Wild v. Canada, 2004 FC 942

                                                                                                                                Date:    20040630

                                                                                                                            Docket: T-1515-00

                                                                                                                     Citation:_2004 FC 942

Ottawa, Ontario, this 30^th day of June, 2004

IN THE PRESENCE OF THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                      DAVID JONATHAN WILD

                                                                                                                                               Plaintiff

                                                                           and

                              HER MAJESTY THE QUEEN IN RIGHT OF CANADA

                                   THE CORRECTIONAL SERVICES OF CANADA

                                                                                                                                           Defendant

                                             REASONS OF ORDER AND ORDER

Introduction

[1]                David Jonathan Wild was convicted of second degree murder on November 30, 1989, and received a life sentence with no chance of parole for 10 years. He has been serving his sentence at Mission Medium Security Institution (Mission) at Mission, British Columbia, since July 5, 1990.

[2]                Mr. Wild claims that between September 1996 and January 1, 2002, certain officers on duty during night shifts made loud noises while conducting rounds. They would, among other things, purposely rattle the handle on his cell door and kick his cell door, and keep the night light on in his cell, in order to awaken him. As a result, Mr. Wild claims that he was deprived of sleep which led to neurological damage.

[3]                Mr. Wild also claims that, after the launching of this legal action, the incidents complained of have reduced significantly to a point where he is no longer awakened on a regular basis.

[4]                The action is against Her majesty the Queen in Right of Canada and the Correctional Services of Canada. Hereinafter, I will refer to Correctional Services of Canada as "the defendant". Mr. Wild sues the defendant in tort for damages allegedly suffered by him while an inmate at Mission. Paragraphs 2 and 5 of the Amended Statement of Claim provide an indication of the plaintiff's case:

2.    That HM the Queen in Right of Canada (The Correctional Service of Canada) in the persons of [...] who did wilfully, knowingly and regularly, awaken the Plaintiff specifically and unnecessarily, on very many occasions, commencing September 21, 1996 until December 31, 2001, causing the Plaintiff to lose 509 full night's sleep. 312 of the awakenings were from REM sleep, the graveyard hour. 03:30h to 05:30h, in contravention of C & CRA s 69.

5.     That HM the Queen in Right of Canada (The Correctional Service of Canada) in the persons of [...] who were always in wilful default of their legal obligation to act fairly, apply the duty of care and attention to the letter of the law and implement the policy objectives of CD [Commissioner's Directive 565] issued by the Commissioner of the Correctional Service of Canada, warranted by the Corrections and Conditional Release Act Par I, s69; 70 and 86 in failing to ensure that the Plaintiff was treated humanely, his dignity not undermined and his current and future health not jeopardized.

[5]                Paragraph 2 of the Amended Statement of Claim would suggest a claim framed in intentional tort. However, in his opening remarks at trial, counsel for the plaintiff sought to "clarify some of the contents that were originally set out by Mr. Wild as an unrepresented plaintiff". I take from this opening statement that counsel sought to clarify the nature of the case advanced by the plaintiff. Counsel stated:

There will be a claim advanced at this trial in negligence, and Mr. Wild will be seeking both general and exemplary damages. There was reference in his original material filed in the Statement of Claim, to a head of damages that's often described as loss of future earnings capacity. That head of damages will not be advanced at trial before Your Lordship. It's my view as his counsel, and I've explained this to Mr. Wild, that there are evidentiary difficulties that would make it beyond difficult and perhaps impossible for this court to arrive at a conclusion on that under that head of damages.

So for the focus here will be primarily on an issue with regard to sleep disturbance, sleep deprivation, general damages attributed to the injuries arising from that action, and further exemplary damages with regard to the conduct of some of the defendants with regard to the causation and the continuance of the injuries and the sleep deprivation.

[6]                The plaintiff clearly informed the Court that the action would proceed as a negligence claim. These reasons will therefore deal with the issues raised, the evidence adduced and the arguments made on that understanding.

[7]                Mr. Wild claims damages totalling 3.1 million dollars, which include future loss of earnings, punitive and aggravated damages, all of which are particularized in his Amended Statement of Claim. As stated by counsel for Mr. Wild at the outset, the claim for loss of future earnings would be dropped and the trial should proceed on the claim for sleep deprivation and should focus on causation, general and punitive damages.

