COURT FILE NO.: CV-15-77 DATE: 2016-05-24
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MARK THOMPSON Plaintiff
-and-
BRIAN FRED FISHER Defendant
Counsel: P. W. Sloan, for the Plaintiff Not Appearing, for the Defendant
Heard: May 24, 2016
M. P. EBERHARD
[1] The Defendant was noted in default in March 2015 so does not appear and the consequences in Rule 19.02 result.
[2] The Plaintiff's claim is for unliquidated damages for personal injury so he proceeds under Rule 19.05 and he attends at trial to prove his damages by a combination of viva voce testimony from the Plaintiff and documentary evidence in the form of exhibits attached to the affidavit of counsel's legal assistant in the motion for judgment.
[3] The evidence is, and I find, the Plaintiff was injured on May 14, 2014 when he attended to serve legal documents on the Defendant. He was on the Defendant's porch, the Defendant opened his front door, demonstrated animus by swearing at the Plaintiff: let his Rottweiler type dog through the door and uttered "get him" or "sic him" whereupon the Plaintiff attempted to flee, fell down the porch stairs, hit his head on his truck, fell to the ground with his hands hitting first on the stony surface. Immediately the dog latched on to his leg, over his pants by the ankle, demonstrating aggressive intention. The dog owner called off the dog. The Plaintiff scrambled into his truck and departed for the hospital, his hands bleeding profusely.
[4] I find the Plaintiff has established liability for his injuries by Dog Owner's Liability Act RSO 1990 wherein strict liability is set out in section 2(1):
The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal.
[5] Flight from the dog in the circumstances was reasonable. That he fell on the stairs with the dog in pursuit is nevertheless a fall caused by the dog.
[6] I find the Defendant is, by his possession and control of the dog within the residence on property he owns, the dog's owner, but even if he were not liability is contemplated by s. 2(4) for the fault or negligence from any other person.
[7] There is no issue of the Plaintiff being contributorily negligent nor being on the property for criminal purpose which could excuse the owner from liability.
[8] The Defendant is therefore fully liable to compensate the Plaintiff for his injuries.
[9] The evidence is, and I find, that the incident resulted in the Plaintiff suffering a headache, which was effectively treated with Advil at the hospital, a bruised left hip which resolved in a couple of weeks, a scraped left knee which was cleaned up at the hospital and bandaged such that while he now has recurring gout in that knee which he didn't experience before, he does not complain of enduring effects. X-rays showed no breaks. His hands were his most severe injuries.
[10] Both were lacerated, the left one deep enough to expose tendon and bone. Pictures support the Plaintiff's descriptions. Little rocks were imbedded in the wounds. Treatment was given to clean out the cuts, apply medication to assist healing and then sutures, 4 on the right hand, 12 on the left. Then his hands were bandaged and wrapped in gauze part way up his fingers so he could not use his hands. He returned next day for rewrapping then a few days later as infection had set in to the left hand. He has permanent scars.
[11] Without the use of his hands the Plaintiff was dependent on others. He couldn't drive, couldn't cook, couldn't toilet or wash himself. He has care of 2 children, 12 and 15, and was unable to perform usual parenting tasks such as cooking and driving. This lasted until August when he was able to resume most tasks.
[12] A friend who is a qualified PSW came in three times a day to perform intimate care, change bandages and perform some household tasks the Plaintiff couldn't do for himself. They worked out a fee of $15/hour based on her experience in the industry and the Plaintiff's several acquaintances who work as PSWs. I am satisfied that modest rate is appropriate. Invoices were signed weekly and presented as exhibit 2. Counsel totaled the invoices in argument at $5,988.
[13] The Ministry of Health makes a subrogated claim of $2,792 for cost of care.
[14] The Plaintiff acknowledges a variety of debilitating conditions that left him unable to maintain employment including reported renal failure, rheumatoid arthritis, hemi disease, fibromyalgia affecting feet and ankles consistent with the medical evidence filed. He was, at the time of the incident unable to walk, stand or sit for long periods. He therefore brings no claim for loss of income. But I find no evidence of ailments impacting the use of his hands prior to the incident.
[15] He states that prior to the incident he could manage 90-95% of the tasks of daily living. He has returned almost to that two years post incident, but now finds himself less able to grip, particularly heavier items that impact on the palms of his hands and must use an implement or ask his son to twist off the lids of jars. From his descriptions I discern no attempt to exaggerate greater loss to the effects of incident. He is just slightly less able in hand function than he was before in a body which requires him to endure many other limitations.
[16] Emotionally, he has been assessed not to have developed PTSD or any such maladaptation but he does exhibit fear of dogs which he did not have before.
[17] To make an award of general damages the court looks for precedent in similar cases. Counsel for the Plaintiff provided cases for injuries resulting from dog attacks 1 and also case for injuries to the hands and wrist 2.
[18] Within the Red case is mentioned Chatterton v Cowan and Kish ONSC 4314 in which Lauwers J. (as he then was) reviewed caselaw in dog cases and rejected counsel submissions that there was a range of $15-20,000 finding a broad range of decisions from $2,500 to $35,000 and emphasizing it was case by case analysis based on the nature of general damages and their purpose.
[19] In the present case I find that the extent of loss of daily independence from May to August supports an award reflecting the impact of the injury on the Plaintiff's personal wellbeing much greater than suggested by the diagnosis of lacerations to the hands. He was completely dependent for all his ordinary life functions, more so than a broken bone that might attract greater damages in the ordinary course.
[20] I fix general damages at $30,000.
[21] I award subrogated damages of $2,792.23.
[22] I find special damages for care of $5,988.
[23] Judgment to issue for a total of $38,780.23.
1 Rai v Flowers 2014 ONSC 3792; Belisle c. Valletta 2010 CarswellQue 10604 2 Berkela v Niagara Regional Police Services Board 2008 CarswellOnt 402; Abbott v Glaim 2013 CarswellBC 2837, Carroll v LeBlanc 2013 CarswellNB 663
[24] The Plaintiff has provided a bill of costs on a partial indemnity basis showing modest claims for a matter that was required to proceed to an adjudication. Costs are fixed at $4,618. (including HST) for fees and $3,196.10 (including HST) for disbursements.