Court File and Parties

COURT FILE NO.: CV-10-416817

DATE: 20210329

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

THOMAS ANDREAS KLATT, THE ESTATE OF DEBRA ANN KLATT, by its Estate Trustees THOMAS KLATT and KEVIN BUNDY and DEREK JAMES KLATT Plaintiffs

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LA TOC HOLDINGS LIMITED, CICERON MANAGEMENT LIMITED carrying on business as SANDALS REGENCY LA TOC GOLF RESORT & SPA, UNIQUE VACATIONS (CANADA) INC. and UNIQUE VACATIONS INC., HOLIDAY MARKET INC., HOLIDAY MARKET TRAVEL INC., TOURAM LIMITED PARTNERSHIP carrying on business as AIR CANADA VACATIONS, NEW EMPIRE DESIGN/BUILD CONTRACTORS LTD. and DOMENIC TERSIGNI Defendants

BEFORE: Justice Lorne Sossin

COUNSEL: Joseph Falconeri and Leigh Harrison, Counsel, for the Plaintiffs Seumas Woods and Laurel Hogg, Counsel, for the Defendants

REASONS FOR JUDGMENT

OVERVIEW

[1] The Klatts travelled from Toronto to the Sandals Regency La Toc Golf Resort & Spa (the “Resort”) in Saint Lucia on January 4, 2009. During their first two days of their holiday, the Klatts went to the beach, the main pool at the Resort, and their private plunge pool in their luxury villa on the Resort grounds. After dinner on January 5, 2009, Mr. Thomas Klatt slipped on the stairs on his way to the plunge pool, suffering a serious injury to his left leg.

[2] The trial in this action concerned whether the defendants, La Toc Holdings Limited and Ciceron Management Limited carrying on business as Sandals Regency La Toc Golf Resort & Spa (the “Sandals defendants”) are liable for the injury the plaintiff Mr. Klatt suffered as a result of this accident, and if so, the extent of the damages suffered by Mr. Klatt.

[3] This matter took a long time to reach trial. The plaintiffs’ statement of claim was issued on December 17, 2010.

[4] The Sandals defendants filed a statement of defence on July 5, 2011.

[5] Some of the original plaintiffs and defendants are no longer participating in the litigation. Only Mr. Klatt and the Sandals defendants presented evidence at trial.

[6] The trial itself also took longer than expected. It began with two weeks of testimony in person in February 2020. It was expected that testimony would resume in March 2020.

[7] The COVID-19 Notice to the Profession regarding Court activities, issued on March 17, 2020, delayed the resumption of the trial until June 2020, when two days of hearings via Zoom continued.

[8] Further hearing days took place via Zoom in September and October 2020.

[9] In total, the trial took fifteen hearing days. The court heard from seven lay witnesses and seven expert witnesses on issues ranging from issues of negligence law in Saint Lucia to the proper quantification of damages, engineering, physiatry, cost of future care, and orthopedics.

[10] Finally, the closing submissions of the parties were completed in writing. The last reply submission was delivered on December 3, 2020.

[11] I wish to commend all counsel for accommodating the various shifts in the mode of hearing this trial, and the assistance counsel provided to the Court to ensure this trial could be completed.

[12] For the reasons that follow, I conclude that Mr. Klatt is entitled to general damages of $90,000, plus applicable pre-judgment interest; cost of future care of $927,825.55; and special damages of $35,000, plus applicable pre-judgment interest. I find Mr. Klatt was contributorily negligent for 25% of the accident, so the damages which the Sandals defendants must pay is reduced accordingly.

Mr. Klatt’s professional and personal background

[13] Many facts in this action are not in dispute.

[14] At the time of the trial, Mr. Klatt was 59 years old.

[15] Mr. Klatt testified that he was an active athlete over most of his life before the accident. He played soccer and hockey as a child. Eventually, he played competitive soccer into his late 20s. He played hockey up to the Junior B level, including the Kitchener Rangers of the Ontario Hockey Association.

[16] After completing grade 12, Mr. Klatt joined the Toronto Police Service in 1979 as a Cadet.

[17] He was promoted to Constable in 1981. He spent several years working in uniform at 14 Division in Parkdale, then transferred to the drug squad in west Toronto, where he worked for another year and a half before being promoted to Sergeant and moved back to 14 Division.

[18] Mr. Klatt married his first wife, Diana, in 1983. They had one son, Derek, before divorcing in 1988.

[19] Mr. Klatt was later promoted to Detective. Between 1989 and 1992, he worked in the Toronto Intelligence Unit, following which he was assigned to the Homicide Squad, where he remained until 1998. During his time with the homicide squad, Mr. Klatt investigated about seventy murders, including approximately half as the lead investigator.

[20] Throughout his professional career, before the accident, Mr. Klatt frequented the gym.

[21] Mr. Klatt pursued a range of athletic activities early in his career. For example, he played for the police soccer team until 1988. He also played in the force’s interdepartmental hockey league and on what he called the “Blue Team”, the Toronto Police Service’s team, and became the team’s captain.

[22] During these athletic activities, Mr. Klatt testified that he suffered a range of minor injuries to his elbows, knees, and ankles. He stated he had surgery when he was fifteen for a bone spur on his right knee. He recalled injuries resulting in casts or some type of restrictive board, including two separate casts on his right leg as a result of ankle injuries he sustained while playing on the police soccer team.

[23] In 1998, he left the Toronto Police Service to form his own company, MKD International (“MKD”).

[24] Mr. Klatt testified that MKD handled a range of investigation and security services, including homicide investigations, crime scene investigations, profiling, statement taking, and fact finding. The company had eleven full-time employees, and between twenty and forty subcontracted part-time employees.

[25] Mr. Klatt’s workdays at MKD varied but could include long days at the office and weekend work. He gave evidence that he often would have to be on call twenty-four hours a day, seven days a week.

[26] In 2003, Mr. Klatt married his second wife, Debra Klatt (“Mrs. Klatt”). Debra Klatt was a civilian employee in the Toronto Police Service’s Intelligence branch. After they married, Mr. Klatt moved into Debra’s home in Pickering.

[27] That same year, The Klatts purchased a property in Caledon (the “Caledon Property”) near the town of Caledon East.

[28] The Caledon Property was located in the Oak Ridges area, with four acres of woodlot, some wetland, and a ranch style bungalow with a side split addition.

[29] Mr. Klatt’s overall health in 2009 was a subject of some dispute at trial. Mr. Klatt testified he was very healthy and took no medication apart from a pill to help control his blood pressure.

[30] Mr. Klatt acknowledged he smoked and was overweight at the time of the January 2009 Saint Lucia vacation.

[31] Mr. Klatt acknowledged seeing his family physician, Dr. Taylor, for a series of issues before 2009, including a car accident in 2006, knee injuries in 2008, and sleep apnea and possible heart problems in 2008 shortly before the vacation to Saint Lucia.

The accident in Saint Lucia on January 5, 2009

[32] Turning to the events leading up to and including the accident, several facts surrounding the accident at the Resort in Saint Lucia are not contested.

[33] The Resort is an all-inclusive resort located on 220 acres of property on the northwest coast of Saint Lucia. It is part of the Sandals group of couples’ resorts. As of January 2009, the Resort had over 300 rooms and suites, nine restaurants, eight bars, and a golf course.

[34] As of January 2009, La Toc owned the Resort and Ciceron managed it. Both companies are incorporated and continued under the laws of Saint Lucia.

[35] The parties agree that as of January 2009, both La Toc and Ciceron were occupiers of the Resort for the purposes of the Occupiers Liability Act, 1957, 5 & 6 Eliz. II, c. 31, as incorporated into the laws of Saint Lucia by Article 917A of the Civil Code of Saint Lucia, Chap. 4:01, as amended.

[36] On December 22, 2008, Mr. and Mrs. Klatt purchased a vacation package from Air Canada Vacations through their travel agent, Holiday Market Travel Inc. The vacation package included round-trip air fare on Air Canada to Saint Lucia and seven nights’ accommodation at the Resort.

[37] The Klatts travelled to the Resort on January 4, 2009, flying from Toronto to Saint Lucia. On arrival in Saint Lucia, they, and others, took a minibus from the island’s international airport to the Resort, arriving around 4:30 or 5:00 p.m. local time.

[38] The Klatts were driven to their assigned villa unit, Unit 711 (the “Villa”). The main floor of the Villa included the entrance, kitchen, dining room, sitting area, and bathroom, as well as access to an outside deck area. Stairs inside the Villa led down to a lower level with a large bathroom, bedroom, and sitting area. There was a second deck on the lower level.

[39] On the outside of the Villa, there were stairs leading from the ground floor to the lower level, and from the lower level to a second lower level, where there was a small plunge pool. The plunge pool was surrounded by a small deck on which deck chairs had been placed.

[40] Mr. Klatt testified that a concierge gave them a tour of the Villa. The concierge pointed out the plunge pool. He indicated to them where the light switch for the stairway to the plunge pool was located, and attempted to turn on the lights to demonstrate.

[41] According to Mr. Klatt, when they looked down, the lights were not on and they commented on this to the concierge. Additionally, the air conditioning was not working and one of the doors was not locked properly. Mr. Klatt testified that the concierge stated that the lights, door, and air conditioning all would be repaired by the time they were back from dinner.

[42] Mr. Klatt testified that he went down the stairs to the plunge pool after the concierge left. He recalled that there was some foliage on the steps. He used the pool and then went back up the stairs without incident.

[43] Mr. Klatt testified that he and Mrs. Klatt then went to dinner. He said they went to the front desk, where they checked in about the lights at the Villa as well as the other issues.

[44] The Resort produced maintenance records from that day, which do not include any reference to repairs or maintenance being requested by the Klatts, though the Sandals defendants acknowledged that the records from that date are not complete due to losses of paper files following a hurricane.

[45] After dinner on the first evening of their stay, Mr. and Mrs. Klatt returned to the Villa and found the air conditioning was working, and the door latch had been fixed. He stated that he and his wife used the plunge pool without incident, though Mr. Klatt testified that the light on the stairs to the plunge pool was not working when they used the plunge pool that evening.

[46] On January 5, 2009, the second day of the vacation, the Klatts again returned from dinner sometime between 8:00 and 9:00 p.m.

[47] Mr. Klatt testified that after they returned to the Villa, they decided to go into the plunge pool. Mr. Klatt said he was wearing a bathrobe and was barefoot.

[48] They attempted to turn on the light, then Mrs. Klatt set off down the stairs first. Mr. Klatt’s evidence was that as they went down the stairs, around the first left turn, they would see whether the light was operating. Mrs. Klatt immediately warned him that the light was off.

[49] Mr. Klatt’s recollection was that as he moved down from the right side to the left side, where it was narrower, he slipped off the step. He recalled his weight going backwards. His left leg took the brunt of his weight. He pitched forward and testified that he felt a snap in his left leg.

[50] Mr. Klatt testified that he was in significant pain after the fall. Mrs. Klatt was not able to lift him, and she went to get help.

