COURT FILE NO.: CV-17-61827
DATE: 20220707
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
David Beardwood, Heather Beardwood and Broden Beardwood, a minor by his Litigation Guardian David Beardwood
Plaintiffs
- and -
The City of Hamilton
Defendant
Marry Grosso and Kim Jossul for the Plaintiffs
Stephen Chisholm for the Defendant
HEARD: 7- 12 February 2022
JUDGMENT
The Honourable Justice J. Krawchenko
INTRODUCTION
[1] On 25 August 2015, the Plaintiff David Beardwood (“David”) suffered a fractured left tibia as a result of a single-vehicle motorcycle accident at the intersection of White Church Road and Trinity Church Road in the City of Hamilton (“the City”), Ontario.
[2] There was a surface discontinuity in the roadway formed by a longitudinal asphalt lip where the pavement of White Church Road crossed the pavement of Trinity Church Road.
[3] David had previous experience driving a variety of different motorcycles. He stopped riding in 2013 and took it up again a few months before the accident, which occurred while driving in optimal weather conditions.
[4] His accident occurred at a low speed, having left a stopped position at a point in the roadway where he encountered the surface discontinuity which he had seen prior to approaching it.
[5] It is not disputed that the City was/is responsible for the subject intersection.
[6] At the relevant times to this action the Defendant maintained a program of monitoring the subject roadways in accordance with the regulations. Prior to this accident, there had been no reported issues relating to this intersection.
[7] David required two surgeries and follow up rehabilitation, including chiropractic care.
[8] David is married to Heather Beardwood and is the father of Broden Beardwood, both of whom are also Plaintiffs in this action.
[9] The issues in dispute are damages and liability.
DAMAGES – General Damages
[10] There is no dispute that David suffered a significant injury in this accident. He initially underwent an open reduction internal fixation surgery and had a three-month recovery period during which he was non-weight bearing. The “hardware” used in the initial surgery became painful and was removed in a subsequent surgery.
[11] The uncontroverted evidence of Dr. Karabatsos (Plaintiff expert witness in orthopaedics) was that David now has a 13cm scar and a reduced range of motion in his left leg at the knee, with altered biomechanics/gait and atrophy in the calf and quadriceps muscles in his left leg due to ongoing reduction in weight loading to the left leg post-accident. The prognosis is continuing difficulties with pain in the injured knee, hips and back with anticipated deterioration over time leading to a likely total knee replacement within the next decade.
[12] David’s level of pre accident physicality, both in regular day to day activities and well as in his interactions with his son Broden, were reduced by his injury. David has relied upon regular chiropractic treatments which have assisted in his recuperation.
[13] The Plaintiffs submit that the quantification of general damages should be $175,000.00, while the Defendant contents that the appropriate quantum is in the range of between $100,000.00 and $125,000.00.
[14] Based on the nature of David’s injury, his period of recovery and the ongoing challenges associated with same, I assess David’s general damages at $150,000.00. Prejudgment interest would be calculated on this amount at .8% from the date of notice given to the Defendant on 01 September 2015 to date of this judgment.
Family Law Act Claims
Heather
[15] Section 61(1) of the Family Law Act provides for a recovery of damages by family members, in this case the spouse Heather and son Broden. The recovery is meant to provide for a reasonable allowance for loss of income by a claimant who provided nursing, housekeeping and other services to the injured party and to compensate family members of the loss of guidance, care and companionship that they might otherwise have reasonably expected to receive from the injured party had the injury not occurred.
[16] With regards to Heather, there is no dispute that she sustained an actual loss of income in the amount of $10,545.00 while caring for David. She is entitled to this amount as part of her damages claim.
[17] Heather also claims under the heading of loss of guidance, care and companionship and seeks an award of $25,000.00 while the Defendant suggests a range of between $10,000.00 and $15,000.00
[18] Heather testified that post-accident, David continued to do the same things he did at home prior to the accident, but at a slower pace. She further testified that their level of spousal intimacy had also changed. On this issue of intimacy, Heather was candid in her testimony that the business failure that she and David suffered after the accident contributed in large part to a breakdown in this aspect of their marital relationship and it was not solely connected to the injury suffered by her spouse.
