2021 NLSC 66, 2021 NLSC 66

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Abbott v. Moorland Limited , 2021 NLSC 66 Date : May 13, 2021 Docket : 201906G0039 anne abbott v. Moorland Limited Before: Justice Katherine O’Brien Place of Hearing: Clarenville, Newfoundland and Labrador Date(

s) of Hearing: April 8, 2021

Summary: The Plaintiff was injured when she slipped and fell on the Defendant’s premises. A default judgment was previously entered against the Defendant. In this decision, the Court assessed the Plaintiff’s damages. Appearances: Philip C. W. Whalen Appearing on behalf of the Plaintiff No Appearance On behalf of the Defendant

Authorities Cited: CASES CONSIDERED: Norman v. Sobey’s Stores Ltd. (1992), (NL SC), 99 Nfld. & P.E.I.R. 95, 315 A.P.R. 95(Nfld. S.C.(T.D.)); Pollard v. Budden (1989), (NL SC), 75 Nfld. & P.E.I.R. 44, 234 A.P.R. 44 (Nfld. S.C.(T.D.));LeBreton v. LaRocque, [2000] N.B.J. No. 326, 2000 CarswellNB 317 (N.B.Q.B); Tibbits v. Molloy, (AB KB), 65Alta. L.R. (2d) 90, 1989 CarswellAlta 18 (Alta. Q.B); Baptiste v. Baptiste, 2001 ABQB 910; Tennant v. Fariba, 2013 ONSC 1676; Barryv. Rowe (1987), (NL SC), 66 Nfld. & P.E.I.R. 91, 204 A.P.R. 91 (Nfld. S.C.(T.D.)); Graham v.

Toronto (City) (2009),64 M.P.L.R. (4th) 125, 2009 CarswellOnt 5464 (Ont. S.C.J.); Bzdziuch v. Loblaws Companies Ltd., 2019 ABQB 984; Driscoll v.Morgan, 2007 NLCA 39 STATUTES CONSIDERED: Judgment Interest Act, R.S.N.L. 1990, c. J-2 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c.42, Sch. D REASONS FOR JUDGMENT O’Brien, J.: INTRODUCTION [1] On August 27, 2018, Anne Abbott (the “Plaintiff”) slipped and fell on the commercial premises of Moorland Limited (the“Defendant”) and suffered injury.

The Plaintiff commenced this action on March 6, 2019 and a default judgment was entered against theDefendant on June 12, 2019, with damages to be assessed. [2] The Plaintiff filed the present Interlocutory Application to have damages assessed on December 6, 2019. Notice was given tothe Defendant and on January 20, 2020, when this matter was called in court, Darlene Moores, a director of the Defendant, appeared. Atthat time, I explained to Ms. Moores the requirement of Rule 5.07(2) of the Rules of the Supreme Court, 1986, S.N.L. 1986, c.42, Sch. D(the “Rules”) to have a corporation represented by a lawyer.

I also explained to her the possibility of bringing an application to set asidea default judgment and gave her some information about available legal services. [3] There has been no representation by the Defendant since that day, despite notice being sent. The hearing of the presentapplication thus proceeded on April 8, 2021, without the Defendant’s participation. The Plaintiff called three witnesses: herself, herlong-time family doctor and her son.

I found them all to be credible and reliable witnesses. [4] The Plaintiff is 70 years old and has worked as a postmaster in Sweet Bay, Newfoundland and Labrador for 45 years. Theevidence established that she suffered multiple breaks in her upper left arm bone as a result of the fall. Her face was also scraped andbruised and her glasses broken. Following the accident, she had pain in her hip and knee that she had not had previously. She wastreated non-surgically by an orthopedic surgeon for her arm injury. She also did physiotherapy.

As a result of the accident she missedover nine months of work. [5] The Plaintiff claimed damages under the following heads of damage: i. General non-pecuniary damages ii. Non-pecuniary damages for diminished housekeeping capacity iii. Special damages iv. Cost of medical services [6] She also claimed judgment interest and costs. She did not claim for any lost employment earnings because she was paidduring the time she could not work. ISSUE [7] I must determine the appropriate amount of damages under each of the heads of damages claimed.

ANALYSIS Evidence of injury [8] Her facial injuries were superficial and healed without any lasting effect. [9] Her hip and knee were sore for a period of time post injury. Although Dr. Chaytor had never treated the Plaintiff for hip orknee problems before the accident, an X-ray of the knee taken in January 2019 revealed some mild arthritis. Dr. Chaytor’s opinion wasthat her knee symptoms had been exacerbated by the fall. The Plaintiff was prescribed medication and given a steroid injection in herknee around that time.

