Court File and Parties

COURT FILE NO.: CV-17-2498-0000 DATE: 20190705

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Darryl Swoffer, Plaintiff AND: Christine Bela and Neil Bela, Defendants

COUNSEL: R. Akelian, for the Plaintiff Self-Represented, for the Defendants

Heard: June 20, 2019

Reasons for Judgment

C.M. SMITH, J

Overview

[1] This is a Motion by the Plaintiff, Darryl Swoffer ("the plaintiff") for a default judgment on the Plaintiff's Statement of Claim seeking damages for personal injuries.

[2] The Plaintiff commenced this action against the Defendants, Christine Bela and Neil Bela ("the defendants") as a result of a dog bite attack which occurred on September 16th, 2015.

[3] The Plaintiff brings this action against the defendants under the Dog Owner's Liability Act, R.S.O. 1990 c. D16, or in the alternative for common-law negligence.

[4] The Defendants have failed to respond to this action and were noted in default on May 10th, 2018.

[5] The Defendants have not moved to set aside the noting in default.

Facts

[6] The Plaintiff, Darryl Swaffer, who is 35 years of age has been employed since 1997 as a newspaper delivery man for a weekly newspaper in Whitby, Ontario.

[7] This action arises out of a dog bite incident which occurred on September 16th, 2015 in the Town of Whitby in the Province of Ontario, as a result of which the Plaintiff was injured. While delivering newspapers to a suburban home, the Plaintiff felt something suddenly grab onto his left hand and spin him around violently. In the Plaintiff's words "When I turned and looked down, I realized an American Bulldog had bitten into my left hand and remained clenched onto my hand. After approximately one minute of trying to dislodge the dog's mouth, the dog finally let go of my hand. While unclenching its teeth, the dog ripped off a large chunk of my skin and caused significant blood loss. After the dog let go of my hand, I tried to run away from the dog, however, the dog lunged at me and began to chase me. After a few minutes, I managed to run away and hide between two cars to lose the dog."

[8] The dog was unleashed at the time and turned out to be the family pet of the Defendants who resided at the home next door to the home where the Plaintiff was delivering the newspaper.

[9] Local police and Municipal Animal Services agencies were both contacted by the Plaintiff. Upon investigation, it was determined by those agencies that at all material times the Defendant, Christine Bela, resided at the address in question and was the registered owner of the dog. Documents obtained by the Plaintiff from the Municipal Animal Services agency show that that agency contacted the Defendant, Christine Bela, after receiving the complaint whereupon it was discovered that the dog had not been vaccinated for rabies. The Defendant, Christine Bela, agreed to get the dog vaccinated but subsequently missed two scheduled appointments with a vet for that purpose. It was not until the Animal Services Agency actually laid charges against the Defendant, Christine Bela, that the dog was eventually vaccinated. Those charges were then withdrawn by the Animal Services Agency.

[10] The Plaintiff asserts in the affidavit he filed in this proceeding that the Defendant, Neil Bela, approached him some months after the dog bite incident while the Plaintiff was delivering newspapers on his route. Apparently the Defendant, Bela, apologized for the dog biting and made reference to the fact that the dog belonged to he and his wife, the Defendant, Christine Bela. There is also evidence before the court that sometime in the last 12 months the Plaintiff was approached by a child of the Defendants while the Plaintiff was walking in the neighbourhood. That child acknowledged the Plaintiff as the individual involved in the dog bite and further acknowledged that his parents were being sued by the Plaintiff.

[11] The Plaintiff commenced these proceedings by way of Statement of Claim on September 13th, 2017. Both Defendants were noted in default on May 10, 2018. Neither Defendant moved to set aside the noting in default. The Defendants were both served with the Notice of Motion for judgment herein, as well as the related materials, in advance of the hearing date as a courtesy by the Plaintiff's counsel.

The Injuries

[12] As a result of the dog bite, the Plaintiff suffered two puncture wounds to his left hand. Photographs attached to the Plaintiff's affidavit herein show nasty wounds on either side of the hand which confirmed the Plaintiff's evidence to the effect that the dog's teeth actually pierced his hand.

[13] Immediately following the dog bite, the Plaintiff attended for medical attention. The attending physician describes the Plaintiff's injuries as consisting of two lacerations on the Plaintiff's left palm, one approximately two centimetres in length and one approximately five centimetres in length. These lacerations were cleaned, sutured and bandaged. Twelve sutures were required. The Plaintiff also received a tetanus shot and was given a prescription for antibiotics.

[14] The Plaintiff also asserts that he was obliged to take a course of medication when it was learned that the dog in question had not been vaccinated for rabies.

[15] Once the sutures were removed, the Plaintiff found that he had permanent scarring on his left hand.

