The Lopez v. City of Toronto court decision was released by the Ontario Superior Court of Justice on February 7, 2013.

On the sunny afternoon of December 30, 2008, Jose Lopez was walking with his family on a walkway leading to Nathan Philips Square in Toronto. Suddenly, he slipped and fell in an area where there was a patch of ice. As a result of the slip and fall, Mr. Lopez suffered a fracture of the tibia and fibula of his right leg.

Mr. Lopez hired Toronto personal injury lawyers and took action against the City of Toronto for negligence resulting in his injuries.

According to the City of Toronto, maintenance staff patrol the walkway at 8 am every day to check for unsafe conditions. After the first patrol, the security officers patrol the area throughout the day. Two of the three security officers, confirmed that they had made their rounds for December 30 and did not see any hazards on the walkway. Mr. Lopez submitted that the inspection and maintenance systems were not carried out with reasonable care because on the morning of December 30, the inspection that was carried out failed to result in the reporting of a hazard in respect of the patch of ice and therefore nothing was done to remove the hazard.

The City submitted that because the walkway was wide, the patch of ice would not have been a hazard. The court rejected this view and concluded that the patch of ice was an unsafe condition because the walkway could reasonably be expected to receive the traffic of a number of pedestrians entering or leaving the walkway at the same time. Such traffic could reasonably be expected to be heavy enough to obscure the view of pedestrians in the walkway, with the result that they might not see the patch of ice in time to avoid it.

According to the court, the fact that the patch of ice was situated in the middle of a pathway that would reasonably be expected to receive heavy traffic indicates that the walkway was not “reasonably safe” as required by section 3(1) of the Occupiers Liability Act. The court concluded that the City of Toronto was in breach of its duty of care and that it was the negligence of the City that caused the accident.

The court also, concluded that although Mr. Lopez did not see the patch of ice, he reasonably ought to have seen it.  According to the court, Mr. Lopez was contributorily negligent because the patch of ice was sufficiently visible from at least about 5 feet away which means that Mr. Lopez had ample time to see and avoid the patch of ice unless his view was obstructed. There was no evidence that his view was obstructed.

In assessing damages, the court noted that following the accident, Mr. Lopez experienced pain in his right leg. The area was swollen and bothered him frequently. Mr. Lopez was retired but there was no suggestion that his retirement was prompted by his condition following the accident. However, Mr. Lopez experiences some limitation in his ability to take part in activities that were a regular part of his life prior to the accident including recreational, social, domestic activities and forms of exercise.

The court awarded Mr. Lopez 50% of the following damages:

• $45,000- damages for pain and suffering

Have you or a loved one suffered a slip and fall accident and experienced injuries? Click here for a free referral to a top slip & fall lawyer in your area.

The Olivier v. Pat and Mario’s Restaurant court decision was released by the Ontario Superior Court of Justice in Sudbury on January 16, 2013.

On March 1, 2008, 81 year-old Wanda Olivier went to Pat and Mario’s restaurant in Sudbury. Mrs. Olivier was attending a birthday party in the “back room” of the restaurant.  Leading into the room there is a step which is a 5½ inch elevation with an overhang which extends one inch past the step. To the right of the step there is an 8 x 10 inch sign which has on it printed in red, “please watch your step”. It was at this step where Mrs. Olivier suddenly slipped and fell. As a result of the fall, Mrs. Olivier suffered a broken right shoulder which required surgical intervention and physiotherapy.

Ms. Olivier hired Ontario personal injury lawyers and sued the restaurant for damages as a result of her slip and fall accident and injuries.

The Restaurant submitted that it has met its obligation under Section 3(1) of the Occupier’s Liability Act and that its premises were reasonably safe and further that it did all that it could to ensure the safety of Mrs. Olivier while she was on the premises. The Restaurant’s position is that Mrs. Olivier was, on more than one occasion, verbally warned of the step into the back room and the sign posted provided a sufficient warning. Mrs. Olivier submitted that there was no verbal warning of the step, particularly because there was no staff member accompanying her to the back room. Furthermore, Mrs. Olivier claimed that her view of the step and the warning sign was obstructed due to the route taken to the back room.