[8]                The trial was held in Vancouver, British Columbia, and commenced on April 20, 2004, for a duration of 4 days. Three witnesses testified on behalf of the defendant. Mr. Rick Heriot, Acting Deputy Warden at Mission, Mr. Jonathan Ratzlaff, Chief of Works at Mission, and Dr. Eddison Sinanan, a medical practitioner in the specialty practice of Otolaryngology. Dr. Sinanan is the only expert witness called to testify at this trial. Mr. Wild was the only witness to testify for the plaintiff in this matter.

Background Facts

[9]                The following is a summary of Mr. Wild's evidence, which for the most part is not disputed. Mr. Wild was born in England sixty eight years ago in the month of June. He was educated and trained in the U.K. as an architect. Prior to moving to Canada in 1966, he served a total of six years with the English Army as a paratrooper, a reservist, and in other capacities. Mr. Wild was married in 1959 and he had three children with his wife, with whom he remained married until 1986. After his arrival in Canada in 1966, Mr. Wild worked on many large projects as a project coordinator, consultant and/or manager in both Edmonton and Vancouver. Mr. Wild was convicted of second-degree murder in 1989 and he was sentenced to life imprisonment with no possibility of parole for ten years. Mr. Wild has sought and has been denied parole on five separate occasions since he has become eligible.

[10]            Mr. Wild is serving his sentence at Mission and since his arrival in 1990, with the exception of a short stay in another cell in a different unit, he has occupied cell N-15 at living unit 3, which is also known as "Dogwood House"._ Much time was spent and evidence was led with respect to the configuration of cell N-15. A rough sketch of the cell prepared by Mr. Wild, entitled an "exploded view of the cell," was generally accepted by the parties as an accurate reflection of the cell's configuration and dimensions. For the purpose of these reasons the following physical characteristics are noteworthy. The cell is eleven feet and three inches deep and measures six feet and eight inches in width at its widest. At the entrance to the cell, opposite Mr. Wild's bed, is a steel door with a round door handle or door knob. The cell door also has a six by six-inch glass viewing window, which is covered with a cardboard flap from the outside of the cell. Mr. Wild's bed is located the entire length of the wall opposite the door under a large window. When observing the cell from the steel door, a toilet and sink are placed on the right side of the cell and a drafting table occupies a significant portion of the space on the left. There is only one foot and ten inches distance between the drafting table and the storage locker.

[11]            For most of the time material to this claim, a double storage locker was located between the sink and the head of Mr. Wild's bed. The evidence establishes that when viewing the cell from the viewing window in the door, the head of the bed where Mr. Wild would rest his head while sleeping would not be visible, as it was obstructed by the storage locker. A single light fixture with two fluorescent lights and a night light are found at the centre of the ceiling of the cell. The night light is a single 15 watt incandescent bulb which is activated when a push button, located outside the cell door, is depressed._ Jonathan Ratzlaff, Chief of Works at Mission, testified that the night light is a dim light which puts out between 3 or 4 "foot candles" of light. Mr. Ratzlaff also testified that the light fixture in use at all times material to this claim is an improvement over the lights previously used. He explained that the new lights provided better lighting for the inmates while they were working or reading and also provided a better arrangement for night lights. The former system required that the night light would have to remain on for the time required for the duty officer to complete his rounds. The current system provides that the night light, a dimmer light, need only remain on while an officer is checking each individual cell.

[12]            Mr. Ratzlaff was very candid on cross-examination about the noise that could be made with the door knobs to the cells. He testified that a door handle similar to the one on Mr. Wild's cell could be turned approximately 10 to 20 degrees and if turned fast enough could make a "fair noise". He also confirmed that the noise would resonate inside the cell because of the steel door on the cell.

