Alex Mooswa v. Raven Roy, 2013 SKPC 160

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 160 Date: October 3, 2013 File: SC#94 of 2013 Location: Saskatoon _____________________________________________________________________________ Between: Alex Mooswa and Raven Roy - and - Empire Investment Corporation, c.o.b. as “Northwoods Inn and Suites” Mr. John D. (Jack) Hillson For the Plaintiff Ms. Kate R. Joa For the Defendant _____________________________________________________________________________ JUDGMENT R.

GREEN , J _____________________________________________________________________________ I INTRODUCTION [ 1 ] October 21, 2011 was not a happy day for Alex Mooswa and his step-daughter Raven Roy. These plaintiffs claim against the defendant as a result of an incident in which Ms. Roy was cut by glass from a mirror which fell off the bathroom wall in their suite at the Northwoods Inn and Suites. They claim for: (1) the cost of rental and the damage deposit Mr. Mooswa paid to the defendant hotel; and (2) damages for pain and suffering as a result of the injuries suffered by Ms. Roy.

II BACKGROUND [ 2 ] Mr. Mooswa brought his family, including Ms. Roy, to Saskatoon this day to do shopping for the children. They arrived at the Northwoods Inn around 10:30 p.m. Mr. Mooswa rented a suite, and paid rental of $393.80 together with a security deposit of $100.00, in advance. [ 3 ] The children - including Ms. Roy, who was 16 years of age on this day but 18 years of age at the date of trial - went swimming. Ms. Roy returned to the room within thirty minutes. Mr. Mooswa saw her go into the bathroom, to take a shower. Not long after, he heard a scream, and Charmaine Roy (Ms.

Roy’s mother) ran to the bathroom door. Mr. Mooswa then saw that Ms. Roy’s foot was bleeding severely and tried to stop the bleeding by applying a towel to her foot. He also saw that the mirror had fallen off the wall in the bathroom onto the floor and that the floor was covered with shattered glass from the mirror and with Ms. Roy’s blood. [ 4 ] Ms. Roy said the pipes were making a noise while she showered. She got out of the shower, and was wiping her feet with a towel when the mirror beside her fell off the wall and broke into many pieces on the floor.

This cut her foot and, as a result, she jumped back into the tub, with a piece of glass protruding from her left foot. She then jumped out of the tub onto the towel that she had dropped, in an attempt to get out of the bathroom and to seek help from her mother and step-father. She was crying and in considerable pain as a result of the injury. [ 5 ] Mr. Mooswa said Charmaine Roy called down to the front desk about what had happened. A staff member attended to the room but there was no offer of help or of calling an ambulance. Mr. Mooswa then took Ms. Roy to the Emergency Ward of Royal University Hospital.

After three hours, she was seen by a doctor who put stitches into her feet: eighteen into her left foot and three into her right foot, and was given pain killers. [ 6 ] Dr. Bedard was the attending physician at the hospital. In a letter (Exhibit P-2), he said he observed blunt trauma to both of Ms. Roy’s feet, with a deep laceration to her left foot and a laceration to her right foot. He said the injury to Ms. Roy’s left foot required deep and superficial sutures and that there was an area of loss of sensation near the cut. [ 7 ] Mr. Mooswa brought Ms. Roy back to the Northwoods Inn.

There he discovered that their suite had not been cleaned up. Glass and blood still covered the bathroom floor. He received no offer of another room or any apology from the staff of the hotel. Nor was the defendant prepared to refund the rental he had to pay or his damage deposit. As a result, he took his family to another hotel where they spent the night. [ 8 ] The next day Ms. Roy required a wheelchair at the mall where her family went to shop and she was unable to try on any shoes. She returned to school about a week after the accident. Three weeks after the accident she could walk without pain.

She was not able to play soccer for a couple of months and was unable to participate in gym for a month. She suffered a clearly visible scar on her left foot, a minor scar on her right ankle and the loss of feeling in the middle toe of her left foot. III LIABILITY OF THE DEFENDANT

a) Is the defendant liable to Mr. Mooswa for the suite rental and damage deposit? [ 9 ] Regarding Mr. Mooswa’s claim for return of the rental fee and damage deposit, Ms. Joa, for the defendant, claimed that he was not entitled to a refund as the form Mr. Mooswa signed upon arrival contained a disclosure clause which said: “I agree to the terms and policies of the hotel particularly the no refund policy for room payment”.

I disagree. [ 10 ] The hotel form as well stated: “The hotel management is not responsible for any accident and/or burglary that could cause damages and/or losses to any vehicle, body injury or death”. I am not satisfied that either of these clauses serve to prevent liability

against the defendant. That is because: (1) these clauses were never drawn to the attention of Mr. Mooswa when he registered; and (2)regardless, I view these clauses as unconscionable and of no effect in these circumstances. [11] Counsel for the defendant conceded that Mr. Mooswa and his family acted reasonably when they refused to stay in their suite,upon return from the hospital. Aside from the issue of the non-applicability of the disclaimer clauses, in my view the mirror incident,and the resulting inaction by employees of the defendant hotel, resulted in a fundamental breach of this contract of rental.

To put itsimply, this family had no choice but to leave. As a result, Mr. Mooswa and his family did not get what Mr. Mooswa paid for. In total, Iam satisfied on a balance of probabilities that Mr. Mooswa is entitled to recover the rent and damage deposit he paid to the defendant.

b) Is the defendant liable to Ms. Roy for pain and suffering resulting from the accident? [12] Regarding Ms. Roy’s claim for pain and suffering, Ms. Joa argued that the defendant took reasonable care of the building toensure the safety of customers. Remarkably, in its Dispute Note, the defendant as well asserted that any injuries suffered by Ms. Roywere caused by her own actions or the actions of Mr. Mooswa and his family. I disagree with each of these propositions. [13] Alan Jamieson is the Maintenance Manager at the Northwoods Inn and was so on this date. He was called to the hotel after9:00 p.m. this day.

