Date: 20080917
Docket: T-117-02
Citation: 2008 FC 1047
Vancouver, British
Columbia, September 17, 2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
MURI
PEACE CHILTON
Plaintiff
and
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Muri
Peace Chilton is an inmate in Warkworth Institution, a federal penitentiary. He
worked in the CORCAN furniture shop, an industrial woodworking shop operated by
Correctional Services of Canada (CSC) at the Warkworth Institution. On February
16, 2000, Mr. Chilton injured his left thumb while operating an overhead router
under the direction of a CSC shop instructor.
[2]
Mr.
Chilton filed a Statement of Claim for negligence and a claim for damages for
physical injury and psychological or psychiatric sequela. He alleged that his
injury and the circumstances in which it occurred aggravated his mental
illness.
[3]
At
the start of the trial, counsel for the defendant admitted liability for
negligence.
[4]
The
resulting issues in this action are:
a. What injuries
did Mr. Chilton incur as a result of the accident, including if any, psychological
or psychiatric sequela?
b. Should the
Court issue declarations concerning inmate work, health, and safety conditions?
c. What damages
should be assessed for Mr. Chilton’s injuries?
Background
[5]
Mr.
Chilton is serving a life sentence of imprisonment for second degree murder, an
offence he committed while on parole for a prior conviction of attempted
murder. At issue at the time of his second trial was the nature and extent of Mr.
Chilton’s mental illness. That issue was not adjudicated because Mr. Chilton
pled guilty to second degree murder.
[6]
Mr.
Chilton has participated in various penitentiary programs while incarcerated.
He had taken advantage of educational opportunities and advises he has attained
a Masters degree in mathematics from the University of Waterloo.
[7]
One
of the correctional opportunities available at Warkworth Institution is
employment in the CORCAN furniture shop. Inmates may work in this industrial
woodworking shop to acquire employability skills and to earn a modest wage. Mr.
Chilton had worked in the CORCAN furniture shop for about a year prior to the
accident on February 16, 2000.
[8]
On
February
16, 2000,
Mr. Chilton was injured while working in the CORCAN furniture shop. Mr. Chilton
served notice that he intended to seek legal redress. He filed his Statement of
Claim on January 21, 2002, claiming the defendant was liable for his injury because
of recklessness, strict liability, negligence and gross negligence. He claimed
$100,000 in damages. On December 15, 2003, Mr. Chilton amended his Statement of
Claim, adding the further particular that he was receiving treatment and
psychotherapy, and requesting, as further relief, a number of declarations
concerning inmate work, health, and safety conditions.
[9]
Mr.
Chilton represented himself throughout, conducting written examinations for
discovery, initiating interlocutory motions, and presenting his case at trial.
[10]
Mr.
Chilton testified at trial. He also called one witness, Dr. Michelle Boyd, a
psychiatrist who treated him in 2002 – 2003.
[11]
At
the close of Mr. Chilton’s case, counsel for the defence advised that he would
not be calling any witnesses.
[12]
Mr.
Chilton sought to enter a number of documents as exhibits to which counsel for
the defendant objected. After a review of these documents, I have decided to
admit plaintiff’s Exhibit 1 and Exhibit 2 for Identification as exhibits.
Counsel for the defence also sought to enter a number of documents to which Mr.
Chilton objected. I have decided that none of the defendant’s Exhibits for
Identification should be admitted.
Liability in Negligence
[13]
Mr.
Chilton was working in the CORCAN furniture shop at Warkworth Institution on February 16, 2000. Present
that day were the shop instructor, Kelly Nelles, and the furniture shop supervisor,
Hubert Brown. Mr. Nelles wanted to shape a large rectangular particleboard into
a D-surface, a surface that has a half circle on one end. He requested Mr.
Chilton assist in operating the overhead router.
[14]
The
overhead router bit is normally raised hydraulically by a foot pedal control
allowing one person to shape large pieces of wood. The overhead router control
lacked a bolt that coupled an upper steel plate together with a lower plate rendering
the hydraulic foot control inoperable. Since the router assembly lacked a necessary
connection, a second person was needed to activate the hydraulic piston that
lifted the router bit by pressing the plates together instead of using the foot
pedal control. Mr. Chilton was asked by the shop instructor to control the
overhead router’s lifting action by hand.
