2011 QCCQ 8345, 2011 QCCQ 8345

Yu c. Commission scolaire English-Montreal 2011 QCCQ 8345 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-160158-096 DATE: July 14, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ HU XUA YU Plaintiff vs.

COMMISSION SCOLAIRE ENGLISH-MONTREAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Hu Xua Yu, a graduate of the Rosemount Technology Center, sues the Commission Scolaire English-Montreal ("English- Montreal"), the entity responsible for this center, for damages related to an incident of personal injuries sustained by Mr Yu on March 30, 2007. [ 2 ] The incident occurred in a laboratory where Mr Yu and its classmates were performing certain measurements on a mechanical device related to the course entitled: "Automated Systems in Electromechanics." [ 3 ] The tip of Mr Yu's left thumb was sectioned when his thumb was suddenly drawn into a chain and sprocket mechanism that was turning as Mr Yu measured the current drawn by the machine using an electronic instrument. [ 4 ] Mr Yu claims damages for the reparation of bodily and moral injury, which he attributes to fault on the part of English- Montreal. [ 5 ] In its defence, English-Montreal denies having committed any fault in relation to the incident which it attributes to the fault of the Plaintiff and, subsidiarily, contests the damages claimed as being exaggerated. [ 6 ] Initially, English-Montreal also pleaded that the incident constituted a work-related accident, which could give rise to indemnities under the regime administered by the CSST and that therefore no civil recourse is possible before the Court. [ 7 ] This position led to an intervention on the part of the CSST in these proceedings. [ 8 ] At the trial, English-Montreal declared that it was abandoning this ground of defence and the CSST's intervention, therefore, became without object.

QUESTIONS IN ISSUES [ 9 ] The Court must decide:

A) Whether English-Montreal caused the injury to the Plaintiff by its fault;

B) Whether the injury is, in whole or in part, the result of Mr Yu's own fault and, in such case, establish the apportionment of fault;

C) Determine the appropriate quantification of the bodily and moral injury. FACTS [ 10 ] Mr Yu was born in August 1971 in China. He studied at the technology education department of the Zhejiang Institute of Technology from September 1989 to July 1993, graduating with a Bachelor's Degree of Engineering in July 1993 before immigrating to Quebec in September 2002. [ 11 ] He worked in China as an electrical technician involved in the design, maintenance and repair of automated systems. In this context, he was considered to be an electrical engineer.

Mr Yu describes himself in Quebec as an electrical technician. [ 12 ] Mr Yu became a student at the Rosemount Technology Center in September 2006. At the time, he was receiving unemployment insurance benefits having lost his job as a chef in an oriental restaurant. [ 13 ] The course at the Rosemount Technology Center was suggested to him because it dealt with automated systems, a field related to the work he had done before immigrating to Quebec. [ 14 ] Mr Yu is a father of young children. Prior to the accident, he had several hobbies including playing guitar and piano, crafting wood furniture and painting.

He also was physically active in sports such as ping-pong, basketball and badminton. The course [ 15 ] The program entitled: Automated systems in Electromechanics is given at the Rosemount Technology Center over a period of one and a half years.

It consists of twenty-seven modules, the contents of which are prescribed by the Ministry of education. [ 16 ] The program leads to a « DEP diplôme d'étude professionnelle ». [ 17 ] The purpose of the course is to prepare students to enter the workforce as technicians working in various capacities in connexion with mechanical / electrical systems in a variety of commercial and industrial applications.

The training given is multi- disciplinary dealing with both electricity and plumbing. [ 18 ] In addition to general modules such as the trade and training process, health and safety, using computers, drawing sketches, etc.

There were also more specific modules such as checking electrical circuits, performing manual machining operations, cutting and welding, connecting conduits, maintaining mechanical devices, assembling pneumatic circuits, maintaining motor circuits, calibrating a control loop, etc. [ 19 ] The modules have both theoretical and practical components taught respectively in classroom and a laboratory settings. [ 20 ] The events occurred during the practical component of a module called "maintaining mechanical devices" .

The assignment and the apparatus [ 21 ] This specific assignment on the morning of March 30, 2007, called upon the students to use measuring instruments to conduct measurements such as electrical current, power and potential and speed of revolution (RPM). The apparatus on which the measurements where to be taken was a machine known as a "garage door opener" used in industrial settings.

