BRACEBRIDGE COURT FILE NO.: CV-21-123
DATE: 20220526
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Peter Sierakowski Plaintiff
– and –
Mark Grand and Irma Kucera Defendants
Michael H. Hazan, for the Plaintiff
No one appearing for the Defendants, Mark Grand and Irma Kucera
HEARD: May 25, 2022
REASONS FOR DECISION
DE SA J.:
[1] The Plaintiff, Peter Sierakowski (hereinafter “Sierakowski”), seeks an Order for judgment against the Defendants, who were noted in default on May 20, 2022.
The Accident
[2] Mr. Sierakowski had been renting a room at 1790 Cedar Lane (hereinafter “the Premises”) from the Defendants, Mark Grand (“Grand”) and Irma Kucera (“Kucera”), since approximately August 2017.
[3] On December 24, 2019, Mr. Sierakowski was returning to the Premises when he slipped and fell.
[4] Immediately following the incident, Emergency Medical Services was contacted, and Mr. Sierakowski was taken to the Emergency Room at Muskoka Algonquin Healthcare Hospital in Bracebridge.
[5] As a result of the fall, Mr. Sierakowski broke his right hip. He was taken to the Collingswood General and Marine Hospital for hip surgery.
[6] He underwent surgery to his right hip on December 25, 2019.
[7] Following the surgery, he returned to Muskoka Algonquin Healthcare Hospital in Bracebridge.
Follow-up Medical Treatment
[8] After being discharged, he attended physiotherapy at Lifemark Physiotherapy. While he has not been continuing with the program since the COVID-19 pandemic began, further treatment at Lifemark has been recommended. Mr. Sierakowski indicates that he would like to continue with a physiotherapy program in order to regain flexibility and be able to complete his activities of daily living.
[9] On February 25, 2020, Mr. Sierakowski visited Dr. Collings of Collingwood General and Marine Hospital for a follow-up assessment. At this appointment, Dr. Collings noted some setbacks regarding Mr. Sierakowski’s unlawful use of illicit narcotics.
Current Health Status
[10] Mr. Sierakowski indicates that as result of the injury, he is still in pain. As a result of the surgery, he can only sleep on his left side. He currently walks with a limp and uses a cane daily to ambulate.
[11] As a result of his injury, Mr. Sierakowski is unable to walk long distances, go for nature walks, sit in a car for more than 45 minutes or stand for long periods of time.
[12] He also has been suffering some depression as a result of his injury. However, he has not sought treatment for it.
[13] He has not lost income as a result of the fall as he had already been on disability. Mr. Sierakowski has been receiving Ontario Disability Support payments since approximately 2014 as a result of chronic obstructive pulmonary disease (COPD).
The Action
[14] The Statement of Claim against the Defendants, bearing CV-21-00000123-0000 was issued on November 15, 2021.
[15] The Defendant, Mark Grand, was served with the Statement of Claim on November 16, 2021.
[16] The Defendant, Irma Kucera, was served with the Statement of Claim on November 16, 2021.
[17] While the Defendant, Kucera, initially expressed an intention to defend the action in November of 2021, no steps have been taken in this regard. On January 18, 2022, counsel for the Plaintiff emailed the Defendants asking them to file a Statement of Defence by January 21, 2022 or risk being noted in default. No response was received.
[18] The Defendants were noted in default on May 20, 2022.
[19] Given the impending sale of 1790 Cedar Lane by the Defendants, the Plaintiff has brought this motion on an urgent basis.
Owners of the Property
[20] A title Search of 1790 Cedar Lane revealed that Mark Grand was the owner of the Premises. The Property was conveyed to Ms. Kucera by Mark Grand in May of 2019. In November 2021, this conveyance was set aside.: See Bracebridge (Town) v. Grand, 2021 ONSC 7287.
[21] As noted above, Mr. Sierakowski had been renting a room at the Premises from the Defendants since approximately August 2017
[22] Subsection 3(1) of the Occupiers’ Liability Act (hereinafter the “OLA”) explains that an occupier of a premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises: Occupiers' Liability Act, R.S.O. 1990, chapter 0.1, as amended.
[23] I am satisfied that at the material time, the Defendants, Kucera and Grand owed the Plaintiff, a duty of care in relation to the Premises.
Liability
[24] As set out in the Statement of Claim, the slip and fall related to ice located on the Premises. There is no evidence indicating the fall was related to any negligence on the part of Mr. Sierakowski.
