Court File and Parties

COURT FILE NO.: CV-35-18 DATE: 2022-10-20

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Angela Currie, Plaintiff AND Kelsey Kikkert and Wingham Sportsman Association Inc., Defendants

BEFORE: Justice Spencer Nicholson

COUNSEL: P. Smith, for the Plaintiff No one appearing for the Defendants

HEARD: September 21, 2022

REASONS FOR DEFAULT JUDGMENT

NICHOLSON J.:

[1] The Plaintiff, Angela Currie, moves for default judgment against the Defendant, Kelsey Kikkert in an action arising out of an assault. The action as against Wingham Sportsman Association Inc. was dismissed by Grace J. in a decision released on July 28, 2021.

[2] Ms. Kikkert failed to defend the action and has been noted in default.

Background Facts:

[3] Ms. Currie was born on December 17, 1998. She is currently 23 years of age.

[4] On December 31, 2017, Ms. Currie attended a stag-and-doe party hosted at a “Clubhouse” owned by Wingham Sportsman Association. The event was licensed for attendees who had attained the age of at least 19.

[5] Ms. Currie arrived at the Clubhouse at approximately 11:00 pm, accompanied by three of her friends from high school, Treena, Katherine and Cody. Cody was the group’s designated driver and was Treena’s boyfriend.

[6] Shortly after her arrival, Ms. Currie went to the bar and purchased a drink. Before she was able to finish her drink, another friend, Alicia, approached her and told her that Treena was in the process of leaving the event. Given that Cody was Treena’s boyfriend, Ms. Currie was worried that her ride was departing without her.

[7] Ms. Currie observed Katherine near the dance floor speaking with the defendant, Ms. Kikkert. Thinking that Katherine might know Treena’s whereabouts, she walked over to speak with her. Ms. Currie deposes that while standing near Katherine waiting for her to finish talking, Ms. Kikkert forcefully, and without warning or provocation, shoved her into a table.

[8] Ms. Currie describes that her neck hit the table with “great force”, and she fell to the ground. She was able to quickly get to her feet. Ms. Kikkert had a big smile on her face. Ms. Currie yelled at her in anger, “what the fuck is your problem!?” Ms. Kikkert simply replied, “you’re friends with Treena Davison”.

[9] Ms. Currie described that her back really hurt, and she was having difficulty standing. She was assisted to sit down on a nearby chair and then assisted to a chair near the Clubhouse door. She was eventually taken to hospital by Cody who had to carry her to his vehicle because she could not bear her own weight.

[10] At hospital, Ms. Currie underwent an x-ray of her back, which revealed a compression fracture to her T11 vertebrae.

[11] The Statement of Claim was issued on May 31, 2018. The plaintiff seeks aggravated, exemplary and punitive damages in the amount of $100,000 as against Ms. Kikkert. She seeks general damages in the amount of $100,000 and special damages in the amount of $250,000 “or such other amount as proven”. She also claims interest and costs.

[12] As noted, Ms. Kikkert has been noted in default. There is an affidavit of service indicating that the plaintiff was personally served on June 1, 2018. The requisition to note her in default is dated July 5, 2018.

Legal Framework:

[13] The consequences of being noted in default are set out in Rule 19.02(1). Ms. Kikkert is deemed to admit the truth of all allegations of fact made in the Statement of Claim. Ms. Kikkert is no longer entitled to notice of any steps in the proceeding unless ordered by a court to be given notice, or in certain exceptions.

[14] Importantly, one of the exceptions is with respect to Rule 26.04(3). That rule relates to serving amended pleadings. There has been no motion to amend the pleadings in this case, but I point out this rule because it is my view that the plaintiff’s claim for damages is limited to, or capped at, the amount that has been claimed within the Statement of Claim. It would be unjust to award damages in excess of what was sought in the pleadings against an unaware defendant.

Liability:

[15] Ms. Kikkert is deemed to admit that she approached the Plaintiff and pushed her, resulting in the Plaintiff falling into a table. This constitutes a battery. The tort of battery is made out where there is a direct, intentional and physical interference with a person of another that is either harmful or offensive to a reasonable person.

[16] Accordingly, I find Ms. Kikkert liable.

Evidence re: Damages:

[17] The evidence establishes that as a result of the actions of Ms. Kikkert, Ms. Currie sustained a compression fracture of the T11 vertebrae. I make that finding.

[18] I turn now to discuss the evidence with respect to quantifying Ms. Currie’s damages.

[19] The ER records establish that Ms. Currie complained of low back pain upon arrival. She described the altercation and hitting her back against a table. An x-ray confirmed the presence of the T11 compression fracture. The next day, Ms. Currie underwent a CT scan. The CT scan disclosed the fracture with an approximate 10-20% loss of height.

