Tag: slip and fall

$55,000 Non-Pecuniary Damages Assessment for Bimalleolar Ankle Fracture


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the issues of fault and value of injuries sustained in a 2005 slip and fall accident in Vancouver, BC.
In today’s case (Druet v. Sandman Hotels, Inns & Suites Ltd.,) the Plaintiff was visiting Vancouver, BC and was staying at a hotel operated by the Defendant company.  As she entered the hotel she slipped on the floor and fractured her ankle.  The injury requires surgical correction.
The Court found that both parties were equally at fault for the incident.  The Defendants were found at fault for having unreasonably slippery tiles in their lobby knowing how often patrons tracked water into the lobby.  The Plaintiff was found partly at fault for failing to take reasonable care for her own safety.  Paragraphs 14-62 are worth reviewing for the Court’s discussion of fault.
In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000 Mr. Justice Savage made the following findings with respect to the severity of the Plaintiff’s injury:

[11]        Druet suffered a bimalleolar ankle fracture.  She had open reduction surgery.  The break was fixed with metal screws.  The metal screws were removed by a further operation.  She had ongoing complaints of stiffness and lack of range of motion.  She had a lack of dorsiflexion and could not invert or evert her right hindfoot very well.  In June 2008 she had scar tissue surgically debrided and a gastrocnemius recession was performed.

[12]        By 2009 Druet’s condition was stabilized, but she had stiffness and arthrofibrosis of her right ankle, related to her bimalleolar ankle fracture.  She is not considered at high risk for future injuries, provided she stays within reasonable restrictions.

[13]        She walks with a slight limp and can no longer run as she once did, but can walk significant distances, which she does with walking partners.  She has some concerns about the work she does as a nurse, but is still able to perform the work required to the satisfaction of her current employer…

[66]        I have described the injuries above.  As a result of those injuries the plaintiff had three surgeries, although two were in succession.  She had implantation of a plate, a rod and surgical screws in March 2005 which were removed in September 2005.  Her ankle was debrided in June 2008.

[67]        Druet missed a total of three months of work as a licenced practical nurse arising from the injuries and surgeries.  She walked with crutches for a short time after the Accident while recuperating.  She had limited physiotherapy in 2005 but not since.  She wears orthotics.

[68]        Druet has substantially resumed her previous activities, except running.  She now walks two miles a day, five days a week.  She did substantial walking during a vacation to Europe in 2006 and a holiday in New York in 2008.  She can walk five kilometres.  She participates in 5K walks and completes them 10 to 15 minutes slower than when she ran. ..

In my opinion non-pecuniary damages fall between the two parties’ positions.  I award $55,000 under this head.

Humerus Fracture Non-Pecuniary Damages Assessed at $110,000

Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, assessing damages for a comminuted fracture involving the left humerus (shoulder injury).
(Illustration provided courtesy of Artery Studios Ltd.)
Today’s case (Legault v. Brock Shopping Centre Ltd.) involved a slip and fall injury in 2005 in Kamloops, BC.  The Plaintiff was walking towards a business known as “Penny Pinchers” in Kamloops BC.  As he approached the shopping centre his foot slipped on ice and he stumbled forward falling “into the store front window“.  He suffered various injuries, the most serious of which was a fractured shoulder.
The Plaintiff was found 50% at fault for his own injuries for “not observing the ground conditions beneath his feet as he approached the sidewalk“.  The Defendant owner was also found 50% at fault for not clearing the ice with the Court finding that “the Defendant owner failed to respond to two calls from the tenant to address the condition of the parking lot.  Responding to one of these calls would likely have appraised the owner of the melting and freezing conditions that also affected the sidewalk margin area“.
The Plaintiff’s orthopaedic surgeon gave the following evidence with respect to the severity of the injury:
Mr. Legault slipped and fell through a plate glass window at a shopping mall. He sustained a number of small lacerations to his upper extremities and his lip which were sutured in the emergency department. The main impact occurred on his left shoulder and he was diagnosed with a proximal humerus fracture…Radiographs and CT scan performed December 6, 2005, revealed a comminuted intraarticular fracture of the proximal humerus with slight superior and posterior displacement of the greater tuberosity….
Mr. Legault has developed post traumatic arthritis of his left shoulder most probably secondary to a fracture sustained December 6, 2005. Although the symptoms of pain and stiffness due to arthritis may plateau, it is possible that he may experience progressive symptoms in the shoulder as time passes. As arthritis is an irreversible condition, Mr. Legault has a permanent impairment. He is likely to experience increased symptoms with repetitive activity, overhead activity, and activities which load the shoulder joint including use of vibratory tools or machinery, or heavy lifting. Surgical options for shoulder arthritis include arthrpacopy and debridement or hemi or total arthroplasty. The results of these procedures for post traumatic arthritis (as compared to degenerative osteoarthritis or rheumatoid arthritis, for example) are less favorable. In this particular patient, his complication rate would be significantly increased due to his size and longstanding diabetes.
The Plaintiff’s total damages were assessed at $354,311 but this award was cut in half to account for the plaintiff’s contributory negligence.  In assessing non-pecuniary damages of $110,000 for the Plaintiff’s shoulder injury the Court found as follows:

I am satisfied that he has suffered an injury that has resulted in a permanent partial disability and will permanently affect his enjoyment of life on a daily basis, causing him difficulty with self care hygiene, dressing, moving up and down stairs, marital intimacy, home maintenance tasks, and driving. The physical injury has also made it more difficult to manage his obesity and other health issues related to fitness. His wife testified that she feels as if she has lost her husband entirely.  He was formerly able to lift and carry heavy automobile components and use heavy power tools in the course of working on vintage cars, which was his main interest in life; but he is unable to do that and has lost much of his zest for life.

