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[1995] O.J. No. 1299, 54 A.C.W.S. (3d) 1307

8.8.1.4.V21995 CarswellOnt 5327

Mellanby v. Chapple 

Scott Mellanby and Ralph Mellanby, Plaintiffs and Frank Chapple, Geoff Chapple,Renaissance Leisure Groups Inc., cob as Muskoka Sands Inn, Valhalla Inn

Management Services Limited and Pinkerton's of Canada Limited, Defendants 

Ontario General Division 

Jarvis J. 

Heard: August 2 - November 1, 1994Judgment: May 9, 1995

Docket: 46629/90Q 

Copyright © CARSWELL,

a Division of Thomson Canada Ltd. or its Licensors. All rights reserved.

Counsel: John A. Olah, Mark Edwards, for Plaintiffs

Tony Tassy, for Geoff Chapple

Bruce A. Thomas, Q.C., D'Arcy McGoey, for Renaissance Leisure Groups Inc. and Valhalla Inn Management

Jeffery B. Simpson, for Pinkerton's of Canada Limited

Subject: Civil Practice and Procedure; Torts

Remedies.

Negligence.

Jarvis J.:

1     On August 19, 1989, Scott Mellanby, a young man with a great deal to lose, was involved in an incident which was both mundane and vicious. The incident left him with serious wounds which affected his life and career.

Background

2     In 1984, at the age of eighteen, Mellanby was drafted by the Philadelphia Flyers of the National Hockey League (NHL) in the second round. He was the 22nd player selected that year. In 1985 he had played Junior A hockey and was selected for the Canadian Team which competed in the World Junior Hockey Championship. The team was comprised of 20 players under the age of 20. Among the players on the team were Joe Murphy, Shayne Corson, Gary Roberts and Joe Neuwendyk, all of whom are presently successful players in the NHL.

3     Mellanby joined the Philadelphia Flyers in March 1986 for two games. His first full season in the NHL was in 1986-87. That year he had 11 goals and 21 assists in 71 games. In the 1987-88 season he played in 75 games and had 25 goals and 26 assists. In 1988-89 he scored 16 goals in the first half of the season and slumped in the second half and scored only 5 goals. He scored 50 points in total that season. His team participated in the semifinals of the playoffs and Mellanby had nine points. By then he was a regular right winger for the team. He was involved in penalty killing and occasionally played on the power play.

4     The injuries of August 1989 interrupted his career and are said to have materially affected his potential by lessening his ability to play the game. They are said to have led to substantial pecuniary loss in the past and in the future.

Procedural Background

5     The statement of claim in this action was issued on March 9, 1990. Statements of defence and cross-claim were delivered by the defendants Valhalla Inn Management Services Limited and Renaissance Leisure Groups Inc., carrying on business as Muskoka Sands Inn (Muskoka Sands) who were separately represented at that point. Each cross-claimed against the other and against the defendants Frank Chapple (the father) and Geoff Chapple (the son) and against the defendant Pinkerton's of Canada Limited (Pinkerton's). Similarly, Pinkerton's cross-claimed against the other defendants. Statements of defence, counter-claim and cross-claims against the other defendants and the plaintiffs were delivered by the father and son. The father and son's pleadings were eventually struck and the counter-claim dismissed by Order of Master Clark dated July 9th, 1991.

6     Master Clark's order did not affect the cross-claims made by Muskoka Sands and Pinkerton's against the father and son for contribution and indemnity. I was advised at the opening of trial that Valhalla and Muskoka Sands were now represented by the same counsel. I was also advised that Mellanby had settled the action as against Pinkerton's and asked that the action be dismissed as against Pinkerton's. The cross-claim by Muskoka Sands against Pinkerton's remained to be dealt with. At the request of Valhalla and Muskoka Sands I granted an amendment to their cross-claims against Pinkerton's and ordered particulars of these allegations to be delivered by August 5, 1994.

7     The trial commenced on August 2, 1994. On August 5, 1994 the son appeared with counsel seeking to participate. Thereafter an agreement was reached whereby an order was made dismissing this action as against the son without costs. This order did not affect the cross-claims made against the son by Pinkerton's. The son chose not to participate in the proceedings at that time and left the trial on the understanding he could return before its conclusion to introduce evidence and otherwise participate in the issues raised by the cross-claims against him. On August 11, 1994 I adjourned the cross-claims of Muskoka Sands against Pinkerton's to permit further examination for discovery and to permit further preparation by Pinkerton's of their defence to this cross-claim. Counsel for Pinkerton's continued to participate in the defence of the action itself.

8     The trial then proceeded until August 18, 1994. It was understood at that time that the trial would be reconvened when the evidence with respect to the cross-claim by Muskoka Sands against Pinkerton's could be heard. On August 18, counsel for the parties, except for the son, argued the issues of liability and damages in the main action. At the conclusion of argument, the trial was adjourned to permit the further discovery between Muskoka Sands and Pinkerton's to be completed. When the trial resumed on October 31, 1994 I granted further amendments to the pleadings of Muskoka Sands and Pinkerton's. The son appeared with counsel intending to give evidence. Mellanby argued that such evidence could not apply to the issues in the action itself in that proceedings had been closed by virtue of the completion of evidence on August 18, and the argument that followed. I ruled that all of the evidence, including the evidence with reference to the cross-claims, was admissible to all of the issues including those raised in the main action. The completion of the trial proceeded with counsel for Mellanby playing a full role. I should add that the plaintiff, Ralph Mellanby, did not testify and no evidence was offered as to his loss.

9     In view of the foregoing Gordian Knot of interlocutory proceedings, I think it best to set out the issues disclosed by the pleadings and the evidence that remained to be determined at the commencement of the trial.

The Issues

10     

1. The liability of Muskoka Sands to Mellanby.

2. The contributory negligence of Mellanby.

3. The liability of the son to the cross-claims of Muskoka Sands and Pinkerton's.

4. The liability of Pinkerton's to Muskoka Sands.

5. The assessment of damages.

11     The father is liable to Mellanby by virtue of his default and similarly is liable to the defendants who have cross-claimed against him. The father's liability arises by virtue of the operation of the Rules but the facts deemed to be true by virtue of the Rules are not admissible on the issue of liability against any of the other parties. In other words, the father played no part in this trial and did not testify. This created a void which I must skirt in dealing with the issues between the other parties. By virtue of the default I grant judgment to Mellanby against the father and will deal with the issue of damages later in this Judgment.

Facts re The Events of August 19, 1989

12     Mellanby arrived at the cottage of his friend, Jeff Fraser (Fraser), in Muskoka on the afternoon of August 19th, 1989. There he joined a group of friends and acquaintances which included, Fraser, Kyle Bryden (Bryden), Michael Rosenberg (Rosenberg) and Andy Manko (Manko). Each of these men admitted moderate consumption of beer during the afternoon (two to four) followed by a barbecue. Following dinner they set off to Muskoka Sands to attend Steamer Jake's, a casual bar offering recorded music, dancing and drinks. They travelled to Muskoka Sands by boat and car and arrived in the early evening. Steamer Jake's was reached by descending several flights of stairs from the lobby of Muskoka Sands. A security guard was stationed on a landing adjacent to the washrooms. They paid a nominal cover charge to the guard.