According to the witness testimony of Mr. Jaas, a patron of the Restaurant, the steps and sign leading into the back room were directly in front of the Mrs. Olivier due to the route she took to the back room. He also confirmed that there was a staff member accompanying Mrs. Olivier who stated “please watch your step”, 9 to 11 feet from the step.

The court considered the witness testimony presented and concluded that the Restaurant did not take such care in all the circumstances that was reasonable to ensure that Mrs. Olivier was reasonably safe while on the premises of the Restaurant. The court stated that the Restaurant breached their duty to keep the premises safe because the steps were not illuminated in any way. The court further added that neither the size nor location of the sign provided Mrs. Olivier with an adequate warning of the inherent danger in the elevation. However, the court determined that Mrs. Olivier was not as diligent in walking up the stairs. Mrs. Olivier was apportioned 25% of the liability because she admitted to being “excited” about the party and disclosed that she shifted her sight from the floor to look into the back room as she was stepping on the elevated step.

When assessing damages, the court noted the testimony of Dr. Cheong, Mrs. Olivier’s physician. She concluded that Mrs. Olivier’s shoulder was fractured and out of place and that surgical intervention was necessary to hold the shoulder in place and to allow it to heal. Mrs. Olivier lost a range of motion in the shoulder and required physiotherapy. Dr. Cheong reported that she expected “no further improvements” and that the shoulder reached a point of “tolerable pain”.

The court awarded Mrs. Olivier 75% of the following damages:

• $50,000 – damages for pain and suffering
• $1,015.99- special damages for an electronic chair

Have you or a loved one been injured in a slip & fall accident? Click here for a free referral to a top slip & fall lawyer in your area.

On April 2, 2005, 17-year old Jesse Ferguson was driving on Scenic Drive, a rural road in the County of Brant, when he suddenly failed to navigate a curve, crossed through the lane for oncoming traffic and eventually crashed into a tree. As a result of his accident, Mr. Ferguson suffered serious and permanent disabilities.

At the time of the accident, a driver approaching the curve would have observed a worded “Winding Road” sign placed 166 meters from the beginning of the curve and a “Y” intersection sign placed 81 metres from the beginning of the curve.

Mr. Ferguson hired Ontario personal injury lawyers and sued the County of Brant for negligence resulting in his injuries.

At trial, Mr. Ferguson argued that the County breached its obligation to keep its road in a state of repair because it failed to install signs that adequately warned ordinary motorists of the risk of navigating the accident curve. Secondly, the Country allowed a condition of non-repair to exist on Scenic Drive in the nature of a slippery, slushy and snow-covered road, which created an unreasonable risk of harm to motorists.  The County responded by arguing that Mr. Ferguson was not exercising reasonable care.

After considering all the evidence, including expert testimony, the court concluded that the signage was inadequate because the Ontario Traffic Manual required a sharp curve sign and a graphic winding road sign.  The Court submitted that by not installing proper signage, the County allowed drivers to believe that the curve was gentler than it really was and it prevented drivers from knowing that there was a lower advisory or safe speed for negotiating that curve. The court concluded that had Brant provided proper signage Mr. Ferguson could and would have reduced his speed sufficiently to successfully negotiate the curve. However, the court apportioned 45% of the liability to Mr. Ferguson due to his failure to drive slower as was required by the road conditions on the day of the accident.

At the outset of the trial, an agreement between Mr. Ferguson and the County had been reached concerning the quantum of Mr. Ferguson’s damages. Mr. Ferguson was thus entitled to 55% of the agreed upon amount.

Have you or a loved one been seriously injured in a single-vehicle accident? Click here for a free referral to a top motor vehicle accident lawyer in your area.

Eleven years ago, Sean Taylor and Mathew Depew joined a group of friends on a camping trip. A narrow dirt road was the only entry and exit point to their campsite. During the trip, Taylor’s motorbike collided head-on with Depew’s dune buggy on the dirt road as each rounded a corner. The force of the accident fractured Taylor’s thigh bone just above the knee.

Taylor hired Vancouver personal injury lawyers and sued Depew for negligence resulting in his injuries.

