Date: 20000525 Docket: S.H. No. 139555C IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: DAVID PLUMMER and J.D. IRVING LIMITED, body corporate, doing business under the name and style of KENT BUILDING SUPPLIES DEFENDANT HEARD: at Halifax, Nova Scotia before the Honourable Justice David MacAdam on April 25-27, 2000 DECISION: May 26, 2000 COUNSEL: J. Brian Church for the plaintiff David P.S. Farrar for the respondent MACADAM, J.: [1] The plaintiff injured his right knee when he tripped over a “dolly-cart” while attending at the premises of the defendant, J.D. Irving Limited, doing business under the firm name and style of Kent Building Supplies (herein “Kent”) at Bayers Lake Business Park, Halifax, Nova Scotia. [2] The plaintiff operates sole proprietorship known as Markham Contracting which is involved in house renovations through the winter period and landscaping in the summer. On Wednesday, July 5, 1995, he was attending the Kent premises to pick up lumber and other materials for job on which he was working. He entered the building from the yard where he had left his vehicle, and which was being loaded with lumber by Kent employee, proceeded to pick up screws, nails and other materials, and then returned to what is known as the “contractor’s desk” located close to the glass doors separating the lumber yard from the interior of the building. When he entered the building, he did not notice “dolly” or other obstruction by the contractor’s desk and when he returned he was positioned on the side of the desk facing towards the glass doors. He completed his business, chatted with Kent employees and then proceeded along the front of the desk, intending to walk towards and through the glass doors to the lumber yard. As he turned the corner of the desk, he tripped over the end of “dolly” which had been placed with the handle end against the side of the contractor’s desk. The cart extended approximately four feet into the aisle separating the contractor’s desk from the display aisles located directly across. [3] The plaintiff agreed the distance of 13 1/2 feet, suggested by counsel for the defendant as the width of the aisle, was probably correct and also stated the “dolly” was located one to two feet inside the corner. He says as he was standing conducting business at the contractor’s desk he did not notice the “dolly” and that, when he first entered the premises, he had not seen anything located on the side of the contractor’s desk facing towards the aisle. He says, as he left to proceed the two or three feet along the front of the counter before turning to his right with the intention of exiting through the glass doors and taking what he described to be the shortest path, being straight line, he did not observe the “dolly” at any time. [4] He says as he proceeded his foot struck the bumper located at the end of the “dolly”, farthest from the contractor’s desk, and this caused him to trip and fall. He says he was embarrassed, in shock and responded to Kent employees who approached him that he appeared to be alright. [5] He indicated he never expected the “dolly” to be there and that the counter was higher than the highest part of the handle of the ”dolly”, agreeing with defence counsel the counter was some three to four inches higher than the top of the handle. He said that, over the approximate one year the store had been open prior to this incident, he had never seen “dolly” in this location and added it was type of “dolly” used by both Kent employees and sometimes by contractors, but not by the general public. [6] In response to defence counsel, he agreed he heard “dolly” being pushed, noting they make quite racket, but also adding he was used to the racket and therefore did not pay much attention to the noise. He said, at the time he tripped over the bumper at the end of the “dolly”, he was wearing work boots and proceeding at normal pace. After picking himself up, he went out to the yard, retrieved his vehicle, and proceeded to the gate to leave Kent’s premises. [7] He says his knee was bothering him but he didn’t give it lot of thought and felt it would heal itself. He dropped the materials off at the work site at approximately 8:30 to 8:45 in the morning and then noticed the knee was beginning to swell. By later in the morning, he knew it was really bothering him so he dropped in to see his family doctor, Dr. Brennan. Dr. Brennan suggested he have the knee x-rayed but by this time he found the pain was so much that he was unable to drive so he had one of his employees drive him to the Emergency Department. At the same time, he called his wife, who worked at the IWK Children’s Hospital, and she met him at the VG Emergency. He was x-rayed and later informed that nothing was broken and his injury was one of soft tissue damage. His knee was red, inflamed and swollen and it was wrapped with plastic wrap and he was given anti-inflammatory drugs and told to return home, ice the knee and keep it elevated. [8] The following day, being Thursday, he continued to keep his leg elevated and to ice the knee from time to time. During this period, he said he was running his company from his couch, using cell phones which he had distributed to some of his employees. [9] He says on Friday there was lot of discomfort and he