[13]            Mr. Ratzlaff also gave evidence with respect to the lockers installed in the cells. The double lockers were designed when it was decided that a third of the cells at Mission would have double occupancy. Mr. Wild's cell was not one of the cells destined for double occupancy. Indeed, except for a short stay in a another unit, Mr. Wild was never double bunked. The double lockers were designed to be installed inside the door across from the toilet. In Mr. Wild's cell, however, the double locker was installed near the head of his bed because the drafting table occupied the space intended for the double locker. As a result of the locker placement in Mr. Wild's cell, the officers conducting the night rounds could not observe his head while sleeping as it was hidden by the locker.

[14]            Mr. Ratzlaff also testified that inmates found ways to exchange furniture between cells and, as a result, furniture would "migrate" from one cell to the next. It is his testimony that a loose, informal exchange of furniture by inmates happens on a regular basis. Defendant's counsel asks that the Court infer from this that Mr. Wild could have removed the locker at any time. This evidence conflicts with Mr. Wild's testimony that, despite several requests, he was unsuccessful in having the locker removed in order to make his head visible to officers during night rounds. This issue will be resolved in the defendant's favour and will be dealt further in my analysis.

[15]            Finally, Mr. Ratzlaff testified that ear plugs were readily available to Mr. Wild and that a commercially made eye mask could have been purchased by Mr. Wild to shield his eyes from the night light. Mr. Wild's testimony is that such a proper mask was not available to him, despite his request, and that he was left to fabricate his own eye mask, which he did not use because the rubber band securing the mask to his head would get caught in his hair and was uncomfortable. Mr. Wild testified that he tried ear plugs, but discontinued their use. He found that, on one occasion, one of his ears became infected and attributed this to the ear plugs. He also found that when he used the ear plugs, he would sleep through to 10:00 or 11:00 o'clock the next morning and miss breakfast.

[16]            Mr. Wild normally reads until 1:00 or 1:30 a.m. before falling asleep. He testified that only rarely, "once in a blue moon" to use his expression, would he fall asleep before 1:00 a.m. Since he rises at 7:00 a.m., Mr. Wild therefore sleeps five and a half to six hours per night. He was questioned as to why he would not try to increase the overall hours of sleep, given his alleged problems with sleeplessness. He testified that since 1990 he attempted on three occasions to change his sleeping patterns, without success.

[17]            Mr. Wild claims that his problems with alleged awakenings commenced when new procedures were implemented at Mission in 1996. No longer would an officer be on duty all night at each individual unit at Mission. After the implementation of the November 6, 1996, "Post Orders", night rounds were to be conducted by three officers referred to as "night rovers". The patrols were to be conducted for all units at Mission by these same three officers. Under the heading "Duties" the Post Order in question provides as follows:

7. The Correctional Officer shall:

a) Supervise the residence by making at least one patrol of the residence during each hourly period until 0600 hours on inmate work days and 0745 hours on other days. The Deister Handwand shall be used to record these patrols. The responsibility for supervising the residence during the period includes ensuring that all inmates are present and alive.

[18]            A subsequently issued Post Order provides that the officer shall also ensure,_ "...that the cell door is secure".

[19]            Mr. Wild claims that, after 1996, the nightly hourly rounds became nightly hourly awakenings, on the hour. He attributes part of the problem to trainees being part of the three officer team charged with night rounds. He testified that the officer conducting the rounds would activate the night light in his cell by pressing the button on the outside of the cell and holding his finger on the button until Mr. Wild either moved or did something, and then the officer would release the button. Mr. Wild's evidence is that when he would turn off the light in his cell and go down to sleep, the night light in his cell would come on every thirty minutes and this would remain a frequent pattern from 1997 until August of 2001. Also, after 1996, Mr. Wild claims his door knob would be rattled loudly and repetitively, and quite often the flap in the viewing window in his door would not be lifted by the officer so Mr. Wild could not observe which officer was responsible. Mr. Wild inferred from this that the officer was rattling the door handle purposely to awaken him, since the flap was not lifted to check on him. In essence, with respect to loud door knob checking or turning, Mr. Wild testified that after 1996 there was an increase in noise level and an increase in frequency of occurrences.

[20]            Mr. Wild also testified that he would be awakened by his door being kicked. He recalled many times when his door was kicked and suspected this was being done by officers wearing boots. On one occasion, after being awakened by kicking noises from his door, the next morning he observed black boot marks on the bottom of his door on the outside of his cell. His testimony is that the marks "...could only come from the type of rubber-sole boot that correction officers wear,...which was black rubber."

