Supreme Court of Canada
Arnold v. Teno, [1978] 2 S.C.R. 287
Date: 1978-01-19
Wallace Arnold and
Brian Arnold (Defendants) Appellants;
and
Diane Marie Teno,
an Infant by her Next Friend Orville Teno, the Said Orville Teno and Yvonne Ten
(Plaintiffs) Respondents;
and
J.B. Jackson
Limited and Stuart Galloway (Defendants).
J.B. Jackson
Limited and Stuart Galloway (Defendants) Appellants;
and
Diane Marie Teno,
an Infant by her Next Friend Orville Teno, the Said Orville Teno and Yvonne
Teno (Plaintiffs) Respondents;
and
Wallace Arnold and
Brian Arnold (Defendants);
and
Yvonne Teno in her
Capacity as Defendant to a Claim for Indemnity (Plaintiff) Respondent.
Yvonne Teno and
Orville Teno (with Respect to the Claim of the Defendants for Contribution and
Indemnity (Plaintiffs) Appellants;
and
Wallace Arnold,
Brian Arnold, J.B. Jackson Limited and Stuart Galloway (Defendants)
Respondents;
and
Diane Marie Teno,
an Infant by her Next Friend Orville Teno and the Said Orville Teno (Plaintiffs)
Respondents.
1977: June 16, 17; 1978: January 19.
[Page 288]
Present: Laskin C.J. and Martland, Judson,
Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Negligence—Mother allowing child to cross
street to purchase ice cream from vending truck—Child struck by passing
car—Liability of truck owner, operator, car owner and driver—Duty of care—No
liability of mother to contribute—Standard of care—Folly.
Damages—Quantum—Young child struck by car
while recrossing street after purchasing ice cream from vending truck—Injuries
to brain with resultant physical disabilities and mental impairment.
The infant plaintiff, Diane Teno (DT), a
four-and-a-half-year-old child, crossed a street with her six-year-old brother
(having first obtained permission and money from her mother, Yvonne Teno (YT)
to make a purchase from an ice cream vending truck owned by the defendant J.B.
Jackson Limited (J) and operated by the defendant Stuart Galloway (G). The
children were served at a service window of the truck on the curb (right) side.
The infant plaintiff was served first and while G was serving her brother, DT
left to return to the opposite side of the street. After passing around the
front of the truck, she was struck by a car owned by the defendant Wallace
Arnold (WA) and driven by the defendant Brian Arnold (BA). The car had been
approaching from the rear but was not seen by G through his rear windows as, at
the time, he was reaching into the freezer to fill the order of DT’s brother.
As a result of the injuries sustained by DT, her mobility was seriously
lessened although technically she was not paralyzed, and she suffered a
considerable degree of mental impairment.
The trial judge gave judgment against the
four defendants apportioning the negligence between them in the following
percentages: one-third against the defendants BA and WA; one-third against the
defendants J and G, and one-third against the defendant J. The Court of Appeal
varied the apportionment of negligence as follows: BA and WA 25 per cent; J 25
per cent; G 25 per cent and YT 25 per cent.
As to damages, the trial judge assessed the
total damages of DT at $950,000 divided into two parts: $200,000 for
non-pecuniary damages and $750,000 for pecuniary damages. The Court of Appeal
reduced the
[Page 289]
award for pecuniary general damages by
$75,000, but otherwise did not interfere with the assessment of damages at
trial.
On appeal to this Court, the defendants J and
G appealed both against the judgment of the Court of Appeal as to their
liability and as to the quantum of damages assessed by the Court of Appeal. The
defendants WA and BA, on the other hand, appealed only against the quantum of
damages awarded by the Court of Appeal and resisted the appeal of J and G as to
the issue of their liability. The original plaintiffs DT and her parents OT and
YT, as respondents, resisted the appeals both as to liability and quantum of
damages.
Held: The
appeal of J and G as to liability should be dismissed; the appeal of OT and YT
against the finding by the Court of Appeal of contributory negligence on the
part of YT should be allowed, de Grandpré J. dissenting; the appeal of the
defendants as to the quantum of damages recoverable by the infant plaintiff
should be allowed and the damages to her fixed at $540,000. The award to the
plaintiff OT of special damages against the defendants in the sum of
$14,979.62, of which $7,500 is to be held in trust for his wife YT, should be
confirmed. As between themselves, the defendants J and G and the defendants WA
and BA should be liable for 50 per cent of the damages awarded.
Per Laskin
C.J. and Judson, Spence and Dickson JJ.:
I Liability:
The design of the ice cream truck, its
appearance, and the appearance of the products dispensed were all carefully
calculated to attract small children to purchase the wares dispensed from that
vehicle. In these circumstances, so soon as the defendants J and G put the
truck in operation on the streets, they then put themselves in such a
relationship with their child patrons that they became the neighbours of those
children and in the words of Lord Atkin in Donoghue v. Stevenson, “must
take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour”. It was inevitable that when
the company attracted the patronage of young children, on the evidence found to
be so young that they were of preschool age with little ability to comprehend
danger and none to read a warning sign on the side of the truck, then fail to
take proper steps to see that these children were not subjected to the gravest
danger of traffic accidents was only to fail to do what anyone with the
slightest common sense would have done. If J could not carry on its business
profitably and safely without a
[Page 290]
second attendant in the truck then the
company should not have been carrying on business in that fashion.
There was also negligence on the part of G
and his negligence became the further responsibility of his employer. Had G not
committed any other act of negligence, his failure to take the slightest
precaution of looking through his rear window in order to protect his little
customers would have been enough to attach liability to him. There were,
however, other acts of negligence. Having earlier realized that these children
might be injured by a passing vehicle, not to warn them or either one of them
before they started to return across the boulevard of the danger which could
arise from other cars was negligence. In fact, the permitting of the children
to cross the street at all in order to purchase might well be considered
negligent. That danger had been realized and in a manual which it was said
applied to an earlier vehicle the operators were warned not to permit children
to cross the street, and that warning was repeated for children old enough to
read with a sign on the left side of the truck.
II As to liability of YT to contribute:
The liability of the parent to contribute
himself must be considered in view of the accepted standard of care by parents
generally in the community. Here there was a mother of four young children who
was speaking to her husband on the telephone and was interrupted by the two
youngest crying for money to buy ice cream confections to be supplied by the
defendant J from a vehicle designed to attract if not entice young children.
The children had been used to buying confections from the same kind of dealer,
if not the same dealer, previously. The children had both received very strong
instructions as to how they should behave in reference to crossing the street
and, in fact, had crossed the street for that very purpose on other occasions.
The mother specifically reminded the children on this very occasion to “watch
out for cars”. It could not be said that that mother who permitted her children
to cross a quiet residential street to buy wares from the ice cream truck as
the same children and other children in the neighbourhood had been accustomed
to doing could be found to be contributorily negligent.
The circumstances refuted the submission that
to refuse contribution against YT would be to put a higher standard of care of
this infant upon J and G than on her own mother. YT and the other mothers in
the immediate community were entitled to rely on the vendor of the ice cream
from the vehicle in question to exercise some care toward the children which it
attracted.
[Page 291]
III Apportionment of liability:
The negligent driving of BA was a major
contributory cause of the accident and the negligent operation of the business
of J and the negligent conduct of its driver G taken together was a like major
contributory cause. All four defendants were liable to the plaintiffs for the
full amount of their damages but as between themselves WA and BA should
contribute 50 per cent to their co-defendants and J and G should likewise
contribute 50 per cent to those first named defendants.
IV Quantum of damages:
All of the evidence supported the conclusion
of the trial judge that the infant plaintiff could only receive the proper care
to which she is entitled under the regime advanced by the plaintiffs witnesses,
that is, in her own apartment with the attendants which her care requires. The
provision of such an appropriate standard of care must be the prime purpose in
the awarding of damages in personal injury cases such as the present.
Therefore, the view of the trial judge as confirmed in the Court of Appeal that
damages will have to provide for the care of the infant plaintiff in the sum of
$21,000 per year until she reaches the age of 19 years and in the sum of
$27,000 per year thereafter was adopted.
The problem of finding what amount of damages
should be directed by the judgment in order to assure the infant plaintiff the
provision of those sums of money annually for the rest of her natural life
brought up at once the question of the discount rate which should be applied to
find that present sum and this involved the consideration of income tax, of
present day investment rates, and of future inflation.
The deductions provided for in ss. 81(1)(g.1)
and 110(1)(c)(iv.1) of the Income Tax Act reduce the problem of
income tax on the income from the portion of the award devoted to the care of
the infant plaintiff to a great deal less significant proportion. In view of
future uncertainty as to the rate specified in s. 110(1)(c)(iv.1) and of
the fact that future rates of income tax, certainly those applicable in
particular circumstances, are only matters of speculation, there would be no
justification in assessing an amount to cover that possible income tax.
As to the appropriate discount rate, the
figure of 7 per cent was adopted as being the best compromise to, at the same
time, recognize the present very high rates of investment income and the
probability of future inflation.
The calculation by the Court below that the
award should be increased by an amount of $35,000 to provide
[Page 292]
a fund for the payment of a financial
management fee was accepted.
An award of some sum must be made for loss of
future earnings but there was no guidance whatsoever in the fixation of that
sum. It was found equitable to determine that the infant plaintiff would, at
least, have earned $7,500 per year for her business life. As held by this Court
in The Queen v. Jennings, [1966] S.C.R. 532, there should be no
deduction for income tax from the amount allowed by loss of future income.