[19] On the evidence, I find that the appropriate level of compensation to Heather for loss of care, guidance and companionship as attributable to David’s accident is $15,000.00, which is in addition to her loss of income noted at paragraph 16 above.
Family Law Act Claims
Broden
[20] Broden did not testify at trial.
[21] Evidence regarding the impact of the accident on Broden, as relating to Section 61(1) of the Family Law Act was provided by David and Heather.
[22] At the time of the accident, Broden was 4 years old. During the time of non-weight bearing recouperation, David was at home and spent time with Broden and at one point took great joy in being able to make use of a wheel chair to see Broden off to school. As noted earlier, there was a loss of physicality in the some of the activities shared by David and Broden, specifically in martial arts, but other than that, most activities were modified and father and son were able to enjoy each other’s company.
[23] There was brief mention of Broden’s struggles at school and of his experiencing emotional upset, however, Heather confirmed in her evidence that none of these issues were investigated, nor treated by any professionals.
[24] The evidence of the impact of David’s injury on Broden was very limited. The range of damages suggested by the Plaintiffs is $30,000.00 while the Defendant argues a range of between $5,000.00 and $10,000.00. On the limited evidence before the court, the appropriate amount of damages for Broden is $5,000.00.
Costs Of Care
[25] To the date of trial, David paid $2,850.00 out of pocket for ongoing chiropractic care, over and above what his accident benefit carrier paid.
[26] David has experienced relief through bi-weekly chiropractic treatments but suggested that a weekly regime would be more beneficial in treating his pain and assisting in maintaining his ability to function. I do not disagree with this suggestion.
[27] At a cost of $40 per chiropractic visit with 40 visits per year, the anticipated costs of future treatments would be $1,600.00 per year. Although not in evidence, I accept submissions of Plaintiffs’ counsel that statistically David is anticipated to have a life expectancy of a further 31 years, accordingly the costs of future chiropractic treatments over his lifetime would be $49,600.00.
[28] Past and future care damages are therefore assessed at $52,450.00.
Income Loss – Background
[29] Brent Pyper, a chartered accountant with expertise in economic loss assessments, gave expert evidence at trial.
[30] The Defendant did not dispute the mathematical calculations made by Mr. Pyper regarding income loss. The Defendant did challenge the underlying assumptions to those calculations being that David would have obtained a position as a sterile processing technician, at a higher rate of pay than his pre-accident and historical remuneration.
[31] For a period of 15 years prior to the accident, David worked as a seasonal labourer with Glanbrook Paving and Excavating. He was working for that company when his accident occurred. David did leave Glanbrook Paving between November 2009 and July 2013 when he worked as a driver for Atripco Delivery Service on a part time basis as he had taken on the role of primary caregiver for Broden in his early years.
[32] Throughout his adult life David has worked in construction, oil field work, machine operator, labourer and a licenced DZ commercial truck driver. Subsequent to the accident David also obtained an additional B licence to allow him to drive a school bus.
[33] During the period when David was working part time and caring for Broden, he obtained his high school equivalency certificate and completed a CSAO certification program (a certification required for sterile processing technicians obtained in October 2013).
[34] After receiving his CSAO certificate, David applied for hospital jobs. He received only one response in 2016 for an interview for a potential position as a technical aid in the neo-natal department at McMaster University Hospital. The interview would have taken place while David was recuperating. David elected not to pursue this interview opportunity, having self-assessed that he would no longer be suited for this type of work, given the nature of his injury.
[35] David did not return to Glanbrook Paving after recovering from his accident.
[36] In 2017, David incorporated a company and he and Heather started hauling trailers from the United States into Canada. This business failed for a number of reasons unrelated to the accident and stopped its operations in March 2019.