The symptoms must have resolved sometime after that because the Plaintiff did not report them as a persistingproblem at the hearing. [10] The Plaintiff’s arm injury, the effects of which extended into her shoulder, was the most significant of her injuries. ThePlaintiff wore a cast for about five months after the accident. During that period, she had to sleep in a recliner and was unable to washand dress herself. She could not drive and she needed help with household tasks such as cooking and cleaning.

Once the cast came off,she was able to start doing things on her own but it was still a couple of months before she could drive. Even then, she started withshorter drives. She was treated by the orthopedic surgeon until October 2019 when she was discharged from his care. [11] Dr. Chaytor’s reports reveal the progression of the Plaintiff’s recovery. In early April 2019, Dr. Chaytor reported that thePlaintiff was still doing physiotherapy and home exercises and was only able to drive short distances but that she was trying to do moreactivities at home. Dr.

Chaytor found the range of motion in the Plaintiff’s shoulder to be limited at that time. In September 2019, thePlaintiff was continuing physiotherapy and although the range of motion in her shoulder was improving, it was still significantlydecreased. By February 2021, the Plaintiff was no longer reporting pain in her shoulder but she had decreased strength and range ofmotion in her left arm. She had completed her physiotherapy. [12] The Plaintiff testified that she currently has no pain in her shoulder.

She noted that there are still things she cannot do becauseshe cannot raise her arm higher than shoulder height or reach behind her back. She lives with her two adult sons and they assist her whenneeded. Her evidence of her disability was corroborated by Dr. Chaytor, who testified that the Plaintiff’s range of motion of her leftharm is 90 degrees in both flexion and abduction when a normal range is 180 degrees for both. Dr. Chaytor does not expect any furtherimprovement at this point. She attributes the limitations of the Plaintiff’s left arm to the accident.

General non-pecuniary damages [13] General non-pecuniary damages are often referred to as damages for pain and suffering. They are intended to compensate aplaintiff by providing the opportunity to replace aspects of life and happiness lost to injury. Each case must be assessed on its particularfacts, considering the injuries suffered and the impact of those injuries on the plaintiff. However, courts usually find guidance bylooking at previously decided cases with plaintiffs with similar injuries and circumstances. [14] The Plaintiff asked for $50,000 in general non-pecuniary damages.

She relied on the following cases as comparableauthorities: a. Norman v. Sobey’s Stores Ltd. (1992), (NL SC), 99 Nfld. & P.E.I.R. 95, 315 A.P.R. 95 (Nfld. S.C.(T.D.)). InNorman, the plaintiff slipped and fell in the defendant’s premises and as a result suffered multiple fractures of her left patella (kneecap)with some associated arthritis, softening of the cartilage and a possibility of future surgery. She also sustained a fracture in her foot. Shewas awarded $30,000 in 1992 for general non-pecuniary damages. b. Pollard v. Budden (1989), (NL SC), 75 Nfld. & P.E.I.R. 44, 234 A.P.R. 44 (Nfld. S.C.(T.D.)).

In Pollard, theplaintiff suffered multiple fractures of his arm and a dislocation of his big toe in a vehicle accident. He had other cuts and bruises andsuffered a pulmonary embolism. He required surgery and spent 42 days in hospital. His arm had not fully recovered by the time of trialand was not expected to. He was awarded $50,000 in 1989 for general non-pecuniary damages. c. LeBreton v. LaRocque, [2000] N.B.J. No. 326, 2000 CarswellNB 317 (N.B.Q.B). In LeBreton, the plaintiff suffered neck and backstrain and a fracture of his arm that required two surgeries.

He was left with a permanent disability and pain in his arm. He also sufferedfrom depression and Post Traumatic Stress Disorder as a result of the accident. He was awarded $75,000 in 2000 for general non-pecuniary damages. d. Tibbits v. Molloy, (AB KB), 65 Alta. L.R. (2d) 90, 1989 CarswellAlta 18 (Alta. Q.B). In Tibbits, the plaintiff felland broke her arm. She required a metal plate and surgery to heal the break. At the time of trial, she had not fully recovered and it wasestimated that she would continue to have some disability in her arm. She was awarded $20,000 in 1989 for general non-pecuniarydamages. e.