A contingency deduction of 20 per cent should
be allowed from the $7,500 to make a net annual loss of income of $6,000 and
the present value of payments of $6,000 should only be calculated from the time
the infant plaintiff would have reached 20 years of age until she would have
reached the normal retirement age of 65 years. That present value should be
calculated at the same discount rate of 7 per cent as the present value of the
amount provided for future care.
As to non-pecuniary damages, while it is
impossible to compensate for the losses of the various elements involved in
such damages, it is reasonable, none the less, to make an award then gauge that
award by attempting to set up a fund from which the plaintiff may draw, not to
compensate for those losses, but, to provide some substitute for those
amenities.
There should be uniformity, always allowing
flexibility to meet each differing individual case, in awards for non-pecuniary
damages. Perhaps one should say there must be upper limits with awards lower in
some cases and some higher in exceptional cases. This Court has found $100,000
as being the upper limit in both Andrews and Thornton. Those were
both cases of young men turned by the accidents into quadriplegics but whose
mental faculties were unimpaired and who, by use of wheel chairs and
appropriate automotive vehicles, will be able to get about amongst their
fellowmen.
The infant plaintiff DT, although not
completely paralyzed, is so disabled that her very limited ability to walk is
accomplished in such an awkward fashion as to cause her continual
embarrassment. Her left arm is very clumsy, her right is useless because of
spastic weakness, her speech is impaired and nearly unintelligible and her
mental impairment has reduced her to the “dull normal range”. Such a condition
justifies a very generous award to permit the infant plaintiff to find some way
by which her life may be made a little more tolerable. Moreover, the infant
plaintiff in the present appeal has a life
[Page 293]
expectancy of 66.9 years while Andrews has a
life expectancy of only 45 years and Thornton only 49 years. Therefore, despite
the fact that the infant plaintiff, unlike Andrews and Thornton, will not need
the frequent actual treatment required by the latter such as turning in bed
every two hours, the other circumstances mentioned justify the allowance of the
same sum of $100,000 to her under the heading of non-pecuniary damages.
Per Martland,
Ritchie, Pigeon and Beetz JJ.: All defendants should be held liable and, as
between them, there should be an even division between WA and BA on one hand
and J and G on the other. Also, there should be no contribution by YT. The
evidence fully supported the conclusion of the trial judge that the parents of
these children did not depart from the generally accepted standard of care. The
same should be said of the defendant J, the ice cream vending company whose
truck was in charge of the defendant G. Although there was no reason to
interfere with the concurrent findings of negligence against the latter, the
finding that J was liable for the accident, not only by reason of G’s
negligence but also by reason of the way in which its vending business was
conducted, could not be accepted. The general opinion among municipal
authorities was that a one-man operation was reasonable. The parents of the
children as well so considered it by giving their children money to buy ice
cream from the vending truck rather than objecting to the operation. The
parents were entitled to expect that the truck operator would not fail to watch
for oncoming traffic and to warn the children against imprudently crossing the
street in front of the truck. The parents were also entitled to expect that
automobile drivers would not pass such trucks without taking the special
precautions called for. It could not be accepted that what the parents
considered reasonably safe, should be considered a “folly” on the part of the
ice cream vending company.
Per de
Grandpré J., dissenting in part: While inclining to the view that there
was no negligence on the part of J and G, the conclusion was reluctantly
reached, because of the concurrent findings in the Courts below, that they
cannot be considered blameless. However, the views of Pigeon J. were shared
that the liability of J is vicarious only.
It could not be accepted that the mother had
committed no negligence. If an ice cream merchant is responsible to his young
customer because his employee failed to take the reasonable care owed to a
child who had
[Page 294]
become his “neighbour”, the mother, in the
circumstances of this case, cannot be said to be in a better position. The duty
of care resting on a parent is a paramount one and does not come to an end
because a third party comes into the picture and is found to have been
negligent for having allowed the child to cross the street and for having
failed to warn that child of an approaching car. The mother who had just given
to her two young children the money to buy ice cream and who knew that the
truck was on the other side of the boulevard cannot be said to be under a
lesser duty than that resting on the merchant’s employee.
[Bressington v. Commissioner for Railways
(1947), 75 C.L.R. 339, distinguished; Donoghue v. Stevenson, [1932] A.C.
562; Gambino v. Dileo, [1971] 2 O.R. 131; Beckerson v. Dougherty,
[1953] O.R. 303; Cowle v. Filion, [1956] O.W.N. 881; McCallion v.
Dodd, [1966] N.Z.L.R. 710; The Queen v. Jennings, [1966] S.C.R. 532;
Mallett v. McMonagle, [1970] A.C. 166; Taylor v. O’Connor,
[1971] A.C. 115; Taylor v. Bristol Omnibus Co., [1975] 2 All E.R. 1107; Warren
v. King, [1963] 3 All E.R. 521; Eaton v. Moore, [1951] S.C.R. 470; Cavanagh
v. Ulster Weaving Co., [1960] A.C. 145, referred to.]
APPEALS from a judgment of the Court of
Appeal for Ontario, allowing in part
an appeal from a judgment of Keith J. in an action for damages for personal
injuries. Appeal of defendants J.B. Jackson Limited and Stuart Galloway as to
liability dismissed; appeal of plaintiffs Orville Teno arid Yvonne Teno against
finding by Court of Appeal of contributory negligence on part of Yvonne Teno
allowed, de Grandpré J. dissenting; appeal by all defendants as to quantum of
damages allowed.
Appeal re damages:
B. O’Brien, Q.C., for the appellants,
J.B. Jackson Limited and Stuart Galloway.
R.E. Barnes, Q.C., and J.A. Bear, for the
appellants, Wallace and Brian Arnold.
E. Cherniak, Q.C., M. Wunder, Q.C., and
Ms. M.A. Sanderson, for the respondents, Diane, Orville and Yvonne Teno.
[Page 295]
Appeal re liability:
B. O’Brien, Q.C., for the appellants,
J.B. Jackson Limited and Stuart Galloway.
B.A. Percival, Q.C., and M.S. Kaczkowski,
for the appellants Yvonne and Orville Teno.
E. Cherniak, Q.C., M. Wunder, Q.C., and
Ms. M.A. Sanderson, for the respondents, Diane, Orville and Yvonne Teno.
R.E. Barnes, Q.C., and J.A. Bear, for the
respondents, Wallace and Brian Arnold.
The judgment of Laskin C.J. and Judson, Spence
and Dickson JJ. was delivered by
SPENCE J.—These are my reasons for judgment in
these appeals. Taken together, these three appeals are grouped as one of a
series of four cases in which this Court was concerned with the quantum of
damages to be awarded for very serious personal injuries. In two, Andrews v.
Grand and Toy Limited et al., and Thornton v. Board of School Trustees
et al., the plaintiffs were young men who became quadriplegic as a result
of their injuries although their mental capacities were unaffected while in the
present appeal the plaintiffs mobility was very seriously lessened although
technically she was not paralyzed and she suffered a very considerable degree
of mental impairment. The fourth appeal was in a claim under The Fatal
Accidents Act. In all four, however, very similar problems arose and the
Court has determined to pronounce its judgments on all four at the same time.
The very serious problems in the assessment of damages have been engaging the
attention of the members of the Court for some months. We have received much
assistance from each other. I am most grateful for the opportunity to peruse
and consider the reasons of my brother Dickson in Andrews and in Thornton and I have adopted much of his reasoning herein.
I turn now to the three appeals considered in
these reasons. They are three appeals all taken with leave of this Court. The
action was originally taken by Diane Marie Teno, an infant, by her next friend
Orville Teno, and the said Orville Teno and Yvonne Teno against four
defendants: J.B. Jack-
[Page 296]
son Limited, Stuart Galloway, Wallace Arnold and
Brian Arnold.
By their statement of defence, the defendants
J.B. Jackson Limited and Stuart Galloway claimed contribution from the
plaintiffs Orville Teno and Yvonne Teno and the defendants Wallace Arnold and
Brian Arnold took a like course in the statement of defence filed on their behalf.
Keith J., in very detailed and most carefully
considered reasons for judgment, gave judgment against the four defendants
apportioning the negligence between them in the following percentages:
1/3 against the defendants Brian Arnold and
Wallace Arnold,
1/3 against the defendants J.B. Jackson Limited
and Stuart Galloway, and
1/3 against the defendant J.B. Jackson Limited.
Keith J. refused to order any contribution to be
made by the plaintiffs Orville Teno and Yvonne Teno. The Court of Appeal varied
the apportionment of negligence as follows:
Brian Arnold and Wallace Arnold 25%
J.B. Jackson Limited 25%
Stuart Galloway 25%
Yvonne Teno 25%
I should add that Thomas J. Lipton Limited had
been named originally as a party defendant but the plaintiffs discontinued
against that party at trial and the action was dismissed as against it. I shall
refer later to the quantum of damages.
The circumstances giving rise to the action are
somewhat complicated. Rather than set them out in detail, I shall refer to the
judgment of the Court of Appeal for Ontario, now reported as Teno et al. v.
Arnold et al. Zuber
J.A. giving judgment for the Court, at pp. 587-590, set those facts out and,
except where I shall be required to refer further to facts or evidence, I adopt
them for the purpose of these reasons.
[Page 297]
In their appeal to this Court, the defendants
J.B. Jackson Limited and Stuart Galloway appealed both against the judgment of
the Court of Appeal as to their liability and as to the quantum of damages
assessed by the Court of Appeal for Ontario. The defendants Brian Arnold and Wallace Arnold, on the other hand,
appealed only against the quantum of damages awarded by the Court of Appeal for
Ontario and resisted the appeal
of J.B. Jackson Limited and Stuart Galloway as to the issue of their liability.
