constitutes fulfilment of the responsibility by indirect means, while the other seems tantamount to effective abandonment of the responsibility.

[112] Second, it seems to me that any effective delegation of such responsibilities to unpaid inmates, (if such delegation is permissible), would carry with it an obligation to ensure that the contemplated system of outdoor winter maintenance, in relation to the entrance and approach to residential units such as House 23, was both certain and sufficiently promulgated to the inmates effectively entrusted with its primary execution. However, I find that the defendant has failed to provide sufficient evidence of that having been done in this case. In that regard, committing the details of the system to writing may not have been necessary as a matter of law, but the defendant’s apparent failure to do so, (in a manner similar to what was done in relation to other important winter maintenance policies of the defendant), no doubt hindered adequate communication of its existence and details to others.[37] In that regard, I accept Mr Miller’s evidence that it was a system whose requirements were not effectively communicated to many inmates, who accordingly were not aware of any such responsibilities in that regard. Similarly, to the extent that the defendant relies on a system whereby those using the entrance area to House 23 were expected to know about and comply with defendant safety policies requiring such individuals to first apply ice-melt, salt or sand themselves, if and as necessary, I think it would be unjust to permit the defendant to avoid liability vis-à-vis Mr Miller on that basis, insofar as there were no reasonable efforts made by the defendant to ensure that such safety policies were brought home to him, despite his known illiteracy. Again, the defendant’s apparent failure to take any such measures seems a breach of the supplemental duties owed by the defendant to Mr Miller, as an inmate committed to its care, in relation to matters of safety.

[113] Third, to the extent such a winter maintenance system was in place, and communicated to inmates, in my view it was inherently defective and deficient. In particular:

• In contrast with prison staff and wage-earning inmates on the outdoor “groundskeeper” crew, (all of whom had an obvious interest in doing assigned maintenance jobs properly in order to maintain their employment, regardless of whether they had any personal desire or intention to use specific areas), inmates living in each residential unit apparently had little or no incentive to carry out timely winter maintenance to ensure house entrances and approach walkways remained free of snow and ice, if they themselves were not contemplating immediate use of such areas. The only suggested consequence of house residents failing to carry out such responsibilities seems to have been eventual chiding by security officers, (if and when failures and resulting hazards were detected), coupled with demands and orders that the contemplated winter maintenance work be done belatedly.

• Assigning such responsibilities to a collective of 5-8 individuals without such meaningful incentives to do the work on a timely basis, and without further specifics or direction as to which of the individuals was to execute the responsibilities at any particular time, creates obvious potential for mistaken assumptions that the work would be done by others, and/or for the work being left undone.

• As described by Mr White, the primary methods of inspection and monitoring, to ensure execution of the contemplated maintenance responsibilities by house residents, seem to have been directed towards detection and reporting of hazards resulting from failures of the contemplated winter maintenance system, followed by the taking of remedial action. In other words, the relevant system seems to have been largely reactive, (responding to failures and the resulting existence of dangerous conditions), instead of being sufficiently proactive, (so as to prevent the onset of hazards such as those encountered by Mr Miller).

[114] Fourth, an alternative, adequate and relatively inexpensive system, (which in my view would have addressed and remedied all of the above concerns), was readily available to the defendant. In particular, the existing grounds-keeping crew, in addition to their existing responsibilities, could have been instructed and employed, (at rates of hourly inmate remuneration well below minimum wage), to use their existing shovels, and the ice-melt or sand already brought to the immediate vicinity of the house entrances, (according to the defendant), to pro-actively ensure that the entrances regularly were cleared, treated, and kept in a reasonably safe condition before the development of hazardous conditions. In other words, the responsibilities of the outdoor work crews easily could have been expanded beyond the roads and other walkways for which they already were exercising regular, well supervised and routinely documented winter maintenance responsibilities, (with such regularity, supervision and documentation thereby minimizing the likelihood of undetected failures in the system).[38]

[115] Fifth, it seems to me that there really was little or no evidence to confirm that the alleged system of maintenance was operating effectively in relation to the relevant premises, (i.e., the entrance area of House 23), at or even around the time of Mr Miller’s second slip and fall accident. Again, there were no records or other documents to suggest that it was, and Mr White, (whose work responsibilities were focused on other areas, and did not normally include house inspections), had no personal knowledge or other information in that regard. Moreover, the direct evidence of Mr Miller, which I accept, confirmed that there simply were no observable indications whatsoever of shoveling, salting or sanding in and around the entrance area of House 23 at the time of his second slip and fall.

[116] For the above reasons, I find that the defendant did not have a reasonable system in place to ensure that users of the relevant premises, (i.e., the entrance area to House 23), would be reasonably safe from slipping and falling due to winter weather conditions, and corresponding known hazards, which had materialized at the time of Mr Miller’s second accident.

[117] In my view, the defendant therefore breached its legislated duty of care owed to Mr Miller pursuant to s.3(1) of the OLA. It accordingly is liable for damages caused by Mr Miller’s second slip and fall accident.

CONTRIBUTORY NEGLIGENCE

[118] As noted above, the burden of proving contributory negligence lies on the defendant.

[119] In this case, sufficient evidence was elicited to persuade me, on a balance of probabilities, that there was a degree of contributory negligence on the part of Mr Miller in relation to his second slip and fall accident.

[120] As noted above, Mr Miller himself confirmed that, prior to that slip and fall, he was quite aware that outdoor conditions were bad, and that there was snow and ice on the ground. He also already had encountered slippery conditions on the road as well as snowy and icy conditions on the walkway leading to the steps outside unit 23.

[121] Moreover, Mr Miller confirmed that the steps outside Unit 23 looked like ice and snow, in that they were clearly slippery and shiny, with the ice shining underneath the snow so that it could be seen without having to wipe the snow away. As noted above, he could also tell that no salt or sand had been spread around the steps at the time of his visit.

[122] It was still daylight at the time, with nothing to prevent such observations.

[123] In my view, the circumstances therefore were such that Mr Miller knew or ought to have known of the possible hazards involved in ascending the steps of unit 23, and the need for greater care while following through on his admittedly unnecessary visit to borrow coffee. Mr Miller failed to exercise such care by admittedly proceeding to and from the door of unit 23 in his usual and normal manner.

[124] In addition to such considerations, there is the matter of the footwear Mr Miller was wearing at the time of his second slip and fall.

[125] In contrast to many other slip and fall cases where the nature of a claimant’s footwear is considered, the plaintiff in this case was wearing footwear provided by the defendant. In that regard:

• Mr Miller and Mr White both confirmed that inmates were allowed to retain and use their own clothing, (including footwear), brought with them into the institution. However, Mr Miller acknowledged that his own items of clothing “wore out” by the time of the relevant accidents, such that he was wearing “government issued clothing” at the time of both accidents.

• The Inmate Handbook indicates, (at p.17 under the heading “Basic Institutional Clothing”), that the prison provided each inmate with one pair of “running shoes” on an annual basis, insoles and shower sandals “on request”, and possibly one pair of “safety boots”, (albeit “for required working conditions only”).

• Mr Miller acknowledged that, at the time of his slip and falls, the prison had provided him with running shoes and a “work boots kind of deal”.