13     Upon entering Steamer Jake's the friends mingled. Initially all of them went to the bar. Some remained at the bar off and on for the balance of the evening while others sat at a table where they drank and socialized. The evidence did not account for all of their movements that evening with any specificity.

14     During the evening, the father and son and a group of their family and friends arrived at Steamer Jake's. They had spent the afternoon and early evening at their cottage. They also admitted to the moderate consumption of alcohol. After their arrival at Steamer Jake's they stationed themselves more or less in the area at the top of the steps adjacent to the dance floor.

15     The evidence discloses that there were three incidents culminating in the third in which Mellanby was injured.

The First Incident

16     Rosenberg approached a group of women standing near the stairs leading to the dance floor. When he asked one of the women to dance he was accosted by the son and angry words were exchanged. The woman was Cathy Wiegand and she was the son's companion. The son ripped the shirt that Rosenberg was wearing and scratched Rosenberg's arms. There was conflicting evidence as to the extent of the rip but it was obvious enough to concern Rosenberg and later Fraser who happened to own the shirt.

17     Lisa Whitley (Ms. Whitley), the manager of the Muskoka Sands, intervened in this exchange. She said that she cautioned the participants that it was hotel policy to eject participants in fights. She told them that their conduct was not acceptable but she decided that their conduct did not warrant their ejection from the bar. The son and Ms. Wiegand said they thought Rosenberg had been ejected. This was clearly incorrect. The son and Ms. Wiegand told the father about this incident. There were various estimates as to the duration of this first incident but it appears to have taken no more than one or two minutes from beginning to end.

18     Thereafter Rosenberg walked to the table where most of his friends were sitting. Fraser noticed the damage to the shirt and enquired about it. Fraser expressed interest in receiving compensation for the rip and Rosenberg pointed out the son to him. Bryden heard the conversation between Rosenberg and Fraser.

The Second Incident

19     Between twenty and thirty minutes after the first incident, Fraser approached the son about his torn shirt. At first the son seemed obliging but the father began yelling from nearby. Fraser looked toward the father and considered his appearance to be threatening. The father was red in the face and Fraser believed him to be intoxicated. The father's language was slurred and he appeared to be unsteady on his feet.

20     While the father was yelling, Fraser turned to resume his discussion with the son who said that Fraser should speak to his friend (Rosenberg) who was responsible for the rip. There was some discussion about the value of the shirt and James Gibb, another customer, intervened to sarcastically offer $30.00 for the shirt in order to defuse the situation. Ms. Wiegand also offered to pay for the shirt but Fraser was insistent that the $30.00 come from the son. The verbal abuse continued from the father and suddenly Fraser found himself pushed from behind towards the son.

21     The staff of Steamer Jake's did not intervene in the second incident nor was there any evidence that any of them observed this altercation.

The Third Incident

22     Bryden observed the second incident and became concerned at the nature and tone of the father's comments. Bryden did not know the details of the first incident. Bryden became nervous and he noticed that patrons in the area were aware of the disturbance. He looked around expecting the intervention of Steamer Jake's staff but saw no one. His expectation was that the staff would maintain order. He realized that a physical confrontation was possible and decided to return to the table where he had been sitting with his friends. One of those friends, Manko, was working that summer as a bouncer in a hotel. Manko is a large person (6' 1'' and 280 to 300 lbs.) whose size is intimidating.

23     Bryden walked the 30 feet or so to the table where his friends sat. He encountered no bouncer or other staff on his way to the table. When he arrived at the table he told Manko that Fraser was in bad trouble and might need help. Manko and Bryden led the group, including Mellanby, to the area of the altercation. The time between Bryden's departure from the scene of the altercation to his return with his friends was in the order of one to two minutes. Fraser estimates this time to have been three or four minutes. Fraser recalls his friends arriving at the scene. At that point the verbal abuse from the father recommenced.

24     Gibb was still in the general area of the altercation. He saw the group of friends approaching and considered their approach to be threatening and ominous. He remembers that Mellanby and the "big blonde" (Manko) had intense looks on their faces. No one intervened to impede the progress of the group towards the altercation. As Mellanby reached the point where Fraser was standing, Gibb reached out and placed his hand on Mellanby's chest so as to discourage his progress. Mellanby reached up and calmly removed Gibb's hand from his chest and moved past him. Gibb said that Fraser was standing opposite the father. When the group arrived the fight happened quickly. Gibb saw Fraser throw the first punch and saw drinking glasses and ice fly in the air. Mellanby was quickly involved in the fight.

25     Manko said that when he arrived at the scene, Fraser and the son were having a very animated argument. They were not quite nose to nose. Manko heard the father utter an obscenity and saw him step close to Fraser who in turn pushed him with an open hand. The father stepped back towards the railing. He had a stemmed cocktail glass in his hand which he broke deliberately against the railing and moved towards Fraser who punched him.

26     The son testified that when the fight began he saw that his father was getting the worst of it. He moved to intervene to help his father.

27     Mellanby testified that when the fight started he saw the son move to enter the fight. Mellanby placed his hands on the son and pulled him forcibly from the fight between the father and Fraser. The son immediately began fighting with Mellanby and blows were exchanged.

28     Meanwhile, Fraser struck the father several times without being struck in return. He and the father fell to the floor as did Mellanby and the son. At about this point Fraser found himself on the floor on top of the father and attempted to hold him down. Fraser considered the fight to be over when suddenly the father swung at Fraser's face with something in his hand. The father made a slashing motion and Fraser felt a burning sensation to the right side of his face. The sensation went from the right side of his lip to the back of his jaw. He then felt a second jab beneath the left side of his jaw. He suddenly had the sensation that a hose had been turned on his face. Blood ran from his face all over the father's shirt and his own. His chest and arms were warm with blood. He observed nothing of what was transpiring between Mellanby and the son.

29     Meanwhile, Mellanby was engaged with the son and in his peripheral vision saw someone to his right swing at him. He thought he saw a beer bottle. The motion came from the area where the father had been fighting with Fraser. After the fight was broken up he became aware that his left arm was cut badly. He saw a big hole in his inner forearm. It looked to him as if an ice cream scoop had taken a big chunk out of his arm.

30     Both Fraser and Mellanby denied that their cuts were caused by broken glass on the floor and denied seeing any broken glass on the floor.

31     In my view, the only rational explanation for the injuries sustained by Fraser and Mellanby was deliberate action by a person wielding a broken glass object as a weapon. I accept the evidence of Manko that the father was in possession of such a weapon at the start of the fight and I find that the father inflicted these wounds on Fraser and Mellanby.

32     There were confusing and conflicting accounts of the time between the first and second incidents and between the second and third. I find that approximately one hour would have elapsed between the first incident and the injuries.

Aftermath

33     Following the assault both Fraser and Mellanby were carried up the stairs. Fraser was attended to in the mens washroom while Mellanby was taken to the hotel lobby washroom. Eventually both were taken to the hospital by ambulance.