[37] In 2019, David started working full time for a septic company, but his work was suspended due to the Covid 19 pandemic. David also was experiencing pain and was uncomfortable working in small machines, he would come home sore and found himself in a cycle of pain and discomfort. This led him to seek alternate employment as a school bus driver, which he found more tolerable and better suited for him physically. Although he was on a contract with the school bus company, he was not required to drive due to the pandemic, David took advantage of this opportunity and returned to work for the Septic company in 2020.
[38] There is no question that David has been gainfully employed throughout his life and that his plan to remain in the work force until age 65 is realistic and consistent with his past conduct. The only question is what type of work David would have been doing, but for the accident. The answer to this question has an impact on the quantification of his damages for past and future income loss.
Past Income Loss
[39] As noted earlier, Mr. Pyper’s analysis of past income loss presupposed that David would have gained full time employment, with corresponding pension and benefits as a sterile processing technician.
[40] Based on the evidence, I find that this approach to be speculative and unrealistic, given that David had only one interview opportunity after three years of applications for positions within the hospital.
[41] The more realistic approach is to look at David’s history of earnings over his adult life as a predictor of his future performance.
[42] David’s earnings history used by Mr. Pyper in his analysis indicates that in the five years prior to his accident David’s average employment income was $34,164.00.
[43] David elected to commence and operate his own business from 2016 to 2019. The limited data from this period of time should not be used in attempting to establish a pattern or history of earnings or capacity to earn an income. The ultimate lack of success in this venture was not connected to the injury nor can the financial repercussions be included in this analysis.
[44] With the exception of his self-employed period between 2016-2019, David’s reduction in income and his capacity to earn income can be attributed to his inability to tolerate the type of physical labour jobs that he did prior to 2015 due to the accident.
[45] The evidence showed that David had a reduction in his historical income of $10,000.00 in 2015, $7,866.00 in 2019 and $5,061.00 in 2020. In 2021, he was earning more than his historical pre accident average income. Accordingly, David’s past income loss is found to be $22,927.00.
Future Income Loss
[46] As was the case in the analysis of past income loss, I do not find that David would have obtained employment as a sterile processing technician and do not accept the calculations put forward to support a finding of future income loss based upon the speculative assessment of income flowing from same.
[47] David has returned to his pre accident trajectory of actual and potential earnings capacity. He has always been and continues to be a hard worker, working hours available to him, with the type of work that he has skills and aptitudes to undertake, in this case, driving and machine operating.
[48] It is acknowledged that David will have issues with his knee in the future, which may result in an inability to continue in the more physically demanding work settings and this would result in a reduction of income, in this case that would be the approximate $18,000.00 that he has earned from the septic business. If this did occur at the 10-year post accident mark, or in 2025, David would still have an additional 10 years to his anticipated retirement at age 65. Based upon the analysis of Mr. Pyper, assuming a continuation of work only as a bus driver from 2025 onwards, I find that David’s future income loss would be $188,836.00.
EVIDENCE RELATING TO THE ACCIDENT
[49] The Court heard evidence from David, PC Clushman (the police officer that attended the accident scene) and from the Plaintiffs’ expert Gerry Forbes.
David’s Evidence
[50] At trial, David stated that he left a stopped position, he approached the subject intersection, he encountered a bump, his front wheel went up in the air and he pulled back on the throttle and scooted across the road way to the other side of that intersection where he fell off his motorcycle and was injured.
[51] David described the mechanics of the accident differently to PC Clushman after the accident.
PC Clushman’s Evidence
[52] In his Supplementary Occurrence Report, PC Clushman documented the accident details as described to him by David shortly after the event.
[53] PC Clushman wrote that “The rider indicated that he was north bound on Trinity Church and came to a complete stop at the stop sign located at White Church Road. When the rider went to continue north he was met with some uneven pavement on the road causing his bike to twist. Once this happened the rider lost control and fell off the bike. The rider indicated that he was only traveling about 5-10 klms… The writer believes that the road is in poor condition and this is what caused the rider to fall…”[^1].
