Court File and Parties
COURT FILE NO.: CV-20-077 (Owen Sound) DATE: 2024-11-01 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
David Steele, Plaintiff – and – Victor Bicknese, Defendant
COUNSEL: John A. Tamming, for the Plaintiff Victor Bicknese, self-represented
HEARD: October 28 and 29, 2024
REASONS FOR DECISION
Sproat, J
The evidence
[1] The plaintiff is now 74 years of age. His claim is that he was injured while he was working in the defendant’s barn on or about June 14, 2019.
[2] The plaintiff’s evidence was that he was employed to pick up eggs that the hens had deposited on the floor. The area in which he had an accident had a wooden floor consisting of 2” x 4” boards with 1” x 1” boards nailed across them, with a gap between the cross boards. This allows excrement and wood shavings to fall through to the concrete floor below.
[3] With some frequency the cross boards, referred to as slats, break. On the day in question, the plaintiff knew that there were some broken slats in the area of the barn that he was working in, but he was rushing to do his job and stepped into a spot where two or three slats were broken. This caused him to fall forward and strike his head on the floor, which caused a gash in his forehead.
[4] After the fall he was in pain, but he kept working. He went home and his neck was sore. He came back to work the next day and some female employees saw the gash on his head and, in his words, “patched him up”. They then told him he should have his injury looked at.
[5] The plaintiff then went to a chiropractor in Chesley, who sent him to the hospital in Chesley where he was x-rayed. He was then directed to go to Walkerton where they did an MRI. It was determined that he had an injury to his vertebrate, and he was airlifted to London Health Sciences.
[6] He was given the option of having surgery or wearing a cervical collar. He decided to wear the collar, which he did for six months, because he owned a cow and he had no one to milk the cow if he was recovering after surgery.
[7] The plaintiff testified that he suffered a great deal of pain immediately after the accident. As of today, he has good and bad times. He has episodes in which he feels a shocking sensation. This occurs two to three times a week and he needs to lay down for 30 minutes. He also gets a headache every couple of days that lasts about an hour. The range of motion of his neck is very limited.
[8] On December 13, 2022, the passenger side of his vehicle was struck by another vehicle. He was again taken to London Health Sciences and had to wear a collar for three months. He said his condition now is similar to the condition that he was in prior to the December, 2022 accident.
[9] In cross-examination he said that at least two of the slats were broken. He said he was in a hurry because the defendant wanted his job done in a hurry.
[10] Dr. McCall provided an expert opinion on behalf of the plaintiff. He was qualified as an expert in the diagnosis, treatment, and prognosis of orthopedic injuries, including to the cervical spine. Dr. McCall testified that he is always sensitive to the possibility that the person being examined may be malingering or exaggerating. He saw no indication of this with Mr. Steele.
[11] Dr. McCall testified that, as a result of his June, 2019 fall, the plaintiff has an odontoid fracture at the base of the skull. This is a bony peg that projects up into the skull, and if it displaces and is pushed upwards the result will be fatal. The fracture has not healed in the sense that the bone has not fused together. Scar tissue does provide some stability to the area of the fracture.
[12] Dr. McCall testified that, particularly with an older person, it was reasonable to decline surgery in a case of this nature. He also testified that the symptoms reported by the plaintiff, such as stiffness in the neck, headaches and shocking sensations, were consistent with someone who had suffered the type of injury the plaintiff did.
[13] The prognosis is that this condition will not improve. The plaintiff will have chronic pain and there remains the possibility of fatal injury if he suffers another blow to the head. Dr. McCall noted that the plaintiff did not have any similar complaints related to his neck prior to the accident, which led him to conclude that the prime cause of the symptoms was the fracture and not degeneration due to age. In Dr. McCall’s opinion, the second accident did not have any significant impact on his condition today. His condition today is the same as immediately prior to the December, 2022 accident.
[14] Dr. McCall’s evidence was not challenged and is uncontradicted. I find that his opinions are fair and accurate.
[15] The defendant testified that the barn had an area 172’ x 13’ where there was a wooden slat floor. Broken slats would typically be repaired during the cleanout that takes place between flocks of hens arriving at the barn. They could, however, also be replaced as broken slats were identified. He has a quota of 9,500 hens.
[16] The defendant indicated that the wooden slats were so dried and old that it was “normal” for people to break through them. The defendant indicated that he had not broken through a slat in several years, but that persons do fall through “quite regularly” with the usual result being a scraped shin. The defendant is in the barn daily, and his house is only 150 feet away. The defendant said that he could have repaired the broken slats if he was aware of it.
[17] In cross-examination the defendant stated that, over a period of years, he had been in the process of replacing the wooden slat floor with a plastic floor. One reason was that it was stronger, and the other was that it was easier to clean. To replace the remaining wooden flooring with plastic would have cost less than $30,000 and could have been done over two days by two men.
[18] The defendant said that it did occur to him that there could be a serious injury as a result of the broken slats because there are so many ways that an accident could occur.
[19] The defendant described the plaintiff as hard-working, punctual and a good worker and good employee. His recollection was that the plaintiff had worked for him for over ten years prior to the accident. He never saw any indication that the plaintiff was anything other than honest.
[20] The defendant testified that workers should walk along the area of the flooring that was supported by the 2” x 4” support boards. In other words, they should not step on the area where the slats were not supported. He testified that you needed to do that or risk breaking through.
[21] He agreed that the plaintiff earned $14 an hour, and typically worked 35 hours per week and a total of at least ten months per year.