• Mr White testified that inmates generally wore “runners” in summer time, supplemented in winter conditions by “thin rubber overshoes” or “rubber type things”, (which the prison would supply on request), to “go over casual footwear”.[39] However, he also confirmed that inmates were issued “proper safety footwear”, in the form of boots which had to be worn whenever inmates were required to work at tasks “where safety rules applied”. According to Mr White, this included paid work in the maintenance and grounds-keeping operations he used to supervise on a regular basis, including snow removal.[40] (In my view, that evidence reinforces a natural inference that such safety boots likely had more traction in winter conditions than running shoes – especially running shoes worn without rubber overshoes.) However, Mr White also believed that similar safety boots would have been issued to inmates working in the kitchen area, (such as Mr Miller), given their need to work with heavy objects that might be dropped. In other words, the safety boots issued by the prison were of the type having “steel toe” areas or similar heavy reinforcements, in order to prevent crush injuries.

[126] In the result, I find that Mr Miller had prison issued running shoes, rubber overshoes and work boots available to him at the time of both slip and fall accidents.

[127] I also find that running shoes would have had less traction on winter snow and ice surfaces than such shoes worn with rubber overshoes, and that both would have had comparatively less traction on such surfaces than the prison issued work/safety boots.

[128] The type of footwear worn by Mr Miller at the time of the second accident is not entirely free from doubt, but I find on a balance of probabilities that he was wearing running shoes without rubber overshoes.

[129] In that regard, I am influenced in particular by Mr Miller’s initial answer to questions in that regard, and by the confident manner in which gave it.

[130] Again, in contrast to his immediate answer to questions about footwear worn at the time of the first accident, (wherein he raised the possibility of “boots or shoes” from the outset), his initial response to questions about his footwear at the time of the second accident was that he was “wearing the shoes they issued”, as they were “all [he] had”, in the sense that he “didn’t have overshoes” for those runners.

[131] Upon further reflection and questioning, Mr Miller then began to doubt his original confident answer, and gravitate towards the possibility of having worn his work boots. However, it seemed to me that his first response was the most genuine and reliable. In that regard, Mr Miller’s mind went immediately to his wearing of running shoes at the relevant time, and the fact that he unfortunately did not have overshoes for them. That, I think, was his memory before it became confused.

[132] Moreover, I think the probability of Mr Miller having worn his running shoes at the time of his second slip and fall is reinforced by the surrounding circumstances, which include the following:

• Mr Miller was not coming from his work in the prison’s kitchen area, (where the wearing of work boots was required). He was instead coming from his “home”, where he apparently had been engaged in late afternoon domestic activities including the making of coffee. It seems to me that Mr Miller naturally is more likely to have been wearing lighter running shoes, rather than heavy steel-toed safety boots, while relaxing inside his residential unit.

• Mr Miller’s visit to House 23 apparently was not planned, but a somewhat spontaneous visit triggered by his discovery that he had run out of coffee.

• Mr Miller also was not planning to be outside for very long, or on covering significant distances outside. He was just going across the road to retrieve coffee before returning immediately to his home.

[133] In such circumstances, Mr Miller’s initial answer about the footwear worn at the time of his second slip and fall accident makes sense to me, in that he is likely to have gone out his door for a brief visit across the street without taking the time to put on the safety boots intended for his work in the prison kitchen. Had he done so, that likely would have provided him with at least some additional traction while negotiating the snow and ice covered surfaces near the entrance to unit 23. Again, greater care than usual, including enhanced footwear precautions, was required in the prevailing circumstances. Mr Miller nevertheless failed to take such precautions.

[134] Having regard to the above considerations, I find that Mr Miller’s own negligence contributed to the second slip and fall, (and resulting injuries caused by that fall), and I assess the extent of that contributory negligence at 30 percent.

Damages evidence and analysis

[135] Apart from requests for interest and costs, the prayer for relief in Mr Miller’s statement of claim requests only a sum of money, without further specification as to the type of damages being sought.

[136] However, at the outset of trial, plaintiff counsel indicated and confirmed that Mr Miller was seeking only “general” or “non-pecuniary” damages for losses caused by his second slip and fall accident; i.e., damages for pain and suffering, and resulting inability to enjoy the normal amenities of life.[41]

[137] In assessing such damages, I temporarily leave aside questions of apportionment, (owing to contributory negligence), and focus instead on a global determination of the general damages Mr Miller has experienced and will experience in the future, which he would not have experienced “but for” the accident.

INDEPENDENT CONDITIONS AND INJURIES

[138] Any reasonable assessment in that regard must, as a matter of law and common sense, take into account the reality that Mr Miller undoubtedly has suffered from numerous conditions, challenges and ailments unrelated to the slip and fall accident in respect of which he now claims damages.

[139] In my view, these clearly have caused him and/or will cause him pain and suffering, and diminished enjoyment of life from a normal person of his age might otherwise experience, regardless of his second slip and fall accident. Such considerations include the following:

• It was not disputed that Mr Miller experienced significant childhood trauma, the nature of which was not clarified in evidence at trial, (owing to his inability to address the subject even in a general way without a complete emotional breakdown, involving uncontrollable crying and shaking). However, during cross-examination, he was able to indicate that he had been placed in a number of institutional settings, apparently away from his parents.

• As noted above, although born and raised in Ontario, and 50 years old at the time of trial, Mr Miller has never attended school of any kind, and is functionally illiterate. His difficulties in that regard are compounded by learning disabilities, (including dyslexia), formally diagnosed when he was approximately 11 years old. Examples of the nature and impact of his illiteracy are provided elsewhere in these reasons, but the reality is that Mr Miller can do little more than identify memorized shapes, colours and numbers, and sign his name. For all practical purposes, he has very limited ability to function independently in a 21st century western society that demands frequent digestion of written information and responses in kind, and the use of forms by various institutions and professionals, (in such areas as banking and finance, government assistance, medical treatment, accommodation and insurance), in order to survive. In relation to all such matters, for many years and well before the accident, Mr Miller therefore has relied heavily on Ms Stafford, who clearly exercises an important supportive and calming role in his life. (The two live alone, as their adult daughters have left home.)

• Mr Miller also has a significant and long-standing anxiety disorder, with associated panic attacks, feelings of confusion and depression, all of which apparently have dominated his life for many years. It is a condition that was recognized and well documented from the time of his arrival at the Pittsburgh Institution, and at various times thereafter, both before and after his slip and fall accidents. Such problems also are destined to remain with him for the rest of his life, necessitating considerable ongoing medication for Mr Miller to continue with his activities of daily living.

• Part of his very troubled childhood experience included a motor vehicle accident, when he was “little” and driving with his father, that resulted in two broken ankles. Although Mr Miller denied that this resulted in any “constant” problems or balance concerns, there are a number of “inmate request” forms, submitted on his behalf in April and May of 2005, complaining of “big pain” in his “right leg and feet”, (making it hard for him to walk), and asking to see a doctor urgently because of “bad ankle problems”.[42]

• Mr Miller also sustained a serious injury to his right hand in or around 2001, involving multiple metacarpal fractures, which required the surgical insertion of stabilizing pins. This left him with residual pain, nerve damage, permanent loss of feeling, and ongoing loss of proper function that causes him to drop objects from time to time.

• Because of his aforesaid challenges and conditions, Mr Miller effectively has been incapable, throughout his adult life, of seeking or retaining steady employment. He has never applied for a job, and candidly acknowledged that he has no idea whatsoever of how he would go about doing that. From time to time, family members and friends have asked him to assist with manual jobs such as painting and paving, which he was able to do when physically fit, but his last such job was “a long, long time ago”, and many years before he entered the Pittsburgh Institution.[43] Well before his arrival there, he qualified for sustained benefits from the Ontario Disability Support Program, which he not only continues to receive but believes he will receive “permanently”.

