Hennessy v Tyson, 2022 ONSC 6194

COURT FILE NO.: C-125-17

DATE: 20221101

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LAURENE HENNESSY

Plaintiff

– and –

ROY ALLAN TYSON

Defendant

Erika Henderson and Galina Bajenova, for the Plaintiff

No one appearing

HEARD: September 27, 2022

The honourable mr. justice d.j. gordon

REASONS FOR DECISION

1The defendant having failed to delivery a statement of defence, and being noted in default, this matter came on for an assessment of damages at the trial sittings in Kitchener.

Factual Background

2In this action, the plaintiff seeks a damage award for injuries sustained, and related matters, resulting from the negligent operation of a Jet Ski by the defendant on June 20, 2015.

3Laurene Hennessy is presently 59 years of age. She is divorced with two adult children. Mr. Hennessy resided in Kitchener for many years and was employed as a medical administrator for a local neurologist. In 2019, as a result of events related to her injuries, she moved to another municipality in Ontario. Ms. Hennessy is currently employed, on a casual basis, as a diagnostic imaging clerk at the hospital in her community.

4Roy Allan Tyson was described as a former friend of Ms. Hennessy. He resides in Marmora. Mr. Tyson was the owner/operator of the Jet Ski on the date of the accident.

Litigation History

5The statement of claim was issued on February 9, 2017, and personally served on Mr. Tyson on February 12, 2017. He delivered a notice of intent to defend in March 2017, no date being shown on the document. A lawyer was not shown as representing Mr. Tyson. As no statement of defence followed, counsel for Ms. Hennessy submitted a requisition on November 16, 2017, to note Mr. Tyson in default. Such occurred on December 21, 2017.

6Pursuant to Rule 19.02(1), Mr. Tyson is deemed to admit the truth of all allegations of fact made in the statement of claim, including:

i) Mr. Tyson was the owner/operator of the Jet Ski;

ii) Ms. Hennessy was a passenger on the vessel;

iii) On June 20, 2015, Mr. Tyson invited Ms. Hennessy and her daughter to be passengers on the Jet Ski;

iv) On that date, Mr. Tyson drove the Jet Ski in a reckless and negligent manner, causing Ms. Hennessy to be thrown off of the vessel and crash into the water; and,

v) Ms. Hennessy sustained serious injury, has undergone medical treatment, incurred expense, and will incur future expense with respect to those injuries.

Evidence

7Ms. Hennessy was the only witness providing oral testimony. Ms. Bajenova skillfully invited her to talk about the accident, her life before the event, injuries sustained, treatment, and her life since the event. Ms. Bajenova also presented a Document Brief containing:

a) Canada Revenue Agency income tax records for Ms. Hennessy;

b) Hospital notes and records;

c) Family physician notes and records;

d) Ministry of Health subrogation statements;

e) Their firm’s ledgers regarding disbursements and time records; and,

f) Photographs of the river where the accident occurred.

8The Document Brief was accepted into evidence. The photographs were identified by Ms. Hennessy. The other documents were clearly made in the ordinary course of business and were admissible as business records.

i) The Accident – June 20, 2015

9On Friday, June 19, 2015, Ms. Hennessy travelled from her residence in Kitchener to Dunnville to visit friends at the Maitland Gorge Trailer Park. Her daughter, Katie, arrived the next day, June 20, 2015.

10Shortly thereafter, Ms. Hennessy and Katie met Mr. Tyson, referred to as a friend for approximately one year. He was also staying at the trailer park as Ms. Hennessy reported Mr. Tyson to be looking to purchase a trailer.

11Mr. Tyson had brought his Yamaha Jet Ski, a large unit with the capacity for three persons. According to Ms. Hennessy, plans were made for Mr. Tyson to supervise Katie in the operation of the Jet Ski. However, Mr. Tyson then decided to demonstrate the manoeuverability of the vessel and took over the controls. Ms. Hennessy was seated in the middle position while Katie was in the rear of the Jet Ski.

12The Jet Ski was launched from the marina dock, located adjacent to the trailer park, on the Grand River. The river enters Lake Erie a short distance from the dock. This being Father’s Day weekend, boat traffic was heavy in the area.