[54] I find PC Clushman’s supplementary report to be the most reliable and accurate evidence as to the mechanics of this accident and accept it over David’s testimony at trial. Notwithstanding the different versions of events, the key element of both versions involves David’s coming into contact with the surface discontinuity, also referenced as a bump or uneven pavement.
[55] It should be noted that PC Clushman identified uneven pavement on both sides of the subject intersection in his initial accident report. Also, it is also important to note that PC Clushman did not take measurements of the uneven pavement nor did he report/designate the accident site as a hazard.
Expert’s Opinion Evidence – Mr. Forbes
[56] At trial, Mr. Forbes was qualified as an expert in civil engineering and engineering mechanics, specializing in transportation engineering. He provided opinion evidence in the areas of transportation engineering and related road safety and human factors.
[57] Mr. Forbes based his opinion on the following assumptions:
• Trinity Church Road intersects White Church Road at approximately a 27-degree angle.
• Mr. Beardwood was driving properly, in daylight and clear conditions.
• The pavement surface of White Church Road was higher than the elevation of Trinity Church Road at the time and location of the subject accident.
• There was uneven pavement appearing as seams or joints that were parallel to the centerline of White Church Road and located on both the north and south edge of pavement for White Church Road.
• Mr. Forbes relied upon measurements provided to him by the Plaintiff in photographs. The photographs showed a straight edged ruler set up against the uneven pavement at the accident site, showing differences in elevation of between 3.8 cm and 5.0 cm. As part of his analysis, Mr. Forbes opined that the measurements shown in the photos “could be” inaccurate due to factors such as camera angle, whether the ruler used was being held vertically and the shape of the discontinuity (i.e., if the discontinuity had a rounded corner, the elevation difference shown could be less. Taking these factors into account, Mr. Forbes “adjusted” the heights and assumed the vertical discontinuity to be between 3.5 cm to 5.5 cm.
• Upon entering the intersection of Trinity Church Road at White Church Road, Mr. Beardwood struck uneven pavement, lost control of his motorcycle and fell to the ground.
[58] Relying upon his assumptions noted above, Mr. Forbes concluded that the discontinuity (within the adjusted range he had identified 3.5 – 5.5 cm), coupled with the acute angle of approach, posed a hazard to motorcyclists and were the contributing factors to the loss of control and subsequent fall.
[59] Based upon his review of historical aerial and street photos of the accident site and other roadways in the vicinity, along with an analysis of materials that would have been used in conjunction with other roadwork nearby, Mr. Forbes opined that the subject discontinuity was created after June 2014 in an asphalt overlay operation that was completed in a manner that was not in accord with Ontario Provincial Standards and Specifications (OPSS) and specifically #310- Construction Specifications for Hot Mix Asphalt.
[60] It should be noted that in cross examination Mr. Forbes agreed that the OPSS were not mandatory standards and that failure to follow the OPSS was not equivalent to undertaking or completing a hazardous project.
[61] Mr. Forbes also conceded that he was not an expert in accident reconstruction, nor motorcycle operation and mechanics and agreed that some surface discontinuities pose no issues for motorcycles. In this case, as noted above, he did opine that the angle and height of the discontinuity were the contributing factors to the accident.
[62] Mr. Forbes did not have any specific knowledge regarding the exact location of where Mr. Beardwood came into contact with the vertical discontinuity nor the exact angle of his approach. Additionally, the exact height of the discontinuity at the point of contact was also unknown and was assumed to have fallen within the “adjusted” range of 3.5cm to 5.5 cm.
[63] On the issue of the exact location of the accident this must be viewed in light of the decision in Kamin et al v Kawartha Dairy Ltd 2006 CanLII 3259 (ON CA), [2006] OJ No 435.
[64] In the Kamin decision (a decision of the Ontario Court of Appeal involving the Occupier’s Liability Act as opposed to the Municipal Act) the court stated that:
4.“ …the trial judge was not prepared to find for the appellant unless she was able to identify the precise location of her fall, in my view she erred in her causation analysis by setting too high the onus that that appellant was required to meet.”