[20] Ms. Currie was advised not to do any heavy work or bending. She was taken off her employment as a car detailer.

[21] Ms. Currie attended with her family physician on January 11, 2018. The compression fracture is noted. She was to be off work for one month. She was prescribed pain meds. She re-attended on January 23, 2018 and was kept off work for a further 6 weeks.

[22] The note for February 15, 2018, refers to ongoing back soreness and that Ms. Currie was “ready to talk to someone about her depression”. The depression is noted to relate to the fact that Ms. Currie lost quite a few friends as a result of the incident, including her boyfriend. She was kept off work.

[23] A radiograph report dated February 16, 2018, describes that there was an approximately 30% loss of vertebral height with subtle superior endplate sclerosis demonstrated. There was evidence of healing, but union was not yet complete.

[24] The note dated March 15, 2018, indicates that Ms. Currie’s back has “come along fine”. She is no longer taking pain meds. She is doing some light housework. The note states “no pain at present disc job detailing cars; inside work is just stretching and reaching; outside is heavy lifting pails of water and waxing is hard”. She is noted to feel ready to return to work.

[25] However, the note dated April 16, 2018, describes that she has only been able to manage two days per week at work. The employer is not being very accommodating and requiring her to do the full duties, including heavier tasks. She is noted to work alone. She is noted to have woken with pain in her neck radiating up to her head. Her doctor gave her a note for work.

[26] In her affidavit, Ms. Currie deposes that she lost her job in the summer of 2018. She was feeling depressed and anxious. She was also experiencing angry outbursts.

[27] A CT scan dated December 20, 2018, notes diminished height involving T11. There was mild to moderate diffuse disc bulging at L5-S1 and L4-5. This was causing mild anterior thecal sac effacement at L4-5.

[28] The complaints of depression and back pain continue within the doctors’ notes. As an example, there is a note dated July 29, 2019. It describes Ms. Currie struggling with depression. She is having difficulty with her work and activities of daily living. She did not want to leave her job, which was now at Toyota Goderich.

[29] Ms. Currie sustained a fractured finger on her right hand on November 1, 2019. Subsequent records establish that she punched her hand against a wall in frustration.

[30] There is a Consultation Note dated November 18, 2019, from Dr. Conlon, a consultant psychiatrist. Ms. Currie attended the ER in Wingham and was placed on a Form 1. She is noted to have had an argument with her mother. She had lost her job at Toyota, which was upsetting. She was provisionally diagnosed with adjustment disorder with depressed mood.

[31] There is an x-ray of the lumbar spine dated December 5, 2019. Ms. Currie was involved in a motor vehicle accident in which she was hit by a transport truck. She complained of lower back pain. The x-ray did not reveal any new fractures of her spine. The old anterior compression fracture at T11 was visible.

[32] The ambulance call report associated with the motor vehicle accident describes that Ms. Currie was ambulatory at the scene. Her only complaint of pain was to her low back. She is noted to describe that her prior back injury caused “occasional mild numbness to her lower legs”.

[33] More importantly, in her affidavit Ms. Currie describes that the motor vehicle accident involved several vehicles and one of the drivers was fatally injured. This has left her feeling “extreme guilt”.

[34] There is an Occupational Therapy In-Home Assessment Report dated August 18, 2020, from Ms. Erin Mara, OT. This report was commissioned by plaintiff’s counsel. Ms. Mara completed a Form 53 acknowledgment.

[35] Ms. Mara describes that Ms. Currie ambulated without difficulty during the assessment. She did shift her position frequently during the interview. At the time of the interview, Ms. Currie described the following symptoms:

(a) Thoracolumbar pain/tightness; (b) Bilateral leg numbness; (c) Depression; (d) Anxiety.

[36] Ms. Mara notes that Ms. Currie had limitations in forward flexion, side flexion and trunk rotation.

[37] Ms. Mara indicates that Ms. Currie described being physically able to complete her personal care tasks physically. However, it is not uncommon for her to go 4 days without showering due to her depressive symptoms. She lacks motivation to take care of many of her basic needs.

[38] Ms. Mara describes that Ms. Currie continues to experience chronic pain and numbness in her bilateral lower extremities. She further describes that due to her back pain and limited tolerance for sustained positioning, Ms. Currie has been unable to return to her pre-injury job as a car detailer. She is limited in her tolerance for working at lower heights, lifting and carrying heavier weights (greater than 10-12 lbs) due to back pain.