• Over the course of his life, Mr Miller also has struggled with ongoing addictions, (the onset and treatment of which apparently have been complicated by his dependency on medications designed to address his other anxiety and pain problems). Those addictions have included dependency on oxycontin and the intermittent use of cocaine. For the past 4-8 years, he has struggled to control and escape his drug addictions through the use of methadone and similar medically supported measures. However, he candidly admits that he unfortunately has continued his use of cocaine, (once during his time at the Pittsburgh Institution and numerous times thereafter), and his dependency on prescription drugs to control his other pre-existing conditions obviously continues.

• Mr Miller’s addictions have in turn led to repeated criminal behavior, (and numerous break and enter offences in particular), as he has struggled to “feed his habit”. A formal record was not produced at trial, but Mr Miller readily acknowledged that he had been to jail “quite a few times”, and his wife could remember his having been incarcerated “at least four or five times”. His imprisonment at the Pittsburgh Institution was, however, the first time he had been committed to a federal prison. Moreover, since his release from that facility in early 2007, he commendably has had no further involvement with the criminal justice system, apart from a minor curfew violation.

• Mr Miller acknowledged that he also has a history of unexplained hematuria, which is referenced intermittently in the health records prepared over the course of his incarceration from 2005 to 2007. The cause of this apparently has yet to be explained.

• I also note an “inmate request” dated July 5, 2005, saying “back shoulders and hands knees are real sore” (sic). However, because of Mr Miller’s illiteracy, that document almost certainly was prepared for him by another inmate who may or may not have recorded Mr Miller’s complaints correctly, and a progress note shortly thereafter, on July 11, 2005, indicates that Mr Miller actually was seeing health services in relation to a sore right knee, a right shoulder with range of motion diminished to 85%, and unspecified concerns regarding his right hand, (coupled with indications that he was finding Motrin ineffective and asking for “something stronger”). Although I find merit in plaintiff counsel’s suggestion that these complaints were somewhat isolated, there are indications of Mr Miller being prescribed muscle relaxants (such as Motrin) at numerous times during his incarceration prior to the second slip and fall accident, (albeit with some references to the purpose being control of pain in Mr Miller’s right hand). There is also the progress note indication on January 23, 2006, that Mr Miller was being seen for “L side low back pain ongoing since Oct/Nov”, (although in my view, for the reasons noted above, this seems to be a further example of Mr Miller being an extremely poor reporter when voicing his complaints and frustrations, and at most a reference to relatively modest back pain not requiring medical treatment prior to his second slip and fall accident).

• Mr Miller also unfortunately was involved in another motor vehicle accident in 2008, at which time he was struck by a passing pick–up truck, travelling at a low rate of speed, and “clipped” on the buttock while walking. He was taken by ambulance to hospital, where he was examined. In his testimony, Mr Miller claimed that, apart from a “deep burning” sensation in his buttock that passed after a “couple weeks”, (without requiring any further treatment he could recall), there were no significant or lingering consequences from that further accident. However, this does not accord with a pain management referral form completed and faxed by Dr Malik in June of 2011, which mentions not only Mr Miller’s earlier “nerve root injury” associated with his wasting left triceps, but also right shoulder pain, right hip pain, left buttock pain and pain in Mr Miller’s left toes, which Dr Malik’s note attributes to the “MVA” in which Mr Miller was involved as a pedestrian. (I note that, according to the report of Dr Nicolle prepared on April 17, 2009, a similar description of such complaints, and their attribution to the motor vehicle accident, apparently was provided by Mr Miller to Dr Nicolle earlier that day). In her testimony, Dr Malik confirmed that, as far as she knew, these were “new and different injuries” to those sustained by Mr Miller in the second slip and fall accident, and were treated by physiotherapy.

[140] For all these reasons, I find that Mr Miller was and would have been plagued by numerous health problems, challenges and limitations, regardless of his second slip and fall at the Pittsburgh Institution.

[141] In other words, it certainly cannot be said that all of Mr Miller’s intervening and ongoing difficulties since that second slip and fall would not have occurred “but for” that accident, and a good deal of his ongoing problems therefore cannot properly be laid at that figurative and literal doorstep.

[142] Moreover, as the defendant notes, Mr Miller is still mobile, his left shoulder and arm are not “frozen”, and he still retains a considerable degree of functional capacity, insofar as he generally can still look after his own personal needs and hygiene, (although he occasionally requires assistance from Ms Stafford in tying his shoes or tightening his belt). He can also still participate in various light household activities and domestic chores.

ADDITIONAL DAMAGES - CAUSATION

[143] Having said that, I find that Mr Miller has and will continue to experience significant injuries, pain and corresponding changes to his life, resulting in loss of enjoyment, that would not have occurred “but for” the accident.

[144] In that regard, I start with a general observation that, in my view, much of the plaintiff’s evidence concerning such losses was not contradicted by the defendant.

[145] For example, Mr Healey, (the prison nurse called as a witness by the defendant), candidly acknowledged that he was unaware of having played any role in Mr Miller’s treatment, or the investigation of Mr Miller’s physical complaints. Mr Healey’s testimony therefore was directed instead towards general explanation of health services provided at the Pittsburgh Institution, (e.g., in terms of facilities, personnel, triage practices, treatment procedures and record keeping), and highlighting details of prison medical documentation prepared by others in relation to Mr Miller.

[146] The defendant instead challenged the plaintiff’s claim for damages by highlighting, through cross-examination and reference to Mr Miller’s medical records, various considerations such as evidence of pre-existing and supervening conditions, ailments and accidents suggesting that the damages being attributed to the second slip and fall accident were excessive and/or exaggerated.

[147] In the result, significant points of Dr Malik’s testimony, (emphasizing various aspects of Mr Miller’s examination and treatment, reflected in the medical documentation), were not really disputed. They include the following:

• An ultrasound examination of Mr Miller’s left shoulder in October of 2006 showed irregularities suggesting a tearing of muscle attached to the humerus, and a possible brachial plexus injury.

• When Mr Miller saw Dr Malik shortly after his release from prison, in February of 2007, he was still complaining of significant pain in his left shoulder and triceps, with weakness extending into his left arm, all of which he attributed to having fallen backwards while in jail, onto his outstretched left arm. It was obvious to Dr Malik that Mr Miller’s left arm muscles were already quite wasted in comparison with his right arm, and that his retained range of motion was accompanied by increasing pain. Dr Malik immediately suspected that Mr Miller might have sustained a brachial plexus tear, and made arrangements for further investigation and consultation, by way of an MRI and EMG.

• A referral of Mr Miller to the Neuromuscular Clinic of the London Health Sciences Centre, in late February of 2007, then provided further objective confirmation of Mr Miller’s injuries. In particular, Dr Nicolle, (Mr Miller’s treating neurologist), reported that EMG and nerve conduction studies had detected chronic reinnervation changes in Mr Miller’s C7 nerve distribution, including the latissimus dorsi, triceps and flexor carpi radialis. This in turn indicated that Mr Miller had sustained a nerve root injury. Dr Malik felt that this was consistent with Mr Miller’s complaints of pain, soreness and uncontrolled jumping/twitching in his neck, shoulder and tricep muscles, (owing to random contractions). It was also consistent with the wasting of his triceps.

• Dr Malik also referred Mr Miller to Dr Faber, (an orthopedic surgeon and shoulder specialist), at the Hand and Upper Limb Clinic of St Joseph’s Hospital. At the time of Dr Faber’s first examination of Mr Miller in late March of 2007, Mr Miller was still experiencing persistent neck and shoulder pain; (i.e., pain in his cervical spine at the extremes of motion, and pain radiating into his left trapezius, upper left shoulder, and upper left arm). His obvious muscle wasting had not improved. However, Dr Faber delayed his diagnosis and recommendations pending receipt of a contemplated MRI and a further examination.