[15]
Mr.
Nelles showed Mr. Chilton how to press one plate to bring the steel plates
together and took position in front of the overhead router holding the large particleboard
about to be shaped. Mr. Nelles told Mr. Chilton to press the controlling
plate to bring the two plates together. Mr. Chilton pushed on the upper plate,
causing the lower steel plate to press upwards against the upper plate, pinning
Mr. Chilton’s left thumb. He immediately released the upper plate, the two
plates separated and he pulled his thumb free.
[16]
Mr.
Chilton incurred a two-inch laceration on the underside of his left thumb and a
three-quarters inch laceration below the thumbnail nail. His thumbnail was
partially torn free. He went to the sink and rinsed his injured thumb
under cold water from the tap. After fifteen minutes, Mr. Nelles directed
Mr. Chilton to go to the institution’s hospital for treatment.
[17]
After
Mr. Chilton’s injury, Mr. Nelles asked Hubert Brown, the shop supervisor, to
take Mr. Chilton’s place in operating the overhead router. Mr. Brown
suffered a similar mishap when attempting to activate the hydraulic piston to
lift the overhead router bit. The overhead router was shut down for repair.
[18]
Mr.
Nelles had reacted to Mr. Chilton’s injury by laughing. Mr. Chilton says Mr.
Nelles laughed loudly and sarcastically. Mr. Nelles, in his written response to
an interrogatory by Mr. Chilton, admitted laughing, stating his laugh was
a surprise reaction. Given that Mr. Nelles continued with the work on the
D-piece, conduct that was incongruous with surprise or nervousness, I
disbelieve Mr. Nelles’ tendered explanation for laughing.
[19]
Mr.
Chilton has advanced his claim in tort. He alleged the defendant was liable due
to recklessness, strict liability, negligence, and gross negligence. Clearly,
on these facts, Mr. Chilton’s claim is in negligence. Negligence involves the
failure by a person to exercise the standard of care that a reasonably prudent
person would have exercised in a similar situation resulting in injury to another
person for whom the first has a duty of care (Blacks Law Dictionary, 8th
ed., s.v. “negligence”).
[20]
Negligence
is the breach of that duty to take care with regard to another person or his
property. Canada. v.
Hochelaga Shipping & Towing Company Co., [1940] S.C.R. 153. Liability
for negligence requires the following elements as stated in Odhavji Estate v.
Woodhouse,
2003 SCC 69 at paragraph 44:
§
a
duty of care exists by one party for another,
§
a
breach of that duty by the first party, and
§
damage
or injury to the second party resulting from the breach.
[21]
There
is no doubt that penitentiary officials have a duty of care towards inmates in
custody in the penitentiary. In Howley v. Canada, [1973] F.C. 184, Justice
Cattanach stated:
In Timm v. The Queen, [1965] 1 Ex.
C.R. 174 at p. 178 I stated the responsibility of the Crown toward inmates of
penal institutions to be as follows:
Section 3(1) (a) of The Crown
Liability Act S.C. 1952-53, c. 30 provides as follows:
3(1) The Crown is liable in
tort for the damages for which, if it were a private person of full age and
capacity, it would be liable
(a)
in respect
of a tort committed by a servant of the Crown, …
and section 4(2) provides,
4(2) No proceedings lie against the Crown
by virtue of paragraph (a) of subsection (1) of section 3 in respect of any act
or omission of a servant of the Crown unless the act or omission would apart
from the provisions of the Act have given rise to a cause of action in tort
against that servant or his personal representative.
The liability imposed upon the
Crown under this Act is vicarious. Vide The King v. Anthony and Thompson,
[1946] S.C.R. 569. For the Crown to be liable the suppliant must establish that
an officer of the penitentiary, acting in the course of his employment, as I
find the guard in this instance was acting, did something which a reasonable
man in his position would not have done thereby creating a foreseeable risk of
harm to an inmate and drew upon himself a personal liability to the suppliant.
