Court File and Parties

Court File No.: CV-18-600246-0000 Date: 2019/05/24 Ontario Superior Court of Justice

Between: MARIE BAGOO, Plaintiff

• and - THE CITY OF TORONTO, Defendant

Counsel: Michael W. Czuma for the Plaintiff

Heard: May 22, 2019

Perell, J.

Reasons for Decision

[1] The Plaintiff Marie Bagoo sues the City of Toronto as a result of a slip and fall accident on Toronto’s Centre Island. Although duly served, Toronto did not defend and has been noted in default. Pursuant to rule 19.05, Ms. Bagoo moves for a default judgment. Pursuant to rule 19.02, Toronto is deemed to admit the truth of all allegations of fact made in the Statement of Claim.

[2] At the hearing of the rule 19.05, I made the following endorsement with written reasons to follow:

The Plaintiff Marie Bagoo slipped and fell while walking on an unrepaired sidewalk after a day at the City of Toronto’s Centre Island. She sues the City for negligence. The City did not defend, and Ms. Bagoo moves for a default judgment. Having read the motion record and for written reasons to follow, I grant her a judgment for $42,274.12 plus costs of $8,591.25. I have signed the Order.

[3] Ms. Bagoo is seventy-year old retired nurse. On June 29, 2016 she was at a family outing on Toronto Centre Island, and after a day on the island, she was walking toward the ferry dock when she tripped and fell on an uneven and damaged stone sidewalk slab. There was no warning sign and the sidewalk was not in a reasonable and safe state of repair.

[4] Ms. Bagoo fell, bruised her knees, legs and feet. She bruised her side and shoulders. She fractured two fingers on her right hand. Paramedics were called to the scene. She was taken by boat to the mainland and then by ambulance to hospital where she was treated for her injuries.

[5] Surgery was required to repair the injuries to her fingers. She returned to the hospital on July 6, 2016 and again on July 11, 2016 for the surgery.

[6] Although after her surgery she received physiotherapy, her use of her hand has been permanently impaired. Her left knee remains swollen, and she has ongoing pain for which she takes Tylenol. Because of other medical conditions, she cannot be prescribed a stronger painkiller.

[7] OHIP has a subrogated claim for $5,245.22.

[8] Ms. Bagoo claims special damages of $2,028.90 and general damages of $35,000.

[9] Based on the factual allegations in the Statement of Claim, the City is liable for Ms. Bagoo’s injuries. It had a duty to maintain the sidewalk. The sidewalk was in a state of non-repair. The City did not take reasonable steps to repair the sidewalk and to prevent the trip hazard. The state of non-repair was the cause of Ms. Bagoo’s injuries.

[10] In support of her damages claim, Ms. Bagoo provided a detailed evidentiary record including her medical records. She provided a damages brief. With respect to her claim for general damages, she relied on three cases; namely: Zaravellas v. Armstrong, 2016 ONSC 3616, aff’d 2018 ONSC 4047; Sores v. Premier Fitness Clubs 2011 ONSC 2220; and Kirwan v. London (City), 2011 ONSC 5993.

[11] In Zaravellas v. Armstrong, Mr. Zaravellas was a 52-year old bus driver employed by the Toronto Transit Commission. Mr. Zaravellas suffered soft tissue injuries when another employee of the TTC, a street-car driver, closed the vehicle’s door on Mr. Zaravellas’s hand. Mr. Zaravellas was unable to return to work at the TTC. This precipitated a depression, for which he was prescribed medication. While under medication, he was disoriented and he slipped and fell in the shower suffering a fracture to his wrist which did not heal leading to surgery to re-break the wrist and re-set it with metal inserts. Mr. Zaravellas’ case was dismissed on liability, but his general damages for the hand and wrist injuries was assessed to be $20,000.

[12] In Sores v. Premier Fitness Clubs, Ms. Sores, a 31-year old dental hygienist was injured in an accident at a fitness club. She suffered a fractured metacarpal (upper finger) that was placed in a splint. She was awarded $25,000 in general damages.

[13] In Kirwan v. London (City), Ms. Kirwan, a 58-year old homemaker was injured when she tripped on an uneven sidewalk. Her hand was gashed and there were compound fractures to her third and fourth fingers and injuries to her fifth finger. After surgery to repair the fractures her fingers were left deformed and with diminished functionality. There was ongoing pain and immobility. She was awarded $50,000 in general damages.

[14] I am satisfied from my review of the evidentiary record that Ms. Bagoo has proven her claims for special and general damages.

[15] For these reasons, I granted Ms. Bagoo a judgment for $42,274.12 plus costs of $8,591.25.

Perell, J. Released: May 24, 2019