He claimed he, in his position, routinely responded to a list of items to be repaired as identified by the housekeepingstaff. He had checked his list, leading up to this day, and could find no mention of a problem in the suite Mr. Mooswa rented. Hetestified that the mirrors in each bathroom of the hotel were securely attached, but admitted that, when he attended at this room, he couldsee that the plastic clips on this mirror had broken resulting in the mirror falling to the ground. He said no mirror had fallen to theground in the four years he had worked at the Northwoods Inn. On cross-examination, Mr.

Jamieson admitted that the drywall, uponwhich the mirror was attached, could lose strength if it became wet. [14] Considering this very unfortunate incident, I am satisfied that the defendant was under a legal obligation to take reasonablecare to protect the safety of Ms. Roy, a paid resident of this hotel. I am satisfied to the same standard the defendant did not do so. I findthat the mirror in this bathroom fell to the ground, and injured Ms. Roy, as a result of the negligence of the defendant, whether as a resultof the plastic clips holding this mirror breaking or detaching from the drywall.

I am further satisfied that a patron of a hotel is entitled toreasonably expect that the mirror in the bathroom will be secure and will not fall to the ground and shatter. To suggest that Ms. Roy orMr. Mooswa and his family were the cause of this accident, or contributed to it in some way, is in my view devoid both of proof tosupport that proposition and of reason. [15] Mr. Hillson submitted that an appropriate level of damages for pain and suffering for Ms. Roy would be $15,000.00. He citedthe authorities:

(1) Hagenbuch v. Fisher (Sept. 17, 1986) Dkt. No. Nanaimo SC 6703 (B.C.S.C.), was a case in which $12,000.00 in damages wasawarded for an injured lower leg and ankle, which resulted in stitches, a large scar, discomfort and permanent numbness to a 20 year oldfemale. Adjusted for inflation, that level of damages was equivalent to $22,687.21 in 2013.

(2) Yardy v. Peters, (B.C.S.C.) was a motor vehicle case where the plaintiff had pain in his arm and elbow for one totwo months, pain in his shoulder for 16 - 17 months and pain in his buttock which soon resolved. The primary injury was to his left footwhere he experienced numbness and tingling in his big toe and left foot and tenderness from scar tissue. These symptoms affected hishiking, running and floor hockey. The Court awarded damages of $30,000.00, said by the Court to be at the high end of the range.

(3) Bear v. Lambos, 2005 SKQB 148, was a case where a newborn’s intravenous tube was wrongfully inserted. This caused swelling inthe infant’s foot and caused a severe burn requiring a skin graft which was successful. Damages for pain and suffering were assessed at$12,000.00. Adjusted for inflation, this amount would be $13,812.38 in 2013.

(4) Lutz v. Limb, 2009 BCSC 1539, was a case where the defendant drove his vehicle onto the foot of the Plaintiff. This resulted in asoft tissue injury to the foot. The plaintiff used a cane to help him walk for some time and his condition plateaued within the first year. There remained an area of his foot that was constantly numb and tender and nearly four years after the accident the Plaintiff’s conditionwas described as a permanent partial disability. The trial judge awarded $45,000.00 in non-pecuniary damages to the plaintiff.

[ 16 ] Ms. Joa submitted that an appropriate level of damages for pain and suffering for Ms. Roy would be between $2,000.00 and $3,000.00. She cited the authorities:

(1) Lock v. Insurance Corp. of British Columbia (1990), 16 C.C.L.I. (2d) 42 (B.C.S.C.) , where the plaintiff suffered a fracture to her foot as a result of an automobile accident. She suffered significant pain for about two months during her recovery, and made a full recovery, although she did experience a mild reduction of movement in certain toes. The Court awarded $5,000.00 as general damages, which is $7,830.79 adjusted for inflation.

(2) Elder v. Westfair Foods Ltd. , 2001 ABPC 94 , where the plaintiff was shopping and a milk crate fell on her foot. She sustained a broken toe and suffered from her injuries for six or seven months, when she was able to resume her routine. The court awarded general damages of $3,000.00 - $3,753.05 adjusted for inflation - but suggested a larger amount may have been awarded if claimed.

(3) Margaret Rason v. Westfair Foods Ltd. , 2000 ABPC 197 , where a grocery store trolley fell on the plaintiff’s foot, causing a fracture which restricted her routine for approximately three months. The court awarded $5.000.00 for pain and suffering, which is $6,431.00 adjusted for inflation. [ 17 ] Ms. Roy suffered significant cuts to her feet, requiring twenty-one stitches. The deep laceration to her left foot left an unsightly scar and a loss of feeling in her middle toe. She returned to school a week after the accident and after three weeks she could walk without pain.

She was unable to participate in gym for a month or to play soccer for two months. While I agree with Ms. Joa that Ms. Roy’s injury is not as serious as those set out in the cases cited by her lawyer, I, nevertheless, am satisfied that she suffered an injury more serious than those set out in the cases submitted by the defendant. Taken together, considering the injuries suffered by Ms. Roy and the submissions of counsel, I am satisfied that an appropriate level of damages for pain and suffering for Ms. Roy is $10,000.00. IV CONCLUSION [ 18 ] For the reasons stated above:

(1) Alex Mooswa shall have judgment against the defendant in the amount of $493.00, together with interest on this amount under The Pre-judgment Interest Act from October 21, 2011 and the costs of issuing this claim ($20.00); and

(2) Raven Roy shall have judgment against the defendant in the amount of $10,000.00, together with interest on this amount under The Pre-judgment Interest Act from October 21, 2011. R. Green, J