13Mr. Tyson drove the Jet Ski out to the middle of the river. Ms. Hennessy reported him to then drive repeatedly in circles. While the water was calm, she was concerned and asked Mr. Tyson to slow down and discontinue the circles. He ignored her request. Both Ms. Hennessy and Katie were thrown from the Jet Ski as a result of Mr. Tyson’s driving actions. Ms. Hennessy indicated Katie being upset, having the wind knocked out of her lungs from the force of falling into the water.

14On climbing back on to the Jet Ski, Ms. Hennessy placed Katie in the middle position. She occupied the rear seat. Ms. Hennessy once again asked Mr. Tyson to slow down.

15Mr. Tyson proceeded down the river towards Port Maitland. There were many boats in the area, one described by Ms. Hennessy as being a fishing trawler approximately thirty to forty feet in length. She said the trawler was creating a wake about three feet in height and with multiple waves.

16Ms. Hennessy asked Mr. Tyson to stay well away from the fishing crawler. He again ignored her request, proceeding straight into the wake on a ninety-degree angle and at a speed, estimated by Ms. Hennessy, of sixty kilometres per hour. On hitting the first wave, Ms. Hennessy was thrown from the Jet Ski, landing in the water about fifty feet away. Katie followed shortly thereafter. Mr. Tyson continued driving through the wake.

17Ms. Hennessy struck the water on her left side. She reported considerable pain and, as well, concern for Katie. Ms. Hennessy was submerged in the river for a brief period of time following impact. She made reference to her life jacket being partially dislodged as a result of this force, only hanging on her left arm when she came to the surface. Katie would re-attach the life jacket.

18Mr. Tyson returned to the area. Ms. Hennessy required assistance to climb on to the Jet Ski, reporting Mr. Tyson to grab her wrists and pull her up in a rough manner, causing further pain and discomfort.

19As hereafter described, Ms. Hennessy suffered serious physical injury in this event, including three fractured ribs, a punctured lung and considered left-sided pain. In all likelihood, the ribs were fractured on hitting the water. The lung puncture was caused by a fractured rib, either when landing in the water or, as Ms. Hennessy suspects, when lifted back on to the Jet Ski by Mr. Tyson.

20Mr. Tyson proceeded back to the marina dock. Ms. Hennessy referred to Mr. Tyson as being unconcerned with her condition, laughing and telling her “it was only water”.

21Katie assisted her mother in disembarking from the Jet Ski, placing her on the adjacent ground. Ms. Hennessy was in considerable pain. She was unable to walk. Katie ran to the trailer park, obtained a golf cart, and returned to transport her mother to the trailer. Mr. Tyson was said to be only interested in retrieving his vehicle and leading the Jet Ski on to the trailer.

22Katie determined her mother required medical care. At the trailer site, she placed Ms. Hennessy in her vehicle. Mr. Tyson then arrived and entered the rear of her car. Katie proceeded to the hospital in Dunnville.

ii) Medical Care

23The Haldimand War Memorial Hospital is located a few kilometers from the trailer park. On arrival at the emergency department, Katie obtained a wheelchair and transported her mother into the hospital.

24Ms. Hennessy met with the triage nurse shortly thereafter and then was moved to an examination room. Katie and Mr. Tyson followed. During the subsequent examination, the attending physician directed Mr. Tyson to leave due to his disruptive conduct, according to Ms. Hennessy.

25Dr. Kamouna conducted the initial assessment. Ms. Hennessy was reporting “severe left-sided pain and shortness of breath”. The physical examination was inconclusive. The physician requisitioned an x-ray. It revealed a collapsed lung. Ms. Hennessy was given Percocet to relieve the pain. Dr. Kamouna requested a CT scan; however, there was no technician on duty. Ms. Hennessy was admitted for observation and further examination the following day.

26The CT scan was taken in the morning of June 21, 2015. It confirmed the collapsed lung and also showed three fractured ribs, all injuries being on the left side.

27The collapsed lung would have resulted from the puncture caused by a fractured rib. The result of the injury is air escaping into the chest cavity, known as pneumothorax. This is a traumatic event, life threatening if not quickly treated and resolved.

28Following delivery of the CT scan report, Dr. Baker, a surgeon at the hospital, was consulted. He reviewed the reports on file and then met with Ms. Hennessy. She was taken to the operating room. A local anaesthetic was administered. Dr. Baker inserted a pneumothorax catheter into the left chest. Ms. Hennessy described the procedure as very painful as her fractured ribs were separated to allow the tube to be inserted.