The original plaintiffs Diane Teno and Orville Teno and Yvonne Teno, as
respondents, resisted the appeals both as to liability and quantum of damages
and the original plaintiff Yvonne Teno appeals from that portion of the judgment
of the Court of Appeal granting contribution against her to the extent of 25
per cent.
I
AS TO
LIABILITY
As I have said, Keith J. at trial found
liability against all defendants. As to the defendant Brian Arnold, the driver
of the vehicle which struck the infant Diane Teno, Keith J. cited the
provisions of s. 106(1) of The Highway Traffic Act, R.S.O. 1960, c. 172,
which was in effect at the date of the accident and which now appears as R.S.O.
1970, c. 202, s. 133(1). It reads:
133. (1) When loss or damage is sustained
by any person by reason of a motor vehicle on a highway, the onus of proof that
the loss or damage did not arise through the negligence or improper conduct of
the owner or driver of the motor vehicle is upon the owner or driver.
After a detailed examination of the evidence;
Keith J. expressed his conclusion as follows:
He has failed to satisfy me that he was
concentrating as he ought, on the potential traffic situation in front of him
as he overtook and passed the ice cream truck. Had he been driving at a proper
speed he could and ought to have seen the child in time to have avoided
striking her.
In the result Brian Arnold must be held
liable to the plaintiffs for any damages suffered by them.
[Page 298]
Keith J., of course, held Wallace Arnold liable
as the owner of the vehicle under the provisions of the then s. 105(1) of The
Highway Traffic Act, nows. 132(1) of R.S.O. 1970, c. 202.
The judgment, in so far as the liability of
those two defendants, was confirmed in the Court of Appeal. As I have said,
they did not contest the said judgment as to liability in this Court.
Keith J. commenced his consideration of the
liability of the defendants J.B. Jackson Limited and Stuart Galloway by again
referring to the provisions of the onus s. 133(1) which I have quoted above and
after examining Godfrey et al. v. Gadbois et al., came to the conclusion that the onus
section applied to those defendants.
Much argument in both the Court of Appeal and in
this Court was directed toward the correctness of that decision. I am of the
opinion that the question is quite academic as there is no doubt that the
findings of fact made by Keith J. and by the Court of Appeal, with which
findings, as I shall show, I am in agreement, make it unnecessary to consider
any question of the application of the onus.
I adopt the view of Lord Dunedin in Robins v.
National Trust Co., at p.
520:
But onus as a determining factor of the
whole case can only arise if the tribunal finds the evidence pro and con so
evenly balanced that it can come to no such conclusion. Then the onus will
determine the matter. But if the tribunal, after hearing and weighing the
evidence, comes to a determinate conclusion, the onus has nothing to do with
it, and need not be further considered.
The approach taken by both Keith J. at trial and
by the Court of Appeal was that the renowned speech by Lord Atkin in Donoghue
v. Stevenson, at p.
580, set out the duty which lay upon J.B. Jackson Limited and the driver of the
ice cream
[Page 299]
truck Stuart Galloway. Although those words have
been oft cited, I repeat them:
At present I content myself with pointing
out that in English law there must be, and is, some general conception of
relations giving rise to a duty of care, of which the particular cases found in
the books are but instances. The liability for negligence, whether you style it
such or treat it as in other systems as a species of “culpa”, is no doubt based
upon a general public sentiment of moral wrongdoing for which the offender must
pay. But acts or omissions which any moral code would censure cannot in a
practical world be treated so as to give a right to every person injured by
them to demand relief. In this way rules of law arise which limit the range of
complainants and the extent of their remedy. The rule that you are to love your
neighbour becomes in law, you must not injure your neighbour; and the lawyer’s
question, Who is my neighbour? receives a restricted reply. You must take
reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour. Who, then, in law is my neighbour?
The answer seems to be—persons who are so closely and directly affected by my
act that I ought reasonably to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions which are called in
question. This appears to me to be the doctrine of Heaven v. Pender, 11
Q.B.D. 503, 509, as laid down by Lord Esher (then Brett M.R.) when it is
limited by the notion of proximity introduced by Lord Esher himself and A.L.
Smith L.J. in Le Lievre v. Gould, [1893] 1 Q.B. 491, 497, 504. Lord
Esher says:
That case established that, under certain
circumstances, one man may owe a duty to another, even though there is no
contract between them. If one man is near to another, or is near to the
property of another, a duty lies upon him not to do that which may cause a
personal injury to that other, or may injure his property.
So A.L.Smith L.J.:
The decision of Heaven v. Pender, 11
Q.B.D. 503, 509, was founded upon the principle, that a duty to take due care
did arise when the person or property of one was in such proximity to the
person or property of another that, if due care was not taken, damage might be
done by the one to the other.
I think that this sufficiently states the
truth if proximity be not confined to mere physical proximity, but be used, as
I think it was intended, to extend to such close and
[Page 300]
direct relations that the act complained of
directly affects a person whom the person alleged to be bound to take care
would know would be directly affected by his careless act.
Counsel for the appellants Jackson and Galloway
submit that to find his clients liable represented a drastic and unreasonable
change in the law in that that company and its servant Galloway were carrying
on a legal and an ordinary business and that the negligence charged against
them in the lower Courts was the negligence of omission submitting that a
defendant should not be found guilty because of an omission in the conduct of
his business unless it was shown that either the thing which was not done was
commonly done by other persons in like circumstances or that it was a thing
which was so obviously wanted that it would be folly for anyone to neglect to
do it. In the circumstances of this case, the defendant J.B. Jackson Limited
caused to be designed for it a particular form of vehicle for the purpose of
selling ice cream products on the streets. The design of the vehicle, its
appearance, and the appearance of the products dispensed were all carefully
calculated to attract small children to purchase the wares dispensed from that
vehicle. The driver of the vehicle was instructed that he should dispense those
wares from the vehicle. Printed in red letters along the left hand side of the
vehicle were the words: WAIT ON CURB—I’LL COME TO YOU.
Evidence was given by John R. Jackson, who, at
the time of the accident giving rise to this action, had been president of J.B.
Jackson Limited, that a manual had been issued to operators which included most
specifically directions to require the operator to carry out that course and
never permit children to cross the street to the ice cream truck, but, he
continued, that manual had application particularly to a smaller and
differently designed truck and it was not practicable from a business economics
standpoint to adopt such a course in the business operation carried out by the
truck used at the time of the accident. Galloway gave evidence that upon
reading the manual and looking at the truck, he also concluded that such a
course was not practicable and that he was informed by a supervi-
[Page 301]
sor on his instruction, which took only part of
one day, that certain portions of the manual were inapplicable.
The operators, such as Galloway, were given no specific instructions as to the handling of young
children.
A slight consideration had been given to the
suggestion, made by municipal authorities in another city, that the truck
should be manned by a second person so that some care could be given to small
children who were its constant patrons but it was not adopted on the ground of
economic infeasibility.
In dealing with the liability of J.B. Jackson
Limited, Keith J. said:
In all these circumstances, I have no doubt
that the defendant J.B. Jackson Limited quite apart from any vicarious
liability, owed a duty of care to customers too young to be held responsible
for their actions and that they were in breach of such duty on the occasion of
the accident in question. If, as it may well have been, uneconomic to employ a
second person to travel with the truck and be responsible for the safety of
young children customers, then it was at the very least their duty to instruct
their driver‑salesman to discharge this responsibility. If even this
couldn’t be done economically, then they shouldn’t have had their trucks on the
streets.
Zuber J.A. in giving judgment for the Court of
Appeal for Ontario upon the same topic after quoting as I have from Donoghue
v. Stevenson, supra, and then referring to Home Office v. Dorset
Yacht Co. Ltd. and Jordan
House Ltd. v. Menow & Honsberger,
continued:
In considering how these principles may be
applied to this case, some further comment with respect to factual matters is
required. The defendant Jackson and its employee, Galloway, were in the
business of selling ice cream largely to children. To accomplish this end,
children were deliberately drawn into the street by the use of an attractive
truck and ringing bells. The defendants were aware that many of the children so
attracted were obliged to cross and re-cross the roadway and also that many of
the children were too young to take proper care for their own safety. The
evidence amply demonstrates
[Page 302]
(if indeed it is necessary) that the
defendants knew of the danger inherent of this type of enterprise.
When Galloway and Jackson induced the Teno
children into the street, they assumed a duty to take reasonable care of them.
It is perhaps ironic that while others concerned with the safety of children do
what they can to dissuade children from running into the street, the purpose of
the defendants was to accomplish the opposite. The children induced into the
street by the defendants, to use Lord Atkin’s expression, become the neighbours
of the defendants.
I am of the opinion that such conclusions by the
learned trial judge and by the Court of Appeal for Ontario were perfectly proper applications of the salutary principle so
clearly put by Lord Atkin in Donoghue v. Stevenson, supra, and I
arrived at a conclusion exactly in accordance with them. As to the objection
that these defendants were carrying on a legal and ordinary business, certainly
they are entitled to carry on that business but they must carry it on with
ordinary regard for the safety of others inevitably, and therefore foreseeably,
involved in the defendants’ operation of the business. I am of the opinion that
so soon as these defendants put that ice cream truck in operation on the
streets of Windsor in the fashion which has been described above, then they put
themselves in such a relationship with their child patrons that they became the
neighbours of those children and in the words of Lord Atkin, “must take
reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour”.
