Facebook Twitter LinkedIn YouTube Nous joindre | English

Décision

Les décisions diffusées proviennent de tribunaux ou d'organismes indépendants de SOQUIJ et pourraient ne pas être accessibles aux personnes handicapées qui utilisent des technologies d'adaptation. Visitez la page Accessibilité pour en savoir plus.
Copier l'url dans le presse-papier
Le lien a été copié dans le presse-papier

Laflamme c. Groupe TDL ltée

2014 QCCS 312

 

JP 1900

 
SUPERIOR COURT

CANADA

PROVINCE OF QUEBEC

DISTRICT OF MONTREAL

 

No:

500-05-066771-013

DATE:

FEBRUARY 6, 2014

___________________________________________________________________

THE HONOURABLE MR. JUSTICE MARK G. PEACOCK, J.S.C.

___________________________________________________________________

 

LUCIE LAFLAMME

            Plaintiff

v.

GROUPE T.D.L. LTÉE

 

and

 

9023-9997 QUÉBEC INC.

            Defendants

___________________________________________________________________

JUDGMENT

___________________________________________________________________

INTRODUCTION

[1]           On Friday, August 14, 1998 Ms. Laflamme took a break from setting up for a garage sale. She invited her niece and the niece’s boyfriend to lunch at a nearby Tim Hortons restaurant.[1] 

[2]           Ms. Laflamme had been ill with a sore throat and was on antibiotics.  She had not eaten in several days and only ordered a cream of potato and bacon soup.  It was to be a fateful choice.

[3]           Ms. Laflamme took one soupspoon full of soup into her mouth. She alleges that the severe burning that resulted caused her to suffer years of pain and loss of taste, which in turn sent her into a permanent depression, which made her unable to work from the time of this incident to the present.  In her action, she claims: (a)  a loss of revenue based on actuarial calculations in the amount $1,746,311.00,  (b) monetary loss for direct expenses she has incurred of $45,950.78 and (c)  non-pecuniary damages for pain, suffering and loss of enjoyment of life, including moral damages, of $275,000.00.  The total claim is $2,069,204.91.

[4]           Ms. Laflamme asserts this claim against both Defendants: the restaurant franchisee and franchisor on the grounds that the Defendants knew or should have known that the soup was excessively hot and constituted a danger for severe burns for which they should have warned her. .

[5]           The Defendants allege in their joint defense that the soup was served at about 170 o Fahrenheit and since this temperature is an industry standard which may cause burns, the customer has the sole responsibility to take the necessary precautionary measures to avoid burning themselves.  Secondly, the Defendants assert that any burns suffered by Ms. Laflamme were minor first degree burns which did not directly cause the damages she alleges.

[6]           The original demand letter is dated August 4, 1999.[2]  The action was instituted on August 7, 2001, just days before prescription expired.

[7]           Ms. Laflamme’s trial counsel assumed carriage of the file in March, 2006.  A joint declaration of readiness was filed by all parties on August 6, 2010.  The trial lasted 10 days at a time approximately 13.5 years after the alleged incident.

[8]           Unless indicated otherwise, the facts stated herein are findings of fact made by the Court based on its evaluation of the evidence.

[9]           At the outset, the Court will provide an overview of Ms Laflamme’s life by subject matter: family, personal relations, work, the impugned incident and subsequent events.  Events will be related in chronological order within each section.

[10]        Analysis in this judgment will proceed under the following headings: 


TABLE OF CONTENTS

INTRODUCTION.. 2

TABLE OF CONTENTS.. 4

FACTUAL CONTEXT. 5

Family Background. 5

Personal Relationships. 5

Work History. 7

The Incident: August 14, 1998. 9

From the Date of the Incident to Ms. Laflamme Being Seen and Treated by Dr. Miriam Grushka on May 5, 2003. 11

From 2003 to the Present 12

LIABILITY. 13

What Was the Temperature of the Soup?. 13

Testimony of Ms. Laflamme. 13

The Restaurant’s Written Records of Temperatures of Soups Served. 13

Evidence of Restaurant Employee Who Cooked Soup. 15

Testimony of Franchisor’s Representative, Mr. Mario Dupont 19

Expert Evidence from Medical Burn Specialist and Experts in Food Chemistry. 21

Plaintiff’s Expert in Culinary Arts. 24

Complaints by the Plaintiff to the Restaurant 25

Governing Law Regarding Civil Liability. 26

Has the Restaurant Breached Any Legal Obligations to Ms. Laflamme. 27

Statutory Requirements. 27

Tim Hortons’ Self-Imposed Norms. 28

Did the Particular Cream of Potato and Bacon Soup Served to Ms. Laflamme Require a Particular Caution  28

DAMAGES.. 32

Were Physical Injuries Caused by the Burn?. 32

Evolution of the Pain According to Ms. Laflamme. 33

Expert Evidence: Extent of Burn and Physical Damages Caused. 37

Governing Law: 37

Assessment of Credibility, Reliability and Probative Value of Expert Evidence. 38

Analysis. 39

Evaluation of Damages for the Burn. 56

Governing Law.. 56

The Thin Skull and the Crumbling Skull Doctrines. 59

Analysis. 60

Whether the Burn Was the Cause of the Depression. 62

Governing Law.. 62

Analysis. 68

Neuropsychologists’ Evidence. 76

PECUNIARY DAMAGES.. 80

INTEREST AND INDEMNITY, AND COSTS.. 80

CONCLUSIONS.. 83

 

FACTUAL CONTEXT

Family Background

 

[11]        Born on […], 1955, Ms. Laflamme is the younger of two sisters.

[12]        Ms. Laflamme was born with a fissure in her lip[3] for which she had corrective surgery when she was three months old. She had final corrective surgery when she was 21.

[13]        Her father was employed as a salesman in a retail carpet business. 

[14]        Ms. Laflamme was sent to private girls’ schools where she was often the youngest in the class.  By all accounts, she was an excellent student.

[15]        Ms. Laflamme testified that her marks were so good in secondary school that her teachers encouraged her to attend a prestigious CEGEP in Montreal. She said she refused to follow their advice because other girls from her school that wanted to attend this CEGEP were cheating so as to obtain higher marks, and she did not want to be part of this.  She graduated from another CEGEP as an architectural technician and in 1975, began to work for the City of Montreal (the “City”) in a department focusing on architecture.  Her entire working career was spent with the City.

Personal Relationships

[16]        Ms. Laflamme's life before the incident demonstrates a pattern of self-sacrifice and unfortunate occurrences.

[17]        Throughout her early adult life, Ms. Laflamme was a source of support for her ailing parents, with whom she lived until she was 24.

[18]        She never married nor had children.

[19]        Her father lost his job while Ms. Laflamme was in CEGEP.  At 24 years of age and working for the City, she was living at home and due to her parents’ financial difficulties; she had to pay the rent for her parents’ apartment. Even when her father was working, she earned more than he did.

[20]        Ms. Laflamme testified that she assisted her parents over a lengthy period.  Her motivation was, in her own words: “un retour d’ascenseur”.

[21]        She had a ten-year relationship with a married man from work.  He left her for a woman he had met on a golf trip to Florida. 

[22]        Following this unexpected break-up in 1985, Ms. Laflamme - unannounced and on her own initiative - travelled to the “other woman’s” place of business outside of New York City to initiate a meeting, as Ms. Laflamme said, to allow her to come to terms with the end of this relationship.

[23]        Even outside the office, her social circle consisted mostly of fellow City employees.

[24]        The early part of 1991 was not a happy one for Ms. Laflamme.  In January, 1991 she shuttled between two different health care facilities where her parents were being treated.  In February, she had an automobile accident in which she sprained both her back and neck which caused her to be off work for ten months. In the spring of that year, her mother passed way.

[25]        In the autumn of 1991, her father was moved to a long term care facility having been diagnosed with Alzheimer’s disease.

[26]        From 1991 to her father’s passing in July 1999, Ms. Laflamme travelled by public transport 45 minutes each way to her father’s long term care facility to be with him for at least one meal each day.  With rare exception, she did this 365 days of the year.

[27]        In addition to her regular job with the City, she worked a second job at the reception of a private billiards’ club for several months on Fridays, Saturdays and Sundays from 5:00 p.m. to 3:00 a.m.  There is no evidence as to why she voluntarily took on this additional work schedule.

[28]        On February 20, 1994, Ms. Laflamme was involved in her second important automobile accident, this one causing her to be off work for one year.  Her injuries, again, were principally a sprained back and neck.  Ms. Laflamme returned to work in October, 1995.  Secondary to this, she also developed a form of neuralgia known as Arnold’s neuralgia: an inflammation of the nerves, which was very painful.

[29]        The incident occurred on August 14, 1998. 

[30]        Up until June 2004, Ms. Laflamme lived by herself in an apartment on St. Joseph Boulevard in Montreal, when conflicts with her landlord lead her to purchase a duplex with her niece in 2004.

[31]        In 2004, as a result of difficulties with her landlord, she moved into a duplex which she had purchased with her niece.  Unfortunately, this arrangement was of short duration since the niece broke up with her husband and the property had to be sold.

[32]        Thereafter, Ms. Laflamme moved to St-Timothée, a small community outside of Valleyfield.  There, she stayed in a country property previously owned by her parents. After several years, she found the experience too isolating and returned to live in Montreal, where she has resided ever since.

[33]        Today, Ms. Laflamme’s life remains a relatively solitary one (she lives on her own) with the exception of a few close friends with whom she occasionally goes to movies and restaurants.

 

Work History

[34]        Ms. Laflamme spent her entire working career with the City from 1975 to 2006, when the employer ended her employment.  The state of her health had prevented her return to work since the incident.

[35]        As noted, she began as an architectural technician. 

[36]        The evidence demonstrates clearly that especially during the first part of her career with the City, Ms. Laflamme was highly motivated to succeed in her work and obtain promotions.

[37]        At a certain point, she wanted to get out of the architectural end of things and over seven years, she took management courses at HEC, receiving her management certificate in 1989.  After completing a regular day's work, she testified that she undertook this additional night school to have access to greater promotions.

[38]        The Court will now analyze her career with the City.[4] She worked in a diversity of jobs in various departments and changed positions relatively frequently.

[39]        After working in public works from 1975 to May 1983 on the architectural side, she transferred into a temporary post as a technical agent, responsible for studying work flow.  This meant she was employed at a higher level without being in that position on a permanent basis (this is called “fonction supérieure” in the City’s terminology).

[40]        From September 1986 to September 1987, she worked as an analyst in supply and services dealing with the management of printing and office equipment.  This was also a “fonction supérieure temporaire”.  Unfortunately, Ms. Laflamme testified that not only was she doing the work of four people but she was being harassed psychologically by her immediate superior.  She complained about this harassment and refused to remain in that position.

[41]        From September 1987 to July 1990, she worked as an analyst, but now in a section that was called “Module achat et magasin / Division Biens Corporatifs”.  Next, she worked as a “agent du bureau principal” also for the “Service de l’approvisionnement et des immeubles” still in the “Module achat et magasin” except now she was in the “Division des achats”.

[42]        Ms. Laflamme was proud of the work she did in this section and her un-contradicted evidence was that she was in charge of 15 people.

[43]        It was within this period of employment that she suffered her two motor vehicle accidents.

[44]        She returned to work in October, 1995 after the second motor vehicle accident, for which she had been off work for one year.  Shortly after her return to work, she applied for a management position as “Chef de section”, but was not chosen.

[45]        In October 1995, she transferred again and from that date to August, 1996, Ms. Laflamme was an “agent comptable” in a new department: the “Service des finances et du contrôle” in the accounting division. It is not clear whether this transfer was initiated by Ms. Laflamme or by the employer.

[46]        Her final period of actual employment with the City began on August 7, 1996. She was a “Préposée au soutien administratif” for the “Services des parcs, jardins et espaces verts” in the “Division aménagement des parcs - Gestion des chantiers”.  This was also a “fonction supérieure” position.

[47]        By letter from the City of April 9, 1999, her position of “Préposée au soutien administratif” was terminated as it was now permanently filled by another person.  The Court understands that the employer chose this person over Ms. Laflamme, who was on sick leave at the time following the alleged burn incident of August 1998.

[48]        Be that as it may, her immediate superior in the same letter to Ms. Laflamme expressed his “grande satisfaction pour les multiples services rendus à la Division, et ce, avec une compétence indéniable” (Exhibit P-20).

[49]        Her employment record notes that on October 28, 1997, she was absent from work for an indeterminate period.

[50]        Her employment file then indicates that as of January 1, 1998 (the incident occurred on August 14, 1998), Ms. Laflamme was again transferred, this time into the job of “agent comptable” in the “Section de la comptabilisation des dépenses et du traitement de l’information comptable”.[5]

[51]        No other witness testified as to her work with the City of Montreal.

[52]        The only evidence about her employment came from her own testimony and the filing of 385 pages from Ms. Laflamme’s work records with the City.

[53]        From those documents, the Court understands that Ms. Laflamme’s salary continued to increase until November 3, 1997 ($44,834.00) and, as of September 1, 1999, it decreased to $43,006.26.

[54]        In the past, Ms. Laflamme had expressed her disenchantment with her lack of promotion in the municipal civil service.[6]

[55]        The uncontradicted testimony of Ms. Laflamme was to the effect that prior to the incident, she was in a manageable routine at work.  For the first time since 1991, she had taken two weeks off in the summer of 1998 and had not visited her father during this time, leaving this responsibility to her sister.  Following her vacation, she had returned to work on Monday, August 10, 1998.

[56]        From this evidence, the Court draws the following conclusions: 

a)            at the time of the incident in August 1998, Ms. Laflamme was 43 years of age.  Given the number of transfers and different jobs she had held with the City in the past, it was unlikely that she would receive further promotions; and

b)            that said, there was nothing in her employment record to indicate that she could not have continued in the position she held.

The Incident: August 14, 1998

[57]        Following her two weeks’ vacation, Ms. Laflamme returned to work on Monday, August 10, 1998.

[58]        The Court determines her contemporaneous medical records are admissible under art. 2870 C.C.Q.[7]

[59]        The evidence shows that about Tuesday, August 11, 1998 Ms. Laflamme began to experience a sore throat and sought medical treatment on August 12, 1998.[8] 

[60]        The medical records note that Ms. Laflamme had an acute sinusitis and a sore throat, for which a 14-day treatment with antibiotics was prescribed: hence being completed on August 26, 1998.

[61]        On the Friday of that week, Ms. Laflamme took a day off work to prepare a neighborhood garage sale.  She had indicated to her supervisor that she was ill. He expressed skepticism since he said she looked fine but she took the day off anyway.  It is not proven as to whether the day was taken as a holiday time or sick leave time.

[62]        In organizing her contribution to the garage sale, Ms. Laflamme was being assisted by her niece, Sylvie and her niece’s boyfriend.

[63]        Over the lunch hour, she took them to the Restaurant, a venue where she had never previously eaten.

[64]        Only Ms. Laflamme testified as to what happened in the Restaurant. 

[65]        Ms. Laflamme testified that she ordered and was served at the counter a cream of potato and bacon soup in a porcelain bowl, accompanied with a metal soupspoon.

[66]        She took only one soupspoon full and testified that it was “like eating fire".  She rolled the soup around in her mouth to reduce the heat and then swallowed it.  She testified that she had never eaten anything so hot. Ms. Laflamme also testified that this one soupspoon full was her own personal “tsunami” which completely changed her life.

[67]        Although her niece told her to complain to the management, Ms. Laflamme did not at that time, but ate nothing further.

[68]        Her recounting of her pain and disability will be dealt with in detail further on.

[69]        Later in the month of August 1998, a doctor’s report notes that she had fallen into a depression.  In fact, she never did return to work after the incident and her employment with the City ended in 2006 - following years of receiving disability insurance payments.

 

From the Date of the Incident to Ms. Laflamme Being Seen and Treated by Dr. Miriam Grushka on May 5, 2003.

 

[70]        From the date of the incident August 14, 1998 up to her first consultation with Dr. Miriam Grushka, oral medicine and oral pain specialist in Toronto, on May 5, 2003, Ms. Laflamme saw a great number of medical professionals for treatment of the pain and associated problems to her tongue and mouth: consequences she alleges were the direct result of the burning soup.

[71]        During this period, she was on disability leave and her only income was from the employer's disability insurance.

[72]        In addition to being treated for the depression ( the medical reason indicated for her inability to return to work by the treating physician), she was evaluated by medical professionals on behalf of various insurance companies who were making payments both to her and, on her behalf, to hypothec lenders as a result of her inability to work.

[73]        All of this evidence will be discussed in detail later.

[74]        On August 15, 1998 following the incident and in the days thereafter, Ms. Laflamme sought treatment from the following health professionals: (a)  by attending a hospital emergency department, (b)  a dentist’s office, and (c) a medical clinic: all without being able to obtain relief for the burning pain in her mouth

[75]        Firstly, at 6:34 a.m. on August 15, 1998, she attended at the Notre-Dame Hospital Emergency Department[9].

[76]        The notes of the treating physician, Dr. Chan[10], state that her tongue was swollen on the left front, that the tongue was very red and that there were lacerations on her gums.  The only treatment prescribed was gargling with water and a follow-up with her dentist was indicated.

[77]        That follow-up took place at the dental clinic later that day at 5:00 p.m.  A complete dental examination was undertaken and the notes reveal redness on the tongue caused by a burn.

[78]        Thus far, she was taking Tylenol as she was not prescribed any pain relievers and she accordingly purchased 29 popsicles which she placed on the burning parts of her mouth.  This “home remedy” provided some relief.

[79]        On August 16, 1998, she attended at Medical Clinic 1851 near her home and was seen by Dr. Plamondon[11].  He notes the following:

 

Langue : extrémité distale; hypertrophie des papilles - sensibles.

2 petites phlyctènes probables qui ont régressée sur palais à droite, à côté de gencive supérieure, face intérieure.

Plaies aux lèvres inférieures à droite qui semblent avoir été brûlées : non infectées.”

[80]        The evidence is clear that the soup burned Ms Laflamme’s mouth and particularly her tongue.  The Court believes her testimony that she suffered extreme pain.  The Court concludes that at the time of the incident she was particularly vulnerable to pain because of her previous history including:

 

a.    she was being treated with antibiotics for a candida infection on her tongue;

 

b.    she was suffering from symptoms of depression at the time; and

 

c.    she had suffered from neuralgia as a result of two automobile accidents.

 

From 2003 to the Present

[81]        As a result of the new medication prescribed in 2003 by Dr. Grushka, the pain experienced by Ms. Laflamme in her tongue and mouth was reduced by half, although her sense of taste never fully returned.  She testified that on occasion, and without explanation, the following unpleasant sensations can occur, even today: 

a)            she has an intense painful sensation of knives piercing through her tongue, principally in the centre of the tongue; and

b)            for certain tastes, she is hypersensitive, while for other tastes, she has no taste at all.

LIABILITY

What Was the Temperature of the Soup?

[82]        For the reasons that follow and from its review of all the evidence, the Court determines that the temperature of the soup was burning hot, was capable of causing burns to human skin and in fact caused burns to Ms. Laflamme’s tongue and mouth.

Testimony of Ms. Laflamme

[83]        The most contemporaneous evidence of Ms. Laflamme as to the temperature comes from the transcript of her examination on discovery undertaken on October 4, 2001- over three years after the incident - which the Defendants filed. The following are excerpts from that examination: 

a)            C'est inimaginable la température.  Je n'ai pas remarqué si la soupe était fumante.”;

b)            “J'ai immédiatement senti la chaleur de la soupe comme un coup au cœur, je l'avais dans la bouche puis, là, je l'ai envoyée un peu partout dans ma bouche.  Je n’ai pas essayé de recracher, le contact de feu était déjà rentré en contact avec la langue.  Ça fait que même si je l'avais recrachée, je l'ai avalée, ce que j'ai fait c'est que je l'ai comme envoyée un peu partout dans ma bouche, là, au niveau du palais et des gencives et je me suis dépêchée.”;

c)            Après avoir avalé la cuillère, ça été comme un coup au cœur, comme du feu.  Je me suis sentie brûler dans la bouche tout de suite, quelque chose qui est très très intense et puis qui est au-delà du supportable.”; and

d)            Je n'avais jamais rien mangé d'aussi chaud de ma vie.  Rien qui puisse ressembler à ça, jamais.

