The court only resolved the issue of damages as the defendant chose not to file a defence statement
The Ontario Superior Court of Justice has awarded almost $130,000 in damages to a woman who suffered injuries from a jet ski accident in 2015.
In Hennessy v Tyson, 2022 ONSC 6194, the plaintiff and her daughter travelled to Dunnville to visit friends at the Maitland Gorge Trailer Park in June 2015. They met the defendant, who was also staying at the trailer park, as the plaintiff informed him of her plan to purchase a trailer. The defendant brought with him a Yamaha jet ski.
The defendant invited the plaintiff and her daughter to ride on the jet ski. He drove the jet ski out to the middle of the Grand River, and the plaintiff asked him to go repeatedly in circles. The plaintiff eventually requested the defendant to slow down and discontinue the circles, but he ignored her request. The plaintiff and her daughter were thrown from the jet ski due to the defendant’s driving actions.
On climbing back onto the jet ski, the plaintiff asked the defendant to slow down. The defendant proceeded down the river towards Port Maitland, where there was a 30 to 40 feet fishing trawler. The plaintiff asked the defendant to stay away from the fishing crawler. He again ignored her request and proceeded straight into the wake at approximately 60 kilometres per hour.
On hitting the first wave, the plaintiff and her daughter were thrown from the jet ski. The defendant continued driving through the wake, and the plaintiff struck the water on her left side. He returned to the area and assisted the plaintiff in climbing back onto the jet ski.
As a result of the accident, the plaintiff suffered serious physical injury, including three fractured ribs, a punctured lung, and left-sided pain. However, her injuries continued to be problematic after discharge from the hospital. Accordingly, she sought a damage award with the Superior Court for the injuries she sustained resulting from the defendant’s alleged negligent operation of the jet ski.
The Superior Court granted judgment in favour of the plaintiff and awarded her $129,939 in damages.
According to the court, it will only resolve the issue of damages as the defendant chose not to file a defence statement, and while he is deemed to admit the allegations set out in the statement of claim, it will assess damages based on the findings of fact from the evidence and the relevant principles of law.
As to the physical injury suffered by the plaintiff, the court assessed non-pecuniary damages at $75,000 since her rib and lung injuries are confirmed in the medical records tendered in evidence.
“The impact of these injuries was significant for eight months, moderate for the next thirty, and with some residual difficulty to the present. Substantial recovery occurred after three years,” Justice Donald Gordon wrote. “As to the future, there is a lack of medical evidence to rely on. Nevertheless, I am satisfied there are lingering problems.”
As to the psychological injury experienced by the plaintiff, she suggested a range of damages between $60,000 and $80,000. However, the court assessed non-pecuniary damages at $15,000.
The court found that there is no medical evidence as to a diagnosis or treatment plan for the plaintiff, and while she referred to a diagnosis of post-traumatic stress disorder by her family physician, Dr. Bal, there is no such recording made.
“While such a discussion likely occurred and a family physician is well qualified to report on observations, I am not persuaded Dr. Bal would be qualified to render such a diagnosis,” Justice Gordon wrote. “That is the role of a psychologist.”
The plaintiff alleged that she was unable to do any housekeeping tasks for eight months, and as her physical recovery occurred, she was able to perform some tasks but remained in need of assistance for the next several years. She presented calculations for services provided by her daughter and others at $47,750. However, the court only awarded pecuniary damages of $25,000.
“I am satisfied with the evidence from Ms. Hennessy regarding the need for assistance, in general and, in particular, for the first three years,” Justice Gordon wrote. “In the absence of further medical evidence or a functional capacity assessment, the remainder of the claim is speculative.”
As to the plaintiff’s future medical expenses, she presented the recommendation by Dr. Bal for therapeutic counselling as evidence and suggested a range between $12,000 to $24,000. However, the court determined that the plaintiff has not had the financial ability to pursue counselling and no benefit plans are available.
“The absence of medical evidence limits the assessment of damages, including the time needed for a counselling program,” Justice Gordon wrote. “In result, I award pecuniary damages for future medical expense at $12,000.”
The plaintiff also sought damages for loss of income. However, the court determined that she did not suffer a loss of income after the accident, despite taking some time off and having limited ability to work for some time since her employer continued her salary.
Lastly, the court awarded the plaintiff a subrogated claim of $2,939 following the submission of documentation from the Ministry of Health.