• The MRI investigation was delayed for a time by Mr Miller’s anxiety, but eventually was completed in August of 2007. The scan of Mr Miller’s shoulder confirmed the existence of a “full thickness tear” of the anterior most fibers of Mr Miller’s supraspinatus tendon. This in turn reinforced Dr Malik’s working diagnosis that Mr Miller had sustained a significant injury to the brachial plexus network of nerves serving his left shoulder, arm, hand and part of his chest.

• Mr Miller eventually was able to see Dr Faber again in January of 2008, by which time Mr Miller had marked left triceps weakness and atrophy. He also was experiencing shooting pain from his left latissimus dorsi to his left shoulder and down to his elbow, along with latissimus dorsi and dorsal forearm cramping. His general pain levels generally had remained constant since the time of the accident. Beyond offering an intraarticular Xylocaine and Silicone injection into Mr Miller’s shoulder joint, (which Mr Miller declined), Dr Faber observed that the MRI of Mr Miller’s cervical spine also had confirmed bulging of Mr Miller’s spinal discs in the C3-C5 region, and suggested that Mr Miller be referred to a spinal surgeon. A further note from Dr Faber confirmed that further possible treatment of Mr Miller lay outside Dr Faber’s area of expertise.

• As suggested, Dr Malik referred Mr Miller to Dr Steven, (a neurosurgeon at the London Health Sciences Centre). However, after reviewing all of Mr Miller’s test results, (including the MRI scans of Mr Miller’s shoulder and cervical spine and shoulder), Dr Steven indicated that surgical intervention would not be helpful, and suggested that Mr Miller be referred to a neurologist. As noted above, this already had been done.

• In the result, Dr Malik concluded that Mr Miller had been left with injuries, (and a C-7 nerve injury in particular), for which all avenues of remedial physician treatment had been exhausted, and in respect of which physiotherapy would not help. Mr Miller also had been left with ongoing symptoms, including pain, weakness, and an inability to use his left arm properly. However, as Dr Malik put it: “There was not a whole lot more [she] could do for him”. She eventually referred Mr Miller to a Pain Management Program at St Joseph’s Hospital, only to have it confirmed that there were “no injection therapies to offer this patient”.

• In the result, Dr Malik says that Mr Miller’s injuries left him with considerable ongoing pain, twitching and throbbing, as well as loss of muscle and function that was unlikely to return. In particular, Mr Miller was left with considerable instability and lack of control in relation to his left arm flexion and extension, (making it difficult to carry objects), as well as loss of fine motor control in his left hand. Of course, the implications of such difficulties are compounded, in the case of Mr Miller, by the problems he already had with his right hand.

[148] My further considerations, in relation to the injuries, pain and corresponding changes to Mr Miller’s life as a result of his second slip and fall accident, include the following:

• I accept the plaintiff’s evidence and submissions that, despite the numerous challenges associated with Mr Miller’s anxiety, depression, learning difficulties and illiteracy, and the acknowledged ongoing problems with his right hand, he was in relatively good physical condition at the time of his admission to the Pittsburgh Institution. In that regard, Dr Malik testified that she had not treated Mr Miller for any physical ailments prior to that time, (despite several years of regular office visits that were instead focused on his ongoing anxiety and associated prescription medication), and a review of the intake assessment documentation completed by Correctional Service Canada staff suggests no significant problems or concerns apart from Mr Miller’s anxiety disorder, panic attacks, and functional illiteracy. Moreover, there was considerable unchallenged evidence that Mr Miller was extraordinarily committed to fitness work-outs and weight-lifting in various gyms prior to the second slip and fall accident. He pursued such activities intensely and successfully, for a number of hours at least every second day if not more, as a means of building his self-esteem and off-setting the feelings of depression and inadequacy caused by his anxiety disorder.[44] It was also confirmed that, following his arrival at the prison, Mr Miller had a physically demanding job in the prison kitchen area, involving repeated bending, pulling, reaching and stretching, as well as heavy lifting at times. However, there seemed to be no evidence that he ever had problems coping with that job, or that he ever required any time off work, until his second slip and fall on or about January 22, 2006.

• I also accept the unchallenged evidence of Mr Miller and Ms Stafford that, before entering Pittsburgh Institution, Mr Miller’s physical condition and controlled depression were such that, when he was not incarcerated, he regularly engaged in pursuits such as walking and cycling with Ms Stafford, an approximately equal division of household responsibilities, (apart from financial management, the making of medical appointments and other organizational tasks that were left to Ms Stafford because of Mr Miller’s disabilities), and very regular fishing excursions.[45]

• I further accept the evidence of Mr Miller and Ms Stafford that the level of his anxiety, depression and mental outlook generally had remained constant, despite Mr Miller’s periods of incarceration, prior to his time in the Pittsburgh Institution. During that earlier period, he also suffered from no sleep disorders, and regularly occupied the same bedroom as Ms Stafford.

• I find that Mr Miller’s life has indeed changed in numerous ways since the time of his accident, and his release from the Pittsburgh Institution. For example:

o Well before the 2008 motor vehicle accident, Mr Miller experienced and continues to experience considerably more pain, (in his neck, and with shooting and radiating pain extending through his left shoulder, left arm and lower middle back), exceeding that which may have been associated with his earlier isolated and/or modest complaints of general soreness in his back, shoulders and hands prior to the second slip and fall. Although this new significantly enhanced pain “comes and goes with activity”, such pain now seems to be experienced on a regular if not ongoing basis, (with his left shoulder always hurting since the time of the accident), and without any signs of change or improvement. This enhanced pain has, in turn, augmented his depression.

o That regular and significantly expanded pain, together with Mr Miller’s augmented depression, resulted in regular restlessness and inability to sleep in any kind of sustained and restorative way, which in turn brought an end to sharing a bedroom with Ms Stafford – despite his considerable dependence on her proximity. His discomfort and physical restrictions also have prevented any further fishing excursions.[46]

o The significantly enhanced and continuing pain, soreness and depression also resulted in the cessation of regular cycling and walks with Ms Stafford, as well as any ability to go on sustained car rides further than the distance between London and Woodstock. It also completely ended Mr Miller’s gym and weight-lifting activities, which in turn has diminished his physical appearance and drastically eroded his sense of self-esteem[47].

o As noted above, the earlier problems with Mr Miller’s right hand have been compounded by further functional limitations resulting from his injuries experienced after the second slip and fall. In particular, in addition to diminished strength, Mr Miller also now has intermittent “shooting” pains through his left shoulder and arm that causes them to “jump” unexpectedly from time to time, and an inability to sustain bending of his left arm in a controlled or constant way. All of this causes him to repeatedly drop even small items, (such as full plates of food or hot cups of coffee). This too has compounded his loss of self-esteem, particularly insofar as it has reduced his ability to assist Ms Stafford with domestic tasks.

[149] I have little difficulty finding that these additional problems and complaints were caused by the second slip and fall accident.

[150] As noted above, causation determination is not a matter requiring detailed scientific evidence, but an exercise in the application of “robust common sense”.

[151] In my view, common sense indicates an obvious link between Mr Miller’s sudden and severe onset of previously unexperienced physical complaints, restrictions and complications in the immediate wake of his second slip and fall, and that second slip and fall accident.

[152] This seems particularly clear when the source of his difficulties has since been objectively identified as including torn and damaged nerves, (confirmed by the MRI scans), for which no credible or sensible explanation other than the second slip and fall has been suggested, (let alone established by any evidence).