The Restaurant’s Written Records of Temperatures of Soups Served

[84]        Through the pre-trial discovery process, Ms. Laflamme’s counsel was provided with a series of documents entitled “Tableau de suivi des heures et températures - soupe / Fromage à la crème / Sandwich”.  These documents showed various temperatures for various months - no year is shown, which created a problem that will be discussed later.

[85]        On one record showing “August 14,” four Fahrenheit temperatures are noted for four different soups: (1) 172.6; (2) 178.5; (3) 195.3; (4) 159.9 and baked beans: 174.7 (attached as Annex A hereto).

[86]        Ms. Laflamme amended her pleadings to allege that the temperature of the soup she consumed was 195.3 o Fahrenheit.

[87]        However, it was only in 2013 in the months leading up to trial that the Defendants advised counsel for Ms. Laflamme that the temperature records produced were not for the year 1998 as had been originally indicated by the Defendants, but were rather for the year 2001.  The Court accepts that this later year is the proper one as there is no evidence to the contrary.  Ms Laflamme did not allege any bad faith regarding this critical correction, which arrived shortly before the trial.

[88]        The evidence is to the effect that these pre-printed temperature records were to be kept close to the warming trays and completed manually with temperatures of both hot and cold products being served.  Thermometers were located close at hand for the staff of the Restaurant to take these regular temperatures.  Neither Defendant filed any directives as to the manner of completion or content of these forms.

[89]        The evidence confirms that the majority of Restaurant employees were young and that until 2004 when the Franchisor became very rigorous about ensuring these temperature records were properly completed every four hours, the practice of completing these records was very inconsistent.

[90]        These pre-printed “Tableau de suivi des heures et températures[12]” showing the temperatures, contained the following important mentions:

a)            that the equipment required for temperature readings was: either a digital or mercury thermometer, alcohol swabs and a pen; and

b)            that for soup:

i.              it was to initially cooked at 180o Fahrenheit;

ii.            Mise en attente” had to be above 140 Fahrenheit (60o Centigrade);

iii.           Température de mise en attente de Tim Hortons”: 170o Fahrenheit (77o Centigrade); and

iv.           Zone de danger” 40o. .F. - 140o. F. (les produits ne doivent pas être exposes à ces températures pendant plus de quatre heures).

[91]        Under the heading : “Poste de la soupe“, the following instructions were given:

a)            Baisser la température (BT)” - “Temps supérieure à 190o F. (tourner le bouton de l’équipement)”;

b)            Jeté (J)” - “Produit dans la zone de danger pendant trop longtemps (plus de 4 heures).  Jeter le produit aux ordures. Sortir du nouveau produit“ ; and

c)            Réchauffement (Réch.)” - “La température du produit est inférieure a 140o / 60o C.Réch. au bain-marie et s’assurer que la température interne reste à 165o F / 73.9o C pendant 15 secondes.  Cette température doit être atteinte sur une période ne dépassant pas 2 heures.”

[92]        Despite the Franchisor’s requirement that written records be kept of the temperatures of the hot soups, amongst other hot items, no such written record was filed into court for the day in question, August 14, 1998.  The evidence is that the Restaurant had a corporate policy of destroying such records every 6 months.

Evidence of Restaurant Employee Who Cooked Soup

[93]        Mr. Danny Grenier prepared the soup in question. He became the manager of the Restaurant in March, 1998.

[94]        He presently owns three Tim Hortons’ restaurants in Sorel and since the age of 21, he has worked exclusively in Tim Hortons’ restaurants.

[95]        He worked in the Restaurant in question since 1993 and continued to do so after it was acquired by its present owner in 1995.

[96]        The Restaurant is open 24-hours a day, seven days a week.

[97]        Mr. Grenier was both the manager and the pastry chef and it was he who made all the soups.  The soup in question was made from a powdered soup mix.  It was prepared in a double boiler which required bringing the water for the soup to a 180 o temperature before adding the powdered mix.  In chief, Mr. Grenier testified he used a thermometer to ensure the soup was at 180 o Fahrenheit and that after mixing in the powdered mix with the heated water, he let the soup simmer for 45 minutes.

[98]        While he does not specifically recall the day in question, he says his practice for soup preparation was invariable. In August 1998, the Restaurant’s regular soups were chicken noodle and cream of broccoli in addition to having two pots of baked beans.  The cream of potato and bacon soup was not popular with the clientele and was only served once per week.  

[99]        He prepared the cream of potato and bacon soup somewhere between 9:00 and 9:10 a.m. and it would have been ready to serve and put in the serving counter in the warming trays around 10:30 a.m. but certainly before 11:15 a.m.

[100]     In March 1998, he received a one week’s training course as manager from the Franchisor’s regional office.  One whole day of training was devoted to luncheon service which included serving soup.

[101]     On cross-examination, Mr. Grenier admitted that he did not need a thermometer to know when the soup water was ready and in fact, he did not use one.  He said the water was not boiling and in his estimation, the temperature was between 180 o and 185 o Fahrenheit.  Certainly in the double boiler, he said the water used to heat was never above 185 o.  Again in cross-examination, he admitted that it takes approximately 45 minutes to get the water for the soup to the proper temperature and then, after adding the mix, a further 45 minutes to stir the simmering soup and get it ready.  He said this particular soup contains two solids: the pieces of potato are between 3 and 3.5 centimetres and the bacon is approximately .5 centimetres.  He testified that he makes two soups at the same time.

[102]     According to Mr. Grenier, the temperature dial of the warming tray (which has six openings for metal warming containers which sit in and are heated by hot water in the warming tray) is kept somewhere between settings 5 and 5.5 on the dial, which means, according to him, that the temperature of the warming tray is somewhere between 170o and 175o Fahrenheit. There is only one dial to regulate the entire serving tray: there is no individual adjustment for individual openings.

[103]     According to Mr. Grenier, the soup cooking in the back kitchen is somewhere between 180o and 185o Fahrenheit before it is taken out of the double boiler and put into the warming container, which is in turn put into the warming tray.  A metal serving ladle is kept in the warming container which is covered by a lid.  He does not know how long it takes for the temperature of the soup, prepared initially in the soup double boiler at approximately 180 o, to be at 170 o in the warming tray in the front of the Restaurant.

[104]     However, on September 7, 2001, Mr. Grenier signed a statement[13] that the soup temperature at cooking is about 190 o Fahrenheit.  The Court accepts this more contemporaneous version since his memory should be more accurate at that time than his testimony given over eleven years later at trial.

[105]     Mr. Grenier confirmed that the procedure for how to complete Exhibit P-19, the “Tableau de suivi des heures et températures”, was governed by a directive which required that the temperatures be filled in every two hours. This directive - not filed in evidence - came from the Franchisor in the spring of 1998. 

[106]     The Court determines that Exhibit P-19 [14] as filed - which started on March 6, 2001 and finished on August 17, 2001 - has the following anomalies: (a) days are missing without temperatures and (b) for those days that are completed, there are often only temperatures for one time (and no temperatures filled in at the intervals required).  In its plan of argument, the Defendants assert that in this Exhibit P-19, 75 percent of the temperatures for soups and baked beans are less than 175 o Fahrenheit while only two percent of the temperatures are higher than 191 o Fahrenheit. This later confirmation is also very important.

[107]     Mr. Grenier testified that the thermometer must have been defective for the temperature to read 195.3 o noted for soup number 3 “on August 14” (there is no means of telling from this record which variety of soup this even was), The Court does not accept this explanation since two days later, on August 16, again under soup number 3, the temperature noted is 197.5 o Fahrenheit.  If the thermometer had been defective, surely it would have been replaced and there would not have been another excessively high reading? 

[108]     On another aspect, Mr. Grenier indicated that if their temperature reaches 190 o Fahrenheit, cream soups separate.

[109]     Mr. Grenier originally said in his testimony that he doubted that the soup could reach 190 o Fahrenheit in the warming tray but later changed this to say that it was impossible.  The Court cannot accept this testimony since, if the soups in the warming tray could not heat to higher than 190 o Fahrenheit, why would the Franchisor's pre-printed “Tableau de suivi des heures et températures” say that if the soup temperature in the warming tray was higher than 190 o Fahrenheit, the dial must be turned down to a lower temperature? |n preference to Mr. Grenier’s evidence, the Court accepts this logical inference from the Franchisor that it was possible for soups to have very hot temperatures i.e. higher than 190 o Fahrenheit in the warming tray.

[110]     Mr. Grenier testified that since 2004, there has been stricter control on ensuring the employees complete the temperatures properly but that it was difficult to train them to do so.

[111]     On cross-examination, it was pointed out to Mr. Grenier that there are various places in Exhibit P-19 where the temperatures were noted over 180 o and a lesser number where the temperatures were over 190 o. As mentioned, Mr. Grenier dismissed the excessive temperatures as either being due to a defective thermometer or improper readings by the employees.  Furthermore, on July 12, 2001, three excessively high temperatures are noted:  198, 195 and 197.  Again, he says this must be an error in calibration of the thermometers.

[112]     To conclude, the Court cannot accept this explanation for the following reasons:

a)            these high temperatures - while not common - occur enough in the “Tableau de suivi des heures et températures” to make Mr. Grenier’s explanation of defective thermometers,  improbable;

b)            furthermore, on the “Tableau de suivi des heures et températures”, it clearly says that where the temperature is over 190 o, the temperature must be reduced.  Accordingly, the Restaurant’s employees were on notice to ensure the thermometers were working properly, since action on their part was required in the face of excessive temperatures.  Mr. Grenier indicated there were five thermometers available at the serving counter (these were mercury thermometers which have now been replaced by digital thermometers); and

c)            as to cream soups separating at 190 o Fahrenheit, not only was there no corroboration on this point from the Defendants’ expert Dr. Ablenas, it was the evidence of Mr. Beaudoin, opposing expert who had been in the restaurant trade and the restaurant teaching trade for over 30 years, that it did not surprise him that soups were being served at 195 o Fahrenheit.[15]

[113]     The “Tableau de suivi des heures et températures” provided by the Franchisor had an important design defect as a tool for ensuring proper temperatures of prepared foods.  There was no indication of either: (a) the variety of the soup or (b) in which of the six individual warming containers particular soups were placed.  Therefore, as Mr. Grenier noted in his testimony, the “Tableau de suivi des heures et températures” was ultimately not useful in determining what exact soups in the warming tray were either being over or under heated.

[114]     Furthermore, he testified that there had been a fire in the Restaurant premises in 1999 and the warming tray had to be replaced.

[115]     He also confirmed that when a cream soup is ladled into a bowl, a “skin” often forms on the surface.  The Court determines such a skin can cause heat to be retained in the soup.

Testimony of Franchisor’s Representative, Mr. Mario Dupont

[116]     Mr. Dupont was 50 years old at the time of the trial and was employed by the Franchisor since 1997.  He testified that Tim Hortons had been in business as a Franchisor for 49 years and had a research department in Oakville, Ontario.  No one from the research department testified at this trial.

[117]     In 1998, there were approximately 200 Tim Hortons’ restaurants across Canada.

[118]     Mr. Dupont confirmed that one of the roles of the Franchisor was to ensure uniformity in all of the franchises.  He testified an important tool for maintaining uniformity were certain manuals provided by the Franchisor.

[119]     In the Tim Hortons Operations Manual in force at the time,[16] under the heading “Soup and Sandwich Training” and the sub-heading of “Production Soup”, the following directives are specified:

 

·         “ensuring soup does not come to a boil; preparing new soup and importance of not overheating;

·         set-up soup warmer; proper temperature;

·         proper temperature of soup before being served;

·         identifying soup that has separated”.

 

No other details are indicated.

[120]     In the Production Manual under the heading “Soup Preparation of the Day”, the following directives are given for “cream soup variety”:

 

Place 3.6 litres of water into a pot and add entire contents of soup package.  Heat to 180 o Fahrenheit /82 o Centigrade and stir with wire whip.  Reduce heat to 170 o Fahrenheit / 77 o Centigrade and simmer for 60 minutes stirring occasionally.

 

After cooking, that manual notes that:

 

the soup must be emptied into a clean soup pot.  Place a ladle in each pot, cover with a clean lid and place soup in the pre-heated warmer holding unit in the store front (170 o Fahrenheit / 77 o Centigrade)”.

 

[121]     Under the heading “Storefront Service”, the Manual requires the soup in the warming tray must be kept at 170 o Fahrenheit / 77 o Centigrade.  There is no indication that the customers are to be advised that the soup may burn.

[122]     According to Mr. Dupont, the purpose for the “Tableau de suivi des heures et températures” Exhibit P-19 related solely to ensuring that the provincial government (MPAC) regulations were met.  Specifically, it was meant to ensure that cold products being served had to be maintained under 40 o Fahrenheit and hot products had to be maintained over 140 o Fahrenheit.  He said that the reason for maintaining such temperatures was because the products could otherwise become health hazards due to bacteria formation.

[123]     When he was shown the Restaurant's temperature records, Exhibit P-19, Mr. Dupont candidly admitted that they were not completed in conformity with the Franchisor’s requirements and that not only should temperatures be taken every day, they must be taken every 4 hours.

[124]     He said the Franchisor carried out unannounced inspections approximately every two months of its franchisees but that during inspections, temperatures of hot products in the warming trays was not something that was verified.

[125]     Mr. Dupont indicated that soup and salad was a large part of the sales for franchisees in the Province of Quebec. 

[126]     Finally, he said there was nothing written on the ceramic soup bowl to caution the customer that the soup was hot and he indicated that the customer would only be advised regarding the temperature of the soup if the customer asked. 

Expert Evidence from Medical Burn Specialist and Experts in Food Chemistry

[127]     Dr. Jean-Paul Bossé is a plastic surgeon with extensive experience with burn injuries.  His evidence on the Plaintiff’s behalf was presented on counsels’ agreement through his medical report dated September 16, 2006, for which there was no counter-expertise.  The Court accepts the following conclusions from his report:

a)            a liquid that is hotter than 140 o Fahrenheit may cause first, second, or third degree burns to human skin depending on the exposure time and the temperature;

b)            a liquid that has a temperature of 150 o Fahrenheit and is in contact with skin tissue for 2 seconds causes a second degree burn;

c)            at 180 o Fahrenheit, when the duration of exposure to the skin is between two and seven seconds, there will be a third degree burn; and

d)            a soup which is at 195 o Fahrenheit even if slightly cooled, with an exposure time of two seconds, will cause severe second degree burns to the tongue and mucous membrane of the mouth.

[128]     The parties filed competing expert’s reports concerning the heat conductivity of soup and particularly cream versus broth soups.  The defence expert was Dr. Fred Ablenas,[17] who holds a doctorate in chemistry.  Evidence for the Plaintiff was provided by Ms. Anne-Françoise Alain,[18] who holds a Masters degree in food sciences and has expertise in the chemistry of foods.  The Court decides the following relevant facts from the joint statement of these two experts:[19]

a)            broth and cream soups have the same conductivity of heat and the same thermal capacities; and

b)            while cream soups transfer heat slower when in the mouth, this is counter-balanced by the fact that cream soups are kept in the mouth longer than broth-based soups (“soupe aqueuses”).

[129]     In addition, the expert’s report from Dr. Ablenas considered other issues not treated by Ms. Alain.

[130]     To prepare his report, Dr. Ablenas reviewed, amongst other things, the “Tableau de suivi des heures et températures” which he treated as being for August 14, 1998 but which we now know to be for August 14, 2001.  He undertook certain experiments and had discussions regarding operation of the Restaurant with the owner, Mr. Nader Azrak.

[131]     Firstly, Dr. Ablenas testified that the law that requires Tim Hortons to serve soups that are hot enough to burn the mouth[20] because the “Règlement sur les aliments[21] requires that a perishable product that is sold hot to the consumer, such as soup, must be kept at an internal temperature of at least 60 o Centigrade (140 o Fahrenheit).

[132]     According to Dr. Ablenas, if soup is kept in a spoon for 10 seconds, the temperature will reduce from 90 o Centigrade to between 70-76 Centigrade (i.e. 194 o Fahrenheit to between 158 - 168.8 o Fahrenheit).[22] There is no evidence that Ms. Laflamme kept the soup on the spoon for 10 seconds.

[133]     Having in his possession the record from the Restaurant showing the temperature of soup number 3 to be 195.3 o Fahrenheit at 12:00 noon on August 14, Dr. Ablenas did a variety of tests and came to the conclusion that it was not possible for the Restaurant to have served this soup at this temperature.  According to him while this may have been the temperature of cooking, the soup would have cooled to between 71 - 81 o Centigrade (159.8 - 177.8 o Fahrenheit) in the warming tray

[134]     The Court does not accept this conclusion, with the greatest respect, for the following reasons.

[135]     Firstly, the warming tray used by Dr. Ablenas to prepare his expertise was a Bravetti KC 272 BN.  In fact, the warming tray used at the time of the incident was an APW Wyott Model W-3V for which operating instructions were filed.[23]  There was no evidence to compare these two different warming trays in any way.

[136]     In fact, the evidence of Mr. Grenier was that the dial was at “5 to 5.5” which was supposed to produce a temperature in the soup in the warming tray of approximately 170 o (as required by the Tim Hortons Operations Manual).  However, the problem is that even in 2001 according to the “Tableau de suivi des heures et températures”, Exhibit P-19, there are measured temperatures of soups in excess of 170 o Fahrenheit and in particular in excess of 180 and 190 o Fahrenheit.  For the particular reading at 12:00 noon on August 14, 2001, this temperature must have been taken of the soups in the warming tray on that day and at that time, the temperatures of four hot soups were: “172.6 - 178.5 -195.3 - 159.9”.  No witness explained to the Court how it is possible in the same warming tray to have such a diversity of temperatures.  One explanation may be that it depends on when the temperatures were taken in relation to when the prepared soups were placed into the warming tray.

[137]     Two other dates on Exhibit P-19 show greater consistency where the temperatures are hot: (a) on July 23, 2001 at 5:30 A.M., the soup temperatures are “189.3ºF - 188 ºF and 189.1 ºF”; while on July 12, 2001 the temperatures on that date are “198 ºF - 197 ºF - 195 ºF”.  In the latter case under the column “mesures prises”, there is an arrow pointing downward beside each of these three temperatures, thus inferring that the warming tray was turned down.  Also, on April 1, 2001, at 1:00 p.m., the soup temperatures were: “173 ºF - 188 ºF - 196 ºF - 195 ºF”.

[138]     It should be noted that on the day in question, the warming tray had six openings into which the warming stainless steel containers could have been placed.  These stainless steel containers have a metal lid with an indentation for the serving ladle to rest in the soup waiting to be served.  The heating of the warming tray is electric. The actual heating is of water which is placed in the warming tray into which filled soup containers are placed and it is this water that is heated so that the bottoms of the warming containers are never in direct contact with any electrical element or metal surface.

[139]     Secondly, the manufacturer’s specifications for the Wyott warming tray note that it has “an infinite temperature control” which “effectively keeps hot foods, soups and sauces at consistent levels above 140 o”.

[140]     Thirdly, while Dr. Ablenas did have a discussion with the owner, there is no mention by the owner or Dr. Ablenas of any possibility of defective thermometers taking the measurements that were completed on Exhibit P-19.

[141]     Accordingly, the Court does not accept the conclusion that the temperature of the soup served from the warming tray to Ms. Laflamme could not have had a temperature in the order of 195 o Fahrenheit.

[142]     Exhibit P-19, while its temperature readings are from 2001, nonetheless creates a presumption that such temperatures may also have been achieved in 1998 and in particular on the day of the incident.  This is corroborated by the pain and burning suffered by Mme. Laflamme, who the Court determines to be credible on these issues.  While the evidence on the day of the incident cannot establish a precise temperature, the evidence is more probable than not that the soup in question was at a temperature sufficiently hot to burn human skin.

Plaintiff’s Expert in Culinary Arts

[143]     Mr. Jean Beaudoin testified as an expert on behalf of Ms. Laflamme.  He received his diploma in professional cooking in 1967 and has been either in the restaurant business or in the teaching of cooking since that time.  Since 1976 he has worked at the “Institut de tourisme et d’hôtellerie du Québec”.  He was qualified as a specialist in cooking and in kitchen equipment.  The Defence called no similar expert.