[21]            Mr. Wild identified five individual staff members by name who were more frequently engaged in loud door checking or door turning. It serves no purpose to identify these individuals in these reasons. Suffice it to note that, according to Mr. Wild, when these individuals were on duty the frequency of the loud door rattling in the year 1997 was "two to three times a night, four to five times a week sometimes and then there'd be a hiatus when that person's off duty"._ On one occasion Mr. Wild confronted one of these officers that he was able to identify. The following is Mr. Wild's evidence of the verbal exchange between he and that officer:

He's used the term, "I know I can push your buttons when I feel like it." I said to him, "You miserable person, what do you do that for?" "I know it pushes your buttons when I rattle the doorknob at 1 o'clock in the morning."

[22]            The individual staff members identified by Mr. Wild were not called by the defendant to address Mr. Wild's allegations.

[23]            During all times material to this claim, Mr. Wild kept a very detailed diary of his awakenings, noting the nature of the noise that awoke him and the precise time of the awakening by turning on the weather channel on his television, in his cell, which displayed the accurate time on the screen.

Issues

[24]            There are three issues to be determined in this matter:

A.     Does the defendant owe the plaintiff a duty of care?

B.          Is there sufficient evidence to establish, on a balance of probabilities, that the defendant breached the duty of care owed to the plaintiff by the defendant?

C.        If there is such a breach, is there a causal link between the negligent actions of the defendant's employees and the damages alleged by the plaintiff?

Analysis

A.         Does the defendant owe the plaintiff a duty of care?

[25]            It is generally accepted law that an action in negligence necessitates a determination that there exists a duty of care, breach of the duty of care, and a link or causation between the acts or omissions of the defendant and the resulting alleged injury: see A.M. Linden & L.N. Klar, Canadian Tort Law 11th Ed. (Toronto: Butterworths Canada Ltd., 1999).

[26]            The Crown's liability in tort law exists as a result of section 3 of the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, as amended (CLPA). That provision states:

[27]            In Bastarache v. Canada, [2003] F.C.J. No 1858, Madam Justice Layden-Stevenson succinctly stated the law in respect of Crown liability in the context of a correctional institution._ At paragraph 19 of her reasons she stated:

The liability is vicarious. In the present context, it must be established that an officer of the penitentiary, acting in the course of his employment, did [or failed to do] that which a reasonable person in the position would not have done [or would have done] thereby creating a foreseeable risk of harm to the inmate resulting in liability: Timm v. Canada, [1965] 1 Ex. C.R. 174; Coumont v. Canada (Correctional Services) (1994) 77 F.T.R. 253 (T.D.); Iwanicki v. Ontario (Minister of Correctional Services) [2000] O.T.C. 181 (Sup.Ct.Jus.).

[28]            The operation of the federal corrections system is governed by the Corrections & Conditional Release Act, S.C. 1992, c. 20, (CCRA) and the Regulations passed thereto. Section 5 of the CCRA provides that the Correctional Service of Canada (CSC) shall be responsible for, inter alia:

[29]            Section 3 of the CCRA sets out the purpose of the federal correctional system as follows:

[30]            Subsections 4(d) and 4(e) of the CCRA set out the legislated principles guiding the CSC in the achievement of the above stated purpose. The subsections read as follows:

[31]            The treatment and living conditions of inmates is specifically addressed in sections 69 and 70 of the CCRA. Those sections provide as follows:_

[32]            I am satisfied that a duty of care is owed by the defendant to the plaintiff. The defendant acknowledges that a duty of care is owed to inmates at Mission. The duty owed is essentially set out in the statutory provisions set out above. It is the defendant's position, in the circumstances of this case, that the defendant's duty of care is not only defined by the various sections of the CCRA cited above, but also by the Commissioners Directions, Institutional Standing Orders and Post Orders, that are included in the record of these proceedings. The content of the duty of care is well established in the jurisprudence. Prison authorities owe a duty to take reasonable care for the health and safety of the inmate while in custody: Timm v. Canada, [1965] 1 Ex. C.R. 174; Abbott v. Canada (1993), 64 F.T.R. 81 (T.D.); Oswald v.Canada (1997) 126 F.T.R. 281 (T.D.).

