Court File and Parties
COURT FILE NO.: CV-15-2329 DATE: 20190307 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Randy Brown, Plaintiff
– and –
Jasvir Singh Dhaliwal and Mandeep Kaur Dhaliwal, Defendants
COUNSEL: S. Dhaliwal, for the Plaintiff
HEARD: March 7, 2019
MILLER J.
[1] February 8, 2015 Randy Brown suffered a slip and fall outside of his apartment at the residence of the Defendants Jasvir Singh Dhaliwal and Mandeep Kaur Dhaliwal located at 42 O’Hara Place, Brampton. He sues for damages.
The Undefended Trial
[2] This matter proceeded as an undefended trial before me March 7, 2018. The Statement of Claim was issued May 19, 2015. The Defendant Mandeep Kaur Dhaliwal was served personally with the Statement of Claim May 22, 2015. The Defendant Jasvir Singh Dhaliwal was served the same date when a copy of the Statement of Claim was left with Mandeep Kaur Dhaliwal, who is his wife, and by sending a copy, on May 23, 2015 by pre-paid first class mail to Jasvir Singh Dhaliwal at 42 O’Hara Place, Brampton.
[3] Evidence was given that both Defendants are the owners of the property at 42 O’Hara Place, Brampton and that they both resided there as of February of 2015.
[4] In addition, counsel for Mr. Brown sent a letter to the Defendants by registered mail on March 11, 2015 advising of Mr. Brown’s impending claim and asking that they notify their insurance company as soon as possible.
[5] On April 14, 2015 a follow-up letter was sent to the Defendants by registered mail asking again that they notify their insurance company as soon as possible, and that if no response was received by April 27, 2015 Mr. Brown’s litigation would proceed.
[6] No response was received; no one contacted counsel for Mr. Brown on behalf of the Defendants; no notice of intention to defend was given, nor was any Statement of Defence filed.
[7] Counsel for Mr. Brown sent a letter to the Defendants by registered mail on July 7, 2015 enclosing the Statement of Claim and affidavits of service and advising that if not contacted by a representative or in receipt of a Statement of Defence by July 31, 2015 they would proceed to have the Defendants noted in default and to obtain default judgment.
[8] The Defendants were noted in default August 24, 2015.
The Evidence
[9] Evidence was presented to the Court in the form of an affidavit sworn by Randy Brown March 7, 2015 and a Document Brief containing a number of medical and business records. Mr. Brown also testified.
[10] Randy Brown described the incident as follows:
The accident occurred at approximately 5:30 p.m. I was returning from the grocery store. I walked along a walkway beside the house located on the Premises. I walked toward· the stairs leading down to the basement apartment. I was wearing winter boots and was carrying three plastic bags in my left hand and a bag of salt in my right hand. As I took one step down the Stairs with my left foot, suddenly and without any warning, I slipped on ice and snow which had not been sanded, salted, nor cleared and fell down the stairs.
[11] Randy Brown testified that he had been present about one month earlier when a Brampton bylaw officer, Steve Brown, had handed a notice to Jasvir Dhaliwal advising that an eaves trough above the stairs was leaking onto and creating ice on the stairs. Randy Brown testified that the bylaw officer told him that the notice required Mr. Dhaliwal to fix the eaves trough within two weeks.
[12] Randy Brown testified that the Dhaliwals did not repair the eaves trough and that it was because ice had again accumulated on the stairs leading to his apartment that he had purchased the bag of salt that he had in his hand when he fell. Randy Brown testified that about two minutes before the fall he had seen and spoken to Mr. Dhaliwal who had chastised him for not buying a more expensive brand of salt. Randy Brown testified that he had told Mr. Dhaliwal that he shouldn’t have to buy salt at all as it was Mr. Dhaliwal’s responsibility as the landlord to make the stairs safe.
[13] Randy Brown described his injury as follows:
After the fall, I experienced severe pain in my right knee cap and was unable to get up. I knocked on the door at the bottom of the stairs. My wife opened the door and assisted me to get up and transfer me to the couch inside the basement apartment.
[14] Randy Brown described the treatment he sought and lasting effects of the injury as follows:
After the fall, I first sought medical treatment on February 10, 2015 at the walk-in clinic located at the Medi Plus Medical Centre. I was limping due to the pain in my right knee cap. The doctor noted tenderness and swelling and referred me for an x-ray. I was given crutches to assist with walking. I was advised to attend the emergency room if my symptoms got worse. On February 10, 2015, I also attended Queen West X-Ray and Ultrasound to undergo the recommended x-ray of my right knee. The x-ray revealed fluid in the suprapatellar bursa that could have been post traumatic or inflammatory in nature.