The duty that the prison
authorities owe to the suppliant is to take reasonable care for his safety as a
person in their custody and it is only if the prison employees failed to do so
that the Crown may be held liable, vide Ellis v. Home Office, [1953] 2 All E.R. 149. [Underlining
added]
In MacLean v. the Queen [1973]
S.C.R. 2 Mr. Justice Hall in delivering the unanimous judgment of the Supreme
Court of Canada quoted my foregoing remarks (at page 6) as being the correct
statement of law in this respect.
[22]
In
Wild v. Canada, 2004 FC 942, Justice Blanchard reiterated that prison
authorities owe a duty to take reasonable care for the health and safety of the
inmate while in custody.
[23]
Counsel
for the defendant admitted liability for the accident at the commencement of
the trial. Counsel expressly acknowledged there are no issues as to the duty of
care, the standard of care or the causation of the accident. Counsel also
confirmed that no issue arises with respect to contributory negligence by Mr.
Chilton.
[24]
I
find on the facts and on the admission by defendant’s counsel that the defendant
is liable to Mr. Chilton for the breach of the duty of care that resulted in
injury to Mr. Chilton.
What
injuries did Mr. Chilton incur as a result of the accident, including if any,
psychological or psychiatric sequela?
[25]
Mr.
Chilton claims damages arising from physical injury and loss of amenity. He
further claims that, because of his pre-existing mental illness, his injury caused
emotional stress that aggravated his pre-existing mental illness.
[26]
Mr.
Chilton has been receiving psychiatric treatment in the penitentiary from a
number of psychiatrists for an extensive period of time. I find that the
evidence does not establish the precise nature of Mr. Chilton’s mental illness
but it is clear he is afflicted by some significant psychological or
psychiatric disturbance.
[27]
Mr.
Chilton testified at length about the injury to his left hand. It was in the
nature of a crushing injury and therefore, he insisted, more painful. His thumb
bled then and continued to bleed two days later. His thumbnail was partially
torn and eventually fell off. Mr. Chilton provided a coloured drawing of his
injured hand. He also provided a photo to show a blood blister still under his
new thumbnail months later to prove his physical recovery took several months. Mr.
Chilton emphasized that he suffered excruciating pain as a result of the
injury. In addition, he said he experienced shock, humiliation, and trauma as a
result of being laughed at.
[28]
Mr.
Chilton stated that the major issue was the aggravation of his mental illness. He
claimed that he was seriously afflicted by psychological or psychiatric sequela.
Mr. Chilton not only described his psychiatric disturbance, he submitted a
mathematical graph to illustrate his theory of how his mental illness was
greatly aggravated by his emotional disturbance arising from the accident. He
was claiming a “crumbling skull” where a breach of duty results in injury
greater than expected.
[29]
Mr.
Chilton presented himself as an expert on mental illness. His self study and purported
knowledge of his own condition does not satisfy me that he is qualified to
provide expert opinion evidence on psychological disturbance or psychiatric
illness. He has not undertaken any recognized course of study of psychiatry or
psychology nor has he proven he has met any objective standard of knowledge of
those subjects.
[30]
Mr.
Chilton accepted the competency of Dale Chalmers, the nurse who treated Mr.
Chilton’s injury on the day of the injury, February 16, 2000. Mr. Chalmers
reported:
Seen in the treatment room following an
industrial-type accident to left thumb. Accident occurred approximately at
10:30 hours. On examination, involved nail in nail bed of left thumb.
Laceration underside of left thumb about 2” long. Bleeding freely but easily
controlled. Advised by the initiation of an injury report from his place of
employment. Vaseline dressing to left thumb followed by dry dressing. To return
to clinic as needed. Again advised to have instructor initiate injury report.
No further treatment required.
[31]
The
second nursing entry by Dale Chalmers was made two days later on February 18,
2000, it reads:
Inmate seen regarding injury of 16
February. Dressing on hand is crusted but with fresh bleeding. Dressing soaked
off as it is at the base of the thumb nail. Open and oozing pressure on the
thumb pushed expressed blood (old) through the laceration. Inmate encouraged to
allow this to occur, Vaseline dressing and lube gauge applied. Will be assessed
as required.