34     The police were called and conducted an investigation. No police evidence was called at trial.

Steamer Jake's Security

35     Ms. Whitley said that the hotel had consciously decided that burly body guards were not acceptable because of its clientele. A decision was made that the Pinkerton's guard should remain outside Steamer Jake's. Security within Steamer Jake's was to be conducted by Ms. Whitley with the assistance of servers, bartenders and the bar manager who were to keep an eye out for trouble while they performed their other duties.

36     Ms. Whitley's background was substantially gained while working her way to become the manager of the Ben Miller Inn in Goderich, Ontario. This is an inn with a small capacity with a small lobby bar. The inn's bar was not in any way comparable to that of Steamer Jake's which had a licensed capacity of 281 people with 152 seats. She was familiar with the requirements of the Liquor Licence Act and had been the manager of the Muskoka Sands from July 1986.

37     She said that the Muskoka Sands had contracted with Pinkerton's for the provision of two security guards. Only one of these guards was directly involved in the Steamer Jake's operation. That person, Troy Middlebrook (Middlebrook), was stationed on the landing above the entrance to Steamer Jake's and was specifically instructed to not patrol inside the bar. The other guard, Dirk Distrek (Distrek), was to patrol all of the hotel premises from his arrival on duty at about 10:00 p.m. Distrek's duties involved entering Steamer Jake's about four times a night. He had no specific duties relating to security within Steamer Jake's. Distrek, was described as small in stature, with a height of 5' 7'' to 5' 8'' and 140 lbs, a slight man of about 65. Distrek's duties did not include breaking up fights or involving himself in altercations.

38     Apart from Ms. Whitley, none of the staff inside Steamer Jake's at the time of the fight testified at the trial. Although there was some evidence to indicate that staff were involved in the clean up, there is no evidence that any were present to intervene in the fight.

39     Middlebrook said that he was standing on the landing above the entrance to Steamer Jake's. He stated that there were no bouncers or door persons and the sheer volume of people meant that there was no protection for patrons. He was at his post the entire evening of the incident and was totally unaware of the incident itself until he saw Ms. Whitley coming up the steps with Fraser who was bleeding profusely. He noted that this development occurred at about 11:00 or 11:15 p.m.

1. Liability of Muskoka Sands to Mellanby

40     The Liquor Licence Act, R.S.O. 1990, c.L.19 provides for the removal of persons from the premises in section 34(1) as follows:

34 -- (1) The holder of a licence or permit issued in respect of premises shall ensure that a person does not remain on the premises if the holder has reasonable grounds to believe that the person,

(a) is unlawfully on the premises;

(b) is on the premises for an unlawful purpose; or

(c) is contravening the law on the premises.

[emphasis added]

Licences to Sell Liquor, R.R.O. 1990, Reg. 719, as amended provides in section 45(1) as follows:

45 -- (1) The licence holder shall not permit drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.

[emphasis added]

The statutory standard of care for the occupier of premises is set out in section 3 of the Occupiers' Liability Act, R.S.O. 1990, c.O.2 which provides:

3 -- (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier's duty.

41     Muskoka Sands posted a sign which set forth the "Steamer Jake's Rules". The sign was not drawn to the attention of the parties and I do not consider it to have effectively altered the occupiers liability within the meaning of section 3(3) above.

42     Muskoka Sands clearly breached its obligation pursuant to the Liquor Licence Act and the Regulations thereunder, by permitting disorderly conduct to occur on the premises. It also breached its duty pursuant to the Occupiers' Liability Act to take such care as in the circumstances is required to ensure that a person entering on the premises is reasonably safe while on the premises. I will deal with this more fully in my discussion of the case law.

43     Blair J.A. commented on the statutory standard of care as provided in section 3(1) of the Occupiers' Liability Act in Waldick v. Malcolm (1989), 70 O.R. (2d) 717 (C.A.) at page 723 as follows:

... All courts have agreed that the section imposes on occupiers an affirmative duty to make the premises reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm. The section assimilates occupiers' liability with the modern law of negligence. The duty is not absolute and occupiers are not insurers liable for any damages suffered by persons entering their premises. Their responsibility is only to take "such care as in all the circumstances of the case is reasonable".

[emphasis added]

44     In Whitlow v. 572008 Ontario Limited (c.o.b. The Cross-Eyed Bear Tavern) , [1995] O.J. No. 77, Madam Justice Ellen Macdonald approved and applied the comments of Blair J.A., above.

45     The Supreme Court of Canada in Stewart v. Pettie [1995] S.C.J. No.3 dealt with the duty of care of a commercial host. The issue was whether the commercial host had met the standard of care required of a vendor of alcohol or was negligent in failing not to take any steps to ensure that the defendant, Pettie, did not drive after leaving the premises. The Supreme Court of Canada dealt with the issue in terms of an intoxicated patron. However, the following principles as set out in Stewart are applicable to the case at hand. Sopinka J. states at paragraph 56:

I agree that establishments which serve alcohol must either intervene in appropriate circumstances or risk liability, and that this liability cannot be avoided where the establishment has intentionally structured the environment in such a way as to make it impossible to know whether intervention is necessary.

[emphasis added]

At paragraph 36, Sopinka states:

Without a reasonably foreseeable risk of harm to him or a third party, the fact of over-serving Pettie is an innocuous act. Therefore, liability on the part of Mayfield if it is to be found, must be in their failure to take any affirmative action to prevent the reasonably foreseeable risk to Gillian Stewart.

[emphasis added]

At paragraphs 48, 49 and 50 respectively he states:

I do, however, have difficulty accepting the proposition that the mere existence of this "special relationship", without more, permits the imposition of a positive obligation to act. Every person who enters a bar or restaurant is in an invitor-invitee relationship with the establishment, and is therefore in a "special relationship" with that establishment. However, it does not make sense to suggest that, simply as a result of this relationship, a commercial host cannot consider other relevant factors in determining whether in the circumstances positive steps are necessary.

The existence of this "special relationship" will frequently warrant the imposition of a positive obligation to act, but the sine qua non of tortious liability remains the foreseeability of the risk. Where no risk is foreseeable as a result of the circumstances, no action will be required, despite the existence of a special relationship....

One of the primary purposes of negligence law is to enforce reasonable standards of conduct so as to prevent the creation of reasonably foreseeable risks. In this way, tort law serves as a disincentive to risk-creating behaviour. To impose liability even where the risk which materialized was not reasonably foreseeable is to lay a portion of the loss at the feet of a party who has, in the circumstances acted reasonably. Tort law does not require the wisdom of Solomon. All it requires is that people act reasonably in the circumstances.

[emphasis added]

46     A number of experts were called on behalf of Mellanby. Their evidence established that establishments similar to Steamer Jake's would have varying degrees of security in place to guard against violence and breaches of the Liquor Licence Act. I accept their evidence and find that Muskoka Sands provided no security at all and failed to react to the situation as it developed when it could have and should have. Ms. Whitley erred in deciding not to eject Rosenberg and the son. Ms. Whitley or her staff should have observed the second incident which was loud and disruptive. In particular they should have intervened by the time that Fraser's friends approached. While no one apart from Manko seems to have appreciated the potential violence of the exchange, it is my view that an intervention by a person of authority could have prevented the incident which resulted in Mellanby's injuries.

