Date: 20010104
Docket: T-1744-97
BETWEEN:
KHON HA TRI
Plaintiff
-and-
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
GILES A.S.P.
[1] The Plaintiff was an inmate of the penitentiary at Warkworth and while there suffered injuries to his back and knee. He seeks to recover damages for his injuries from the Crown. By agreement the trial was bifurcated and only the issue of liability was before me, the issue of damages being left to be tried at a later date, if it became necessary.
[2] For some time prior to the incidents giving rise to this action, the Plaintiff had, had trouble with his back commencing several years previously when he was hit with a baseball bat and kicked in the back. The Plaintiff also had complained of injuries to his legs although the evidence is not quite clear which leg was affected each time.
[3] The incidents giving rise to the claim for damages commenced on August 25th, 1996. On that day the Plaintiff injured his knee while playing soccer and reported to hospital where he was given a tensor bandage, was offered crutches, was recommended to use ice and was offered the opportunity to stay in the hospital, but he preferred to return to his cell. Later that day he went to take a shower and when leaving the shower room, fell, further injuring his knee.
[4] After that injury he was assisted back to the hospital where he remained for about six days. On discharge from the hospital he was given a note by the doctor indicating that he was to have the bottom bunk and was told he should not sleep on the top bunk and only sleep on the bottom bunk. Between the date of his discharge from the unit hospital and December 18th, 1996 he fell on more than one occasion and apparently did so by reason of the weakness of his knee which collapsed beneath him. The Plaintiff's evidence is that he never occupied the bottom bunk. Shortly before December 18th, 1996 he had an altercation with the other inmate in his cell which arose from the fact that he attempted to take the bottom bunk and the new inmate took his stuff and threw it on the top bunk. The guard who was called with respect to the disagreement decided not to insist that the Plaintiff have the bottom bunk.
[5] Shortly thereafter on the morning of December 18th, 1996 while the Plaintiff was attempting to descend from the upper bunk, his knee collapsed and he fell to the floor, hurting his knee and back. Sometime after the fall when descending from the bunk and after several visits to various specialists, it was determined that the Plaintiff had suffered a tear of the medial meniscus. There was no expert evidence as to when this tear was suffered. It may have happened as early as the occasion of the twisted knee on the soccer field. Or, it may have happened in the shower, or, it may have happened when falling from the bunk. It appears that the fall in the shower was in part caused by the fact that the shower floor was very slippery and in part caused by the fact that the Plaintiff's left knee gave way, causing him to flip back into the shower room but, nevertheless fall on the knee. It may also be that the tear was caused by the fall when descending from the bunk. In view of the fact that the knee collapsed in the shower and on other occasions and when descending from the bunk, I think it more probable that the tear occurred from the soccer injury and was exacerbated by the various other falls over that autumn.
[6] With regard to the soccer injury, there is no question that the Crown is not responsible for any injury that the Plaintiff may have suffered on the soccer field. With regard to the fall in the shower, the Plaintiff claims that the Crown is responsible under the Occupier's Liability Act for the fact that the shower floor was slippery and had taken no steps to ensure that the premise were safe. There is evidence that before the Plaintiff took a shower, the drain in the shower room had been plugged and that a plumber had been called who fixed the drain. The Plaintiff points out that there is no evidence that the floor was dried. I think it quite apparent that whether or not the floor was at one time dried, the fact that people were taking showers would have resulted in the floor being wet. This was known to the Plaintiff.
[7] In the case of Meredith v. Canada, [1955] Ex.C.R. 156, decided in 1955 in the Exchequer Court, Mr. Justice Fournier when describing a very similar situation stated:
The floor described by the witnesses in my view compares with the flooring of most dressing rooms servicing swimming pools and seems to be of the standard type of floor in such establishments. In my view, this shower at the time the fall occurred was no different than other showers subject to similar use and there is nothing to show any negligence or disrepair by the Crown or it servants contributed to the fall by the Plaintiff.
[8] After the Plaintiff was released from the hospital, some six days after his fall in the shower, he still experienced considerable pain and from time to time fell due to his knee giving way. I think it therefore probable that the injury which caused his knee to give way was done either in the shower or was done on the soccer field and caused and was exacerbated by the fall in the shower.
[9] I find no liability for the Crown arising from the fall in the shower. I find that the fall when descending from the bunk was caused by the weakness of the knee and did not cause the meniscal tear. The Plaintiff did suffer painful injury by the fall when descending from the bunk, both to his knee and to his back. Those injuries were no doubt intensified by the fact that both the back and the knee had previously been injured and in the case of the knee at least, were in a continuing injured condition.
[10] The fall from the bunk was in my view directly attributable to the failure of the guards to ensure that the Plaintiff did not have to use the upper bunk. There may have been some contribution by the Plaintiff in not attempting, apparently, to obtain a lower bunk for several weeks after he was informed by the doctor at the hospital that he should not use an upper bunk. I say negligence of the Crown's employees in that there is evidence that the Plaintiff was informed he should have the bottom bunk and so advised the guards. However, it appears the Plaintiff made no attempt to occupy a bottom bunk until by the custom of the prison, he would have otherwise been entitled to one, namely, being the senior occupant of the cell. The Plaintiff put his things on the lower bunk and the new inmate forcibly took the bottom bunk. The Plaintiff complained and apparently raised the matter of his note, indicating a medical necessity for the bottom bunk. The guard with whom the matter was raised preferred not to press the issue and allowed the newcomer to preempt the bottom bunk. Shortly thereafter the evidence shows the problem foreseen by the prison hospital staff materialized and the Plaintiff fell when descending.
[11] In my view, the Crown is responsible for the failure of the guards to provide a bottom bunk for the Plaintiff. Having found the Crown responsible for the fall when descending from the upper bunk, I note that the Plaintiff contributed to the failure by not raising the matter for several weeks after he was advised by the doctors to sleep on a lower bunk. I have also found that the meniscal tear was not caused by the fall from the upper bunk. The Plaintiff suffered as a result of the fall what would have been minor bruising had it not been for the pre-existing conditions in his back and knee. In the circumstances, I would find the Crown responsible for nominal damages only for the fall from the bunk and not responsible for the soccer field or shower injuries. I find that there is no evidence that the fall from the bunk caused any lasting injury of any kind.
JUDGMENT
[12] By virtue of the failure of the servants of the Crown to provide the Plaintiff with a bottom bunk and the consequent fall by the Plaintiff when descending from an upper bunk, I find that the Plaintiff has suffered nominal, short-term pain and suffering and direct an assessment of damages should the same be requested.
"Peter A. K. Giles"
A.S.P.
Toronto, Ontario
January 4, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: KHON HA TRI |
- and -
| DATE OF HEARING: WEDNESDAY, JULY 19, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR JUDGMENT
| AND JUDGMENT BY: GILES A.S.P. |
DATED: THURSDAY, JANUARY 4, 2001
| APPEARANCES: Mr. M. Gillen |
Ms. V. McCaffrey
| SOLICITORS OF RECORD: Schwarz Gillen |
Barristers & Solicitors
2040 Yonge Street, Suite 220
Toronto, Ontario
M4S 1Z9
| Deputy Attorney General of Canada |
FEDERAL COURT OF CANADA
Date: 20010104
Docket: T-1744-97
Between:
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
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