[32]
The
CORCAN furniture shop work time sheets show that Mr. Chilton returned to work
after receiving treatment and continued working in the furniture shop that
afternoon and the following week. Mr. Chilton’s prompt resumption of work runs
counter to his claim of severe injury or aggravation of his mental illness.
[33]
Mr.
Chilton called Dr. Michelle Boyd as a witness. Dr. Boyd is a psychiatrist who
treated Mr. Chilton at the Regional Treatment Centre for a few months during
the latter part of 2002 and early 2003. She did not see Mr. Chilton at the time
he injured his thumb or during the period immediately after.
[34]
Dr.
Boyd has a degree in pharmacy and worked as a pharmacist for several years
before going to Queen’s Medical School. After medical
school she went into her specialized area of practice. In the first year of her
training she did clinical work with patients at the Hotel Dieu Hospital, Kingston
General Hospital, in Kingston. During that
period she treated patients for a variety of medical ailments. Dr. Boyd is
certified as a psychiatrist by the Royal College of Physicians and Surgeons and
is licensed to practice in Ontario by the College of Physicians and Surgeons
of Ontario. Although, Dr. Boyd was not qualified as an expert witness nor was
her evidence submitted in accordance with Federal Court Rules, SOR
198-106, I accept her professional medical evidence arising from her own
examination and treatment of Mr. Chilton.
[35]
Mr.
Chilton objected to the defendant’s counsel eliciting opinion evidence during
cross-examination of Dr. Boyd about Mr. Chilton’s physical injury and about any
psychological or psychiatric sequela arising from his thumb injury. Nonetheless,
I accept Dr. Boyd’s opinion evidence in order to be better informed given the only
other witness to address that subject was Mr. Chilton himself. I deem Dr.
Boyd’s evidence in this regard to be necessary and sufficiently reliable given
Dr. Boyd’s qualifications, experience and examination of Mr. Chilton and his
medical record.
[36]
After
reviewing the nursing notes, Dr. Boyd opined that Mr. Chilton incurred a minor
laceration injury and received appropriate treatment for his thumb.
[37]
Dr.
Boyd also addressed the question of psychological or psychiatric sequela. Dr.
Hillman was the psychiatrist who examined Mr. Chilton on March 11, 2000, less
than one month after the February 16 injury and who made a note about Mr.
Chilton’s thumb injury. At the request of defence counsel, Dr. Boyd read into
the record Dr. Hillman’s Referral and Consultation Report, dated 11 March 2000.
The salient part of her recitation (in italics) is:
1.
Okay. The
first line is:
“Stable re MSE.”
which means stable with
respect to medical status examination.
“Meds okay. Injury left - -
work injury left thumbnail
bed. No anxiety - - “
[38]
Dr.
Boyd herself examined Mr. Chilton in late 2002 and early 2003. She also
reviewed his psychiatric files. Dr. Boyd testified that, other than the note by
Dr. Hillman, there was no documentation indicating that Mr. Chilton had ever
complained about any psychological or psychiatric sequela arising from the
thumb injury or from anyone at CSC laughing at him. Dr. Boyd did not recall Mr.
Chilton ever making any complaint to her about physical symptoms or any psychological
or psychiatric sequela arising out of his thumb injury. Dr. Boyd inferred from
the absence of any complaints regarding the thumb injury in his medical records
that the injury Mr. Chilton sustained on February 16, 2000, was, to him,
of a minor nature.
[39]
I
find that Mr. Chilton suffered a relatively minor injury to his left hand on
February 16, 2000: a bruised thumb and torn thumbnail accompanied by lacerations
beside the thumb and on its underside. He received appropriate treatment for
his injury after the accident.
[40]
I
do not doubt Mr. Chilton found his thumb injury painful at the time and that it
likely affected him as an injury of that sort would affect any individual. His
injury did heal and any pain or emotional upset would be similarly transient.
[41]
I
am mindful of the words of Chief Justice McLachlin in Mustapha v. Culligan
of Canada Ltd., 2008 SCC 27:
This said, psychological disturbance that
rises to the level of personal injury must be distinguished from psychological
upset. Personal injury at law connotes serious trauma or illness: see Hinz
v. Berry, [1970] 2 Q.B. 40 (C.A.), at p. 42; Page v. Smith, at p.