47     It is clear that the standard to be applied is that of reasonableness in all of the circumstances of the case. Muskoka Sands had a duty to protect the patrons of Steamer Jake's from being exposed to the risk of altercations, such as the one that occurred, and should have taken positive steps to ensure that adequate security was provided to monitor the crowd and to be alert for any signs of trouble. The environment of Steamer Jake's was structured in such a manner that no security in the form of bouncers or security guards was in position to handle potentially disruptive or violent situations. It was foreseeable that on a summer weekend evening this establishment would be crowded with a diverse range of people enjoying the music, dancing, drinks and socializing. It was foreseeable that this could give rise to a risky situation. It was particularly foreseeable that a serious altercation could develop after the first incident occurred between the Mellanby group and the Chapple group.

48     Muskoka Sands liability arises from the fact that they intentionally structured the environment in such a way as to make it difficult to detect trouble and virtually impossible to respond. They failed to act reasonably in the circumstances of the case. The evidence establishes that Muskoka Sands deliberately decided that the provision of distinct and apparent security within Steamer Jake's was not appropriate. It was submitted on behalf of Muskoka Sands that no amount of security could have had the effect of preventing this incident. They argued that the presence of Manko and his inability to intervene established the truth of that assertion. While Manko did not intervene to stop the fight, I must be mindful of the fact that Manko was a patron and was not responsible for maintaining order in Steamer Jake's. I do not consider his reactions relevant in determining the appropriate standard of care.

49     Muskoka Sands, having provided no effective security, cannot be heard to say that such security could not have prevented this incident.

50     I will return to the issue of the degree of responsibility of Muskoka Sands in my conclusion.

2. Contributory Negligence

51     Mellanby was injured to an extent far beyond what he could have envisaged when he decided to involve himself in this fight. The law does not require that he foresee precisely what might take place but simply that he take care for his own safety. He should have foreseen the chance of personal injury and he should have been careful to avoid that possibility. Jumping into a brawl in a crowded bar is at best foolhardy. I accept that his motives were altruistic in the sense that he was responding to the perceived danger to his friend Fraser. I must also note, however, that Mellanby did not see the serious wounds being inflicted upon Fraser and for that reason was not reacting to the actual life-threatening situation. The fact that Fraser's situation was in fact life-threatening must not colour my decision.

52     I do not consider that Mellanby's actions can be characterized as an attempt to rescue his friend. Rescue is a legal doctrine by which injured good Samaritans can be compensated for injuries suffered when rescuing persons imperiled through another's negligence. The doctrine ought not to be stretched to assist persons who participate in brawls. It is, however, foreseeable that people may take the law into their own hands when confronted with a situation such as here.

53     Gibb clearly perceived Mellanby and his friends to be the aggressors. I find that Gibb's reaction was coloured by the number of people approaching the scene and Mellanby's determination in moving past him. I accept Mellanby's evidence that he reacted to the son's intervention in the fight and was motivated by concern for his

friend. It may well be that the son was similarly motivated by concern for his father. The issue is not the motivation of the individuals but rather that the situation was permitted to develop. I do not find Gibb's account unreliable in any way. The evidence of all the participants and Gibb is more or less consistent.

54     It was suggested by Muskoka Sands that Mellanby's conduct and that of his friends amounted to a provocation in that their arrival at the scene in force was responsible for the reaction of the father. This argument fails to address the fact that none of this need to have happened had Steamer Jake's been able to respond effectively to either incidents 1 or 2. Their failure to do so led to the exacerbation of the situation which in turn led to the response on the part of Fraser's friends to his perceived danger. However, Mellanby played an active role in the situation and to a limited extent is responsible for his injuries.

3. Liability of the son

55     The son was involved in all three incidents. It was argued that the first incident set off a chain reaction leading to the third incident. This is historically correct but I find that there is no causal link between the son's behaviour in the first and second incidents and the injuries sustained in the third.

56     In the third incident the father played the major role. The son's response was to come to the aid of his father when he saw that his father was getting the worst of the fight. It is clear that the son's intervention was perceived by Mellanby to have been an attempt to gang up on Fraser. There is no doubt that it was the son's intervention which led to Mellanby's reaction and that Mellanby's reaction may have inflamed the father. The son's part in this, however, is not directly connected to the chain of causation. It is also my finding that the son was not the person who wounded Mellanby and Fraser and cannot be held responsible for those injuries. The action is therefore dismissed against Geoff Chapple.

4. The Liability of Pinkerton's to Muskoka Sands

57     Ms. Whitley testified that when she began working at Muskoka Sands in 1986, Pinkerton's were already involved and were providing one security guard. Ms. Whitley dealt with Wayne Hawkins (Hawkins), who was Pinkerton's district manager from late 1987 or 1988. She understood that he was a former police officer. He informed her that he understood the security requirements because of his experience.

58     In 1988 and early 1989, several incidents had occurred in Steamer Jake's which concerned Ms. Whitley and she met with Hawkins to discuss them. Ms. Whitley wrote to Hawkins on February 1, 1989, confirming arrangements for a doorperson from 8:30 p.m. to 2:30 a.m. each Friday and Saturday evening which provided, inter alia, that the person would be responsible to:

5. Assists (sic) on floor in Steamer Jake's as required by Bar Manager, i.e., following up a request for unruly patron (sic) to leave.

7. Presenting an atmosphere of control over bar to minimize problems.

In conclusion she said:

Wayne, as you may be aware, we have had our share of problems with minors, fights and over-imbibing. We are making some fairly major changes in an effort to minimize these problems and are counting on the presence of a Security Services doorperson to greatly assist us in this transition and making a statement that we will not accept any nonsense here. Please ensure that the guard on this duty has a clear understanding of our goals.

59     Ms. Whitley said that during a meeting which preceded the letter of February 1, 1989, she had asked Hawkins for his opinion regarding bar security but she cannot recall exactly what he said. She told Hawkins that she and her superior had felt that a uniformed person would make a difference and Hawkins did not disagree. He also had nothing to add.

60     By a memo dated February 24, 1989, Hawkins outlined the "DUTIES & RESPONSIBILITIES OF BAR SECURITY OFFICER". The only provision for assistance within Steamer Jake's itself were in the following paragraphs:

f) When requested or asked by Bar Staff or Management, Security Officer will assist with any problems arising in the Lounge.

h) If Bar Security Officer decides a problem in the Bar would require telephoning the Police, he will explain the situation to Senior Management (Manager, Assistant Manager, Duty Manager) and it will only be at their discretion that Police will be asked to attend the Hotel.