At trial, each party argued that the other should be held to a greater degree of liability. The court concluded that Depew should bear 70% of the responsibility for the accident and Mr. Taylor should bear 30%. Taylor and Depew both travelled along this stretch of road many times before the accident. They both knew that the road was not wide enough for two vehicles to pass so they should have driven slowly around the bend. However, the court concluded that Depew should hold a greater degree of responsibility because he was warned twice immediately before the accident to be careful because Taylor was out on the road on the motorbike. Also, Depew did not brake immediately upon seeing Taylor.

When assessing damages, the court accepted testimony from. Dr. Brian Bogue, Mr. Taylor’s family doctor, and Dr. Rubin Feldman, a physical medicine and rehabilitation specialist. Dr. Bogue described Mr. Taylor’s injury as “severe”. He said that Mr. Taylor developed lower back pain and headache due to his injuries. Dr. Bogue was of the view that Mr. Taylor’s main problem is chronic pain, the severity and chronicity of which has caused significant depression and interfered with all aspects of his life, despite the use of pain killers and therapy. Dr. Feldman further added that Mr. Taylor “will undoubtedly end up having a permanent partial disability which will likely continue to give him discomfort for the remainder of his existence”.

The court awarded Mr. Taylor the following damages at 30% liability discount:

• $115,000- damages for pain and suffering
• $90,040.50- loss of future earning capacity
• $2,981.00- medical expenses
• $1,740- cost of future medical care
• $15,000- loss of future housekeeping capacity
• $70,000- loss of income after the accident and prior to trial

Have you been injured in a motor vehicle off-road accident? Click here for a free customized referral to a top accident lawyer in your area.

On January 24, 2005, Sukhjinder Dhaliwal was exercising at the Premier and Curzon Fitness Clubs in Brampton, Ontario. He was a member of the fitness club since 2002 and exercised there on a regular basis. During his exercise, Mr. Dhaliwal was using a vertical leg press weight machine. In between his repetitions, Mr. Dhaliwal walked to the drinking fountain. There was a puddle of water near the fountain which caused Mr. Dhaliwal’s running shoes to get wet. He stomped his feet to get rid of the water and went back to the same weight machine. While using the machine, Mr. Dhaliwal’s right foot slipped off the foot platform that controlled the movement of the weights. He quickly tried to restore the locking device to prevent the descent of the weights, but was unable to do so. When the weights came down, the distal phalanx of the small finger on his right hand was crushed by the falling weight sled weighing 365 pounds.

That same day, Mr. Dhaliwal underwent a surgical amputation of the end phalanx of his small finger. Mr. Dhaliwal took only a few days off from work, and returned shortly to his job. He was in occupational therapy for three months. He made a relatively speedy recovery however, Mr. Dhaliwal still experiences pain and sensitivity in his finger, especially when it comes into contact with objects.

Mr. Dhaliwal hired Toronto personal injury lawyers and filed a lawsuit against Premier Fitness Clubs Inc., claiming that this unfortunate event was caused by the defendant’s  failure to keep the  premises reasonably safe for its members.  Premier argued that they did what they reasonably could to ensure that water spills near the water fountain were cleaned up in a timely way by hiring a full-time cleaning company and this responsibility was supplemented by their own employees when necessary.

The court ruled that there is an affirmative duty on occupiers to make their premises reasonably safe for persons entering them, by taking reasonable care to protect them from foreseeable harm. Premier. failed in their affirmative duty because no evidence was presented to demonstrate that their maintenance program was implemented and was in proper and active use on the day of the accident. At trial, an expert in biomechanics confirmed that when a shoe is wet, it increases the chances of slippage on a vertical leg press weight machine. The judge accepted the wet shoes as the “only plausible explanation” for the accident.

However, the court also determined that Mr. Dhaliwal was also responsible for the accident as he should have foreseen the danger of operating the vertical leg press with wet shoes. Thus, the court determined that there was 50/50 liability between the plaintiff and the defendant.