[144]     In examination-in-chief, he testified that it was not surprising to him that soup was served at 195-196 o Fahrenheit.  In his experience, it takes more than 30 minutes for the temperature of soup to reduce once it is placed from a soup pot into a warming container in a warming tray.  In his experience, it was not, at least as far as a professional cook such as himself was concerned, a normal reflex to spit out something found to be burning hot when it was tasted.

[145]     As a result of cross-examination, his level of experience in the fast food industry was circumscribed.  In fact, his only experience was in the fast food counter that was part of the cafeteria at the “Institut de tourisme et d’hôtellerie du Quebec”.  It was his opinion that industry practice allowed soup to be served at 195 o Fahrenheit as long as the consumer was advised. However, while he indicated that it was prudent to warn a client that a food preparation was hot, this was not a norm in the fast food industry.

[146]     Under cross-examination, he indicated that it was appropriate to serve soup at a temperature somewhere between 160 and 170 o Fahrenheit. 

[147]     He confirmed that the MPAC regulations regarding temperatures at which cold and hot food must be maintained were only for the purposes of controlling bacteria and nothing else.

[148]     Finally, he emphasized the importance of verifying that food thermometers were working if such thermometers were being used to measure food temperatures.

Complaints by the Plaintiff to the Restaurant

[149]     Mr. Grenier does not remember looking at the “Tableau de suivi des heures et températures” for August 14, 1998, as a result of the Restaurant being subsequently advised of Ms. Laflamme’s complaint regarding the burning soup.  The Court is perplexed. Since such a “Tableau de suivi des heures et températures” was in existence at the time of the incident, why did neither the Restaurant nor the Franchisor refer to this document to respond to Ms Laflamme?  Clearly, such would have been the best and most contemporaneous evidence of the temperature of the soup at or about the time of the incident.  The Court is left to assume that either such a “Tableau de suivi des heures et températures” had not been completed for the date in question (which would be contrary to the Franchisor's requirements) or that if it did, that either it was not consulted or references contained therein would not have been helpful to the Restaurant and Franchisor.

[150]     Ms. Laflamme testified that while she did not complain at the time she was burned, she did the following:

a)            she telephoned the same evening and spoke with a Restaurant employee to whom she complained;

b)            she went back several days later and spoke to the manager.  Mr. Grenier confirms this discussion and indicates that he told her and showed her that one of the temperatures of the soup on that day was 155 o Fahrenheit;

c)            some days later, she came back to the Restaurant and purchased a soup, for which she measured the temperature herself.  Mr. Grenier saw her do this.  The actual temperature of that soup is not in evidence; and

d)            she then later complained by telephone to one employee at the Franchisor’s head office.  Thereafter, she spoke with another employee of the Franchisor who indicated that they would investigate and get back to her.  She never received any further response from either the Restaurant or the Franchisor.  Her first demand letter claimed $30,000.00 in 1999 and then it was in 2001 that her then lawyers wrote a demand letter claiming $66,650.00.

Governing Law Regarding Civil Liability

[151]     Since the basis of liability in this case is the contract of sale between Ms. Laflamme and  the Restaurant , the relevant articles of the Civil Code of Quebec are:

 Art. 1434. Le contrat valablement formé oblige ceux qui l'ont conclu non seulement pour ce qu'ils y ont exprimé, mais aussi pour tout ce qui en découle d'après sa nature et suivant les usages, l'équité ou la loi.

  

Art. 1434. A contract validly formed binds the parties who have entered into it not only as to what they have expressed in it but also as to what is incident to it according to its nature and in conformity with usage, equity or law.

 

Art. 1458. Toute personne a le devoir d'honorer les engagements qu'elle a contractés.

  

Art. 1458. Every person has a duty to honour his contractual undertakings.

  Elle est, lorsqu'elle manque à ce devoir, responsable du préjudice, corporel, moral ou matériel, qu'elle cause à son cocontractant et tenue de réparer ce préjudice; ni elle ni le cocontractant ne peuvent alors se soustraire à l'application des règles du régime contractuel de responsabilité pour opter en faveur de règles qui leur seraient plus profitables.

  

  Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is liable to reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them.

 

 Art. 1607. Le créancier a droit à des dommages-intérêts en réparation du préjudice, qu'il soit corporel, moral ou matériel, que lui cause le défaut du débiteur et qui en est une suite immédiate et directe.

  

Art. 1607. The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor's default.

Art. 1611. Les dommages-intérêts dus au créancier compensent la perte qu'il subit et le gain dont il est privé.

  

Art. 1611. The damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he has been deprived.

On tient compte, pour les déterminer, du préjudice futur lorsqu'il est certain et qu'il est susceptible d'être évalué.

  

Future injury which is certain and able to be assessed is taken into account in awarding damages.

 Art. 1613. En matière contractuelle, le débiteur n'est tenu que des dommages-intérêts qui ont été prévus ou qu'on a pu prévoir au moment où l'obligation a été contractée, lorsque ce n'est point par sa faute intentionnelle ou par sa faute lourde qu'elle n'est point exécutée; même alors, les dommages-intérêts ne comprennent que ce qui est une suite immédiate et directe de l'inexécution.

  

Art. 1613. In contractual matters, the debtor is liable only for damages that were foreseen or foreseeable at the time the obligation was contracted, where the failure to perform the obligation does not proceed from intentional or gross fault on his part; even then, the damages include only what is an immediate and direct consequence of the non-performance.

Art. 1614. Les dommages-intérêts dus au créancier en réparation du préjudice corporel qu'il subit sont établis, quant aux aspects prospectifs du préjudice, en fonction des taux d'actualisation prescrits par règlement du gouvernement, dès lors que de tels taux sont ainsi fixés.

  

Art. 1614. Damages owed to the creditor for bodily injury he sustains are measured as to the future aspects of the injury according to the discount rates set by regulation of the Government, from the time such rates are set.

 

Has the Restaurant Breached Any Legal Obligations to Ms. Laflamme

[152]     While the Restaurant purchases the dried ingredients for the soup from the Franchisor, it is the Restaurant that adds the necessary water and then cooks the soup before selling it.  The Restaurant’s obligations to Ms. Laflamme are therefore contractual under art. 1458 C.C.Q.  Both the doctrine and jurisprudence have confirmed that the obligation of security is an implicit obligation in a contract for sale under article 1434 C.C.Q.[24].  In its written argument, the Defendants admit that they served soup at a temperature which may burn their customers.  Accordingly, the Restaurant admits that the product that it is selling is capable of causing burns.  Therefore, the Court judges that the sale of the hot soup to be one of a potentially dangerous product for which careful attention must be given to the respective obligations of buyer and seller.

Statutory Requirements

[153]     Article 1.4.1 of the “Règlement sur les aliments[25] requires that hot food such as soup must be served at a minimum of 140 o Fahrenheit - 60 o Centigrade.  As the objectives of this regulation are cleanliness and hygiene, especially bacteria prevention, the law does not provide for any maximum temperature.

Tim Hortons’ Self-Imposed Norms

[154]     The Operations Manual[26] requires that once the soup is prepared, it is to be maintained at a temperature of 170 o Fahrenheit - 77 o Centigrade.  Neither the Franchisor’s Operations nor Production Manual nor the Defendants’ witnesses provided a satisfactory explanation as to why this particular temperature was chosen. As noted, the Franchisor's research department did not give evidence.

[155]     Even at this temperature, the Defendants admit that the soup is a danger which can burn their customers[27].

[156]     While the maker of a consumable product has the implicit obligation to warn of an inherent danger in the product[28], the extent of the warning must be based on all of the circumstances.[29]

[157]     The extent and manner of the duty to inform concerning this soup must take into account the particular circumstances of this case including:

a)            the fact that the Restaurant was a fast food restaurant where the Restaurant knew that the clients came from the general public,  would be eating quickly and would be in the restaurant only for a limited period of time to eat[30].  The Restaurant did not caution Ms. Laflamme  regarding the potential for burning nor serve the soup with a glass of cold water, in case the soup was too hot; and

b)            there was no indication on the ceramic bowl that caution should be exercised due to the consumable being burning hot.  By way of comparison, under the heading “Temperature” for coffee in the Production Manual  - Exhibit D-21, it says:

“The coffee serving temperature must be at least 180 o F.  The brewing temperature should be 190 o F. - 200 o F.

 

Did the Particular Cream of Potato and Bacon Soup Served to Ms. Laflamme Require a Particular Caution

 

[158]     There was a great deal of debate concerning the extent of the burn.  Ms. Laflamme testified in her examination on discovery that the emergency doctor who first saw her told her it was a second degree burn.  However, neither the medical records from this hospital nor the two other dental and medical institutions that she attended in the two days following the burn indicate the words “second degree burn”. 

[159]     The Mayo Clinic website defines “second degree burn” as:

“These burns affect both the epidermis and the second layer of skin (dermis) causing redness, pain and swelling.  A second degree burn often looks wet or moist. Blisters may develop and pain can be severe. Deep second-degree burns can cause scarring.”

[160]     The same website refers to a first degree burn as:

“This minor burn affects only the outer layer of the skin (epidermis). It causes redness and pain and usually resolves with first-aid measures within several days to a week. Sunburn is a classic example.”

[161]     According to the uncontradicted evidence of the Plaintiff’s expert in burns, Dr. Jean-Paul Bossé, a second degree burn can be caused with less than two seconds of exposure of the skin. 

[162]     The contemporaneous medical records from the time of the burn indicate redness, pain and swelling.

[163]     The contemporaneous photos[31] show blisters and all the other photos show important redness.  Dr. Chan, the emergency room doctor of the Notre-Dame Hospital, noted that the tongue was swollen in the left front[32].  In Dr. Guertin’s examination of December 17, 1998, he noted that there was still redness in the tip of the tongue.  The definition of first degree burn says it is usually resolved “within several days to a week”. These burns were not resolved within that time frame.

[164]     Based on this evidence, including the photos, the contemporaneous medical reports, and Dr. Bossé’s expert report, the Court concludes on the balance of probabilities that Ms. Laflamme suffered very painful burns with the soup probably being between 170 to 190 degrees Fahrenheit. 

[165]     The Court concludes that the Restaurant had an obligation to caution Ms. Laflamme.  There are two possible scenarios: both of which required a caution.  The first possibility is that the Restaurant knew that the soup was excessively hot in which case it had a clear duty to warn Ms. Laflamme. Alternatively if the Restaurant was unaware of the temperature of the soup, it should have done the proper measurement of the temperature.  In that case, it could have either reduced the temperature accordingly to reduce the risk of burning or warned its customers.[33]

[166]     Did Ms. Laflamme commit any contributory negligence?

[167]     The Defendants allege that Ms. Laflamme was the “author of her own misfortune” by not exercising prudence before putting a spoonful of burning liquid into her mouth, since she should have known the soup was burning hot even if she did not know the exact temperature. 

[168]     In the section of the Civil Code of Quebec on “Civil Responsibility”, art. 1478 states :

 Art. 1478. Lorsque le préjudice est causé par plusieurs personnes, la responsabilité se partage entre elles en proportion de la gravité de leur faute respective.

La faute de la victime, commune dans ses effets avec celle de l'auteur, entraîne également un tel partage.”[34]

 

  

  Art. 1478. Where an injury has been caused by several persons, liability is shared by them in proportion to the seriousness of the fault of each.

 

 

The victim is included in the apportionment when the injury is partly the effect of his own fault.

 

The Minister’s Commentaries indicate that this article has equal applicability to contractual liability.[35]

[169]     The reference text “Responsabilité de la collection de droit 2012[36].  notes : “En tout état de cause, elle [la faute]  doit constituer une violation de la norme de comportement de la personne raisonnable et elle doit avoir été la cause du préjudice.

[170]     The same text defines a “reasonable” person :

“Il importe ici de préciser quelques-uns des paramètres de la conduite d’une personne raisonnablement prudente et diligente, tels qu’ils ont été établis par la jurisprudence. Cette personne est celle qui, non seulement se comporte de façon prudente et diligente et ne nuit pas à autrui, mais ne crée pas et ne tolère pas de situations dangereuses sur lesquelles elle exerce un contrôle considérées comme des pièges. C’est celle qui respecte les normes élémentaires de prudence qui s’imposent à elle ou qui découlent des circonstances. C’est celle qui informe autrui des dangers cachés reliés à une activité ou à l’utilisation d’un produit. La personne raisonnable, c’est également celle qui veille à sa propre sécurité en ne courant pas de risques indus ou encore en ne commettant pas d’imprudences graves compromettant sa sécurité.”  (this Court’s emphasis)[37]

 

[171]     Ms. Laflamme admitted on discovery that she took no precautions before putting the full soupspoon in her mouth.  The Court determines, even in a fast food restaurant where the customers are expected to eat quickly, that such an absence of prudence is not the conduct of a reasonable person and therefore, a civil fault because:

a)            without great inconvenience or risk, Ms. Laflamme could have taken a small sip of the soup to test its temperature; and

b)            she could have blown on the soup in the spoon to cool it off.

[172]     The determination of the exact percentage of responsibility has been recognized by the jurisprudence as somewhat arbitrary. 

[173]     In the circumstances of this case, the Restaurant had all the means at its disposal to determine the true temperature of the soup before it was served.  Had it done so or had it cautioned Ms. Laflamme, this incident could have been avoided.  Accordingly, the Restaurant breached implied terms of security in its contract of sale with Ms Laflamme.

[174]     The Court determines an appropriate apportionment of responsibility to be 2/3 to the Defendants solidarily and 1/3 to Ms. Laflamme.

[175]     The Franchisor is a legally-distinct entity.  It was not a direct party to the sale contract with the Plaintiff.  The Franchise Agreement was not in evidence.  However, the following evidence is sufficient to create solidary liability for the Franchisor and the Restaurant.

[176]     Firstly, the Franchisor conducted regular on-site inspections of the Restaurant.

[177]     Secondly, all aspects of production and serving were governed by the Franchisor’s Operation and Production Manuals.

[178]     Thirdly, the Franchisor controlled the “banner” and sought to standardize all manner of production and service over its franchise network.  In effect, the Franchisor directed how the fast food facility was to operate and how the Restaurant undertook those operations.  In these circumstances, the Defendants are solidarily liable under art. 1525 C.C.Q. but as between themselves, share equally that responsibility.

DAMAGES

Were Physical Injuries Caused by the Burn?

 

[179]     The Defendants assert that no treating physicians noted the presence of any important burn after August 14, 1998.

[180]     In addition, the Defendants’ experts, particularly in neurology but also including a neurologist testifying on behalf of the Plaintiff, testified that the cranial nerves going from the brain to the tongue do not show any objective damage.  Furthermore, it is their position that the tests administered by Dr. Miriam Grushka are subjective while their neurological tests are objective, and hence, their tests are more probative.

[181]     As in other cases involving personal injury, the experts here relied on the American Medical Association Guides to the Evaluation of Permanent Impairment (the “AMA Guides”)[38].

[182]     Mr. Justice William Fraiberg in the case of Saint-Maurice v. Montréal (Ville)[39], which also involved a personal injury action, was called on to consider the issue of an alleged lack of objective evidence regarding the Plaintiff’s complaint of back pain. 

[183]     Mr. Justice Fraiberg decided as follows in relation to the AMA Guides:

 

“This is what the editors of the Guides have to say about the assessment of pain in chapter 18 at page 566:

 […]

Pain is a plural concept with biological, psychological and social components.  Its perception is influenced by cognitive, behavioural, environmental and cultural factors.  At first glance it seems at odds with scientific medicine because of the difficulty accounting for it with obvious pathopsychological changes.

Pain is subjective. Its presence cannot be readily validated or objectively measured.  Physicians are confronted with ambiguity as they attempt to assess the severity and significance of chronic pain in their patients.  In large part, this stems from the fundamental divide between a person who suffers from pain and an observer, who attempts to understand that suffering. Observers tend to view pain complaints with suspicion and disbelief, akin to complaints of dizziness, fatigue, and malaise.  As Scarry remarked, "To have great pain is to have certainty, to hear that another person has pain is to have doubt."

                                                                                              (this Court’s emphasis)

[184]     These passages of the Guides were not put into the evidential record before this Court.

[185]     However, Ms. Laflamme filed a series of photos into the record that were taken shortly after the incident.  The exact date is in dispute and it would appear that the photos were not all taken at the same time since Ms. Laflamme is wearing two different sets of clothing.  However, it is most probable that the photos were taken within a week or so of the incident.

[186]     In those photos where she is wearing a white shirt, there appears to be a red burn area right down the center of her tongue.  A burn mark appears on her lower lip and the tip of her tongue appears to be very red.  On either side of the red mark down the tongue, there is the presence of a white coating which is a fungal infection called “candida”.  Such an infection may arise in the mouth as a result of taking antibiotics.

[187]     In those photos where she is wearing a striped shirt, her tongue appears to be completely covered with this candida[40].

[188]     The evidence is unclear as to when the photos were taken.  Ms. Laflamme originally testified they were taken on August 15, 2013, but subsequently indicated it may have been August 16th.  In either event, there is the presence of the candida infection on her tongue.  While this infection appears to have cleared up within the week, the Court is satisfied that it contributed to some of the pain that Ms. Laflamme was suffering during this early period after the burn.

Evolution of the Pain According to Ms. Laflamme

[189]     The evidence of Ms. Laflamme is important, particularly to evaluate whether it is consistent with the evidence provided in the medical notes by treating physicians.

[190]     When she took the one spoonful of soup, she was completely surprised by how hot it was, a sensation she described like “eating fire”.  She testified she rolled the soup around in her mouth to dissipate the heat and did not spit it out. 

[191]     She said she had never eaten anything so hot in her life and told a woman two table from her that she had been burned by the soup[41].

[192]     In the days that followed, she felt the burning not only on her tongue but also on her gums and on the inside of her cheeks[42].

[193]     On the day of the incident following the burn, Ms. Laflamme returned and worked on the garage sale until about 5:00 p.m. 

[194]     Ms. Laflamme adds that she had not eaten since the Monday or Tuesday of that week in which the burn occurred on the Friday. 

[195]     At her examination on discovery in 2001, Ms. Laflamme testified that she had unbearable pain for about two weeks and that she had intense pain for about one month after the incident.  None of the medical or dental consultants had given her any prescription pain relief and so she was taking Tylenol only. 

[196]     On the contrary, at trial she testified that it took two months for the pain to go from being intolerable to simply being sharp pain.

[197]     The Court determines that her evidence on discovery, which was more contemporaneous and when her memory would have been better, is what happened.  She returned to the local medical clinic on August 20th and 21st and then returned again on August 28th, 1998 at which time she told the treating physician, Dr. Ménard, that she wished to die.  He diagnosed that she was in a depression and should not go to work.

[198]     On August 17, 1998, a treating doctor at that clinic provided her with a leave of absence from work.  On August 29, 1998, Dr. Ménard did the same. 

[199]     From September 1998 to January 1999, she was in psychotherapy with psychologist Ms. I. Richer, on the recommendation of her family physician, Dr. Ménard.

[200]     The treatment for the candida completely resolved the candida problem.

[201]     Approximately two weeks from the time of the incident, all that Ms. Laflamme could eat was the liquid diet supplement Boost, since eating solids caused her too much pain.

[202]     On December 17, 1998, Ms. Laflamme consulted a Dr. Guertin, an otolaryngology (ORL) specialist at Notre-Dame Hospital.  His medical notes indicate that Ms. Laflamme was experiencing a burning sensation on the tip of her tongue along with a perception of a loss of taste and feeling with the tongue.  The tip of her tongue was still red.  His sole recommendation appears to have been gargling with water.  He suggests a diagnosis of possible “burning mouth syndrome” which he says continues to persist, when he sees her again on June 11, 1999[43].  According to her testimony on discovery, Ms. Laflamme indicated Dr. Guertin told her that it could take six months before her ability to taste returned[44].

[203]     In early May, 2000[45] as a result of seeing an article in a newspaper, Ms.  Laflamme contacted a plastic surgeon, Dr. Gilles Beauregard. Dr. Beauregard noted redness on the tongue and in particular noted a large area on the tip of the tongue which was a “zone d’hypoesthésie” (which means “déficit de la sensibilité de l’incapacité de perception, mais qui ne va pas jusqu’à la disparition de la sensibilité[46].)

[204]     Dr. Beauregard saw her again on September 11, 2000.  His notes indicate a burning sensation in her mouth when she eats spices and bubbly soft drinks. 

