COURT FILE NO.: CV-15-4569-0000
DATE: 2023 10 17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANTOINETTE BUSHNELL
Peter M. Callahan, for the Plaintiff
Plaintiff
- and -
THE CORPORATION OF THE CITY OF MISSISSAUGA, MTM LANDSCAPING CONTRCTORS INC., and MICHAEL ROMITA
Defendants
Celina G. Aguero and Daron L. Earthy, for the Defendant, the Corporation of the City of Mississauga
HEARD: May 16, 17, 18, 19 and 23, 2023
REASONS FOR JUDGMENT
Fowler Byrne J.
[1] This action was commenced by the Plaintiff Antoinette Bushnell as a result of injuries she sustained when she slipped and fell on a sidewalk in the City of Mississauga on February 8, 2014.
[2] Prior to the commencement of trial, the action was settled with the defendants MTM Landscaping Contractors Inc. and Michael Romita, and the action was dismissed as against them. As well, the remaining Defendant, the Corporation of the City of Mississauga (“the City”) has admitted liability for the accident and thus only damages are at issue.
I. Issues
[3] Accordingly, the issues to be determined are as follows:
a) General damages;
b) Past and future care costs;
c) Past and future income loss; and
d) Special damages.
[4] In addition, the Plaintiff has a subrogated claim on behalf of the Ontario Ministry of Health.
II. Background
[5] On February 8, 2014, at approximately 6:10 p.m., the Plaintiff slipped and fell on ice on a city sidewalk, on her way back from church. It was dark, the area was poorly lit, and she was alone. She was not seen by anybody initially and eventually was able to wave down a passing car. That good Samaritan called an ambulance for the Plaintiff and waited with her until it arrived. She was transported to Trillium Hospital where she stayed overnight.
[6] At the time of the fall, the Plaintiff was fifty-three years old and widowed. Her husband had died in 2010, approximately 4 years prior to the fall. She has no children. At the time of the fall, both her parents were living, but her father had passed by the time of trial.
[7] Throughout the trial, I found the Plaintiff to be a credible witness, who was not successfully challenged in any meaningful way. She was forthright, consistent, and readily admitted facts that would both support and diminish her claim. All experts who interviewed the Plaintiff also agreed that she was honest, forthright, and put forth a full effort in her assessments.
III. General Damages
A. Injuries Sustained
[8] When the Plaintiff was originally admitted on the evening of the accident, she was diagnosed with a comminuted fracture involving the proximal humerus with involvement of the head and the neck. In layman’s terms, this means that the top of her upper arm bone was broken in more than two pieces. There was no head injury or loss of consciousness. The hospital attempted to send her home the same day, but the pain was too intense, so she was admitted over night. She was brought to the fracture clinic the next day.
[9] X-rays taken ten days later show that the Plaintiff’s humeral head had severe inferior subluxation with respect to the glenoid fossa, meaning it was partially dislocated. There was some rotational malalignment between the humeral head and shaft, and mild displacement of fragments. The x-rays also showed a comminute impacted fracture across the humeral neck with marked varus angulation.
[10] On March 10, 2014, the Plaintiff required surgery to repair the fracture. She underwent an open reduction internal fixation of the proximal humerus fracture, wherein a plate and screws were used. There was also a complex repair of the rotator cuff and further surgery to repair the tendon that connected her bicep muscle to her shoulder. She remained in hospital for two nights following the surgery. She was not allowed to use her arm for two weeks, following which she could begin pendulum exercises. She needed the use of sling.
[11] One month later, the attending physical prescribed aggressive physiotherapy to help with her range of motion and advised that she could not attempt heavy lifting. The Plaintiff continued with physiotherapy through the hospital between May and October 2014 after which she was discharged. The medical notes indicate that upon discharge, she had plateaued, exhibiting some persistent decreased strength and range of motion of her right shoulder.
B. Expert Opinion – Dr. Karabatsos
[12] In support of her claim, the Plaintiff underwent an examination by Dr. Charalabos (“Bob”) Karabatsos, an orthopaedic surgeon who assessed her on October 28, 2020. At that time, the Plaintiff complained of constant right shoulder and upper arm pain which was described as “sharp”. There was no radiation of the pain or numbness of the arm. She also experienced chronic swelling of the upper right arm and axilla, which worsened throughout the day. Activities that involved cross-over and adduction of the arm and over the shoulder or overhead movements or abduction of the arm were identified as provocative factors. The Plaintiff indicated at that time that her overall level of improvement of her arm and shoulder was fifty percent (50%).