B.        Did the defendant breach the duty of care owed to the plaintiff?

[33]            The second issue is whether the duty of care owed to Mr. Wild by the defendant was breached. Put differently, did the acts or omissions of the defendant fall below the standard of conduct of a reasonable person of ordinary prudence in the circumstances: Russell v. Canada 2000 BCSC 650, [2000] B.C.J. No, 848. In order to determine whether the standard was met in this case it is necessary to examine CSC standards for a medium security institution during nightly hourly rounds by duty officers, and secondly, what was done in this particular case.

[34]            Mr. Rick Heriot, Acting Deputy Warden at Mission, testified on behalf of the defendant. He has worked for CSC for almost 30 years as a correctional officer and in many other capacities. He began working at Mission in 1977 and worked there intermittently for about 20 years. His last return to Mission was in 2000. He testified with respect to procedures at Mission to ascertain the presence of the inmates at any given time of the day. He described for the Court the security regime in place with respect to counts and nightly rounds at the institution and how these rounds were to be conducted.

[35]            Mr. Heriot referred to the policy objective with respect to the counting of inmates found in a Commissioner's directive dated March 6, 1996. The stated policy objective is: "To exercise safe, secure and humane control of inmates by verifying their presence and well-being through the use of a system for counting inmates." He noted the purpose of Post Orders at Mission was to provide an outline or a "step by step" way for the officers who come on shift to follow their duties on that shift. He stated that officers were expected to be familiar with the Post Orders. With respect to the current Post Order at Mission regarding officers' duties during the nightly rounds, Mr. Heriot testified that the officers were required to know the whereabouts of the inmates at any given time and were also required to insure they were counting a live, breathing body. He also stated that the officers were required to check that the doors to the cells were secure. Mr. Heriot described in significant detail how a group of three officers, known as rovers, would conduct rounds for all of the units at Mission. Hourly rounds were required to ensure there was a live, breathing body. He explained that Mission had cases of attempted suicides and cases where inmates had medical problems. Mr. Heriot stated that in conducting rounds, only the minimum amount of light was to be used to identify that the person was alive and breathing.

[36]            Mr. Hariet also stated that inmates at Mission were provided with earplugs and could arrange to purchase an eye mask if desired.

[37]            With respect to the issue of excessive noise at night, Mr. Heriot stated that searches in the units at night were at times required and were conducted as quietly as possible. When checking cell doors, the officers are expected to just gently turn the handle and try and pull on it to see if it was intact and would actually hold the door. Mr. Heriot related his own extensive experience in conducting nightly rounds and checking inmates. He testified that he conducted such nightly counts hundreds of times and, although it could sometimes take a bit of time, he could always ascertain if the inmate's chest was moving up or down. He stated that this was generally done without awakening the inmate. Mr. Heriot stated in response to questions from counsel for Mr. Wild that no records are kept as to the time and date an inmate would have been awakened by an officer during nightly rounds. With respect to complaints made by inmates, Mr. Heriot stated that action could be taken if an inmate complained daily about being awakened, however, it was his experience that there were not a lot of complaints in that area.

[38]            Mr. Wild acknowledged that certain cell doors were left unlocked from time to time at Mission. While he felt the security of the institution was not jeopardized, he nevertheless recognized that the "night hourly rounds" are essentially a double check on which doors have been locked. Mr. Wild claims that between 1990 and 1996, he can only remember half a dozen times when his door handle was rattled after eleven o'clock at night, and not ever after one or two o'clock in the morning. He argues, that after 1996, certain officers conducting nightly rounds acted inappropriately towards him and beyond the scope of their duties and responsibilities awakening him unnecessarily over a long period of time and resulting in the harm alleged.