began shaking and having the shivers and his wife took his temperature which read 102.5° and gave him Tylenol. When his wife called the doctor, it was suggested they return to the Emergency Department and she drove him there that evening. The dressing was removed and his knee was found to be very swollen with infection. He was provided with antibiotics and splint was applied to the knee which was then wrapped and he was given the continuing instruction that he ice the knee and remain off it. [10] As instructed, he says he returned to the Emergency Department on the Saturday and observed that the infection still remained. Arrangements were made for him to see his family doctor on the following Monday. He had an employee drive him to the family doctor on the Monday and his knee was re-examined by Dr. Brennan who suggested he should see an orthopedic surgeon. Arrangements were made for him to see Dr. Erdogan later that day. After examining the knee, he suggested there was tissue damage and provided him with exercises for the knee. He says the rest of that week he was off his leg and that he kept his knee both elevated and iced. [11] On Friday, he obtained pair of crutches and had an employee drive him to the site where he remained sitting in the truck for most of the day. He says the first time he drove himself was on the following Monday or twelve days following the accident. [12] He testified, for the remainder of the year, although involved in overseeing his business, he did not involve himself to the same extent in manual or physical labour and, as result, was required to hire additional employees to perform work which, in previous years, he had performed himself. He says he limited himself to overseeing the jobs and that it bothered him to kneel and, therefore, kneeling was not an option. He says he was able to return to do the physical part of his work in the spring of 1996, indicating to date the knee still bothers him when he drives long distances and that he has to stop and stretch his leg. He says it often bothers him when he maintains it in flex position for long period and it kind of bothers him on cold damp days as well. [13] He says before the incident he used to enjoy biking, running, fishing and hunting and that he did no biking, no running, no fishing and didn’t visit either his or his wife’s parents’ cottages located in New Brunswick and Prince Edward Island in 1995. [14] With respect to household activities, he indicated both he and his wife were employed full-time outside the home and, therefore, they shared the home activities 50/50. He says for period following the accident he was unable to do his share, including his share of preparing the breakfast meal, vacuuming or washing the floors. He says he was only able to resume some of these activities by the fall of the year. [15] On cross-examination, he agreed the division between labour and materials in the work he performs varies from job to job. He says calculation of extra labour costs was prepared by his accountant and involved comparison of the labour costs from the date of the accident to the end of 1995 as compared to the same period of the previous year. He noted the gross sales for the two years were approximately the same and, for the period following the accident, the labour costs were more than $9,000.00 in excess of what they were during the same period of 1994. [16] At issue is both liability and the extent and quantum of the injuries and damages occasioned to the plaintiff. LIABILITY Legal Requirements [17] The legal principles applicable in the circumstances of this case are not really in dispute. The applicable law was outlined by Justice Spence, writing on behalf of the majority of the Supreme Court of Canada, in Campbell v. Royal Bank of Canada, [1974] S.C.R. 85. His Lordship adopted the description of an occupier’s liability to an invitee as outlined by Justice Willes in Indermaur v. Dames (1966), L.R. C.P. 274 at 288 where he said: And, with respect to such visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, of which he knows or ought to know. [18] In Smith v. Provincial Motors Ltd. (1962), 1962 CanLII 478 (NS SC), 32 D.L.R. (2d) 405, at p. 412 and Fiddes v. Rayner Construction Limited (1963), 1963 CanLII 599 (NS CA), 45 D.L.R. (2d) 367, at p. 373, Chief Justice Ilsley stated the requirements for determining whether an occupier had breached its duty of care, by series of questions: (1) Was there an unusual danger? (2) If so, was it one which the Defendant knew or ought to have known? (3) If so, did the Defendant use reasonable care to prevent damage to the Plaintiff from the unusual danger? (4) Did the Plaintiff use reasonable care on his own part for his own safety? 