[13] Upon examination and review of her medical history, Dr. Karabatsos noted the diagnosis of a comminuted fracture of the proximal right humerus, involving the head and surgical neck. Unfortunately, the shoulder injury had progressed to involve significant inferior subluxation of the humeral head, almost dislocated, and the healing of the fracture across the humeral neck had marked varus angulation. It was for this reason that surgery was necessary in March 2014. The situation was worse than anticipated in surgery, which resulted in repairs to the rotator cuff and bicep tendon tenodesis.
[14] On the date of his examination, which was over six years post-accident, Dr. Karabotsos noted atrophy of the right arm, and severe limited range of motion of the right shoulder. These impairments would interfere with repetitive movements of her right shoulder, repetitive liftings, and any above-shoulder level activities. He concluded:
It is my professional opinion that Ms. Bushnell’s persistent right should impairment limits her ability to perform tasks that require heavier lifting, raising the right arm above chest/shoulder level, reaching behind the back with the right hand, and reaching across the chest with the right hand. Overall, she has been materially disadvantaged with respect to her usual activities of daily living as a result of the incident in question.
[15] Assuming that the Plaintiff wanted to work in the floral business, Dr. Karabatsos opined that she would be materially disadvantaged in that field due to her injuries. He further opined that she was able to perform the tasks of a medical transcriptionist as it did not involve any repetitive shoulder activities or above-shoulder activities.
[16] Finally, Dr. Karabatsos opined that the Plaintiff would be at high risk for developing future arthritis and dysfunction of the shoulder. She may be a candidate for a reverse total shoulder arthroplasty which is an extensive reconstruction. While helpful, this surgery would not return her to full function. Additionally, if she elected for the surgery, she could expect to require assistance with personal care, housekeeping, and rehabilitation for approximately nine months following surgery.
C. Expert Opinion – Dr. Zarnett
[17] At the request of the City, the Plaintiff underwent a further orthopaedic assessment by Dr. Rick Zarnett on February 24, 2022, which was eight years post-accident.
[18] Dr. Zarnett did the same review of the medical records and agrees with Dr. Karabatsos’ history of the accident and follow up treatment. He opines that the Plaintiff’s fracture has healed and that she has reached maximum medical improvement.
[19] Dr. Zarnett stated that the Plaintiff continues to have ongoing symptoms in the shoulder consistent with the injury; this includes some pain and loss of motion. Dr. Zarnett also stated that the functional limitations will affect Ms. Bushnell’s ability to resume all of her pre-accident housekeeping and home maintenance tasks. He agrees with Dr. Karabatsos’s opinion that she will have difficulty with tasks that require overhead activities in the right arm, heavy lifting, carrying and repetitive tasks. He also agrees that the Plaintiff will have difficulty resuming all of her pre-accident social and recreational activities and will have some limitations in her ability to seek and find suitable employment. While he agrees that her injury does impact her vocational pursuits, it does not result in a complete inability to resume alternative employment for which she is suited by education nor training. He believes she should be able to work in the automobile leasing industry until her retirement.
[20] Finally, Dr. Zarnett agrees that the Plaintiff is at some risk for developing post-traumatic arthritis in the shoulder. That being said, given that he saw no evidence that it had developed as of yet, he opined that the likelihood that it will develop in the future is negligible.
D. Current Complaints
[21] The Plaintiff continues to suffer from limited mobility in her right arm. She cannot lift it above her head. She reports constant dull pain in the cap of her shoulder. She also experiences sharp pain in the cap of her shoulder and her upper right arm of her shoulder. At these times, she states that it feels like an elastic band being pulled, and when she wiggles her arm a big, it snaps, and the pain goes away. Her pain levels have been the same for the last few years. She regularly takes Tylenol as needed.
[22] As of the date of the trial, the Plaintiff reports that she has difficulty showering and doing her hair. She has a significant scar on her arm that is visible. When driving, she tries not to back up because it is uncomfortable to look behind her. She cannot play tennis, archery or kickboxing, which are activities that she enjoyed before her fall. She can no longer wear a suit jacket as her right arm continues to be swollen and is larger than her other arm.
[23] Following the accident, the Plaintiff also suffered from a great deal of stress and poor mood because of her inability to pursue her floral business.
[24] Since her last assessment, the Plaintiff has developed carpel tunnel syndrome. It has not been attributed directly to the accident, but she believes it is from overuse. The plaintiff believes it developed while working as a medical transcriptionist. She also experienced shooting pain from her back and neck, but that has since resolved. She also has developed an ulcer, but it is not clear if it is directly related to her accident.
[25] Going forward, she has been recommended to consider cortisone injections for the pain, but she wishes to wait until she is a bit older. She has not tried physiotherapy for some time.