[153] Moreover, while no scientific evidence is required to establish causation, I was also impressed by Dr Malik’s unchallenged testimony that such injuries to the brachial plexus are commonly associated with trauma, and that the infliction of such trauma is entirely consistent with the mechanics of the second slip and fall described by Mr Miller; i.e., with his falling backwards suddenly, and extending his arm behind him in an effort to break his fall. As Dr Malik put it, what Mr Miller says about the mechanics of that accident “fits with his injuries”.

[154] Without limiting the generality of the foregoing, although the motor vehicle accident in 2008 may have left Mr Miller with additional problems, in my view they pale in comparison with the pain, limitations and detrimental impacts of the second slip and fall accident, (based not only on the testimony of Mr Miller, Ms Stafford and Dr Rubina, which I accept, but also on the relative attention paid to the consequences of both accidents, as reflected in the medical documentation).

[155] In my view, Mr Miller’s constant and debilitating pain, his significant impairment of function, and the corresponding seriously detrimental impacts on his life were all manifest before the 2008 motor vehicle accident, and would have continued to exist regardless of that later accident.[48]

MITIGATION

[156] The defendant argued that Mr Miller has failed to mitigate his damages and loss in that regard, noting in particular that he has declined more substantial pain medication offered by Dr Malik, as well as suggested pain injections and attendance at a pain management clinic, and has not sought any further treatment of his injuries from Dr Malik or others since 2012.

[157] This was supplemented by defence cross-examination emphasizing that Mr Miller had not attempted to move on with his life by pursuing adult education programs or seeking some form of employment in the years since his accident and release from prison.

[158] However, I am mindful that the onus of proof in relation to an alleged failure to mitigate lies with the defendant, and that the defendant must establish on a balance of probabilities that Mr Miller has not acted reasonably.

[159] In particular, merely suggesting some other course that Mr Miller might have followed is not good enough, and criticism of a plaintiff’s conduct generally must be viewed with caution if a defendant caused the damages in the first place. Moreover, plaintiffs are not held to a high standard of conduct in mitigation, and the law generally is satisfied if a plaintiff takes steps that a reasonable person would take in the circumstances to reduce a loss.

[160] In my view, the defendant has not satisfied its burden of proving any meaningful failure to mitigate on the part of Mr Miller, in the sense required. Without limiting the generality of that observation:

• I accept Dr Malik’s evidence that Mr Miller’s injuries essentially are permanent, and that there is little or nothing that can be accomplished by further medical treatment of those injuries, or by physical therapy. All reasonable avenues in that regard were explored and exhausted. Despite defence suggestions to the contrary, I accept the evidence of Mr Miller and Ms Stafford that he nevertheless has continued to seek treatment and medication for his anxiety and depression since the accident.

• I accept Mr Miller’s explanation as to why he declined stronger pain medications, (owing to legitimate concerns about his addictive behaviour).

• I similarly accept Mr Miller’s reasons for not wanting to embark on injections for temporary relief from pain, (given concerns that inability to feel certain pain might lead to overuse of his affected muscles and exacerbate his objectively confirmed physical injuries).

• There was little or no evidence to support the defendant’s suggestion that Mr Miller’s attendance at a pain management clinic would lead to any appreciable benefits or changes in his day to day living.

• I think Mr Miller can hardly be faulted for failure to pursue adult education or work opportunities after his slip and fall, given that he was demonstrably incapable of doing so even before the accident.

[161] I therefore reject the suggestion that Mr Miller’s damages should be reduced, owing to any failure on his part to mitigate his loss.

DAMAGE ASSESSMENT

[162] As noted above, the plaintiff claims only general non-pecuniary damages.

[163] Although our courts make every effort to assess such damages in a consistent way, having regard to comparable cases, the reality is that no two cases are exactly the same, and in that respect the assessment of such damages is more of an art than a science.

[164] In this case, plaintiff counsel relied principally on the range of damages contemplated and assessed in Latta v. Ontario, supra, a 2004 decision of Justice Kennedy, upheld by our Court of Appeal. That case dealt with a “trip and fall” experienced by an inmate in a provincial institution. The plaintiff suffered injuries to his lower back, including disk rupture requiring surgery. Before the accident, he had been physically fit and demonstrated significant athletic prowess, in a variety of individual, team and adventure sports. However, his injuries left him with constant pain and continued suffering. These not only put an end to his previous athletic and outdoor activities, but also restricted even his ability to walk for very short distances, despite use of a cane. Non-pecuniary general damages were assessed at $120,000.

[165] Plaintiff counsel suggested that Mr Miller should receive a similar award of general damages in this case.

[166] Defence counsel submitted that such an award of damages would be far too high, bearing in mind Mr Miller’s other pre-existing and independent challenges, conditions and ailments.

[167] In support of its submissions on damages, the defendant relied on Fisico v. Boudakian, [2003] O.J. No. 555 (S.C.J.), a medical malpractice case which was dismissed after findings that the plaintiff was not credible and clearly malingering, and that the defendant health care practitioners had met the applicable standard of care in the peri-operative period. The court nevertheless made a provisional assessment of the plaintiff’s general non-pecuniary damages, for an injury that was described as “mild and temporary with recovery in six months”, and where even the permanent partial disability alleged by the plaintiff would still have enabled the plaintiff “to carry on normal activities and do things which would not entail lifting his right arm above his shoulder and heavy lifting”. General damages were assessed at $20,000.

[168] The defendant also placed considerable reliance on Battrum v. British Columbia, [2009] B.C.J. No. 1074 (S.C.), in which the plaintiff was said to have been injured by a paramedic moving the plaintiff’s arm in an unnecessarily rough and unprofessional manner that caused a brachial plexus nerve injury; a torn rotator cuff that resisted a number of surgical attempts at repair, leaving the plaintiff dental surgeon with a permanent partial disability. No liability was found in that case either, (as the paramedic had met the applicable standard of professional care required), such that the action similarly was dismissed. However, the court considered and assessed general damages in any event. In the course of doing so, reference was made to a review of unspecified authorities, suggesting a range of damages, for shoulder and nerve injuries to the arm, of $20,000 to $80,000. Finding that the plaintiff in the Battrum case had sustained a brachial plexus injury leaving only minor ongoing problems, (with no evidence of any prevention or impairment of any recreational pursuits or activities of daily living apart from the plaintiff no longer playing piano for enjoyment), general damages were fixed at $35,000.

[169] In the result, defence counsel suggested that Mr Miller’s non-pecuniary damages should be assessed somewhere in the range of $25,000 to $35,000, with a particular suggestion that they be fixed at $30,000.

[170] In my opinion, the defendant’s suggested damage assessment is far too low.

[171] There is nothing “mild and temporary” about Mr Miller’s injuries, and their impact on his life. Nor is this a case where the plaintiff has failed to lead evidence of any significant prevention or impairment of recreational pursuits or activities of daily living.

[172] To the contrary, I was presented with considerable evidence, which I accept, that Mr Miller has sustained serious, objectively-confirmed and permanent injuries.

[173] Those injuries have left him in pain that has been excruciating at times, which still remains constant, and which is also elevated by activity.

[174] They are injuries which have completely undermined and prevented his ability to carry on with any of the recreational activities that brought him joy.

[175] They are injuries which have substantially impaired his spousal relationship, as well as his daily activities such as contribution to domestic tasks.

[176] For the reasons noted above, there is no question that Mr Miller’s life and condition before the accident were far from idyllic. He already was facing challenges that would shatter the lives of many.