1. Was there an unusual danger? [19] After the reference to the statement by Justice Willes in Indermaur v. Dames, supra, Justice Spence, in Campbell v. The Royal Bank of Canada, supra, at p. 92 continues as follows: That outline of liability has been accepted universally since the day it was pronounced. Therefore, the first and most important inquiry before court considering such claim is whether, under the circumstances existing at the time and place of the accident, there was present an ‘unusual danger’. ‘Unusual danger’ has been defined in the judgment given in the House of Lords in London Graving Dock Co. Ltd. v. Horton, by Lord Porter at page 745 as follows: think, ‘unusual’ is used in an objective sense and means such danger as is not usually found in carrying out the task or fulfilling the function which the invitee has in hand, though what is unusual will, of course, vary with the reasons for which the invitee enters the premises. [20] The foregoing was also accepted as the law by the Nova Scotia Supreme Court, Appeal Division in Vyas v. Board of Education of Colchester-East Hants District (1989), 94 N.S.R. (2d) 350. Justice Chipman, at p. 353, referenced Chief Justice Illsley on the meaning of “unusual” danger. Chief Justice Ilsley, in his assessment of whether the danger in Fiddes v. Rayner Construction Ltd., supra, was unusual, had also applied the objective test. Then at p. 373 Justice Chipman said: As to (1), the danger is unusual if it “is not usually found in carrying out the task or fulfilling the function which the invitee has in hand”: London Graving Doc. Co. v. Horton, [1951] A.C. 737 at page 745, per Lord Porter. With respect, it would appear that the Learned Judge considered that “unusual” should be used in subjective rather than an objective sense. However, the authorities are clear that the test is objective, not subjective. The word ‘unusual’ is used objectively and means such danger as is not usually found in the circumstances; it is not to be construed subjectively as meaning unexpected by the particular invitee concerned. 28 Hals., 3rd Ed., p. 41, note (p). [21] Justice Spence, in delivering the majority reasons of the Supreme Court of Canada in Campbell v. The Royal Bank of Canada, supra, at p. 93, adopted the statement of Lord Normand, in London Graving Dec. Co. v. Horton, [1951] A.C. 737, at p. 752: am of opinion that if the persons invited to the premises are particular class of tradesman then the test is whether it is unusual for that class. [22] Justice Spence continues: Here, the invitee was an ordinary customer of the bank but of no particular class. We must, therefore, consider the facts in particular case in the light of these statements of the law which adopt. [23] The plaintiff was customer of the defendant. As stated by Justice Spence, the facts must be considered in light of the law applicable to his presence on the defendants’ premises. [24] The plaintiff says that in the approximate one year from the opening of the store until the day of the accident, he had never observed “dolly” located where it was at the time he tripped. He says initially contracting customers were served from the end of the desk and it had only been some time later that customers were no longer served from that end and the computer terminal located at that end had been removed. He did not observe the “dolly” or any other obstruction at the end of the desk when he entered and, returning only short time later, he says he assumed the situation had not changed. Therefore, he presumed there was no obstruction which would impede his turning the corner of the desk and walking in straight line towards the glass doors which exited to the lumber yard. He says his focus was on the glass doors and inferentially, therefore, not on the floor in front of him as he proceeded around the corner of the desk. [25] In Campbell v. Royal Bank of Canada, supra, at p. 96, Justice Spence agreed with the minority reasons of Justice Freedman of the Manitoba Court of Appeal who said even in Western Canadian winter conditions one would not normally expect bank premises, to which members of the public customarily resort in large numbers, to be wet and therefore hazardous. [26] Justice Spence continues: Again, find myself in agreement with Freedman, J.A. that not even the exigencies of Western Canadian winter conditions would make usual the presence on the floor of large bank in city of 30,000, in mid-afternoon, of ‘a dangerous glaze of water underfoot near the tellers’ wickets’. am of opnion that the state of the floor in that bank on that afternoon constituted an ‘unusual danger’. [27] In the context of the present circumstances, it is also clear that the presence of a “cart” or “dolly” out of view would also be an “unusual danger”, notwithstanding knowledge of the presence of such dollies within the premises. [28] The presence of the “dolly” is not comparable to the ice in the parking lot in Breau v. Amherst (Town) 1996 CanLII 5355 (NS SC), 1996, 155 N.S.R. (2d) 161, when knowledge by the plaintiff of the icy conditions resulted in Justice Saunders finding the danger not to have been unusual. Here the “dolly” caused the plaintiff to fall. Like the yellow liquid in Young v. Sobeys Inc., (1991, unreported: C.S.N. No. 20973), its presence next to the contractor’s desk was not something to be expected by persons in the position of the plaintiff and, therefore, constituted an unusual danger. 