The apparatus consists of an electrical motor connected through a system of pulleys, chains and sprockets to the garage door mechanism that raises and that lowers it. [ 22 ] In an industrial setting, the apparatus would be mounted on the ceiling and would be operated by a switchbox connected to it by electrical wires having three buttons ("ouvrir", "fermer" and "arrêt"). [ 23 ] In a real setting, the switch would be placed at a height appropriate for operation remote from the placement of the apparatus, which is pointed at a height of eight to ten feet. [ 24 ] When installed, the apparatus incorporates several safety devises to cause the motor to stop if too much resistance is placed on the garage door when it is lowering, to prevent damage to persons or objects found in the path of the descending door. [ 25 ] In the laboratory, several of these garage door openers were sitting on worktables placed around the perimeter of the laboratory.

There were placed upside-down in relation to the way they would be mounted in an industrial setting. The chain and sprocket mechanism protrudes below the base of the frame holding the motor and mechanical elements in place and in order to provide clearance, the apparatuses were placed on wood or metal blocks lifting them a few inches off the table. [ 26 ] A photo (P-3) shows views of the apparatus placed on what appears to be the leg of a chair. The remote switchbox, connected to wires extending through a small whole to the interior of a box-like structure, hangs from these wires, at a slight angle.

It is in proximity, within a few millimetres, of the chain and sprocket that protrudes below the base of the apparatus. The chain wraps around a large sprocket and two smaller sprockets. [ 27 ] These are connected by axles to the opposite side of the box-like structure where there is a pulley mechanism attaching a belt to the motor. When the motor is on, the pulley mechanism drives the sprocket causing the chain mechanism to turn. [ 28 ] In order to test the current being drawn by the equipment, it was necessary to operate it, i.e. for the motor to be running and the sprocket and chain mechanism to be turning.

The incident [ 29 ] March 30, 2007, was the fourth day of the "maintaining mechanical devices" module. The teacher, Mr Daniel Pearson, had, on an earlier day, shown the laboratory to the students. He had shown them the benches and the approximately eight machines that were placed around the benches in the perimeter of the workspace. Mr Pearson testified that he mentioned to the students that this was a machine running on 110 AC current, that there were no guards around the chain and sprocket mechanism.

This was a piece of live equipment with electrical current, moving parts and no protection. [ 30 ] On the morning of March 30 th , the class began at 8 am. The students had on hand a work order specifying the various tests to be conducted. They had already been given instructions on the manner of using the instruments and had studied a schematic diagram.

In order to have access to the equipment, they had to take off the cover of the box-like structure, which involved removing some screws. [ 31 ] Mr Pearson testified that the power-switch of each apparatus was placed on the top of the box, therefore, away from the moving parts consisting in the sprocket and chain mechanism. [ 32 ] His intention was for the students to remove the metal cover on which the box was sitting and then to replace the switch at the top of the open box on a relay box that happens to be there and provides a sort a platform on which the box can sit. [ 33 ] Mr Pearson says the he gave this instruction to the class verbally without actually demonstrating it to them. [ 34 ] Although, the wires connected to the switch proceed from an opening in the side of the box, there is enough length of wiring to permit the placement of the switch on the top of the apparatus away from the moving parts. [ 35 ] According to Mr Pearson, the switch is not supposed to be hanging from the wires down on the front of the apparatus as it is seen in the photograph (P-3).

He believes that the photograph shows the placement of the switch after, not before the accident. [ 36 ] The group in which Mr Yu was to work consisted of two other individuals known as "Harpaul" and "Tony".

Mr Pearson remembers directing these two individuals to make sure the switch is away from moving parts placed on the top of the apparatus and that these instructions were given in such away that all the students could hear them. [ 37 ] Mr Yu arrived in the class late that morning after these instructions were given and after his laboratory partners Harpaul and Tony had already removed the plate on the top of the box. [ 38 ] Mr Yu testified that he arrived late because of complications in traffic and a tire that had to be reinflated. He arrived in the class with his back-sack and ordinary street shoes.

Mr Pearson told him to stow his back-sack in his locker and to come back with his safety boots and glasses as required by the safety instructions all the students had already received. [ 39 ] Upon returning and asking for instructions, Mr Pearson, who was talking with the school director, directed him to the procedures written on the display board and told him to speak to his laboratory partners who would fill him in on the instructions. [ 40 ] Mr Harpaul Trehin testified that he does not recall any specific instructions about the placement of the switch on top of the box. [ 41 ] When the event occurred, Mr Yu had attached the electrical meter to the power source.