189; Linden and Feldhausen, at pp. 425-27. The law does not recognize upset,
disgust, anxiety, agitation, or other mental states that fall short of injury.
I would not purport to define compensable injury exhaustively, except to say
that it must be serious and prolonged and rise above the ordinary annoyances,
anxieties and fears that people living in society routinely, if sometimes
reluctantly, accept. The need to accept such upsets rather than seek redress in
tort is what I take the Court of Appeal to be expressing in its quote from Vanek
v. Great Atlantic & Pacific Co. of Canada (1999), 48 O.R. (3d) 228 (C.A.): “Life goes on” (para. 60). Quite
simply, minor and transient upsets do not constitute personal injury,
and hence do not amount to damage. [Underlining added]
[42]
I
find that Mr. Chilton did not suffer any adverse psychological or psychiatric sequela
or aggravation of his mental illness as a result of the injury to his thumb or
accompanying circumstances.
Should
the Court issue declarations concerning inmate work, health, and safety
conditions in this action?
[43]
Mr.
Chilton seeks a number of declarations from the Court concerning inmate work, health,
and safety conditions. More specifically he seeks the following:
Pursuant to sections 3(a), 4(e), 69, 70
and 40(p) of the CCRA and sections 3, 4, 83(1), and 104.1(1)(b) of the CCRR and
section 7 and 15(1) of the Charter of Rights and Freedoms the following:
i)
DECLARE
the meaning of “dangerous”, “safe”, “safe working environment”, “reasonable
excuse” relative to the circumstances of an inmate of a penitentiary.
ii)
DECLARE
that “reasonable excuse” as per section 40(p) of the CCRA gives an inmate the
right to refuse work or leave work if the work involves an undue risk to a
person, property or ridicule that attacks the dignity of an inmate while in a
work area.
iii)
DECLARE if
dangerous is a subjective judgment.
iv)
DECLARE if
dangerous includes exposure to material which may present a risk to future
injury regardless of the quantification of risk.
v)
DECLARE
equality of inmates to staff with respect to all laws mentioned in section
83(1) of the CCRR.
vi)
DECLARE
that “security of the person” as per section 7 of the Charter of Rights is
included in the term “security of the penitentiary” as per section 4(b) of the
CCRR.
vii)
DECLARE
that “security of the penitentiary” includes inmate health and safety equally
to staff of the Service.
viii)
DECLARE
that inmates have a right to Standard First Aid training, in all aspects of
tools so that an inmate has sufficient information to make judgments of safe
operation of tools, to diligent qualified instructors at community standards in
a formal program.
ix)
DECLARE
that inmates have a right to a formal list of general and specific standard of
health and safety rules with respect to penitentiary work equal to those in
force for staff of the Service.
x)
DECLARE
that First Aid Kits be placed in such a manner that they are readily accessible
to inmate workers.
xi)
DECLARE
that the Institutional Health and Safety Committee have inmate(s) as members.
xii)
DECLARE
that a positive duty exists on the Service to ensure that all staff are
assessed and treated for psychological injury as a result of employment with
hostile inmates to prevent abuse to inmates from injured staff who are
untreated.
[44]
For
the purpose of considering these declarations, I have permitted Mr. Chilton to
make his submissions as he chose since he is a self-represented litigant. I
assume that he is objecting to a decision or a failure to make a decision by
correctional officials rather than proposing something in the nature of a
public inquiry which would be entirely outside the scope of this action.
[45]
Mr.
Chilton submits that the mandate of the Federal Court is to hear cases and then
decide whether to issue a declaration to improve the management of the
government vis-à-vis the rights of citizens, in this instance, inmates in
penitentiaries. These declarations, he states, would result in a better and
effective civil service that fulfills the safety needs of staff and the inmates
and thus ensure that the purpose of the Corrections and Conditional Release
Act, S.C. 1992, c. 20 (CCRA) is met.
Absence of Evidence
[46]
Mr.