Baptiste v. Baptiste, 2001 ABQB 910. In Baptiste, the plaintiff suffered a broken forearm, a broken nose, and swelling andblackening of the eyes in an assault. He also suffered cuts and bruises and an aggravation of a previous cheekbone injury. He wasawarded $30,000 in 2001 for general non-pecuniary damages. This damages award was apportioned among his injuries with the brokenarm representing the majority of it. f. Tennant v. Fariba, 2013 ONSC 1676. In Tennant, the plaintiff suffered damages to his lower back, knee, arm, hand and shoulder ina vehicle accident. He also suffered mental health injury.

He was found to have suffered permanent serious impairment as result of his injuries. His chronic pain and depression were also found to be permanent conditions. He was awarded $65,000[1] in 2001 for generalnon-pecuniary damages. [15] In addition to the cases filed by the Plaintiff, I reviewed the following comparable authorities: a. Barry v. Rowe (1987), (NL SC), 66 Nfld. & P.E.I.R. 91, 204 A.P.R. 91 (Nfld. S.C.(T.D.)). In Barry, the

plaintiff, a 69 year-old housewife, was struck by a car while walking along the highway. She suffered fractures of her arm, fracture ofher rib and compound fractures of her right and left lower leg bones. She spent a considerable amount of time in the hospital and inrehabilitation. She was awarded $55,000 in 1987 for general non-pecuniary damages. b. Graham v. Toronto (City) (2009), 64 M.P.L.R. (4th) 125, 2009 CarswellOnt 5464 (Ont. S.C.J.).

In Graham, the plaintiff trippedover a metal frame and suffered a “serious” fracture to his left arm and elbow, requiring immediate surgical intervention, four days ofhospitalization, the placement of a cast on his arm for three weeks, and the insertion of a steel rod into his left arm. The court held thatthere was no liability on the part of the defendant but in the alternative, assessed general non-pecuniary damages at $50,000 (reduced by50% for contributory negligence). c. Bzdziuch v. Loblaws Companies Ltd., 2019 ABQB 984.

In Bzdziuch, the plaintiff, a 77-year old, tripped over a pallet and suffered afracture of her left arm and some bruising. She was left with permanent impairment, mobility and disability of that shoulder (she wasleft-handed). She was awarded general damages for pain, suffering, disability and future cost of care of $75,000. [16] I find that the Plaintiff’s injuries are most comparable with those in Norman, Tibbits, Baptiste, Graham, and Bzdziuch. I notethat the amount Bzdziuck included an amount for future cost of care, which is not claimed in this case.

The Plaintiff was five months in acast and had significant impairment and pain for many months after that. Although she no longer suffers pain, she is left with permanentdisability in her arm and shoulder that affects her day-to-day activities. In these circumstances, I find that $50,000 is an appropriateaward for general non-pecuniary damages. Non-pecuniary damages for diminished housekeeping capacity [17] The Plaintiff asked for $5,000 to $10,000 for diminished housekeeping capacity. She relied on the following cases ascomparable authorities: a. Norman.

The plaintiff was awarded $20,000 in 1992 for diminished housekeeping capacity. b. LeBreton. The plaintiff was awarded $5,000 in 2000 for diminished housekeeping capacity. [18] Our Court of Appeal addressed the law regarding damages for lost housekeeping capacity in Driscoll v. Morgan, 2007 NLCA39. At paragraph 73, the court wrote: It is now clear that a plaintiff can be compensated for loss of capacity to do housework, even though someone else may be performingthe household tasks and may not be paid for doing so. Indeed, that is not in dispute.

It is not necessary for the plaintiff to establish thatshe will hire someone to perform housekeeping tasks in the future (Fobel v. Dean (1991), (SK CA), 83 D.L.R. (4th)385 (Sask. C.A.); Beam v. Pittman, supra). Loss of housekeeping will be awarded whether the tasks are not done at all, or done by thefamily or by a person hired for the purpose. [19] The court went on to observe at paragraph 75: The determination of the proper award for loss of housekeeping capacity is not a simple task.

Housekeeping is generally considered toinvolve direct labour and management (Personal Injury Damages in Canada, supra, note 2 at 325.). Not everyone's standards are thesame. Not every household shares tasks in the same way. Further there is a distinction to be made between tasks which can no longer bedone by a plaintiff and those which a plaintiff may do but take longer time to do or are done with pain. If a plaintiff can still dohousekeeping but with pain, or taking longer time, that is an item of general damages, not an item under loss of housekeeping capacity(McCallum v.