[39] Ms. Mara made the following recommendations:

(a) 8 Occupational Therapy Sessions (total cost of $1760) (b) Physiotherapy Assessment; (c) A Vocational Assessment/Functional Abilities Evaluation; (d) Social Work or Psychological treatment; (e) The acquisition of a perching stool and two mesh laundry bags. (f) Two hours per week of housekeeping and yard maintenance assistance.

[40] Importantly, Ms. Mara provides no prognosis in relation to ongoing employment other than the limitations that I have described above. In a subsequent document, she does provide costing in relation to her recommendations.

[41] There is a brief report dated March 3, 2021, from Ryan McLeod, a registered social worker. He indicates that commencing August 6, 2019, he began to see Ms. Currie for therapy as a result of suicidal ideation, depression and stress. He saw her weekly for about one hour, for a total of 16 sessions.

[42] Ms. Currie’s affidavit is sworn July 19, 2022.

[43] Ms. Currie describes that since the accident, she has suffered from chronic pain in her low/mid back region. The pain is daily, and it increases with activity (walking, prolonged standing, lifting, bending). When she is inactive, her back pain is manageable without medication. She rated it 2-3/10 on a pain scale. When her back pain is “agitated”, it is extremely severe, 9/10 on the pain scale and she takes medication.

[44] Out of fear of aggravating her back pain, she limits her lifting, crouching and bending. She takes breaks to stand or walk around after prolonged sitting.

[45] Ms. Currie also describes leg numbness in both her legs. It is present constantly in the back of her legs, top to bottom. It affects her balance.

[46] Ms. Currie denied any pre-incident depression or anxiety. She currently has good and bad days. On bad days, she feels deep sadness and hopelessness about her future. She has felt very isolated since the accident and at times feels like everyone is against her.

Economic Loss:

[47] Ms. Currie completed grade 10 before leaving high school.

[48] At the time of the assault, she was working full time at a KIA Dealership, doing car detailing. As noted, the KIA Dealership was overly demanding of her upon her return to work. Ms. Currie deposes that it was a physically taxing job, requiring her to pressure wash vehicles, carry heavy pails of water, and crawl through vehicles in various awkward positions.

[49] In her affidavit, Ms. Currie indicates that she was earning $14.50 per hour at the KIA Dealership, plus a productivity bonus.

[50] The KIA Dealership demanded that she return to full duties in July of 2018. When Ms. Currie refused on the basis of her doctor’s recommendations, the KIA Dealership terminated her employment.

[51] Ms. Currie remained off work until April of 2019. At that time, she found employment with Goderich Toyota, detailing cars. She deposes that she continued to have a difficult time with the demands of the job. She was terminated from that position in October of 2019.

[52] She remained unemployed from October 2019 until April 2021. In April of 2021, she found employment with Weed Man Lawn Care in Goderich. She works there seasonally, earning $17 per hour, working 5 days per week for 10 hours each day from April until October. She is laid off during the winter months.

[53] The plaintiff has provided a number of her income tax returns. I summarize them as follows:

2017 T4 employment income $17,052 2018 Employment income $7,413.95 EI and other benefits $3,509.00 2019 Employment income $12,502.71 EI and other benefits $1,595.00 2020 Employment income $0 2021 Employment income $28,497.58 EI and other benefits $1,026.00

[54] There is a T4 for 2021 showing that Ms. Currie’s income is from “Weed Man”. She earned $28,497.58 in that year.

OHIP’s Subrogated Claim:

[55] OHIP asserts a subrogated claim of $3,023.60.

The Court’s Assessment of the Plaintiff’s Damages:

[56] The plaintiff relies on several cases with respect to her damages. The cases are relied upon primarily in relation to her non-pecuniary general damages. I will refer to them briefly prior to giving my assessment.

[57] In Domijan v. Jeon, 2018 BCSC 1988, the plaintiff was involved in a motor vehicle accident. He was in his early 20’s. His initial injuries involved his neck, wrist, shoulder and low back. At the time of trial, his only remaining complaints related to his lumbar spine. MacDonald J. describes at the outset that the accident had a major impact on the plaintiff’s life. He was unable to resume his formally active lifestyle, including sports and his employment as a pipefitter. The plaintiff was awarded $100,000 for non-pecuniary general damages.

[58] In Gao v. Dietrich, 2018 BCCA 372, the trial judge had awarded $100,000 for non-pecuniary general damages. In upholding that award, the BC Court of Appeal noted that the trial judge had accepted that the plaintiff had significant physical and mental distress to the date of trial, that her lower back injury would remain symptomatic and that her enjoyment of work and life was significantly impacted.