29Ms. Hennessy remained in the hospital until June 24, 2015. Multiple x-rays were taken along with other tests. Pain medication was regularly administered intravenously. The tube was removed after several days when the lung had fully expanded.

30Mr. Tyson attended at the hospital on one occasion. Ms. Hennessy reported him to be making fun of the events. He was also taking photographs of the nurse administering medication. Ms. Hennessy asked Mr. Tyson to leave. She has not seen him since.

31On discharge, Ms. Hennessy was provided with a prescription for Percocet and instructed to contact her family physician for follow-up care.

32Dr. Bal is a family physician in Cambridge. She has been providing primary medical care for Ms. Hennessy for some years. Katie arranged an appointment for her mother. Dr. Bal would monitor Ms. Hennessy’s condition and prescribe different pain medication to avoid addiction problems.

iii) After Discharge

33The injuries suffered by Ms. Hennessy continued to be problematic after discharge from the hospital. She testified as to physical and psychological or emotional difficulties and as to the impact on her personal care, housekeeping, employment, and lifestyle.

iv) Physical Injury

34As expected with a rib and lung injury, Ms. Hennessy continued to experience significant pain on her left side and in the normal course of breathing. Unlike a fracture to an arm or leg, ribs cannot be immobilized in a cast. Healing takes time.

35Severe pain was described as occurring for eight months after leaving the hospital. Medication was only of partial benefit. The pain would decrease over time although Ms. Hennessy still reports such intermittently occurring when engaged in routine physical activities. Being left-handed, she has had to modify her methods in performing a variety of tasks.

36As to her lungs, Ms. Hennessy reported shortness of breath for one month while lung strength gradually improved. There would have been bruising as a result of the puncture. Ms. Hennessy made reference to losing volume in her voice, continuing to the present, and having to limit speaking to avoid losing her voice. This had some impact on her job performance. She also gave up public speaking, an activity previously enjoyed for many years in her role with a service club in the community.

37Ms. Hennessy expressed concern with respect to scar tissue in her lung and future problems if there is a similar injury. She must also be careful with infection, a particular concern given community viruses, such as influenza and COVID.

38Ms. Hennessy continued with prescription pain medication for twelve months. Thereafter, and to the present, she requires daily use of regular Tylenol to control pain.

v) Psychological Injury

39Ms. Hennessy described a number of items with reference to the psychological or emotional impact of her physical injuries and the trauma of the accident, including.:

a) Breathing problems caused a disruption to her sleeping pattern, regularly waking up and resulting in insomnia, constantly feeling tired and irritable;

b) A lack of independence and requiring assistance in daily living;

c) A lack of trust in men due to the conduct of Mr. Tyson in causing the accident, his lack of concern or sympathy and eventual abandonment;

d) A fear of further injury and avoiding activities previously enjoyed, including relationships with others;

e) Becoming more forgetful, needing reminders for routine matters;

f) Lack of confidence in her ability to perform employment tasks and in personal activities, including public speaking as previously mentioned;

g) Lack of motivation, feeling constantly tired;

h) Difficulty in controlling emotions;

i) Anxiety and constantly worry of future risk;

j) Loss of enjoyment in leisure activities abandoned to avoid further injury, including horseback riding, motorcycle trips and hiking; and,

k) Post Traumatic Stress Disorder, including a fear of Jet Ski’s and panic attacks when seeing them.

40Ms. Hennessy referred to Dr. Bal’s recommendation for therapeutic counselling. She made inquiry but could not afford the cost, said to be $150.00 for half hour sessions. There are no accident benefits or employment insurance plans to cover this expense.

vi) Personal Care and Other Tasks

41As a result of her injuries, Ms. Hennessy was unable to perform a number of tasks following discharge from the hospital. Katie was attending college at the time, returning home to assist her mother. She would stay for eighteen months.

42Grab bars were installed in the shower; however, Ms. Hennessy required help from Katie simply to get in and out and to wash to avoid falling. Mobility was limited, impacting routine tasks. Katie also did the grocery shopping, other errands, and meal preparation for the first eight months. Ms. Hennessy described a lack of motivation and memory loss, needing Katie to provide reminders. Katie would encourage her to exercise and would force her to take short walks.