[205]     On discovery, Ms. Laflamme indicated that Dr. Beauregard told her it could take three years before a sensation in her tongue fully returns due to healing of the nerves.  He indicated to her that a possible remedy was to surgically amputate the tip of her tongue.  She decided against this since it would have affected her speech.

[206]     The next medical consultation appears to be almost one year later.  A physician at her local clinic[47] asks for a consultation from the pain clinic at Notre-Dame Hospital which consultation cannot be accommodated at the time because the clinic has no available spaces to see Ms. Laflamme.

[207]     Seven days later, on August 29, 2001, Ms. Laflamme initiates her legal proceedings in which she claims $66,650.00 from the Defendants.

[208]     Two months to the day later, on October 29, 2001, Ms. Laflamme makes a written declaration to the Citadel Insurance Company wherein she says she has a permanent loss of taste, loss of feeling in much of her tongue and permanent pain in the center of her tongue.

[209]     As a result of a reference by Dr. Beauregard, Ms. Laflamme finally does get an admission into the pain clinic at Hotel-Dieu Hospital where a consultation is completed by Dr. Pierre Mainville and dated September 28, 2001.  In the history Dr. Mainville takes from Ms. Laflamme, she advises again of a second degree burn to her tongue.  Dr. Mainville’s report starts out with Ms. Laflamme discussing the burn that she suffered at the Restaurant.  He indicates that the patient tells him that she suffered from a major depression 15 days after the incident.  She discussed being seen at present by her treating psychiatrist, Dr. Nowakowski.  In his conclusion and discussion, Dr. Mainville says that Ms. Laflamme definitely suffers from “une douleur à caractère neuropathique”.  He goes on to say that there is a “corrélation étroite entre les troubles affectifs et la douleur”.  As a result, he suggests that it will be useful to discuss with the treating physician to determine whether her condition is improving.  He says he will see the patient again in a month.  From the notes of the follow-up interview, nothing seems to have changed in this period.[48]

[210]     The next medical record of significance is dated April 30, 2003 and is from Dr. Daniel Menard, Ms. Laflamme’s family physician.  It is a signed letter written “prior to visit with Dr. Grushka[49].

[211]     Dr. Ménard says this in the letter:

 

“Her actual major complaint is one of a burning tongue problem that leads to a major distress.  She started complaining of a tongue problem after she burned herself with a bowl of soup (“crème de pommes de terre”) in a restaurant.  The “crème” was apparently too hot.  This patient is unable to taste with the consequent loss of pleasure for eating.  She actually lost over 70 pounds since this event.  She is frequently nauseated as well as suffering an exaggerated gag reflex.  There is also a need for “orthophonic support”.

 

[212]     Dr. Ménard adds that as regards “burning mouth syndrome, this patient was not menopausal at the time she developed her problem nor had she been recently receiving antibiotics”.

[213]     The Court will now analyze in greater detail Ms. Laflamme’s May 2003 consultation with Dr. Grushka.  

[214]     Dr. Grushka prescribed to Ms. Laflamme the prescription medication Lamotrigine (100-200 mg) which is a medication normally prescribed to reduce or eliminate the effects of epilepsy.  Recent research had shown it had pain-reducing properties. 

[215]     In her testimony at trial, Ms. Laflamme indicated that as a result of taking this medication, 50% of the pain was immediately eliminated.  However, from this point forward nothing further changed regarding any improvement in the pain.

[216]     In her examination-in-chief, Ms. Laflamme testified that the pain remained in the tip of her tongue, she continued to have a tingling feeling in her tongue and the middle of her tongue was very sensitive, particularly to the cold.  She indicated she was also very sensitive to spices which could be doubly painful.  Also, she testified she would have pain in her tongue which would last for up to one day, but that this pain seemed to come and go without her being able to predict when.

[217]     She said she lost all pleasure in eating and as a result stopped going to restaurants.

[218]     On cross-examination, she added the following:

a)            she could not feel the tip of her tongue and felt tingling in her tongue;

b)            in the center of her tongue, she could experience a pain like a knife.  She said this pain was constant, 24/7;

c)            counsel for the Defendants asked her to qualify her pain using a number on a scale of from 1 to 15.  She said that at the time of the incident, the pain was between 12 and 13.  She said from August 1998 to 2003 pain was between 9 and 10; and

d)            Following her consultation with Dr. Grushka, she said the pain that felt like a knife did disappear but returned from time to time.  She did testify however that she is in constant pain which she established at between 4 and 5 on a scale of 10.

Expert Evidence: Extent of Burn and Physical Damages Caused

Governing Law:

Assessment of Credibility, Reliability and Probative Value of Expert Evidence

[219]     Mr. Justice Joel Silcoff in the Vidéotron case[50] made an extensive review of the principles applicable to expert evidence.  This Court proposes to rely on those principles for the purposes of this case:

 

 

“[431]   As a general principle, the credibility, reliability and probative value of expert evidence is assessed in the same manner as is that of ordinary witnesses.[193]

[432] In his text L’Expert[194], Béchard identifies, with appropriate authoritative references, certain fundamental questions to be addressed in assessing the probative value of expert evidence. Among the questions enumerated by him, the following find particular application to the experts heard in the present and the Related Actions:

 

17. Questions fondamentales concernant la force probante :

(…)

a)     Au-delà de la qualification initiale de l’expert, quelle est la qualification réelle de l’expert par rapport au point en litige?

b)    Quelles sont les qualifications de l’expert? A-t-il une expérience pratique suffisante au-delà de ses qualifications académiques?

c)     Quelle est l’approche de l’expert face aux théories apportées par les autres experts? Y apporte-t-il des éléments?

d)    Le travail de l’expert est-il sérieux et peut-on suivre son cheminement? (2842-1733 Québec inc. c. Allstate du Canada, cie d’assurances, [1998] R.R.A. 596, REJB 1998-04516 (C.S.)).

e)     L’expert a-t-il fait preuve d’objectivité? (2842-1733 Québec inc. c. Allstate du Canada, cie d’assurances, [1998] R.R.A. 596, REJB 1998-04516 (C.S.); Caisse populaire Desjardins de Drummondville c. Lévesque, B.E. 2001BE-344 (C.S.)).

f)      (…)

g)    L’expertise est-elle contredite? (Simard c. Soucy. [1972] C.A. 640, 645).

h)    L’expertise et le témoignage sont-ils basés sur des faits plutôt que sur des généralités? (2842-1733 Québec inc. c. Allstate du Canada, cie d’assurances, [1998] R.R.A. 596, REJB 1998-04516 (C.S.)).

i)      (...)

j)      Existe-t-il une preuve de faits positifs par rapport à la preuve scientifique théorique? (General Accident Insurance Co. c. Cie de chauffage Gaz Naturel, [1978] C.S. 1160).

k)    (…)

l)      L’expert avait-il en sa possession tous les documents nécessaires à son expertise? (Bélanger c. Robert (29 juillet 1993), C.S. Québec, no 200-05-000966-908, j. St-Julien).

m)   L’expert a-t-il manifesté un parti pris démesuré? (M. (D.) c. B. (D.), REJB 1999-11836 (C.S.); Fortin c. Compagnie d’assurances Wellington, B.E. 2000BE-416 (C.S.)).

(…)

[434]     The Court will assess the probative and determinative value of the evidence adduced by each of the experts heard in light of one or more of the foregoing criteria. "

 

Analysis

[220]     To determine the extent of the damage caused by the burn, the Court must assess conflicting medical evidence.  Ms. Laflamme relied upon medical experts : 

a)             Neurologist Dr. Durocher seen on March 24, 2003;

b)            Oral medicine specialist Dr. Mirriam Grushka, seen on May 5, 2003; and

c)            Neurologist Dr. Suzanne Rousseau seen on or about August 14, 2006.

[221]     As for the Defendants, they relied particularly on :

a)            Dr. Daniel Larochelle, ORL specialist, whose report is dated July 19, 2005; and

b)            Dr. Michel Copti, neurologist, whose report is dated January 14, 2008.

[222]     The thrust of the Defendants’ position is based on these main propositions:

a)            none of the contemporaneous treating physicians noted any degree of burn in their reports;

b)            at the time of their own physical examinations, the Defendants’ experts could find no objective signs of severe burn damage including no damage to the cranial nerves going from the mouth to the brain; and

c)            there is no residual objective evidence of the burn.

[223]     The Court will now analyze this expert evidence.

[224]     Dr. Durocher was asked to see Ms. Laflamme as a result of a consultation requested from her family physician, Dr. Ménard.  In his report dated March 24, 2003, Dr. Durocher provided the following diagnosis:

 

“Dysgieusie et disesthésie[51] douloureuses dans les territoires des chorda tympani et des nerfs linguaux bilatéralement.  Ceci est vraisemblablement secondaire à la brûlure, selon l’histoire donnée par la patiente.”

 

[225]     As the Defendants point out, Dr. Durocher makes no mention of any damaged cranial nerves connected with the mouth.

[226]     The chorda tympani is a nerve which branches from the facial nerve (cranial nerve VII).  The Court understands that the chorda tympani is part of the three cranial nerves that are involved in taste.

 

Examination of Ms. Laflamme by Dr. Grushka

 

[227]     Dr. Grushka was qualified as an expert in dentistry, oral facial pain and oral medicine.  She has been in practice since 1986.  She is a member of the Royal College of Dental Surgeons.  In addition to being a licensed dentist, she also has a Ph.D.  She testified that oral medicine is a specialized branch of dentistry and that oral facial pain is a sub-specialty of oral medicine.  She has her own private practice in oral medicine in Toronto, has been a member on the active staff of the Etobicoke General Hospital from 1982 to the present and was a clinical instructor at the Yale University Medical School from 2000 to 2006.  She has been qualified as an expert before the Ontario Courts.  She testified that the practice of oral medicine requires an understanding of diseases. 

[228]     Dr. Grushka is presently 64 years of age.  Her post-doctoral work was done with one of the world’s leading experts for oral pain.  Much of her clinical work comes from referrals from dentists and ORL physicians. 

[229]     Dr. Grushka is not a medical doctor, her original training was in dentistry and her Ph.D. was obtained in the area of dentistry.  She also earned a master of counselling in psychology which she took so as to assist her patients.  In the area of oral facial pain, she said that medical doctors do not have experience in this particular area but that her sub-specialty of dentistry did.

[230]     She made the following observations looking at the photographs of Ms. Laflamme filed under Exhibit P - 18A which were taken shortly after the incident:

a)            blisters are shown on the tongue[52] and;

b)            there appear to be blisters on the tip and on the left border of the tongue (Exhibit P-18-9).

[231]     Dr. Grushka did taste testing both at the front and the back of the tongue.  She said cranial nerves VII and IX inhibit each other.

[232]     In terms of her taste testing, the testing is rated on a scale of intensity.  She said the taste response is different than the pain response.  She said that because of the connection of the various cranial nerves, pain response is complicated to understand:  if there is trauma, there can be all kinds of pain responses.  She confirmed at trial that the photographs filed into evidence of the tongue and mouth area of Ms. Laflamme are consistent with the oral injuries she found which resulted from the burning soup.

[233]     She further confirmed that there must be cranial nerve injury for a patient who feels oral burning.  This is a critical finding by Dr. Grushka.  The Defendants’ experts assert that there is no objective evidence of cranial nerve damage. At page 2 of her May 8, 2003 report, Dr. Grushka noted:

 

“Ms. Laflamme indicated that initially she had waited for the pain to abate but had been told by numerous people that her pain was permanent, since it had been six years since it had started.  She reported that she had lost all pleasure in eating and what’s more, had difficulty eating food because of the loss of taste on the tip of her tongue.  She reported that she had to push the food further back into her mouth to have any taste at all.  She was not able to eat hard foods.  She reported that her tongue felt as if it no longer belonged to her.”

 

[234]     The Court accepts Dr. Grushka’s evidence that taste and sensitivity testing are an integral element of the work she has done over the years.  Furthermore, the Court understands that taste and sensitivity in the mouth are directly linked to whether the cranial nerves in the mouth are functioning properly.

[235]     As a result of the reactions obtained from Ms. Laflamme in response to the taste and pain testing, Dr. Grushka drew conclusions regarding damage to the cranial nerves. 

[236]     At the outset, the Court notes that the defence neurologist, Dr. Copti, performing sensitivity testing using a different technique, opines that there was no cranial nerve damage while Dr. Grushka’s tests proved to her that there was cranial nerve damage.

[237]     Due to its importance, the Court will cite the results of Dr. Grushka’s clinical examination in their entirety:

 

Clinical Examination:

On clinical examination, the oral mucosa appeared normal.  Spatial taste testing was done which showed evidence of significant changes.

There was evidence of loss of salt and sugar to the right tongue tip (fungiform papillae) with no loss of sensations at the circumvallate papillae, innervated by (cranial nerve) CN IX.  However, stimulation of the left circumvallate papillae produced a gag sensation in the patient.  There was evidence of total loss of bitter at the tongue tip with a hypersensitive response, including gagging, to bitter at the left circumvallate papillae.  She was unable to taste bitter in the whole mouth test and on PROP paper, which generally is very bitter in individuals with intact taste buds.  She had approximately 20 taste buds at the fungiform papillae, within the range of normal despite her total loss of taste to bitter.  She had no sensation to Ethanol, even at 95%, in terms of burning pain.

Her current pain level was rated at approximately 80 on a scale of 0 - 100 with 80 anchored as between very strong and the strongest imaginable sensation of any kind.

Impression:

 (…)

I am enclosing several articles on the mechanism of pain in mouth burning.  It is believed with good evidence that the intense burning pain was secondary to the loss of taste, which Ms. Laflamme clearly demonstrates.  This sets up a loss of inhibition of pain with the onset of spontaneous and sometimes intolerable pain.”

[238]     Dr. Grushka opines that Ms. Laflamme “has suffered a permanent and severe burn to her tongue and mouth as evidenced by the photographs she brought with her, by her history and symptoms and by objective taste testing.

[239]     Dr. Grushka goes on to opine:

 

“In terms of her quality of life, Ms. Laflamme is certainly disabled with intolerable and uncontrollable pain and with distortion and loss of taste and pain sensitivity.”

 

[240]     In support of her opinion, she enclosed articles with her report, as noted above.  As these articles were not filed into evidence with her report, the Court is left to analyse the conclusions she draws from those articles.  Accordingly, the Court will cite those conclusions in extenso:

 

“I am enclosing other articles which indicate our current working theory about the onset of other sensations including gagging and loss of proprioception as a result of damage to taste especially to bitter at the chorda tympani (CN VII).  It is believed that CN VII, which carries taste in the anterior tongue inhibits pain, gagging and also regulates CN V.  With the loss of sensation to the Chorda Tympani, especially bitter, there is hyperactivity in CN V and the CN IX causing many abnormal sensations including pain and gagging.”[…]

 

[241]     Dr. Grushka used the contemporary photographs[53] to point out the presence of blisters which she said were consistent with traumatic injury to the tongue.

[242]     Dr. Grushka said that she had treated many patients either those with oral burning or those with BMS (burning mouth syndrome).  She testified that BMS was a disorder mostly effecting postmenopausal women, who complain of burning of the tongue as well as lip pain.  In BMS, the pain gradually increases all day to reach intensity by late afternoon.  With BMS, the nerve injury occurs subsequent to the onset of BMS.  However, where an oral burn is involved, the nerve damage is caused at the outset, for example, by drinking a scalding liquid. 

[243]     With BMS, eating stimulates the taste buds which inhibit pain, hence: BMS sufferers find relief in chewing.  According to Dr. Grushka, Ms. Laflamme did not present with BMS symptoms and contrary to BMS sufferers, her pain did not fluctuate.  The Court understands that Ms. Laflamme’s symptoms are consistent with oral burning as opposed to BMS.

[244]     Dr. Grushka related her tests for pain and for taste to the functioning of four cranial nerves in the mouth area:  cranial nerves V, VII, IX and X.

[245]     The Court understands that certain cranial nerves carry taste responses and pain responses to the brain. 

[246]     For example, pain can be transmitted along cranial nerves V at the front of the tongue while taste is carried by the cranial nerve X at the back of the tongue.  While cranial nerve IX can carry some pain, main pain response is carried by cranial nerve V.  Furthermore, Dr. Grushka testified that taste can inhibit pain and pain can inhibit taste.  In a traumatic situation, she said you can get all three nerve responses: pain, taste and gagging.

[247]     Dr. Grushka has been doing taste testing over many years and has developed the techniques she presently uses as a result of work she did in the late 1990’s.  She has published extensively on taste damage and burning mouth syndrome[54].  Her curriculum vitae shows an impressive number of textbook chapters, publications and abstracts on burning mouth syndrome. 

[248]     As regards taste testing, she tested four tastes: sweet, sour, salt and bitter[55].

[249]     Scarring can be important for diagnosis.  However, Dr. Grushka testified that you can have pain without there being any scarring in the mouth region.

[250]     Important evidence arose under a careful cross-examination. To have the type of intractable burning pain complained by Ms. Laflamme, there must be nerve injury according to Dr. Grushka.  She testified that the mouth can be burned when the liquid is as hot as 53 degrees Centigrade. 

[251]     When she is testing for pain, she uses Ethanol on a Q-tip.

[252]     Her conclusion is that Ms. Laflamme’s cranial nerves V, VII, IX and X are not functioning properly. 

[253]     She said that the extreme pain that Ms. Laflamme suffered in the evening of August 14, 1998, which caused her to go to hospital, was consistent with her receiving a burn at lunchtime on that day.

[254]     Under cross-examination, she said the following:

a)            it takes much burning to damage a nerve in the mouth;

b)            there must be a nerve injury for there to be intractable burning pain;

c)            for a pain test, she uses ethanol on a Q-tip and asks her patient what they feel.  The normal response should be pain if the tongue has normal feeling;

d)            Dr. Grushka knew that Ms. Laflamme was taking the medication, Tegritol, in a quantity of 550 mg. at the time of the examination in Toronto.  While Dr. Grushka said that this medication could reduce shooting pain, it did not affect constant pain caused by burning. Accordingly, Dr. Grushka eliminated this medication as having any effect on the pain testing that she performed;

e)            She testified that neurologists refer patients to her all the time for mouth pain since she is better qualified than they are in this area.  She said neurologists generally do not treat the inside of the mouth; and

f)             she said that candida is a fungal growth which is normally treated by a course of antibiotics.

[255]     She has treated thousands of patients that suffered from this medical condition called “burning mouth syndrome” (“BMS”).  She testified that BMS is “idiopathic”, that is to say that it does not present with clinical abnormalities.  Dr. Guska’s opinion is that Ms. Laflamme does not suffer from BMS.

[256]     She met with Ms. Laflamme for one and a half hours and in addition to the oral history she took from the patient, she also viewed photographs[56].  She conducted the interview with the aid of an interpreter.

[257]     Under the heading “Impressions”, Dr. Grushka says:

 

“My impression is Ms. Laflamme has suffered a permanent and severe burn to her tongue and mouth as evidenced by the photographs she brought with her, by her history and by objective taste testing.”

In terms of her quality of life, Ms. Laflamme is certainly disabled with intractable and uncontrollable pain and with distortion and loss of taste and pain sensitivity”.

 

[258]     In her testimony at trial, Dr. Grushka added the following:

a)             the intractable pain being suffered by Ms. Laflamme would cause her to express the sentiment that she wanted to die on August 28, 1998. This intractable pain could not have been caused by the candida fungal infection since antibiotics for this infection were started on August 10th and the course of treatment is normally 10 to 14 days;

b)            she indicated that she was not qualified to determine what degree of burn this was but she was qualified to determine the extent of the injury;

c)            she said that it is known phenomenon that the effect of pain on patients over a period can cause depression;

d)            she performed four pain tests using a precise test methodology.  She has been using these tests since the 1990’s;

e)            she also administered a taste test and described what taste buds were.  She said there were taste buds in the front of the tongue connected to the seventh cranial nerve (VII).   She said there were circumvallate taste buds at the back of the tongue connected to the ninth cranial nerve (IX).  She said these taste buds were surrounded by pain fibres like a basket.  The taste buds inhibit pain but if they are damaged, this function is reduced and if this occurs, victims can experience burning pain due to nerve damage.  In her view, nerve damage was caused to Ms. Laflamme by the hot soup.  Dr. Grushka said that pain goes along cranial nerve V which is connected to the tip of the tongue and that as well cranial nerve IX can also carry some pain.  When there is nerve damage, there are three responses in the mouth:  the first is pain, the second is reduced taste and the third is gagging.  Ms. Laflamme has experienced and experiences all three;

f)             She says that it is consistent with the nature of the burns suffered by Ms. Laflamme that the pain intensifies over time; and

g)            looking at all the elements, she concluded there was nerve damage.