[emphasis added]

61     Matters proceeded on this basis until a problem developed in the summer of 1989. Middlebrook while serving as a guard outside Steamer Jake's began entering the establishment itself from time to time. This led to a letter dated July 28th, 1989 from Ms. Whitley to Hawkins, which provided, inter alia:

Also, I would like to take this opportunity to let you know that we have encountered problems with our Bar Guard. The main problem is his tendency to leave the door and socialize with his friends while touring the bar. In the meantime, the Hotel Guard or other employees are taking drinks from departing customers. He also doesn't take direction from the Bar Manager and I certainly can't always be available nor is that the chain of command.

Ms. Whitley suggested that henceforth Middlebrook was to stay on the landing and not enter Steamer Jake's unless requested to do so.

62     In cross-examination Ms. Whitley agreed that she had discussed the requirement and details of bar security with a number of people including her superiors and the designers and architects involved in the changes to Steamer Jake's. No formal contract was signed with Pinkerton's. Similarly, no written request for advice was made to Pinkerton's and no written opinion was received from them. Ms. Whitley clearly felt that the presence of security persons inside Steamer Jake's would be somewhat intimidating to guests of Muskoka Sands.

63     Hawkins said he had no expertise in security for licensed establishments and Pinkerton's is not in the business of providing advice regarding security for such premises. He said that if he had been asked for advice regarding bar security he could not have given it. He also denied any discussion with respect to the adequacy of security in Steamer Jake's and knew nothing of its operation. He confirmed that Pinkerton's is in the business of protecting property from fire and vandalism. They also provide security for entrances and exits, but provide no security services inside licensed establishments anywhere. He denied that he discussed security for Steamer Jake's with Ms. Whitley. I accept Hawkins' evidence. It was consistent with the documentary evidence and with the actual arrangements between Pinkerton's and Muskoka Sands. The cross-claim against Pinkerton's is therefore dismissed.

64     In considering the liability of Pinkerton's, the reliance of Muskoka Sands on Pinkerton's advice is vital. I find that there was no such reliance. It is alleged that there was a contract agreement between Pinkerton's and Muskoka Sand's that Pinkerton's would give advice as to the adequacy of the security around Steamer Jake's. Ms. Whitley was unable to recall any such conversation and the documents do not bear out this assertion. It is therefore my finding that there was no contract or implied contract between Muskoka Sands and Pinkerton's with respect to in-bar security and for that reason there is no basis for a finding that Pinkerton's indemnify Muskoka Sands.

5. Assessment of Damages

65     Mellanby was taken to a local hospital and thereafter transferred to the Toronto Hospital where surgery was performed to repair the serious wounds he had sustained. He was released quite soon following the surgery and after a period of recuperation travelled to Philadelphia where he was monitored by doctors retained by the Philadelphia Flyers hockey team. He returned to Toronto from time to time for check-ups and for the purpose of forensic examinations. He was able to resume his career by the twentieth game of the 1989-90 season. He had not fully recovered by that point. It is clear from the evidence of Mellanby and of the doctors that his recovery from the

injuries was complete by about one and a half years after the incident. He has been left with permanent deficits and the central damages issue is the extent to which these deficits have affected his career as a hockey player.

66     Mellanby has been left with an irregular scar on the inner aspect of his left forearm which is consistent with the tissue in that area having been gouged by broken glass. The small finger of his left hand is splayed outward. His left hand, although his dominant hand, is obviously more frail than the right. The scar left by the gouge, appears to be about 2-3 inches in length and at its widest is about 1-1/2 inches. He also has a scar above the right thumb on the inner aspect of the right forearm and a scar on his right thigh, which is about 4 inches long and 2 inches wide. The scar on the thigh covers the donor site for the reconstructive surgery to the left forearm. There was no suggestion that the cosmetic aspects of these scars played a significant role in Mellanby's life.

67     Mellanby said that his left hand is more important than his right in playing hockey. His right hand is his power hand and his left hand is his finesse hand. If he receives a pass on the backhand position he has problems controlling the puck because of the weakness in his left hand. Similarly, his backhand shot is less effective as his ability to move the puck from the backhand to the forehand to get the puck into position to shoot with his forehand has been affected. Generally he considers his ability to manipulate the puck to have been negatively affected.

68     The accuracy and strength of his shot is less and he is less able to react quickly to the infinite variety of situations which develop in a game. As a "power forward", his ability to fight for the puck in the corners has been lessened. His combined grip strength has been reduced. This places him at a competitive disadvantage.

69     He concedes that he has adapted to playing with his deficits but his level of play has been permanently affected. He has lost the opportunity to play with a superstar centre. The fact that he scored 30 goals with Florida last year demonstrates what he might have done with a better team without his injuries.

70     Ironically he testified about his inability to fight. He said that hockey is an aggressive game and that fighting can enhance ones ability to play. Fighting prevents injury to the individual if he is able to react appropriately to aggression. Respect creates room within which to operate, and opportunity which translates positively into offensive statistics. He has fought in the game since the injury.

71     He agreed that Corson, Tocchet and Roberts were once comparable to him as players. In their fourth year their scoring was as follows: Corson 31 goals; Roberts 39 goals and Tocchet 31 goals. All three progressed to a higher level while Mellanby did not.

72     It was Mellanby's evidence that he played at 20% capacity when he first returned following his injuries and at 60% capacity in 1990-91. On May 30th, 1992 he was traded to Edmonton. By the 1992-93 season he considered that with the adjustments he had made he has reached 70-75% of his pre-accident capacity. The adjustments he has made include changing the configuration of the tape at the top of his stick. He feels that he is now playing the game differently than he had before in an attempt to adjust to his disability.

Medical Expert Evidence

73     Mellanby was seen by a number of doctors and a number of reports were filed. Dr. Michael Clarfield testified. Mellanby was also seen by Dr. Langer on behalf of the defence. Dr. Langer did not testify and his report was not filed.

74     Dr. Lee Osterman in his report dated June 4, 1993 found permanent residual deficits which he considered significant. He found decreased sensation to the protective level in the ulnar distribution. He also found significant weakness in the hand as documented by grip strength tests. He found limited motion of the small finger which he related to the nerve injury but also the tendon injury and to peritendinous and perineurial fibrosis. He also found elements of persistent symptomatic neuroma formation at the ulnar nerve repair site. Dr. Osterman considered these injuries "likely to affect his ability to play professional hockey".

75     Dr. Michael Clarfield testified for Mellanby. Dr. Clarfield is a specialist in sports medicine who is the team physician for the Toronto Maple Leafs of the NHL and the team physician for the Canadian National Tennis Team.

He has an extensive background in sports medicine and has treated injuries of the Toronto Maple Leafs and of opposing teams.

76     Dr. Clarfield had Mellanby demonstrate his ability to use a hockey stick. He testified as to the affect of the injury to Mellanby's left hand. He said the main problem is the lack of sensation in the fourth and fifth fingers together with diminished strength and agility in the hand. In addition, Mellanby is unable to straighten these two fingers totally. He is hypersensitive over the site of the skin graft on his left forearm and has shooting pains into his left hand from time to time together with a loss of sensation and numbness. These deficits affect stick handling and thereby handling of the puck. Mellanby is left handed and his left hand is the "finesse" or top hand when he stick handles. It controls the fine movements of the stick.