When assessing damages, the court noted Dr. Krajden’s testimony. Dr. Krajden was the plastic and reconstructive surgeon who treated Mr. Dhaliwal for his injury. He argued that the amputation was a “permanent and serious disfigurement” of Mr. Dhaliwal’s hand, and caused “decreased grip strength, cold intolerance and discomfort that is exacerbated by any type of repetitive duties or heavy gripping.”

The court awarded Mr. Dhaliwal 50% the following damages:

• $25,000- damages for pain and suffering
• $780- loss of future earning capacity
• $3,104.84- medical expenses and drug prescriptions
• $20,000- cost of future health care (cost of obtaining a prosthesis for the aesthetic appearance of his finger)

Have you been injured as a result of negligence by another person or business? Click here for a free customized referral to a top negligence lawyer.

On August 31, 2007 truck driver David Morrison delivered a load of load of logs to a lumber mill and headed towards Merritt, BC. Suddenly, the stake on his piggybacked trailer struck overhead power wires and pulled down the power pole.  The pole fell down on a vehicle being driven by David Baxter, smashing onto his right-front fender and hood.

Mr. Baxter did not immediately experience pain after the accident, but later felt pain in his neck, arm pain, and shoulder. He experienced numbness in his right arm, thumb, and first finger.  His symptoms started getting worse after a few months and he underwent anterior cervical spine fusion two years later.

Mr. Baxter retained Kamloops car accident lawyers and sued the truck driver as well as his employer for negligence causing his injuries.

At trial, the court found that the truck driver was negligent for failing to ensure that the stakes on his piggybacked trailer were in the down position. According to the trial judge, “Any reasonable professional truck driver would have realized that those wires crossing the highway posed a potential hazard of serious harm unless the stakes on the trailers were in a position that would allow proper clearance.” The truck driver argued that he could not see whether the stakes were increased by looking at the mirrors but the court found that he should have stopped his rig and performed a visual walk-around inspection of his truck.

When assessing damages, the court noted that Mr. Baxter (who was 47 at the time of the accident) was not able to pursue his leisure activities as vigorously as prior to the accident.  The court also noted the opinion of Mr. Baxter’s physicians was he had a mild degree of permanent disability as a resulting of his ongoing neck pain.

The court awarded Mr. Baxter the following damages:

• $100,000 – damages for pain and suffering
• $30,000 – loss of future earning capacity
• $41,000 – cost of future health care

Have you or a loved one been injured in a motor vehicle accident, click here for a free referral to a top car accident lawyer in your area.

The Witt v. Vancouver International Airport Authority court decision was released by the Supreme Court of British Columbia on August 10, 2012.

On December 8, 2006 John Witt was walking along a roadway at the Vancouver International Airport. He walked towards a shuttle bus that would take him to his vehicle, which was parked in a long-term parking lot. Metal plates were placed on the roadway due to a construction project taking place at the airport. Mr. Witt was injured when he stepped through a gap between two metal plates, causing him to fall onto the plates.

Prior to the slip and fall, Mr. Witt suffered from a fairly significant degree of degenerative spondylosis and arthritis in his low back, right hip, and right knee. However, Mr. Witt had considerable and continuing pain and suffering in his low back, right hip, and right knee as a result of the fall. The fall made him unable to walk long distances, unable to enjoy golfing, hiking and tennis, and caused reduced sleep and energy levels. Further, the fall negatively affected Mr. Witt’s disposition and his marriage.

Mr. Witt retained a British Columbia slip and fall lawyer and sued Vancouver International Airport Authority and those involved in the construction project for the injuries that he suffered as a result of the fall.

At trial, the court found that the metal plates were not secured properly which inevitably resulted in a gap that constituted a danger in a high traffic area such as an airport roadway.  The area was deemed “not reasonably safe for the use of persons such as Mr. Witt and the area constituted a trap, a dangerous condition, and an unusual danger”.  The court also found that Mr. Witt did not contribute to the accident in any manner.

In assessing damages, the court found that some but not all of Mr. Witt’s back pain was a result of the fall. Also, Mr. Witt was now more susceptible to develop spinal stenosis as a result of the fall. Regarding his right hip, the court found that he continued to have severe pain from time to time and discomfort when sitting. As a result of the fall, his osteoarthritis had become more systematic and this had become the case earlier than if the fall had not occurred. The fall also caused severe pain in his hip and produced early onset degenerative spondylosis and arthritis. Regarding his right knee, the court found that, as a result of the fall, the pain and weakness experienced by Mr. Witt had accelerated the existing degenerative arthritis so that Mr. Witt now required surgery.

