January 20, 2014 by Canadian Underwriter
An Ontario court recently awarded $107,765 to a women who broke her upper arm at the rotator cuff after stubbing her toe, tripping and falling on a city sidewalk in Caledonia, Ontario, southwest of Hamilton.
In a decision released Jan. 17, the Ontario Superior Court of Justice found the combined total of general damages, future care costs and loss of income was $215,530 for Glenda Grayling. She had sued the City of Haldimand after falling Nov. 25, 2009 in the community of Caledonia, about 25 kilometres from downtown Hamilton.
She was actually awarded $107,765 because she and the city were both found to be 50% liable. She had stated that while walking, “she stubbed her toe due to a difference in the height between two slabs of the sidewalk,” according to background information provided with the court ruling. “Stubbing her toe caused to take four or five quick steps forward and fall onto her right arm onto the grass next to the sidewalk.”
Mr. Justice Thomas Lofchik concluded that “in all likelihood the trip ledge which caused Mrs. Grayling’s fall was between three-quarters of an inch to one and one quarter inches,” based on photos entered into evidence.
“There was a state of disrepair of the sidewalk,” he wrote. “Although there was an inspection system, there was no evidence about the degree of measurement of areas of concern or if an area of concern less than one inch was spotted. There is no evidence of repair.”
After falling, Grayling noticed her right arm hurt and her husband later drove her to hospital. Court records indicate she had “a fracture of her upper arm at the rotator cuff,” her arm was put in a sling, she was given Tylenol 3 and referred to a specialist. Grayling was 49 at the time.
Of the total award, $75,735.00 ($4,936 per year) was for housekeeping up to age 70 while $50,114.18 (2,834 per year) was for gardening, window cleaning and curtain washing up to age 70.
“The current state of her injury appears to be more or less permanent, as are the significant discomfort and disabilities which the injury causes,” Justice Lofchik wrote. “Mrs. Grayling continues to lack strength and endurance in the use of her right dominant arm. Physically she cannot apply pressure through her right arm, lift or carry heavier items or complete repetitive arm movements against resistance or sustain her arm overhead for periods of time. These physical limitations impact her ability to contribute to homemaking, housekeeping and outdoor maintenance tasks. Mrs. Grayling is not able to maintain both work and household responsibilities due to her arm/shoulder strain and fatigue.”
She was also awarded $16,697.24 for physio assessment and physiotherapy up to age 70. The court awarded loss of income to date of $9,000 and loss of future income, to age 65, of $12,000.
“It must be noted that sidewalk installation is not an exact science,” Justice Lofchik wrote. “Sidewalk slabs are rarely, perfectly smooth, as pedestrians need a surface upon which traction is readily available. There is a sense that pedestrians should not be expecting a perfectly flat surface any more than if they were walking elsewhere and so consequently, it is not every accident that speaks of a non-repair.”
Justice Lofchik also ruled in favour of Ontario Health Insurance Plan (OHIP) for its subrogated claim of $657.34.