43Physical improvement was gradual over the first year. Thereafter, Ms. Hennessy was able to perform most tasks although giving up on many prior activities as previously mentioned.

vii) Housekeeping

44Ms. Hennessy was unable to do any housekeeping for eight months. At that time, she lived in a large multi-level home. Ms. Hennessy described housekeeping as an enjoyable task prior to the accident, her standards having been high. She has difficulty in physical movement, including climbing stairs and lifting.

45Katie did all of the housekeeping in this time period, estimated to be three hours daily. As her physical recovery occurred, Ms. Hennessy was able to perform some tasks but needed Katie for the next several years to assist, estimated at two hours daily.

46In 2019, Ms. Hennessy relocated to another community. She purchased a smaller residence so as to reduce housekeeping time. Ms. Hennessy reports being still unable to perform more demanding tasks, such as washing exterior windows. She also reduced her expectations. Ms. Hennessy remains in need of assistance from others for some matters, particularly those involving lifting.

viii) Income Loss

47Ms. Hennessy returned to work after the accident. Her employer, a physician, well understood the nature of the injuries and, in result, modifications were made for many employment tasks as well as allowing time off when needed. Ms. Hennessy referred to her work as exhausting and stressful. She felt unable to meet the standards required.

48Ms. Hennessy was a salaried employee. There was no reduction in income. This changed in 2019 with the loss of her employment for reasons unrelated to the accident. She obtained a casual position at a local hospital in her new community.

49Ms. Hennessy has spent the whole of her working career in health care administration. At age 59, she is concerned with her future ability to work in her field and the lack of other employment skills.

Analysis

50The analysis is limited to the issue of damages as Mr. Tyson chose not the deliver a statement of defence. While Mr. Tyson is deemed to admit the allegations of fact set out in the statement of claim, it is my role to assess damages based on the findings of fact from the evidence and the relevant principles of law.

51Despite the deemed admissions of fact, it is clear on the evidence that Mr. Tyson operated the Jet Ski on June 20, 2015, in a negligent manner. He is the cause of Ms. Hennessy’s injuries.

52Ms. Hennessy was a credible witness. She responded to questions posed in a clear and concise manner. While it appears she is distraught from the conduct of a former friend, I am satisfied Ms. Hennessy did not exaggerate the nature of her injuries at the time of the accident or with the status of same since. Ms. Hennessy was previously an active person. Her employment and leisure activities made for a busy life. She is now limited in performing many tasks, others being abandoned.

53In her submissions, Ms. Henderson addressed the various components of her client’s claim by reference to the evidence and presenting helpful caselaw for comparison. Ms. Henderson reported there was no insurance policy to respond to Ms. Hennessy’s claim.

i) Physical Injury

54Ms. Hennessy suffered serious injury in the accident, potentially life threatening when air escaped into her chest cavity from a punctured lung. The injuries suffered take longer to heal than others as simple physical tasks, including breathing, are painful and extend the recovery process.

55The physical injuries described by Ms. Hennessy are confirmed in the medical records tendered in evidence.

56The impact of these injuries was significant for eight months, moderate for the next thirty and with some residual difficulty to the present. Substantial recovery occurred after three years. As to the future, there is a lack of medical evidence to rely on. Nevertheless, I am satisfied there are lingering problems.

57Ms. Hennessy referred to several decisions regarding the assessment of damages for what was described as comparable physical injury, specifically fractured ribs and a punctured lung. Those decisions are as follows:

a) Tuttle v. Burton, 1986 Carswell Ont 5673 (Ont. H.C.J.), the damage award being $25,000.00, said to represent $57,800.00 in 2022;

b) DiGiorgio v. Smardenka, 2004 Carswell Ont 3701 (Ont. S.C.J.), the damage award being $50,000.00, said to represent $72,800.00 in 2022; and,

c) Remouche v Mercer, [1992] O.J. No. 900 (Ont.Gen.Div.), the damage award being $75,000.00, said to represent $135,900.00 in 2022.

58Recognizing that the facts and circumstances are different in every case, Ms. Hennessy submits an approximate range of damages is $70,000.00 to $90,000.00. I agree.