Medical specialists made a number of recommendations for treatment, including physiotherapy; work with a kinesiologist; localized treatment options, including corticosteroid injections; use of an off-loader brace; a referral to an orthopaedic surgeon to discuss possible hip joint replacement; a referral to a surgeon for possible decompressive surgery; and medical options, including the use of tricyclic antidepressant, tramadol or pregabalin. However, Mr. Witt did not undertake any of the treatment recommendations. Consequently, the judge found that Mr. Witt failed to mitigate his damages and reduced the order for pain and suffering damages by 20%.

The court awarded the following damages:

• $80,000 – pain and suffering damages (reduced from $100,000)
• $600, 000 – loss of future earning capacity

Have you suffered a slip and fall injury? Click here for a free referral to a top slip and fall lawyer in your area.

On the evening of Wednesday, March 26, 2008 Elizabeth Roscoe was playing badminton in a gymnasium owned by Halifax Regional Municipality. As she was moving backwards to return a high shot, her right foot was suddenly stopped by a piece of duct tape on the floor. She felt immediate pain in her right knee. Medical examination later determined that she had a torn meniscus.  She underwent a variety of therapies and treatments for the injury, including arthroscopic surgery. Within 14 months, she returned to most of her pre-incident activities, with some residual effect.

Ms. Roscoe hired Halifax personal injury lawyers and sued Halifax Regional Municipality for negligence and failing to keep the gymnasium safe for patron.

At trial, the court found that HRM breached the standard of care owed to Roscoe because staff knew that tape had previously been used on the gym floor during daytime activities and that it was a foreseeable hazard to badminton players. The court found that HRM took insufficient steps to ensure that the gym was clear of tape and other foreign objects.

Ms. Roscoe was a competitive golfer and had difficulty playing after the accident. While golfing, she required a cart, whereas she would normally walk. She was unable to play as well or as often as she wanted. She missed tournaments because her golf game had become so poor. Her ability to garden was also affected because she could not squat. Instead, she used a stool. She also had trouble walking down steep hills. Otherwise, Ms. Roscoe was back to her normal activities by June or mid-June of 2009 and her ability to work was not affected.

The court awarded her the following damages:

• $25, 000          General Damages for pain and suffering
• $1, 290            Special Damages (renting a power cart for golf)
• $3, 593.36       Past Cost of Care (treatment and therapy not covered by her medical plan)
• $397.12           Pre-judgment Interest

Have you or a loved one been injured in an accident, click here for a free customized referral to a top personal injury lawyer in your area.

On April 22, 2005 Catherine Chisholm was sitting in the driver’s seat of her vehicle, eating her lunch. Her vehicle was parked in a designated parking space at a shopping mall, the engine was off and she was not wearing her seatbelt.  Her vehicle was struck from behind by Noreen Lindsay’s vehicle, which was travelling between 33 and 41 km/h. Ms. Chisholm’s vehicle then struck the vehicle parked in front of her and then struck another vehicle parked on the right. Ms. Chisholm immediately suffered from slight dizziness and weakness, along with facial pain and swelling. As she also had slight abnormalities in blood pressure and pulse rate, the EMT who responded decided to transport Ms. Chisholm by ambulance to the hospital for a further checkup.

At the time of the accident, Ms. Chisholm was 31 years old and working full time as a special education teacher. After the accident Ms. Chisholm was not able to do as many activities, and had trouble processing information. She also suffered from remittent pain when she performed activities. The accident also caused right knee pain, weakness, laxity and dysfunction. As a result, she required physiotherapy, massage and exercise programs and possibly arthroscopy in the future.

Prior to her accident Ms. Chisholm’s dental history was unremarkable other than occasional jaw clicking. After the accident, she experienced headaches, sore teeth, difficulty chewing, and difficulty opening her mouth wide. She was diagnosed with temporomandibular pain and dysfunction and was prescribed a splint to wear at night to take pressure off the TM joint. Her doctor was of the view that she would probably have to wear an orthotic for the rest of her life.