[59] In Stare v. Whitehouse, 2019 BCSC 1445, another decision of MacDonald J., the plaintiff was 20 years old at the time of the subject motor vehicle accident. He suffered injuries to his mid-to-low back, neck and shoulders. He began to experience anxiety and depression. Although not totally disabled, he had been unable to resume his formerly active lifestyle and was restricted in his ability to play sports. The plaintiff was awarded $120,000 for non-pecuniary general damages.

[60] Clearly, the assessment of non-pecuniary general damages is a very fact specific inquiry. I would have preferred to have been provided with cases from this jurisdiction. However, I take no issue that the assessments in the BC cases provided are reasonable assessments that could apply in this jurisdiction as well.

[61] The plaintiff in the within case has decided to rely primarily upon the report of Ms. Mara, an occupational therapist. This was undoubtedly motivated by a recognition that with the dismissal of the action as against the Wingham Sports Association, the likelihood of recovering on the judgment is significantly diminished. It is hard to fault the plaintiff for being judicious with expending money on disbursements in this matter.

[62] I am satisfied that there is sufficient evidence to quantify the plaintiff’s damages. However, Ms. Mara’s opinion is not as strong as the medical opinions in the cases cited above. She is not an orthopaedic specialist, or even a pain specialist. She has offered no significant prognosis. At the time of her assessment, the plaintiff was not working. Now the plaintiff has returned to work at a higher paying job, working up to 10 hours per day. Thus, Ms. Mara’s report is somewhat stale.

[63] I accept that the plaintiff sustained a compression fracture of her T11 vertebrae as a result of the assault committed by Ms. Kikkert. I further accept Ms. Currie’s evidence that she has ongoing back symptoms as a result of her fractured T11 vertebrae. She has good days and bad days depending upon her activity level.

[64] However, unlike the cases relied upon, there is a dearth of evidence that her physical pain has led to as significant a compromise in her ability to carry on her day-to-day activities as those plaintiffs. Ms. Mara describes limitations working at lower heights, lifting and carrying heavier weights (greater than 10-12 lbs) due to back pain. Nonetheless, the plaintiff has returned to working seasonally for up to 10 hours per day, five days per week. I take this as some indication that the plaintiff has had a reasonable recovery from the fractured vertebrae.

[65] I do not have an opinion from a psychiatrist or psychologist with respect to her depression or anxiety. I do have her family doctors’ records and the social worker’s brief report. I find that there is a causal connection between the subject assault and the plaintiff’s depression and anxiety. Causation is made out on the “but for” test. There is no indication that the plaintiff had depression or anxiety prior to the assault. The assault left her socially isolated, and I find that her depression and anxiety was a natural consequence of the assault.

[66] There is little question on the facts before me that there were other events that would have materially impacted upon the plaintiff’s psychological well-being. The most important would have been the motor vehicle accident that resulted in the fatality. However, that event occurred after the plaintiff was hospitalized on the Form 1.

[67] Her psychological condition, understandably, seems tied to her employment status. Given her ability to maintain her employment with the Weed Man, it is apparent that her psychological impairment is not so great as to prevent her from working.

[68] I assess the plaintiff’s non-pecuniary general damages at $85,000. This figure, in my view, reflects a modest orthopaedic injury, with ongoing symptoms and some ongoing limitations. It reflects the plaintiff’s young age. It reflects psychological impairments that were significant enough for a brief Form 1 hospital stay. However, the assessment also recognizes that there is little in the way of medical prognosis and that the plaintiff has returned to manage full-time, albeit seasonal, employment.

[69] In terms of economic losses, the plaintiff has a past income loss. I find that her inability to continue to work at the KIA Dealership and the Goderich Toyota was as a result of the physical symptoms caused by the assault. The family doctors’ records are sufficient to prove that loss on a balance of probabilities.

[70] I am asked to determine past income loss on the basis that the plaintiff was capable of earning $30,000 per annum. However, I find that number to be speculative. Instead, I rely upon the plaintiff’s 2017 income tax return to determine Ms. Currie’s baseline level of income on an annual basis. In that year, she earned $17,052. I find that she would have earned roughly that sum in subsequent years as a car detailer but for the assault. Thus, her past loss of income for 2018 is assessed at $6,130.00. Her past income loss for 2019 is assessed at $2,955.

[71] The year 2020 is more difficult, given the global pandemic. It is very difficult to determine whether or not the plaintiff’s inability to earn income that year related to the assault or the fact that there were fewer employment opportunities. In the circumstances, I award $8,500 in past loss for the year 2020. Thus, the plaintiff’s past income loss claim is assessed, in total, at $17,585.00.