Examination of Ms. Laflamme by Dr. Daniel Larochelle

[259]     On behalf of the defence, Dr. Larochelle, 70 years of age, was qualified as an expert in ORL.  His present practice in ORL was focussed in the area of cancer surgery. 

[260]     He had been qualified 40 times as an expert in court and has been in practice for 40 years.

[261]     His medical examination of Ms. Laflamme on behalf of the Defendants took place on July 14, 2005 (over two years after Dr. Grushka’s examination) and lasted between 30 to 45 minutes.  As such, his examination took place almost 8 years after the incident.  There was no evidence as to why it took the Defendants this long to mandate Dr. Larochelle to conduct his expertise.

[262]     Dr. Larochelle focussed his physical examination on the area of the tongue and the cheeks.  He found no scarring or particular inflammation at the time of his examination.

[263]     It was Dr. Larochelle’s opinion that there was no relationship between her symptoms and any burning from a hot soup.

[264]     Dr. Larochelle made three particular findings which the Court will analyze:

a)            that Ms. Laflamme’s first reflex should have been to immediately spit out an irritating substance i.e. the Restaurant’s soup because of the heat;

b)            because she did not do this, Dr. Larochelle opined that the heat must have been tolerable.  Ms. Laflamme’s expert neurologist, Dr. Rousseau contradicted Dr. Larochelle and testified in chief that such a “reflex’ did not exist.  Under cross-examination, Dr. Rousseau indicated that pain caused by eating very hot soup would produce a reaction similar to immediately moving one’s hand if placed on a very hot grill.  However, when pressed on this, she nuanced her response that the location, such as a public restaurant, could be a factor in a person not spitting out an overly hot soup.  Since both neurologists were equally credible on this point, the Court determines that the fact that Ms. Laflamme did not immediately spit the soup out does not prove that the heat of the soup was tolerable, as Dr. Larochelle testified.

[265]       The Court finds confirmation in this view not only from the credible testimony of Ms. Laflamme as to the pain but also the photographs showing the redness of her tongue and the contemporaneous medical records. 

[266]     Secondly, Dr. Larochelle indicates that in his experience, he has never seen more than a first degree burn caused by hot food.  Since he says first degree burns heal completely and in fact, heal without leaving any scarring, he opines that this is what must have happened to Ms. Laflamme’s tongue.  Furthermore, he indicates that he has treated children who suffered chemical burns by ingesting noxious products.  He says that even in those cases, he never saw problems with taste or chronic pain of the tongue thereafter.

[267]     In this regard, and with all due respect for Dr. Larochelle’s lengthy personal experience[57], the Court prefers the evidence of Dr. Grushka on this issue, for the following reasons:

a.    due to her higher degree of specialisation in the area of oral pain. The Court is particularly persuaded by the fact that her referrals come from ORL physicians because she has a higher degree of competency in relation to oral pain. This competency is borne out by her curriculum vitae. While Dr. Larochelle is an ORL specialist, there was nothing in the evidence that showed him to have the same level of experience as Dr. Grushka in the area of oral pain;

b.    the evidence of Dr. Grushka that it is not necessary to have residual scarring for there still to be residual pain;

c.    the consistent mention of Ms. Laflamme of oral pain in her consultations with doctors (other than psychiatrists and psychologists) in 1999 and 2000 at times which were much before the time when she took her legal proceedings; and

d.    Dr. Larochelle is highly critical of Dr. Grushka since he says that her conclusions cannot be based simply on the photographs or on the subjective responses that she received from Ms. Laflamme as a result of Dr. Grushka's testing.  According to Dr. Larochelle’s report, the photographs show no signs of any burn but rather an infection of the mucus in the mouth caused by candida and which is the complication that can result during and after an antibiotic treatment.  Dr. Larochelle testified that such antibiotics can cause severe inflammation and can be very painful.

                                          i.    With great respect, the Court does not accept Dr. Larochelle’s evidence that the photographs do not show any burning.  His evidence in this regard is contradicted directly by Dr. Grushka.  These photos show inflammation and in fact even Dr. Larochelle when shown photo P-18-1 noted that there was a degree of inflammation and that the colour of the tongue was not normal.  Since it is not possible to know which photos were taken, in which order, neither Dr. Larochelle nor the Court can be sure as to the chronology of the treatment of the candida as shown in those photos.  While the candida appears clearly on the surface of the tongue, photo Exhibit P-18-1 shows blistering and redness on the tip of the tongue and at the front end under the tongue.  This is not consistent with candida being the sole cause on the basis of what the photo actually shows of the candida infection.  Furthermore, the scarring on the outside of the lips[58] cannot be caused by the candida but must have been caused by some external source[59], the most likely being the burning soup based on the evidence heard by the Court;

      In his report, Dr. Larochelle indicates that the photos “ne présentaient pas de signes de brûlure au niveau des lèvres ou de la bouche”.  However, photos P-18-1, P-18-3 and P-18-B show scars down the tongue and the outer lips that appear to have nothing to do with candida.  In fairness to him, Dr. Larochelle’s report does not indicate whether he saw these specific photos at the time that he prepared that report; and

e.    Finally, Dr. Larochelle under cross-examination testified that by way of diagnosis by exclusion, he diagnosed Ms. Laflamme as having BMS (burning mouth syndrome).  Dr. Larochelle testified that he has seen approximately six cases of BMS a year.  Given the substantially greater number of cases seen by Dr. Grushka and her proven expertise in BMS, her evidence on this issue is to be preferred to that of Dr. Larochelle and the Court accepts Dr. Grushka’s evidence that Ms. Laflamme did not have BMS (or burning mouth syndrome) at all.

[268]     Dr. Larochelle testified that he did not do any specific test for pain or for taste, as had been undertaken by Dr. Grushka.

Neurological Expertise

Dr. Suzanne Rousseau

[269]     Appearing on behalf of Ms. Laflamme, Dr. Rousseau was qualified as an expert in neurology.  At the time of her testimony, she was 71 years of age and had discontinued her hospital practice in 2001.  Since about 2006, she has provided between 20 and 25 medical experts' reports per year.  She has testified on behalf of both plaintiffs and defendants.

[270]     She examined Ms. Laflamme on August 10, 2006 (over three years after Dr. Grushka’s examination).  Her report consisted of taking a history of Ms. Laflamme as well as an extensive review of the previous medical documents.  She relied on Dr. Grushka’s conclusions that the burn caused the injuries to cranial nerves.  She also conducted a neurological examination and found:

 

“L’examen de la sensibilité douloureuse (à la piqure) ne révèle aucune altération objective au niveau des muqueuses buccales, des gencives ni de la langue...  Je n’ai cependant pas vérifié systématiquement ses capacités gustatives, me référant à l’évaluation détaillée à laquelle le Dr. Grushka a procédé.”

[271]     Furthermore, she found …au moment où madame est requise de tirer la langue, elle présente une hyperactivité du « gag » avec des haut-le-cœur répétés de façon incontrôlable.  The rest of her examination was normal.

[272]     In addition to her review of the other medical reports, she referenced that of fellow neurologist, Dr. André Durocher of March 24, 2003.  She noted that he did not report any particular deficit in the area of the trigeminal cranial nerve (cranial nerve V) nor the facial cranial nerve (cranial nerve VII).  However, she does note that Dr. Durocher did not test for taste but that he did find there was an increase gag reflex.  She further noted that as recently as June 6, 2005, Dr. Durocher confirmed his original diagnosis and also confirmed that as a result of taking the medication Lamictal (prescribed by Dr. Grushka - the Court assumes this is the trade name for Lamotrigine: the drug used to control epilepsy) that “sa douleur est jugée acceptable”.

Dr. Michel Copti

[273]     Dr. Copti was qualified as an expert in neurology.  He was 77 years old at the time he testified and, like Dr. Rousseau, had discontinued active hospital practice.  He had been the chief of neurology at St. Luc Hospital from 1971 to 1979.  Since 1987, he has been “Président du cabinet de consultation santé du Québec”.  His background shows a particular interest in migraines and headaches as well as Alzheimer’s disease.  He has done expert reports both for plaintiffs and defendants.  He examined Ms. Laflamme on September 18, 2007 (over five years after Dr. Grushka) and his medical report is dated January 14, 2008.  This is approximately nine and a half years after the incident and almost five years after Dr. Grushka’s examination.  Dr. Copti went through her history with Ms. Laflamme and summarized her medical file.  Under the heading “Situation Actuelle”, he notes that Ms. Laflamme says that she has lost her sense of taste, that her manner of speaking has changed, that she no longer feels excessive heat on her tongue and that spicy foods like mustard hurt her.  She indicated that when she is stressed, she has spasms which she qualified as “haut-le-coeur” for several seconds and several times per day. 

[274]     In his examination, he noted that all cranial nerves were normal and that the tongue showed no evidence of any scarring or lasting visible effect of a burn.  He said that “la sensibilité tactile et la sensibilité douloureuse sont normales”.  His sensitivity test involved using a Kleenex and touching the tongue while the pain test involved using a diaper pin to touch the tongue.  He did not do any taste testing. 

[275]     Under the heading “Discussions“, Dr. Copti notes that while Ms. Laflamme complains of dysesthesia in her tongue, there is no objective evidence found by other doctors regarding lesions caused by a burn. 

[276]     Under cross-examination, he admits that there can be neuropathic pain without having visible scarring.  In his report, he says that the rhinoseptoplasty surgical procedure that Ms. Laflamme underwent in her early 20’s meant that “elle présentait donc une condition de fragilité dans la sphère buccale”.  He attributes the pain in her tongue following the incident to the candidaHe also says “à la suite de ses complications, madame a pu développer… burning mouth syndrome”.  Under the heading “Conclusion”, he opines: 

“Les perturbations signalées par Madame Grushka au niveau de la langue peuvent très bien s’expliquer par le problème de mycose avec un « burning mouth syndrome », tel que mentionné dans le paragraphe précédent.”

 

Analysis

[277]     The Court believes Ms. Laflamme when she testifies to the burning pain she suffers as well as her diminished taste.

[278]     Doctors Larochelle and Copti, on behalf of the defence, both say that there is no cranial nerve damage and no objective scarring in the tongue or mouth area. 

[279]     Both doctors diagnosed Ms. Laflamme as likely having burning mouth syndrome although Dr. Larochelle says he sees only about six cases a year and the Court understands that Dr. Copti has only seen a few cases in his entire practice.  In fact, Dr. Rousseau says that diagnosing burning mouth syndrome is not part of a neurologist’s practice.

[280]     After reviewing the competing evidence, the Court prefers the evidence of Dr. Grushka for the following reasons:

a)            she has an exceptional amount of experience regarding burning mouth syndrome.  The Court prefers her evidence to Drs. Larochelle and Copti, when she opines that the symptoms of Ms. Laflamme are not consistent with a diagnosis of BMS.  At the same time, the fact that these two physicians have offered a diagnosis that the Court does not prefer, diminishes the weight of their opinions;

b)            furthermore, the Court also accepts that Dr. Grushka has a greater degree of expertise in oral pain than do the defence physicians.  As a result of her evidence regarding her testing both for taste and for pain in the oral area, the Court finds on the balance of probabilities that her test results are more accurate than the defence experts;

c)            the Court is also convinced by Dr. Grushka’s explanation that pain in the area of the mouth and tongue is due to a complex interaction of various factors.  She says that she comes to her diagnosis from: (a) her taking the history of Ms. Laflamme, (b) when the medical reports of all the treating physicians are looked at, (c) when one hears the evidence of her pain and loss of taste and (d) when one looks at Dr. Grushka’s test results. The Court accepts the soundness of her methodology, particularly given her degree of specialization. The Court is satisfied on the balance of probabilities that Ms. Laflamme suffered cranial nerve damage.  In light of all the facts, the cause of the cranial nerve damage must be the burning caused by the soup.  In this regard, the Court cites the conclusion from Dr. Rousseau who says:

 

“Bien qu’il s’agisse sans doute d’une condition peu fréquente, je suis d’avis que l’histoire chronologique et les altérations sensorielles décrites par la suite établissent clairement la relation causale dans le cas présent.”

 

[281]     Dr. Rousseau accepts Dr. Grushka’s conclusion of the causal connection between the burning suffered as a result of the soup and the pain and loss of taste suffered by Ms. Laflamme.  Under the heading of “Evaluation of DAP”, Dr. Rousseau comes to a global DAP of 14% based upon the following analysis:

a)            5% for partial damage to the cranial nerve V.  She bases this on the localized neuropathic pain in the tongue.  She also considers that the pain is judged tolerable and that there is no longer any need for anticonvulsant medication.

b)            she suggests a DAP of 4% for the negative effect on the cranial nerve VII as a result of the effect on the chorda tympani and the alteration of Ms. Laflamme’s sense of taste; and

c)            as for the negative effect on cranial nerves IV and X related to the hyper gag, Dr. Rousseau attributes 5%, although Ms. Laflamme has no difficulty in swallowing nor difficulty in speech articulation.

[282]     Dr. Rousseau relied for these percentages from the American Medical Association’s Guide to the Evaluation of Permanent Impairment of 2000[60]

[283]     On the other hand, Dr. Copti put into evidence the 6th Edition of the same AMA Guide from 2008[61].  In that more up to date AMA Guide, “a value of 1% to 5% impairment of the whole person is suggested for use in cases involving partial or complete loss of either sense (olfaction and taste) due to lesions.

[284]     Again, according to Dr. Grushka, it is highly unlikely that: (a) Ms. Laflamme’s periods of intolerable pain, (b) her distortion and loss of taste and (c) her hyperactive gag reflex and anxiety that stem from these sensory changes,  will ever recover.

[285]     Since she still has some taste, the Court determines that a 4% DAP is appropriate in the circumstances.

[286]     Dr. Grushka in her July 8, 2003 report makes the following statement, which is uncontradicted:

 

“Unfortunately, none of the existing medications can control these sensory abnormalities (i.e. the pain Ms. Laflamme is suffering) and even combinations of medications such as Ms. Laflamme is using are usually incapable of providing full relief of this type of pain”.

 

[287]     Dr. Copti in Exhibit D-24-C opined that mild uncontrolled facial neurologic pain that may interfere with activities of daily living were accorded 1% to 2% DAP in the most recent Guides

[288]     Under the heading of “Diagnosis tongue condition”, Dr. Grushka describes it as “intractable neuropathic burning pain secondary to nerve injury…”.  This diagnosis in combination with the evidence provided by Ms. Laflamme at trial as well as in her medical records, leads the Court to determine that the pain is rather “severe, uncontrolled, facial neurologic pain that prevents performance of activities of daily living (ADL) which is in a range of 6% to 10%”.  On the basis of the circumstances of this case, the Court puts that percentage DAP at 8%.  The American Medical Association’s Guides, 6th Edition, discusses these percentages under the heading “Trigeminal[62] or Glossopharyngeal[63] Neuralgia”.

[289]     After making reference to the following problems of Ms. Laflamme:  “Unremitting oral pain, her distortion and loss of taste, her period of uncontrolled pain, her hyperactive gag reflex and her depression and anxiety that stem from the sensory changes”, Dr. Grushka opines as follows:

 

“Any one of these problems by itself would be enough to be intrusive and interfere with quality of life.  Together, they are sufficient to completely disable an individual from any type of meaning for life.

[290]     In her expert’s report, Dr. Rousseau provides a 5% DAP for the pain caused by the cranial nerve V, and cranial nerves IX and X. 

[291]     Based on the evidence, the Court is satisfied that a 8% DAP covers all negative effects for injury to the cranial nerves V and IX and as necessary, cranial nerve X and no additional percentage need be given for the hyperactive gag reflex.

[292]     The text of “ the AMA Guides Fifth ed.”[64], notes the following:

 

“The Guides warn that impairment ratings should not be the sole basis for a disability award, because the Guides WPI ratings do not account for social, recreational, or occupational impact.”

 

[293]     Now, on to another subject. What effect did Madam Laflamme’s taking the drug Tegretol have on Dr. Grushka’s tests?  Dr. Guérin, the Defendants’ expert psychiatrist, alleged that this drug could reduce the sensations felt by the tongue and hence throw off the results of Dr. Grushka’s tests.  Dr. Gruska disagreed, for the reasons given earlier in this judgment.

[294]     Dr. Grushka’s evidence is to be preferred.  As an expert in the area of oral pain, the Court has more confidence in her expert’s opinion as to the effects that such a drug may have on pain being suffered.  With respect, Dr. Guérin was qualified as a psychiatrist and not an expert in oral pain. 

Evaluation of Damages for the Burn

Governing Law

[295]     The Court of Appeal has emphasized that the determination of an award for pain, suffering and inconvenience is an exercise in careful balancing of the evidence by the trial court rather than a “rigorous calculation”.[65]  To seek further guidance, trial judges find it useful to consider similar cases.[66]

[296]     This Court has considered the following cases involving burns:

a)            The 1989 case of Simoneau v. Hamel[67] involved serious burns resulting from a fondue pot overturning and spilling on the victim.  Aesthetic prejudice and pain suffering and inconvenience were awarded as damages at $10,000.00;

b)            Wu v. Hai Yonge Enterprises Limited[68] is a 1997 B.C. case. An infant plaintiff was badly burned when hot soup spilled after being put down on a small serving table.  The child received first and second degree burns to the right side of her neck, right shoulder and right anterior chest.  The wound healed two months after the accident but she developed a hypertrophic scar.  Three years after the accident the scar was prominent, disfiguring and expected to be permanent.  Non pecuniary damages were assessed at $25,000.00;

c)            In the 1996 case of Von Hlatky v. France Clavet Cosmetique ltée[69], the plaintiff underwent a “peeling” treatment at an aesthetic clinic.  Her skin was burned and she had a sensation of burning on her face and on her chest for several months.  Her skin remained sensitive to the cold in the winter and to the heat in the summer.  She was awarded $30,000.00 for pain suffering, aesthetic prejudice and partial permanent incapacity;

d)            In the 1998 case of Gaudet v. Lagacé[70], a child playing with fire and gasoline suffered second and third degree burns to their legs when the container of gas exploded.  Years after the accident the child still had very sensitive skin and had suffered greatly during the period following the accident.  The amount of $75,000.00 in non-pecuniary damages was awarded;

e)            The 2005 Ontario case of Lamky v. 1517370 Ontario Inc.[71] was one where the plaintiff suffered second degree burns when one of the cups of coffee she had purchased at a drive-through spilled on her.  The plaintiff received burns to the inside of her thigh over an area of 5 inches by ¾ inches.  The red mark was noticeable for about one year and thereafter was muted although still noticeable. The case proceeded by default.  The plaintiff was awarded $8,000.00 for non-pecuniary damages;

f)             In the 2010 decision of Otis v. Otis[72], a family member put wood alcohol on a fire which caused an explosion.  Extremely serious burns were caused to a nearby young child who came close to death as a result.  The child’s experience is not relevant for this case, but that of the parents’ is.   The mother suffered burns to her face, hands and thigh for which she was briefly hospitalized.  The pain caused by the burn to the thigh was particularly intense. The court found that her pain was most intense in the first month and then diminished progressively thereafter.  Slight scarring remained permanent and the skin sensitive.  The court emphasized the psychological trauma to the mother of having seen her child almost killed and the difficult hospitalization thereafter.  She was awarded $35,000.00 in non-pecuniary damages.  The father, who tried to save the child, suffered burns to his hands.  This necessitated a week in hospital, for which he suffered a great deal of pain over a month, which pain eventually subsided in the second month.  His burned skin remained sensitive to changes of temperature and he must be careful when he is doing certain work.  He also suffered emotional trauma as a result of the incident and the treatments his child had to undergo.  He was awarded $25,000.00.

g)            The 2007 Court of Appeal case of dental negligence of Brière v. Cyr[73] has particular relevance.  The 42-year-old victim underwent oral surgery to remove two teeth.  The lingual nerve was damaged and the victim continues to suffer from a lingual paresthesia i.e. a burning and tingling sensation to her tongue.  As a result, the victim suffers permanent pins and needles on her tongue and also experiences pain.  The Superior Court awarded $40,000.00 for pain and suffering and $42,000.00 for partial permanent incapacity.  This award was confirmed on appeal, but the Court of Appeal required that a global and not split amount for non-pecuniary damages should be awarded.  The IPP in this case was 7 percent.  This case bears certain similarities with regard to the damages in the present one and to show this, the Court cites two relevant paragraphs from the Court of Appeal judgment of Mr. Justice Marc Beauregard, speaking for the entire Court:

“[20]                L'appelant ne me convainc pas du fait que cette somme de 82 000 $ est exagérée si l'on tient compte de ce qu'a retenu le juge quant au préjudice non pécuniaire de l'intimée : Deux ou trois semaines après la chirurgie, la douleur s'est stabilisée au point où elle est aujourd'hui. La douleur est intense surtout dans ses périodes de névralgie. Pour soulager la douleur, elle prend du Neurontin et de l'Élavil tous les jours et du Motrin pour les périodes de névralgie, le tout sur prescription de son médecin de famille. Le Neurontin lui cause des étourdissements et entraîne parfois des pertes d'équilibre. Madame a même consulté à la clinique de la douleur à l'Hôpital Sacré Cœur, deux ans après les évènements.  Les picotements, la sensation de brûlure et la sensation d'avoir la langue épaisse sont permanents et ne se sont jamais modifiés. Les chocs électriques qu'elle ressent surviennent à peu près n'importe quand. Parfois, deux à trois fois par jour, parfois, elle peut ne pas en éprouver pendant plusieurs jours. Quand les chocs électriques surviennent, ils durent entre trente secondes et deux minutes. Lorsque la névralgie s'installe, elle sent sa langue se recourber comme une cuillère. La douleur part du creux de l'oreille droite jusqu'au bas du cou. Il arrive qu'elle soit incapable de parler et de manger. C'est comme si le côté de sa bouche était étiré au maximum et elle ne peut presque pas bouger sa mâchoire et sa langue. Pendant une longue période, Madame a dû se nourrir d'aliments mous et ne pouvait pas manger tout ce qu'elle aimait. De plus, le contact entre sa plaie et un aliment dur lui cause une sensation de choc électrique dans la langue qui peut persister pendant plusieurs heures.