To the objection that what it charged against
these defendants is an omission and not a commission and that liability in
negligence can only be found in the case of an omission when it is a failure to
do what others carrying on a like business ordinarily do or when it is so
obviously needed that it would be folly for anyone to fail to so act, my answer
is that the latter category exactly fits the actions of the defendant J.B.
Jackson Limited. It was inevitable that when the company attracted the
patronage of young children, on the evidence found to be so young that they
were of pre-school age with little ability to comprehend danger and none to
read, then fail to take proper steps to see
[Page 303]
that these children were not subjected to the gravest
danger of traffic accidents was only to fail to do what anyone with the
slightest common sense would have done. I agree with the comments made by both
the learned trial judge and Zuber J.A. that if the defendant Jackson could not
carry on its business profitably and safely without a second attendant in the
truck then the company should not have been carrying on the business in that
fashion.
Counsel for the appellant cited, inter alia,
Bressington v. Commissioner For Railways, for the proposition that unless it is
shown that it is practicable to provide against a danger it cannot be shown
that it is reasonable to do so. The facts in that case are so startlingly
different that one must be most careful in drawing any general principle
therefrom. They were as follows. A busy railway shunting yard was open only to
members of the shunting crew. There the railway cars could move at any time
without any warning when shunted by a locomotive from the other end of a line
of cars. Two men, without watching, walked a few feet behind a stationary
railway car. An impact at the other end of the line of cars drove the last one
forward to hit them. It was argued that the accident might have been avoided if
there had been placed at the end of each line of railway cars an employee to
warn his fellow employees when one of the railway cars might be moved. The mere
recital of the facts show how little application they have to a case where, by
ringing bells and flashing lights on a truck adorned by cartoons, to attract
attention, most desirable confections were sold to very young children.
It is true that the ease with which protection
may be afforded is a strong argument that to provide such protection is only
reasonable, but surely that principle would not apply to protect those who, for
commercial purposes, engage in a business which is intended to and does attract
very young children into an area of extreme danger. I would, therefore, confirm
the finding of negligence against J.B. Jackson Limited.
[Page 304]
Both the trial Court and the Court of Appeal for
Ontario found that in addition
to the negligence of J.B. Jackson Limited its driver Stuart Galloway was also
negligent in the course of his employment for which negligence his employer is,
of course, responsible in law.
As I have said before, Galloway was extremely
untrained. He was an 18 or 19-year-old student (both ages are mentioned in the
reasons) who had been working for about six weeks after reading a manual said
to be inapplicable at least in part to the vehicle which he operated and who
had a part of a day’s instruction by a supervisor. That supervisor seemed
mostly concerned not with safety but with efficient merchandising. As Galloway
drove south on Academy Drive, he observed to his left on a lawn at the east
side of the street two young children who turned out to be the victim and her
brother aged, respectively, 4½ years and 6 years plus a month. It was
quite evident to Galloway that
these children had been attracted by the ice cream truck with its bells and
lights and were coming to purchase. Galloway stopped his truck on the west side
of Academy Drive against the west curb so that these children had to cross,
firstly, the two northbound lanes then the boulevard and then the two
southbound lanes to get to the right hand side of his truck where the service
window was open awaiting them.
Galloway observed in his rear view mirror, while
still seated at the steering wheel, a vehicle approaching from the north so
that that vehicle would pass to the left side of his then stopped truck, and he
spoke to these two children warning them to stop. The two children stood on the
easterly curb of the southbound lanes, that is, at the west side of the
boulevard until that car had passed then crossed the southbound lanes and came
to his service window.
In the report of the judgment for the Court of
Appeal for Ontario to which I
have referred above, it is recited how Galloway first served the little girl,
Diane Teno, the plaintiff, and then turned to her brother. On Brian Arnold’s
evidence, at the moment when Galloway took the latter child’s
[Page 305]
order and turned to bend down into the freezer
and take out the wares which the child had ordered he, Brian Arnold, was
proceeding southward on Academy Drive between his friend’s house and the rear of the truck. That
distance, on the evidence, was about 350 to 400 feet. Brian Arnold travelled
between a minimum of 15 and a maximum of 25 miles per hour and, on his
evidence, as he approached the rear of the truck he was travelling about 20 miles
per hour so that the latter might be taken as his average speed. At that
average speed, it would take him between 11 and 12 seconds to cover this
distance from his friend’s house to the ice cream truck. During that whole
distance, he would have been plainly visible to Galloway if Galloway had chosen to give the slightest
glance through the large glass windows in the rear of his truck. Had he done
so, he could not have failed to see that the two children, and particularly the
little girl whom he had just served, would be in imminent danger of being
struck when they returned to go home on the other side of the street, as it was
inevitable that they would do.
Had Galloway not committed any other act of
negligence, I would have found that the failure to take the slightest
precaution of looking through his rear window in order to protect his little
customers would have been enough to attach liability to him. There were, of
course, other acts of negligence. Having first realized that these children
might be injured by the first southbound automobile, to fail to warn them or
either one of them before they started to return across the boulevard of the
danger which could arise from other cars was negligence. I am of the opinion
that, in fact, the permitting of the children to cross the street at all in
order to purchase might well be considered negligent. That danger had been
realized and in the manual which it was said applied to the earlier vehicle the
operators were warned not to permit children to cross the street, and that
warning was repeated for children old enough to read with a sign on the left
side of the truck to which I have already referred.
With respect, I agree with the view of Keith J.
when he said:
[Page 306]
In my judgment Galloway, in serving his employer as he did, was himself negligent and his
negligence becomes the further responsibility of his employer.
II
AS TO
THE LIABILITY OF YVONNE TENO TO CONTRIBUTE
I turn next to consider the position of Yvonne
Teno as appellant. As I have said, both the defendants Wallace Arnold and Brian
Arnold and the defendants J.B. Jackson Limited and Stuart Galloway claimed
contribution from both the adult plaintiffs Orville Teno and Yvonne Teno. At
trial, after consideration of the issue, Keith J. concluded:
The parents of these children did not
depart from the generally accepted standard of care.
In any event the negligence that caused
injury to Diane Teno was the combined negligence of Brian Arnold, Stuart
Galloway and J.B. Jackson Limited, and the claim for indemnity against Orville
Teno and Yvonne Teno fails.
Zuber J.A., for the Court of Appeal, in his
reasons, said:
The next issue in this case is whether or
not there was any negligence on the part of Yvonne Teno.
The notice of appeal to the Court of Appeal on
behalf of Wallace Arnold and Brian Arnold simply alleged that the learned trial
judge erred in finding that the conduct of Yvonne Teno did not contribute to
the injuries and amount to negligence but the solicitor for the defendants
J.B. Jackson Limited and Stuart Galloway, in their notice of appeal to the
Court of Appeal, alleged that the learned trial judge erred in finding the
injuries of the plaintiff had not been caused by or contributed to by the
negligence of the plaintiffs Yvonne Teno and Orville Teno. It would
appear that in their argument of the appeal, the appellants desisted from
claiming any contribution by Orville Teno, the father of the infant plaintiff.
Zuber J.A. found that negligence of the mother Yvonne Teno had contributed to
the injuries to her daughter, saying, “The conduct of Yvonne Teno falls short
of the
[Page 307]
standard to be expected from a reasonably
prudent mother under the circumstances”.
In the report of the judgment of the Court of
Appeal for Ontario, the actual
circumstances leading to the time when the infant plaintiff and her brother
left their home and approached the ice cream truck are carefully detailed and I
need not repeat them.
A few additional facts were adduced in evidence
which might well be stated.
Academy Drive is a residential street ending
one-and-a-half blocks to the south of the site of the accident at a private
girls’ secondary school. There were no sidewalks on either side of Academy Drive. During the summer, when the
school is not in operation, this street might be considered to have a reduced
volume of traffic. About 25 young children reside in the block where the
accident occurred.
The infant plaintiff, Diane Teno, was a normal,
active child of four-and-a-half years of age and left the home accompanied by
her brother six years and one month old. Evidence given by the parents was that
both children had received repeated instructions from the parents as to the
proper method of crossing streets, and the infant plaintiff had been instructed
to never cross streets unattended. She had frequently crossed this very Academy Drive but accompanied by her
brother or older sister or by a baby sitter and had crossed Academy Drive before in company with this
very same brother to purchase ice cream from ice cream vending trucks. At the
time of this accident, the infant plaintiff and her sister and brothers were
playing in the front yard of the house immediately next door to their home when
they heard the sound of the bells announcing the approach of the ice cream
truck. Their mother, the appellant Yvonne Teno, had been engaged in her
housework and answered a telephone call from her husband who was at work in Detroit. That call was, therefore, a long
distance call although the tariff would have been small for such a short
distance. Upon the children requesting money to
[Page 308]
purchase from the ice cream vendor, Yvonne Teno
gave the money to both of them and admonished them “watch out for cars”. The
children left the house and very shortly thereafter, while she was still
speaking to her husband on the telephone, Yvonne Teno heard the “thump” of the
accident.
Galloway testified that it was not unusual to
observe pre-school age children approaching the ice cream vending truck alone
or in small groups or with their parents. On this evidence, Keith J.
considered the claim for contribution on the basis that there was no doctrine
of identification in Ontario such as has been applied in various states in the
United States of America and that therefore it was possible for a parent to
have been found in breach of a duty of care to a child and liable for that
child’s damages, citing Gambino et al. v. Dileo et al. That was a judgment of Osler J. at trial.