The measuring instrument was placed to the right end side of the apparatus on the bench. He turned the equipment on, pressing the button on the switch box using his left hand, and was looking at the electrical meter to take the reading. His hand gradually came down from the position it was in when suddenly he felt his hand drawn into the mechanism, his left thumb became caught in the sprocket chain mechanism that was turning and was sectioned partway through the thumbnail. [ 42 ] Mr Pearson testifies that he was in the room when this occurred looking in another direction.

He heard yelling; he heard Mr Harpaul say "what did you do that for?" ; he heard Mr Yu say "I don’t understand" . [ 43 ] When he looked, he saw that Mr Yu had his hand in a closed position. Mr Pearson told the students to close off all their machines, asked Mr Yu to show him the injury. He then took Mr Yu to the administrative office so that first aid could be administered.

An ambulance and police were called and Mr Yu was taken by ambulance to the CHUM Hôpital Notre-Dame where he was treated for what was referred to as an amputation. [ 44 ] The wound was cleaned and stitched and Mr Yu was treated as an out patient returning once to the Hospital and having follow up visits at the CLSC for changing of the bandages.

He also under went physiotherapy to restore movement and functionality to the hand. [ 45 ] Some of the students had recuperated the tip of the thumb that had been severed and it was put on ice and taken with Mr Yu to the hospital, but the doctors were not able to reattach it. [ 46 ] Mr Yu only missed a few hours of the course; his accident coincided with the beginning of a spring break. He completed the rest of the course and graduated and found gainful employment in his field.

The consequences of the injury [ 47 ] At the hearing, the parties admitted jointly that the injury caused a partial permanent incapacity referred to in the admission by the technical term "deficit anamato-physiologique" of 3%. [ 48 ] Mr Yu testifies that as a result of his injury, he can no longer pick up small objects with his left hand which is weak and

lacking in flexibility and cannot hold on to objects for very long. [ 49 ] Mr Yu is naturally left handed although he learned to use his right hand because left handiness was, culturally, discouraged during his youth in China, a situation that is not different from that which prevailed traditionally in Quebec.

He writes with his right hand, but he is left-handed. [ 50 ] He states that he has no sensation on the top surface of the thumb and the nail grows into the skin and has to be clipped constantly. [ 51 ] His Doctor suggested removal of the nail but he insisted on keeping it: without the nail he would consider his hand to be deformed. [ 52 ] In his work as an electrical technician, he needs to use tools such as drills and he has difficulty holding them with his left hand. He has difficulty, for example, picking up wires and manipulating various tools.

Jobs that were simple before have now become difficult. [ 53 ] In his personal life, he can no longer hold a guitar as he did before and has abandoned his other activities such as painting, basketball, and badminton.

He has given up carpentry, which he performed at a high level of skill, which he now considers to be too dangerous. [ 54 ] Mr Yu is a proud man who as always been an excellent student, a fact confirmed by Mr Pearson. [ 55 ] As a result of this mutilation, he has suffered a loss of confidence, sometimes feels depressed to the point of crying and considers the scars and loss of function to be something he must live with for the rest of his life. [ 56 ] He feels a loss in having to give up the pleasure associated with his activities. [ 57 ] The Court noticed that Mr Yu holds his left hand in such a way that the tip of his thumb is always placed against his index finger.

When he picks up a piece of paper, he does not use his thumb and index finger preferring to grasp the paper between his index and second finger. From a distance, the abnormality is not obvious because the thumbnail is intact but the thumb is visibly scared and shortened. [ 58 ] Mr Yu favours his left hand and tends to keep it out of view which belies his embarrassment.

Mr Yu is a man of slight build and quiet disposition, very polite and dignified and showing no animosity towards the Defendant. [ 59 ] The physical limitation of function that he speaks of has not affected his job prospects. [ 60 ] The Rosemount Technology Center recognized Mr Yu's qualities as an inventor.

He excelled in the robotics program and has, since graduating, devised specialised machinery for his employers. [ 61 ] The Court got the impression that, although Mr Yu sees his work as being manual or involving manual skills, his contribution as an employee is as much intellectual as it is physical involving imagination, creativity and skill. [ 62 ] There was no claim for loss of income. ANALYSIS Responsibility of the English-Montreal [ 63 ] Consider the general extra contractual liability of

article 1457 al. 2: Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature. [ 64 ] Students invited to practice testing on the mechanical apparatus the day of the events were adults and, in the case of Mr Yu, a person already having a fairly high degree of education and on-the-job experience. [ 65 ] For someone like Mr Yu, it would have been obvious that the chain and sprocket mechanism, clearly visible and without any protective device, constituted a potential danger. [ 66 ] This was an obvious fact. [ 67 ] One can only guess why this type of machine was chosen for demonstrations and practice: the purpose of the exercise was to enable the students to become familiar with the operation of electronic testing devices such as voltage meters, not to navigate around dangerous equipment. [ 68 ] The machinery in question, taken out of its ordinary environment, certainly provided an opportunity to perform those tests but no explanation was offered for the use of a piece of equipment for this purpose that included a mechanical hazard, particularly one that could be dangerous for the users' hands. [ 69 ] The machine in question does not have any chain guard because, when it is used in commercial applications, no person would be close enough to the machine to touch it.