[21]                L'appelant nous renvoie à quelques jugements] de la Cour supérieure où, par suite d'incidents similaires, les victimes ont obtenu des indemnités beaucoup moins importantes. Il est évident que chaque situation est un cas d'espèce et que, par suite d'un incident semblable, le préjudice non pécuniaire d'une victime peut varier de celui d'une autre. D'autre part, certains de ces jugements ne me paraissent pas très généreux.” (this Court’s emphasis).

[297]     In that case, the Court of Appeal double checked the reasonableness of the amount awarded by the trial judge by attributing an amount equal to ten dollars a day for the rest of the life of the victim and found that when this was done, the $82,000.00 amount was found to be reasonable.

[298]     The Court of Appeal also referred to the traditional comparative approach which consists of updating the worst case ceiling amount of $100,000.00 from the 1978 Supreme Court of Canada decision in Andrews v. Grand & Toy[74] to the indexed value for the relevant date and then, comparing that to the case at hand.  The Court of Appeal noted that the Supreme Court of Canada in Andrews confirmed that damages for non-pecuniary loss were not compensation for the loss of something but rather an amount by way of a consolation to make the life of the victim more bearable.

 

[299]     Since Ms Laflamme made reference to the thin skull doctrine and the defence referred to the crumbling skull doctrine, the Court now sets out the governing law in those areas.

 

The Thin Skull and the Crumbling Skull Doctrines

 

[300]     A leading Supreme Court of Canada case outlining these two doctrines is the 1996 judgment of Athey v. Leonati[75].

[301]     A very succinct summary of both of these doctrines, which are applied both in the common law provinces as well as Quebec[76], is found in the 2012 Ontario Court of Appeal decision of M.B. v. 2014052 Ontario Ltd[77] :

 

16.            The first argument put forward by the appellant is based on the “crumbling skull principle”.  The crumbling skull principle is derived from the familiar thin skull principle. Both principles speak to the extent of damages - not causation. The thin skull rule holds that a tortfeasor takes his victim as he finds him.  In other words, if as a result of a pre-existing vulnerability - a thin skull - a plaintiff suffers greater injury than an average person would, the defendant is nonetheless responsible for the full extent of the plaintiff’s loss: Athey, at para. 34.

 

17.            The crumbling skull rule on the other hand, applies to situations where the defendant’s act causes the premature or accelerated degeneration of the plaintiff’s pre-existing condition.  If there is a “measurable risk” that the condition suffered by the plaintiff would have affected the plaintiff in the future regardless of the defendant’s tortious act, the defendant will be liable for the effect of his act on the degenerative process.  However, the defendant need not compensate the plaintiff for any debilitating effects of the pre-existing condition that would have occurred in any event: see Athey, at para. 35. (this Court’s emphasis)

 

Analysis

[302]     The Defence Summary of Argument provides a succinct resume of Ms. Laflamme’s cross-examination as to the pain she suffers:

 

“À cet effet, le témoignage de la demanderesse est à l’effet que la douleur causée pas la soupe était d’un niveau de 12 à 13 sur une échelle de 15 au cours des deux premières semaines après l’incident du 14 août 1998 et qu’après, le niveau de douleur est descendu à un niveau d’environ 9 sur une échelle de 10. Cette douleur aurait perduré jusqu’à ce que la demanderesse consulte le Dr Grushka en mai 2003. Ou jusqu’au moment où la demanderesse reçoive le médicament prescrit soit du « Lamotrigine ». La douleur serait alors redescendue à un niveau de 5 à 6 sur 10 depuis ce temps;[78]

 

[303]     The Court understands from Ms. Laflamme’s cross-examination that the pain for the period following the meeting with Dr. Grushka to date, had been reduced to between 4 and 5 on a scale of ten.

[304]     As will be seen from the Court’s review of the evidence, Ms. Laflamme continues to experience the following symptoms that in the Court's view relate directly to the burn: (a) pain without the ingestion of food, (b) a stabbing pain in her tongue which occurs periodically and without warning, (c) certain loss of taste d) pain caused by the ingestion of certain foods and beverages.

The Court will now review chronologically the evidence regarding Ms. Laflamme’s symptoms from the time of the incident, which were clearly documented from the time of the incident.[79]

[305]     Firstly, pain was documented almost a year after the incident on June 11, 1999.[80]

[306]     On May 1, 2000 (which is well-over a year before the legal proceedings were instituted), Dr. Gilles Beauregard notes redness on the tongue and a loss of sensation in the tip of the tongue.[81]  In his report of September 11, 2000, Beauregard notes a burning sensation still continues.

[307]     The evidence now jumps to April 7, 2003 when Dr. Menard, Ms. Laflamme’s family physician, requests a consultation regarding her second degree burn.[82]

[308]     Next, in Dr. Menard’s letter of April 30, 2003 written before the consultation with Dr. Grushka on May 5, 2003, Dr. Menard confirms that the patient was still unable to taste and has lost the pleasure of eating.

[309]     In her examination on May 5, 2003, Dr. Grushka[83] noted a gag sensation, a total loss of bitter at the tip of the tongue with a hypersensitive response including gagging, a loss of sour at the tip of the tongue, a loss of the taste of bitter in the whole mouth and no sensation to the Q-tip application of ethanol, which normally produces burning pain in most people.

[310]     Slightly over a year later, on June 10, 2004, Dr. Menard reports to an insurer that Ms. Laflamme’s condition is “much improved” since 2003.

[311]     In her interview[84] now almost ten years after the incident, Ms. Laflamme still complained to Dr. Marc Guerin that she suffered from important pain and had no pleasure in eating.

[312]     The Court is mindful of the importance of damage to the tongue, the body organ responsible for the sense of taste.  Both food preparation and dining out are important aspects of life in Quebec.  Eating and eating out in particular were appreciated and very regular parts of Ms. Laflamme’s life prior to the incident: she has lost much of these pleasures.  The fact that this impact resulted from one spoonful of soup does not diminish the negative impact.

[313]     The important effect of an injury to a sensorial organ was summarized by Ms. Laflamme’s expert  psychiatrist, Dr. Pierre Laberge who in his report of September 29, 2007[85] said the following :

 

            « Le second point est le suivant : Nonobstant la fragilité ou la vulnérabilité propre à un sujet donné, certaines zones touchées au plan organique viennent porter atteinte directement à l’image de soi à cause du surinvestissement émotionnel qui leur est accordé.

Il est ainsi de toute atteinte sensorielle ou de toute forme de mutilation ou d’amputation.

D’autres exemples viennent à l’esprit : Défiguration, castration et dans certains cas atteinte cardiaque (le cœur étant non seulement un organe vital mais un organe hautement symbolique).

Ces considérations vous sont soumises afin de mieux faire comprendre ce que j’ai voulu dire dans mon rapport en parlant de blessure narcissique et de l’amputation symbolique d’un organe porteur de plaisir, en l’occurrence le plaisir gustatif, lequel n’est aucunement un parent pauvre, est aussi important que le plaisir cutané, le plaisir de la vue, le plaisir auditif ou tout autre forme de plaisir. »

 

[314]     The two most recent cases with certain similarities are Otis and Brière where non-pecuniary damages had a range of $25,000 to $82,000.

[315]     When the Court considers the evidence of Ms. Laflamme in relation to that of the plaintiff in the Brière case, there are certain similarities, (a) particularly as relates to the unpredictability of certain debilitating pain; (b) the types of discomfort: burning, pins and needles and lack of taste; and (c) Ms. Cyr was a 42 year old secretary at the time of the incident. However, the level of pain suffered by Ms Cyr as found by the court is more debilitating than in the present case, with worse side effects, for example, the fact that that person has periods when she is unable to speak or eat.  In these circumstances, the Court decides that a just and reasonable award for Ms. Laflamme for her non-pecuniary damages is $50,000 which must be reduced by 1/3 as a result of her contributory fault.

[316]     Accordingly, the Court’s award for non-pecuniary damages is for $33,333 payable to her by the Defendants solidarily.

 

Whether the Burn Was the Cause of the Depression

Governing Law

[317]     As we have seen, Ms Laflamme must prove that her inability to work was caused by the Defendants’ breach of obligations under the sale contract.

[318]     The evidence confirms that the reason for Ms Laflamme being away from work was not the burn but rather the depression that she suffered.  Accordingly, Ms Laflamme must prove on the balance of probabilities that the burn was the direct and immediate cause of the depression.  In the 2012 common law negligence case of Clements v. Clements, the Supreme Court of Canada decided:[86]

 

“46 […] A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss.  Scientific proof of causation is not required.”

[319]     As far as the present case is concerned, while a level of scientific proof is not required for causation, causation must nonetheless be proved by the Plaintiff, on the balance of probabilities using the legal sources of evidence available under Quebec civil law.[87] Accordingly, Ms Laflamme must prove on the balance of probabilities that the burn directly and immediately caused the depression.

[320]     It is only after such causality has been proven on the balance of probabilities that the court needs to evaluate the damages.  In such a context, it may have to evaluate certain “future or hypothetical possibilities”[88], such as the potential age of retirement for loss of income calculations. As the Supreme Court of Canada ruled in Athey:

“A future or hypothetical possibility will be taken into consideration as long as it is a real possibility and not mere speculation”.[89]

[321]                In the Re-Amended Declaration of March 15, 2013, Ms. Laflamme alleges that the burning soup caused her physical symptoms which in turn caused her depression which prevented her from ever returning to work. She has been off work since the time of the incident until her forced retirement on October 3, 2006.

[322]    Since these damages arise out of a contract of sale i.e. the sale of the hot soup, consideration must be given to the following Civil Code of Quebec articles:

 

Art. 1607. Le créancier a droit à des dommages-intérêts en réparation du préjudice, qu'il soit corporel, moral ou matériel, que lui cause le défaut du débiteur et qui en est une suite immédiate et directe.

  

  Art. 1607. The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor's default.

Art. 1613. En matière contractuelle, le débiteur n'est tenu que des dommages-intérêts qui ont été prévus ou qu'on a pu prévoir au moment où l'obligation a été contractée, lorsque ce n'est point par sa faute intentionnelle ou par sa faute lourde qu'elle n'est point exécutée; même alors, les dommages-intérêts ne comprennent que ce qui est une suite immédiate et directe de l'inexécution.

  

  Art. 1613. In contractual matters, the debtor is liable only for damages that were foreseen or foreseeable at the time the obligation was contracted, where the failure to perform the obligation does not proceed from intentional or gross fault on his part; even then, the damages include only what is an immediate and direct consequence of the non-performance.

[323]    As the doctrine requires, compensatory damages are only awarded where a plaintiff can prove the existence of three inter-related elements: “un fait générateur (l’inexécution ou faute contractuelle,), un préjudice, ainsi qu’un lien de causalité entre les deux”.[90]

[324]    Art. 1458 C.C.Q. requires that where a party fails to honour their “contractual undertakings”, they are “liable for any bodily, moral or material injury” caused to the other contracting party.  That same article notes that the Legislator has made a matter of public order that the contracting parties may not exclude their liability for personal injury.

[325]    The Court agrees with the doctrine that the criteria of foreseeability imposed by art. 1613 C.C.Q. is not applicable to personal injury cases. As mentioned by the authors Jobin and Vézina at p. 933 :

« Par ailleurs, il convient d’appuyer la position doctrinale selon laquelle la règle relative à la prévisibilité ne trouve pas application en matière d’indemnisation du préjudice corporel.  Il serait, en effet, pour le moins paradoxal de donner un rôle à la volonté des parties à travers l’exigence du caractère prévisible du préjudice, alors même que le législateur écarte la portée de cette volonté en matière de clauses d’exonération ou de limitation de responsabilité (art. 1471, al. 2 C.c.Q)[91]. »

[326]    Accordingly, the burden remaining on the Plaintiff is to show that her damages were: “the immediate and direct consequence of the debtor’s default”.

[327]    The author Gardner notes that because of the indefinite meaning of these two words “immediate” and “direct”, Quebec law has a “coexistence de plusieurs théories de la causalité” and underscores “la très large discrétion laisse aux tribunaux en ce domaine”[92]

[328]    The authors Jobin and Vézina note also from their study of the jurisprudence that it is difficult, if not impossible, to generalize other than to say that the courts look at the specific circumstances of each case and that the matter is a question more of fact than of law - which provides a large discretion to the trial courts.[93]

[329]    In 1997, the Quebec Court of Appeal[94] provided guidance by referring to the following principles from the 1996 Supreme Court of Canada case of Athey v. Leonati, [1996] 3 S.C.R. 458:

"…

  1.  Le critère général, quoique non décisif, en matière de  causalité est celui du «facteur déterminant» («but for test»), selon lequel le demandeur est tenu de prouver que le préjudice ne serait pas survenu sans la négligence du défendeur: Horsley c. MacLaren, [1972] R.C.S. 441 .

 

  1.  Comme le critère du facteur déterminant n’est pas applicable dans certaines circonstances, les tribunaux ont reconnu que la causalité était établie si la négligence du défendeur avait «contribué de façon appréciable» au préjudice:  arrêts Myers c. Peel County Board of Education, [1981] 2 R.C.S. 21 ; Bonnington Castings, Ltd. c. Wardlaw, [1956] 1 All E.R. 615 (H.L.); McGhee c. National Coal Board, précité.  Un facteur concourant est important s’il a eu une incidence plus que minimale: arrêt Bonnington Castings, Ltd. c. Wardlaw, précité; voir aussi R. c. Pinske (1988), 30 B.C.L.R. (2d) 114 (C.A.C.-B.), conf. par [1989] 2 R.C.S. 979 .

16.   Dans Snell c. Farrell, précité, notre Cour a récemment confirmé que le demandeur doit prouver que la conduite délictueuse du défendeur a causé ou contribué à causer le préjudice.  Le critère en matière de causalité ne doit pas être appliqué de façon trop rigide.  La causalité n'a pas à être déterminée avec une précision scientifique.  Comme l’a dit Lord Salmon dans Alphacell Ltd. c. Woodward, [1972] 2 All E.R. 475, à la p. 490, passage cité par le juge Sopinka  à la p. 328, il s’agit «essentiellement [d’] une question de fait pratique à laquelle on peut mieux répondre par le bon sens ordinaire».  Bien que la charge de la preuve incombe au demandeur, une inférence de causalité peut être tirée, dans certaines circonstances, même en l’absence de preuve scientifique positive. "

[330]    Proving causality is a critical element particularly in personal injury cases, as is  underscored by legal authors:[95]

 

« Dans le cadre de la préparation d’un procès où de telles questions se soulèvent (N.D.R. : Question de causalité) il est primordial pour l’avocat de s’assurer d’approfondir tous les éléments de preuve disponibles qui peuvent avoir une pertinence sur la détermination du lien causal et, le cas échéant, l’incidence d’une condition préexistante sur l’évaluation du dommage, notamment avec les experts qu’il fera témoigner lors du procès.  Au procès, l’avocat devra s’assurer de mettre en preuve tous les éléments qui soutiennent sa thèse quant à ces questions et d’en souligner adéquatement l’importance lors de la plaidoirie.  Une preuve insuffisante ou autrement déficiente sur la question de la causalité peut avoir un impact déterminant sur l’issue de la cause ».

[331]    Finally, the Supreme Court of Canada undertook an extensive review of the issue of causality in the well-known case of Laferrière v. Lawson[96]. That case involved medical malpractice but this Court considers what the Supreme Court of Canada decided regarding causality to be equally applicable in the present case regarding breaches of contract, with the necessary modification to the first observation that proof of the breach, as opposed to fault, is what is required in the present case.  The Supreme Court of Canada ruled: 

« Pour résumer, je formule les brèves observations générales suivantes:

o    Les règles de la responsabilité civile exigent la preuve de la faute, de la causalité et du préjudice.

o    Les actes et les omissions peuvent constituer une faute et les deux sont soumis à la même analyse pour ce qui a trait à la causalité.

o    La causalité en droit n'est pas identique à la causalité scientifique.

 

o    La causalité en droit doit être établie selon la prépondérance des probabilités, compte tenu de toute la preuve, c'est à dire la preuve factuelle, la preuve statistique et les présomptions.

o    .Dans certains cas, lorsqu'une faute comporte un danger manifeste et que ce danger se réalise, il peut être raisonnable de présumer l'existence du lien de causalité, sous réserve d'une démonstration ou d'une indication contraire.

o    Une preuve statistique peut être utile à titre indicatif, mais elle n'est pas déterminante.  Plus précisément, lorsqu'une preuve statistique n'établit pas la causalité selon la prépondérance des probabilités, la causalité en droit peut quand même exister lorsque l'ensemble de la preuve étaye une telle conclusion.

o    Même si la preuve statistique et la preuve factuelle ne justifient pas de conclure à l'existence de causalité, selon la prépondérance des probabilités, à l'égard d'un préjudice particulier (c'est à dire le décès ou la maladie), ces mêmes preuves peuvent justifier de conclure à l'existence de causalité à l'égard d'un préjudice moindre (par exemple, un léger abrègement de la vie, une augmentation des souffrances).

o    Il faut analyser la preuve avec soin pour déterminer la nature exacte de la faute ou du manquement à un devoir et ses conséquences de même que la nature particulière du préjudice subi par la victime.

o    Si après considération de ces facteurs, le juge n'est pas convaincu, d'après son évaluation de la prépondérance des probabilités, que la faute a causé un préjudice réel quelconque, il doit rejeter la demande d'indemnisation. »

[332]    Regarding the concepts of fault, causation, presumptions and burden of proof, the Supreme Court of Canada has further confirmed the following relevant principles established in the 2002 judgment of St-Jean v. Mercier[97]:

 

a)            The determination of fault by the trial court is a mixed question of fact and law;

b)            On the contrary, the determination of causality by the trial court - in other words, whether the breach of contract caused the damage - “legally significant in an evidentiary sense” - is a question of fact;

c)            Presumptions may be used to prove causality but, as required by article 2849 C.C.Q. these presumptions must be “serious, precise and concordant”.  If the plaintiff cannot meet these criteria for the presumptions they assert, “the plaintiff must actually establish the unknown facts rather than the trier of fact permit it to draw an inference from the known fact to the unknown fact”;

d)            Presumptions of fact  can establish both fault and causation;

e)            Presumptions of fact are of little use to a plaintiff where expert evidence is disputed “since it will not be sufficient to assert that the fault is one of the possible causes” (this Court’s emphasis); and

f)             The loss of a “mere chance” even where it is “more than a simple possibility” is not determinative of causation unless it meets the balance of probabilities standard. 

