The plaintiff was injured in a trip-and-fall incident while visiting a house located in North York and, as a result, she suffered injuries. She was attending a scheduled dental appointment with the defendant Anna Shifrin, who runs a dental practice from the premises. A one day undefended trial took place on November 3, 2022.
The plaintiff testified, along with submission of an expert engineering report addressing the state of the steps at the entrance where she fell. The engineering report outlined that the steps were not in compliance with the Ontario Building Code.
She was taken to the hospital and was examined. A fracture of her fifth metatarsal was identified in her right foot. A cast was applied.
A medical report was prepared by the plaintiff’s family doctor that outlined that even after the cast was removed, the plaintiff continued to experience pain and swelling in her right foot. He prescribed physiotherapy and rehabilitation sessions. Despite the treatment, the plaintiff continued to experience pain and was ultimately diagnosed with chronic pain syndrome in her right foot.
A further medical report was prepared by Dr. Michael West, an orthopaedic surgeon along with a Form 53. Dr. West was confirmed to be an expert by the court. Dr. West’s report identified that the plaintiff has experienced unremitting symptoms for 4.5 years (since the accident) despite having participated in appropriate treatment. He confirmed the family doctor’s diagnosis of chronic pain syndrome and stated that the plaintiff would likely require treatment and/or medication on an ongoing basis.
The plaintiff testified that she resides in a two-room apartment with her 80-year-old husband. As a result of her injuries, she has been unable to complete her own housework and has experienced a loss of enjoyment of life due to the pain and swelling in her right ankle. She has been unable to return to her pre-accident social activities including dancing and must wear slippers all the time instead of shoes. The plaintiff had to retire from her former job working as a cook at a deli and prepared foods store as she was unable to stand on her feet for the duration of her shifts without pain.
The plaintiff was able to demonstrate that she had suffered a loss of income, required the services of a housekeeper and attendant to assist with care and was required to pay for medical treatments, medications and transportation to appointments.
The plaintiff submitted case law to support the general damages amount being claimed of $35,000. Justice Morgan noted that case law on damages is very fact specific. He noted the general damages awards in the cases provided by counsel ranged from $20,000 to $50,000. Justice Morgan felt the middle range case presented of McMillan v. Lefleur, [1992] BCJ No. 401 was appropriately comparable.
The plaintiff was awarded $35,000 for general damages; special damages of $30,940 (including $3,106 for out-of-pocket medical expenses, $25,000 for housekeeping services (past and future) and OHIP’s subrogated claim of $2,834.02); lost wages of $2,040 for a total award of $67,980. In addition, costs of $20,000 inclusive of all fees, disbursements and HST was awarded with the Justice noting that the plaintiff’s costs were modest under the circumstances and supported by a Bill of Costs filed.