[ 70 ] When it was taken out of its environment and put in an upside down configuration on a work bench, it was put in an environment where it was never intended do be used. [ 71 ] In creating conditions to simulate a workshop area where a student, once graduated, could be called upon to test and repair the machine, the persons who devised the experiment connected the equipment to a standard power switch.

In doing so, they had to decide where to place this switch. [ 72 ] In the industrial environment, it would be remote from the device in such away that a user who would turn the switch on or off to raise or lower the garage door would be performing a gesture that was inherently safe. [ 73 ] The aspect of the actual installation on the work bench that is surprising is that the control switch was connected with a very short wire to the machine so that rather than using it remotely, the students had to use it within a few inches of the moving parts that were inherently dangerous. [ 74 ] Mr Pearson's admonition to the students to keep the switch box on the top of the machine away from the moving parts was a sensible one which, if adhered to, would limit the risk of harm. [ 75 ] The fact remains, however, that the short length of the wires connecting the switch to the machine was such that one possible and very natural position for the switch was in a position facing the user right beside the sprocket driven by the chain. [ 76 ] This would not be as dangerous for a right-handed user standing in front of the machine because his hand would approach and retreat from the switch from the right hand side.

His hand would not normally come into the scope of the moving parts. [ 77 ] For a left-handed user, however, it would be natural to approach and retreat from the switch from the left-hand side in the immediate vicinity of the chain and sprocket. [ 78 ] The Plaintiff's accident is an illustration of what can occur. His left hand moved to the switch to press the button to turn it on and then he looked over to the right to the instrument that he was about to read.

As he slowly removed his hand from the switch, the natural direction in which it returned toward the side of his body brought it directly into contact with the sprocket.

His thumb got cut between the sprocket and the chain and, in an instant, the damage was done. [ 79 ] The causa causans of the accident was the configuration of the switch on a length of cord such that the switch, when left to rest hanging from the cord, was dangerously close to the moving parts. [ 80 ] The user would be ill advised to deliberately place the switch box in that particular spot but it was one of the possible spots the switch could be found in and the one that it would naturally go to unless a user deliberately and consciously placed it on the top of the machine. [ 81 ] If the user was concentrating on something other than the optimal placement of the switch, for example, if he was concentrating on taking measurements, it is not unlikely that the switch could be found in that dangerous position. [ 82 ] In the case of Mr Yu, the position was particularly dangerous because he was left-handed. [ 83 ] Mr Yu was also at a handicap because he was not present at the beginning of the class and was nevertheless invited, when he arrived late, to join the group and pick-up his laboratory work with them.

He was given no specific instructions. [ 84 ] Mr Pearson tended to rely upon the other students to fill Mr Yu in on what they were doing, implicitly relying upon them to give Mr Yu instructions as to the use of the switch.

Mr Harpaul did not remember receiving any such instructions or warnings and Mr Yu testified that none were conveyed to him by Mr Harpaul or the other individual in his group who did not testify. [ 85 ] Essentially, the remote switch should have been used remotely: the configuration in which it was connected to the apparatus, set up for testing purposes, brought the remote switch into close proximity to a dangerous part of the machine, the sprocket and chain mechanism. [ 86 ] In order to operate the machine, Mr Yu had to use the switch box and, in the position in which that box was found when he approached the machine, his hand necessarily came within the dangerous area. [ 87 ] This constituted a trap for Mr Yu who, because he was in a classroom environment, could have expected that due care had been taken to set up the test apparatus in an appropriate fashion. [ 88 ] It would not have been appropriate for Mr Yu to question the way the test apparatus was presented to him.

He was in a school environment where he could rely upon the expertise of the people supervising him. [ 89 ] English-Montreal, the moral person responsible for the set-up in the laboratory, bears the legal responsibility for the consequences of the accident. English-Montreal is responsible for the omission of the persons who set this apparatus up. [ 90 ] These persons should have known that the placement of the switch was ill advised.