[51] Mrs. Klatt returned with a maintenance worker who was able to help Mr. Klatt into a more seated and comfortable position. Mr. Klatt recalled a second maintenance worker and the night manager, Mr. Irwin Batiste, attending, as well as a doctor, Dr. Fleming.

[52] According to Mr. Klatt, there was no light. He stated that Mr. Batiste instructed one of the maintenance workers to get a light bulb.

[53] One of the maintenance workers, Mr. Jeovanee William, carried Mr. Klatt up the stairs to the first level deck. Mr. Klatt ended up in bed.

[54] Dr. Fleming conducted an investigation into Mr. Klatt’s condition. He gave Mrs. Klatt some pain medication for Mr. Klatt. Dr. Fleming stated that the Resort would arrange to take Mr. Klatt to the hospital the next morning for x-rays.

[55] Mr. William gave evidence at trial that he received a call indicating that someone had fallen next to the pool. There was a burnt-out light in the area, so he needed to fix the light.

[56] Mr. William stated that Mr. Batiste had sent him, but he could not recall who from the front desk had notified him. He said he received the call sometime between 7:00 and 8:30 p.m.

[57] Mr. William confirmed that there were no lighting present when he arrived at the Villa. Mr. William saw Mr. Klatt struggling to get up. His wife was trying to help him. Mr. William went to him, held him up, and made him comfortable. Mr. Klatt was wearing the white robe provided by the Resort and had on deck shoes.

[58] Mr. Batiste also gave evidence at trial, on behalf of the defendants, which differed somewhat from the account of Mr. Klatt and Mr. William.

[59] Mr. Batiste stated that he received a call from the hotel operator that a guest had fallen. He went to the Villa. Ms. Klatt took him to where Mr. Klatt was sitting at the bottom of the stairs to the plunge pool with two maintenance workers, one of whom was Mr. William. Mr. Batiste checked on Mr. Klatt’s injury and called Dr. Fleming to come to the Villa in order to assess Mr. Klatt.

[60] Mr. Batiste disagreed with Mr. William’s evidence that there was no lighting in the area. Mr. Batiste testified that the lighting in the area was good except for the bottom of the stairs, where a light had burnt out. All of the other lighting fixtures were working. He testified that there was enough lighting in the area for him to see Mr. Klatt.

[61] Mr. Batiste also disagreed with Mr. William’s evidence that it had rained that day and that it was misty that evening. Mr. Batiste described the weather as dry. It was not misty. Mr. Batiste testified that the stairs themselves were dry.

Mr. Klatt’s injuries and the aftermath in Toronto

[62] The next morning, Resort staff gave Mr. Klatt a set of crutches to use and drove the Klatts to a local hospital, where x-rays were taken of Mr. Klatt’s left leg. The x-rays showed that Mr. Klatt had not broken any bones in the fall.

[63] Mr. Klatt testified that he and his wife attempted to leave the island early but could not do so. Mr. Klatt’s left leg remained swollen.

[64] According to Mr. Klatt, he and his wife attempted to continue their vacation and took part in a cruise on a catamaran to a place with a spa and a restaurant. Mr. Klatt testified that he could not complete the walk from the boat to the spa. He stated that he also could not walk up the stairs to the restaurant. Mr. Klatt remained in significant discomfort during the balance of the time at the Resort.

[65] The Klatts returned to Canada on January 11, 2009. Mr. Klatt had some issues on the flight home, including swollen limbs and troubled breathing. A nurse on the flight stayed with him, checking his heart rate and blood pressure. Eventually, his condition stabilized, and he completed the rest of the flight without problem.

[66] Mr. Klatt’s family doctor, Dr. Taylor, examined his injury and referred him to the fracture clinic at Mount Sinai Hospital in Toronto. Based on reports in the Mount Sinai Hospital medical records, Mr. Klatt saw Dr. Theodoropoulos, an orthopedic surgeon at Mount Sinai, on January 13, 2009.

[67] Dr. Theodoropoulos’ notes indicate that there was swelling in the lower part of Mr. Klatt’s left leg and that he had a decreased range of motion in his left quadriceps and significant swelling over the knee. Towards the end of the examination, Mr. Klatt reported shortness of breath.

[68] Dr. Theodoropoulos diagnosed Mr. Klatt as having a left quadriceps rupture. He recommended surgery to repair the quadriceps and a medicine consult to address the shortness of breach.

[69] During his preparation for surgery, doctors discovered that Mr. Klatt had an atrial flutter and that the left ventricle of his heart was not functioning properly. He underwent treatment for the atrial flutter and on January 21, 2009. Following this treatment, he was cleared for surgery.

[70] Dr. Max Lincoln carried out the surgery on January 22, 2009. Mount Sinai’s Final Report on it describes it as “uncomplicated”. Mr. Klatt testified that he was up on his feet within 24 hours of the operation using crutches, and walking short distances by the second day. Mr. Klatt was discharged on January 24, 2009 and returned to his home in Caledon.

[71] By the middle of February 2009, Mr. Klatt could move around in his property. He was able to walk around without crutches, but with a brace he had had fitted at the hospital and a cane. He also was able to resume some of his duties at work.

The re-injury in March 2009

[72] During this period of recuperation, Mr. Klatt re-injured his left leg as a result of a friendly encounter with a business acquaintance.

[73] By the beginning of March 2009, Mr. Klatt was back working at his office.

[74] While driving to work at his office on March 3, 2009, Mr. Klatt decided to drop in to see Mr. Domenic Tersigni at his offices. Mr. Klatt had known Mr. Tersigni for about 15 years. Mr. Klatt testified that when Mr. Tersigni saw him, he went over to greet him and they had a vigorous greeting, as was their custom. Mr. Tersigni literally picked Mr. Klatt off his feet.

[75] Mr. Klatt stumbled when greeting Mr. Tersigni and felt a snap or pop in his leg. Mr. Klatt telephoned Dr. Taylor’s offices and arranged to head directly to the hospital.

[76] Mr. Klatt was admitted to the hospital on March 4, 2009. The records confirm that the doctors at Mount Sinai found that Mr. Klatt had ruptured his left quadriceps tendon for a second time.

[77] On March 5, 2009, Dr. Safir, a surgeon at Mount Sinai, performed the operation to reattach the tendon.

[78] Mr. Klatt remained in the hospital until March 7, 2009, when he was discharged. He then returned home to Caledon.

[79] The second surgery was more involved than the first surgery had been. The Dr. Safir took fascia from Mr. Klatt’s left quad area in order to rebuild the tendon and to provide coverage over the three holes that had been drilled previously.

[80] Mr. Klatt returned to see Dr. Safir in the Mount Sinai fracture clinic to be fitted with a brace.

[81] After the second surgery, Mr. Klatt received treatment by a chiropractor, Dr. Mylonas, at the Athlete’s Care clinic at York University and a masseuse at Horseshoe Hills Massage who went to his home.

[82] Mr. Klatt testified that he also received Durolane injections from a Dr. Ho at Athlete’s Care.

[83] Dr. Taylor saw Mr. Klatt on March 25, 2009, about three weeks after the second operation. Dr. Taylor noted the second tendon tear. Dr. Taylor found that Mr. Klatt’s range of motion was improving.

[84] In this same period of time, Mr. Klatt started to see Dr. Leggatt. Dr. Leggatt’s records indicate that he first saw Mr. Klatt on March 20, 2009. The notes mention the second surgery and that Mr. Klatt was healing well.

[85] There is some dispute between the parties as to the course of Mr. Klatt’s recovery. Based on the information in the medical records, the Sandals defendants argue that by December 2009, Mr. Klatt had largely recovered from the surgeries to repair the tendon tear.

[86] According to Mr. Klatt, however, he had not made a good recovery and continued to experience weakness in his left knee and significant limitations on his daily activities.

Mr. Klatt’s return to the resort in December 2009

[87] The Klatts returned to the Resort in December 2009, in part to gather information about the accident.

[88] By this point, Mr. Klatt had retained counsel, Mr. Tighe, to act on an anticipated lawsuit. Mr. Tighe in turn had retained Professor Kodilinye to provide an opinion on Saint Lucian law.

[89] While staying in another part of the Resort, the Klatts returned to the Villa, which was unoccupied at the time, and videotaped the plunge pool steps and other parts of the Villa.

[90] During their December 2009 visit, the Klatts also met with Mr. William in their room at the Resort, questioning him about the events of January 5, 2009. They videotaped the meeting without Mr. William’s knowledge.

Subsequent developments in 2010-2020

[91] Several developments affected Mr. Klatt’s health status in the years after his initial recovery from the re-injury to his leg.

[92] The parties differ on the nature and significance of these developments.

[93] According to the Sandals defendants, based on his medical records and expense claims, for most of 2010, Mr. Klatt had little trouble with his left knee. On January 11, 2010, Dr. Mylonas of Athlete’s Care described Mr. Klatt as “Doing good. ROM [range of motion] full.” On February 22, 2010, Dr. Mylonas noted that Mr. Klatt was “Doing great. Full ROM.”

[94] Mr. Klatt testified, however, that he never recovered his athletic lifestyle. He could no longer enjoy his favourite activities, from cycling to workouts in the gym. Mr. Klatt’s son Derek Klatt confirmed in his testimony that his father became more sedentary after the re-injury.

[95] Derek indicated that his father curtailed many other activities in the aftermath of the injury and surgeries. It was Derek’s evidence that his father required his assistance in maintaining the Caledon Property, as he could not climb a ladder to hang Christmas lights, look after the pool, chop wood for the wood stove, or maintain the wooded back area of the lot. Derek described how after the fall he no longer played golf, hockey, tennis, or basketball with his father. Mr. Klatt’s coaching of Derek’s soccer team was limited to providing verbal direction only on drills.

[96] It was Derek Klatt’s evidence that since the fall he has noticed that his father has poor balance and is much weaker. He has observed that his father has gained a significant amount of weight and that he is much less muscular.

[97] Derek Klatt also testified that he has observed his father became anxious and depressed because of the limitations on his mobility.

[98] The change in Mr. Klatt’s lifestyle was observed as well by his long-time friend Santo Caira. Mr. Caira testified that Mr. Klatt’s physical appearance changed dramatically after the accident, as he lost musculature in his lower body.

[99] Mr. Caira also gave evidence that he noticed Mr. Klatt to have limitations in climbing stairs and walking. He also observed changes to Mr. Klatt’s personality resulting from his physical limitations.

[100] These observations were echoed by his childhood friend David Konzelman, who owns the property where Mr. Klatt currently rents an apartment.

[101] Mr. Konzelman testified that he also noticed Mr. Klatt’s limitations in walking and mobility, in addition to his weight gain and muscle loss.

[102] In July 2013, Mr. and Mrs. Klatt moved from the Caledon Property to a large two-storey house on Bloor Street in Etobicoke.

[103] Mr. Klatt claims that he and his wife sold the Caledon Property because Mr. Klatt could not do the work needed to maintain it as a result of his knee issues.