The case does not seem to have gone to appeal. That was another case of
children being injured when leaving an ice cream vending truck. There, however,
the infant plaintiffs, by their father as next friend, had sued only the
owner-driver of the automobile which struck them and not the operator of the
ice cream truck. The father had been sitting on the front steps of his home
immediately across the road from where the ice cream truck had stopped in front
of a small park. Upon the two infants desiring to purchase ice cream, he
accompanied the two of them across the street having to pass between a row of
parked cars on his own side of the street before reaching the truck. He then
left the children and returned to resume his position on the front steps and
the reading of his paper.
Osler J. said at p. 134:
Under all these circumstances I find that the
failure of Mr. Gambino either to keep his children constantly in view so
that he could be ready to assist them, or to remain on the same side of the
road as the children in order to guard them from the possibility of crossing on
their own, constitutes negligence for which he must bear responsibility.
[Page 309]
He assessed a 25 per cent contribution upon the
father.
Another decision by a trial court judge in Ontario is also of some interest, that is
Anger J.’s judgment in Beckerson and Beckerson v. Dougherty. There a boy four and one-third years old
was struck by the defendant’s automobile on Barton
Street in the City of Hamilton when the child was several hundred yards away from his home which
was on a different street. The father gave evidence as to a general plan of
supervision whereby one of the mothers in the area was supposed to look after
the group of children but could not give any evidence as to any actual
supervision at the time of the accident and testimony of the motorist was that
he saw no evidence of such supervision. Anger J., relying on Pedlar v.
Toronto Power Co., came
to the conclusion that a parent’s contributory negligence in failing to take
proper care of an infant child could affect the parent’s own right to recovery
for out-of-pocket expenses in the subsequent care of the injured child. In the
result, Anger J. gave judgment for the infant plaintiff for $1,500 and for the
adult plaintiff for only 70 per cent of the out-of-pocket expenses incurred by
such adult plaintiff. There does not seem to be any discussion in the case as
to any liability of the parent to contribute to the defendant any percentage of
the amount awarded against the defendant in favour of the infant plaintiff.
In the present case, the learned trial judge
allowed out-of-pocket expenses of $7,979.62 and another sum of $7,500 to the
male adult plaintiff Orville Teno. It was directed that the amount of $7,500 be
held in trust for the female plaintiff, the mother, Yvonne Teno, as a quantum
meruit for her care of the infant plaintiff up to the date of the trial. On
appeal, there was no contest as to that portion of the judgment and despite the
contribution of 25 per cent awarded to the defendants against the adult
plaintiff Yvonne Teno there was no direction of any reduction because of the 25
per cent contribution.
[Page 310]
In Cowle and Cowle v. Filion, Miller Co.Ct.J. considered an action by
an infant plaintiff and by the infant plaintiffs father against a motorist
based on the injuries to the child and found that the motorist had not
discharged the onus in the Ontario statute to which I have previously referred
and then continued to consider the claim by the defendant that the adult
plaintiff should be found guilty of negligence. He said at pp. 884-5:
The parents of this child did not
intentionally permit him to play on the street. He had been told not to go on
the street. On the day in question they sent him out to play at the rear of
their apartment, where he was accustomed to ride his tricycle on the walk and
to play in the sand‑boxes provided for that purpose in the play-area. The
play-area was surrounded by a fence but there were openings at each end for
which no gates were provided. His mother looked out the window from time to
time to see that he was all right. He had on some occasions wandered away and
she had had to go after him but he had not gone on the street before, to the
knowledge of his parents. The street was not “a main thoroughfare” but a
residential street and the fact that at the time of the accident there was no
other traffic would indicate that it was not a busy street. According to the
father’s evidence the child had been out of the house for 15 or 20 minutes at
the time of the accident, but when he left the area behind his home does not
appear. As I have said, it was a residential area for members of the army and
it was estimated that there were 200 or 300 children resident in the
settlement. There were 40 or 50 children playing around the vicinity of the
plaintiff's home at the time in question. There was no suggestion in
cross-examination or otherwise that the parents of the infant plaintiff took
any fewer precautions than those taken by all the other parents in the area. If
anything was said, at the time the injured child was brought into the house, as
to the mother being at fault I am satisfied that neither parent said anything
to indicate that the child had been knowingly permitted on the street.
In Ware’s Taxi Limited et al. v.
Gilliham et al., [1949] S.C.R. 637, [1949] 3 D.L.R. 721, although there was
disagreement as to the effect of the evidence in the case, all of the members
of the Court apparently agreed that the conduct of other parents, or of parents
generally, might be taken as one test of the reasonableness or sufficiency of
the actual care in the particular case.
[Page 311]
In my opinion the adult plaintiff and his
wife did not fail to act as reasonable and prudent parents and the adult
plaintiff is not liable for indemnity or contribution with respect to the
damages payable by the defendant to the infant plaintiff. Neither do I think
that the expenses incurred by the adult plaintiff by reason of his child’s
injuries were, in whole or in part, the result of any want of reasonable care
on his part.
McCallion v. Dodd
and another is a
decision of the Supreme Court of New Zealand on appeal from Gresson J. In that
case, the father and mother and two boys, the younger of which was four years
of age, were walking along a rural highway after dark on the side of the road
which would cause overtaking traffic to come from behind them. The driver of an
overtaking automobile failed to observe the four and struck them killing the
mother and badly injuring the four-year-old boy. The defendant issued a third
party notice against the father alleging his negligence in failing to take care
of the infant and the trial judge gave effect to that third party notice
allowing a contribution by the father in favour of the defendant. In the Court
of Appeal, the right to such a contribution was confirmed. North P. said at p.
721:
A stranger would render himself liable in
negligence only if he had on a particular occasion assumed or accepted the care
and charge of the child. It seems to me, however, that parents are in a
somewhat different position, and at all times while present are under a legal
duty to exercise reasonable care to protect their child from foreseeable
dangers. I do not consider that a parent while present is ever able to
shed responsibility for the child’s safety though on the facts it may appear
that he was not negligent by reason of his preoccupation with other things. It
has been accepted that a person who, as a parent, has control of a child is
responsible for negligence in the exercise of that control if injury results to
another.
(The italics are my own.)
There are some other cases but I deduct
therefrom a confirmation of the principle referred to by both the trial judge
and the Court of Appeal that the liability of the parent to contribute himself
be
[Page 312]
considered in view of the accepted standard of
care by parents generally in the community.
Keith J. found that the appellant Yvonne Teno
had acted in accordance with that standard. Zuber J.A., in giving judgment for
the Court of Appeal for Ontario,
was strongly of the view that she had not, saying “the conduct of Yvonne Teno
falls short of the standard to be expected from a reasonably prudent mother
under the circumstances”. With respect, I am of the opinion that the learned
trial judge came to the correct conclusion. Here was a mother of four young
children who was speaking to her husband on the telephone and was interrupted
by the two youngest crying for money to buy ice cream confections to be
supplied by the defendant J.B. Jackson Limited from a vehicle designed to
attract if not entice young children. The children had been used to buying
confections from the same kind of dealer, if not the same dealer, previously.
The children had both received very strong instructions as to how they should
behave in reference to crossing the street and, in fact, had crossed the street
for that very purpose on other occasions. The mother specifically reminded the
children on this very occasion to “watch out for cars”. I do not think it can
be said that that mother, who permitted her children to cross that quiet
residential street to buy wares from the ice cream truck as the same children
and the other children in the neighbourhood had been accustomed to doing, can
be found to be contributorily negligent. I approach this conclusion in the
light of all the circumstances as to the attraction to young children by the
defendant J.B. Jackson Limited’s method of carrying on its business and in the
light of the defendant Brian Arnold’s failure to observe any ordinary
precaution in driving down a street where 25 children resided in the same block
and where this infant child attractor, the ice cream truck, was present.
It was the emphatic submission of counsel on
behalf of J.B. Jackson Limited and Stuart Galloway that to refuse
contribution against Yvonne Teno would be to put a higher standard of care of
this infant upon these two defendants than on her
[Page 313]
own mother. In my opinion, the circumstances to
which I have referred above refute that submission. The standard of care put on
the mother is, I think, properly the standard of care of mothers in the
immediate community of the approach of this ice cream truck which was designed
to attract and actively operate so that even children of tender years were
enticed to purchase its wares. Yvonne Teno and the other mothers were entitled
to rely on the vendor of the ice cream from such a vehicle to exercise some
care toward the children which it attracted. I, therefore, am of the opinion
that the appeal of Yvonne Teno should be allowed and that no contribution
should be assessed against her.
III
APPORTIONMENT
OF LIABILITY
This brings me to the apportionment of the
liability of the four defendants against whom liability has been found. Of
course, the defendants Wallace Arnold and Brian Arnold should bear the same
proportion. For the reasons outlined at trial, in the Court of Appeal and in
these reasons, I have found that there was negligence on the part of both the
defendant J.B. Jackson Limited and the defendant Stuart Galloway. There
were separate acts of negligence of these two defendants, the corporate
defendant by the driving of its vehicle and its method of operation, the driver
Galloway by his acts of commission and omission. However, the effect of those
various acts of negligence is so interwoven that it is not realistic to
separate them and I have determined, after some consideration and not without
some reluctance, that a just division would be to lump the contribution of
Wallace Arnold, the owner, and Brian Arnold, the driver, on one side, and that
of J.B. Jackson Limited and its employee Galloway on the other. In my view, the
negligent driving of Brian Arnold was a major contributory cause of the
accident and the negligent operation of the business of Jackson and the negligent conduct of its
driver Galloway taken together was a like major contributory cause. I would,
therefore, hold that, of course, all four are liable to the plaintiffs for the
full amount of their damages but as between themselves Wallace Arnold and Brian
Arnold should contribute 50 per
[Page 314]
cent to their co-defendants and Jackson and
Galloway should likewise contribute 50 per cent to those first named
defendants.
