This four-week virtual judge-alone trial involved a plaintiff who sustained a brain injury as a result of being struck in the head with a bocce ball while sitting on a patio at a local public house. Despite returning to work full-time approximately three months following the incident, she was not able to match her pre-injury productivity in her commission-based employment. The Honourable Justice Heather Williams awarded the plaintiff approximately $1.7M in damages, including approximately $1M in future income loss. The plaintiff was found to have a residual earning capacity of approximately $100K per year. The past and future income losses awarded were based on a finding that her productivity and efficiencies at work were detrimentally impacted by her injuries and that she was no longer able to reach her maximum potential
Background
On September 16, 2015, the plaintiff attended Local Public Eatery (hereinafter “Local”) with some friends to celebrate her birthday. While seated on the patio and speaking with her friends nearby, the defendant, Pierre Goulet, was playing bocce ball on a court installed by the pub adjacent to the patio. Upon seeing a friend standing near the plaintiff’s table, the defendant threw a bocce ball across the patio towards him. The ball fell short, striking the plaintiff on the back of her head. The plaintiff suffered a mild traumatic brain injury, resulting in persistent symptoms of headaches, fatigue and sensitivity to light and noise, as well as cognitive impairments including reduced information processing speed and reaction times, and difficulty with sustained attention and visual and auditory learning. She was also eventually diagnosed with major depressive disorder.
The plaintiff was highly motivated to return to work despite her persistent symptoms. Approximately three months after the incident, she returned to work full-time as a commissioned sales consultant for a company which sold assistive medical devices, including wheelchairs and walkers. Despite her best efforts, the plaintiff struggled to meet the cognitive and physical demands of the job as she had done prior to the incident. As a result, she was less efficient, more fatigued and forgetful. She began to adjust her workday so as to pace herself and thereby manage her symptoms, scheduling fewer client meetings back-to-back, and managing her workload in general.
Liability
Despite significant efforts made by counsel for the defendant, Mr. Goulet, to suggest that Local was liable for the plaintiff’s injuries, Justice Williams found that Mr. Goulet was 100% liable.
Although Local was initially named as a defendant in the lawsuit, it was not represented at trial as a result of a Pierringer Agreement with the plaintiff made earlier in the lawsuit. At trial, the remaining defendant and the plaintiff both agreed that Local owed a statutory duty of care to the plaintiff. However, only the defendant argued that the duty was breached, submitting that signage should have been in place setting out the rules of play, and that barriers should have been erected to segregate the bocce court from the seating area of the patio.
Justice Williams found that Local failed to exercise the applicable standard of care by failing to erect a sign setting out the rules for bocce ball on the court prior to the incident. However, she rejected the defendant’s arguments that a barrier ought to have been erected due to a dearth of evidence on the standard of care with respect to such barriers. Notwithstanding the breach of the standard of care, Justice Williams was not persuaded that the failure to post the rules of bocce ball on the court caused the plaintiff’s injuries, and therefore found that the defendant, Mr. Goulet, was 100% liable.
Damages
The plaintiff presented significant evidence, accepted by the trial judge, on the impact that her injuries had on all aspects of her life. As a result of her headaches and fatigue, which were exacerbated upon activity, the plaintiff had to learn how to manage symptoms at work, recreationally, socially and when with family. Therefore, when she needed extra focus at work, she would curtail her social and recreational activities. Justice Williams also found that work and caring for her young daughter would leave the plaintiff with little energy for her partner or other activities, and that her weekends would be focused on rest. As a result, she awarded the plaintiff $125,000 in general damages.
The plaintiff was also awarded over $142,000 in damages for future care, including psychological therapy, occupational therapy, housekeeping and home maintenance, and snow removal/lawn care. In addition, Her Honour also awarded an income tax gross-up on the future care award. Out-of-pocket expenses, comprised mostly of treatment expenses, were awarded in the amount of $23,733.80.
With respect to future loss of income, the plaintiff led significant evidence from her employer and former colleague on what they earned as sales consultants selling wheelchairs, walkers and other assistive devices. Her Honour noted that the plaintiff’s current and past colleagues earned within a range of $120K to $230K in 2021 and accepted her employer’s evidence that he expected his top consultants to earn between $140K to $160K per year. Based on this, Justice Williams found that but for the bocce ball incident, the plaintiff would have earned $120K in 2022, $135K in 2023 and $150K thereafter, until retirement at age 65. She also found, based on the plaintiff’s expectations of being able to earn $90K to $100K per year, that she had a residual earning capacity of $100,000 per year. After applying a 20% contingency reduction on the difference between the expected earnings and residual earning capacity, accounting for present value until her eventual retirement, and including an income tax gross-up also awarded by the trial judge, the award for future income loss is just above $1M.
Justice Williams also awarded a past income loss of $228,093, accounting for the three months that the plaintiff was unable to work, and the reduced productivity thereafter until the date of the trial.
Other Key Takeaways
This case is also noteworthy for a few other reasons.
As mentioned above, the plaintiff was successful in obtaining an income tax gross-up on both the future care and future income loss awards. These gross-up calculations could not be undertaken prior to the verdict, as their calculations required a factual finding regarding the plaintiff’s residual earning capacity. However, it is anticipated that the tax gross-up on the future care award will approximate $16,500 and the gross-up on the future income loss award will approximate $120,000.
In addition, the medical experts retained by the defendant were heavily criticized by the trial judge. Dr. Christopher Hope was called by the defendant following a neuropsychological exam administered in May of 2021. Justice Williams noted that Dr. Hope admitted to leaving out significant information regarding the plaintiff’s psychological problems when testifying in chief. Her Honour noted that he did not demonstrate an in-depth knowledge of the plaintiff’s treatment history. Although Dr. Hope noted that work aggravated the plaintiff’s symptoms, he could not explain how, nor could he recall the nature of her work. In chief, Dr. Hope testified that based on the plaintiff’s neuropsychological testing, he could not rule out the possibility of inadequate effort, but when pressed on cross examination, he admitted the test results were valid, but ought to be viewed with caution – not because of a possible lack of effort, but because of the plaintiff’s tendency to deny minor shortcomings. Dr. Hope testified that the plaintiff failed a memory malingering test, but admitted on cross-examination that the score was actually a caution and not a failure. Finally, Her Honour also found that Dr. Hope had no rough notes of his interview, but rather produced a rough draft of his report. Her Honour found that while this may have been an edited version of the notes he took, it could not have been the document he prepared during his interview with the plaintiff. All of the above caused Justice Williams to place little weight on Dr. Hope’s opinion, stating:
“All of these issues forced me to doubt whether Dr. Hope truly appreciated, in this case, that his duty is to provide evidence that was fair, objective and non-partisan prevailed over any obligation he may have owed to the party by whom he was engaged.”
Justice Williams also rejected the evidence of defence ophthalmologist, Dr. Lapointe, as it was neither relevant nor necessary. However, Her Honour did note that Dr. Lapointe failed to preserve her original interview notes. Following her review of the evidence of Drs. Hope and Lapointe, Her Honour made the following comment:
“One further observation: By now, it should be apparent that expert witnesses who fail to maintain their interview notes do so at their peril. Even if the notes are very rough (Rolley v. MacDonnell, 2018 ONSC 6517) or in “franglais”, as Dr. Lapointe described hers, they may strengthen the witness’s opinion by supporting its foundation. If these notes are not available, and particularly if the expert has taken active steps to destroy them, their absence from the expert’s file is a factor a court may consider in reaching the opposite conclusion (Bruff-Murphy v. Gunawardena, 2017 ONCA 502.)”
The decision is currently under appeal.
