COURT FILE NO.: CV-14-507654

DATE: 20191113

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Zoe Dana Curwen, Christine Curwen and Wayne Curwen

Plaintiffs

– and –

Arumainayaki Srivathsan, Kerry McNelly and Kevin Lehmann

Defendants

Norma Barron, for the Plaintiffs

No one appearing, for the Defendants

HEARD: November 12, 2019

REASONS FOR JUDGMENT

NISHIKAWA J.

Overview

[1] This action arises from an incident in which the Plaintiff, Zoe Curwen (“Zoe”), was bitten by a dog owned by the Defendants, Kerry McNelly and Kevin Lehmann (together, the “Defendants”). As the Defendants were previously noted in default, the action proceeded as an undefended trial on affidavit evidence. The main issue was the amount of damages.

[2] At the hearing, I granted judgment in favour of the Plaintiffs with reasons to follow.

Factual Background

[3] On January 4, 2014, Zoe went to the Defendant Kerry McNelly’s house to visit her friend, Theresa. Theresa is Mr. McNelly’s daughter. Zoe was petting their dog, Oscar, a Jack Russell/Blue Heeler mix. When Zoe started to move her face away from Oscar, he lunged at her and bit her on the face, neck, and forearms. After Zoe screamed, Theresa was able to pull Oscar off of her.

[4] Zoe had not been warned by Theresa or anyone else that Oscar could be dangerous or unpredictable. Zoe’s mother, Christine Curwen (“Christine”), later discovered that Oscar had previously bitten two other individuals.

[5] Zoe suffered multiple claw marks, puncture wounds and scars to her face, neck and left arm. Zoe asked Theresa to call an ambulance, but Theresa instead called Zoe’s father, Wayne Curwen (“Wayne”). Wayne took Zoe to the hospital, where she was treated and received over twenty stitches.

[6] Over the next year, Christine took Zoe to the family doctor and a plastic surgeon multiple times to see what could be done about the scars. As there was no improvement in the appearance of the scars, Zoe subsequently underwent scar revision surgery in 2015.

[7] In July 2014, the Plaintiffs commenced this action against the Defendants, Arumainayaki Srivathsan and Kerry McNelly. A separate action was commenced against the Defendant, Kevin Lehmann. Both actions were consolidated in July 2016.

[8] In October 2017, the action was dismissed against the Defendant, Anumainayaki Srivathsan, who was not an owner of the dog within the definition of s. 1(1) of the Dog Owners’ Liability Act, R.S.O. 1990, c. D.16.

[9] The Defendants, Kerry McNelly and Kevin Lehmann, both failed to file a statement of defence and were noted in default. Notwithstanding the noting in default, both were served with the amended statement of claim after the actions were consolidated in 2016. At no time have they responded to this proceeding.

Analysis

Liability

[10] Under r. 19.05(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, where a defendant has been noted in default, the plaintiff may move before a judge for judgment against the defendant on the statement of claim in respect of any claim for which default judgment has not been signed. As the Defendants have been noted in default, they are deemed to have admitted the allegations of fact in the statement of claim: r. 19.02(1)(a).

[11] Subsection 2(1) of the Dog Owners’ Liability Act states that the owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal. Pursuant to s. 2(2), where there is more than one owner of a dog, they are jointly and severally liable.

[12] The Defendants are the owners of Oscar and are therefore jointly and severally liable for the damages resulting from the injury to Zoe.

General Damages

[13] Non-pecuniary general damages are those damages awarded for pain and suffering, injury to health, loss of ability to enjoy the normal amenities of life, and personal inconvenience which flow naturally from the injuries that were sustained: Strom (Litigation Guardian) v. White (1994), 1994 7342 (ON SC), 21 O.R. (3d) 205, 1994 CarswellOnt 160, at para. 23 (S.C.J.). The “monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one”: Andrews v. Grand & Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229, at p. 261.

[14] In Moretto v. Nicolini-Femia, 2017 ONSC 3945, at para. 62, Shaughnessy J. noted that case law is of limited utility in dog bite cases because the assessment of damages is very much case specific. The case law nonetheless provides some guidance as to a potential range of damages. In Moretto, both parties provided detailed expert evidence pertaining to the diagnosis and prognosis of the plaintiff’s injuries, which included facial scarring. Shaughnessy J. assessed damages for physical injury at $40,000 and damages for psychological injury at $5,000. A further $12,500 was awarded for future care costs for laser treatments and sunscreen.

[15] In Strom v. White, a six-year old boy suffered three lacerations with ongoing scars and psychological trauma resulting from a dog bite. Kozak J. awarded $22,000 in general damages. In Meloche v. Bezaire, [2005] O.J. No. 947 (S.C.J.), the plaintiff suffered ongoing trauma, pain and visible scarring on her leg and was awarded $30,000. In Zhan v. Kumar, [2008] O.J. No. 1102 (S.C.J.), the court awarded $35,000 in general damages to the plaintiff, who suffered lacerations to his face, residual numbness and depression.