[51] The plaintiff has referred me to cases where non-pecuniary awards in the range of $125,000 to $150,000 were made and the defendant relies on cases in the range of $70,000 to $75,000. I assess Mr. Legault’s loss under this head of damages at $110,000, which is subject, of course to the 50/50 apportionment of liability, as will be the case with the awards under the remaining heads of damage.

Produce Vendor Found Liable For Slip and Fall Injury Involving Dropped Grape


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a produce vendor liable for injuries sustained when a shopper slipped and fell on a dropped grape.
In today’s case (Davis v. Kin’s Farm Market) the 75 year Plaintiff was shopping in Lynn Valley Mall in North Vancouver.  As he walked “past the fruit and vegetable display tables located outside of Kin’s Market, he slipped and fell on a green grape“.
The grape was just outside of Kin’s Market in an area that was “encroaching somewhat into the marbled tiles forming the mall pedestrian corridor“.   The Plaintiff sued the owner of the Mall and the produce store.
The Defendants argued that the Plaintiff was at fault for his injuries and that they were not responsible because they had a reasonable system to deal with hazards on the floor.  However, this was contradicted by a witness who gave evidence that “several hours after the ambulance took (the Plaintiff) away”  there were “more grapes on the marble tiles immediately outside the store”  and that after bringing these grapes to the attention to the employee in charge of Kin’s Market “this employee took no steps to clean up the grapes“.
Madam Justice Bruce went on to find both Defendants liable for the Plaintiff’s injuries.  Specifically the Court reasoned as follows:

[39] In addition to having no reasonable system of inspection and maintenance in place to address spills from the bins and display tables outside the store, I find that the employees were not complying with the standards set by their employer on the day of the accident. Ms. Janda’s evidence tends to show that the employees of Kin’s Market were lax in regard to the cleanliness of the areas surrounding the bins. While evidence of a failure to comply with the cleaning policies well prior to the date of the accident cannot be used to infer such a failure on the date of the accident, in this case there is evidence that just hours after Mr. Davis’ fall there were more grapes on the marble tiles adjacent to the bins displayed by Kin’s Market. This evidence suggests that the employees of Kin’s Market had rather poor powers of observation. Moreover, the fact that on two occasions on June 5, 2005, employees of Kin’s Market took no steps to clean up fallen grapes after the spills were brought to their attention strongly suggests that they took no responsibility for any produce that landed beyond the brick tiles.

[40] Lastly, Kin’s Market argues that even if it failed to meet the standard of care owed as an occupier, the fact that the Owner met this standard removes any responsibility they may have for the accident. I am unable to accept this argument. Where there are two occupiers of premises, each of them owes a duty of care to persons invited to enter the premises. The fact that the Owner may rebut a prima facie breach of the Act does not obviate the necessity for Kin’s Market to also satisfy the two pronged test articulated by the Court of Appeal inAtkins. Permitting grapes to remain on the floor as a hazard is negligent absent proof that a reasonable system of maintenance and inspection was in place and being followed on the day of the accident. Kin’s Market has failed to satisfy this onus and it is irrelevant whether the Owner has led evidence that shows it met the required standard of care.

The Court went on to find that the Plaintiff was not at fault for falling reasoning as follows:

[60] Kin’s Market argues that Mr. Davis had an obligation to keep a proper look out for his own safety and to be aware of his surroundings: Gervais v. Do, 2000 BCSC 1271, [2000] B.C.J. No. 1732. Kin’s Market points to Mr. Davis’ admission that his attention was not directed to where he was walking before he fell; rather, he was looking toward the Shoppers Drug Mart. He was familiar with the mall and could have avoided the fall had he been paying attention to the floor where he was walking…

[62] In my view, it is not reasonable to expect Mr. Davis to be staring at his feet as he walked through the mall towards the Shoppers Drug Mart. Had he positioned his head in a downward direction to detect possible hazards on the floor, Mr. Davis may have stepped over the grapes in his path; however, he may also have run into another mall patron possibly causing damage to himself and the other person. It is also understandable that Mr. Davis would not be cognizant of the risks associated with walking in the common area of the mall adjacent to Kin’s Market, particularly as he was three to four feet from the display tables. He was not inside the store where he may have been alerted to the possibility of produce that had fallen to the floor. Lastly, I find Mr. Davis’ circumstances are similar to that found by the Court of Appeal in Coulson. The tenants in the mall design their displays to attract customers’ eyes. They do not encourage patrons to keep their eyes on the floor ahead of their feet. As Bauman J. (as he then was) said in Dufty v. Great Pacific Industries Inc., 2000 BCSC 1474, [2000] B.C.J. No. 1988 at para. 44:

[44]      As to the issue of contributory negligence, it has been said many times, most recently by Justice Burnyeat in Coleman v. Yen Hoy Ent. et al, 2000 BCSC 276 [In Chambers], that while there is a duty on the plaintiff to be aware of her surroundings, it is not the case that she is required to “glue her eyes to the ground.”

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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