77     Mellanby told Dr. Clarfield that he had increased the knob of the stick to compensate for his lack of strength and movement and that he had moved the knob of the stick into the palm of his left hand to use more of his good fingers. This has a negative affect on the leverage of the stick. The power in the left hand affects stick handling and control over the puck. This loss of strength also affects Mellanby's slap shot and wrist shot. In general, Dr. Clarfield said that Mellanby has been left with a flexion contracture of the fingers together with a loss of sensation, strength and agility of the left hand.

78     Dr. Clarfield also found that the area of the skin graft was hypersensitive to touch and that the fifth (little) finger was straight and could not be aligned with the fourth finger. He noted obvious wasting in the muscles of the left hand and obvious weakness of the muscle between the second finger and the thumb. Both left and right forearms measured equally. His findings were consistent with the clinical findings of other doctors who had tested and seen Mellanby. He considered significant findings to include the diminished sensation in the ring finger and small finger of the left hand and the weakness in the web between the index finger and the thumb. These were consistent with ulnar nerve damage.

79     Dr. Clarfield described the numbness in the left hand as a loss of protective sensation. He considered this a significant deficit as it detracts from Mellanby's ability to sense danger to his dominant hand and to respond to it. Dr. Clarfield described five categories of loss of sensation. Mellanby's loss is in the fourth category which corresponds to a total lack of response.

80     Dr. Clarfield considered that in addition to the affect on Mellanby's ability to shoot quickly and accurately, he is less able to check one handed or hold off an opponent with one hand while stick handling with the other. As a result of this weakness his stick is more wobbly and it is easier for another player to push the stick away. Mellanby's ability to poke check is less, particularly so when his hand is extended out to the left away from his body. He has less control of the stick if he is holding off an opponent with his right hand and stick handling with his left. His ability to fight for the puck in corners has been impaired. His left hand grip has a deficit of 26% strength which is well below the average for NHL players.

81     Similarly, his ability to fend off a defensive player with his right hand and maintain power over the stick with his left hand has been affected and Dr. Clarfield's opinion was that this would have a significant impact on scoring. Dr. Clarfield agreed that adjustment was possible but that it would be impossible for Mellanby to regain the skills he once had. Mellanby's residual deficit still affects his game and does so at a significant level. He did not consider that Mellanby's early return to playing competitive hockey diminished or delayed his recovery.

82     I am satisfied that the medical evidence establishes the permanency of Mellanby's disabilities and that the affect on his ability to play was truthfully described by him. The medical evidence of Dr. Clarfield and the other medical reports filed, confirmed that Mellanby has been left with a significant deficit in his dominant hand. The deficit arises substantially from damage to the ulnar nerve and is irreversible. He has a loss of sensation which affects most of his dominant hand. The hand itself has been significantly weakened to the point that the grip strength of his dominant hand is significantly less than that of most NHL players. Mellanby has worked hard to regain the strength and agility of his left hand. His efforts have included modifications to his equipment which have helped to some extent. Notwithstanding these efforts, it is clear that Mellanby's permanent deficits have had and continue to have a material affect on his ability as a professional hockey player. I am mindful that Mellanby is somewhat ambidextrous and this has facilitated his rehabilitation to some extent.

Hockey Expert Evidence

83     I heard from four experts with respect to the affect of these injuries on Mellanby's career. Using different phraseology these experts agreed that there are four categories of hockey players: superstars; impact players; journeymen or average players, and role players. The experts agreed that Mellanby's potential before his injuries was to reach the second category. Mellanby had played three seasons in the league before his injuries. Generally players reach their potential at about their fourth year in the league. They agreed that the injuries interrupted that process and that Mellanby has never reached his potential.

84     The experts also agreed that there were three players who were comparable to Mellanby by virtue of their age, experience, skills and potential: Rick Tocchet; Shayne Corson and Gary Roberts.

85     Allen Strachan testified for Mellanby. Mr. Strachan has had a distinguished journalistic career, and has focused in recent years on hockey.

86     He said that the second level players have very high skills and contribute significantly to their teams. The third level players are average in ability, while the fourth level players are fringe players with skills sufficient to permit them to be retained by a team.

87     Mr. Strachan conducted research on behalf of Mellanby to demonstrate Mellanby's loss. Mr. Strachan identified the comparable players listed above and described them as being below the elite level but said that they were rugged and "willing to pay the price" by involving themselves in the physical aspects of the game. In addition, they have a good degree of hockey skills.

88     Mr. Strachan saw Mellanby play in Philadelphia and thought that he stood out because of his skills. He saw him after his injuries and after he had been traded to Edmonton. He said that Mellanby was not as involved in the game. He was not as physical as before his injuries and did not contribute as much to his team. Mr. Strachan said that Mellanby no longer stood out. He did not see Mellanby play for the Florida Panthers.

89     In cross-examination Mr. Strachan agreed that it was not his opinion that Mellanby would have been a 50 goal scorer. Rather, he considered Mellanby a player who would score often enough to be an important help to his team offensively. He also considered Mellanby to be a player who would be good in the other important parts of the game. He agreed that Mellanby should have scored more than five goals in the latter 41 games of the season which preceded his injury. He agreed that sports are uncertain and that players do not always fulfil their promise.

90     Don Meehan testified for Mellanby. He is an agent who represents 75 active NHL players including many very prominent players. In advocating on behalf of his clients in contract negotiations, he must project their potential contributions from past performance. He uses statistics of comparable players. He is quite familiar with Mellanby's skills. He agreed that Mellanby had the characteristics of a very successful "power forward". There is a scarcity of such players and the market reflects this scarcity and places a very high premium on such players. He considers that Mellanby would have developed into a very successful forward in the NHL, a premium player in his position. He agreed with Mr. Strachan's evidence that Tocchet, Corson and Roberts were comparable players.

91     Mr. Meehan saw Mellanby play during the 1989-90 season after his injury. He said that Mellanby did not play as well. He was not used on the power play and did not seem to have the same offensive skills he had exhibited before his injuries and generally he was unable to contribute as much to his team's play. He also saw Mellanby play in the 1991 season. He said that Mellanby did not "step up to the next level". Mr. Meehan said that players generally begin to assert themselves in their fourth year in the league and for this reason prefers to negotiate four year contracts when players are first introduced into the league. This affords the players the opportunity to develop to the point of maturity in their fourth year which provides a base for negotiating the next contract.

92     Mr. Meehan is familiar with Mellanby's pre-accident statistics and feels that they support his opinion that Mellanby would have achieved the next level and would have been an excellent member of a team. He feels that the fact that Philadelphia offered Mellanby a three year contract indicates they had a great deal of confidence in his likely development. The playoff statistics for 1988- 89 demonstrate that Mellanby was a young player playing a significant role with his team. Corson and Roberts had also been in the league for the same amount of time at the

same time and their statistics and Mellanby's for the playoffs were almost identical. These three and Tocchet were excellent young prospects who had progressively developed. In their fourth year (the year of the injury) Mellanby stayed at the same level while Corson, Tocchet and Roberts moved on. Corson scored 31 goals; Roberts scored 39 goals and Tocchet 31 goals in that year.