IV
THE
QUANTUM OF DAMAGES
There remains for consideration the question of
the quantum of damages. The problem of quantum of damages in serious personal
injury cases is a most difficult one and has been considered by this Court in
not only the present appeal but, as I have said, in two other appeals argued
just prior to the argument in the present appeal, namely, Andrews v. Grand
and Toy (Alberta) Limited and Thornton v. The Board of School
Trustees of School District No. 57. In all three cases, the plaintiffs
suffered extremely serious personal injuries. There are, however, very
considerable differences in the three appeals. In the first place, the
plaintiff in the present appeal was, at the time of her injuries, a
four-and-a-half-year-old little girl. In Andrews v. Grand and Toy (Alberta) Limited, the plaintiff was, at the time of the accident, a young man 21 years
of age gainfully employed. In Thornton v. The Board of School Trustees of School District No. 57, the plaintiff was, at the time of the accident, a 15-year-old boy.
Therefore, in Andrews the Court had a good basis for a consideration of
the important topic in the fixing of the quantum of damages, that is, the loss
of income, and even in Thornton, with a youth of Gary Thornton’s age,
the Court had much more solid ground upon which to proceed. On the other hand,
as I have said, the plaintiff in the present appeal was a four‑and‑a‑half‑year-old
girl at the time of the accident. Secondly, the injuries in both the Andrews
and Thornton cases resulted in a condition of quadriplegia with no impairment of
mental faculties. The injuries to the present plaintiff, as I shall show
hereafter, were very different consisting chiefly of injuries to the brain with
resultant physical disabilities and with a very considerable mental impairment.
There are other differences between the three appeals but the above recital is
sufficient to demonstrate that no general formulation can be used to reach a
common result.
[Page 315]
A similarity of verdicts may well be considered
desirable and of some assistance in the settlement of future cases prior to
judicial consideration of them or in the assessment of the damages allowed upon
such consideration but it must be realized that that goal of similarity is one
quite impossible to attain and that each case of assessment of damages for
personal injuries must be determined in the consideration of the individual circumstances,
the personality of the plaintiff, and many other particular aspects of each
case.
I turn, therefore, to the question of the
assessment of the damages which should be allowed to this plaintiff Diane Teno
for the injuries which she sustained in the accident on July 1, 1969.
After a very careful analysis of the evidence
and consideration of the arguments as to quantum advanced by counsel, the
learned trial judge allowed damages as follows: Orville Teno—$14,979.62—made up
of out-of-pocket expenses paid for the care of the infant Diane Teno to
the date of the trial—$7,479.62—and a sum of $7,500 which he was to hold in
trust for Yvonne Teno as a quantum meruit for the care and service which
she had to supply to her daughter Diane Teno up to the date of the trial. None
of these sums were disturbed in the Court of Appeal for Ontario and they were not the subject of
any submission in this Court.
The learned trial judge then allowed the sum of
$950,000 as the damages of the infant plaintiff Diane Teno. Of that sum
$200,000 was awarded to the infant plaintiff for what the learned trial judge
described as “non-pecuniary damages” and which covered an award for pain and
suffering, permanent disability, loss of amenities of life and loss of life
expectancy. Zuber J.A., in giving reasons for judgment of the Court of Appeal,
said:
This amount was challenged on the simple
ground that it was too generous. I am unable to accept that argument. In my
opinion, this assessment is reasonable and reflects no error.
Since the argument in this case,
Mr. O’Brien has supplied us with a copy of a judgment of the Appellate
Division of the Supreme Court of Alberta in Andrews v. Grand &
Toy Alberta Ltd. (December 8, 1975, as yet
[Page 316]
unreported). In that case the Alberta Court
reduced the non-pecuniary general damages awarded to a quadriplegic from
$150,000 to $100,000 and in so doing accepted the concept that a totally
disabled plaintiff should be compensated for pain and suffering, loss of
amenities of life and loss of life expectancy, by the award of an arbitrary
conventional sum. With this concept, I am in respectful but complete
disagreement.
Reference will be made to this topic hereafter.
Keith J. allowed the sum of $750,000 for
pecuniary damages, that is, the cost of the care which had to be given to the
infant plaintiff for the rest of her natural life and also her loss of future
income. He said:
With respect to the latter assessment I
have deliberately refrained from carrying out a mathematical exercise of the
kind that Kirby J. did because I do not think the figures that he used in
arriving at what was required monthly for the purposes indicated are
susceptible of precise calculation even at present and must inevitably become
inapplicable with the passage of time. If that is so, any result obtained by
the use of such figures must be open to attack.
Zuber J.A. commented:
In arriving at the $750,000 for pecuniary
general damages, the learned trial judge referred to the various factors upon
which it was based but refrained from any mathematical computation. While in
the end result, a global figure must be arrived at and while this figure is not
capable of precise or scientific ascertainment, it is nevertheless desirable in
cases of large assessments that some basic calculations be done to more
specifically explain the total and to act as a check or guide respecting the
ultimate figure.
With respect, I am in agreement with the view of
Zuber J.A. I am, however, of the view that a careful reading of the reasons of
Keith J. shows that he did fix certain quantums and certain percentages and
that his global result of $750,000 may well be taken as a rough calculation and
totalling based thereon. The calculation was made very carefully by Zuber J.A.
in his reasons for judgment for the Court of Appeal and it is my intention to
concern myself with that calculation and comment thereon.
[Page 317]
Zuber J.A. commenced his consideration of the
details of the quantum of the damages by quoting the report made by Dr. John S.
Prichard on October 20, 1970.
Dr. Prichard had been for 25 years a physician on the staff of the Toronto
Hospital for Sick Children and for many years the chief senior physician and
Professor of Pediatrics at the University of Toronto. His pre-eminence in his
profession was accepted by all and there can be no better analysis of the
plaintiffs injuries and of her condition than Dr. Prichard’s report. I quote,
therefore, the said report and a subsequent addendum thereto made after
examinations on July 3, 1973, and April 9, 1974:
On examination, she is an attractive
looking little girl who seemed very happy and content. Her speech was very
slow, slurred and difficult to understand, although she seemed able to make
proper sentences and express herself reasonably well. She was able to recognize
simple objects and name them correctly. On attempting to walk she had a very
spastic gait with the left leg more involved than the right. She had an obvious
severe action tremor of her right hand, whereas she did not use her left hand
at all. On formal examination of the central nervous system the following state
of affairs existed. Her sense of smell was normal. Her visual acuity appeared
to be normal and her visual fields were full. Her optic discs were normal. Her
pupils reacted briskly to light and accommodation. Her external occular
movements were full and there was no nystagmus. Her face moved symmetrically.
Her hearing was normal. Her palate moved freely in the midline. Her tongue
movements were very slow and stiff. She had a severe spastic paralysis of her
left hand and arm. She was able to voluntarily open her hand only partially.
She had fairly free movement of the shoulder. Sensation in the left hand
appeared to be intact. The tendon reflexes were greatly increased. The right
hand and arm had a gross action tremor that made it impossible for her to grasp
my finger when held up in front of her. There was no tremor at rest. The tone
was slightly increased but the reflexes were within normal limits. Sensation
appeared to be normal. The abdominal reflexes were slow and diminished on the
left. She had a severe spastic paralysis of her left leg but was able to lift
the leg off the bed by herself. She was unable to move her ankles or toes. She
had some spastic weakness of her right leg and a moderate action tremor of the
right leg. The reflexes in the legs were not increased but both plantor
responses were extensor. Her heart, lungs and abdomen were normal.
[Page 318]
This child had a very severe head injury
which has left severe sequelae, which can be enumerated under the following
headings:
1. She has a severe left hemiparesis
involving the arm and the leg about equally. It is unlikely that this will
improve very much. This means that she will probably never have any useful
movement of her left hand.
2. She has some slight spastic weakness of
the right side but a very severe action tremor, probably from involvement of
her extrapyramidal system. This now makes the right hand almost useless in
anything but the most coarse activity. It is probable that this will improve
considerably over the next two or three years.
3. Because of her motor involvement, she is
now unable to walk. With continuing physiotherapy I think it is likely that she
will walk by herself eventually but her gait will always be unsteady and
precarious.
4. The motor involvement also affects her
speech which is now difficult to understand. This will improve although she
will always speak slowly and probably indistinctly.
5. The possibility of post-traumatic
epilepsy exists. The fact that she has been 15 months without a seizure is very
encouraging and the chance of this occurring is less than 10%.
6. The severe brain injury has affected her
intellectual capacity. I found this difficult to evaluate but thought she was
probably behaving at about a borderline level. I had her seen by Dr. Netley,
head of our Department of Psychology and am attaching his report. You will see
that he estimates her IQ within the dull normal range.
Putting all these disabilities together
means that we have a child with reasonable intellectual potential but without
the physical ability to make much use of it. She is going to need a special
educational program and her subsequent ability to earn a living is going to be
very limited. She is going to need continuing physiotherapy for years.
