Dental Surgeon awarded $260,000 for slip and fall injuries
Case Summary – Hibberd v. William Osler Health Centre (2009) Ontario Superior Court per Pattillo, J.
This is a recent decision involving the slip and fall of a pediatric dental surgeon in the William Osler Health Centre hospital. The plaintiff, Dr. Hibberd, fell on the wet hospital floor and contrary to hospital policy, there was no warning sign indicating a wet floor.
On liability, Pattillo, J., after an extensive analysis of the Occupier’s Liability Act and the evidence concerning the hospital’s policy and practices, held the hospital negligent for having failed to follow their policy on posting signs warning of wet floors.
Regarding damages, Dr. Hibberd fractured her left wrist which required a soft cast for approximately 6 weeks and then she attended 21 physiotherapy sessions over 5 months to rehabilitate her wrist. When she fell, she also hit her head hard on the ground but no lasting issues were associated with the head.
The main issue was future income loss. At the time of the accident, Dr. Hibberd had been practicing for 20 years and was earning approximately $1 to $1.3M annually. Her income continued to rise after the accident, to a high of $1.9M in 2006.
Her loss of earning capacity claim, given that she was ambidexterous, was that she continued to experience pain and fatigue for years after the accident and including at the time of Trial. She was self-conscious about using her left hand to move her patients and required some help in that regard. She saw less patients and worked less hours than before the accident.
In her personal life, as a married mother of (at the time of Trial) 8 and 10 year old children, with a live-in nanny to assist around the home, Dr. Hibberd regained her pre-accident functioning by 2004. She resumed her social activities and playing some tennis.
Pattillo, J. awarded the plaintiff $25,000 in pain and suffering damages for her fractured left wrist.
On the issue of past income loss, an award of $132,000 was given. Dr. Hibberd was unable to perform surgery while in a cast for 6 weeks, then it took an additional 2 to 3 months to resume her full-time schedule.
On the future income loss claim, the plaintiff estimated that she suffered an annual income loss of approximately $114,000 (being approximately 6% to 9% of her income). Calculated over the remainder of her career until age 65, this would total approximately $1.7M on a present value basis.
The plaintiff presented alternate future income loss theories, including the need to retire early due to potential future medical complications of carpel tunnel syndrome, tendonitis, rupture of a tendon and/or osteoarthritis. As a result of the alternate theories, different future income loss scenarios were presented ranging from $5.7M to $12M.
Pattillo, J. considered the various medical opinions and evidence given over this 13 day Trial and awarded $100,000 in future income loss. The Judge found that there was no income loss suffered by the plaintiff at present, and thus there would be no future income loss, but awarded the $100,000 amount on the potential future medical complications discussed above. The analysis of Pattillo, J. is helpful in this regard.
Gregory Chang
Toronto Insurance Litigation Lawyer