It created a danger that was not inherent in the machine and that was not apparent to the user who, in the absence of a specific instruction, would not readily see that there was an option permitting him to use the switch in a position that was more remote from the dangerous area. [ 91 ] It was easy for the user's hand to move in proximity to the dangerous zone, as part of its natural movement from the switch to arresting position, especially in the case of a left handed individual like Mr Yu. Responsibility of the victim

[ 92 ] The Court finds no element of fault on the part of Mr Yu. He was not distracted, did not fail to do anything he was instructed to do nor did he do anything he was instructed not to do. [ 93 ] He was not guilty of a careless act. After he turned the switch on with his left hand, his thoughts and attentions were directed to where they should have been, i.e. to the reading of the electronic meter.

His left hand was virtually passive when the accident occurred and it only had to move a few inches from the switch to come into contact with the dangerous area. [ 94 ] English-Montreal put a lot of emphasis on the fact that Mr Yu is an unusually skilled student and that he was of above- average intelligence and experience. [ 95 ] These are somewhat subjective considerations and it cannot be said that Mr Yu had a special duty to be careful than another student would not have had. [ 96 ] The accident did not occur because of carelessness, it occurred to a person who was acting in an ordinary, careful manner.

It occurred because there was an unexpected risk to a person acting naturally. Changes made to the machine after the events [ 97 ] Photographs of the manner in which the machine is now configured were produced.

Approximately two months after the events, there was a concertation and a suggestion was adopted to install the machine on a stand consisting of four pieces of angle iron to raise it up from the bench and the control switch was positioned on one of these vertical pieces of metal in an area that was, in fact, remote from the machine itself. [ 98 ] The Court does not wish to make any comment, positive or negative, on the advisability of this new configuration. [ 99 ] The Court does not have the expertise to comment on whether it is a good idea or not.

Obviously, the switch is now placed in such a way that Mr Yu's accident would be less likely to occur if he had been working on the machine as presently configured, but it is for the Defendant, not the Court, to evaluate whether other possible accidents have been eliminated. [ 100 ] This evidence was given without any objection, the objection coming only when the question was asked to Mr Pearson as to why this new configuration was arrived at. [ 101 ] The Court heard his answer under reserve of an objection.

His answer was to the effect that the Director of the program suggested the changes, those involved met and a consensus was reached to carry them out and the students were given the project of setting up the apparatus with the new configuration as part of a pedagogical process. [ 102 ] In Quebec civil law, there is clear authority for the proposition that repairs or modifications made after an accident cannot constitute a tacit admission [1] . [ 103 ] In a strict sense, such evidence is not relevant, because not part of the circumstances of the incident [2] . [ 104 ] In common law jurisdictions, the principle is often supported by a classic passage from Hart v.

Lancashire & Yorkshire R. Co. [3] : Although, I have no desire to occupy time unnecessarily, I think that there are matters of considerable importance involved in this particular case. One of them is, that people do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous.

It would be, as I have often had occasion to tell juries, to hold that, because the world gets wiser as it gets older, therefore it was foolish before. [ 105 ] In Alberta, in the Toll case [4] , reference is made to the Hart case and to the other often-quoted passage of Coleridge L.C.J., in Beever v. Hanson [5] : Now, a perfectly humane man naturally makes it physically impossible that a particular accident which has once happened can happen again, by fencing or covering, or at any rate making safe the particular thing from which it arose.

That, however, is no evidence of, and I protest against its being put forward as evidence of, negligence. A place may be left for a hundred years unfenced, when at last some one falls down it; the owner, like a sensible and humane man, then puts up a fence; and upon this the argument is that he has been guilty of negligence, and shews that he thought the fence was necessary because he put it up. This is both unfair and unjust.

It is making the good feeling and right principle of a man evidence against him. [ 106 ] But the Alberta Court characterised the question in terms of probative value, rather than admissibility, stating that the jury had the right to consider such evidence as being "logically relevant" along with other evidence, so long as the jury received a warning from the judge, that this evidence, taken alone , is no evidence of negligence. [ 107 ] The Toll case was cited in Canadian Pacific Railway Co. v.

City of Calgary [6] as authority for a ruling as to the compellability of such evidence on discovery. [ 108 ] There are cases going in both directions [7] , and, while this cannot be taken as an exhaustive list of relevant cases, one can surmise that, in common law jurisdictions, this is not an easy point to settle. [ 109 ] Decisions to exclude such evidence may be supported by questions of policy.