E. Quality of Life – Before and After
[26] Growing up, the Plaintiff enjoyed an active lifestyle. She played volleyball and baseball. When she became an adult, she ran for a bit, and took golf lessons, although she was not pursuing either at the time of the fall. Prior to her fall, she also tried archery, and took tennis lessons. After her husband died, in 2012, she started kickboxing three times a week, to help through her grief.
[27] At the time of the fall, the Plaintiff was living in an apartment, which was approximately 800 square feet. For the first several weeks after the accident, she required her friends and her parents to come over at least once per week to bring groceries, do laundry and help clean up. She needed assistance going to appointments. Eventually the Red Cross attended to help with her personal care, to help her shower or bathe. Due to the nature of the injuries and her inability to use her right arm, it was difficult for her to floss her teeth, or blow dry her hair. For the first six months following her accident, she could not drive. Eventually, she was able to do it, but still find it difficult to turn her head fully to back up or use both hands on the steering wheel. She couldn’t independently open the bottle of pain killers prescribed by her doctor.
F. Assessment of Damages
[28] There are no pre-accident injuries or conditions that involve the Plaintiff’s right arm or shoulder. Contributory negligence is not advanced in any meaningful way, if at all.
[29] The Plaintiff claims the sum of $125,000 in general damages. She has endured significant pain which continues to this day. Both orthopaedic surgeons agree that she has a permanent limitation of function and cannot continue with the personal activities that she enjoyed before. Both surgeons agree there is a risk of arthritis, although Dr. Zarnett claims it is now negligible.
[30] The Defendants claims that the appropriate range of general damages for the Plaintiff is $75,000 to $100,000. As indicated, contributory negligence was not argued.
[31] When assessing the appropriate amount to award for general damages, the court is guided by various principles set out in the authorities. In Lindal v. Lindal, 1981 CanLII 35 (SCC), [1981] 2 S.C.R. 629 (SCC), at page 637, the Supreme Court explained that the relevant question is not just how serious the plaintiff’s injuries are compared with other cases, but what function the money could serve in ameliorating the loss. In this way, an award may vary to meet the specific circumstances of each individual’s case.
[32] It is a basic principle that damages serve to put a plaintiff in as good a position as she would have been in absent the defendant’s negligence: Coffey v. Cyriac, 2020 ONSC 6411, at para 148.
[33] The court is guided by three principles when assessing the amount to award for general damages. The first is that these awards are by their very nature arbitrary and turn on the experience of each individual, both in terms of physical and psychological suffering. The second is that the award must be fair, reasonable, and consistent with other decisions involving similar injuries. The third is that general damages should not be used as a top up but rather provide an injured person with reasonable solace for the misfortune: Nicholson v. Shreve, 2014 ONSC 3158, at paras. 34-36; Higashi v. Chiarot, 2021 ONSC 8201, at para. 132.
[34] The City has provided me with a list of cases they feel are reflective of similar injuries. The Plaintiff did not provide any case law as to the quantum of general damages. The cases which I found most helpful were as follows:
a) In Tarrington v. Haycare Investments Inc., 2021 ONSC 2175, the plaintiff suffered a proximal humerus fracture, which resulted in limitations in range of movement. Subsequently, imaging shortly after the accident showed posterior displacement of the distal humeral fracture fragment. A month later, further diagnostic imaging revealed a displaced comminuted fracture with overlapping of the fracture ends and severely angulated proximal humerus laterally relative to the distal shaft. Two surgeries were required to repair the fracture. In this case, the court awarded the plaintiff $150,000 in general damages.
b) In Slaght v. Phillip, 2010 ONSC 6464, the plaintiff was involved in a motor vehicle accident. Her injuries included a fully detached subscapularis tendon at her shoulder and arm joint that required surgery to repair, bursitis of the shoulder, degenerative arthritis, and chronic pain. The plaintiff had limitation of movement in her shoulder in that she could not lift her arm about shoulder level and had plateaued in her recovery. There were no fractures. In this case, the court awarded the Plaintiff general damages in the sum of $110,000.
c) In Cornwall v. Al Blouski, 2022 ONSC 6388, the plaintiff suffered from a proximal humerus fracture resulting in limitations in their range of motion and a deformity. In this case, no surgery was required to repair the fracture, and the court awarded $65,000 in general damages.
d) In Grayling v. Haldimand County, 2014 ONSC 198, the plaintiff suffered from a fracture of her shoulder joint and tear of her rotator cuff. She was limited in her social activities and housekeeping and was off work for several months. No surgery was required but cortisone injections were attempted. The Plaintiff had limitations in reaching above shoulder level or lifting heavy objects. In these circumstances, the court awarded $50,000 in general damages, which the City equates to $62,460 in today’s dollars.