[104] Mr. Klatt’s health issues in 2014 related to the left shoulder tendon tear and some very serious cardiac issues. Mr. Klatt had successful quadruple heart bypass surgery on December 17, 2014. He was discharged home on December 21, 2014.

[105] In 2015, Mr. Klatt experienced various symptoms which limited his activity, but the injury to his left leg did not appear to be a priority concern.

[106] In 2015, Mr. Klatt left MKD to form his own investigative agency, Klatt Investigations.

[107] Mrs. Klatt was diagnosed with cancer in 2017. She passed away in January 2019.

[108] Mr. Klatt continues to own and operate Klatt Investigations. He continues to conduct investigations himself and to organize and supervise investigations carried out by his network of subcontracted investigators.

[109] In addition to the ongoing effects of his reduced mobility, Mr. Klatt continues to manage other health issues such as high cholesterol and high blood pressure with medication. More recently, Mr. Klatt also has been diagnosed as being diabetic.

ANALYSIS

[110] This case raises the following key issues:

a. What is the applicable law governing this case?

b. Are the Sandals defendants liable in negligence?

c. If so, what are the damages to which Mr. Klatt is entitled?

[111] I address each issue in turn.

What is the applicable law governing this case?

[112] To what extent do the laws of Saint Lucia, where the action took place giving rise to the claim, govern this claim?

[113] The Supreme Court of Canada summarized the rationale for the rule of lex loci delicti — according to which, as a general rule, the law to be applied in torts is the law of the place where the activity occurred — in Tolofson v Jensen, [1993] 3 S.C.R. 1022, at p. 1050-51:

The rule has the advantage of certainty, ease of application and predictability. Moreover, it would seem to meet normal expectations. Ordinarily people expect their activities to be governed by the law of the place where they happen to be and expect that concomitant legal benefits and responsibilities will be defined accordingly. The government of that place is the only one with power to deal with these activities.

[114] In the Agreed Statement of Facts, the parties concur that the plaintiff’s tort or occupiers’ liability claim is governed by the law of Saint Lucia, including the determination of negligence and contributory negligence, and the available heads of damages.

[115] Professor Gilbert Kodilinye gave evidence on behalf of Mr. Klatt with respect to the application of the tort laws of Saint Lucia to the incident.

[116] Professor Kodilinye is a Professor Emeritus at the University of the West Indies in Barbados and is also an attorney in private practice in that jurisdiction. He has taught Caribbean and Saint Lucian tort law for over 25 years. He has published a leading text and several scholarly articles on those subjects.

[117] The defendants led no competing evidence as to Saint Lucian tort law.

[118] Professor Kodilinye testified that Caribbean jurisdictions are influenced by one another’s jurisprudence. For example, the decisions of the Jamaican Court of Appeal and the Court of Appeal for Guyana, Barbados and Belize, while not binding, would be of persuasive authority to a Saint Lucian Court.

[119] Professor Kodilinye stated that a Caribbean jurisdiction such as Saint Lucia would also look to decisions from the United Kingdom for guidance, and to a lesser extent, decisions out of Canada, New Zealand, and Australia.

[120] In terms of appeal court decisions, Professor Kodilinye explained that Saint Lucia as a jurisdiction is governed by the Organisation of Eastern Caribbean States (OECS) Court of Appeal, which also governs the states of Grenada and Saint Vincent.

[121] Professor Kodilinye’s opinion was that decisions out of the OECS would be binding on a Saint Lucian court regardless of whether the case originated from another jurisdiction.

[122] Professor Kodilinye stated that the legislation applicable to this case is the Occupiers’ Liability Act, 1957, 5 & 6 Eliz. II, c. 31, as incorporated into the laws of Saint Lucia by Article 917A of the Civil Code of Saint Lucia, Chap. 4:01, as amended.

[123] Under ss. 2(1) and (2) of this Act, the duty owed by an occupier is a “‘common duty of care’ to all [his] visitors”, that duty being “a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

[124] The defendants have admitted that they were the occupiers of the Resort at the relevant time for the purpose of the Act, and that therefore this duty of care was incumbent upon them.

[125] Section 2(4) of the Occupiers’ Liability Act, 1957 directs that in assessing the proper discharge of the duty of care to visitors, “regard is to be had in all the circumstances”.

[126] Professor Kodilinye characterized this assessment as an analysis of what is reasonable and practicable in the circumstances.

[127] According to Professor Kodilinye, the analysis under s. 2(4) of the Act is broad. A Saint Lucian court would consider a number of factors in assessing whether the duty of care was properly discharged, including the physical characteristics of the premises; the time of day (or night) of the incident; lighting levels; the weather conditions; the expected visitors to the premises; the presence of warning signs or notices; access to the area of the incident; safety measures such as handrails; and frequency of use, among others.

[128] These factors were addressed by the court in the Jamaican case of Thompson v. Renmote Mews, 2006 SC 115 (Supreme Court of Jamaica), where a hotel property was found to have failed to discharge its duty by failing to ensure that the bathtub in which the plaintiff fell possessed the relevant safety features.

[129] Professor Kodilinye also gave evidence that in assessing whether the defendants had properly discharged their duty of care, a Saint Lucian court could consider whether the Resort was complying with the applicable building codes at the time of the fall.

[130] One applicable such code is the Saint Lucia National Standard (SLNS) – Specification for Tourist Accommodation. Under this Standard, the Saint Lucia Bureau of Standards is a local agent for the British Standards Institute (BSI). Under BSI Standard BS 5395-1:2000, “Stairs, Ladders and Walkways – Part 1: Code of practice for the design, construction and maintenance of straight stairs and winders”, any staircase with “two or more rises should have a continuous handrail to provide guidance and support to those using the stair.”

[131] Professor Kodilinye also expressed some views on the Sandals defendants’ liability in the circumstances of this case.

[132] The Sandals defendants argue that Professor Kodilinye’s evidence as to his opinion on the ultimate issue before this court as to the liability of the defendants should be disregarded.

[133] I agree. Professor Kodilinye’s expertise ends at the statement of the governing law of Saint Lucia.

Are the Sandals Defendants liable in negligence?

[134] Applying Saint Lucian law on negligence, I must determine whether the Sandals defendants discharged their duty of care in the circumstances, in light of the record.

[135] The evidence in the record concerning Mr. Klatt’s fall on the Villa’s stairs down to the plunge pool consists largely of the first-hand recollections of those present on the evening of the accident.

[136] Mr. Klatt recalled that it was overcast, misty, and humid at the time of the fall. He stated his belief that the bottom of the stairs was wet as a result.

[137] Mr. William, the Resort employee who attended the scene shortly after Mr. Klatt’s fall, also gave evidence that the weather on the evening of the fall was humid and misty, which is common for that time of night in Saint Lucia.

[138] Mr. William explained that as the hot daytime weather cools down, the accumulated humidity tends to condense and result in dew or light precipitation at night.

[139] Mr. William testified that he personally observed the stairs in question to be damp as he assisted Mr. Klatt back up the stairs to the bedroom after the accident.

[140] According to Mr. Batiste, who authored the incident report on Mr. Klatt’s fall, the steps were certainly dry. Mr. Batiste completed the brief incident report after the accident and made no mention of the conditions at the time.

[141] Mr. Klatt also identified that there may have been leaves or debris on the stairs.

[142] Returning to the duty of care owed by the Sandals defendants, I find it is foreseeable that the stairs to the plunge pool would need to function while wet and with the expected presence of debris, both during daylight and at night.

[143] It was Mr. Klatt’s evidence that the fall occurred when it was dark. He testified that the light to illuminate the lower section of stairs down to the pool was not functioning at the time of the incident.

[144] Mr. Klatt testified that he and Mrs. Klatt had complained about the malfunctioning light at least three times before the incident. Mr. Klatt recalled that each time he reported the issue with the light to Sandals staff, his complaint was logged into a computer.

[145] Mr. Klatt stated that the defendants took no steps to repair the light.

[146] It was Mr. Batiste’s evidence that the Resort was not able to locate any front desk logs with respect to the Klatts’ complaints about the light.

[147] The Resort was also unable to locate any housekeeping logs or engineering department logs to show what repairs, if any, were made to the light. More broadly, Mr. Batiste’s evidence was that the defendants were unable to locate any records at all with respect to the maintenance of the Klatts’ room.

[148] There did appear to be some street lighting overhead, sconce lighting on the upper deck of the Villa, and a light at the bottom of the pool, but these would unlikely be sufficient to cast light on the stairs. Mr. Batiste testified that while it was dark, there was sufficient light for him to see Mr. Klatt.

[149] Mr. William stated that after the accident, he arranged for another maintenance worker to reset the breaker and replace the burnt-out bulb.

[150] While I find Mr. Batiste a credible witness with respect to the operations of the Resort and the role he played the evening of the accident, I am not persuaded that his recollection of the state of the stairs can be relied upon after the passage of so many years.

[151] For the same reason, Mr. Klatt and Mr. William’s recollection may be suspect as well. For this reason, it is helpful to look to other contextual factors.

[152] At some point after the accident and before the Klatt’s return in December 2009, new lights were installed between the second level of the Villa and the plunge pool area. These lights were placed in a different section of the wall, closer to the surface of the stairs, as can be seen in the video taken by the Klatts during their return visit in December 2009.

[153] What is the significance of these subsequent repairs to the Villa lighting? There does not appear to be a case applying Saint Lucian law directly on point to these factual circumstances.

[154] Professor Kodilinye was asked to consider the Jamaican Court of Appeal case of Victoria Mutual Building Society and Barbara Berry, SCCA S4/2007. He stated that while not binding on a Saint Lucian court, it would be of persuasive authority.

[155] In Victoria Mutual, the plaintiff tripped over a step while proceeding from one area of a building to another. The step was later remodelled and replaced with a ramp with railings. On appeal, the court found that these post-incident repairs clearly pointed to the fact that the original step could have been poorly constructed and unsafe, noting that (at para. 30) “[t]he fact that the appellant carried out a remodeling exercise subsequent to the respondent’s fall makes it obvious that it was aware that the step posed a substantial risk to all persons who lawfully traversed its building. A clear inference can be drawn that the step was dangerous.”

[156] The plaintiffs argue that the Canadian decision of Sandhu (Litigation Guardian of) v. Wellington Place Apartments, 2008 ONCA 215, 291 D.L.R. (4th) 220, in which the defendant installed protective window screens after a young child fell from the window of a high-rise apartment building, provides an analogous case.

[157] The Court of Appeal for Ontario in Sandhu found that the fact that the repairs were made quickly and inexpensively after the accident was evidence from which it could be inferred that the defendants failed to meet a reasonable standard in keeping the building in good repair. The court held that the repairs could also be considered as evidence of the defendants’ failure to take reasonable care.

[158] According to Mr. Klatt, the design of the stairs themselves also contributed to the hazard posed.

[159] Mr. Scott Walters, an engineer, testified as an expert at trial on behalf of Mr. Klatt.