On February 12, 2015, I returned to Medi Plus and was advised that the x-ray of my right knee did not reveal a fracture. In light of my ongoing pain and swelling in my right knee, I was advised to attend the hospital to see a specialist for pain control and a possible repeat x-ray of my right knee. On February 24, 2015, I returned to Medi Plus complaining of limping and right knee pain. I was prescribed pain killers for my symptoms and provided a note advising that I was unable to attend work for 2-3 weeks.
On March 5, 2015, I attended the emergency room at the William Osler Health Centre. X-rays were taken of my right knee which revealed a small right knee effusion and some arthritis in the patellofemoral compartment and medial compartment. On March 12, 2015, I returned to the emergency department at William Osler complaining of right knee pain. The doctor who examined me noted that I had medial joint line tenderness and prescribed Percocet for my symptoms. I was also referred for a MRI to rule out a medial meniscal tear with unstable fragments.
On June 4, 2015, I completed the MRI of my right knee. It revealed a medial meniscus with moderate degeneration and an inferior surfacing tear was suspected in the body of the posterior horn. Also noted was a small knee joint effusion and early arthritis in the medial and patellofemoral knee joint. On December 8, 2015, I completed an x-ray of my right knee which revealed a small joint effusion and early degenerative changes in the patellafemoral joint.
On April 26, 2016, I attended an appointment with Dr. Martin Lee, rheumatologist, regarding pain and swelling in my right knee from the fall. He noted the MRI results of the right knee which revealed the presence of a meniscal injury. He noted that I had declined arthroscopic debridement for the right knee. He noted that I had been unable to work since the fall and was unable to pay for physiotherapy treatment due to lack of extended health benefits. He recommended a referral to an orthopaedic surgeon to review the MRI results of the right knee. He referred me to physiotherapy to complete quadriceps strengthening exercises.
On May 5, 2016, I attended Queentario Physiotherapy and Rehabilitation Clinic in Mississauga for an assessment. They recommended an initial assessment and treatment plan for my right knee of 8 weeks at the frequency of twice per week. The cost of the physiotherapy was $50 per visit. On August 8, 2016, I attended a follow-up appointment with Dr. Lee. He noted my ongoing complaints of gelling in the right after sitting down for a brief period of time and pain when bending and using stairs. He made a referral to an OHIP-funded physiotherapy program to assist me with quadriceps strengthening exercises.
In May 2018, I was evicted from my house because I could not keep up with my bills due to the fall. As a result, I suffered a mental breakdown requiring hospitalization at the Mississauga Trillium Hospital. I was in hospital for two weeks before being discharged. My driving license was suspended following this hospitalization and I still cannot drive.
I continue to struggle with depression, anxiety, pain in my right knee and coping with my every day financial struggles caused by this fall. I continue to take Extra Strength Tylenol, Naproxen, Arthrotec, and Oxycocet for my symptoms.
[15] Randy Brown provided medical records documenting the treatment he sought and followed. I note that these records, introduced as business/medical records, with no evidence from their authors, are admissible insofar as they document the dates and treatment sought from various medical practitioners. Their contents in respect of any medical opinion is inadmissible.
[16] Randy Brown testified that he had a fall on some ice some three years previous to February 2015 which caused him pain in his right knee. He did not seek any treatment for that injury and it is not documented in any records except that it is mentioned in the notes of Randy Brown’s family doctor upon Mr. Brown’s first visit December 22, 2014. Randy Brown testified that while that injury caused him difficulty shortly after it occurred the pain had largely subsided before February 2015 and did not affect his ability to work.
[17] It is unknown to what extent Randy Brown’s previous injury may have made him vulnerable to the injury he received February 8, 2015 or to what extent he may have experienced ongoing pain and suffering due to the pre-existing condition without the intervening injury on February 8, 2015.
Liability
[18] I find that Randy Brown slipped and fell, injuring his right knee, on the stairs leading to his apartment at the property owned by the Defendants, on February 8, 2015 and that the Defendants had not taken appropriate steps to render the area safe for pedestrian passage, despite being cautioned to do so by the Brampton bylaw officer a month earlier. I find the Defendants liable for Randy Brown’s injury. I find Randy Brown was contributorily negligent due to his awareness of the hazard and failure to take due care and attention.
General Damages
[19] Taking into account the seriousness and the long term effect of the injury, I would assess general damages at $55,000 which I would reduce by 15% for the pre-existing condition and 20% for contributory negligence. In arriving at this quantum of damages and the contributory negligence, I rely on the following similar cases provided by counsel for Mr. Brown: Lesniak v. Mississauga (City), [2002] O.J. No. 5125; Goody v. Costco Wholesale Corp., [2009] O.J. No. 3025; and Walker v. Stratford (City), [2013] OJ. No. 6155.