[35] I have considered that the Plaintiff has suffered the proximal humerus fracture. When she underwent the open fixed reduction repair, one month later, further damage was discovered surgery, being a complex repair of the rotator cuff and further surgery to repair the tendon that connected her bicep muscle to her shoulder. All experts opine that the Plaintiff has reached maximum recovery and will be permanently unable to regain full range of motion for her shoulder. Her pain persists, although does not require prescription medication. I accept the opinion of Dr. Karabotsis that arthritis is a real possibility. Even though Dr. Zarnett believes the risk is negligible, it still exists. This is a serious injury at a major joint. It is not difficult to accept that the Plaintiff will be at risk for arthritis as she ages.
[36] I accept that the injury has had a significant impact on the Plaintiff’s life. Everything from her personal grooming to driving and social activities has been affected. She is also limited in her employment to jobs that require little movement and no raising of the arms. She deals with constant pain, which at times is extreme. Her retirement years would have been significantly different, but for this injury.
[37] I note from the cases, that the requirement of surgery is what brings general damage awards above $100,000. In Tarrington, the injuries are similar. Unfortunately, the plaintiff required two surgeries to repair the fracture, which brought the award to $150,000. In Slaght, there was significant damage to tendons that required surgery, but no fractures. Accordingly, taking into consideration the Plaintiff’s personal experience, and these last two cases, I find that the sum of $125,000 is an appropriate award of general damages.
IV. Future Care Costs
[38] In support of this claim, the Plaintiff retained Ms. Audrey Cline, an occupational therapist, to complete an assessment to determine the Plaintiff’s physical, functional, cognitive and psychosocial needs, to assess her personal needs and to assess her housekeeping and home maintenance needs.
[39] Likewise, the City retained Ms. Angela Fleming, an occupational therapist and certified life care planner, to provide her opinion of the Plaintiff’s future needs and their associated costs.
[40] Neither party disputed the qualifications of the experts. While Ms. Cline conducted her interview online, due to COVID restrictions in place, I do not find that it in anyway impacted the veracity of the report or the quality of the assessment. I note that Ms. Cline spent approximately four hours with the Plaintiff online, while Ms. Fleming spent approximately half the time with the Plaintiff, but in person.
[41] Both therapists found significant range of motion limitations in the Plaintiff’s right shoulder. There are two significant differences though, between the two opinions.
[42] The first difference is that where the Plaintiff has found a way around her limitations and accommodated herself, Ms. Fleming opined that the Plaintiff was not entitled to any assistance. By contrast, even if the Plaintiff found ways to work around her limitations, Ms. Cline still opined that assistance should be provided to alleviate the discomfort and pain experienced by the Plaintiff while trying to accommodate herself.
[43] The other significant difference is that Ms. Cline opined that it would be appropriate that the Plaintiff have daily support in her home, to alleviate any anxiety and safety issues, as well as to help with other chores around the house for which the Plaintiff needed assistance. Ms. Fleming did not find that such assistance was necessary.
[44] When determining future care costs, I must rely on the evidence as to what care is likely to be in the injured person’s best interests. The present-day cost of providing that care can be made and an adjustment made for the contingency that the person’s care needs may be different: Krangle v. Brisco 2002 SCC 9, [2002] 1 S.C.R. 205, at para. 21.
[45] I will examine each area of future care costs in turn.
Assistive Devices
[46] Both therapists indicated that the Plaintiff would benefit from assistive devices. They both agree that the Plaintiff would benefit from long handled cleaning devices and a wheeled buggy for laundry. Ms. Fleming also suggested that the Plaintiff purchase cupboards that can be pulled down to a height that does not cause any discomfort, and that she purchases a hair dryer stand.
[47] I find that the Plaintiff is entitled to all these assistive devices. Utilizing the costing provided by Ms. Cline, these devices will range from $7,700 to $11,100. I find that the sum of $10,000 is an appropriate amount to allocate to this type of future care cost.
Occupational Therapy
[48] Both therapists recommend that the Plaintiff obtain an initial occupational therapist assessment and then 2 to 3 follow up assessments to ensure she is utilizing her assistive devices correctly and is moving in such a way so that her symptoms are alleviated. Their estimates are not dissimilar. Accordingly, the Plaintiff should receive the sum of $1,080 for an occupational therapist assessment.
Physiotherapy
[49] Dr. Karabatsos indicated that the Plaintiff has reached maximum medical recovery and her prognosis for further recovery is poor. He does not recommend physiotherapy. Dr. Zarnett also opined that the Plaintiff would not benefit from any further physiotherapy.