[160] Mr. Walters has particular expertise in human factors and human environment analysis, which in the context of stairway analysis relates to the optimal design of staircases to account for human factors and known fall dynamics.

[161] Mr. Walters did not attend the site of the accident in Saint Lucia. His testimony was based on a detailed review of the photographs and videos taken by the Klatts, which contain detailed views and measurements of the steps, and the photographs and schematics taken and prepared by the defendants.

[162] It was Mr. Walters’ opinion that several factors likely caused Mr. Klatt’s fall. These factors included the hazardous conditions on the steps, the slippery surface of the steps and non-uniform tread depths, the lack of handrails, and insufficient illumination.

[163] Mr. Walters stated the steps consisted of broomed concrete with a troweled smooth nosing on the edge of the step. He indicated that the troweled portion of the steps is smooth and as a result would offer a reduced coefficient of friction, making that area potentially more slippery.

[164] According to Mr. Walters, the presence of debris, such as leaves visible in the video taken in December 2009, could further reduce friction and make those steps even more slippery. This risk would be heightened where insufficient illumination would make it more difficult to discern the debris while descending the stairs.

[165] Mr. Walters also elaborated on the risk associated with the step winders. He explained that at the top of the staircase, the steps are wider on the right. As the staircase descends towards the pool, the winders reverse and the stairs suddenly become narrower on the right.

[166] Mr. Walters gave evidence that this difference in tread depth can unexpectedly break the rhythm of a pedestrian’s gait descending the steps, particularly if this difference is not easily visible to an individual coming down the stairs, particularly with insufficient lighting.

[167] Mr. Walters also testified that given the structure of the winders, it is likely that when Mr. Klatt reached that section of the stairs, he would have had difficulty locating the exact edge of the steps, as the illumination would not have been sufficient for him to note the edge.

[168] Mr. Walters opined that if Mr. Klatt’s foot was on the edge of the step and slid off, his foot would continue moving forward and down the edge, and he would fall back. This evidence is consistent with Mr. Klatt’s description of the fall.

[169] It was Professor Kodilinye’s evidence that in assessing liability under the Occupiers’ Liability Act, a Saint Lucian court could consider engineering evidence under the court’s discretionary power under Part 32.2 of the Civil Procedure Rules of the Eastern Caribbean Supreme Court, provided that the court considered this evidence to be “reasonably required to resolve the proceedings justly.”

[170] I find the absence of sufficient lighting, the absence of handrails, and the heightened risks associated with the design of the stairway all were factors resulting in Mr. Klatt’s fall for which the Sandals defendants are responsible. I find the Sandals defendants’ responsibility would not differ whether or not the stairs were wet or covered with debris on the night of the accident.

[171] Therefore, under the Saint Lucian law of negligence, under ss. 2(1) and (2) of the Occupiers’ Liability Act, 1957, 5 & 6 Eliz. II, c. 31, as incorporated into the laws of Saint Lucia by Article 917A of the Civil Code of Saint Lucia, Chap. 4:01, as amended, I find the Sandals defendants failed to discharge “the duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

Voluntary assumption of risk

[172] The first defence the Sandals defendants have raised is voluntary assumption of risk.

[173] Saint Lucian law recognizes volenti non fit injuria, the principle that a party cannot recover damages if it has voluntarily waived or abandoned them.

[174] Under this principle, if the defendant can make out the defence, it has a complete defence to the claim and the plaintiff will be unable to recover any damages. As Professor Kodilinye explains in Commonwealth Caribbean Tort Law, at p.394:

In negligence, the courts speak of ‘voluntary assumption of risk’ rather than ‘consent’. If a defendant is successful in his plea of volenti, he will have a complete defence and the claimant will be unable to recover any damages. It is mainly for this reason that volenti has declined in importance as a defence to negligence actions, and it rarely succeeds today; for, since the introduction of apportionment of loss in contributory negligence cases, the courts have tended to encourage reliance on contributory negligence and to discourage reliance on volenti, on the ground that, in most cases, the fairer solution is that the claimant should have his damages reduced, rather than being unable to recover anything at all.

[175] According to Professor Kodilinye’s textbook, volenti can be established in one of three ways: by proof of an express contract, whereby the claimant agreed to exempt the defendant from legal responsibility; by proof that, even though there was no express contract, there was an express consent to run the risk; or, where there was no express contract and no express consent, by showing that it must be inferred or implied from the facts that the claimant consented to run the risk.

[176] An example given in Professor Kodilinye’s textbook is of a passenger who accepts a lift from a driver whom he knows to be so drunk as to be incapable of driving safely. Such a passenger will be deemed to have been volenti to any negligence on the driver’s part.

[177] According to the Sandals defendants, since Mr. Klatt had already descended the staircase to the plunge pool on the first evening of their stay at the Resort, he assumed the risk voluntarily when he chose to do so on the second evening.

[178] I would not give effect to this argument.

[179] Unlike the passenger recognizing the risks inherent in a drunk driver, Mr. Klatt would not be aware of the range of risks associated with the stairway down to the plunge pool. The fact he navigated the stairway on one evening does not mean he consented to all the risks involved when attempting to navigate the same stairway the next evening.

Contributory negligence

[180] It was the evidence of Professor Kodilinye that contributory negligence on the part of Mr. Klatt would be considered by the court in the determination of responsibility for Mr. Klatt’s fall.

[181] Professor Kodilinye gave evidence that Saint Lucian law recognizes contributory negligence. In Commonwealth Caribbean Tort Law, at p.379, he explains,

Contributory negligence is basically carelessness on the part of the claimant which combines with the defendant’s negligence or breach of duty in bringing about the claimant’s damage. In many cases, the claimant’s negligence will have been a contributing cause of the accident which led to the damage; for example, where he steps into the road without keeping a proper lookout and is struck by a car being negligently driven by the defendant… But the essence of contributory negligence in law is not that the claimant’s carelessness was a cause of the accident; rather, it is that it contributed to his damage. [Emphasis in original]

[182] The test for contributory negligence was referred to by the Supreme Court of Jamaica in Thompson v. Renmote Mews Ltd. 2006 SC 115 (Supreme Court of Jamaica).

[183] In that case, the relevant question was whether the plaintiff entered a bathtub either fully recognizing that it was slippery or not caring about the condition of the bathtub.

[184] The Sandals defendants argue that Mr. Klatt similarly used the stairway to the plunge pool with full knowledge that they were slippery, poorly designed, or badly illuminated, or not caring about their condition.

[185] In this context, the case of Alphonso v. Ramnath, (1997) 56 WIR 183 is an authority on contributory negligence in the Eastern Caribbean Courts. The court in Alphonso defined contributory negligence as when a plaintiff fails to take care in the face of foreseeable harm (at p.6):

Although contributory negligence does not depend on duty of care, it does depend on foreseeability. Just as actionable negligence requires foreseeability of harm to others so contributory negligence requires foreseeability to oneself.

[186] The Court in Alphonso declined to find contributory negligence on the part of the plaintiff because the harm in question was not foreseeable. The Court concluded that the accident would have occurred in the same manner regardless of whether the plaintiff had acted differently.

[187] The Saint Lucian court applied the test for contributory negligence as outlined in Alphonso in Neesham v. Harmony Estates, SLUHCV 200910352, where the plaintiffs were found to be contributorily negligent for 25% of the incident as they ought to have foreseen the risk of being victims of an attack while walking alone late at night after visiting a bar.

[188] Mr. Klatt’s evidence is that he had navigated the stairs once previously on the first evening and once during the second day of their stay.

[189] It is reasonable to expect that Mr. Klatt would have taken care using the stairs on the night of the accident. In Mr. Klatt descended the stairs to the plunge pool in the dark. It was foreseeable that descending stairs in the dark could lead to an accident.

[190] In Victoria Building Society v. Berry, (2008), CA No. 54/2007 (Jamaica Court of Appeal), the Jamaican Court of Appeal found a plaintiff 50% liable for her fall over a step where she had passed over the same step previously that same day. The court held (at para. 33):

It is my view that the respondent had not kept a good lookout. She ought to have known that she should have taken care for her safety, having passed over that step previously on that eventful day. She ought reasonably to have foreseen that if she did not pay attention as she travelled over the step on a second occasion on the day of the accident, she might have injured herself on it. Some degree of fault must be attributed to her. In all the circumstances, the injury sustained by her was partly due to her negligence. She, being contributorily negligent, is 50% responsible for her injury.

[191] While the conditions Mr. Klatt encountered at night were different than those he had experienced earlier, in contrast to Victoria Building Society, Mr. Klatt’s prior exposure to the design of the stairs, the absence of handrails and the lack of lighting heightened his own responsibility to take care on the same stairs on the second evening.

[192] Whether and how much Mr. Klatt drank wine with his dinner the night of the accident is in dispute. In my view, the evidence is insufficient to conclude he had consumed enough alcohol to impair his abilities to navigate the stairs.

[193] I also find the fact that Mr. Klatt was barefoot did not add to the risk, as this pool was private and intended for the use of residents. It would be expected that someone would walk within the Villa barefoot.

[194] In these circumstances, and in light of the applicable Saint Lucian law, I find Mr. Klatt was contributorily negligent for 25% of the accident. Any damages to which Mr. Klatt is entitled will be accordingly reduced by 25%.

[195] I turn now to the question of causation.

Causation

[196] Mr. Klatt submits that his injuries and current medical issues were caused entirely by the defendants’ negligence in relation to the slip and fall of January 5, 2009.

[197] Like Ontario law (Caron v. Omers Realty Corporation et al., 2019 ONSC 1374, at para. 40), Saint Lucian law requires plaintiffs to establish that they suffered damages caused by the alleged breach of the standard of care.

[198] In his text, Commonwealth Caribbean Tort Law, 5th ed. (London: Routledge, 2015), at p, 114, Professor Kodilinye describes the “but for” test to be applied:

The first question to be answered is: did the defendant’s breach of duty in fact cause the damage? It is only where this question can be answered in the affirmative that the defendant may be liable to the claimant. A useful test which is often employed is the ‘but for’ test; that is to say, if the damage would not have happened but for the defendant’s negligent act, then that act will have caused the damage. [Emphasis in original.]

[199] Applying the “but for” test in this case raises three discrete issues: first, the significance of Mr. Klatt’s pre-existing osteoarthritis; second, the significance of the re-injury of Mr. Klatt’s leg after his treatment for the rupture of his quadricep in the accident; and third, the significance of medical conditions not directly caused by the accident.

[200] I address each issue in turn.

The significance of Mr. Klatt’s pre-existing osteoarthritis

[201] The first issue is the significance of Mr. Klatt’s pre-existing osteoarthritis.

[202] The orthopedic experts agree that Mr. Klatt had osteoarthritis in his left knee before any of the events in Saint Lucia.

[203] Osteoarthritis is an inflammatory condition of a joint associated with pain, swelling, stiffness, and loss of function.