2. Did the defendant know, or ought it to have known, the danger? [29] It appears from the evidence the “dolly” was placed in the position next to the contractor’s desk between the time the plaintiff entered the premises and few minutes later when he returned to the contractor’s desk. It further appears from the evidence that it may have been one of the defendant’s employees who placed the dolly in this location. am satisfied the defendant knew or ought to have known the danger associated with the dolly being located as such. 3. Did the defendant use reasonable care to prevent damage? [30] Clearly the defendant did not use such reasonable care. The unusual danger could easily have been avoided by instructing employees to ensure they were not placed in such positions as to constitute hidden obstructions. The dolly was placed not by accident, but intentionally, and therefore the position of the defendant is not comparable to circumstances where one knows or is presumed to have known of unusual dangers and procedures or processes are established for employees to identify and remove or at least mitigate the risk associated with the unusual dangers. [31] There is nothing to indicate the defendant had implemented an adequate system for the prompt discovery or removable of objects or materials, in this case the dolly, which might be hazard to persons in the position of the plaintiff. 4. Did the plaintiff use reasonable care for his own safety? [32] In his evidence, the plaintiff acknowledges that, not having observed anything against the wall of the contractor’s desk as he entered through the glass doors, he therefore had assumed there was no obstruction when he later returned to complete his business and then to proceed through the glass doors to the lumber yard. [33] He says he cannot remember whether there was any obstruction on the counter which would have prevented him viewing the dolly in its location against the side of the contractor’s desk, as he proceeded along the front of the desk and then to his right in the direction of the glass doors. His focus was on the doors and not on the floor between his position and the doors themselves. At the request of counsel for the defendant, with no objection from counsel for the plaintiff, the court attended the defendant’s premises which had been restored to the approximate condition as they existed on the date of the accident. From the position the plaintiff occupied at the contractor’s desk, it is clear the dolly could not have been visible or at least the flatbed portion of the dolly towards the end over which he tripped could not have been visible. However, the plaintiff also says he never looked in that direction and had no reason to do so as his attention was focussed towards the Kent employees with whom he was having discussion and completing his business. [34] On his evidence, he says he never looked at the floor but focussed on the doors and therefore proceeded on the assumption that nothing had changed from the time he first entered the building some few minutes previous. In these circumstances, can it be said that he used reasonable care for his own safety? We do not believe he did. Just as an occupier is required to locate and remove hidden or unusual dangers or at least warn of their presence, so too the occupier is entitled to expect that persons who visit their premises will use reasonable care for their own safety. Clearly, these were commercial premises and the presence of any number of obstructions on the floor would be obvious to the plaintiff. The defendant’s premises were described as commercial warehouse from which building supplies were sold. These circumstances were known to the plaintiff and as such he should have taken greater care to observe and avoid anything in his path as he proceeded towards the glass doors. The plaintiff, therefore, did not use reasonable care for his own safety. [35] Recognizing the defendant has not used reasonable care in these circumstances to prevent injury or damage to persons in the position of the plaintiff and that the plaintiff failed to use reasonable care for his own safety, I assess the plaintiff as 60 percent and the defendant 40 percent responsible for the injuries and damages suffered by the plaintiff. DAMAGES [36] The plaintiff says the injuries he sustained to his knee resulted in his knee being swollen with infection, and that he had to endure considerable pain and discomfort for a substantial period following the accident. He says it was some twelve days before he was able to drive his own vehicle and that, during the summer of 1995, he limited his involvement in his business to supervisory types of activities rather than involving himself in physical labour as he had done previously and has also done in subsequent years. He testified that during the summer of 1995 he was not able to visit his parents’ or his in-laws’ cottage in Prince Edward Island and New Brunswick nor did he partake, at least to the same extent as in other years, in biking, running or fishing. [37] He testified he was able to resume his work activities by the spring of 1996, although he stated that, even at the time of trial, his knee bothers him when he drives for long distances or if it is in flex position for extended periods. [38] Counsel for the plaintiff, in his pre-trial submission, reviews number of cases involving assessments of damages for knee injuries and concludes by suggesting they demonstrate range of damages for such injuries between $2,500.00 and $22,000.00. The defendant, on the other hand, suggests that the knee injury was “relatively minor and did not cause the plaintiff great deal of difficulty”. [39] Having