[50] Accordingly, despite Ms. Cline’s recommendation, I find that there is no evidence supporting ongoing physiotherapy at this time.
Housekeeping
[51] Both occupational therapists indicate that due to the Plaintiff’s limitations, that she would benefit from housekeeping assistance. The difference is that Ms. Cline recommended that the Plaintiff have assistance every week, whereas Ms. Fleming found that the Plaintiff could complete the day-to-day tasks, with accommodation and discomfort, but that she only requires assistance for the heavy items once per month, and then twice per year as the seasons change.
[52] The City suggests that the Plaintiff’s pain is not as significant as she claims and reviews her medical notes as proof. I reject this argument. As indicated, and as indicated by all independent experts, the Plaintiff was honest, truthful and a reliable historian. If she states that she experiences constant aching and at times sharp pain, I accept her evidence. The Plaintiff is a lady trying her best to move on after a significant fall. All parties recognize the significant nature of her injury on a major joint, and her ongoing function limitations. These do not operate in a vacuum. She has experienced ongoing pain, and she has testified to such.
[53] Accordingly, I accept the recommendations of Ms. Cline as to ongoing housekeeping costs for 1.5 hours per week. As for the cost of these services, Ms. Cline has estimated that housekeeping services cost $45.00 per hour. Ms. Fleming has indicated that custodians that perform more “heavy duty” tasks, can cost between $15 to $28.77 per hour. There is no indication if there is a minimum charge per visit.
[54] I have a difficult time believing a housekeeper would attend the Plaintiff’s home one hour per week for 1.5 hours for $45 (utilizing Ms. Fleming’s high end wage estimate). In addition, Ms. Fleming also indicated that in the event the Plaintiff has surgery in the future, she would be entitled to housekeeping services which she costed at $110 per hour, once per week. This is a more realistic estimate of what a housekeeper would cost. That being said, housekeeping in the event of surgery would be more thorough, as the Plaintiff would be more incapacitated. That is not the case now, where the Plaintiff can perform light housekeeping tasks only. Accordingly, I find that the Plaintiff is entitled to housekeeping services in the sum of $55 per week (half the sum if she has surgery) from the beginning of 2022 until December 2038 (which is the time span recommended by Ms. Fleming). This is equivalent to $48,620 ($55 x 52 weeks x 17 years).
Personal Care
[55] At this time, I am unable to award the Plaintiff any amount for her future care costs relating to her personal care. While it is difficult, the Plaintiff is able to take care of herself and reports being independent as to personal care. She can also use her budget for assistive devices to assist her in her personal care (like a long-handled brush or hair dryer stand).
[56] Also, while I recognize that the Plaintiff is nervous walking outside in inclement weather, neither one of orthopaedic surgeons opined that her injury caused any mobility issues. Also, the requirement of “supervisory” help is not supported by the evidence. The need for ongoing companionship is not something that is recommended by any medical expert who has treated the Plaintiff.
[57] Finally, Ms. Cline has recommended restorative yoga. Unfortunately, no expert recommended this therapy, nor was any pricing provided.
Future Surgery
[58] Dr. Karabotsos opines that the Plaintiff has a high risk for developing future arthritis and dysfunction of her shoulder. If this develops, she would be a candidate for a reverse total shoulder arthroplasty – in other words, an extensive reconstruction. If the Plaintiff decided to do that, she would require additional assistance with her personal care, housekeeping and rehabilitation for approximately nine months.
[59] Dr. Zarnett believes that the Plaintiff was at risk of developing arthritis but states that since it has not yet developed, the likelihood of it developing in the future is negligible. As I have already found, it is reasonable to assume that the Plaintiff will develop arthritis in the future, and I accept Dr. Karabotsos’ evidence in that regard.
[60] The Plaintiff acknowledges that she might have to face surgery in her future. It is difficult though, to know if the Plaintiff would actually opt for it. It may reduce her pain, but not alleviate her range of motion.
[61] The Plaintiff’s counsel suggested that the future care costs related to future surgery be reduced by half, so as to account for the uncertainty. I find that this is a reasonable approach. Ms. Fleming has estimated that if surgery is required, the following future care costs will be incurred, for a nine month period:
a) Housekeeping: $3,960 based on $110/hour; given that I am already awarding $55/hour, this amount should be reduced by 50% to $1,980;
b) Personal care: ranging from $2,940 to $6,048 depending on whether she obtains private help or uses a service. I will use the mid-point of $4,500; and
c) Physiotherapy: thirty-six sessions plus mileage is recommended, for a total cost of $3,566.