[204] Mr. Klatt’s previous family physician, Dr. Taylor, referred Mr. Klatt to Dr. Jason Smith, an orthopedic surgeon, with respect to pain he was experiencing in his right knee in October of 2008. Dr. Smith’s note of October 28, 2008 shows mild patellofemoral joint arthritis in the right knee. However, there is no diagnostic imaging of the left knee before January 2009 indicating arthritic changes in that joint.

[205] Dr. Ogilvie-Harris was qualified as an orthopedic surgeon and gave evidence that Mr. Klatt had osteoarthritis pre-accident, but that were it not for the accident, the condition likely would have remained asymptomatic. According to Dr. Olgilvie-Harris, had Mr. Klatt not injured his left knee in the Saint Lucia accident, he would have been unlikely to experience any natural progression in his left knee arthritis over the next fifteen years.

[206] Dr. Ogilvie-Harris stated that the types of pathology he observed in Mr. Klatt’s left knee, however,, such as the interplay between quadriceps muscle weakness and posterior instability, would predispose him to exacerbation of any pre-existing arthritis.

[207] Dr. Ogilvie-Harris explained that with trauma to the knee such as a quadriceps rupture, the stem cells controlling muscle development shut down, causing the muscle to become thinner and to shrink. He had personally observed this atrophy in Mr. Klatt during his assessments.

[208] Dr. Ogilvie-Harris concluded that Mr. Klatt’s two quadriceps ruptures and subsequent surgeries resulted in significant quadriceps weakness and as a result, a greater likelihood of developing further osteoarthritis in the left knee.

[209] The Sandals defendants’ orthopedic expert, Dr. Waddell, gave his opinion that regardless of the accident, Mr. Klatt was likely going to suffer arthritic pain in his knee over time from his pre-existing osteoarthritis.

[210] In his original report, dated November 4, 2019, Dr. Waddell’s opinion was that Mr. Klatt had osteoarthritis in both of his knees before the accident due to injuries he had sustained as a young man, and that over time that arthritis had worsened.

[211] Dr. Waddell concluded that the condition would have worsened independent of the tendon rupture caused by the fall in Saint Lucia:

In summary, this man sustained a quadriceps tendon rupture in a slip and fall accident in January of 2009. This complicated pre-existing mild to moderate arthritis in his knee as documented by MRI examination. The plaintiff underwent two surgical procedures to address this problem, the second operation being successful in restoring continuity to the quadriceps mechanism giving him active knee extension and satisfactory knee stability. There has been documented very slow progression of arthritic change in his knee as demonstrated by serial MRI examinations and it is my opinion that the knee arthritis is independent of this quadriceps tendon rupture. Furthermore, in my opinion his current level of disability and any future level of disability related to knee arthritis should not be attributed to his quadriceps tendon injury.

[212] The Sandals defendants submit that Dr. Waddell was a neutral and independent expert witness, while Dr. Ogilvie-Harris was by contrast an advocate for Mr. Klatt’s position.

[213] The Sandals defendants also highlight that Dr. Ogilvie-Harris was also a treating physician for Mr. Klatt, thus potentially blurring his duties to Mr. Klatt in his expert testimony.

[214] However, Mr. Klatt argues that there is no legal principle prohibiting experts from also providing treatment to patients who see them for expert assessments. The College of Physicians and Surgeons of Ontario specifically indicates in its advice to members that physicians, whether treating or non-treating, are permitted to give expert evidence so long as the issue on which they are giving evidence falls within their area of expertise and there is no actual or potential conflict of interest.

[215] Mr. Klatt further argues that Dr. Waddell’s opinion should not be relied upon as Dr. Waddell never examined Mr. Klatt in person.

[216] Mr. Klatt relies on cases such as Keech v. Chang, 2009 CanLII 18293 (Ont. S.C.), where the court held that the evidence of the defendant’s expert in a medical negligence action with respect to causation and effects of the injury ought to be given little weight as he had never examined or even spoken to the plaintiff in person.

[217] Mr. Klatt also takes issue with Dr. Waddell’s impartiality and alleges he refers to portions of Mr. Klatt’s medical records selectively to support his theories.

[218] I found both Dr. Ogilvie-Harris and Dr. Waddell to be highly respected and credible experts, whose opinions in this case are well-informed.

[219] But while each provided support in the medical records for their conclusions, where the reports conflict, I prefer the evidence of Dr. Ogilvie-Harris.

[220] Not only did Dr. Ogilvie-Harris observe Mr. Klatt on eight occasions since the accident, but his conclusions are supported by Dr. Chen and others.

[221] Dr. Chen, an expert witness in physiatry, gave his opinion that the result of the injuries Mr. Klatt sustained in Saint Lucia include a loss of range of motion in the spine, right shoulder, and knees; a loss of sensation in the left leg; a loss of physical endurance; a loss of sleep rhythm; a loss of emotional and psychological wellness; a loss of proper gait mechanics and/or determinants; and a loss of skin integrity.

[222] The Sandals defendants highlight that Dr. Chen did not review Mr. Klatt’s complete medical file for his report, and did not have evidence of Mr. Klatt’s prior injuries and osteoarthritis, for example.

[223] Dr. Chen acknowledged that there appeared to be information relevant to Mr. Klatt’s medical history which he did not have when he prepared his opinion. However, he also stated that the information referred to as missing, such as Mr. Klatt’s history of cardiac issues, would be unlikely to alter his conclusions.

[224] To the extent Mr. Klatt’s pre-existing osteoarthritis played a role in exacerbating the damage from the fall, this may fit within the “thin skull” principle.

[225] Professor Kodilinye explained that various tort doctrines form part of Saint Lucian law, including the “thin skull” principle by which a tortfeasor will be liable for damages to a person even if they are particularly or unusually vulnerable to the harm in question.

[226] On this principle, Mr. Klatt relies on the Bahamian Supreme Court decision of Forbes v. Smith (Common Law and Equity 1388 of 2007, delivered February 11, 2009). That case considered this issue in the context of the plaintiff’s pre-existing carpal tunnel syndrome, which was entirely asymptomatic before the accident but became symptomatic after the accident. The court found the defendant liable for the change in the plaintiff’s pre-existing condition, noting (at paras. 13-15):

The law is that the wrong doer must take his victim as he finds him. In Clippens Oil Co v. Edinburgh and District Water Trustees [1907] A.C. 291 at page 303 Lord Collins stated:

In my opinion the wrongdoer must take his victim talem qualem, and if the position of the latter is aggravated because he is without means of mitigating it, so much the worse for the wrongdoer, who has got to be answerable for the consequences flowing from his tortuous act.

This dictum of Lord Collins and the aforementioned principle that a tortfeasor must take his victim as he finds him, impecuniosities and all, has been followed in a number of cases namely Robbins of Putney v Meek [1971] R.T.R. 345, Martindale v Duncan [1973] 1 W.L.R. 574 (C.A.) and Bunclark v Hertfordshire CC (1977) 243 E.G. 381.

Whilst the above dictum was applied specifically to the plaintiff's impecuniosity, it applies equally to any pre-existing physical conditions which were exacerbated or brought to the fore by the actions of the wrongdoer. After all, had the accident not occurred, the plaintiff may well have gone on through life blissfully unaware of her condition and may never have had to deal with it. Unfortunately for the defendant, it was the defendant's negligence that caused the condition to exhibit painful symptoms that required surgical intervention and further treatment. It is at the feet of the defendant that responsibility for the treatment of these conditions must be placed.

[227] In light of the evidence and applicable principles, I find that the accident in Saint Lucia, rather than pre-existing osteoarthritis, was the cause of Mr. Klatt’s ongoing impairments to his left leg and knee.

The significance of the re-injury to Mr. Klatt’s leg

[228] The second issue is the significance of the incident with Mr. Tersigni, following which Mr. Klatt re-ruptured the tendon in his leg, and required further treatment and rehabilitation.

[229] The precise account of what occurred is subject to some dispute. What is clear is that Mr. Klatt dropped by to see Mr. Tersigni on March 3, 2009. Following a stumble while greeting Mr. Tersigni, the tendon in Mr. Klatt’s knee re-ruptured.

[230] The Sandals defendants claim that this “Bear Hug” incident constituted a novus actus interveniens which broke the chain of causation. They argue that Mr. Klatt was well on his way to recovery after the accident when this re-injury set him on a more difficult course of recovery.

[231] Dr. Ogilvie-Harris gave his opinion that the re-injury of the tendon from the incident with Mr. Tersigni was directly tied to the accident in Saint Lucia.

[232] Dr. Ogilvie-Harris’ evidence was that the second tear was likely to occur with any further trauma to the knee, even minor, because the status of Mr. Klatt’s tendon after the first repair was precarious. In other words, as Mr. Klatt tore the tendon so badly due to the accident in Saint Lucia, and given the nature of the initial repair, a second tear was a natural consequence and would have occurred regardless of the Tersigni incident. According to Dr. Ogilvie-Harris, the Tersigni incident was how the re-rupture occurred, but the cause of the re-rupture remained the damage from the Saint Lucia accident.

[233] The Sandals defendants rely on the account provided by Mr. Klatt in his examination that Mr. Tersigni had a habit of enthusiastic greetings and his hug was aggressive enough to pick Mr. Klatt off his feet.

[234] The Sandals defendants also rely on Mr. Klatt’s own statement of claim against Mr. Tersigni when he was a defendant in this action. In his statement of claim, Mr. Klatt alleged that Mr. Tersigni used “unexpected and excessive” force in pulling Mr. Klatt toward him, and failed either to give him any warning or seek his consent.

[235] This claim was eventually dismissed.

[236] While I find that the re-injury to Mr. Klatt’s leg exacerbated the medical consequences of the accident, I accept Dr. Ogilvie-Harris’ evidence that the accident remains the cause of those consequences.

The significance of impairments which may be unrelated to the accident

[237] The third issue is whether and to what extent the Sandals defendants are liable for damages not directly related to Mr. Klatt’s leg injury at the Resort.

[238] Mr. Klatt’s evidence included a range of impairments which the Sandals defendants argue have little if any connection to the fall in Saint Lucia, including high blood pressure, high cholesterol, cardiac concerns, claudication in both legs, chronic obstructive pulmonary disease, sleep apnea, weight gain and diabetes.

[239] Mr. Klatt testified, and the medical records confirm, that since the incident, he has gone on to develop more severe sleep apnea, gained a significant amount of weight, developed diabetes, and undergone a quadruple cardiac bypass procedure.

[240] Mr. Klatt also gave evidence that he has significantly reduced his physical activity level due to the injury to his left quadriceps tendon. Derek Klatt, Mr. Caira, and Mr. Konzelman all gave evidence that they had personally witnessed this decline in activity level.

[241] Dr. Leggatt’s evidence was that these medical issues cannot be irrevocably separated from the natural sequelae of the initial quadriceps rupture.

[242] Dr. Leggatt testified that Mr. Klatt’s current health status remains complex due to the conditions that have developed since the incident.