[16] The Plaintiffs submit that Zoe is entitled to damages at the higher range of similar cases, since she suffered significant injuries, both physical and psychological.

[17] Zoe is currently twenty years of age and is in her third year at the University of Western Ontario. She was fifteen years old at the time of the incident. She testified that she continues to experience panic attacks when triggered by stressful situations. She feels uncomfortable around dogs and avoids them. Zoe has anxiety about her appearance, due to the remaining scars. She is required to avoid sun exposure. Zoe experiences stress about interviews for summer jobs and about having her photograph taken. She has been prescribed medication for her anxiety. Zoe has seen a counsellor at school and believes she would benefit from further psychotherapy. Before the incident, Zoe did not suffer from anxiety and did not have any significant health concerns.

[18] Christine and Wayne have also noticed changes in Zoe. She “panics” when she sees large dogs and has limited interactions with dogs, including the family dog. Zoe worries about attending camp or social events, wondering what other people might think of her scars.

[19] I accept the seriousness of the injuries suffered by Zoe, as well as her ongoing anxiety relating to dogs and to her appearance. However, there was limited medical evidence regarding Zoe’s current circumstances. Based on the evidence and the range of damages awarded in similar cases, I find that a reasonable amount for general damages for the injury suffered by Zoe is $37,500.00.

[20] I separately grant recovery for the OHIP subrogated claim in the amount of $5,461.43.

Future Care Costs

[21] Zoe also seeks an amount for future care costs for ongoing psychological treatment. Other than the Plaintiffs’ view that Zoe would benefit from treatment, no expert or other medical evidence was presented to support the ongoing need for psychotherapy or the cost of such treatment. Other than meeting with a counsellor at school, she has not received such treatment in the recent past.

[22] Based on the evidence of Zoe’s continued anxiety and fears, I find that it would be appropriate to award an amount for psychological treatment to assist Zoe. I assess this amount at $2,500.00.

Family Law Act Claims

[23] Both Christine and Wayne claim damages for loss of care, guidance and companionship under s. 61(2) of the Family Law Act. R.S.O. 1990, c. F.3. Christine and Wayne are separated. At the time of the incident, they shared custody of Zoe. Zoe has since reached the age of majority.

[24] In the case relied upon by the Plaintiffs, Goodridge (Litigation Guardian) v. King, 2007 CarswellOnt 7637 (S.C.J.), the court assessed damages under the Family Law Act at $7,500 for the daughter’s inability to engage in activities that the mother and daughter used to enjoy together, like gardening and cooking, as well as the care provided by the mother during the daughter’s hospitalization. In Meloche v. Bezaire, the husband was awarded $3,000 in Family Law Act damages for having to take over certain housekeeping chores and for his wife’s inability to engage in the social activities that they previously enjoyed together.

[25] In their respective affidavits, Christine and Wayne describe how their relationship with Zoe has changed since the incident. Both testified that Zoe has become more distant and guarded, and that their relationships have suffered as a result. Aside from these general statements, the evidence lacks specificity as to the nature of the changes in the relationship between Zoe and each parent. There is little detail about the types of activities that they used to enjoy together and that Zoe is no longer able to participate in.

[26] Based on the evidence, I assess damages for loss of care, guidance and companionship at $5,000.00 for each parent.

Costs

[27] Counsel for the Plaintiff submitted a bill of costs on a partial indemnity basis for a total of $18,358.95, including HST and $8,287.83 in disbursements.

[28] Pursuant to the Courts of Justice Act, s. 131(1), the Court has broad discretion when determining the issue of costs. The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

[29] Rule 57.01(1) of the Rules of Civil Procedure sets out the factors to be considered by the court when determining the issue of costs. I have considered these factors, as well as the principle of proportionality in R. 1.01(1.1) of the Rules of Civil Procedure, while keeping in mind that the court should seek to balance the indemnity principle with the fundamental objective of access to justice.

[30] While I understand that Plaintiff’s counsel has endeavoured to keep the costs of the proceeding low, the costs and disbursements are disproportionately high in relation to the amount recovered. I fix total costs of the action on a partial indemnity basis at $16,000.00, including disbursements and HST.

Conclusion

[31] Based on the foregoing analysis, I grant judgment as follows:

(i) General damages of $37,500.00 to the Plaintiff, Zoe Curwen;

(ii) Future care costs of $2,500.00 to the Plaintiff, Zoe Curwen;

(iii) $5,461.43 for the OHIP subrogated claim;

(iv) Damages under the Family Law Act of $5,000.00 to the Plaintiff, Christine Curwen;

(v) Damages under the Family Law Act of $5,000.00 to the Plaintiff, Wayne Curwen; and

(vi) Costs of the action in the amount of $16,000.00.

Nishikawa J.

Released: November 13, 2019

COURT FILE NO.: CV-14-507654

DATE: 20191113

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Zoe Dana Curwen, Christine Curwen and Wayne Curwen

Plaintiffs

– and –

Arumainayaki Srivathsan, Kerry McNelly and Kevin Lehmann

Defendants

REASONS FOR JUDGMENT

Nishikawa J.

Released: November 13, 2019