COURT FILE NO.: CV-13-455
DATE: 20210113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BRANDON COOPER
Plaintiff
– and –
SEAN SILVA
Defendant
C. Dorey/K. Clifford, for the Plaintiff
Noted in default
HEARD: January 11, 2021
decision on a motion for JUDGMENT
Tranmer J.
Nature of the Motion
[1] This was a motion for judgment under Rule 19.05, as the only remaining defendant has been noted in default.
[2] The plaintiff did not file affidavit evidence. I ordered that the matter proceed to trial and that oral evidence be presented. The plaintiff testified. Counsel filed a medical brief, Exhibit 1.
[3] The claim was in respect of personal injury damages suffered by the plaintiff when he was assaulted in his own apartment building by the defendant on September 11, 2011.
[4] The injuries suffered by the plaintiff included a seriously fractured left ankle, glass inflicted lacerations to his left arm and a significant stab wound to his right wrist and hand caused by falling onto broken window glass.
[5] The plaintiff claims general damages, prejudgment interest, recovery of the OHIP subrogated claim and costs.
The Background Facts
[6] As a result of the noting in default, the defendant is deemed to admit the truth of all allegations of fact made in the statement of claim.
[7] The plaintiff testified as to the assault and his injuries that were caused by the assault.
[8] The plaintiff is 43 years of age, born December 31, 1977.
[9] Prior to the incident, the plaintiff suffered from psychological issues for which he was being treated and medicated. As a result of those issues, he had been unable to work since 2007. He testified that previously he had worked as a server and bartender in restaurants.
[10] At the time of the incident, he was living with his girlfriend in a 3rd floor apartment. He had been napping on a couch in the apartment. His mother came into the apartment and woke him up. The defendant followed the mother into the apartment a short time thereafter.
[11] The plaintiff testified that although this was a secure apartment building, the front door had been broken for some time permitting access by anyone at any time. He had made complaints about this broken entrance door to the property managers prior to this incident.
[12] The plaintiff did not know the defendant prior to this incident. The defendant was apparently upset that the plaintiff had not picked up his mother from a local detention centre as may have been planned. The defendant became aggressive and agitated in this regard. The defendant told the plaintiff that he was a bad son.
[13] The plaintiff and the defendant became involved in a scuffle. The defendant was pushed outside of the apartment into the hallway. When the plaintiff looked outside of the door to see where he was, the defendant sucker punched the plaintiff in the face. To defend himself, the plaintiff took hold of the defendant in a bear hug. The plaintiff tried to move the defendant towards the stairwell. The plaintiff’s back was to the stairs. The defendant kicked at the plaintiff. The defendant was between the apartment door and the plaintiff. The defendant kicked the plaintiff in the chest area causing the plaintiff to fall backwards and down the stairs.
[14] When the plaintiff landed at the bottom of the stairs, it was clear that his left ankle had been fractured. The plaintiff fell to his left which caused his left hand, wrist and arm to smash into the four panes of a glass window. This caused multiple lacerations up the plaintiff’s arm. The force of the fall caused the plaintiff’s right wrist to land onto protruding broken glass causing a severe laceration.
[15] On the basis of the deemed admissions to the allegations contained in the statement of claim, and the testimony of the plaintiff, I find that the defendant is liable to the plaintiff for assault and that the assault by the defendant caused the injuries suffered by the plaintiff.
The Injuries
[16] The ambulance record reported arterial bleed to left brachial, large laceration/venous bleed to left lower forearm, numerous other smaller lacerations, and swelling deformity to left lower leg/ankle. A closed fracture to the left lower leg was diagnosed. There was a 5 cm laceration on the left anterior upper arm, and arterial laceration on the left anterior upper arm, a 15 cm laceration to the right anterior lower arm and a venous laceration to the right anterior lower arm.
[17] The plaintiff underwent open reduction internal fixation of his left distal tibia on September 27, 2011. Plates and screws were involved.
[18] As will be seen from the OHIP summary, the plaintiff was hospitalized for 43 days. His recovery was hampered because of the injury to his right wrist and left ankle which hindered returned to weight-bearing status.
[19] Dr. Derek Cooke, an orthopedic expert, assessed the plaintiff for the purposes of an independent orthopedic medical assessment and reported August 12, 2014.
[20] Dr. Cooke noted multiple scars around the ankle on the left side. The range of plantar and dorsiflexion was significantly limited. There appeared to be functional inability. The left elbow revealed multiple scars both anteriorly and postural immediately around the elbow. He noted that there may be retained glass in the area. On the right side there was an irregular U-shaped scar around the palmar ulnar side of the wrist and other punctuated scars on the volar aspect of the wrist. There was some decrease in power in the right hand and some diminished sensation.