93     Mr. Meehan saw Mellanby play in Edmonton for several years and did not feel Mellanby had developed as he had expected. He also saw Florida play five times in the 1992-93 season and thought that nothing had changed.

94     Mr. Meehan testified that had Mellanby not been injured, he should have been able to obtain a three year contract at this point in his career for the following figures:

Year one    $1,000,000

Year two    $1,200,000

Year three $1,400,000

Year four   $1,400,000

95     As to Mellanby's longevity, Mr. Meehan said that Mellanby has been relatively injury free since he returned and can probably play until he is thirty to thirty two years of age with his injured left hand and arm. However, the injury does affect his longevity in that players who succeed offensively generally last longer than players with only a physical presence.

96     In cross-examination Mr. Meehan agreed that there appears to be an increased market for players since expansion and that salaries have escalated; however, mid-range players are now being terminated to save revenues. He did agree that Florida would not release Mellanby. He also agreed that Corson and Tocchet were making more money then Mellanby before the injury. He was asked about Mellanby scoring only five goals in his last 41 games before his injuries, Mr. Meehan agreed that this low scoring would be a factor in his value to a team and that it was hard to compare players because of the many variables.

97     Mr. Meehan had submitted a written summary of his evidence in which he said Mellanby, without his disabilities, would have been able to negotiate a contract for $800,000 (U.S.) for the 1994-95 season. His actual contract for 1994-95 should be in the $675,000 (U.S.) range representing a differential of $125,000 (U.S.).

98     Mr. Meehan agreed that his opinions were arrived at by projecting himself back into the past and then forward into the future. He had no written evaluations of Mellanby at various points in his career. He was substantially relying on memory for his opinion. Mr. Meehan admitted that he did not recall Mellanby's low scoring in the last half of the 1988-89 season. Mr. Meehan said that he considered the injuries to have substantially affected Mellanby's offensive skills. He has noticed no lessening in any of Mellanby's defensive skills. The market for players is volatile but generally what Mellanby can expect to receive now will move up or down proportionally with the market.

99     Mr. Robert Clark was called on behalf of Mellanby. Mr. Clark has been involved in the NHL with great distinction as a player and general manager for 25 years. He has been inducted into the Hockey Hall of Fame. In his evidence Mr. Clark reflected the cruel reality of the business aspect of professional sports.

100     Mr. Clark is currently the President and General Manager of the Philadelphia Flyers. He said that the role of general manager involves evaluating young hockey players, making trades and dealing with the business of hockey which includes negotiating salaries. Evaluation of young players is important for the entry draft. Young players are drafted generally at the age of 18. They are evaluated at age 17 or 18 which involves some projection on the part of general managers to project a player's development after four or five years.

101     Similarly, in making trades, Mr. Clark said it is necessary for general managers to evaluate the potential of players for two, three or four years. Mr. Clark said that the only way he can improve his team is by upgrading its personnel. To do so by trades and by drafting requires evaluation of talented players and projecting their development into the future.

102     It is also important to general managers in negotiating salaries to compare players skills. This involves comparing the statistics of various players and considering their relative importance to their teams.

103     Mr. Clark agreed with the four categories of professional hockey players and agreed that Mellanby's potential was to reach the second level. His opinion was that Mellanby has failed to do so. This failure corresponds with the timing of the injuries. The comparable players have moved to the second level.

104     During his first three seasons in the league, Mellanby demonstrated courage, dedication and leadership. Mr. Clark expected that in 1989-90 Mellanby would make the jump to the next level. His opinion was that players normally take four or five years to mature and that Mellanby would have reached that point after his fourth year in the league.

105     Mr. Clark saw Mellanby play often after the injuries. There was no comparison to the player Mellanby had been before. Mr. Clark considered that the injuries had been devastating to Mellanby's development and to his career. After the accident, Mellanby remained in the third category and in Mr. Clark's opinion would not be able to realize the potential that he had demonstrated. Mr. Clark was brutally frank with Mellanby about his opinion at the end of the season.

106     Mr. Clark moved to the Minnesota team after that season. When he left, the team had considered trading Mellanby. At that point it was Mr. Clark's opinion that Mellanby was "just another player in the NHL".

107     When Mr. Clark was in Minnesota he saw Mellanby play two, three or four times a year. He did not pay particular attention to him, then Mellanby was traded to Edmonton and again Mr. Clark saw him play a few times. His opinion was that Mellanby was "a 20 goal player with guts - just another NHL player".

108     As fate would have it, Mr. Clark was hired to oversee the expansion team in Florida and in that capacity he participated in the expansion draft and drafted Mellanby who was the six or seventh player drafted. Mr. Clark characterized the players available on the draft as generally those who were not wanted by the teams who owned them. Mellanby scored 30 goals for the Florida team in its first season and Mr. Clark thought that was wonderful but not indicative that Mellanby had reached his pre-injury potential. Mr. Clark's opinion was that Mellanby was a good player on the Florida expansion team but that on a good established team he would be a third line player. He considered that Mellanby was unlikely to improve further in that he would never achieve the potential he had demonstrated before his injuries.

109     Mr. Clark said the impact of a serious injury to a player in his fourth or fifth year can be devastating. Such players can regress and never return to the point of being the player they might have been.

110     A report from Glen Sather was filed on behalf of Mellanby. Mr. Sather has had a distinguished career as a player, coach and general manager in the NHL. He agreed with the other experts that Mellanby had the potential to be a second level player and thought that Mellanby had reached the stage in his development where this might occur. He considered that the injuries had affected Mellanby's playing ability and confidence and that Mellanby will not progress to the next level. He considers it likely that Mellanby will play until at least 33 years of age. He considers it likely that Mellanby's contract for the 1994-95 season will be in the order of $800,000 (U.S.) annually. Corson's contract will be in the order of $900,000 to $1,000,000 (Cdn.) while that of Roberts will be in the order of $1,000,000 (U.S.).

111     No hockey expert evidence was called by the defence. The defence did introduce a video tape showing examples of Mellanby's play following his injuries. The preponderance of the video tape showed excerpts from Mellanby's play from the 1993-94 season with the Florida Panthers. The video tape was largely consistent with Mellanby's evidence. It demonstrates him playing hockey at an NHL level. I am not convinced that the video tape establishes that Mellanby is playing at the same level he would have achieved had the injuries not occurred.

Accounting Evidence and Pecuniary Loss

112     Todd Shoalts, C.A., testified on behalf of Mellanby and his report of June 22, 1994 was filed. Mr. Shoalts calculated Mellanby's past lost income by comparing his actual income with the incomes received by Corson, Roberts and Tocchet. In doing so, he assumed that Mellanby's statistics for the 1989-90 season would have been consistent with the levels in fact reached by the comparable players and that the Philadelphia Flyers would have renegotiated his contract for the 1990-91 season. With this assumption, he arrived at estimates for past loss, ranging from $750,000 to $1,000,000.