[243] Dr. Leggatt’s evidence was that Mr. Klatt’s heart disease, diabetes, high blood pressure, and weight gain both have an effect on the status of his left knee, making recovery from his initial injury more difficult, and are compounded by his left knee orthopedic issues.

[244] Dr. Leggatt explained that Mr. Klatt’s knee condition affects his ability to manage his weight, remain active, and subsequently control his cardiac issues, diabetes, and high blood pressure.

[245] It was Dr. Leggatt’s evidence that there is a significant interplay between all of Mr. Klatt’s diagnoses, and that his orthopedic knee issues cannot be separated from the rest of his medical conditions.

[246] Mr. Klatt submits that the contribution of his non-orthopedic medical conditions to his current health status is indivisible from the injury to his knee.

[247] The view proposed is that even in the presence of the other medical conditions Mr. Klatt is currently experiencing, applying the but-for test as outlined in Saint Lucian law, the defendants’ negligence was a necessary cause of the quadriceps rupture. According to Dr. Leggatt’s evidence, that initial rupture continues to contribute to this day to Mr. Klatt’s general health status and other medical conditions.

[248] I accept this view, in part. I find that there is both a category of pre-existing medical conditions unrelated to the accident and a category of medical conditions which arose due to the accident, either directly or indirectly.

[249] The evidence in the record of the pre-accident sleep apnea, blood pressure, cholesterol, and cardiac issues leads me to conclude that damages relating to these conditions is not causally related to the accident in Saint Lucia.

[250] The same cannot be said, however, for Mr. Klatt’s weight gain and diabetes, which form part of the multi-faceted consequences of the injury to Mr. Klatt’s left leg at the Resort.

[251] Therefore, it is important to distinguish between the limitations Mr. Klatt has experienced and will experience as a result of the injury in the Saint Lucia accident, and those which are caused by other medical conditions which pre-date the accident or which have no connection to the accident.

[252] I turn now to the question of damages.

What are the damages to which Mr. Klatt is entitled?

[253] Mr. Klatt asks the court to award the following damages:

General Damages $225,000.00 Pre-Judgment Interest $103,125.00 Future Cost of Care $1,091,583.00 Special Damages $64,300.95 Pre-Judgment Interest $17, 682.76 TOTAL $1,501,691.71

[254] I address each head of damages below.

[255] Under Ontario conflicts law, while the available heads of damages are a matter for the lex loci, the quantification of damages is a matter for the lex fori.

[256] The applicable law governing procedural matters, including assessment of quantum of damages under the actionable heads of damage, is the law of Ontario.

[257] This distinction between the laws governing the determination of available heads of damage and the specific quantification of those damages was confirmed by the House of Lords in Harding v. Wealands, [2006] UKHL 32, and later in Maher v. Groupama, [2009] EWCA Civ 1191 and Cox v. Ergo Versicherung AG, [2014] UKSC 22. These decisions are consistent with the Supreme Court of Canada conflict of laws decision of Tolofsen v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022.

[258] In Somers v. Fournier (2002), 2002 CanLII 45001 (ON CA), 60 O.R, (3d) 225 (C.A.), the Court of Appeal for Ontario confirmed (at para. 51): “General conflict of law principles regarding damages distinguish between an entitlement to damages and the quantification or measurement of damages. Remoteness and heads of damages are questions of substance governed by lex loci delicti, whereas the quantification or measurement of damages is a question of procedure governed by the lex fori.”

General Damages

[259] It was Professor Kodilinye’s evidence that Saint Lucian law permits claims for general damages. As outlined in the fifth edition of Professor Kodilinye’s text, Commonwealth Caribbean Tort Law, 5th ed. (London: Routledge, 2015), ch. 14, these damages are generally assessed in the context of a) the nature and extent of the injuries sustained; b) the nature and gravity of the resulting physical disability; c) the pain and suffering which had to be endured; d) the loss of amenities suffered; and e) the extent to which, consequentially, the claimant’s pecuniary prospects have been materially affected.

[260] There was substantial evidence at trial as to Mr. Klatt’s left knee injury and subsequent knee issues.

[261] For example, Mr. Klatt was seen by Dr. Cameron on October 5, 2010. Dr. Cameron’s clinical notes and records document a restricted range of motion in the knee to 110 degrees rather than the normal 130 degrees.

[262] Mr. Klatt saw Dr. Frank Tran through Athlete’s Care on November 2, 2010.

[263] Upon examination, Dr. Tran observed moderate swelling of the left knee, a restricted range of motion of 125 degrees rather than the normal 130 degrees, and knee pain. Dr. Tran also noted a partial tear of the left quadriceps muscle, visible on an MRI. He provided Mr. Klatt with viscosupplementation by way of treatment.

[264] Mr. Klatt saw Dr. Veronica Wadey on November 3, 2010. In her report, Dr. Wadey notes a quadriceps lag and numbness at the surgical site, and notes that Mr. Klatt exhibited three out of four signs for posterior cruciate ligament instability.

[265] Dr. Wadey saw Mr. Klatt again on February 25, 2011, when she noted a 2 cm difference between his left and right quadriceps, with the left being smaller, a left quadriceps lag of 5 to 10 degrees, and weakness.

[266] Mr. Klatt saw Dr. Mark Angelini on November 9, 2010. Dr. Angelini’s report indicates that Mr. Klatt presented with a lot of scar tissue in the left knee and a palpable gap at the top of his kneecap in the centre portion of the quadriceps tendon.

[267] Dr. Angelini recorded evidence of a recurrent and chronic quadriceps tendon tear, and weakness of the quadriceps muscle related to the torn quadriceps tendon.

[268] Mr. Klatt was assessed by Dr. Michael Clarfield on September 5, 2014. Dr. Clarfield noted swelling of the left knee and diagnosed a posterior cruciate ligament tear.

[269] Mr. Klatt has received a wide range of treatments since the accident.

[270] For example, Mr. Klatt has seen Dr. Mylonas at Athlete’s Care for chiropractic and massage treatment, he has visited Horseshoe Hills Massage and Albion Hills Physiotherapy for massage, and he has visited the Acupuncture and Massage Healing Centre.

[271] While Mr. Klatt’s treatment has focused on the injured left knee, he also has received treatment for his right knee. Mr. Klatt’s evidence is that his right leg is tired and sore due to overcompensating for the limited movement and pain in his left knee following the injury.

[272] Dr. Leggatt has seen Mr. Klatt over several years since the accident.

[273] It was Dr. Leggatt’s evidence that Mr. Klatt’s knee injury, subsequent complications, and residual weakness and instability have limited Mr. Klatt’s ability to perform his daily activities over the last ten years.

[274] Dr. Leggatt indicated that he has observed a steady decline in the condition of Mr. Klatt’s left knee and related health issues over the last decade.

[275] While Dr. Leggatt acknowledged that Mr. Klatt continues to experience other health conditions, such as diabetes, heart disease, high blood pressure and sleep apnea, his view is that these conditions are compounded by the ongoing problems with his left knee.

[276] Dr. Leggatt’s also highlighted the connection between Mr. Klatt’s left knee issues and his weight gain. The left knee issues have affected Mr. Klatt’s mobility, which in turn has prevented him from engaging in his usual physical activities, which has resulted in additional weight gain.

[277] Dr. Leggatt explained that this weight gain has put more stress on Mr. Klatt’s already compromised joint and can also cause the degenerative process in the knee to worsen.

[278] Dr. Leggatt concluded that Mr. Klatt’s left knee issues have impacted Mr. Klatt’s overall health.

[279] In his written submissions, in light of the impairments related to the accident, Mr. Klatt asks the court to award him general damages of $225,000 for pain and suffering and loss of amenities of life.

[280] The Sandals defendants argue that even were the court to accept in total the evidence Mr. Klatt cites in support of an award of that magnitude, an award in that range would be unprecedented, falling well beyond the range of awards Canadian courts have given for injuries similar to those of Mr. Klatt.

[281] The Sandals defendants submit that the appropriate range of non-pecuniary damages in this case is from a low of $25,000 to a high of $110,000, depending on the findings of fact the court makes, and before the application of any reduction for contributory negligence.

[282] In Andrews v. Grand & Toy Alberta Ltd. 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, Chief Justice Dickson held that in determining non-pecuniary damage awards, courts should consider the individual situation of the injured person, including whether they have experienced losses in amenities and enjoyment of life, and how those losses might be addressed.

[283] A key principle in the Canadian case-law on quantifying general damages is consistency. It is difficult to find a case analogous to the particular factual matrix in this case. That said, the case law may provide guidance on the range of damages warranted in this case, provided that the year of the decision and subsequent inflation is accounted for.

[284] In Eblaghie v. Lee, 2010 BCSC 703, 9 B.C.L.R. (5th) 363, a 37-year-old counsellor suffered a medial meniscus tear and a patellofemoral derangement of her right knee, an anterior talofibular ligament injury to her right ankle, and low back injuries when she was hit by a car while crossing a street in a marked crosswalk. She was seen at the hospital shortly afterwards, and released after being assessed.

[285] The evidence in Eblaghie showed that before the accident, the plaintiff had a busy schedule involving travelling, overseeing activities and trips, acting as an emcee at social events, and playing a large part in performances and traditional dances. After the accident, she lacked the energy to do most of the things she had done before. The trial judge recognized that the calculation of non-pecuniary damages had to reflect not only the physical and psychological effects of the accident, but also the plaintiff’s overarching frustration at no longer being the “human dynamo” she once was. (at para. 49)

[286] In Eblaghie, while the plaintiff was able to continue her counselling practice, she had to move the practice closer to her home, and her husband did the majority of the household chores. By the time of trial, three years later, her condition had improved greatly, but she was still troubled by occasional headaches, the need to stretch her neck, low back pain, pain in both knees, pain in the right ankle, reduced energy, and an inability to multitask. She also had nightmares and was anxious and upset when travelling in a car. The court awarded her $60,000 in non-pecuniary damages.

[287] In McNulty v. Edmonton (City), 2011 ABQB 297, 514 A.R. 1, a 58-year-old plaintiff tore his quadriceps muscles when he fell off a deck at a community hall. He suffered significant injuries which required surgery and a thigh-to-toe case. The trial judge concluded that the plaintiff was unable to return to work as a welder for five years.

[288] In McNulty, as of the date of the trial, 11 years after the accident, the plaintiff was working. He had gained about 25 pounds. He lacked a full range of motion and strength in his right knee, and experienced pain in his right knee area in addition to other mobility constraints. The plaintiff had played soccer professionally and remained an avid soccer participant until the accident. Following the accident, he never resumed participation at that level. Additionally, he suffered from depression and used alcohol to self-medicate.

[289] In all those circumstances, the trial judge in McNulty awarded the plaintiff non-pecuniary damages of $85,000.