[177] Moreover, many without such challenges may well have had a greater capacity to cope with the sort of further injuries sustained in the accident; for example, by moving on to numerous other pursuits that might have brought happiness in other ways.

[178] However, it is trite law that a defendant must take his, her or its victim as found.

[179] In this case, the reality is that, before the second slip and fall accident, Mr Miller had found ways in which to cope reasonably well with his situation and enjoy his life, thereby achieving a measure of self-esteem and happiness.

[180] His prospects and pursuits may have been limited and focused, compared to the lives of many, but they were extremely important to him and essential to his well-being.

[181] A person who has very little in life, and has even that taken away, no doubt feels the loss keenly – especially when he or she lacks the ability to engage in other activities that might bring happiness.

[182] In my view, having regard to all the particular circumstances of this case, a reasonable assessment of the plaintiff’s non-pecuniary general damages caused by the second slip and fall accident, prior to any apportionment necessitated by contributory negligence, is $100,000.

Conclusions

[183] For the reasons outlined above:

a. I find that liability for the plaintiff’s second slip and fall accident, on or about January 22, 2006, should be apportioned on the following basis: 70% to the defendant and 30% to the plaintiff;

b. I assess the plaintiff’s general non-pecuniary damages, caused by that accident, at $100,000; and

c. Apportioning damages pursuant to the aforesaid liability and contributory negligence determinations, judgment should issue in favour of the plaintiff, in the amount of $70,000, with interest to be recovered by the plaintiff on that amount pursuant to the provisions of the Courts of Justice Act, supra.

Costs

[184] Because my decision was reserved, the parties were unable to make any submissions regarding costs. If the parties are unable to reach an agreement in that regard:

a. The plaintiff may serve and file written cost submissions, not to exceed five pages in length, (not including any bill of costs), within two weeks of the release of this decision;

b. The defendant then may serve and file responding written cost submissions, also not to exceed five pages in length, within two weeks of service of the plaintiff’s written cost submissions; and

c. The plaintiff then may serve and file, within one week of receiving any responding cost submissions from the defendant, reply cost submissions not exceeding two pages in length.

[185] If no written cost submissions are received within two weeks of the release of this decision, there shall be no costs of the action.

Justice I. F. Leach

Released: January 29, 2015

CITATION: Miller v. Her Majesty the Queen in Right of Canada, 2015 ONSC 669

COURT FILE NO.: 56039

DATE: 2015/01/29

Ontario

Superior court of justice

B E T W E E N:

STEPHEN EDWARD MILLER

Plaintiff

– and –

HER MAJESTY THE QUEEN, IN RIGHT OF CANADA, By its representative the Attorney General of Canada

Defendant

Reasons for Judgment

LEACH J.

Date: January 29, 2015

[1] Malcolm v. Waldick, 1991 71 (SCC), [1991] 2 S.C.R. 456, at paragraph 19.

[2] Ibid., at paragraphs 32-33, and 45.

[3] Canada v. Ranger, [2011] O.J. No. 2352 (S.C.J.), at paragraph 32.

[4] Alchimowicz v. Schram, 1999 2655 (ON CA), [1999] O.J. No. 115 (C.A.); Britt v. Zagjo Holdings Ltd., [1996] O.J. No. 1014 (Gen.Div.); Gardiner v. Thunder Bay Regional Hospital, [1999] O.J. No. 833 (Gen.Div.), affirmed [2000] O.J. No. 141 (C.A.). Courts recognize, in particular, that the presence of snow and ice on Canadian walkways is a common occurrence during winter months, and that occupiers accordingly are not insurers required at all times to keep their premises absolutely free of snow and ice. Rather, the standard of care required of occupiers is the taking of reasonable steps to keep premises safe in the circumstances. See, for example: Swift v. MacDougall, 1974 211 (SCC), [1976] 1 S.C.R. 240; Bogoroch v. Toronto (City), [1991] O.J. No. 1032 (Gen.Div.); Perrett v. Port Moody, [1998] B.C.J. No. 622 (S.C.); and Canada v. Ranger, supra.

[5] See, for example: Britt v. Zagjo Holdings Ltd., supra; Gardiner v. Thunder Bay Regional Hospital, supra; Sheikhani v. Ontario (Niagara Parks Commission), [1998] O.J. No. 880 (Gen.Div.), affirmed [1999] O.J. No. 3879 (C.A.); and Atkins v. Jim Pattison Industries Ltd. (1998), 1998 6503 (BC CA), 61 B.C.L.R. (3d) 183 (C.A.), at paragraphs 6-7; and Quibell v. 1096555 Ontario Inc., [2003] O.J. No. 4673 (S.C.J.).

[6] Malcolm v. Waldick, supra, at paragraphs 35-37.

[7] Ibid., at paragraph 45. For the sake of completeness, I note the plaintiff’s reliance on Kennedy v. Waterloo (1999), 1999 3746 (ON CA), 45 O.R. (3d) 1 (C.A.), leave to appeal to the Supreme Court of Canada dismissed without reasons, [1999] S.C.C.A. no. 399, which noted that a government authority “occupier” may not make a “policy” decision which either obliges or allows it to avoid compliance with the statutory obligations and civil liability imposed by s.3(1) of the OLA. In my view, however, the defendant in this case advanced no argument or suggestion to the contrary, (despite inclusion of the case in the defendant’s book of authorities). In particular, there was no suggestion or argument that the conduct of the defendant and its agents in this case constituted or reflected “policy” decisions that in any way shielded the defendant from possible liability.

[8] Ibid., at paragraphs 42, and 45-48. Although the defendant made specific reference in its factum to s.4(1) of the OLA, in my view nothing in the evidence comes anywhere close to suggesting or proving that Mr Miller knowingly “bargained away his right to sue” in relation to his alleged slip and fall accident, in the sense required. Moreover, while ss.4(2) and 4(3) of the OLA also contain “deeming provisions” that bring certain situations within the operation of s.4(1), thereby displacing the general statutory duty of care in s.3(1) with much more limited duties, in my view, those provisions are not applicable to the case before me. In particular, it was not suggested or argued that the plaintiff Mr Miller was on the premises “with the intention of committing, or in the commission of” any specified criminal act, (as opposed to the possible breach of a rule of the institution), so as to bring the situation within s.4(2). Nor does any of the evidence suggest that the Pittsburgh Institution falls within the narrowed definition of “premises” in s.4(4), which in turn limits the possible application of s.4(3) dealing with “Trespass and permitted recreational activity”.

[9] More recent reiteration and application of the same principles can be found in cases such Abbott v. Canada (1993), 64 F.T.R. 81 (T.D.); Oswald v. R. (1997), 1997 16271 (FC), 126 F.T.R. 281 (T.D.); Hodgin v. Canada, [1998] N.B.J. No. 247 (Q.B.), affirmed 1999 1244 (NB CA), [1999] N.B.J. No. 416 (C.A.); Russell v. Canada, 2000 BCSC 650, [2000] B.C.J. No. 848 (S.C.); and Bastarache v. The Queen, 2003 FC 1463, [2003] F.C.J. No. 1858 (T.D.); and Carr v. Canada, [2009] F.C.J. No. 769 (T.D.).

[10] See, for example: Bogoroch v. Toronto (City), supra; Belanger v. Township of Michipicoten, [1996] O.J. No. 275 (Gen.Div.); and Sheikhani v. Ontario (Niagara Parks Commission), supra.