considered the evidence of the plaintiff, together with the medical reports, am satisfied the plaintiff has suffered an injury; the injury restricted his activities during the remainder of 1995 and, to lesser extent, the following year and, to very limited extent, continues to the present. I would therefore award the plaintiff the sum of $8,500.00 by way of general damages. Loss of Income [40] The plaintiff says, as result of the injuries, during 1995 he was unable to fully participate in the activities of his business and, as result, suffered loss in that he was required to hire other persons to carry out some of his tasks. He also says he was unable to pursue, as aggressively as in other years, the obtaining of business and, therefore, suffered further loss because of the injury to his knee. With respect to loss of income, the plaintiff claims for the difference in the wages for the equivalent period in 1995 as compared to 1994 and, in addition, claims a diminishment in earning capacity. Although in many cases of persistent injury, there have been allowances, in varying amounts, for diminution of future earning capacity, including potential earning capacity, the evidence does not support such claim in the present instance. The plaintiff does not indicate that his work is presently being affected by any injury occasioned by this accident and only notes that, when he drives long distances, he is required to stop from time to time to stretch his leg. Therefore, there is no basis to sustain a claim for diminishment in earning capacity and, as such, no amount is herein awarded. [41] With respect to loss of wages, it is clear from the evidence of the plaintiff, particularly during the remainder of 1995, the physical activities required in the performance of his work necessitated his hiring employees for activities which he normally performed himself. However, the evidence does not support that all the difference in wages between 1995 as opposed to 1994 can be traced to the accident since, on the evidence, the plaintiff also sustained broken wrist in May of 1995. The extent of the difference in the wage costs for the period from July to the end of each year does not account for the total of the difference between the total wages in 1995 as compared to 1994. Factors such as the degree or extent of labour involved in particular job, impact on the wage component of the cost when compared to the material component. It is clear that in 1994, with approximately the same total of gross sales, the labour component was nevertheless some $21,000.00 more than for the 1995 year. am satisfied there was loss to the plaintiff. However, am not satisfied it is the measurement between the wages paid for the period from July to the end of 1995 as compared to the period from July to the end of 1994. [42] With regard to the evidence as a whole, the realization that some of the loss can be attributed to this accident and recognizing the need to provide fair and reasonable compensation, even where proof of actual amounts may be difficult or indeed impossible, I award the sum of $5,000.00. Loss of Ability to Perform Household Tasks [43] Counsel for the plaintiff citing the decision of Davison, J. in Madonna Hill v. Abdel Kader Ghaly and Madonna Hill v. George Bernard, Sr. and George Bernard, Jr. (Unreported, S. H. Nos. 126537 and 94-109667), suggests the sum of $5,000.00 be awarded on account of the limitation in the plaintiff’s ability to perform household tasks. have considered the evidence and authorities detailing calculations in respect of such loss. I am satisfied the sum of $1,000.00 is more than reasonable in the circumstances and such sum is thereby awarded. Special Damages [44] The plaintiff claims, and is entitled to the sum of 578.00, on account of special damages relating to transportation to medical appointments, costs of photocopying medical reports, cost of prescription drugs not reimbursed, cost of increased cell phone use and preparation of accountant’s statements. MacAdam, J.
Plaintiff suffered soft tissue damage to knee when he tripped over a dolly cart in a building supply warehouse. Knee became swollen and infected and he was off work for 12 days. He claimed for pain and suffering, loss of income and loss of earning capacity. Plaintiff was found 60% responsible for injuries and defendant 40% responsible. Damages were assessed as follows: $8,500.00 for general damages, $5,000.00 as damages for loss of income and $1,000.00 for loss of ability to perform household tasks. The dolly cart out of view behind the counter was an 'unusual danger' which the defendant knew or ought to have known of and reasonable care was not used to prevent injury. However, the plaintiff failed to look at the floor as his attention was focused on the door. He assumed nothing had changed in the area from the time he entered the premises a few minutes previously. The plaintiff was in commercial premises and should have taken greater care to observe and avoid anything in his path. The plaintiff suffered an injury which restricted his activities for the first five months, to a lesser extent for the following year and to a very limited extent to the time of trial. There was no evidence to support a claim for diminishment of earning capacity.