[25] Mr. Sierakowski had no responsibilities regarding the exterior maintenance of the house.
[26] I find the Defendants’ negligence is responsible for the injuries sustained by Mr. Sierakowski.
Damages Sought
[27] The Plaintiff seeks the following amounts in damages:
General Damages $100,000
Future Care Costs $10,000
OHIP Subrogated Claim: $15,519.75
Costs: $21, 275.59
Disbursements: $883.01
Total: $147,678.35
General Damages
[28] In this case, the Plaintiff seeks $100,000 for general damages for the injuries he has sustained through the slip and fall. In support of his position, the Plaintiff relies on the cases of Manzoor Ur-Rahman v. Oma Devi Mahatoo et al, 2014 ONSC 2636; Forrest v. Hull Bus Lines Ltd. et al., [1998] O.J. No. 4832; and Vointsev v. Irina International Tours Limited, 2007 56526 (ON SC).
[29] Where a Defendant’s actions result in physical injury, losses such as pain and suffering and loss of enjoyment of life are compensable as are the losses that will have to be endured in the future. Such loss must be determined on the basis of the effect of the injury on the Plaintiff and not simply by a comparison of awards made in other cases. Koukounakis v. Stainwood (1995), 23 O.R. (3d) (C.A.) at pp. 309; Vointsev v. Irina International Tours Limited, 2007 56526 (ON SC).
[30] In Manzoor Ur-Rahman v. Oma Devi Mahatoo et al, 2014 ONSC 2636, at para. 69, the Court awarded $90,000.00 ($107,669 in 2022) in general damages and $1,500 ($1,794 in 2022) in medical treatment to the plaintiff who injured his hip.
[31] In that case, however, extensive medical evidence was relied upon by the plaintiff which assisted with the quantification of the damages. The injuries were somewhat more severe than those experienced by the Plaintiff in this case. The functional limitations caused by the injury to Mr. Ur-Rahman were expected to impact his employment and personal life indefinitely. Medical evidence tendered demonstrated that Mr. Ur-Rahman was also suffering significant affective distress, with symptoms of depressed mood and anxiety in the severe range.
[32] In Forrest v. Hull Bus Lines Ltd. et al., [1998] O.J. No. 4832, the Court awarded $75,000 ($130,000 in 2022) in general damages to the Plaintiff who suffered a fractured dislocation of his left hip as well as sciatic nerve damage in a motor vehicle accident.
[33] In that case, however, the court took into account Mr. Forrest’s young age, the seriousness of his injuries and the significant impact those injuries had on his quality of life in awarding that amount.[^1] The injuries sustained were somewhat more severe and expected to impact Mr. Forrest’s life for its duration.
[34] In Vointsev v. Irina International Tours Limited, 2007 56526 (ON SC), the Court awarded $65,000 ($90,633.28 in 2022) in general damages to the plaintiff who suffered a fractured left femur, just under the hip which required open reduction internal fixation surgery. In my view, the case of Vointsev v. Irina International Tours Limited is the most similar to the facts presented here.
[35] Having reviewed these cases and the factual similarities and differences with those of the case at hand, and considering the Plaintiff’s personal circumstances, I conclude that the Plaintiff in this case, should be awarded general damages in the amount of $80,000. In arriving at this amount, I have also considered the fact that the Plaintiff’s narcotic use may have impacted the speed of his recovery.
Disposition
[36] I have considered the other amounts sought by the Plaintiff. In my view, the amounts sought for future care at $10,000 are modest in nature and are warranted. I am also satisfied with the costs amount claimed for the action. Accordingly, the Plaintiff is to have judgment as follows:
• General Damages $80,000
• Future Care Costs $10,000
• OHIP Subrogated Claim: $15,519.75
• Costs: $21,275.59
• Disbursements: $883.01
Total: $127,678.35
[37] The Plaintiff is entitled to pre-judgment and post-judgment interest in accordance with sections 128 and 129 of the Courts of Justice Act, R.R.O. 1990, c.C.43
Justice C.F. de Sa
Released: May 26, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Peter Sierakowski Plaintiff
– and –
Mark Grand and Irma Kucera Defendants
REASONS FOR DECISION
Justice C.F. de Sa
Released: May 26, 2022
[^1]: A statutory deductible was also applied as well as the award was decreased by 15% due to the Plaintiff’s contributory negligence for not wearing a seatbelt.