[72] In terms of future income loss, I agree with the submission of counsel that the proper approach is set out in Graham v. Rourke, 1990 CanLII 7005 (ON CA), 1990 CarswellOnt 2676, [1990] O.J. No. 2314 (Ont.C.A.), at paras. 40-41, as follows:

40 A trial judge who is called upon to assess future pecuniary loss is of necessity engaged in a somewhat speculative exercise: J.A. Andrews v. Grand and Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, 19 N.R. 50, 8 A.R. 182, [1978] 1 W.W.R. 557; 83 D.L.R. (3d) 452; 3 C.C.L.T. 225, at 249-250 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 et al. v. Koot et al. (1977), 1977 CanLII 1332 (ON CA), 18 O.R. (2d) 337, at 340-343 (Ont. C.A.), Giannone et al. v. Weinberg (1989), 1989 CanLII 4046 (ON CA), 33 O.A.C. 11, 68 O.R. (2d) 767, at 774 (Ont. C.A.). Messrs. Cooper-Stephenson and Saunders, the authors of Personal Injury Damages in Canada (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.

41 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.

[73] Counsel for Ms. Currie invites the court to determine her future income loss on the basis of an annual figure per year, multiplied by the number of years until her likely retirement. Thus, a $5,000 per annum loss would be $210,000 to age 65. Similarly, a $10,000 per annum loss would be $420,000.

[74] There must be some evidentiary foundation provided to conduct the analysis in that fashion. I have no medical opinion of any kind with respect to the impact of either her physical or psychological injuries on Ms. Currie’s future employability. Accordingly, I am unable to calculate her future income loss basis in the manner suggested by counsel.

[75] An award of damages for loss of competitive advantage recognizes that while a plaintiff may be currently earning income at a level commensurate with her pre-incident employment level, she has a higher risk of being unemployed in the future as a result of the incident related injuries. It addresses the fact that the plaintiff’s competitive position in the open labour market has been compromised as a result of her injuries.

[76] Given the significant nature of the plaintiff’s back injury, the limitations expressed in Ms. Mara’s report, the plaintiff’s own evidence and her return to the workforce, it is my view that Ms. Currie has sustained a loss of competitive advantage. There is evidence on the record that she lost her position with the KIA Dealership due to her injuries, and it is a reasonable possibility that she will have similar occurrences in the future.

[77] The more difficult task is assessing the value of the loss of competitive advantage. It is difficult to assign a dollar value to such losses (see, for example: Pallos v. Insurance Co. of British Columbia, 1995 CanLII 2871 (BCCA) at para. 43).

[78] Given the plaintiff’s young age, her grade 10 education, her likely income stream absent the incident, I assess her loss of competitive advantage claim at $50,000.

[79] The plaintiff seeks future care costs as set out in Ms. Mara’s reports. It must be kept in mind that since Ms. Mara authored her report containing the recommendations, the plaintiff was able to return to work. Thus, some of the recommendations do not seem supported by the evidence. However, I find the following items to be reasonable based on the evidence before me:

• 4 occupational therapy assessments; • The adaptive equipment; • Housecleaning assistance.

[80] I have insufficient evidence to justify ongoing psychological counseling to the extent recommended by Ms. Mara. I note that Mr. McLeod did not recommend further counselling in his letter dated March 3, 2021.

[81] I award the sum of $1,440 for the occupational therapy assessments, $200 for the adaptive equipment and $20,000 for future housekeeping assistance. I base the housekeeping figure on a reasonable assessment of the Plaintiff having increasing difficulty with her heavier housekeeping tasks as she ages.

[82] The plaintiff is entitled to recover OHIP’s subrogated interest of $3,023.60.

Summary of Damages:

[83] For the foregoing reasons, I grant the Plaintiff default judgment as against the defendant, Kelsey Kikkert, as follows:

Non-pecuniary general damages $85,000.00 Past Loss of Income $17,585.00 Loss of Competitive Advantage $50,000.00 Future Care Costs $21,640.00 OHIP’s interest $ 3,023.60 TOTAL $177,248.60

[84] The plaintiff is entitled to prejudgment interest on the non-pecuniary general damages, past loss of income and OHIP’s interest, calculated in accordance with the Courts of Justice Act and Rules of Civil Procedure. I would appreciate it if counsel could provide brief calculations of the interest when they provide a draft order for my signature.

[85] I have reviewed the Plaintiff’s Bill of Costs. I find the hourly rate and amount of time expended to be reasonable in light of the amount recovered. I fix costs in the amount of $5,425 for fees, plus HST thereon, plus $2,803.96 for disbursements.

Justice Spencer Nicholson

Date: October 20, 2022