Chilton refers to several cases in support of his argument that since the
defendant’s negligence impacted his mental illness, he may seek declarations
arising from a Charter rights breach. However, the cases cited by Mr. Chilton
do not help his case.
[47]
In
McCann et al v. The Queen, [1975] F.C. 272, Chief Justice Jackett granted
a declaration that segregation of prisoners in solitary confinement amounted to
cruel and unusual treatment or punishment contrary to s. 2(b) of the Canadian
Bill of Rights, 1960,
c. 44.
There was extensive evidence before the court concerning the deleterious effect
of unnecessary solitary confinement on prisoners. In Soenen v. Edmonton
Remand Centre, (1983) 3 D.L.R. (4th) 658 Justice
McDonald agreed that, if a proven violation of a Charter right occurred, the
courts should ensure prison authorities who administer the system comply with
the Canadian constitution. Justice McDonald found that the acts complained of
by the inmate did not amount to cruel and unusual punishment contrary to s. 12
of the Charter and dismissed the application. In each of these cases, the issue
turned on evidence that proved or failed to prove a Charter rights breach.
[48]
I
have held that there was no evidence of any psychological or psychiatric harm
to Mr. Chilton due to his injury or upset. Consequently, I conclude that there
is no evidentiary basis for a declaration because of a Charter rights
violation.
Alternative
Statutory Remedy
[49]
Mr.
Chilton seeks declarations from the Court which he contends will address inmate
work, health, and safety issues. An inmate grievance procedure is available for
these issues. The Commissioner’s Directive No 081: Offender Complaints
and Grievances further expands on the grievance procedure outlined at
sections 90-91 of the CCRA and sections 74-82 of the Corrections and
Conditional Release Regulations. Collectively they provide a comprehensive
and thorough grievance procedure that can address Mr. Chilton’s issues. If the
outcome is unsatisfactory, he has the right to seek judicial review of any
decision in the Federal Court pursuant to section 18.1 of the Federal Courts
Act, R.S.C. 1985, c. F-7.
[50]
There
is authority that a statutory grievance procedure is an adequate alternative
remedy that must be exhausted before initiating proceedings in the Federal
Court. Giesbrecht v. R., 148 F.T.R. 81 (Fed. T.D.). Justice Pelletier
addressed the same question in Marachelian v. Canada, [2000]
F.C.J. No. 1128
and provided the following explanation:
The underlying rationale is that the
statutory remedy is deprived of any relevance if it can be simply bypassed in
favour of the Federal Court. One might add that the judicial resources should
not be occupied dealing with problems for which another forum is provided.
[51]
Giesbrecht and Marachelian
deal with premature applications for judicial review. In The Queen v.
Grenier, 2005 FCA 348, the Federal
Court of Appeal addressed the question of a challenge to the lawfulness of a
decision by an action for damages under section 17 of the Federal Court Act
instead of by judicial review under sections 18 and 18.1 of that Act. An inmate
had brought an action for damages challenging the lawfulness of a decision to
impose administrative segregation instead of challenging the decision by
judicial review. Justice Létourneau of the Federal
Court of Appeal stated:
To accept that the lawfulness of the
decisions of federal agencies can be reviewed through an action in damages is
to allow a remedy under section 17. Allowing, for that purpose, a remedy under
section 17 would, in the first place, disregard or deny the intention clearly
expressed by Parliament in subsection 18(3) that the remedy must be exercised
only by way of an application for judicial review.
[52]
After
discussing reasons relating to the need for finality of decisions and avoiding
promotion of indirect challenges, Justice Létourneau
wrote:
It is especially important not to allow a
section 17 proceeding as a mechanism for reviewing the lawfulness of a federal
agency’s decision when this indirect challenge to the decision is used to
obviate the mandatory provisions of subsection 18(3) of the Federal Court
Act.
[53]
I
conclude that Mr. Chilton must pursue the statutory remedy available to him by
way of the grievance and judicial review process and that he is precluded from
seeking declarations by way of an action for damages under section 17 of the Federal
Court Act.