59In Tuttle, the plaintiff was 37 years of age. As a result of a motor vehicle accident, she suffered injury to two teeth, requiring a root canal and installing posts and crowns, whiplash to her neck, with general soreness lasting one year, fracture of one rib and a punctured lung, needing an insertion of a chest tube, and a pelvic fracture, involving pain but with no surgery required and healing overtime. Ms. Tuttle was hospitalized for thirteen days and the recovery period was six months, with lingering discomfort and limitations for eighteen months. The injuries are more extensive than those suffered by Ms. Hennessy, although the recovery period was shorter likely due to her age.

60In DiGiorgio, the 50-year-old plaintiff was assaulted, being punched and kicked. The resultant injuries were described as recurring headaches, chest pain from fractured ribs and causing breathing difficulties and Post Traumatic Stress Disorder that remained unresolved four years after the assault. There was no hospitalization. The injuries were not disabling, nor did they interfere with employment.

61In Remouche, the plaintiff was 37 years of age. He was injured in a collision involving two small fishing boats. The injuries were serious, including a closed head injury, multiple fractured ribs, ruptured spleen and hip fracture. The plaintiff was rendered unconscious from the accident and was observed to be disoriented in the hospital. However, the neurological examination was otherwise normal, save for a concussion. The hospitalization period was not specified. Four years after the accident, the plaintiff continued to experience headaches, hip, and chest pain. Prescription pain medication was still required. These injuries are much more severe than those of Ms. Hennessy.

62Taking into consideration the differences in the injuries of the plaintiffs and those of Ms. Hennessy, I assess the non-pecuniary damages for physical injuries at $75,000.00.

ii) Phycological Injury

63The assessment of damages under this heading is more difficult given the absence of medical reports and opinion evidence. In general terms, I accept there is some psychological injury given the nature of the physical trauma and how such would impact on activities. Ms. Hennessy was an active person, now limited in activities given the lingering matters.

64Ms. Henderson referred to the following decisions as a guide:

a) Bras v Pietraszek, 2005 CanLII 13800 (Ont. S.C.J.), the damage award being $45,000.00, said to represent $53,800.00 in 2022; and,

b) Seres v. Ramirez, 2006 ABQB 846, the damage award being $50,000.00, said to represent $83,000.00 in 2022.

65With reference to these decisions and the evidence of Ms. Hennessy, Ms. Henderson suggests a reasonable range of damages to be $60,000.00 to $80,000.00.

66In Bras, the plaintiff was assaulted, suffering a broken nose that was said to have healed relatively quickly. The more serious injury was psychological, involving loss of sleep, loss of self-esteem and enjoyment of life, Post Traumatic Stress Disorder, nervous shake, anxiety and depression. She consulted a psychologist and received psychotherapy treatment for one year, discontinuing only due to a lack of financial resources. The psychologist testified at trial, reporting the psychological injury was not insignificant. It was unclear how the damage award was apportioned between the physical and psychological injuries.

67In Seres, the plaintiff was 39 years of age. He was injured in a motor vehicle accident, including a concussion, cervical sprain, chest contusion along with headaches and neck and shoulder pain. The plaintiff was referred to several specialists, many testifying at trial, including orthopaedic surgeons, neurosurgeons, and neuropsychologists. He was unable to work for over a year. The specialists reported a diagnosis of Post Traumatic Stress Disorder in various forms, chronic pain, depression, and anxiety with driving. Therapeutic counselling was provided. Recovery occurred after three years. The damage award was for both physical and psychological injury although the latter appeared to be the primary focus.

68Unlike Bras and Seres, there is no medical evidence as to a diagnosis or treatment plan for Ms. Hennessy. I accept there was some injury. But to what extent? Ms. Hennessy made reference to a diagnosis of Post Traumatic Stress Disorder by Dr. Bal. However, there is no such recording made. While such a discussion likely occurred, and a family physician is well qualified to report on observations, I am not persuaded Dr. Bal would be qualified to render such a diagnosis. That is the role of a psychologist. It is also unclear as to whether the unrelated medical issues have any impact on Ms. Hennessy’s condition.

69Medical opinion evidence is needed to assess this component of the claim in a proper manner. A referral to a psychologist should have occurred not only for the benefit of Ms. Hennessy, but also for this case.