113     At the time of his injuries Mellanby was in the second year of a three year contract which provided the Philadelphia Flyers an option for his services for the 1991-92 season. That contract provided salaries as follows:

1988-1989                    $160,000

1989-1990 (year of injury) $170,000

1990-1991                    $180,000

1991-1992  (option year)     $180,000

114     Mellanby said that he had assurances from Mr. Clark that his contract would have been renegotiated if he had a solid year in 1988-89 followed by a similar year in 1989-90.

115     It was suggested to Mellanby in cross-examination that his offensive statistics following his injuries showed that his injuries did not negatively affect his production. He responded that his trade to Edmonton and subsequent drafting by Florida meant that his chances to participate in the offensive part of the game were enhanced. In other words, he tended to be played on higher lines and was given more power play opportunities than he would have been given had he been able to continue to play with a top team with his injuries.

116     The evidence establishes the possibility that Mellanby's contract with the Philadelphia Flyers would have been renegotiated had the injury not taken place. This would have increased his annual salary substantially. While it is impossible to make a precise finding, I am satisfied that his contract would have been renegotiated at some point in the year or two following the injuries had they not occurred. Similarly, it is unlikely that Mellanby would have been traded to Edmonton or made available for the expansion draft.

117     It is impossible to calculate Mellanby's loss with any precision, but I consider it established that his loss has been an average of $100,000 (Cdn.) per year from the time of his injuries. It is now notorious that a players' strike interrupted the 1994-95 season so that there can be no recovery for any net loss of income during the part of the current season while the strike was in effect. Taking these factors into consideration it is my finding that the claim for past loss income is assessed at $500,000.

118     Insofar as future loss is concerned, it is clear that Mellanby's condition relative to the comparables has been established and that the difference between his monetary potential and theirs has been established at roughly $100,000 per annum. In addition, it appears that the result of the strike has been arguably negative to the long-term prospects of players below the superstar category and that this is one of the many contingencies, both positive and negative, which I must consider.

119     In Schrump v. Koot (1977), 18 O.R. (2d) 337 (C.A.) Lacourciere J. states at page 339:

In this area of the law relating to the assessment of damages for physical injury, one must appreciate that though it may be necessary for a plaintiff to prove, on the balance of probabilities, that the tortious act or omission was the effective cause of the harm suffered, it is not necessary for him to prove, on the balance of probabilities, that future loss or damage will occur, but only that there is a reasonable chance of such loss or damage occurring.

120     In Graham v. Rourke (1990), 75 O.R. (2d) 622 (C.A.) Doherty J.A. states at page 634:

A plaintiff who establishes a real and substantial risk of future pecuniary loss is not necessarily entitled to the full measure of that potential loss. Compensation for future loss is not an all-or-nothing proposition. Entitlement to compensation will depend in part on the degree of risk established. The greater the risk of loss, the greater will be the compensation. The measure of compensation for future economic loss will also depend on the possibility, if any, that a plaintiff would have suffered some or all of those projected losses even if the wrong done to her had not occurred. The greater this possibility, the lower the award for future pecuniary loss: Personal Injury Damages in Canada, supra...

121     I am satisfied that Mellanby would probably have achieved the second level and that his career would have developed similarly to those of the comparable players. While it is said that I should consider a likelihood of injury as a substantial negative contingency, the fact that Mellanby missed only 20 games and has suffered no such injury, essentially negates this argument. I do not consider that the contingencies of this case are compelling in either direction and I consider it established that the contingencies both pro and con are balanced.

122     While the contingencies may be balanced, the future remains largely guesswork on the part of a Judge. A future pecuniary loss has been established on the basis of the evidence that I have heard, the careers of the comparables to date, the substantial effect of the injuries on Mellanby's career, and in particular, the fact that he was consigned to expansion draft. I must also consider in a general way the effect of the strike and I find it impossible to predict with any certainty the length of career that Mellanby would have had. Taking all of the evidence into consideration, I assess his future pecuniary loss at $250,000. In addition, incidental special damages were agreed to in the amount of $1,605.

Exemplary Damages

123     I find that an award of exemplary damages is appropriate against the defendant, Frank Chapple. I do so because the Rules require me to accept the allegations contained in the statement of claim as established against him. It is also clear that the criminal charges did not proceed against Chapple and there was no criminal sanction imposed. Chapple's actions were vicious and life-threatening. I also consider that Muskoka Sands lack of security and Chapple's likely perception that a large group of men was bearing down upon him contributed to his response. Nonetheless his actions are worthy of punishment and I award exemplary damages of $25,000 against him.

124     As I have found, Muskoka Sands did not have sufficient security in place on the evening of this incident. This negligence on their part was not high-handed nor intended to harm its patrons. I reject the suggestion that exemplary damages be awarded against Muskoka Sands. This award is not affected by the degrees of liability appropriate to the negligence issues.

General Damages

125     It was submitted on behalf of Mellanby and Muskoka Sands that non-pecuniary general damages in the order of $50,000 would be appropriate. I agree and award $50,000 in general damages to Mellanby.

Degrees of Liability

126     The Negligence Act, R.S.O. 1990, c.N.1 provides as follows:

1. -- Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent...

[emphasis added]

On the issue of relative degrees of liability, I consider Muskoka Sands to be 15% responsible, Mellanby to be 35% responsible, and Chapple 50% responsible. In making this apportionment, I consider that Mellanby should not have fought, and by doing so he must be taken to have risked the possibility of injury. Chapple's actions were deliberate and assaultive, and justify a greater degree of apportionment of responsibility than Mellanby. Muskoka Sands failed to discharge its supervisory and statutory responsibility; however, in my view, their contribution to this tragedy was the least of the three.

127     By virtue of his default, judgment will go against Frank Chapple for 100% of Mellanby's damages. I was urged to assess those damages without consideration to the defences put forward on behalf of the represented defendants. While damages might have been assessed on a default basis at any time before the trial, the fact that this was not done does not convince me that separate assessments should be made at this point. I consider that separate assessments of damages would be inappropriate and would lead to inconsistent results. For that reason, my decision with respect to damages as stated above reflects the judgment which should go against Frank Chapple. There will therefore be judgment against Frank Chapple and Muskoka Sands for general damages of $50,000, special damages of $501,605 and future pecuniary loss of $250,000. Also judgment shall go against Frank Chapple for the additional amount of $25,000 on account of exemplary damages.

128     The damages, subject to adjustment, for contributory negligence total $801,605.00. Applying my finding as to contributory negligence, Mellanby is entitled to judgment for $521,043.25. Muskoka Sands is responsible for 15% of the total award and Frank Chapple for 50%. Muskoka Sands and Frank Chapple are jointly and severally liable. Because of his default, Frank Chapple is liable for 100% of the judgment notwithstanding my finding for contributory negligence on the part of Mellanby and liability on Muskoka Sands. Similarly, Muskoka Sands is entitled to contribution and indemnity from Frank Chapple to the extent that it is called upon to contribute to Mellanby's recovery.

129     The action will be dismissed as against Pinkerton's and Geoff Chapple. The action of Ralph Mellanby will also be dismissed. I may be spoken to regarding pre-judgment interest and costs.

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