[16] Approximately ten months after the dog bite a lump began to form at the exact site of the puncture wound on the Plaintiff's hand which became increasingly painful, sensitive and a source of considerable discomfort for the Plaintiff. This lump, and the associated pain and discomfort persisted, as a result of which the Plaintiff was obliged to re-attend for a consultation with his physician who referred the Plaintiff to a plastic surgeon. On June 21st, 2017, the Plaintiff underwent a surgical procedure for the excision of the lump. The plastic surgeon opined that the mass appeared to be the result of something called Dupuytren's Disease. This surgical excision required additional sutures to the Plaintiff's left hand and another period of recovery.

[17] Notwithstanding the surgical excision, the Plaintiff's difficulties, discomfort, pain and sensitivity continued. In March of 2018, another lump developed on his left hand at the site of the dog bite as a result of which a second surgical excision was performed by the plastic surgeon on November 23rd, 2018.

Impact of the Injury on the Plaintiff

[18] The Plaintiff asserts that prior to the dog bite he had no physical limitations with respect to the use of his left hand, that he was independent in all activities of daily living and he did not require assistance. He further asserts that for approximately eight to ten months following the dog bite he experienced severe limitations in the use of his left hand on a daily basis. That involved difficulty opening and closing his hand, stretching his hand, lifting things and grasping objects. When he attempted to hold items or lift anything with any weight, he would experience significant discomfort and sharp shooting pain at the site of the injury. Some of the activities he has experienced difficulty with include pushing the lawnmower, lifting boxes, sleeping on his hand and even zipping up his jacket, all being tasks for which he required assistance.

[19] The Plaintiff was unable to use his hand at all for at least a month after each of the three surgeries and required the assistance of his parents with respect to activities of daily living and employment.

[20] As of the date of the hearing of the Motion, the Plaintiff continued to suffer from heightened sensitivity to touch and pressure at the site of the injury, some seven months after his last surgery. He continues to experience significant weakness in his grip strength and remains unable to make a full fist.

[21] I am advised as well by counsel that there is a significant risk of a further recurrence of the Dupuytren's Disease.

[22] As noted above, at the time of this incident the Plaintiff worked as a newspaper delivery man. He was unable to return to that work for a period of one month after the dog bite, but when he did return he required assistance as he was unable to use his left hand to lift newspaper boxes, fold and assemble the papers and pull the wagon. His father assisted him with this task for approximately four months thereafter.

[23] Quite understandably, the Plaintiff's also experiencing some psychological issues involving significant anxiety and fear of large dogs. He also continues to have recurring nightmares and flashbacks about the dog bite.

Liability

[24] The Defendants chose not to defend the action and were found in default. Neither of the Defendants has moved to set aside the default judgment. Pursuant to the provisions of Rule 19.02 of the Rules of Civil Procedure, where Defendants are noted in default they are deemed to admit the facts set out in the claim. However, pursuant to Rule 19.06, the Plaintiff must still prove that they are entitled to judgment for damages.

[25] The Dog Owners Liability Act, R.S.O. 1990 c D.16 (DOLA) is the governing legislation with regards to liability in dog bite incidents in Ontario. Section 1 of the DOLA defines an "owner" of a dog as including "a person who possesses or habours the dog…". Further, pursuant to s. 2 of the DOLA:

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.

2(2) Where there is more than one owner of a dog, they are jointly and severally liable under this section.

2(3) The liability of the owner does not depend upon knowledge of the propensity of the dog or fault or negligence on the part of the owner, but the court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages.

[26] I am satisfied on the evidence before me that the Defendants both fall under the rubric of "owner" as envisioned by the DOLA, and as such they are jointly and severally liable for the Plaintiff's damages.

[27] Given the Defendant's failure to respond to this action, there is no evidence before me of any kind to show fault or negligence of a contributory nature on the part of the Plaintiff. I do note that given the circumstances of the case and the evidence before me, I find it hard to imagine how the Plaintiff could possibly have been contributorily negligent in any way.

Damages

[28] The Plaintiff seeks judgment for unliquidated damages arising from the dog bite as follows:

1. General damages in the amount of $35,000 to $40,000;
2. Special damages in the amount of $120.51 for the subrogated OHIP claim.

[29] The Plaintiff's counsel has supplied me with a number of authorities regarding the issue of damages in both a general sense, as well as in a case specific sense. In the general sense, the authorities supplied stand for the proposition that general damages are for the loss of amenities, pain and suffering, injury to health, loss of ability to enjoy the normal activities of life and personal inconvenience, all of which flow from the injuries sustained. See Andrew v. Grand and Toy Limited, [1978] 2 SCR 229 and Strom v. White, [1994] OJ No. 2604.