Loss of Income
[20] Counsel for Mr. Brown submits that an annual amount of $28,800 should be assessed for the impact of the injury on Mr. Brown’s earning ability from the date of the incident to the present. This is a modest amount, given Mr. Brown’s testimony that from 2010 to the date of the incident he earned in the area of $90,000-$100,000 per year. Mr. Brown did not file any income tax returns and there is no documentation whatsoever to support his testimony. Counsel bases her submissions on Mr. Brown’s testimony that at the time of the incident he was about to commence a four month stint as an ironworker for Mitra Metal in Calgary at $45/hour. He had done this work before and after the fall on February 8, 2015 was unable to continue this work as it involved “performing heavy tasks that involve lifting, pulling and squatting”.
[21] I find that despite the lack of documentation the amount sought is relatively modest and in line with Mr. Brown’s earning pattern. I find that for the period February 2015 to February 2019 at $28,800 per year the loss of income to date is $115,200.
[22] Mr. Brown did some work in 2015 for which he earned $2,771.30 on one construction job and $343.20 on another. This is documented by T4 slips. Counsel submits that future loss of income should be assessed at $5,000 per year from now until Mr. Brown is 65 (age 57 now) – the usual age for retirement- for a total of $40,000 for future income loss. I find that this amount is reasonable, again because of and despite the lack of independent documentation.
Costs of Care and Housekeeping
[23] Counsel for Mr. Brown submits that based on an average life expectancy for Canadian men of 82 years he should receive $50 per week for the next 25 years so that he can have weekly physiotherapy appointments.
[24] The evidence from Mr. Brown in support of future costs for treatment is as follows:
I have been unable to attend physiotherapy and other rehabilitative treatment because I cannot afford to pay for this on my own. If I had the funds available to me, I would like to attend some form of rehabilitative treatment to better manage my knee. I verily believe that I will require physiotherapy, medications, and other treatment in the future as my condition continues to deteriorate.
[25] While the medical documentation does suggest that physiotherapy treatment will be helpful to Mr. Brown there is no evidence substantiating weekly physiotherapy for the rest of Mr. Brown’s projected life.
[26] Based on the evidence which is before the Court I am prepared to award Mr. Brown $5,000 for the costs of ongoing physiotherapy.
[27] Counsel for Mr. Brown submits that $10,000 is an appropriate amount for future housekeeping costs. Using the average life expectancy for Canadian men of 82 years this works out to $7.70 per week for the next 25 years.
[28] Mr. Brown’s evidence in respect of the need for assistance in performing housekeeping tasks is as follows:
I have attempted to carry out my normal housekeeping tasks but pacing myself and receiving assistance from my common-law spouse. I verily believe that as my condition continues to deteriorate, I will require increased assistance with my housekeeping needs.
[29] Taking into account the degree of the injury I find that $10,000 for future housekeeping costs is a reasonable amount.
OHIP claim
[30] There is a subrogated claim by OHIP in the amount of $2,127.76 with supporting documentation. There will be a subrogated award to OHIP in the amount of $2,127.76.
Costs
[31] Mr. Brown seeks his legal costs on a partial indemnity basis in the amount of $6,641.58 including tax, plus disbursements in the amount of $2,856.43 including tax.
[32] Rule 57.01 of the Rules of Civil Procedure provides that in awarding costs a court should consider, amongst other things, the complexity of the proceeding; the importance of the issues; the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; and, whether any step in the proceeding was improper, vexatious or unnecessary as well as any other matter relevant to the question of costs.
[33] I have reviewed the Bill of Costs and disbursements and find them reasonable. The Defendants will be ordered to pay Mr. Brown’s costs fixed at $9,498.01 inclusive of tax and disbursements.
Orders
[34] The Defendants Jasvir Singh Dhaliwal and Mandeep Kaur Dhaliwal are jointly and severally ordered to pay general damages to the Plaintiff Randy Brown in the amount of $37,400; $78,336 for loss of income to date and $27,200 for future loss of income; $3,400 for future costs of treatment and $6,800 for future housekeeping costs for a total of $153,136. These amounts all revised to reflect reductions of 15% for the pre-existing condition and 20% for contributory negligence.
[35] The Defendants Jasvir Singh Dhaliwal and Mandeep Kaur Dhaliwal are ordered to pay Randy Brown’s costs of $9,498.01 inclusive of tax and disbursements.
[36] The Defendants Jasvir Singh Dhaliwal and Mandeep Kaur Dhaliwal are ordered to pay OHIP’s subrogated claim in the amount of $2,127.76.
[37] Judgment interest in accordance with the Courts of Justice Act is 5% for pre-judgment interest and 3% for post-judgment interest.
MILLER J.