[39]            I draw a negative inference from the defendant's failure to adduce any evidence to counter the plaintiff's allegations with respect to the activities of certain staff members, particularly when the relevant staff members are clearly identifiable. In respect of these allegations of repeated nightly awakenings, I accept Mr. Wild's evidence. I find him to be credible and have no reason to disbelieve him. On the evidence, I am satisfied on a balance of probabilities that Mr. Wild was awakened intentionally and unnecessarily by certain officers conducting night rounds at Mission. I am satisfied that the stated awakenings between 1996 and 2001 occurred as a result of the noises made when the door handle to his cell was rattled, the night light in his cell was held on, his cell door was kicked, the shower door slammed, and by other noises caused by the officers conducting their night rounds.

[40]            Numerous complaints were filed by Mr. Wild between 1996 and 2001 with respect to the unnecessary awakenings by the night rovers. For the most part the complaints were received, deemed to be valid, and either upheld or upheld in part.

[41]            In one instance dealing with a complaint regarding the noise caused by staff checking the "north shower room," the matter was resolved by directing staff to lock the door prior to the 2245 hour unit lock up. In relation to Mr. Wild's main complaint regarding noise caused by the rattling of door handles and night-lights being held on for extended periods of time, the responses over the years have acknowledged the need for staff to keep the noise level to a minimum and to be "courteous" when offenders were asleep. Mr. Wild was advised that "it was unrealistic to expect that there will not be any noise or light during the night hours." The responses on more than one occasion indicate that unit staff have been reminded to be considerate when offenders are asleep. It is Mr. Wild's contention that very little was done by Mission to address his complaints and prevent the unnecessary awakenings by the night rovers. A second level complaint was responded to by Mission officials on April 27, 2000, with reasons that stated as "this issue is being appropriately addressed at Mission Institution, no further action is required at the second level."

[42]            The defendant contends that Mr. Wild has failed to take the necessary steps to mitigate against his loss of sleep. The defendant argues that Mr. Wild refused to reconfigure his cell by removing the double locker in order to allow his head to be visible to the officers during night rounds. Mr. Wild's evidence is that he made such a request and was turned down. However, he admits that the locker was ultimately removed on an informal basis in 2002. This gives credence to Mr. Ratzlaff's testimony that such informal arrangements in respect of furnishings in the cells was common. I accept the defendant's contention on this issue and find that Mr. Wild could have had the double locker removed at an earlier time had he so desired. Mr. Wild did, however, make an effort to make his head more visible by propping up his head with a pillow. This evidence appears to be undisputed by the defendant.

[43]            The defendant also states that Mr. Wild refused to use earplugs and an eye mask and this could have prevented much of his alleged sleep loss. I accept that the use of earplugs may have had a significant impact on the plaintiff's loss of sleep. It is the plaintiff's evidence that the use of ear plugs would cause him to sleep until 10:00 or 11:00 the next morning, causing him to miss breakfast. The use of earplugs may well have had an impact on the numerous awakenings complained of as could have the use of a proper eye mask. But surely the mitigation argument advanced by the defendant with respect to the use of an eye mask and earplugs cannot be used to justify improper behaviour by staff, if and when such behaviour can be established. An inmate should have the right to a restful night's sleep without being unnecessarily awakened at the frequency and duration of time alleged by Mr. Wild.

[44]            I recognize that the staff had certain duties to perform in conducting hourly night rounds. These included the specific instructions provided in the Post Orders at Mission. These night rounds are fully justified and desirable in an institutional setting to ensure public safety and the safety of the inmates. In conducting these rounds, I appreciate that it is necessary to view the inmate to ensure the inmate is indeed alive, and that it is necessary to check the door handle of each cell since the cell doors at Mission are locked manually as there were no electronic door locks. I also accept that from time to time inmates will inadvertently be awakened as a consequence of these rounds. While staff is required to carry out these duties, they are however, directed and required to do so with minimal disruption to the inmates. In this respect, the hourly night rounds prior to 1996 were conducted without difficulty or at least without complaints of constant and regular awakening of the inmates. It is also interesting to note that the awakenings complained of seem to have reduced significantly since the year 2002. One can only speculate as to why. Mr. Wild suggests that the changes in this respect by the night rovers are due to the fact he instigated this legal action. There is insufficient evidence to make a finding in this regard. However, there is sufficient evidence to allow me to find, on a balance of probabilities, that certain guards at Mission conducting night rounds in the years 1996 to 2001 were involved in misconduct which resulted in the intentional and unnecessary awakening of Mr. Wild. I am satisfied that the night hourly rounds can be conducted, and are indeed being currently conducted, in a manner which allows the officers to fulfill their duties as prescribed by the Mission's Standing Orders and the Post Orders without the necessary awakening of inmates.