            Analysis

[333]     In the weeks following the incident, Ms. Laflamme was diagnosed by her family physician as being in a depression.  He provided her with a medical certificate allowing her to be absent from work.  She has never worked a day since and her employment ended with the City of Montréal in 2006.

[334]     An exceptional quantity and quality of expert evidence was adduced by the parties on the issue of whether the depression had been caused by the alleged burning.

[335]     As noted earlier, there is no legal presumption of causality under Québec law even though the depression may have been diagnosed very shortly after the incident.  The burden of proof remains on Ms. Laflamme to show that the breach of obligations was the direct and immediate cause of the depression which prevented Ms. Laflamme from ever returning to work.

[336]     As appears from the following analysis, Ms. Laflamme has not been able to do this:

a)            while there was an attempt to diminish this evidence, the Court is satisfied that Ms. Laflamme had multiple stressful issues connected with her work, has experienced some psychological issues prior to the incident which were completely unrelated to the incident and that in fact, she was in a depressive state just prior to the incident;

b)            In the weeks and months after the incident and even up to July 3, 2000, none of Ms. Laflamme's treating physicians, including two psychiatrists, made any connection in their reports to the incident being a direct and immediate cause of the depression; and

c)            in fact it is only after Ms. Laflamme has instituted her legal proceedings that her treating psychiatrist reports for the first time that the burning of the mouth may be a cause of the depression.  The Defendants correctly argue that it is from this time forward that Ms. Laflamme, in her interviews with many of the physicians that examine her, begins herself to focus on the alleged connection between burn and depression.

[337]     The original diagnosis of depression was made by Ms Laflamme’s treating physician Dr. Menard on or about August 29, 1998, 15 days after the incident.  He referred Ms Laflamme to a psychiatrist, Dr. Berthiaume who came to the same diagnosis.  Two of Dr. Berthiaume’s reports have been filed: October 7, 1998 and June 3, 1999.  In his first report - he sees Ms Laflamme approximately six weeks after the incident - there is no indication that she made any mention of the burn.  He notes that he had seen her some ten years previously but at that time she had no symptoms of any depression and was simply treated with relaxation therapy.

[338]     Importantly, he notes that Ms Laflamme had presented with symptoms of depression for approximately one year.  He diagnoses a dysthymic disorder which he says has set in over four years.  He notes that she stopped working in mid-August at which time he says “she was not very dysfunctional” (translated from original French).  He recommended she follow a course of psychotherapeutic treatment and suggested that a return to work in one month was possible.

[339]     On May 3, 1999, there is a reference in the medical file that Ms Laflamme requested that her treating physician find her a psychiatrist other than Dr. Berthiaume.[98]

[340]     Despite this, she sees Dr. Berthiaume again and he prepares his second report dated June 3, 1999.[99]  In his second report, Dr. Berthiaume indicates that Ms Laflamme is a person with certain vulnerability.  He notes that since her automobile accident, she presents with chronic symptoms of depression.  He notes that she has probably always had low self-esteem, that she values herself principally by her work and of what others think of her.  He notes that she « raconte une liste impressionnante de doléances envers son employeur ».  As for his diagnosis, he indicates that it is difficult to determine if Ms Laflamme has a dysthymic disorder or major depression - which has sprung from a dysthymic disorder and which has become chronic.  Although he sees her only seven months after the incident, no mention is made in Dr. Berthiaume’s report of the burn.

[341]     Next come a series of psychiatric reports which were prepared for Ms. Laflamme’s disability insurers.

[342]     Hence, these experts’ reports were not produced directly for this litigation.

[343]     The jurisprudence is clear that, subject to the right of a party to request the attendance at trial of the experts, the fact that the reports were prepared in a context other than the specific litigation does not render them inadmissible.  Provided that the reports are relevant, that they assist the trier of fact in deciding relevant issues, that they are not subject to other exclusionary rules and that the qualifications of the expert are satisfactory,[100] they are admissible.  On this basis the reports of Drs. Houle, Aubut and Berard are admitted.

[344]     Psychologist Dr. Houle prepared a report on April 4, 2000 for the Sun Life Insurance Company.  In her very lengthy report, Dr. Houle explained how Ms Laflamme had gone on at length in her interview with Dr. Houle about the problems that she had experienced at work including the fact that in the year before the incident, Ms. Laflamme felt “vidée d’énergie et à bout de souffle” .  Apparently, Ms Laflamme explained to her that in this period, Ms. Laflamme would cry in the metro while going to work.  Again according to Ms Laflamme, the “element déclencheur” occurred in May 1998 when she was babysitting her young nephew who was injured in the foot as a result of an incident involving garden machinery.  This injury apparently occurred in May, 1998.  It was following this accident to her nephew that Ms Laflamme began to have memory problems.  At about the same time, Ms Laflamme’s supervisor went on sick leave and was replaced by an individual who made a disparaging remark to Ms Laflamme, intimating she was not sick when she took off a days work on the day of the incident. 

[345]     In Dr. Houle’s report (p.5), she recounts that Ms Laflamme told her that when Ms Laflamme returned from her vacation in August, 1998, she was suffering from laryngitis and pharyngitis.

[346]     Dr. Houle mentions the burn in a short two sentence paragraph.  Ms Laflamme notes she received a second degree burn while taking “a cup of coffee” at Tim Hortons and that afterwards she could not eat and had suicidal ideas.[101] 

[347]     Dr. Houle mentions that Dr. Nowakowski had referred Ms Laflamme to a psychotherapist, with whom Ms Laflamme was not satisfied and discontinued seeing. 

[348]     Under the heading « État psychologique et discussion », Dr. Houle indicates that Ms Laflamme has « une réaction anxio-dépressive qui se caractérise par un affect dépressif ».  She says further that Ms Laflamme has a « trouble de la personnalité dépendante avec des traits obsessionnels-compulsif ». She says that this « trouble de la personnalité » has been in existence for several years and that effectively Ms Laflamme has had « des problèmes relationnels depuis le début de l’âge adulte ».  According to Dr. Houle, the automobile accident caused « son monde à basculer » and « l’événement de l’accident de son neveu a servi d’élément déclencheur chez une dame qui avait déjà atteint son trop plein ».[102]

[349]     Dr. Houle opines that Ms Laflamme may return to work after 10 to 15 more psycho-therapy sessions.

[350]     On July 15, 2000, Dr. Nowakowski writes a report to the Sun Life Insurance following his review of Dr. Houle’s report.[103]  Dr. Nowakowski agrees that Ms Laflamme has a “trouble de la personnalité” and he agrees with Dr. Houle’s diagnosis but he disagrees that Ms Laflamme is ready to return to work after 10 or 15 psycho-therapy sessions.  In his 3 page report, he makes no mention of the burn incident.

[351]     He notes that he first saw Ms Laflamme in September 1999 and that based on his recommendation, she had begun her psychotherapy sessions in December 1999 with a very experienced psychotherapist.  He notes that “lorsque des individus présentent un trouble de personnalité de cette ampleur et qu’il se produit une décompensation et un effondrement du mécanisme de défense, comme cela est arrivé avec Madame Laflamme » 10 to 15 psycho-therapy sessions are not sufficient.  He recommends rather 18 to 24 months of pyscho-therapy.

[352]     Less than a month later, on July 3, 2000, Dr. Berard, also a psychiatrist meets Ms Laflamme to prepare a report for the Desjardins-Laurentienne Life Insurance Company.  Dr. Berard - like Doctors Aubut and Lafleur, did not testify: both counsel agreed that the Court could rely on their experts’ reports as filed.

[353]     Dr. Berard met with Ms Laflamme for an hour and a half. 

[354]     Dr. Berard devotes an entire paragraph to the burn incident.  He says that Ms Laflamme advised him that as a result of the pain caused by the second degree burn, she could not eat or sleep properly for several weeks because of the pain.  He then notes : « les symptômes dépressifs qui étaient déjà présents depuis quelques mois seulement auraient alors augmenté dramatiquement et un état dépressif en bonne et due forme aurait été reconnu vers la fin du mois d’août ».[104]  

[355]     He opines that she is not able to return to work and, amongst others, suggests electroshock therapy.

[356]     He notes that the principal stress factor was the death of Ms Laflamme’s father but that at present, the illness of her sister is another stress factor. He mentions nothing of the burn as being in any way the cause of the depression she is suffering.

[357]     Psychiatrist Dr. Paul-André Lafleur was asked to prepare an expert report by the Sun Life Insurance Company.  Dr. Lafleur interviewed Ms Laflamme on February 21, 2001.

[358]     Dr. Lafleur notes that in the medical files he reviewed, Ms Laflamme presented with symptoms of depression as early as 1997 and that at the time of these reports, Ms Laflamme was in agreement with this diagnosis.

[359]     He notes that this perception by Ms Laflamme has changed and he says[105] :

 

“Ses souvenirs et sa perception des choses se sont simplifiés et altérés de façon telle qu’elle est maintenant persuadée  que ses problèmes [ed. note : of depression] ont commencé lorsqu’elle s’est brûlée la langue en mangeant une soupe dans un restaurant le 14 août 1998.  Elle reproche d’ailleurs vivement au médecin de ne pas s’occuper suffisamment de ce problème physique qui serait seul à l’origine de son état actuel.”

[360]     Dr Lafleur underlines that Ms Laflamme remains tormented by the problems with her tongue which include pain, loss of taste and insensitivity on certain parts of her tongue.

[361]     Dr. Lafleur says there were other stressors, for which Ms Laflamme minimizes the importance,  but which are nonetheless relevant :

a)            the degenerative disease of her father which lasted several years before he passed away in July 1999; and

b)            a series of factors including the stress concerning her work, the difficulties Ms Laflamme experienced with a condition called “tyroïdite d’Hashimoto”, her feeling that she had not benefited from good parenting and that she was misunderstood and not properly appreciated at work.

[362]     According to Dr. Lafleur, there were a series of factors that lead to her depression including the deteriorating health of her father and his passing, her mother’s death, and the chronic pain Ms. Laflamme suffered after the incident. 

[363]     However, according to Dr. Lafleur, the main cause of the depression was related to her stress at work because of the tremendous importance she placed on her work and the fact that it became the centre of her life.

[364]     In conclusion, Dr. Lafleur opined that Ms Laflamme should remain off work for a period of from 3 to 6 months and that a gradual reintegration be attempted thereafter.

[365]     On August 29, 2001, Ms Laflamme initiates her court proceedings.

[366]     Approximately 9 months after, in a medical report dated May 15, 2002,[106] Dr. Nowakowski for the first time in a written report notes “des facteurs déclenchants de la depression des elements plus contemporains” which he particularizes as work difficulties experienced in 1997 and 1998 as well as the burn caused to the tongue which continues to cause continual pain and loss of taste.[107]  He goes on to say that if Ms Laflamme’s depression continues, it is not because of these two “facteurs de perpetuation” but rather because of “des facteurs prédisposants, une depression caractérologique étant un type de depression qui est relativement long à surmonter”.  He also appears to change his original diagnosis and now says there is “absence de troube de personnalité, selon les critères DSM IV”.

[367]     The next psychiatric reports are also those of Dr. Nowakowski.  Instead of being reports from the treating physician, both are headed “expertise psychiatrique” and are dated respectively January 20, 2006 and August 3, 2006.  The first report was requested by Ms Laflamme who asked Dr. Nowakowski to determine the role that the burn played in the appearance and evolution of her depression.  The second report was written to support Ms Laflamme’s request for disability payments from the Régie des Rentes du Québec. 

[368]     In the first report which specifically requested an opinion on causality, Dr. Nowakowski began by confirming the difficulty in being precise on the causes of Ms Laflamme’s depression.  The Court cites the all important second paragraph of his report as follows :

 

“Il a été difficile de préciser les causes de sa dépression.  De manière générale, le tableau clinique était celui d’une dépression qui est survenue suite à des événements auxquels elle n’a pas pu s’adapter à cause de mécanismes de défense fragiles, secondaires à un trouble de personnalité.  Cependant, avec le temps, Madame Laflamme a parlé de plus en plus d’un événement survenu en août 1998, soit le fait qu’elle s’est brûlée la langue en mangeant une soupe très chaude dans un restaurant.  Il est devenu apparent que cette brûlure, qui a entraîné des séquelles permanentes sous forme de douleur et de perte de goût, a été un élément déclencheur important dans sa condition dépressive”  

(this Court’s emphasis).

[369]     At page 3 of his report, Dr. Nowakowski underlines that on January 10, 2002, Ms Laflamme talked to him with much insistence regarding the burning of her tongue in 1998.  Dr.  Nowakowski indicated that she had spoken to him about this burn in previous months but only as a simple fact to which she attached very little importance.  However he notes that this time, she spoke with much emotion regarding the depressive effect of this event and how she perceived herself as a victim of an event which caused her irreversible damage. He said the following:

Pendant les mois qui ont suivi elle [ed. note : Ms. Laflamme] m’en a parlé avec beaucoup d’insistance, comme si elle ne croyait pas que je puisse accepter cet événement comme un élément important dans son histoire, et comme si elle voulait à tout prix me convaincre de l’impact négatif et irréversible de cet événement »

[370]     Furthermore at page 6 of his report Dr. Nowakowski says this regarding the time delay for Ms Laflamme to raise the issue of the burn:

 

« Il est difficile de préciser pourquoi elle ne m’en a pas parlé avant [Ed note : i.e. the causal link between burn and depression], mais il demeure que la première fois qu’elle a sérieusement abordé le sujet avec moi, ce fut d’une manière défensive tout comme si elle était convaincue en partant que je ne la croirais pas.  Je crois que cette attitude défensive était surtout transférentielle ».

 

[371]     From his evidence at trial, the Court understands at the time he prepared these expert’s reports in 2006, he was not aware that Ms Laflamme had taken legal proceedings.  Accordingly, Dr. Nowakowski had no way of knowing what if any influence the taking of these proceedings may have had on this new assertive approach taken by Ms Laflamme that the burn caused her depression.

[372]     Later in the January 19, 2002 report, Dr. Nowakowski opines that the burning of the tongue was an important influence in the aggravation of the condition of depression and in fact rendered it more chronic.  He bases this opinion on four findings:

a)            that the depression got dramatically worse right after the burn.  However, he does say that this chronological relationship does not automatically mean a causal one;

b)            that if a stressor is an important one it will return and take over the thoughts of the victim and will aggravate the depression.  He says this is what is happening with Ms Laflamme.  If so, the Court, on the other hand, is led to ask the following question: If the burn was such an important stressor, then why did it not pre-occupy the thoughts of Ms Laflamme in the years preceding the initiation of the court actions?

c)            chronic pain causes a depressive reaction; and

d)            there is no other explanation that is more probable.  With due respect, the Court is not convinced of this factor.  For a presumption to have weight at law, it must be serious, precise and concordant.  The laconic explanation by Dr. Nowakowski that there is simply no more probable cause - without more analysis - is not probative.

[373]     The Court now turns to Dr. Nowakowski’s expert opinion dated August 3, 2006.  The Court appreciates that because this report was written for the RRQ, his opinion on the specific issue of causality was not directly requested. 

[374]     Nonetheless, the Court notes that this subsequent report does not contain the same strong finding on causality.  For example, reviewing the second paragraph of page 1 of this second report in 2006 which mirrors the second paragraph in the earlier January 20, 2006 report[108] this subsequent report does not place the emphasis on the burn as being an important precipitating cause of the depression:

 Il a été difficile de préciser les causes exactes de sa dépression.  On note en premier lieu certains éléments difficiles au niveau de son enfance.  De manière plus récente, on notait des difficultés interpersonnelles au travail, et le fait qu’elle avait plus de difficulté à gérer ces difficultés, justement à cause de mécanismes adaptatifs fragiles secondaires aux difficultés en enfance.  Enfin, en août 1998 elle a souffert d’une brûlure accidentelle au niveau de la langue, et depuis ce temps elle présente une douleur chronique à ce niveau, ainsi qu’une perte de goût ”.  

 

[375]     In his report of August 3, 2006, Dr. Nowakowski indicates he has seen Ms Laflamme on 28 occasions between September 1999 and May 2006.  He says further that it is not clear when the symptoms for this depression began.  However it seems that she did have certain symptoms of the depression before the incident but these were not of a severity which would prevent her from working.  He does say that following August 14, 1998, the problems with depression became much more important.

[376]      Dr. Nowakowski notes that in 1997, Ms Laflamme was using four antidepressant medications which were of no assistance.  He confirms that the burning of her tongue occupied “an important place” in Ms Laflamme’s thoughts.  He further confirms that the depression, although in partial remission, will prevent her from ever returning to work.

[377]     The Court underscores that in 2006 there is an emphasis by Dr. Nowakowski on the burn being the triggering event for the depression, an assessment which is notably absent from his earlier medical reports.

[378]     In 2007, two expert psychiatric reports are completed by Dr. Pierre Laberge, the first on behalf of the Régie des Rentes du Québec dated July 14, 2007 and the second for Ms Laflamme’s counsel, dated September 29, 2007.

[379]     Dr. Laberge makes reference to the burn. His report indicates that according to an investigation that was done, the soup had been heated to 2000 F. and that Ms Laflamme referred to the soup as a “bombe ambulante”. His interview with Ms Laflamme lasted for one hour.

[380]     Dr. Laberge reviews the reports of various earlier psychiatrists including that of Dr. Paul-André Lafleur dated February 26, 2001.  From that report, he cites Dr. Lafleur as saying that Dr. Nowakowski as treating physician “faisait état d’une tyroïdite d’Hashimoto comme antecedent important.

[381]     Dr. Laberge notes :

« En résumé, nombreux éléments réunis pour entretenir la confusion en ce qui a trait aux principaux motifs d’invalidité ».

[382]     Dr. Laberge determines that Ms Laflamme is permanently disabled from returning to work due to chronic depression.

[383]     The Court cites the following from Dr. Laberge[109] :

Au fil des neuf dernières années, à mesure que cette employée municipale voyait s’éloigner toute perspective de retour au travail, elle s’enfonçait dans une sorte de dépendance avec ruminations morbides alimentées par une documentation de diverses sources sur la brûlure de la langue et ses avatars. “

Neuropsychologists’ Evidence

 

[384]     The Court now turns to the competing expert reports from the parties’ neuropsychologists.  On behalf of Ms. Laflamme, Dr. Micheline Favreau prepared a 20-page report dated April 10, 2008, almost 10 years after the incident and for the defence; Dr. François Crépeau prepared a report of 23 pages dated February 21, 2009.

[385]     Dr Favreau was mandated to determine if the burn to the mouth caused the psychiatric and neuropsychiatric consequences that Ms Laflamme experienced and if there was such causation, to evaluate it.  Dr. Favreau undertook a lengthy review of the medical file and reports as well as interviewing Ms Laflamme.  She made extensive reference to reports of the Ms. Laflamme’s other specialists: Neurologist Rousseau and Oral Pain Specialist Grushka.

[386]     Dr. Favreau performed various neuropsychological tests (as did Dr. Crépeau after her) for memory, attention and “cognitive regulation”.

[387]     From a neuropsychological perspective, Dr. Favreau determines that Ms Laflamme has significant cognitive disturbances, has problems with attention and concentration, and has difficulty with her working memory at both verbal and visual levels.

[388]     At page 19 of her report, Dr. Favreau indicates that Ms Laflamme had not received any psychiatric or psychological treatment prior to the burn incident.  This is not correct.  As has been seen earlier, Ms Laflamme did see Dr. Berthiaume 10 years before the incident and certainly had been dealing with psychological issues, in part for which she had been treated in 1997 with medication that was not useful.

[389]     The Court cites the following from Dr. Favreau’s report which resumes her final position :

« En effet, la brûlure subie à une zone corporelle déjà émotivement surinvestie  en raison de la condition congénitale, la douleur chronique, le manque d’empathie du restaurateur ainsi que la difficulté à trouver des traitement efficaces ont empêché madame Laflamme de dépasser l’événement et de reprendre le fils de sa vie.  Il y a donc une relation directe entre la brûlure subie le 14 août 1998 et les perturbations de son fonctionnement personnel, social et occupationnel.  Presque dix ans après l’événement, ces perturbations sont permanentes. »

 

[390]     As with Dr. Favreau, the analysis prepared by Dr. Crépeau was remarkable for its detail.