Ms. Chisholm hired car accident lawyers in Calgary and sued Ms. Lindsay for the injuries she suffered as a result of the accident.

At trial, liability for the accident was admitted and thus sole issue was that of damages. An expert medical witness testified that he believed Ms. Chisholm had suffered from a mild traumatic brain injury and suffered symptoms of post-traumatic stress disorder. Ms. Chisholm herself testified that her greatest difficulty was overwhelming fatigue.

In assessing damages, the court noted that Ms. Chisholm would not be able to return to full time work in the immediate future.  She may be able to do so when her children are school age with proper pain management and appropriate psychological counselling, however with a correspinding 10-15% decrease in income. If her pain and other symptoms did not decrease, she would only be able to return to part time work and even that could be difficult for her.

The court awarded the following damages:

• $90,000 – General Damages for Pain and Suffering
• $4, 250            – Loss of Housekeeping Services
• $45, 000 – Cost of Future Medical Care
• $125,000- Loss of Income Earning Capacity

Have you been injured in a car accident? Click here for a free customized referral to a top car accident lawyer in your area.

On June 2, 2007 Edward Jack was visiting his cousin at the Goldcrest Apartments in Gold River, B.C. The apartments were owned and managed by Peter Tekavec.  Mr. Jack was leaning against the balcony when suddenly the balcony railing gave way and caused him to fall three stories to the ground.

Mr. Jack was taken by ambulance to the Campbell River Hospital and then transported by air from Campbell River to Vancouver General Hospital (VGH) where he was admitted on June 3, 2007. Mr. Jack spent three weeks at VGH before being re-admitted to the Campbell River Hospital. After two weeks he was released to his parents’ home. He spent one month in a wheelchair and a further month on crutches.

Mr. Jack’s injuries included a broken pelvis, fractured ribs, fractured vertebrae, and internal injuries resulting in hernias.  While in hospital, he developed pneumonia requiring a tracheotomy.  His pelvis fracture required a metal plate and screws. His pelvis fracture healed but he lost 2 inches in height. At the time of trial (three years later) Mr. Jack weighed less than 200 lbs and walked with a slight limp. Six months after the accident he returned to work but was unable to do heavy lifting.

Mr. Jack hired BC personal injury lawyers and sued Mr. Takavec for negligence in maintaining the premises resulting in fall and injuries.

At trial, the court found that Mr. Tekavec, a former carpenter, was aware that the railing had gone rotten in places and that someone had performed a very poor repair job in an attempt to fix it.   A year prior to Mr. Jack’s accident, a tenant in the apartment building had fallen from the balcony. As Mr. Tekavec was the landlord, he had the opportunity to correct the work but had not chosen to do so. Thus, the court found him to be 100% liable for the Mr. Jack’s injuries.

In assessing damages, the court noted that it was unlikely that Mr. Jack would require further surgery. He was found to have a 60% chance of suffering from ongoing discomfort in the regions of the sacrum and around the pubis. He would also have permanent numbness on the outer side of his left thigh, and would likely continue to have intermittent numbness on the inner part of his knee.  He would also have permanent intermittent low back pain with evidence of degenerative changes.  The court commented that Mr. Jack continued to work as an excavator operator as well as engage in his recreational activities of hunting and fishing, but with a degree of discomfort. Further, the judge found that he was unable to hunt in the same manner as he did previously.

The court awarded the following damages:

$100, 000        General Damages for pain and suffering

$78, 000          Loss of Income

$125, 000        Loss of Capital Asset (his physical ability)

$5, 000            Loss of Housekeeping/Maintenance

$5, 000            Future Care (the cost of orthodics and non-prescription pain medication)

$1, 963.76       Special Damages

$2, 500            “In Trust” Claim (Mr. Jack’s parents took him into their home during his recovery)

$5, 000            Management Fee (financial advice to assist with the management of the award)

Have you or a loved one been injured as a result of negligence by a third party? Click here for a free referral to a top personal injury lawyer in your area.