[45]            Although the responses offered by Mission in respect to Mr. Wild's complaints appear on their face to be sincere efforts to address the issues raised, they fail to deal with the real issue. On the evidence, I find that a small number of officers on night duty purposely set out to awaken Mr. Wild from his sleep during the night hourly rounds. I am satisfied that these nightly awakenings for the most part were deliberate and unnecessary. I find that the actions of these officers of the defendant fall below the standard of conduct of a reasonable person of ordinary prudence in the circumstances. The defendant had a duty to monitor the conduct and performance of its staff and, more specifically in respect of this case, to investigate staff who are abusing their positions. This duty arose in the instant case because of the specifics of the claims advanced by Mr. Wild. The defendant failed to take the necessary steps to prevent this unacceptable behaviour by its staff, even after repeated complaints lodged by Mr. Wild. In consequence, I find that the plaintiff has met the burden of establishing a breach of the duty of care owed to him by Mission officials and vicariously, by the defendant.

            B.        Is there a causal link between the negligent actions of the defendant's employees and the damages alleged by the plaintiff?

[46]            As indicated earlier in these reasons, once a breach of the duty of care is established, evidence regarding causation then becomes essential in order to determine whether an action in negligence is made out. Consequently, a finding of liability necessitates a determination that there exists a link or causation between the acts or omissions of the defendant and the resulting injuries.

[47]            The plaintiff claims that as a direct result of sleep deprivation caused by the defendant's negligent actions he suffered neurological damage which was manifested by constant daily headaches, blurred and double vision, imbalance, mild depression, irritability, loss of concentration and phobic fear of accidental injury on a construction site, including the loss of leisure activities namely, cycling, hiking, and swimming. The defendant argues that the plaintiff's claim must fail as the evidence does not support any causal connection between the breach alleged and the injuries the plaintiff alleges he has suffered. _

[48]            The medical and clinical reports in evidence document that most of the conditions complained of by the plaintiff in his claim existed prior to 1996, the year he claims his problems with sleep deprivation began at Mission. Most of these conditions are confirmed by Mr. Wild. He testified that he suffered significant head injuries from amongst others, a bicycle fall at an early age, motor vehicle accidents, and from playing soccer. He specifically suffered 16 or 17 concussions, most of which required hospitalization. He testified he suffered serious back injuries from various accidents, including a parachute accident while in the army, and from being run over by a bus. The evidence establishes that Mr. Wild suffered blurred vision and double vision on numerous occasions prior to 1996. He concedes that his dizziness and nausea could very well be as a result of his history of head injuries. He also testified that in 1991, while serving his sentence at Mission, he experienced a dizzy spell which was one of the primary reasons for leaving a job at the Corcan cabinet shop.

[49]            Dr. Eddison Sinanan is the only expert witness called to testify in this trial. He is a medical practitioner in the specialty practice of Otolaryngology, with a focus in Otoneurology. Dr. Sinanan examined Mr. Wild on March 17, 2003. The interview lasted almost four hours, with one 20 minute break for lunch. Dr. Sinanan's expert report was received in evidence. The objective of the interview and examination of Mr. Wild was to obtain his history and to complete a physical examination in regard to his particular complaint of dizziness and its presumed relationship to sleep deprivation and/or his allegation of such.