[11] These included rapid and clearly nervous speech patterns and mannerisms, such as pained facial expressions, constant changes of position in the witness box, and agitated fumbling with exhibits and his water glass. Moreover, in response to very gentle introductory questions from his own counsel about background matters, Mr Miller also experienced a complete breakdown involving uncontrollable crying and shaking, all of which necessitated an extended break in his testimony and the interposing of other witnesses. Mr Miller was unable to continue with his testimony until the following day. Even then, he was able to continue only after his wife, (following the completion of her testimony in his absence), was given permission to sit behind him but in close proximity to the witness box.

[12] Mr Miller mentioned both alternatives in his initial answer to a question about his footwear at the time of the first fall, and then added “To be honest, I don’t know”.

[13] Mr Miller initially referred only to falling on his “butt”, but then quickly added references to his “knee” and “left knee” without any prompting.

[14] I note that the Inmate Handbook, (on p.7, under the heading “Small Group Meal Preparation Program”), expressly encourages inmates to “pool resources and co-operate in daily food-related activities”, but only as between the inmates “in each house”.

[15] Mr Miller testified, and a diagram of the facility confirms, that unit 19 and unit 23 are located on opposite sides of the same road, but are not directly across from each other. In particular, looking directly across the road from unit 19, unit 23 would be “on a bit of an angle”, (as indicated by Mr Miller), and the first unit to the left.

[16] This was consistent with the independent evidence of Ms Stafford, who testified that Mr Miller advised her by telephone of only one slip and fall accident. She says he did so shortly after the accident in question, (within days of it happening), at which time he advised that he was in a lot of pain that was getting worse, that prison staff were not giving him the medication he needed, and that he had needed to put a towel around his neck. She did not recall him mentioning anything about an injury to his knee. At the time, Mr Miller described the relevant accident to Ms Stafford by saying he had slipped when going down stairs, and fallen backwards onto the stairs. All of this makes it clear to me that he was talking to her about his second slip and fall accident, and not his first.

[17] Some of those other accounts are set out below, after my reasons explaining my conclusions regarding the timing of Mr Miller’s accidents.

[18] To cite an obvious example of that phenomenon, Mr Miller was seen by orthopedic surgeon Dr Faber on March 21, 2007, and apparently told Dr Faber that he had slipped on ice and fallen on stairs “on December 1, 2005”. Dr Faber accordingly recorded and reiterated that date of accident description in his report to Dr Malik. However, that date could not possibly have been correct, as Mr Miller was quite certain he was living in unit 19 at the time of his second slip and fall, (when he crossed the road to neighboring unit 23 to borrow coffee), and the “History of Bed Assignments” for Mr Miller, filed as an exhibit by the defendant, confirmed that Mr Miller was not assigned to unit 19 until December 16, 2005. Similarly, when Mr Miller attended at the LHSC neurology clinic on April 17, 2009, he apparently told Dr Nicolle that he sustained the nerve injury, leading to wasting of his left triceps, while he was incarcerated “in 2007”. While Dr Nicolle reiterated that date in his report to Dr Malik, it was acknowledged by all concerned, (and confirmed by Dr Malik in particular), that Mr Miller’s date indication in that case was off by at least a year.

[19] For example, the exhibits filed by the plaintiff included hourly data reports from Environment Canada for December 1-10, 2005, and January 6, 2006, in support of arguments that the weather on those dates supported Mr Miller’s description of prevailing conditions at the time of his slip and falls, as well as the need for safety measures by the defendant at the relevant times. However, the data obviously has much less relevance if the two slip and fall accidents actually occurred on other dates.

[20] When the contents of this portion of the document were read out to Mr Miller, he repeatedly indicated that he did not “have a clue” who wrote that, and that he honestly had no recollection of anyone reading the first two completed portions of the form out to him before trial. (He said that “probably” was done, but he was “not sure”.) However, it seemed clear to him that the notations in the first two portions of the form were describing “the first fall”.

[21] In December of 2005, Mr Miller had others assist him with the preparation of two Inmate Requests: one dated December 15, 2006, indicating that he would like to get started on a “non-smoking patch” as soon as possible, and one dated December 20, 2005, indicating that he was “feeling depressed” and needed to see a “doctor for meds”.

[22] When the contents of this fourth portion of the form were shown and read out to Mr Miller, he indicated that he could not recall whom he had spoken to about it, or who wrote the information, but that the description of his fall was “what happened” to him when he “got hurt” in the second accident.

[23] As noted above, the progress note completed by the attending nurse on January 23, 2006, makes reference to “L side low back pain ongoing since Oct/Nov”. [Emphasis added.] However, in the available medical records, there apparently are no references to any such low back pain from October of 2005 to this first mention of such difficulty in late January of 2006. Whether this is simply another instance of Mr Miller being a very poor historian when providing dates to attending health care professionals, or whether he was experiencing some level of left side low back pain for many months before his slip and fall accidents, is impossible to say with certainty. I am inclined to think it was the former. In any case, if Mr Miller was experiencing any such low back pain prior to late January of 2006, it obviously was not serious enough for him to seek medical treatment until after his slip and fall on the stairs, which in turn strongly suggests that any such complaints were significantly aggravated by that accident.

[24] This has implications for the relevance of certain other documentation, insofar as the circumstances of Mr Miller’s second slip and fall accident are concerned. For example, although the defendant relied in that regard upon a memorandum dated January 18, 2006, entitled “Inmate Accident Recommendations”, in my view the date of the document means that it necessarily refers to Mr Miller’s first and earlier slip and fall.

[25] In her testimony, Dr Malik added that Mr Miller had told her at the time that the fall in question had taken place on steps, and because of ice on those steps. Dr Malik acknowledged that there was no mention of that in the note she wrote that day, but she had a clear independent memory of Mr Miller providing her with that additional information.

[26] As noted below, in addition to having formally diagnosed learning disabilities, including dyslexia, Mr Miller was born and raised in Ontario but has never attended school of any kind. Unchallenged testimony from Mr Miller and his wife confirmed that, throughout his life, he has digested written information only by very limited memorization of certain signs and symbols, (such as numbers), and by having others read text aloud to him, (e.g., to pass the written test required to obtain his driver’s licence). Similarly, any written communications on his behalf, (such as the Inmate Request forms tendered in evidence), were prepared by others to whom he was speaking. Mr Miller’s tragic inability to comprehend and recognize anything more than a few memorized numbers, and his signature, was painfully evident throughout the course of his examination-in-chief and cross-examination. In particular, I watched repeatedly, from my vantage point a few feet away from the witness box, (which allowed me to perceive what may not have been visible to counsel), as Mr Miller repeatedly held or positioned documentary exhibits upside down, and struggled to find references in the exhibit books following the directions of counsel. Mr Miller seemed oblivious to the fact that I was watching his various struggles in that regard, and if it was all a performance to feign complete illiteracy, it was a sustained and flawless one worthy of an Oscar.

[27] During the course of the trial, reference was made to a “Teledon” system, whereby prison authorities apparently were able to convey written messages to inmates through the televisions located in each residential unit; i.e., by posting such “announcements” to a particular channel. However, it seemed to me that this had little to no relevance to determination of the issues before me, as there was no evidence of the defendant having actually used that system to convey any particular messages concerning house visitation, or exterior maintenance duties. (See below.) Moreover, a written message on a television screen would be just as unintelligible to Mr Miller as anything written in the Inmate Handbook. Mr Miller confirmed that he had no knowledge whatsoever of the Teledon system, or any experience of inmates mentioning or reading aloud any such televised messages.