The court went on to state that causation needed not to be determined with scientific precision and further as set out at paragraphs 4, 5 and 8 of that decision that:
“…liability is established where the defendant’s negligence caused or materially contributed to the plaintiff’s injury.”
“There was considerable uncontradicted evidence that the respondent’s entire parking lot was in very poor condition…The paving was uneven, with many depressions and fissures…the disrepair was so extensive that it was not surprising that the appellant and her husband were unable to point with precision to the location of her fall…”
“On the record in this case, the failure of the appellant to recall the precise location of her fall should not have resulted in the trial judge’s finding that she had failed in the proof of the cause of her injuries…Had the trial judge not erred in her causation analysis by setting too high an onus for the appellant to meet, there was ample evidence on which to find that the appellant’s injuries were caused, or materially contributed to, by the respondent’s negligence.”
[65] The described discontinuity at Trinity Church and White Church Roads spanned the entire intersection. Much like in the Kamin facts (where the entire parking lot was in disrepair) it is unnecessary for the Court to require the Plaintiffs to pinpoint the exact location of the initial contact with the discontinuity for the purposes of conducting the required analysis of liability under the Municipal Act. There was ample evidence to support the conclusion that the loss of control of the motorcycle was at the very least, contributed to by the existence of the discontinuity. That being said, unlike in Kamin, the ranges in height of the discontinuity were put into evidence in the case at bar and they must be considered in light of the applicable minimum maintenance standards, which will be discussed later in these reasons.
LIABILITY
[66] The Defendant's exposure to liability derives from s. 44 of the Municipal Act, 2001.
[67] Section 44 of the Municipal Act sets out the duty of a municipality with respect to allegations of non-repair of a highway:
44 (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.
(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,
(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
(b) it took reasonable steps to prevent the default from arising; or
(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.
(emphasis added)
[68] The Minimum Maintenance Standards (“MMS”) (a Regulation to the Municipal Act, 2001) noted above, establish the ‘permissible’ surface discontinuities on a roadway, in other words, a roadway is deemed to be in a state of repair if the surface discontinuity height does not exceed the thresholds set out in the MMS as below:
Roadway surface discontinuities
(1) If a surface discontinuity on a roadway, other than a surface discontinuity on a bridge deck, exceeds the height set out in the Table to this section, the standard is to repair the surface discontinuity within the time set out in the Table after becoming aware of the fact. O. Reg. 23/10, s. 9; O. Reg. 366/18, s. 13.
(1.1) A surface discontinuity on a roadway, other than a surface discontinuity on a bridge deck, is deemed to be in a state of repair if its height is less than or equal to the height set out in the Table to this section. O. Reg. 47/13, s. 15.
(2) If a surface discontinuity on a bridge deck exceeds five centimetres, the standard is to deploy resources as soon as practicable after becoming aware of the fact to repair the surface discontinuity on the bridge deck. O. Reg. 23/10, s. 9; O. Reg. 366/18, s. 13.
(2.1) A surface discontinuity on a bridge deck is deemed to be in a state of repair if its height is less than or equal to five centimetres. O. Reg. 47/13, s. 15.
(3) In this section,
“surface discontinuity” means a vertical discontinuity creating a step formation at joints or cracks in the paved surface of the roadway, including bridge deck joints, expansion joints and approach slabs to a bridge. O. Reg. 23/10, s. 9.
[69] The MMS applied to the subject roadway at the relevant times to this action.
[70] As noted earlier, Mr. Forbes opined that the subject discontinuity was created in an asphalt overlay operation that was completed in a manner that was not in accord with the OPSS. Given that the OPSS is a non-binding standard, this is not determinative of liability.
[71] In analyzing the issue of liability under the Municipal Act, I rely upon the Court of Appeal decision in Fordham v Dutton Dunwich (Municipality)[^2].