[62] The total of all these costs is $10,046. Once reduced by 50%, the Plaintiff is entitled to $5,023.
Total Future Care Costs
[63] Based on the foregoing, I find that the Plaintiff is entitled to the sum of $64,723 in future care costs.
V. Loss of Income
A. Relevant Facts
[64] The Plaintiff has a high school education. She took a course in securities after high school but did not pursue it. She had a variety of jobs in her life, from receptionist, clerk, to eventually working in a leasing company. She started out as a receptionist, but eventually moved into sales. She remained in that leasing sales position until her husband died in 2010. She said that her husband’s illness and death were unexpected and swift. She didn’t have the heart for sales anymore. She didn’t look for work initially. She lived off her savings and sold her home. Once she was settled, she did a little travelling through 2011 and 2012. Prior to the accident, she had a diagnosis of Type II Diabetes.
[65] In or around 2012, the Plaintiff went for coffee with a friend who owned a flower shop. When her friend indicated she wanted to sell the business, the Plaintiff spontaneously agreed to buy it. Out of an abundance of caution, she decided to work there first for 6 months to see if she liked it. In the end, she decided she didn’t like the hours (seven days per week), so decided not to purchase the business.
[66] Nonetheless, the experience piqued an interest in the floral business for the Plaintiff. Accordingly, over the next year, the Plaintiff took a number of steps to learn about the floral business with a goal of somehow making a living in this field. In particular:
a) She took a floral design course in February 2013, offered by the Canadian Institute for Flora Design, which lasted for 4 to 6 weeks;
b) She took a floral design course in 2013 through the Toronto Botanical Gardens;
c) She purchased numerous books on floral arranging;
d) She purchased a great deal of floral design and floral arranging supplies, such as flowers, foam bricks, vases, tape, and candles;
e) In September 2013, she obtained a Master Business License as a floral consultant; and
f) In September 2013, she ordered business cards as a floral consultant.
[67] As she testified, she was using this time to decide where she would fit in the industry. In the end, she decided to focus on the creation of live floral walls, which is a niche market and would generally be hired by businesses or other florists. In her own words, she did not want to deal directly with brides. It was her intention to have the business up and running by the end of summer in 2014. She conceded in cross-examination that there are no guarantees in business.
[68] The Plaintiff’s income records show the following earnings:
| Year | Income |
|---|---|
| 2011 | $10,052.00 |
| 2012 | $15,195.00 |
| 2013 | $14,177.00 |
| 2014 | $15,085.00 |
| 2015 | $15,433.00 |
| 2016 | $26,227.00 |
| 2017 | $26,591.00 |
| 2018 | $26,552.00 |
| 2019 | $37,606.00 |
| 2020 | $44,699.00 |
| 2021 | $39,753.00 |
| 2022 | $44,176.00 |
[69] From 2011 to 2017, her income was derived from Canada Pension Plan, received as a result of her husband’s death, investments and withdrawals from her RRSP savings. It can be noted that her income remained somewhat consistent from 2011 to 2015. This is despite the fact that, in 2014, the year of the accident, she required surgery and six months of rehabilitation and physiotherapy. The withdrawals from her RRSP became more substantial in 2015 and 2016 in the approximate sum of $15,000 to $16,000, but then decreased in the next several years to approximately $6,000 per year. It increased again to $15,000 in 2022. Plaintiff did not earn any employment income until 2018, wherein she earned $3,400. In 2019 and 2020, her employment income was approximately $19,000 per year, but decreased to $11,386 in 2021 and then to only $1,800 in 2022.
[70] We know from the Plaintiff’s evidence that she spent most of 2013 getting ready to open a floral business and invested her time and money into it. She obtained her business license and had business cards printed. I accept the Plaintiff’s evidence in this regard. The Plaintiff also states that by late December 2013 to early January 2014, she had decided to focus her business on live floral walls. She had plans to attend a wedding show in February 2014. This specialty of floral walls was more similar to her earlier experience in the leasing of luxury cars. This seemed like a similar niche market. I also accept the Plaintiff’s evidence that she hoped to be up and running by the end of summer 2014. Accordingly, even if the accident had not happened, the Plaintiff would not have earned any additional income until at least September 2014.
[71] The Plaintiff also indicated that some time in 2014, the Plaintiff’s former employer offered her a job in automobile leasing, which she had done prior to her husband’s death. She would have been a commissioned salesperson, working full time. The Plaintiff declined the offer. The Plaintiff was hoping that she could return to the floral industry. She learned from one of her doctors that it could take up to two years to fully heal. Despite being discharged from physiotherapy in October 2014, and being advised she had recovered as much mobility as she could expect, she retained hope that she would improve. It was not until March or April of 2015 that the Plaintiff decided that a floral business was not possible, due to her limitations of not being able to lift her arm above her shoulder, and she started making alternate plans.