[28] During the course of his testimony, Mr White suggested that the rule could have been read out or otherwise conveyed to Mr Miller by other inmates, including members of the Inmate Committee. However, there was no evidence whatsoever to suggest that actually was done. Moreover, if the rule was an important consideration for the Crown in determining what measures might reasonably appropriate for maintaining a safe environment for inmates, (as defence counsel suggested), it seems inappropriate for the Crown to suggest it had no independent obligation to ensure that Mr Miller actually knew of the rule, (given his illiteracy and corresponding inability to read the Inmate Handbook), or that responsibility for carrying out that obligation essentially could be delegated to other inmates.

[29] See Smith, Cause of Action: Occupier’s Liability, (Thomson Reuters Canada Limited, 2011), at pp. 2-3.

[30] See footnote 8, supra.

[31] Once again, see Malcolm v Waldick, supra, at paragraph 45.

[32] Mr Miller himself noted that there was a secondary entrance available for use of corrections staff, who could also visit each unit from an interior “catwalk” linking adjoining houses. As for the timing of staff visits or inspections to each residential unit, Mr White thought that they may have taken place every two hours. However, his focus during his time at the Pittsburgh Institution was on maintenance. Mr Miller, whose life was immediately affected by such house inspections during his time at Pittsburgh Institution, felt sure that such visits took place every four hours. I prefer the evidence of Mr Miller in that regard. However, I also note that, in addition to these regular visits, the Inmate Handbook also makes reference to further inspections and rule enforcement that inherently would require access to each residential unit.

[33] To some extent, I think I am entitled to take judicial notice of the fact that regions of eastern Ontario, including the Kingston area, are regularly exposed to freeze-thaw temperatures, snow and ice during winter months. However, this was confirmed by the weather data filed for dates in December of 2005 and January of 2006, records confirming extended snow removal operations carried out at the Pittsburgh Institution during the winter of 2005-2006, and the testimony of Mr White outlining ongoing efforts made at the institution to address snow, ice, salt and sanding issues during winter. (See below.)

[34] The Inmate Handbook confirms, (under the heading “Employment” on p.24), that working as a “groundskeeper” to “maintain the grounds”, including “grass cutting, landscaping, snow removal and other general property maintenance”, in exchange for payment “in accordance with the National pay system”, was one of the formal “employment opportunities” available to inmates at the Pittsburgh Institution.

[35] For example, when shown photos of the exterior of unit 23, (where Mr Miller’s second slip and fall accident occurred), Mr White expressly confirmed that the inmates assigned to live in unit 23 would have had responsibility for addressing snow and ice conditions on the steps and interlocking brick area immediately outside the exterior door of that unit. Mr White said those inmates also would have had responsibility for addressing snow and ice conditions on the paved walkway leading from the interlocking brick area outside unit 23 up to the edge of the nearby road, but that particular responsibility would have been shared with the inmates residing in unit 24 as the same walkway led to both units.

[36] I note that, in terms of specifying the types of surfaces to which the document and the procedures therein were directed, there are at least six references to roads, and one reference to “parking areas”, but not a single express reference to walkways or steps.

[37] I note that there is an indication in the “Inmate Accident Recommendations” memo dated January 18, 2006, (mentioned above), that “all of the Houses are provided with Ice Melt and information pertaining to the use of Ice Melt is available on Teledon”. However, I was provided with no evidence as to the specific information which may or may not have been communicated via Teledon, and there was no confirmation that the information conveyed included any indication or confirmation of inmate duties under the system of maintenance alleged by the defendant.

[38] In saying that, I appreciate that asking prison inmates to assume unpaid responsibility for outdoor winter maintenance of entrance and approach areas immediately associated with their assigned “homes” is in keeping with the stated desire of the Pittsburgh Institution to mirror practices normally found in community neighborhoods. However, when it comes to matters of safety, it seems to me that more definite and reliable systems must be put in place to ensure fulfilment of the defendant’s duties as an occupier, and the supplemental duties the defendant owes towards inmates in its care.

[39] Although not mentioned in the Inmate Handbook, this accords with indications in the aforesaid IOP no. 254.3 document that the institution would “provide boot covers to all inmates from November to April each year”.

[40] This accords with indications in IOP no. 254.3 that “outside inmate workers” would be provided with “winter work boots”, which were to be “worn while working outside”.

[41] Plaintiff counsel specifically confirmed that no claim was being advanced for financial loss, in relation to any past or future wages, as Mr Miller was collecting and continues to receive income solely through benefits provided through the Ontario Disability Support Program, in a manner unaffected by the accident giving rise to this action. It was also confirmed that the Ministry of Health and Long Term Care has waived any subrogated claim for recovery of health care costs incurred in the treatment of Mr Miller because of injuries sustained in the accident.

[42] Although this was a concern in the spring of 2005, a progress note entry in April of 2005 indicated that Mr Miller simply required foot inserts and proper shoes. There appear to be no further references to such problems over the 6-7 month period prior to Mr Miller’s slip and fall accidents, and no other evidence that would persuade me that such problems played any role in causing Mr Miller’s slip and fall accidents.

[43] In cross-examination, Mr Miller said it was possible that he may have done some further isolated “side work” for a bit of money since his release from prison, but he had no memory of that having happened. Ms Stafford, however, was quite sure that Mr Miller had not worked at all, or made any attempts to find a job, since his release from prison.

[44] Evidence in that regard was provided by Miss Stafford and, in particular, by Mr Miller, who described his weight-lifting activities at length, in great detail, during examination-in-chief and cross-examination, with obvious passion and pride. For example, in addition to going through his regular routine of movements to develop his triceps, biceps and chest, he emphasized how he had “got a lot bigger”, and managed to regularly bench press 300lb of weight, all of which made him feel much better about himself despite his other problems. Ms Stafford similarly emphasized that Mr Miller had been very strong, and that weight-lifting was the source of his self-esteem. According to her, “That was his thing – he was the strong guy”.

[45] As noted above, this was another subject about which Mr Miller was obviously passionate, describing the type of fish he would catch, and the many fishing locations he had found in the area. Ms Stafford confirmed that Mr Miller would embark on his fishing excursions “as often as he could”, and usually twice a week.

[46] Mr Miller explained, with obvious regret, that he has not resumed fishing because his pain and restlessness definitely would make it impossible for him to stay in one position or place for the time fishing inherently requires, and that other physical movements associated with fishing are the type of movements that cause him pain.

[47] Mr Miller weighed approximately 200lb before the accident, but obviously now weighs considerably less than that. He described, with obvious frustration and considerable embarrassment, that his initial attempts to return to the gym had caused too much pain, (especially in the top of his left shoulder), and that he now finds himself unable to lift even “little girl dumbbells” regularly, although he has tried. To his evident distress, he has gone from being able to free lift heavy weights of 150-200lb., and bench press up to 315lb., to a situation where he has serious difficulty lifting weights of just 10lb, and 20lb if he is “lucky”. Such evidence was supported by the testimony of Dr Malik, and the recorded observations of other attending physicians, who confirmed that Mr Miller obviously has experienced very definite wasting of the muscles in his left arm. For her part, in addition to confirming Mr Miller’s general loss of muscle development, Ms Stafford testified that his left side generally now “droops like a jelly fish”.

[48] In saying that, I am mindful of the reality that injuries sustained in the subsequent motor vehicle accident, such as those resulting in hip and leg pain, might similarly have interfered with activities such as walking, sleeping and ability to sit without movement for prolonged periods of time. However, this does not detract, I think, from the apparent reality that Mr Miller’s other problems, such as neck, shoulder, arm and back pain, caused by the second slip and fall accident, would have had such a lasting impact even if the motor vehicle accident not occurred.