[21] Dr. Cooke found mild but continuing impairment in the right wrist/hand. He found post-traumatic osteo-arthritic changes in the left ankle associated with healing of the severely fractured dislocation and the pilon articular injuries. There was evidence of post-traumatic arthritis involving the left ankle, which the doctor said may become worse over time. The doctor confirmed that the injury to the left ankle would result in pain with activity, limited mobility, difficulty with stairs and the inability to walk for prolonged periods. He predicted that those impacts from the ankle fracture would continue into the longer term and were likely to worsen as time went on. Dr. Cooke was of the opinion that the likelihood of chronic limitation and pain in the left ankle were very high with possible requirement for further surgical intervention. The ankle injury would limit the plaintiff’s ability to stand, walk and on stairs.
[22] The plaintiff testified about his efforts to recover, and in particular, the prolonged time it took to recover his mobility. He continues to take physiotherapy treatment for his ankle and is also being treated by a pain specialist.
[23] He can no longer run as he did prior to the incident. He admits that he can cycle. He resorts to the use of a cane sometimes due to ankle pain, and on occasion, the pain forces him to abandon activities until it subsides. He cannot stand for long periods of time, for example to do dishes. He testified that stairs are still hard to climb.
[24] His right wrist remains as described by Dr. Cooke.
[25] He continues to display scars on his left arm and right wrist and on his ankle.
[26] His symptoms continue nine years after the incident and would appear, on the evidence, to be permanent with the potential of worsening.
Prior Settlement
[27] Counsel advised that a settlement in respect of the damages suffered by the plaintiff had been reached with the property managers, in the global sum of $30,000. Of this settlement, $10,000 went towards counsel’s disbursements, $1000 was paid towards the OHIP claim and the plaintiff advised that he received something in the order of $15,000 on account of general damages. He did not and has not advanced a claim for any other damages apart from general damages.
The Claims for Damages
[28] Counsel for the plaintiff submitted case law supporting a general damages award in the amount of $70,000 based on a 2006 Ontario Superior Court of Justice case and a Supreme Court of British Columbia decision from 1999, for plaintiffs who suffered similar injuries to this plaintiff.
[29] Counsel advised that an equivalent award of damages at this time would be in the sum of $89,000.
[30] I must take into account that settlement with the property managers resulted in damages to the plaintiff of $15,000 on account of general damages.
[31] I assess the general damages for Mr. Cooper in the amount of $85,000 from which must be deducted the $15,000 paid in the prior settlement. The plaintiff shall have judgment in the sum of $70,000.
[32] The plaintiff is entitled to pre-judgment interest on that sum in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[33] The plaintiff is also entitled to recover the OHIP subrogated interest in the amount of $81,742.57, as documented in Exhibit 1, taking into account the $1000 already paid towards that sum.
Costs
[34] The plaintiff is entitled to costs of the action. I find that partial indemnity costs are appropriate in this case, although at the high-end because counsel were unable to negotiate with the remaining defendant.
[35] Counsel has filed a costs outline claiming costs in the amount of $46,000 on account of fees and for minimal disbursements, the bulk having been covered by the prior settlement.
[36] The costs outline indicates that five lawyers have worked on this file with varying degrees of experience ranging from 1 year to 22 years. The partial indemnity hourly rates claimed are consistent with the Rules. The lawyer time claimed is approximately 178 hours. There is also law clerk time claimed of approximately 40 hours. The hours claimed seem excessive to me in view of the nature of the claims and their quantum, and the fact that the litigation was uncontested so far as this defendant is concerned.
[37] In my view, the costs claimed, in particular the hours claimed, are excessive in the circumstances of this case. Allowing five hours for senior counsel, and reducing the hours claimed by more junior counsel by half and applying the partial indemnity rates claimed results in a costs award in the order of $12,000. I also consider the law clerk time and rates claimed which total $3600. Accordingly, I find that a fit, just and proportional award of costs, reasonably anticipated in the circumstances of this case, would be in the amount of $20,000 plus GST together with the modest disbursements claimed.
Decision
[38] The plaintiff shall have judgment in the amount of $70,000 plus pre-judgment interest. Costs are set for fees at $20,000 plus GST. Disbursements are allowed in the amount of $36.62 inclusive.
Mr. Justice G. W. Tranmer
Released: January 13, 2021
COURT FILE NO.: CV-13-455
DATE: 20210113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BRANDON COOPER
Plaintiff
– and –
SEAN SILVA
Defendant
decision on a motion FOR JUDGMENT
Tranmer J.
Released: January 13, 2021