[72] Immediately after giving up on the floral business, the Plaintiff decided she would try to become a mortgage broker. She did not like the field and left. In 2016, she trained to be a medical transcriptionist and started working in the field in or around 2017. She worked both at home and at an office. She stayed with an office until June 2021, when she voluntarily took a leave of absence to help care for her father who was dying of cancer. There was also a general decline of work during the pandemic. After her father died, she never returned to this profession. In 2021, she was contacted by her former employer, who asked her to get back into the leasing industry. He was just starting up a new venture. She started working in March 2022, and was to be paid on commission. As her employer’s start up was delayed, he paid her by the hour for her assistance in setting up. As of September 2022, she was getting only about 10 hours per week. She is hoping that the business will be up and running by the last quarter of this year.
[73] In 2022, she also worked part time at a veterinarian clinic. This is only occasional work when they need someone to cover for another employee. She has earned $5,000 through this job as of the date of trial in 2023.
[74] When cross-examined about her floral business prior to the accident, the Plaintiff admitted that she was still in the development phase. She had never advertised, never solid any floral arrangements, never rented any space, nor obtained any lending. She had no written business plan. She agreed that once she got going, she would have needed help to construct the floral walls in any event and would have had to hire general help for transportation. She has not advertised or hired any staff. She readily admitted that there are no guarantees of success for any new business.
B. Past Income Loss
[75] By her own admission, the Plaintiff was not working as of the day of the accident. If her plan to be come a floral consultant had come to fruition as planned, she would not have expected to receive any income until the end of summer in 2014. At that time, she would launch her business. Accordingly, there is no loss of income until at least the end of August 2014. Then, but for the fall, she probably would be earning very little as she started. I have no evidence as to how long such a business would take to ramp up. The Plaintiff concedes that there are no guarantees in business.
[76] The Plaintiff was advised that she would not be able to work in an industry that involved lifting her arm above her head in October 2014, when she was discharged from physiotherapy. Nonetheless, she held out hope that she would improve until March or April 2015, when she realized it would not happen. Also, prior to giving up on the floral business, the Plaintiff testified that her former employer offered her a full-time job in 2014 to come back to leasing. She turned it down.
[77] Unfortunately, I cannot find that the Plaintiff suffered any wage loss prior to trial but for the slip. By her own admission, she would not have earned anything until at least August 2014, and then would only be starting. She turned down a full-time job in 2014 which would have paid her what she was earning prior to the death of her husband, thereby mitigating any loss she may have suffered. Both orthopaedic surgeons opined that she was suited for this work. Despite being told in October 2014 that her injuries prevented any more mobility, she chose not to find another line of work immediately for at least another half year. She trained to be a mortgage broker, but voluntarily choose not to pursue it. She then trained to be a medical transcriptionist, and to her credit, pursued that several years, but eventually resigned for personal reasons.
[78] I do find that the Plaintiff had an entrepreneurial nature and I am confident she would have become involved in the floral business in some capacity (as evidenced by her efforts to date in training). Unfortunately, the connection between her entrepreneurial spirit and the establishment of a successful floral consulting business is too tenuous. While she had done the necessary training, her focus in the industry changed and became very narrow. There is no evidence that this business would have been successful, or that she would have stuck with it.
[79] Also, I have insufficient evidence of what she would have earned in this field if she had not been injured. I have no evidence as to how long it would take to earn a living wage and no reliable method in which to calculate her damages.
[80] In support of what her income would have been, the Plaintiff provided a printout from the Government of Canada which provided industry statistics for florists in 2019. It provided that a florist could be expected to earn annual revenues anywhere between $30,000 and $5,000,000.
[81] This information is wholly unhelpful. It does not break down revenue by size of the business, and the type of florist. Indeed, the Plaintiff indicated that she did not want to work directly with brides, which I can assume is a substantive part of any florist’s business. Instead, she testified that she intended to specialize in floral walls, which is a niche area where you are in demand less but charge more. I have no information particular to that type of industry or the amount she would have expected to earn. There are no past earnings by which I can based loss calculation.
[82] In the report of Dr. Karabatsos, dated November 30, 2020, he stated that medical transcriptionist would be an ideal occupation for her. Dr. Zarnett, in his report of February 24, 2022, opined that she should continue in her work as a transcriptionist or as a leasing agent. Nothing in either report indicated that she was unable, from the date of the accident, to be able to work in these fields. She simply chose not to until recently. While that is the Plaintiff’s right to do so, it does not obligate the City to pay her as if she did.