[30] In the case specific sense, the Plaintiff's authorities include four cases, all decided by this court, on the issue of quantum of damages for injuries of this nature. In the case of Chatterton v. Cowan, 2010 OJ No. 3395, Mr. Justice Lauwers ordered damages in the amount of $8,500 for a middle aged woman who suffered tooth punctures in her hip as a result of a dog attack. She required a rabies shot and pain medication and suffered from nightmares, disrupted sleep and an ongoing fear of large dogs. The court noted the Plaintiff's minimal physical injuries and her continuing ability to carry on her day-to-day activities as a reason for damages being at the lower end of the scale.

[31] In Meloche v. Bezaire, 2005 OJ No. 947, McGarry, J ordered general damages in the amount of $30,000 for a Plaintiff who suffered large bite wounds on her left calf and right thigh and three puncture wounds on her left forearm after being attached by two dogs. In that case, the Plaintiff was required to rest for a period of four months and reported ongoing pain and permanent noticeable scarring at the sight of her wounds. The injuries rendered the Plaintiff incapable of carrying out her day-to-day activities and household tasks for some three to four months. She also suffered from ongoing anxiety and fear of dogs and visible scarring.

[32] In Moretto v. Nicolini-Femia, 2017 OJ No. 3328, Shaughnessy, J awarded the Plaintiff $45,000 in general damages, of which $5,000 was assessed based on her psychological injuries. In that case, the Plaintiff suffered a dog bit to his left cheek requiring ten sutures and a tetanus shot. The Plaintiff received steroid injections for approximately two years following the attack. The Plaintiff was left with significant and noticeable scarring on her face which led to significant emotional impact on her life and a reduction in her self-esteem and confidence, nightmares and flashbacks of the dog bite attack were also a feature of that case.

[33] Lastly, in Thompson v. Fisher, 2016 OJ No. 2731, Eberhard, J awarded general damages of $30,000 for a Plaintiff who was attacked by a dog and who suffered lacerations to his hands, a bruised left hip and a scraped left knee which were the direct result of a fall he experienced while attempting to flee from the dog. The lacerations on his hands required 12 sutures on one hand and four sutures on the other. As a result of the attack, the Plaintiff in that case faced significant limitations in the use of his hands and was no longer independent with day-to-day tasks. That Plaintiff also expressed difficulty gripping heavier objects and overall limited hand function and a fear of dogs as a result of the attack.

[34] In the case before me, the Plaintiff submits that the range of damage awards, adjusted for inflation, in the above mentioned cases ranges from a low of $9,965.52 for less severe injuries to approximately $46,932.52 for longer lasting injuries. The Plaintiff further submits that based on his experience with ongoing pain, sensitivity, physical limitations and psychological issues his general damages should be assessed at the upper end of the range.

[35] Having reviewed the authorities cited above, and having reflected on the circumstances of this case and the evidence that's been placed before me, I am persuaded that the Plaintiff's injuries merit an award at the higher end of the above-noted range. I note that the attack itself lasted for approximately one minute during which time the Plaintiff's hand was firmly in the grip of the dog's jaws having been pierced by the dog's teeth. I am sure that that minute would seem like an eternity to anyone undergoing such an experience. The Plaintiff, as noted above, was obliged to attend for medical treatment involving sutures with all that that entails. He was also obliged to attend for two subsequent surgical sessions as a result of the Dupuytren's Disease. I note, as well, that he is at risk of future recurrences of that condition. The Plaintiff has lost some degree of functionality in his left hand which has had a significant detrimental impact on his daily life. The Plaintiff has also suffered from persistent emotional distress stemming from the incident involving anxiety and fear being around dogs which is not at all surprising and is to be expected with cases of this nature.

[36] In view of all of the factors enumerated above, I am of the view that the Plaintiff is entitled to general damages in the amount of $40,000. The Plaintiff is also entitled to pre-judgment interest pursuant to the provisions of the Courts of Justice Act from the date of the claim and to post-judgment interest, again pursuant to the Courts of Justice Act from this date forward.

[37] In addition, the Plaintiff is entitled to special damages in the amount of $120.51 broken down as follows;

• $103.05 for the Ministry of Health and Long-Term Cares Subrogated OHIP Claim with respect to the medical care received by the Plaintiff following the dog bite
• $17.46 for legal costs associated with the Subrogated OHIP claim inclusive of HST

[38] On the subject of costs, I have been supplied with a bill of costs of the Plaintiff. The Plaintiff will receive his costs on a partial indemnity basis for an amount of $10,175.93 inclusive of HST for legal fees and the further sum of $4,711.18 for disbursements, both amounts inclusive of HST, for a total of $14,887.11.

[39] Judgment to issue for a total of $55,007.62.

C. Smith Released: July 5, 2019