[290] In Ouellette v. Hearst (Town) (2002), 33 M.P.L.R. (3d) 295 (Ont. S.C.), aff'd 2004 CanLII 36122 (ON CA), 70 O.R. (3d) 204 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 226, a 36-year-old plaintiff was injured when a utility pole fell on his vehicle. As a result, the plaintiff hit his knee on the steering wheel, and suffered both knee and back injuries. The plaintiff had an operation to remove the meniscal tear.

[291] In Ouellette, the plaintiff was a manual labourer at a mill who also participated in a range of sports and outdoors activities including snowmobiling, hunting, fishing, hockey, tennis, and baseball.

[292] By the time of the trial, the plaintiff in Ouellette was no longer working. The trial judge found that the combination of a poor knee and a bad lower back was particularly disabling for someone whose lifestyle involves much lifting. The plaintiff required surgery and other medical treatments for his unstable knee, though the prognosis for the knee remained poor. In all the circumstances, the trial judge awarded the plaintiff general damages of $110,000.

[293] Each of these cases has some analogous aspects to this case.

[294] Mr. Klatt was able to resume work shortly after the accident. He has regained some of his pre-accident mobility. The limitations to his social and recreational life, however, remain significant. The injury arising from the accident has led to a loss of enjoyment in areas that had been particularly important in Mr. Klatt’s life pre-accident.

[295] In calculating general damages, I also distinguish between those limitations in Mr. Klatt’s life which were caused by the accident in Saint Lucia, and those that may be tied to other medical conditions, such as Mr. Klatt’s cardiac issues.

[296] In the circumstances of this case, and the range of analogous cases under Ontario law, I find that general damages of $90,000.00 are warranted in this case.

[297] These damages are subject to pre-judgment interest calculated pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43

Cost of Future Care

[298] The single largest part of Mr. Klatt’s claim is his claim for the money he contends he needs to pay for the care he will need in the future.

[299] According to Mr. Klatt, he needs almost $1.1 million to cover the cost of caring for him in the future.

[300] Mr. Klatt relies on the expert evidence of Ms. Johanna Baker, an occupational therapist who was qualified to give expert evidence on the quantification of future care needs and costs, and Mr. Ian Wollach, an accountant with RSM Richter who was qualified to give evidence in damage quantification.

[301] The leading case on determination of future care entitlements and cost is the Supreme Court of Canada decision of Andrews. The court in Andrews set out that the purpose of future care awards is “full compensation” — that is, the plaintiff is to be given damages for the full measure of plaintiff’s loss, as best as can be calculated.

[302] In the British Columbia trial decision of Aberdeen v. Township of Langley, Zanatta, Cassels, 2007 BCSC 993, 35 M.P.L.R. (4th) 233, rev’d on other grounds, 2008 BCCA 420, 50 M.P.L.R. (4th) 1, the Court confirmed that while the standard in establishing entitlement to future care costs remains “full compensation”, a plaintiff need only establish medical justification for the costs claimed, and not medical necessity (at para. 198):

I have concluded that full compensation as espoused in Andrews and Milina requires that there should be medical justification for a cost of future care expense and the expense must be reasonable. As I noted, the inquiry is more directed to the fact-based determination of whether each individual item claimed for a cost of future care expense is medically justified, rather than approaching the question from a purely functional analysis of whether a particular item will make the plaintiff whole again. I have rejected any suggestion that medical necessity is a test; rather, it is one of medical justification.

The implications of a total knee replacement

[303] One of the key issues arising in the assessment of future care costs is the likelihood that Mr. Klatt will require knee replacement surgery.

[304] In Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, the Supreme Court held that "A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation."

[305] In Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622, at pp. 634-35, Doherty J.A. of the Court of Appeal for Ontario elaborated on the “real and substantial risk of future pecuniary loss” standard:

A trial judge who is called upon to assess future pecuniary loss is of necessity engaged in a somewhat speculative exercise: Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, 8 A.R. 182, 3 C.C.L.T. 225, 83 D.L.R. (3d) 452, 19 N.R. 50, [1978] 1 W.W.R. 577, at pp. 249-50 S.C.R. The ultimate questions to be determined – will the plaintiff suffer future loss and, if so, how much? – cannot be proved or disproved in the sense that facts relating to events which have occurred can be proved or disproved. A plaintiff who seeks compensation for future pecuniary loss need not prove on a balance of probabilities that her future earning capacity will be lost or diminished or that she will require future care because of the wrong done to her. If the plaintiff establishes a real and substantial risk of future pecuniary loss, she is entitled to compensation: Schrump v. Koot (1977), 1977 CanLII 1332 (ON CA), 18 O.R. (2d) 337, 4 C.C.L.T. 74, 82 D.L.R. (3d) 553 (C.A.), at pp. 340-43 O.R.; Giannone v. Weinberg (1989), 1989 CanLII 4046 (ON CA), 68 O.R. (2d) 767, 33 O.A.C. 11 (C.A.) [leave to appeal to S.C.C. refused (Wilson, La Forest and Cory JJ.), February 8, 1990]. Messrs. Kenneth D. Cooper- Stephenson and Iwan B. Saunders, the authors of Personal Injury Damages in Canada (Toronto: Carswell, 1981), aptly describe the task involved in assessing future pecuniary loss claims, at p. 84:

The different standard of proof which governs most of a damage assessment may be termed “simple probability”. It involves the valuation of possibilities, chances and risks according to the degree of likelihood that events would have occurred, or will occur. This contrasts with “the balance of probabilities”, more familiar in civil actions, which involves an “all-or-nothing” approach.

[Footnotes omitted]

A plaintiff who establishes a real and substantial risk of future pecuniary loss is not necessarily entitled to the full measure of that potential loss. Compensation for future loss is not an all-or-nothing proposition. Entitlement to compensation will depend in part on the degree of risk established. The greater the risk of loss, the greater will be the compensation. The measure of compensation for future economic loss will also depend on the possibility, if any, that a plaintiff would have suffered some or all of those projected losses even if the wrong done to her had not occurred. The greater this possibility, the lower the award for future pecuniary loss: Personal Injury Damages in Canada, supra, at pp. 91-92.

[306] It was Dr. Ogilvie-Harris’ evidence that Mr. Klatt will need a total knee replacement in the near future, and that he will need to decide whether to accept the risks of surgery, which are not quantifiable, or to rely on a cane, walker, or wheelchair for mobility instead.

[307] According to Dr. Ogilvie-Harris, a knee replacement represented Mr. Klatt’s best chance at restoring some level of function.

[308] It was Dr. Ogilvie-Harris’ evidence that the risk of re-rupture of the tendon during surgery is high, as a great deal of pressure is placed on the quadriceps tendon during the procedure. While Dr. Ogilvie-Harris acknowledged that a skilled surgeon may be able to avoid a re-rupture with care, he also gave evidence that regardless of a surgeon’s skill, in Mr. Klatt’s case, the tendon is deficient and a skilled surgeon could equally be faced with a rupture.

[309] Dr. Ogilvie-Harris explained that individuals who experience a quadriceps rupture during total knee replacement often go on to have very poor outcomes.

[310] Dr. Ogilvie-Harris expressed the opinion that the risk of infection is much higher for Mr. Klatt given that a known risk of infection in total knee replacements is multiple prior procedures to the joint, such as the two previous repairs in Mr. Klatt’s case. Dr. Ogilvie-Harris highlighted that Mr. Klatt had actually experienced an ongoing, deep knee infection after the second repair.

[311] Dr. Ogilvie-Harris’ opinion was that in patients who have already experienced a post-surgical infection, the risk of future infection is anywhere from 5 to 20%, and there is no way of predicting in what situation an infection will occur.

[312] Dr. Ogilvie-Harris indicated that an infection would be catastrophic for Mr. Klatt in the context of a knee replacement — it could result in ultimate amputation of the leg at worst and significant weakness in the knee at best.

[313] Dr. Ogilvie-Harris opined that while a successful total knee replacement could reduce Mr. Klatt’s pain levels, his quadriceps weakness would persist. As a result, he would likely still have problems with mobility, navigation of stairs, squatting, and strength.

[314] Dr. Ogilvie-Harris was clear that regardless of the path Mr. Klatt chooses, he will be left with permanent deficits in his left knee and he will never regain normal function of that joint.

[315] Dr. Ogilvie-Harris’s evidence was consistent with the opinions expressed by Dr. Chen, qualified as an expert on physiatry.

[316] Dr. Chen expressed the opinion that even were Mr. Klatt to undergo a knee replacement that was successful from an orthopedic perspective, due to his existing left knee issues, he would likely be left with ongoing pain and reduced mechanical range of motion.

[317] Dr. Chen explained that even if the knee replacement resulted in improvement in these conditions, they would not be completely eliminated and he would continue to experience effects in his daily activities.

[318] It was Dr. Chen’s opinion that based on his subjective assessment of Mr. Klatt through the questionnaire and history, and the objective physical examination, Mr. Klatt’s post-accident lifestyle was altered significantly. He was having difficulty in housekeeping and home maintenance, recreational activities, and self-care, all of which have resulted in disability.

[319] Dr. Chen concluded that Mr. Klatt had likely plateaued in his post-accident recovery and his condition was unlikely to improve.

[320] Dr. Waddell, however, expressed a more optimistic view of the likely prognosis of a knee replacement in Mr. Klatt’s case.

[321] Dr. Waddell acknowledged that the previous tendon repair would make it more difficult to replace Mr. Klatt’s knee, although, a skilled orthopedic surgeon would be able to deal with such challenges. Similarly, Dr. Waddell’s opinion was that infection posed a risk in such surgeries, but there were measures that could be taken to minimize the risk of infection.

[322] In Dr. Waddell’s opinion, the vast majority of people get better after a knee replacement operation. Dr. Waddell stated that he did not believe that Mr. Klatt would require attendant care after undergoing total knee replacement.

[323] I find general agreement in the expert evidence on the likelihood that Mr. Klatt will need knee replacement surgery at some future juncture.

[324] Given the significant risks involved in such a surgery, particularly in Mr. Klatt’s situation of tendon damage and previous infections, I accept Dr. Ogilvie-Harris’ evidence on the nature and degree of risk involved in such a surgery. Therefore, I find that it is reasonable that the cost of future care calculation include contingencies for additional costs relating to potential complications from such surgery.

The cost of future care reports

[325] Turning to Mr. Klatt’s experts on the cost of future care, Ms. Joanna Baker testified to the life care plan she provided for Mr. Klatt.

[326] Ms. Baker explained that from her perspective as an occupational therapist, the knee is a complex, load-bearing joint, and that variance in alignment due to improper tendon attachment can result in weakness in both the knee and also the hip and lower back.

[327] Ms. Baker gave evidence that she had personally observed instability in Mr. Klatt’s left knee, which was consistent with the observations of Ms. Christine Bilyea, who had authored an earlier life care plan for Mr. Klatt.

[328] Ms. Baker relied on a number of medical reports, including those by Dr. Olgilvie-Harris and Dr. Chen, her own clinical experience and observations, as well as information supplied by Mr. Klatt.