An American source is particularly instructive in that regard: The admission of such acts, even though theoretically not plainly improper, would be liable to overemphasis by the jury, and … it would discourage all owners, even those who had genuinely been careful, from improving the place or thing that had caused the injury, because

they would fear he evidential use of such acts to their disadvantage; and thus not only would careful owners refrain from improvements, but even careless ones, who might have deserved to have the evidence adduced against them, would by refraining from improvements subject innocent persons to the risk of the recurrence of the injury. [8] [ 110 ] Thus the exclusion of proof of subsequent actions may not be based on questions of relevance in the strict sense; it may be that Courts are reluctant to permit evidence if its inclusion could inhibit socially beneficial actions. [ 111 ] I may be that, in a legal context that grew out of the jury trial, such evidence should be excluded because it is highly prejudicial and of low probative value and, therefore, dangerous for a jury of lay persons to consider unless a strong warning is given. [ 112 ] In the present case, the Court comes to its conclusions as to the liability of the English-Montreal independently of any consideration of the subsequent actions. [ 113 ] The Court endeavoured to analyse the specific facts and the specific accident that occurred, isolate the specific cause and evaluate the conduct of English-Montreal, and of the Plaintiff in light of the abstract principles set out in the second alinéa of

article 1457 CCQ. [ 114 ] The result is not different whether the evidence of the subsequent conduct is included or excluded from the case. Quantum [ 115 ] The accident has had a lasting impact on the Plaintiff both physically and psychologically. There is a significant impact on his enjoyment of hobbies where use of the hand is required.

This impact is not sufficiently serious, however, to have impaired the Plaintiff's ability to earn a livelihood in his field. [ 116 ] Fortunately for him, the Plaintiff is not merely a manual labourer, he is a person of creativity and intellect and someone who has a good work ethic. That is probably why there is no claim for pecuniary loss except an invoice for the ambulance of $126.75. [ 117 ] The claim for non-pecuniary damages totals $67,500. [ 118 ] The non-pecuniary damages can be thought of as variables on several axes.

The classic technical evaluation of partial incapacity, the DAP, is set by the parties' joint admission at 3%. [ 119 ] In addition to the functional limitation, the injury is an aesthetic prejudice because the lack of physical integrity is manifest. [ 120 ] The scar is different from a typical scar on the abdomen or leg where it can be hidden most of the time with ordinary clothing. The hands, by definition, are in full view and, along with facial expression, constitute an important means of communication. A scar on the hand that does not affect its geometry is different from a scar that changes it.

In this case the scar presents as a slight amputation. [ 121 ] The Plaintiff compensates for this by keeping the tip of his thumb hidden from view by pressing it into other parts of his hand.

He may do this as well because of the sensitivity in the thumb, as a protective measure to avoid painful impacts. [ 122 ] The Plaintiff's way of dealing with the scar is part of his perception that he is not whole. [ 123 ] While this represents serious prejudice, it must also be put into context and considered in proportion with other cases in terms of an objective assessment of quantum. [ 124 ] In Roy , a case with a similar injury to a 57-year-old farm worker give rise in 2009 to an assessment of $16,000 in non-pecuniary damages. [9] [ 125 ] The technical assessment was 5% according to the CSST scale and a 1% aesthetic prejudice. [ 126 ] In the present case, the level of pain and discomfort may not be as great, but the impact on the Plaintiff's leisure activities is more acute. [ 127 ] In contrast, in Gladu , a case of a much more serious hand injury, involving a 19% incapacity and a surgical amputation of part of the index finger, an award of $72,000 was made for non-pecuniary prejudice. [10] [ 128 ] Considering the trauma of the event, the functional aesthetic loss and the inconvenience and loss of time involved in medical treatments as a whole including the particular loss of which the Plaintiff complains in terms of the enjoyment of his hobbies, the Court arrives globally at a quantum $20,000.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay, to the Plaintiff the sum of $20,126.75, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from the date of service of the Introductory Motion; THE WHOLE , with costs, including the costs of the Plaintiff's expert report.

__________________________________ DAVID L. CAMERON, J.C.Q. Mtre Papa-Mike Diamonde Attorney for the Plaintiff Mtre Guy Régimbal NEAGHER RÉGIMBAL Attorneys for the Defendant, Commission Scolaire English-Montréal Me Nancy Béliveau VIGNEAULT THIBODEAU GIARD Attorneys for the CSST Dates of hearing: May 25 and 26, 2011