70In result, there is limited evidence. It would be improper for me to speculate or assess the claim fully in the absence of evidence. Accordingly, I assess Ms. Hennessy’s non-pecuniary damages for psychological injuries at $15,000.00.

iii) Housekeeping and Personal Care

71Ms. Hennessy was unable to attend to her personal care and housekeeping tasks for eight months, thereafter limited ability for three years and with some restrictions to the present. No functional capacity assessment was obtained. Nor are there recent medical reports.

72Services provided by family members are a legitimate claim. See: Riehl v. City of Hamilton, 2012 ONSC 3333, and Kim v Lin, 2016 BCSC 2405.

73Ms. Hennessy presented the following calculations for services provided by Katie and by others in future:

a) Seven months for 3 hours daily at $25.00 per hour, being $15,900.00;

b) Seventeen months for 2 hours daily at $25.00 per hour, being $25,850.00;

c) Four years for 2 hours monthly at $25.00 per hour, being $2,400.00;

d) To age 65, 2 hours monthly at $25.00 per hour, being $3,600.00.

74The total claim is $47,750.00.

75I am satisfied with the evidence from Ms. Hennessy regarding the need for assistance, in general and, in particular, for the first three years. In the absence of further medical evidence or a functional capacity assessment, the remainder of the claim is speculative. I award pecuniary damages for personal care and housekeeping services in the amount of $25,000.00.

iv) Future Medical

76Ms. Hennessy made reference to the recommendation by Dr. Bal for therapeutic counselling. While the physician’s records do not reveal this matter, it is a common practice to make such a referral for patients suffering psychological or emotional issues following a physical injury. Such is the case here, given the evidence of Ms. Hennessy. Unfortunately, she has not had the financial ability to pursue counselling and there are no benefit plans available.

77Ms. Hennessy presented several scenarios to assist the court, based on the quoted fee of $150.00 for a half hour session, namely:

a) 1 session weekly for 5 years, being $39,000.00;

b) 1 session weekly for 3 years, being $23,400.00;

c) 1 session every two weeks for 5 years, being $19,500.00;

d) 1 session every two weeks for 3 years, being $11,900.00.

78Ms. Henderson suggested a reasonable range would be $12,000.00 to $24,000.00.

79The absence of medical evidence limits the assessment of damages, including the time needed for a counselling program. I am satisfied as to the need but cannot speculate on the duration.

80In result, I award pecuniary damages for future medical expense at $12,000.00.

v) Loss if Income

81Ms. Hennessy did not suffer a loss of income following the accident, despite taking some time off and having limited ability to work for a period of time. The employer was compassionate and continued her salary.

82The current employment was described as casual with some ability for extra shifts. Ms. Hennessy has no other job skills than those in her field. At age 59, she is concerned about her future ability to work. In this regard, Ms. Henderson submits it would be reasonable to award a future income loss representing a ten percent risk factor. Such amount would be $14,400.00 to age 65.

83The concept is logical and the suggested methodology is reasonable. However, there is no evidentiary foundation for the claim. The concern of Ms. Hennessy is speculative. I decline to grant an award.

vi) Ministry of Health

84Documentation from the Ministry of Health shows a subrogated claim of $2,939.19. Such amount is awarded.

vii) Costs

85Ms. Henderson seeks a cost award of $37,798.42, being $30,354.10 for fees, representing seventy five percent of docketed time, plus HST of $3,946.04 and disbursements of $3,498.28.

86On my review of the ledgers provided, there must be a reduction for the duplication in time resulting from assigning new lawyers to the file and for the unsuccessful motion in June 2021 seeking a default judgment.

87In all of the circumstances, a fair and reasonable cost award is $32,000.00, inclusive of HST and disbursements. Such amount is awarded.

88For these reasons, I assess Ms. Hennessy’s damages as follows:

(a) Non-pecuniary damages for physical injury of $75,000.00;

(b) Non-pecuniary damages for psychological injury of $15,000.00;

(c) Pecuniary damages for personal care and housekeeping of $25,000.00;

(d) Pecuniary damages for future medical expense of $12,000.00; and,

(e) Ministry of Health subrogated claim of $2,939.19.

for a total of $129,939.19.

89Judgment is granted in favour of Ms. Hennessy in this amount, plus pre-judgment and post-judgment interest in the usual manner and costs of $32,000.00.

90Ms. Henderson and Ms. Bajenova recently took over carriage of this action on behalf of Ms. Hennessy. Both counsel were well prepared and I am grateful for their assistance.

Gordon, J.