Liability
[22] The plaintiff impressed me as an honest person. He gave his evidence in a straightforward manner. He freely acknowledged that he was aware of the fact that there were some broken slats in the floor, and that on the day in question he was in a hurry. He did explain, however, that the defendant expected him to work quickly. His evidence as to the nature and extent of his injuries is well supported by the medical records filed and the expert evidence of Dr. McCall. I accept his evidence as to how his injury occurred and the nature and extent of his injury.
[23] Mr. Bicknese also impressed me as an honest person. Mr. Tamming noted, and I agree, that there is no suggestion that Mr. Bicknese is a bad person or not a competent farmer. The issue is whether he complied with the significant legal obligations imposed at common law and as set out in legislation.
[24] In this regard, the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 provides as follows:
3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.
[25] My conclusion is that the defendant did not take reasonable care to ensure that the plaintiff was safe while on the premises. My reasons are as follows.
[26] As photos demonstrate, the wooden floor area would have hundreds, if not thousands, of hens walking around. It would, therefore, be impossible for the plaintiff to see all of the broken slats and avoid stepping on them. It would certainly be impossible for the plaintiff to always identify where the 2” x 4” supports were, so that he always stepped on them and not in the middle of a slat.
[27] There was no system in place whereby the defendant, or anyone else, inspected the floor to ensure that any broken slats were repaired immediately. There was no system in place whereby employees were instructed to immediately notify the defendant if there was a broken slat.
[28] There simply was an acceptance of the fact that persons will regularly break through the slats. This was not considered to be a significant issue, probably because the typical injury that had been encountered was a scraped shin. The fact that this was the typical injury does not detract from the fact that broken slats in the wooden floor presented a tripping hazard that was extremely difficult to see and to avoid.
[29] The defendant was, therefore, in breach of s. 3 of the Occupiers’ Liability Act, duty to take reasonable care to ensure that the plaintiff and others were reasonably safe and is liable to pay damages.
[30] I find that there should be no reduction for contributory negligence. This is because the defendant had the fundamental obligation to provide a safe workplace. While the plaintiff had an awareness of broken slats, he felt that he had to hurry to gather the eggs. Further, it would be almost impossible to recall exactly where broken slats were located and avoid them.
Damages
[31] OHIP has a subrogated claim of $3,123.32 and there is no dispute with respect to that amount.
[32] The plaintiff also claims an income loss for two years in the amount of $42,000. This is on the basis that the plaintiff would have worked for two more years but was not physically able to do so. He had to wear a collar for six months. I accept that it would have been unsafe for him to work in any sort of manual labour environment in which there was a risk of further injury which could be fatal.
[33] In addition, while the evidence was somewhat unclear on this point, the plaintiff indicated that he was interested in returning to work for the defendant but understood that the defendant did not want him to return. He inferred from this that the defendant had replaced him. It is, however, clear that the defendant did not offer to return the plaintiff to work.
[34] I accept the plaintiff’s evidence that he would, but for the accident, have worked for two more years. He had limited means and needed the money. I also accept that the plaintiff was not able to return to the type of farm work that he had traditionally done and that, given his age and grade nine education, it was not realistic to think that he could obtain a sedentary job.
[35] I, therefore, award the plaintiff $42,000 on account of lost income.
[36] With respect to general damages for pain and suffering, Mr. Tamming referred to two cases. In Currie v. Kikkert, 2022 ONSC 7260, the plaintiff was 19 years old when she was assaulted by being shoved into a table, which caused a compression fracture in her back. As a result of the assault, she was off work for six weeks and she became depressed and anxious. Five years after the assault, she had chronic back pain daily. This was described as low-level pain which would progress to pain at a level of 9/10 if her back was aggravated by physical activity. She also had numbness and became depressed and anxious as a result of the assault.
[37] In a default proceeding, the plaintiff was awarded $85,000 for non-pecuniary damages. The judge noted that this award reflected the plaintiff’s young age. In other words, it reflected the fact that she would suffer this level of chronic pain for many years. In this regard, Mr. Tamming submitted that I should factor into the damage award the “golden years principle”, which recognizes that limitations late in life can be considered as particularly important.
[38] Mr. Tamming also referred to Zmarzly v. Huang, 2022 ONSC 6643. His vehicle was struck by another vehicle, and it rolled over. He had an unstable fracture of the spine which required surgery and three weeks of hospitalization. His back pain was 5/10 until four or five months after the accident. He also suffered from headaches, knee pain and numbness in his arm. These conditions have improved, but he still suffers pain for which he takes OxyContin two to three times a week. He also has balance problems. At the time of the accident, he was 41 years old. The court awarded general damages of $120,000.
[39] Mr. Tamming also submitted, and I agree, that Mr. Steele’s pain and suffering is exacerbated by the fact that he lives with the knowledge that a blow to the head, which could be inconsequential to a healthy person, could be fatal to him.
[40] Mr. Tamming suggested that general damages of $120,000-$130,000 should be awarded. In my view, the plaintiff’s injuries are less severe than in Zmarzly.
[41] Taking into account the cases cited, as well as my understanding of the caselaw generally, I conclude that general damages should be fixed in the amount of $100,000.
Conclusion
[42] Mr. Tamming should prepare a draft judgment for my review. He should forward a copy to the defendant but need not have it approved as to form and content.
[43] Mr. Tamming shall provide written cost submissions, and advise of any offers to settle, within 14 days. Mr Bicknese shall have 14 days from receipt of Mr. Tamming’s submissions to provide any response. Submissions should be sent to SCJ.Judicial.GreyBruce@ontario.ca.
Sproat, J Released: November 1, 2024