Ritter (1990), (SK CA), 72 D.L.R. (4th) 49 (Sask. C.A.); and Beam v. Pittman, supra.). [20] I am satisfied that the Plaintiff’s injuries have affected her ability to do household tasks. For the first year or so following theaccident, I accept that she was severely restricted. She hired someone to assist with some heavier house cleaning during November 2018,however, other than this she relied on family members who were not compensated. After that first year or so, the evidence establishesthat her impairment is far less but still persists.

Considering these circumstances, I assess the Plaintiff's entitlement to damages for pastloss of housekeeping capacity at $3,000 and future loss of housekeeping capacity at $4000. Special damages [21] The Plaintiff claimed the following out-of-pocket expenses that she incurred as a result of the incident. She filed receipts forall expenses[2].

I have accepted the following expenses as proved: Cost of new glasses not covered by insurance $ 90.00Prescription medication not covered by insurance $ 38.15Therapeutic aids and supports $ 259.50Housekeeping services $ 240.00Personal care services $ 920.00Driving services $ 500.00Meals during trips for medical treatments $ 301.41Gas $ 1,575.01Total $ 3,924.07 [22] The personal care services were provided by the Plaintiff’s daughter. Given that this is not an arm’s length relationship, I havegiven particular consideration to the amount claimed.

The Plaintiff paid her daughter $10.00 each time that she came to her house to help

her bath or shower. She did this four times a week for 23 weeks. This was the period of time the Plaintiff was in a cast. I find the expense to be reasonable and I have allowed it. [ 23 ] The driving services were provided by the Plaintiff’s son. Again, because this is not an arm’s length relationship, I have given this expense particular consideration. The Plaintiff paid her son $20.00 per trip for his driving services. She paid for his meals and his gas separately. She paid the same amount whether the trip was to Clarenville or St. John’s. Between August 29, 2018 and February 13, 2019 she paid him for 25 trips.

The Plaintiff testified that a round trip from Sweet Bay to Clarenville is 106 kilometers. I take judicial notice of the fact that a round trip from Clarenville to St. John’s is approximately 380 kilometers. I find that the payments to her son for driving services were reasonable and I allow them. [ 24 ] I found the meal expenses to be reasonable. They included some meals for the Plaintiff’s son, which I also found to be reasonable. [ 25 ] The Plaintiff filed a large number of gas receipts for gas she paid for both her and her son related to trips for medical treatment.

The difficulty was that each receipt could account for more gas than was used on the trip. The Plaintiff kept notes of all of her medical appointments. From those she was able to determine that during the course of her recovery she took 46 trips to Clarenville for appointments with Dr. Chaytor and for physiotherapy and, in at least one instance, to get therapeutic aids she needed. She estimated that a round trip from Sweet Bay to Clarenville used about $20 to $25 in gas. I found this reasonable and allowed a gas expense of $22.50 per trip for 46 trips. [ 26 ] The Plaintiff had eight trips to St.

John’s to see the orthopedic surgeon. For one of these she paid her son-in-law $120.01 (the price of a full tank of gas) to take her there and back. He drives a large truck. I found this to be a reasonable expense and I allowed it. For the other seven trips, she estimated the gas expense for either her or her son to be $60.00 return. Again, I found this to be a reasonable expense and I allowed it. Cost of medical services [ 27 ] The Plaintiff filed “Third Party Liability Service Costs Invoice” certified by one P.

Gilles to be the costs of services provided to the Plaintiff in relation to this accident under the Newfoundland Hospital Insurance and/or Medical Care program as of April 8, 2021. The total amount is $10,993.39, which includes prejudgment interest of $389.78. This amount is allowed. COSTS [ 28 ] The Plaintiff seeks her costs of this application. Notwithstanding that the application was not opposed, the Plaintiff put effort into the presentation of her claim. I found that she did so fairly and that she was reasonable in her requests for compensation.

In these circumstances, I allow costs of the application on Column 3 of the Scale of Costs in the Appendix to the Rules . DISPOSITION [ 29 ] The Plaintiff is entitled to damages, interest, and costs as follows: i. General non-pecuniary damages of $50,000.00; ii. Non-pecuniary damages for diminished housekeeping capacity of $3,000.00 for past and $4000.00 for future; iii. Special damages of $ 3,924.07; iv. Cost of medical services, including prejudgment interest of $10,993.39; v. Prejudgment interest in accordance with the Judgment Interest Act , R.S.N.L. 1990, c.

J-2 (without duplicating the interest award on the cost of medical services); vi. Costs calculated in accordance with Column 3 of the Scale of Costs in the Appendix to the Rules . _____________________________ Katherine O'Brien Justice