[72] In Fordham the Court set out a four-part test for determining whether a municipality is liable for a state of non-repair pursuant to s.44 of the Municipal Act, which was as follows:
Part 1- Non-repair: the Plaintiffs must prove on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair;
Part 2- Causation: the Plaintiffs must prove the “non-repair” caused the accident;
Part 3- Statutory Defences: Proof of “non-repair” and causation establish a prima facie case of liability against a municipality. The municipality then has the onus of establishing that at least one defence outlined in s.44(3) applies; and
Part 4- Contributory Negligence: A municipality that cannot establish any of the three aforementioned statutory defences will be found to be liable. The municipality can, however, show that the plaintiff caused or contributed to his or her injuries.
I will deal with each in turn.
Non-Repair
[73] Did the Plaintiff prove on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair? Applying the reasoning of the Ontario Court of Appeal in the Fordham decision at para 28, the reasonableness of the state of repair is determined by examining if the municipality fulfilled its duty to “prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care.” Taking into account the evidence of Mr. Forbes, I find that the existence of a discontinuity at an irregularly angled intersection did create a risk of harm to ordinary reasonable driver such as David and thus find that the road was not in a reasonable state of repair.
Causation
[74] Did the Plaintiff prove the “non-repair” caused the accident? I am satisfied on the evidence that David’s coming into contact with the discontinuity caused the loss of control of the motorcycle, which then led to the accident and injury.
Statutory Defences
[75] As the proof of “non-repair” and causation establish a prima facie case of liability against a municipality, did the municipality meet its onus of establishing that at least one of the three statutory defences outlined in s.44(3) applied? In this case the successful defence is found in the application of the MMS to the discontinuity at issue. As noted earlier, the exact point of initial contact with the discontinuity is unknown, nor was it important in dealing with the first part of the analysis relating to the state of repair. What is significant at this stage of the analysis is the height of the discontinuity, it was not at all clear what the height of the discontinuity was at the site of the accident. It would be unfair to choose the low end of the spectrum and equally unfair to select the high end, accordingly, using the average between the two extremes as determined by Mr. Forbes, the discontinuity would be 4.5 cm which was less than the MMS standard. Using the Plaintiff’s evidence in their own photos, the unadjusted heights of the discontinuity were between 3.8 and 5 cm. In applying either set of measurements, adjusted averages or actual photos, the heights were within the stated threshold, the roadway was therefore deemed to be in a state of repair and the Defendant not liable for damages.
Contributory negligence
[76] Given my findings above, the issue of contributory negligence does not come into play. If the statutory defence had not been made out, I would have found that David did contribute in part to his accident, in not paying sufficient attention to the roadway before him, given that he was initially stopped and that he made his approach to the bump at a low rate of speed allowing him an opportunity to observe the roadway and to adjust his approach if it was required. This was not a case of a high-speed maneuver done under pressure of heavy traffic in poor conditions. I would have assessed his contribution towards the accident at 50%.
DISPOSITION
[77] For the reasons set forth above, the Plaintiffs action is dismissed.
[78] Counsel are encouraged to agree on costs. If they are unable to do so, they may deliver written submissions on costs - the Defendant within 14 days of the date of release of these Reasons for Judgment and the Plaintiff within 10 days of receipt of the Defendant's submissions. Such submissions shall not exceed five (5) double-spaced pages, exclusive of bills of costs or costs outlines and offers to settle. All submissions shall be delivered by email to the Trial Coordinator at Hamilton.
Justice J. Krawchenko
Released: 07 July 2022
COURT FILE NO.: CV-17-61827
DATE: 20220707
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
David Beardwood, Heather Beardwood and Broden Beardwood, a minor by his Litigation Guardian David Beardwood
Plaintiffs
- and –
The City of Hamilton
Defendant
REASONS FOR JUDGMENT
Justice Krawchenko J
Released: 07 July 2022
[^1]: Hamilton Police Services, Supplementary Occurrence Report, Occurrence 15691977
[^2]: 2014 ONCA 891 at paragraph 26