It is only 15 months since the accident and
children have a remarkable capacity for recovering more than one expects. I
think she should be reassessed in about a year or 18 months.
Dr. Prichard examined Diane again on July 3,
1973, and on April 9, 1974, and
reported as follows:
[Page 319]
I think it is most unlikely that this young
lady will ever be able to live by herself. Her physical disabilities are
tremendous. I do not think she will be able to go to a store to buy supplies,
prepare her own food or cook for herself, wash, look after or mend her clothes,
or indeed dress herself, or perform most of the tasks we take for granted when
people live independently. This means that whilst she will probably not need
permanent nursing care, she will need permanent help in the form of somebody
living with her all the time. I think she will require this for all her life.
I have just finished seeing this little
lady and her parents. It is disappointing to see how little she has improved
during the last year.
The parents have the following remarks to
make about her present performance:
1. She still has no functional use of her
right hand. She cannot use it to steady anything. She likes to keep it quiet by
sitting on it.
2. Her left hand is very clumsy. She is
unable to dress herself, feed herself, perform simple toilet needs, or drink
from a cup. She can drink from a straw or training cup.
3. She is able to walk by herself but does
so slowly and clumsily. She cannot run.
4. Her speech is very difficult to
understand. It is slow and laborious.
5. She is going to school and is in Grade
1. She is able to read at about the mid Grade I level, according to her
parents.
6. She seems to be a happy little girl. She
has some school friends and gets on well with them.
7. Her general health is good.
On examination, she is a cheerful
attractive looking, severely disabled small girl. Formal examination of her
central nervous system is essentially unchanged from my previous report.
1. Her speech is slow and spastic. Her
tongue movements are limited and very slow.
2. She has a gross action tremor of her
right arm. She was unable to reach for and grasp an object because of this. She
has some action tremor of her right leg but it is much less severe.
3. She has a moderately severe left
hemiparesis involving the arm and leg. She is unable to use a pincer grip with
her left hand. She can grasp a pencil in her palm and scribble with it.
[Page 320]
My comments of my report of the 4th July
1973 still apply. It is becoming more apparent that she has some intellectual
impairment in addition to her tremendous physical disabilities. She was seen by
Dr. Netley this morning and you will be having a report from him.
This accident has produced one of the most
disabled children I have ever seen.
Zuber J.A. added a very significant paragraph
reciting Dr. Prichard’s evidence at trial that the infant plaintiff was now
aware of her situation and that as time went on her disabilities would become
more obvious to her. The last words of Dr. Prichard’s report may be stressed. I
repeat them:
This accident has produced one of the most
disabled children I have ever seen.
As I have pointed out above, that statement was
made by a great specialist with 25 years’ experience in the Toronto Hospital for
Sick Children where he must have dealt personally with some thousands of cases
of children’s injuries.
With this introduction, I turn to my view of
what amounts should be allowed for the various types of damages which the
infant plaintiff has suffered. It is my intention to consider these under the
following headings:
Firstly: Special Damages,
Secondly: Allowance for Future Care,
Thirdly: Loss of Future Income, and
Fourthly: Non-pecuniary Damage.
It should be stressed that in such a case as the
present, and indeed in the other personal damage actions to which I have
referred above, the prime purpose of the Court is to assure that the terribly
injured plaintiff should be adequately cared for during the rest of her life.
That end having been attained, other elements of damage are of lesser
importance.
Therefore, firstly, to deal with the provision
for future care: As will be seen from Dr. Prichard’s report which I have quoted
in extenso, the infant plaintiff requires for the rest of her natural
life full-time care. As pointed out in the Courts below, that full-time care,
from the time she left hospital up to the date of the trial, was being provided
by
[Page 321]
her mother, Yvonne Teno, at tremendous personal
sacrifice. It was very evidently the view of the learned trial judge that it
was physically impossible for that situation to continue. Therefore, he
examined the evidence and accepted the calculations made by various witnesses
that to provide such care until the infant reached 19 years of age by a single attendant
on duty 24 hours a day for five days a week living in the family home and
supplemented by attendants working three eight-hour shifts per day on the
remaining two days of the week would involve an expenditure of about $21,000
per year. Zuber J.A. cited that finding and accepted it and added:
On the basis of all the evidence submitted,
it would be reasonable to estimate that when Diane becomes an adult and
establishes her own home, full time care will cost approximately $27,000 per
year.
I stress that it is not my intention to question
the arithmetical calculations made in the Courts below or to enter into
discussion as to whether one attendant or two attendants are necessary or the
length of work shifts but to devote myself to the issue of principle and I have
no difficulty in accepting the judgment of the learned trial judge, confirmed
in the Court of Appeal, that to give to the infant plaintiff the care which her
condition requires and will continue to require for the rest of her natural
life will, until she reaches the age of 19 years, cost about $21,000 per year
and thereafter about $27,000 per year. I point out that those calculations do
not envisage any such elaborate and costly care as was considered by the Courts
below in either the Andrews or Thornton cases but simply, until
the infant plaintiff becomes 19 years of age, a full-time female attendant of
some maturity and nursing skills supplemented on weekends by nursing attendants
and, after the infant plaintiff becomes 19 years of age, a housekeeper in
addition to the female attendant. It should also be noted that such
calculations for cost of care make no provision for the ordinary costs of
living such as food, clothing and shelter but are for special care alone.
[Page 322]
In both Andrews and Thornton, the
evidence and the reasons for judgment in the Courts below were much concerned
with the debate as to whether proper future care should be supplied in an
institutional surrounding or in something resembling as close as possible a
home environment. My brother Dickson, in his reasons, has dealt extensively
with that issue and has come to the conclusion that the evidence clearly
demonstrates that the only adequate provision for the plaintiffs’ continuing
existence was in a home environment.
In the present appeal, the only evidence as to
the proper standard of care was given on behalf of the plaintiff and the
plaintiff’s chief witness was Edward Ratelle, a rehabilitation councillor with
Lyndhurst Lodge. Lyndhurst Lodge is a rehabilitation institute in the City of Toronto which has a unique reputation for
its superlative work in rehabilitation of seriously injured persons and those
who have suffered from such catastrophies as massive strokes. It is, however,
strictly a rehabilitation institution and it does not make provision for those
who have to have continuing care for the rest of their lives. After the
institution has done its best for the rehabilitation of such persons, they must
leave it and find their continuing care in other places.
It was the opinion of both Mr. Ratelle and
the other witnesses who gave evidence for the plaintiff that in the Province of
Ontario there was simply no satisfactory institution and that all the
unsatisfactory aspects of such places as chronic care hospitals and nursing
homes which were the subject of the evidence and of the judgments in both Andrews
and Thornton were also present and most influential in the Province
of Ontario.
Mr. Ratelle was also of the opinion that Canada had gone farther than the United States in its proper care for
seriously disabled persons. The institutions mentioned in the City of Toronto were well known and it was quite
evident the learned trial judge, from his own personal knowledge, needed little
other evidence to convince him of their unsatisfactory character.
Counsel for the defendants, here appellants,
J.B. Jackson Limited and Stuart Galloway, in cross-
[Page 323]
examination of Mr. Ratelle, attempted to
build up an ideal organization consisting of what he described as “something in
the nature of a club or something like this could be evolved within the
confines of the establishment, there were occupational therapy facilities and
physiotherapy, the usual swimming pool sort of thing”. Mr. Ratelle did
agree that such an organization, I avoid the word “institution”, would be a
desirable device for providing future care for such persons as the infant
plaintiff. He said, however, that he and others had attempted to evolve such an
organization but that the cost was so prohibitive that it could not be done
without government subsidy and so far there had been no provision of such
subsidy.
On all of the evidence, the learned trial judge
came to the conclusion, with which I agree, that the infant plaintiff could
only receive the proper care to which she is entitled under the regime advanced
by the plaintiff’s witnesses, that is, in her own apartment with the attendants
which her care requires.
I have already emphasized that the provision of
such an appropriate standard of care must be the prime purpose in the awarding
of damages in these personal injury cases. I, therefore, adopt the view of the
learned trial judge as confirmed in the Court of Appeal that damages will have
to provide for the care of the infant plaintiff in the sums to which I have
referred, to wit, $21,000 per year until she reaches the age of 19 years and
$27,000 per year thereafter.
Therefore, I am of the view that this problem
must be resolved by finding what amount of damages should be directed by the
judgment in order to assure the infant plaintiff the provision of those sums of
money annually for the rest of her natural life. It will be seen that this
brings up at once the question of the discount rate which should be applied to
find that present sum and this involves the consideration of income tax, of
present day investment rates, and of future inflation.
[Page 324]
I shall refer first to income tax. In The
Queen v. Jennings et al., this
Court adopted the view expressed by Judson J. that we should reject the
principle in British Transport Commission v. Gourley, and that there should be no deduction
from damages which were assessed for loss of future income by reason of any
income tax that that income might have attracted had the plaintiff not been
injured and the income continued. We are, however, here concerned with income
tax which may be assessed on income which will be payable to the infant
plaintiff accruing from the investment of the award for damages. In so far as
that award concerns non‑pecuniary damages, then like any other asset of
the infant plaintiff it will earn an income and that income will be subject to
income tax. The amount which I am awarding as a fund from which shall be paid
the amounts necessary for future care will, of course, have to be invested and
that fund will generate an income and that income will be subject to tax.