[391]     Like Dr. Favreau, Dr. Crépeau reviewed the medical file, other experts’ reports, interviewed Ms Laflamme and undertook testing with her.

[392]     Dr. Crépeau concludes at page 18 of his report that it is difficult to clearly identify the connection between the burn and the actual mental state of Ms Laflamme.

[393]     Dr. Crépeau used the following methodology: he classified contributing factors as predisposing, precipitating or perpetuating and within each of these categories; he had a gradation from 1 to 5 as to the influence of the factor.

[394]     Dr. Crépeau’s report is best summarized at page 22 where he says :

 

« Mais il existe une si grande quantité de facteurs qui peuvent rendre compte de l’état dépressif de cette dame qu’il ne nous est pas possible de reconnaître une relation linéaire entre la brûlure, l’état dépressif chronique et la légère perte d’efficience cognitive.  Cette légère perte pourrait tout aussi bien s’expliquer par la longue période d’inactivité (e.g. ne travaille plus depuis dix ans, ne lit plus car elle s’en dit incapable). »

 

[395]     The final report by a psychiatrist was done by defence expert Dr. Marc Guérin[110] and is dated August 10, 2009.  Dr. Guérin received a mandate from the defence to evaluate the psychiatric repercussion of the burn.  He interviewed Ms Laflamme on May 21, 2008.  Dr. Guérin concludes that the burn incident contributed to the “anxio-depressive” state of Ms Laflamme but was an accessory contributing factor rather than the cause of her “anxio-depressive” state.

[396]     Qualified as an expert in psychiatry, Dr. Guérin nonetheless took it upon himself to express opinions beyond that field of expertise.  The following example at page 13 of his report will suffice :

 

« Certains spécialistes sont arrives à la conclusion que cette brûlure pouvait être tenue responsable des symptômes allégués par madame alors que d’autres ont émis l’opinion que ces symptômes pouvaient être davantage expliqués par la présence d’un important muguet à la bouche apparu à la même époque.  Je ne suis pas qualifié pour me prononcer sur cet aspect du dossier, mais lorsque je regarde l’ensemble, il m’apparaît que les allégations de cette réclamante quant aux causes de sa symptomatologie sont plus ou moins crédibles »

 

[397]     Ms Laflamme has had both her physical and mental states analyzed over a lengthy period of time by an impressive number of experts.  This trial was a focal point wherein this extensive evidence was adduced before the Court.

[398]     Life is not fair and this case exemplifies that adage.  There is no doubt that Ms Laflamme has lived a difficult life, and overcome many challenges thrown her way.  She has had to look after ailing parents; she has had to deal with surgeries involving her mouth; she has confronted challenges in her work place; she has undergone two important automobile accidents which kept her away from work for a total of approximately two years and then, there was the burn incident. 

[399]     The Court had occasion to observe Ms. Laflamme throughout the two week trial.  She was a consistent and interested participant throughout.

[400]     One cannot but be empathic to all that Ms. Laflamme has undergone. It is natural for her to seek to find someone or something responsible for the downturn her life took in the weeks after the burn incident when depression prevented her from ever again returning to work.

[401]     To find fault and provide compensation, the burden of proof is on Ms Laflamme to prove on the balance of probabilities that the depression was directly and immediately caused by the burn.

[402]     Following its review of all of the evidence, the Court determines this burden has not been met.  The evidence of Doctors Favreau and Nowakowski on Ms Laflamme’s behalf is directly contradicted by equally credible evidence from the Defence experts.

[403]     The evidence discloses and the Court decides that while the major depression was diagnosed shortly after the burn, the burn was not the material cause.  This depression had begun previously. 

[404]     Accordingly, this is not a case for the application of the “thin skull doctrine”, since for that doctrine to apply, causation must first be proven, which is not the case here.[111] 

[405]     Even for Ms Laflamme, the burn only appears as the principal cause for the depression years after the event and close to the time when Ms Laflamme instituted legal proceedings.  .  Dr. Nowakowski was and is the treating physician as well as the expert. His earlier reports show - by their lack of any of any reference to causality between the burn and the depression - that this linkage was in neither Ms. Laflamme’s mind nor his, in the first years immediately after the incident. He does not seem to have been made aware of the nascent depression that Ms Laflamme was beginning to experience as recently as 1997.

[406]      The Court implies no bad faith on the part of Ms. Laflamme, but rather this natural human tendency to find someone responsible.

[407]     The Court has considered the issue of whether - as a result of the passage of time - causation just naturally, but correctly, became clearer for both Ms Laflamme and Dr. Nowakowski in 2006, some 8 years after the original incident.  Even if this were so, the burden is still not met as a result of the equally credible expert evidence of the defence which concludes that the burn was not directly and immediately the cause of the depression.

PECUNIARY DAMAGES

[408]     Both counsels stipulated that their respective expert expenses (judicial and extra-judicial) be considered as damages (and if the Defendants had prevailed, as damages in a counter-claim). Since there was no agreement as to when interest should start to run on these particular pecuniary damages, the Court uses its discretion under art. 1618 CCQ to find that interest starts from the date of judgment for these damages only.

[409]     For the reasons given in the next section, Ms Laflamme is not entitled to the professional fees for her actuary.  However, as per Exhibit P-52, Ms Laflamme is entitled to her pecuniary damages for expert fees in the amount of $36,121.59.

 

INTEREST AND INDEMNITY, AND COSTS

 

[410]     The Defendants assert Ms Laflamme’s action was begun on August 7, 2001 and that the Court should use its discretion under art. 1618, C.C.Q. to advance the date from which any interest and indemnity are awarded.

[411]     The general rule is that interest and indemnity start from the date of the initial demand. In this case, the original demand letter was dated Aug. 4, 1999 and was sent by Ms. Laflamme herself to both Defendants.  She demanded damages of $30,000.[112]

[412]     The Court notes from the minute book of the court clerk ("plumitif") that Ms. Laflamme's then counsel filed a Declaration for Fixing on the Role and an inscription on July 25, 2005.

[413]     Thereafter, Ms Laflamme substituted her present trial counsel for her previous attorneys on March 17, 2006,

[414]      Thereafter, throughout 2007-2008 there were numerous productions of experts' reports ending up with the inscription being struck on June 6, 2008.

[415]     In the subsequent months, more expert reports were filed and a second Inscription was filed on Feb. 10, 2010 followed by a Joint Declaration on August 12 2010.

[416]     The Defendants argued, without prejudice to their defence, that any interest and indemnity should only start from when the Plaintiff’s trial counsel (who took over from previous attorneys) were substituted into the file on March 17, 2006.  After this date, the Defendants assert that the file moved forward with reasonable expedition.

[417]     The Court of Appeal has confirmed that a plaintiff has a responsibility to bring their case to hearing within a reasonable period of time and should not benefit from interest and indemnity for undue delay.[113]

[418]     At the same time, the Court of Appeal has also confirmed that, in personal injury cases, interest and indemnity should start from the date of notification of default, save for exceptional circumstances. [114]

[419]     The Court of Appeal underscores that the purpose of the award of interest and indemnity is amongst others, to properly compensate the victim of personal injuries in light of the delays inherent in bringing a case to trial and getting a judgment.[115]

[420]     The Defendants have failed to prove to the Court that the delays were caused by Ms. Laflamme and particularly, that undue delays were caused by her seeking to stall the court process. Interest and indemnity will therefore begin on the date of the original notification of default for the non-pecuniary damages.

[421]     On another topic, Ms. Laflamme is entitled to her costs in these proceedings.

[422]     As for the actuarial reports, reference to them has been made unnecessary by findings made by the Court in these proceedings.  It is in the interest of justice that each side pays their own costs for their separate actuaries. 

[423]     The Court adds the following as regards the Franchisor. 

[424]     Based on the complaints made by Ms. Laflamme to two different employees of the Franchisor, the Court is perplexed as to why neither of these individuals called back to Ms. Laflamme with any response to her complaint.  At the time of the complaint, the Franchisor had established a requirement for all its franchisees to complete the “Tableau de suivis des heures et températures”.  The evidence on behalf of the Franchisor was that it sought to use standardized procedures throughout its franchisees to ensure quality and establish a level of uniformity across its system.  In the minimum, the Franchisor could have requested the completed “Tableau de suivis des heures et températures” for the day in question and if it had done so, it would have been able to respond immediately to Ms. Laflamme and potentially diffuse or settle this entire law suit early on.  There was no evidence that the Franchisor even sought to obtain these records from the Restaurant.

[425]     In the circumstances of this case, the Franchisor’s lack of response caused unnecessary anguish to Ms. Laflamme.

[426]     Moreover, in paragraph 22 of the Defendants’ written arguments, they say: 

 

“Le franchisé doit servir une soupe à ses clients dont la température peut causer de sérieuses brûlures à la bouche”.

Knowing this, the Franchisor neither had its ceramic soup bowls marked accordingly to caution its customers of the potentially burning contents nor required any oral warning by counter staff of its franchisee, the Restaurant.

 


CONCLUSIONS

 

FOR THESE REASONS, THE COURT:

 

GRANTS the Plaintiff’s action in part;

 

ORDERS the Defendants solidarily to pay to the Plaintiff the sum of $69,454.59, which is composed of the following amounts:

a)    Non-pecuniary damages: $33,333; and

b)    Pecuniary damages, other than salary, related to costs incurred (fees for experts Exhibit P-52 (but excluding fees for the Plaintiff’s actuary Louis Morrissette): $36,121.59.

 

WITH INTEREST AND ADDITIONAL INDEMNITY for the reasons given:

a)            from Aug. 4, 1999 for the non-pecuniary damages of $33,333 and

b)            from the date of judgment for the pecuniary damages of $36,121.59;

 

ALL WITH COSTS, but without any expert fess since these have all been accounted for above in the pecuniary damages not related to salary.

 

 

 

 

 

__________________________________

Mark G. Peacock, J.S.C.

 

 

Me Geoffroy Guilbault

SPIEGEL, SOHMER, INC.

Attorneys for Plaintiff

Me Jean-François Bilodeau

ROBINSON SHEPPARD SHAPIRO

Attorneys for Defendants

 

Dates of hearing:

March 4th to 8th and 11th to 15th, 2013, with additional written representations requested by the Court and filed by the parties on September 9th, 2013 and October 2nd, 7th,16th and 17th, 2013.

 




[1]     For ease of understanding, the Plaintiff is designated in this judgment as Ms. Laflamme while the franchisee, the Defendant Group is designated as the Restaurant and the Defendant 9023-9997 Quebec Inc. is designated as the Franchisor.

[2]     Exhibit P-25.

[3] Which was not a cleft palate.

[4]     For completeness, the Court will analyze this work history which Ms Laflamme adduced to support her claim for inability to work.  Since the Court later in this judgment rejects this claim, these finding do not effect any conclusions.

[5]     See Exhibit P-20 at p. 27.

[6]     See letter from Ms. Laflamme dated September 11, 1995, Exhibit P-20 at p. 57.

[7]     See Boulanger v. Assurance-vie Desjardins, AZ-00021168 (November 18, 1999 decision of Madame Justice Carole Julien, J.S.C.).

[8]     Exhibit P-43, medical records.

[9]     Exhibit P-14B.

[10]    Ms. Laflamme testified in her discovery of October 4, 2001, at paragraph 21, that the emergency physician told her she had second degree burns.  She continued to repeat this to various doctors - both treating physicians and experts - throughout this case.  However, in the actual notes of the treating physician, Dr. Chan, there is no mention of second degree burn.  In fact, there is no mention of “second degree burn” in any of the contemporaneous medical notes.

[11]    Exhibit P-43 at p. 2.

[12]    The full heading is “Tableau de suivi des heures et températures - Soupe / Fromage à la crème / Sandwiches”.

[13]    Exhibit P-48.

[14]    Exhibit P-19.

[15]    Also, Mr. Beaudoin testified that it was important to ensure that the food thermometer was working properly.  He testified that the simple test is to take readings from the same thermometer while alternating it three times between ice water and boiling water.  Since the Franchisor required that the soup in the warming tray be at 170 o Fahrenheit, regular testing should have been undertaken to ensure accurate thermometer measurements.

[16]    Exhibit D-20.

[17]    Exhibit D-16, report dated May 19, 2009.

[18]    Exhibit P-42, August 19, 2009.

[19]    Exhibit P-42C, March 7, 2013.

[20]    Exhibit D-16 at p. 11: Règlement sur les aliments, R.R.Q., c. P-29, r. 1 at par. 1.4.4.

[21]    Ibid.

[22]    Exhibit D-16 at p.10.

[23]    Exhibit D-17.

[24]    Jean-Louis BAUDOUIN, La responsabilité civile, 7e éd., vol. 2, Cowansville, Éditions Yvon Blais, 2007, p. 340 and see Accessoires d’auto Vipa Inc. c. Therrien, REJB 2003-46428 (C.A.).

[25]    Règlement sur les aliments, supra, note 20 at par. 1.4.1.   

[26]    Exhibit D-20.

[27]    Par. 22 of the Defendants’ written summary of argument.

[28]    See Wabasso Ltd. v. National Drying Machinery Co., [1981] 1 S.C.R. 578;
Jean-Louis BEAUDOIN et Patrice DESLAURIERS, La responsabilité civile, 7e éd., vol. 2, Cowansville, Éditions Yvon Blais, 2007, p. 305.

[29]    Ibid.

[30]    According to Mr. Grenier’s evidence, the average sit-down stay is somewhere in the order of 25 minutes per customer. 

[31]    Exhibit P-18-2.

[32]    Exhibit P-14B.

[33]    For a High Court of Justice judgment from England where the warnings on McDonald’s coffee cups were found sufficient, see Bogle et al v. McDonald’s Restaurants. [2002] EWHC 490 (QB) at par. 68, 69.

[34]    See Atelier de moteur Competi-Tech Inc. v. St-Laurent, J.E. 2002-2062 (C.A.).

[35] Commentaires du Ministre de la justice, Tome I, Publications du Québec, 1993.  See application in Drolet v. Excavations Lambert Inc., 2011 QCCS 5108.

[36]    Collection de droit 2012-13, École du Barreau du Québec, vol. 4 “Responsabilité”, (Cowansville Yvon Blais, 2012) at p. 23.

[37]    Ibid., p.24-25.

[38]    Robert D. RONDINELLI et al. (eds.), Guides to the Evaluation of Permanent Impairment, 6th Edition, Chicago, American Medical Association, 2008.

[39]    2005 CanLII 9507 (QC CS)

[40]    In on about August 17, 1998, swab tests confirmed this candida infection (Exhibit P-44).

[41]    Examination on discovery of Ms. Laflamme of October 4, 2001, at p. 18 to 19.

[42]    Ibid. at p. 20.

[43]    Supra, note 32, Exhibit P-14B.

[44]    Supra, note 42 at p. 35.

[45]    Exhibit P-17.

[46]    Le grand dictionnaire de terminologie, Office québécois de la langue française.

[47]    Exhibit P-34.

[48]    Exhibit P-41.

[49]    Exhibit P-36.  As will be seen, Ms. Laflamme travelled to Toronto for a consultation with oral medicine specialist, Dr. Mirriam Grushka, on May 4-5, 2003.

[50] Vidéotron ltée v. Bell ExpressVu, 2012 QCCS 3492 (inscribed in appeal, 2012-08-21).

[51]    Dysgeusia in English is defined as a distortion of the sense of taste while dysesthesia is a condition in which a disagreeable sensation is produced by ordinary stimuli, generally caused by lesions of the sensory pathways (see Farlex Partner Medical Dictionary, 2010).

[52]    Photos Exhibit P-18-3, -6, -8 and -9 as well as photos Exhibit P-50, -1, -2, -4 and -6.

[53]    Exhibits P-18 and P-50.

[54]    See her curriculum vitae, Exhibit P-3A.

[55]    See diagram at p. 143, Exhibit P-49, regarding the four different areas in the tongue responsible for these tastes.

[56]    These photographs were never filed in the Court record.

[57]    See note 50 regarding how the trial court assesses experts.

[58]    Photo Exhibit P-18-3.

[59]    Photos Exhibits P-18-3 and P-18-8.

[60]    RONDINELLI ET AL, supra, note 38.

[61]    See Exhibit D-24C.

[62]    Cranial nerve V.

[63]    Cranial nerve IX.

[64]    Linda COCCHIARELLA and Stephen J. LORD, Master the American Medical Association Guides: a medical legal transition to “Guides to the evaluation of permanent impairment”, 5th Edition, Chicago, American Medical Association, 2001, at p. 15.

[65]    Paquet v. Longpré, [2009] R.J.Q. 1905 at par. 53.

[66]    Bolduc v. Adam, J.E. 95-2175 (S.C.) at p.4 and J.S. et al v. Club de Golf Hillsdale Inc., 2011 QCCS 7306 at par. 255.

[67]    J.E. 89-685 (S.C.).

[68]    [1997] B.C.J. 797, (B.C. S.C.)

[69]    [1996] R.R.A. 214 (S.C.).

[70]    [1998] R.R.A. 398 (C.A.).

[71]    [2005] O.J. No. 992 (Ont. S.C.)

[72]    [2010] QCCS 968.

[73]    2007 QCCA at 1156.

[74] [1978] 2 S.C.R. 229.

[75] [1996] 3 S.C.R. 458 at par. 34 and following.

[76] 2012 ONCA 135 at par. 35 and 36.

 

 

[78]    Paragraph 47 of Defendants’ Argument.

[79]    See Exhibits P-14b, P-16 and P-18.

[80]    Exhibit P-14b.

[81]    Exhibit P-17.

[82]    Exhibit P-47.

[83]    Dr. Grushka’s report is Exhibit P-3.

[84]    On May 21, 2008.

[85]    Exhibit P-5.

[86] [2012] 2 S.C.R. par. 46.

[87] [1996] 3 S.C.R. 458  par. 27, 28 and 29.

[88] Supra, Athey, par. 27.

[89] Ibid. par. 27.

[90]    Pierre-Gabriel JOBIN et Nathalie VÉZINA, Les obligations, 7e édition 2013 EYB2013OBL123 at p. 919-920.

[91]    See also Daniel GARDNER, Le Préjudice Corporel 3e Edition (Cowansville, Yvon Blais, 2009) at p. 66.

[92]    Ibid. p. 88.

[93]    Pierre-Gabriel JOBIN et Nathalie VÉZINA, Supra, note 91 at p.925.

[94]    Kirschenbaum - Green v. Surchin, [1997] R.R.A. 39, J.E. 97-327 at p.13.

[95] Michel Gagné, « L’incidence de la condition personnelle préexistante de la victime sur l’évaluation des dommages : L’importance du lien causal. », L’évaluation du préjudice corporel (2003), Service de la formation permanente du Barreau du Québec, 2003 EYB2003DEV367.

[96]    [1991] 1 S.C.R. 541.

[97] 2002 SCC 15.

[98] Exhibit P-43.

[99] Exhibit D-11.

[100] See Walter v. Dubuc, JE.2000-118 (CS), p.7 as cited in Confédération des syndicats nationaux et al. v. Procureur Général du Québec et al, EYB 2008-149814 (S.C.), par. 95 and following.  See also CCP art. 294.1 and art, 2843 and 2870, C. C.Q.

[101] Exhibit D-27, report of Dr. Houle dated April 4, 2000, p. 5.

[102] Ibid. p. 9.

[103] Exhibit D-6A.

[104] Exhibit D-8, p. 4.

[105] Exhibit D-7.

[106] Exhibit D-6B.

[107] Ibid., p. 2, 4.

[108]   See par. 369 of this judgment.

[109] Exhibit P-5, p. 3.

[110] Exhibit D-26.

[111] For the same reason, no further consideration need be given to the application of the crumbling skull doctrine.

[112]  Exhibit P-25.

[113] Art. 1618, C.C.Q. and Morel v. Tremblay, 2010 QCCA 600 at par. 32 and following.

[114] Godin c. Quintal, (C.A., 2002-07-10 (jugement rectifié le 2002-07-22)), SOQUIJ AZ-50138033, J.E. 2002-1412.

[115]  Morel, supra at note 114.

AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.

© Société québécoise d'information juridique (SOQUIJ) - Tous droits réservés  |  SOQUIJ est une société qui relève du ministre de la Justice du Québec