Private Litigants
[54]
Finally,
Mr. Chilton comes to court as a private litigant. He is entitled to seek
damages for himself. He is not entitled to use the court as an indirect means
of altering policy decisions by means of generally worded declarations. In Trang
v. Alberta, 2007 ABCA
263,
Justice Slatter of the Alberta Court of Appeal noted that even an inmate
who might be injured in the transport of prisoners in an unsafe van would only
be entitled to damages, not a declaration effectively requiring the government
to alter prisoner transport vehicles to improve safety.
[55]
I
would note that a purpose for courts holding parties responsible for negligence
is to encourage responsible behaviour by those who owe a duty of care and deter
careless conduct. Given the success of his claim for negligence, Mr. Chilton
has accomplished the objective of reminding the Warkworth Institution officials
to attend to the safety of inmates working in the CORCAN furniture shop.
[56]
For
the foregoing reasons, I conclude that this is not a case for making the declarations
sought by Mr. Chilton.
What damages should be
assessed for Mr. Chilton’s injury?
[57]
Mr.
Chilton submits that damages must not only reflect his physical injury, but
also the aggravation of his mental illness. He cites a number of cases
including Tsougrianis v. Marrello and Marrello Construction Ltd., [1998] B.C.J. No. 2787 $50,000, Moss
v. Wilson, 2007 NLTD 31 $5,000, Turczinski v. Dupont Heating & Air
Conditioning Ltd., [2002] O.J. No. 2295
(OnSCtJus)
$35,000, Miksch v. Hambleton, [1990] B.C.J. No. 1810
(BCSC)
$35,000, Strawbridge v. Doe, [1994] B.C.J. No. 386
(BCSC) $9,000,
Boothman v. Canada, [1993] F.C.J. No. 400 $10,000, Linberg v.
Siu, 2006 BCSC 1349 $15,000, Perison v. Deol, 2002 BCSC 671 $6,000,
and Raivich v. Gero, [1993] B.C.J. No. 70 $13,000. Many
of Mr. Chilton’s cases involve damage awards for psychological or psychiatric
injury which are not relevant in his case as I have found there to be no injury
of that kind.
[58]
Counsel
for the defendant cites O’Brien v. Universal Property Management Ltd. 2005 NBQB
148 $2,000, Sam v. British Columbia (Ministry of Public Safety and Solicitor
General) 2005 BCSC 331 $2,000, Leeman v. Stoddard 2004 NBQB 348 $2,000,
McLean v. Booth 2006 ABQB 390 $1,000, Hoar (Guardian ad litem of) v.
Board of School Trustees, District No. 68 (Nanaimo) [1982] B.C.J. No. 636
$10,000, Haley v. Reade [2000] N.B. J. No. 351 $10,000, de Groot v. Arsenault [1999] M.J. No. 489
$10,000, Erbatur v. Kane [1999] B.C.J. No. 1522 $2,500. Counsel
submits the range for the damage award should be $1,000 to $2,000 with
prejudgment interest at 5% in accordance with the Federal Rules of Court
direction to apply the Ontario Rules of Civil
Procedure, R.R.O.
1990, Reg. 194.
[59]
The
injury occurred at Warkworth Institution in Ontario. A review of
awards for somewhat similar injuries in Ontario discloses: Nevelson
v. Murgaski [2006] O.J. No 3132 $1,000, Brown v. Canadian Tire Corp.
[2000] O.J. No. 4722 $1,000, King v. Ontario [2002] O.J.
No 4766 $2,500, and Bridgelall v. Managar [2001] O.J. No. 1523 $5,000.
[60]
I
find that the appropriate award of damages for Mr. Chilton’s injury is $2,500. Prejudgment
interest will be at a rate of 5 percent.
[61]
Given
that Mr. Chilton represented himself there are no legal costs to be compensated
for. He is entitled to reimbursement of his actual expenses incurred in this action.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The
Defendant is liable in negligence for the injury incurred by Mr. Chilton.
2. Mr.
Chilton is awarded $2,500 for his injury including pain and suffering and loss
of amenity.
3. Prejudgement
interest in the amount of 5 percent.
4. Mr.
Chilton is awarded disbursements only.
“Leonard
S. Mandamin”
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