C. Loss of Future Income or Earning Capacity
[83] The law relating to future pecuniary loss is well established in Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 (C.A.), wherein it is recognized that a trial judge asked to assess future pecuniary loss must engage in a somewhat speculative exercise. 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. That being said, 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: paras. 40-41, citations omitted.
[84] In West v. Knowles, 2021 ONCA 296, at para. 47, Paciocco J.A. adopted the trial judge’s jury charge that indicated that when assessing future income loss, one must determine the difference between what the Plaintiff could have earned has she not been injured and her actual earning capacity.
[85] In this case, Dr. Karabatsos opined that the Plaintiff’s occupation at the time of the report, that of a medical transcriptionist, was “ideal” as it did not involve any lifting, repetitive should activities or above-shoulder activities. Dr. Zarnett opined,
Ms. Bushnell is going to have some limitations in her ability to seek and find suitable employment. She has been able to work as a transcriptionist and she is going to start a job doing leasing at Gentry Lane Motors.
The right shoulder impairment will limit her vocational pursuits but does not result in a complete inability to resume alternative employment for which she is reasonable suited by education, training or experience.
[86] I have no evidence of how long the Plaintiff intended to work, or what a person in her field of work would expect to be paid. In closing submissions, Plaintiff’s counsel argued that I should assume that she would work until she was 65 years old. Unfortunately, there is no evidence to support that assumption.
[87] Also, the Plaintiff tried a number of jobs after the accident, and then left them. Even in the floral industry, she was narrowing in on a field that was more niche, and there was no indication, or evidence, as to whether she would be successful, or could earn more than she would have had she accepted the offer of her former boss and went back into leasing.
[88] Accordingly, based on the evidence provided, I cannot find that there is a possibility of future income loss if she remains in the office type of positions that she is currently engaged in. At the date of the trial, the Plaintiff was working part time in that field and assumed she would be working full time by the end of the year.
[89] Accordingly, I find that the Plaintiff is not entitled to any damages for future income loss or loss of competitive advantage.
VI. Out of Pocket Expenses
[90] The Plaintiff claims her out of pocket costs associated with her injury. They include not only any out of pocket expenses incurred for treatment, but also the costs of taking her floral training, her mortgage broker course and her medical transcriptionist course.
[91] The City takes exception with the cost associated with all the Plaintiff’s training. They claim no causal connection between the re-education and the fall. With respect to the Plaintiff’s costs of being a floral consultant, I agree. With respect to the Plaintiff’s costs associated with retraining, I accept these out of pocket expenses. Had the Plaintiff not been injured and been told that she needed to restrict herself to a desk job, she would never have retrained a as mortgage broker or a medical transcriptionist. This was her attempt to mitigate her losses. She should be reimbursed accordingly.
[92] Accordingly, the Plaintiff is entitled to the following out of pocket expenses:
a) Training to be a mortgage broker: the Plaintiff has produced proof of these expenses, totalling $1,395.44;
b) Training to be a medical transcriptionist: the Plaintiff has produced proof of these expenses, totalling $913.78;
c) Various expenses associated with the injury, including ambulance costs, should sling, medications that she recalls, totalling $301.54; and
d) Taxi expenses for transportation to treatment, totaling $113.50.
VII. OHIP Subrogated Claim
[93] The Plaintiff has made a claim on behalf of the Ministry of Health in the sum of $7,797.13. This claim was not contested by the City. Accordingly, this order shall be made.
VIII. Conclusion
[94] For the foregoing reasons, I make the following orders:
a) The City shall pay to the Plaintiff the following:
$125,000 for general damages;
$64,723 for future care costs;
$2,724.26 for out of pocket expenses;
$7,797.13 as a subrogated claim on behalf of the Ministry of Health; and
Pre-judgment interest from February 8, 2014, and post-judgment interest, in accordance with the Courts of Justice Act.
b) The parties are encouraged to resolve the issue of costs themselves; if they are not able, the Plaintiff is to serve and file her Bill of Costs, her written costs submissions (limited to 4 pages) and any Offers to Settle, on or before November 17, 2023; the City shall serve and file its Bill of Costs, its written costs submissions (limited to 4 pages) and any Offers to Settle, on or before December 8, 2023; any reply submissions by the Plaintiff (limited to two pages) shall be served and filed on or before December 22, 2023; and
c) The remainder of the claim is dismissed.
Fowler Byrne J.
Released: October 17, 2023