[50]            In his report, Dr. Sinanan wrote the following with respect to Mr. Wild's numerous head and neck injuries: "Mr. Wild had significant previous head and neck injuries with concussion first in 1950, twice during his soccer years and a serious one while in the British Military, when he fell ten feet vertically, landing on his head, and was hospitalized with transient neurologic deficits. Later in 1996, after a motor vehicle accident, and then on the job site when a sling of 2 X 4's fell on his head, knocking him out, and another hitting his head on a van door top rail and being concussed."_

[51]            Dr. Sinanan concluded that Mr. Wild's dizziness complaints appear to be confused and unusual, and in his opinion did not have any relationship to the alleged frequent sleep awakenings. Dr. Sinanan went on to suggest that there were other numerous complaints and real organic problems which could have caused sleep disturbance over the years. On page 10 of his report, Dr. Sinanan reviews these numerous problems in detail, inter alia: lumbar disc disease causing severe back pain as far back as 1990, severe pain caused by renal calculi, minor episodes of dizziness caused by a fractured arm, treatment in 1993 for dizziness and for sudden onset of blurred vision, treated for headaches and depression in the 1980s, treated for spinal injury in 1988, and for a soccer injury to his head in 1992._

[52]            I am in agreement with the defendant's submission that there is no evidence to support the plaintiff's contention that his irritability resulted from sleep deprivation, or that he was not irritable prior to 1996. Nor is the evidence compelling as to the cause of Mr. Wild's alleged loss of concentration. As well, I have great difficulty appreciating the linkage between sleep deprivation and phobic fear of accidental injury on construction sites. Apart from Mr. Wild's bold statement that he suffers from such a condition, there is no other evidence to support such a claim. I fail to see how this claim is compensable, in any event, given that Mr. Wild is currently serving a life sentence with little opportunity to be involved on a construction site._

[53]            The evidence clearly establishes that prior to 1996, Mr. Wild suffered from headaches, blurred and double vision, imbalance, vertigo and/or dizziness on numerous occasions. The only suggestion that sleep deprivation has resulted in the plaintiff's diploic, vertigo or dizziness comes from the plaintiff's own self-diagnosis. There is no medical evidence tendered by the plaintiff to support these allegations nor any evidence that the misconduct of the officers aggravated his previously existing condition. I accept Dr. Sinanan's expert opinion and conclusion as expressed above. There is ample evidence to support Dr. Sinanan's opinion and his suggestion that there were other numerous complaints and real organic problems which could have caused Mr. Wild's sleep disturbances over the years.

Conclusion

[54]            For the above reasons I find that the defendant owed a duty of care to the plaintiff and that the defendant breached that duty of care. However, the plaintiff has failed to establish a link or causation between the acts or omissions of the defendant and the resulting alleged injuries. As a consequence, the plaintiff's action in negligence must fail.

[55]            As a rule costs would normally follow the event. However, the particular circumstances of this case warrant that special consideration be given to the costs award. The plaintiff failed to establish causation, one of the requisite elements to make out his case in negligence. He was however, successful in establishing a breach of the duty of care owed him by the defendant, a significant aspect of the within litigation. Further, the defendant was not of assistance to the Court in its response to the serious allegations made by Mr. Wild. I emphasize that, none of the officers involved in the misconduct were called by the defendant. In my view the misconduct of the officers of the defendant was reprehensible and cannot be condoned. In consequence and in the exercise of my discretion, I will order costs payable by the defendant to the plaintiff to be assessed in accordance with the top of Column III of the Table to Tariff B.

                                                                       ORDER

THIS COURT ORDERS that:

1.                   The action is dismissed.

2.          Costs payable by the defendant to the plaintiff to be assessed in accordance with the top of Column III of the Table to Tariff B.

                                                                                                                        "Edmond P. Blanchard"                

                                                                                                                                                   Judge                         

                                                             FEDERAL COURT

                                     Names of Counsel and Solicitors of Record

DOCKET:                                           T-1515-00                   

STYLE OF CAUSE:               David Jonathan Wild v. Her Majesty the Queen in Right of Canada The Correctional Services of Canada

PLACE OF HEARING:                        Vancouver, B.C.

DATE OF HEARING:                          April 20, 2004

REASONS FOR ORDER BY:             BLANCHARD, J.

DATED:                                                 June 30, 2004

APPEARANCES BY:

James Bahen                                         For the plaintiff

Edward Burnet

Keitha Richardson                                 For the defendant

SOLICITORS OF RECORD:          

Leask Bahen

Vancouver, B.C.                                   For the plaintiff

Morris Rosenberg                                  For the defendant

Deputy Attorney General of Canada