[329] It was Ms. Baker’s evidence that Mr. Klatt continues to experience weakness in his quadriceps tendon, which causes instability in the knee. To the extent the status of the knee worsens, Mr. Klatt will experience a further decline in mobility.

[330] Ms. Baker indicated that even if the quadriceps tendon does not fail or re-rupture, Mr. Klatt continues to have ongoing difficulties extending his left leg fully, which limits his mobility, including walking and climbing stairs.

[331] Ms. Baker explained that in preparing her costing, she looked to Mr. Klatt’s current medical and rehabilitative needs, as supported by the medical records. She first costed those items, such as his current use of pain medication, therapies and treatment as a point of departure for forecasting future costs.

[332] Ms. Baker’s evidence was that given the medical documentation of the status and prognosis of Mr. Klatt’s knee, it was reasonable for the life care plan to take into account the eventual need for a knee replacement and any issues related to that procedure.

[333] Ms. Baker gave evidence that the intention of the life care plan is to ensure that Mr. Klatt remains as independent for as long as possible given his limitations. It was her evidence that it is reasonable to expect that as his condition progresses, so would his disabilities, and that this progression is supported by his current medical records. Ms. Baker explained that the records she reviewed indicated that even if Mr. Klatt underwent knee replacement surgery, it may not improve his pain or the stability of his knee joint.

[334] Ms. Baker’s recommendations considered Mr. Klatt’s left knee injury and the resulting, deteriorating capacity for tasks involving knee mobility, such as squatting, kneeling, standing, walking, climbing and reaching below the waist.

[335] Ms. Baker clarified that her life care plan relates to Mr. Klatt’s knee injury, and not to other medical needs he may encounter as a result of his heart issues or other conditions unrelated to the Saint Lucia accident.

[336] The largest expenditure recommended is for personal support care. Ms. Baker explained her conclusion:

Based on all available information, it is reasonable to expect that Mr. Klatt will ultimately require extra-ordinary assistance, and/or assistance at an earlier age, compared with had the SFA not occurred … Further, in the event he does undergo a total knee replacement (TKR) surgery, he will require an extra-ordinary scope of assistance for competing [sic] personal care tasks including meal preparation, dressing/undressing, bathing/showering, bedroom and bathroom hygiene, grocery shopping, transfers and mobility (indoor/community) as he progresses from non-weight bearing to weight bearing, and gradually resumes independent mobility.

[337] Ms. Baker further recommended rehabilitative therapies, including physical therapies, occupational therapy, and psychological therapy.

[338] Ms. Baker also recommended equipment and assistive devices including a knee brace, orthotics, orthopaedic footwear, a rollator walker and wheelchair, in addition to therapeutic safety devices such as grab rails and safety bars.

[339] Ms. Baker’s evidence was that Mr. Klatt’s medical records indicate a progression of his disability over the years, and on that basis, it is reasonable to assume that his disabilities will continue to worsen over time and he will require increased and more specialized care.

[340] The Sandals defendants argue Ms. Baker was not a neutral independent expert but rather a “plaintiff’s expert.”

[341] The Sandals defendants submit that Ms. Baker did not do anything to confirm the accuracy of what Mr. Klatt reported to her. She assumed that he answered her questions honestly.

[342] Further, the Sandals defendants argue that Ms. Baker relied primarily on Dr. Chen’s report, and Ms. Baker’s report therefore suffers from the same deficiencies as Dr. Chen’s report, particularly the reliance on an incomplete medical file for Mr. Klatt.

[343] The Sandals defendants argue that Ms. Baker recommended rehabilitative therapies at a frequency that is excessive and unwarranted. For example, Ms. Baker recommended twelve physiotherapy sessions annually for Mr. Klatt’s lifetime. However, the Sandals defendants point out that there is no medical documentation recommending such services or evidence of Mr. Klatt seeking out such services since 2013.

[344] Similarly, the Sandals defendants take issue with Mr. Baker’s recommendation of monthly massage therapy sessions and chiropractic sessions. The Sandals defendants also challenge the basis for Ms. Baker’s recommendation of occupational therapy and psychology services.

[345] I do not accept the position that Ms. Baker’s recommendations lacked independence.

[346] Overall, I found Ms. Baker’s analysis to be clearly rooted in the range of medical reports with which she had been provided, Mr. Klatt’s information and Ms. Baker’s own clinical observations and experience with life care plans.

[347] Ms. Baker provided medical justification and credible explanations for the likelihood that Mr. Klatt will need attendant care and increased rehabilitative services in the future.

[348] However, I accept the Sandals defendants’ criticism to some extent that Ms. Baker tended to use the high end of ranges for required services and to add additional services, such as future psychology, physiotherapy, massage therapy and chiropractic sessions, for which there is little evidence Mr. Klatt will require at the forecast level of frequency. As a result, a modest discount on the overall cost of future care is appropriate.

[349] In addition to Ms. Baker’s evidence, Mr. Klatt relies on the expert reports of Mr. Wollach with respect to the calculation of the cost of future care.

[350] Mr. Wollach testified that he had prepared two reports, with the second report being updated to the time of trial.

[351] Mr. Wollach explained that in the second report, he undertook calculations based on a lower market rate for personal support worker, housekeeping, and handyman services, as the original rate used by Ms. Baker appeared to be at the high end of the market range. He also indicated that he applied a higher marginal tax rate with respect to Mr. Klatt, based on the understanding that Mr. Klatt was a high-earning individual.

[352] Mr. Wollach explained that he removed vocational assistance from the future care cost calculations on the basis that he understood Mr. Klatt was continuing to work. Finally, he removed the management fee on the understanding that Mr. Klatt is financially sophisticated and would not require assistance in managing his funds, and removed the calculation for past housekeeping assistance as past needs ought not to be costed as part of a claim for future care costs.

[353] Mr. Wollach gave evidence that the effect of all of these changes was to significantly lower the calculated value of Mr. Klatt’s care costs, from $1,428,980 excluding reserves and $1,605,775 including reserves in the first report to $922,062 excluding reserves and $1,091,583 with reserves.

[354] I found the calculations of Mr. Wollach to be reasonable and well-supported.

Conclusion on cost of future care

[355] The Sandals defendants did not lead any competing expert evidence contradicting that of Ms. Baker or Mr. Wollach, or otherwise suggesting that their calculations were not accurate.

[356] I find the recommendations provided by Ms. Baker to be reasonable, but to some extent padded with additional costs and frequency of services. I would address these added costs by discounting the claimed cost of future care of $1,096,583.00 by 15%.

[357] Therefore, I find Mr. Klatt is entitled to the cost of future care in the amount of $927,825.55.

Special Damages

[358] I turn now to the calculation of special damages. It was Professor Kodilinye’s evidence that a claim for special damages is actionable under Saint Lucian law.

[359] According to Professor Kodilinye, Special damages may include medical and care expenses, pre-trial loss of earnings, and other expenses related to the injury, including items such as damaged clothing or the travel costs to obtain medical or care expenses.

[360] Professor Kodilinye further indicated that it must be shown that the expense incurred was a direct result of the breach of duty, and that the expense was incurred as a result of a loss or treatment resulting from the breach of duty.

[361] In chapter 14 of his text, Commonwealth Caribbean Tort Law, Professor Kodilinye states that this may be proven either through documentary evidence, such as receipts, or through oral evidence, where receipts are not available. Citing to the leading cases in Caribbean jurisdictions, Professor Kodilinye notes further that what amounts to “strict proof” is to be determined by the circumstances of each case, and that courts should use a common-sense approach to the determination of special damages that meets the “justice of the case.” (at p.401)

[362] The special damages claimed arise from a range of receipts kept by Mr. Klatt for various expenses over the 2010-2020 period, totaling $64,300.95.

[363] It was Mr. Klatt’s evidence that the expenses all relate to his injury. These expenses include receipts for medication, assistive devices, the cost of treatment relating to post-injury effects, hospitalization, transportation, housekeeping and property maintenance.

[364] Mr. Klatt gave evidence that subsequent to the injury he had received various forms of treatment that he paid for out of pocket including chiropractic treatment at Athlete’s Care and massage treatment at Horseshoe Hills and Albion Hills.

[365] Mr. Klatt testified that while some of these attendances may have also included treatment on other parts of his body not injured in the fall, the primary reason for these visits was to treat his left knee injury and related issues. For example, Mr. Klatt gave evidence that treatments for his right leg and neck were related to his left knee injuries, given the added strain on these areas of his body as a result of the loss of mobility in his left knee.

[366] While this amount reflects a reduction from the initial claim of approximately $73,000.00, it still includes a number of contested expenses which the Sandals defendants claim have little if any connection to Mr. Klatt’s injury.

[367] For example, Mr. Klatt claimed $4,732.45 as the cost of moving from his Caledon property to his new house in July 2013, and $3,729.00 as the cost of installing a security system in his new home.

[368] While I accept Mr. Klatt was no longer able to do many of the chores around the Caledon property as a result of the accident in Saint Lucia, I do not accept that Mr. Klatt was compelled to move houses as a consequence. I would exclude these expenses from the claim for special damages.

[369] Mr. Klatt claimed $3,446.76 as the cost of his original vacation to Saint Lucia in 2009, and over $5,000.00 for his return trip to Saint Lucia in 2010, which was both a vacation and an opportunity to gather information on the accident for purposes of this lawsuit. These expenses were not a consequence of the accident, and I would exclude these expenses from the claim for special damages.

[370] A number of other claims entail too little information to confirm whether these expenses were related to the accident in Saint Lucia.

[371] After reviewing the items claimed, and the bases for the claim, I find the allowable expenses as special damages should be discounted to reflect specific costs relating to expenses required by the accident.

[372] I find an award of special damages in the amount of $35,000.00 to be reasonable and to reflect the allowable expenses.

[373] These damages are subject to pre-judgment interest calculated pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

DISPOSITION

[374] In the result:

(a) The Sandals defendants are liable under the law of negligence in Saint Lucia for Mr. Klatt’s accident at the La Toc Resort.

(b) Mr. Klatt was 25% contributorily negligent.

(c) Mr. Klatt is entitled to general damages of $90,000.00, less $22,500.00 for contributory negligence, for a total of $67,500.00, in addition to pre-judgment interest.

(d) Mr. Klatt is entitled to the cost of future care in the amount of $927,825.55, less $231,956.39 for contributory negligence, for a total of $695,869.16.

(e) Mr. Klatt is entitled special damages in the amount of $35,000.00, less $8,750.00 for contributory negligence, for a total of $26,250.00, in addition to pre-judgment interest.

[375] If the parties cannot agree on costs, Mr. Klatt may provide brief costs submissions (not in excess of five pages, together with a bill of costs) within 21 days of the release of this judgment, to be followed by brief costs submissions from the Sandals defendants (of the same length) no later than 14 days after the receipt of Mr. Klatt’s submissions. Brief reply costs submissions from Mr. Klatt, if necessary, may be submitted seven days after the receipt of the Sandal defendants’ submissions.

Sossin J.

Released: March 29, 2021