As Zuber J.A. pointed out in his reasons given
for the Court of Appeal for Ontario, the amount of that tax is, by the present provisions of the Income
Tax Act, subject to certain deductions. Section 23(2) of the Statutes
of Canada, 1973-74, c. 14, now appears as s. 81(1)(g.1), and exempts from the
income of the taxpayer for a taxation year the income from any property
acquired by the taxpayer pursuant to an action for damages in respect of any physical
or mental injury to the taxpayer which income was received before the taxpayer
attained the age of 21 years. Therefore, there will be no income tax impact
upon this fund for the first 16-odd years of the infant plaintiffs life.
Secondly, s. 110(1)(c)(iv.1) provides that medical expenses in excess of
3 per cent of the taxpayer’s income includes “remuneration for one full-time
attendant upon an infant who was a taxpayer...in a self-contained domestic
establishment in which the cared-for person lived”.
I am in agreement with Zuber J.A. when he
interprets this exemption as providing for the deduction for the payment of one
full-time attend-
[Page 325]
ant for seven days a week regardless of whether
this attendance is provided by several attendants working over 24-hour periods
or one person working 24-hour shifts seven days a week. These two deductions
reduce the problem of income tax on the income from the portion of the award
devoted to the care of the infant plaintiff to a great deal less significant proportion.
As Zuber J.A. pointed out, the tax burden is
extremely difficult to forecast. Moreover, it would seem that income tax
authorities may well review the situation where a court awarded a sum of money
as damages so that that sum may be used in fixed annual amounts to provide
necessary future care for the injured person and determine that the 3 per cent
deduction to which I have just referred is, under such circumstances,
inadequate. In view of this uncertainty and of the fact that future rates of income
tax, certainly those applicable in particular circumstances, are only matters
of speculation, I am of the opinion that this would not justify in assessing an
amount to cover that possible income tax and for the purpose of these reasons I
omit any such allowance.
Turning next to the problems of inflation
materially increasing the cost of care in the future and the present very high
levels of investment rates upon income, we see the problem graphically
illustrated in the evidence given at trial by the actuary. For instance, the
present value of $1,000 per year for 66.9 years if calculated at the rate of
4.5 per cent was $21,563 and the present value at 6½ per cent was $15,685. So,
the present value at 11 per cent would be about $9,100. The choice of the discount
rate is, therefore, all important and the problem of the correct rate to choose
is one which has been under constant debate in the courts in late years. Both
Courts below referred to the statement of Lord Diplock in Mallett v.
McMonagle, where
the learned Law Lord said at p. 176:
In my view, the only practicable course for
courts to adopt in assessing damages awarded under the Fatal Accidents Acts is
to leave out of account the risk of further inflation, on the one hand, and the
high interest
[Page 326]
rates which reflect the fear of it and
capital appreciation of property and equities which are the consequence of it,
on the other hand. In estimating the amount of the annual dependency in the
future, had the deceased not been killed, money should be treated as retaining
its value at the date of the judgment, and in calculating the present value of
annual payments which would have been received in future years, interest rates
appropriate to times of stable currency such as 4 per cent to 5 per cent should
be adopted.
In the very subsequent year, in Taylor v.
O’Connor, that
statement was criticized. Although the actual case is only mentioned in the
judgment of Viscount Dilhorne, it would seem that the learned Law Lords did
regard the practice of choosing a rate of 4 per cent to 5 per cent as being out
of accord with reality. Viscount Dilhorne, quoting the last sentence of the
statement of Lord Diplock which I have quoted above, commented:
I see no reason for that and, with the
greatest respect, it seems to me that requires the calculation to be made on an
unreal and hypothetical basis.
It would seem that Viscount Dilhorne, in fact,
used a percentage of about 10 per cent although it is most difficult, in
considering the judgments of Viscount Dilhorne and the other Law Lords, to find
an actual percentage as the Law Lords used the multiplier multiplican method
and that arithmetic is so inaccurate that it is difficult to understand the
exact result. On the other hand, it would appear that Lord Pearson in some of
his calculations adopted a percentage of about 5 per cent. He said at p. 143:
I think protection against inflation is to
be sought by investment policy, and the lump sum of damages should be assessed
on the basis that it will be invested with the aim of obtaining some capital
appreciation to offset the probable rise in the cost of living.
Yet his various calculations would seem to take
into account the possibility of inflation.
Kemp & Kemp on The Quantum of Damages,
supra, at p. 45, notes:
Moreover, this [the Diplock approach] is
likely to continue to be the law. For the Law Commission accepts
[Page 327]
that the most practical way of making
allowance for inflation is to adopt what we term in this chapter “the Diplock
approach”.
Of course, it must be understood that both Mallett
v. McMonagle and Taylor v. O’Connor were fatal accident cases and
not cases where it was absolutely necessary that the plaintiff continue to
receive each year a sum sufficient for her care.
Zuber J.A., in his reasons for judgment for the
Court of Appeal for Ontario,
said:
In my respectful view there is much to be
said for Lord Diplock’s approach. It is at the very least a practicable and
reasonably satisfactory solution to a difficult problem. The critical speeches
in Taylor v. O’Connor provide little by way of an alternative solution.
It would appear that it is necessary to evolve
some method of determining the appropriate discount to be applied in finding
the present value of the annual amounts which will be necessary for providing the
plaintiff with adequate care.
I have come to the conclusion that perhaps as a
compromise I would adopt neither the Diplock approach nor the use of the
present day very high rates of return on investment. I am in agreement with the
comment that the Diplock approach starts with an unrealistic base. I am also in
agreement with the view that the use of the present very high interest rates
without provision for future inflation is equally unrealistic and might cause,
in the present case, a very serious shortfall in the amounts which will be
available for the future care of the infant plaintiff. We may take judicial
notice of the pronouncement made by Dr. Deutch of the Economic Council of
Canada that we may expect inflation at the rate of 3½ per cent over the long-term
future, and it is the long-term future we must consider in awarding damages for
the future care of the infant plaintiff. If we assume present day investment
rates at about 10½ per cent and then deduct from that rate 3½ per cent to
cushion against future inflation, we would arrive at a discount rate of 7 per
cent. I would adopt that figure as being the best compromise to, at the
[Page 328]
same time, recognize the present very high rates
of investment income and the probability of future inflation. I shall hereafter
apply that 7 per cent rate.
The last topic with which I must deal is that
mentioned for the first time in the reasons in the Court of Appeal for Ontario although I am sure that Keith J.
has it in mind when fixing the global award. Even if the infant plaintiff were
adult and not disabled, she would need professional assistance in the
management of such a large sum of money as is being awarded to her in this
case. Although the management of that sum, until she is an adult, will be in
the efficient hands of the Official Guardian for the Province of Ontario, she will have the whole burden of management so soon as
she becomes an adult and at that time she will have to retain the services of
skilled financial advisers. It is appropriate to allow an amount to cover the
annual fee which will be entailed. It was Zuber J.A.’s calculation that the
award should be increased by an amount of $35,000 to provide a fund for the
payment of such management fee and I am ready to accept that disposition.
I turn next to the consideration of an award to
cover the income which the infant plaintiff would have earned had she grown to
womanhood and joined the work force. This amount was not separately assessed or
considered by the learned trial judge although he did emphasize in discussing
the global award that it would have to be made to cover the plaintiffs own
living costs even apart from the award to cover the special care with which I
have already dealt as “she had been deprived of an opportunity to provide for herself”.
Zuber J.A., in his reasons for the Court of
Appeal for Ontario, assigned
the sum of $115,000 to cover this loss of future income. His reasons for doing
so are set out in one paragraph which I quote:
Diane Teno is entitled to be compensated
for the loss of future income she would have earned but for this accident.
Inherent in this statement, there is the obvious difficulty of selecting the
income she would have earned. In view of Diane’s age, obviously no evidence
could be tendered as to what in fact her potential earnings might
[Page 329]
have been. It was disclosed in evidence
that Diane’s mother, Yvonne, was a teacher, earning in excess of $10,000. In
the absence of any other guide, the trial judge rightly used this as some
indication of Diane’s potential. It would not be unreasonable to assume that
she would begin earning money at age nineteen and continue to a retirement age
of sixty-five. The capital sum required as of the date of trial, to produce
that income, between those ages, using a 5% interest rate, is $115,500. It is
now settled law that in arriving at an award to compensate for future loss of
income, the effect of income tax is not to be considered, (The Queen v.
Jennings (1966), 57 D.L.R. (2d) 644).
The allowance of an amount for loss of future
income in the present case is extremely difficult. The plaintiff at the time of
her injury was a four-and-a-half-year-old child. There can be no evidence
whatsoever which will assist us in determining whether she ever would have
become a member of the work force or whether she would have grown up in her own
home and then married. There can be no evidence upon which we may assess
whether she would have had a successful business future or have been a failure.
Since the Court is bound not to act on mere speculation, I do not see how this
Court could approve the course taken by Zuber J.A. which simply amounted
to assuming, as he quite frankly said, “in the absence of any other guide”,
that the infant plaintiff would follow the course of her mother who was a
primary school teacher with an income of $10,000 per year. On the other hand, I
do not think we can assume that a bright little girl would not grow up to earn
her living and would be a public charge, and we are not entitled to free the
defendants, who have been found guilty of negligence, from the payment of some
sum which would be a present value of the future income which I think we must
assume the infant plaintiff would earn. It must be remembered that the
allowance for future care provides only for the cost of attendants and that
like everyone else the infant plaintiff has to eat, clothe herself and shelter
herself.
If there is no allowance for the loss of future
income, then the fund from which her ordinary living costs would be supplied
would have to come from the amount awarded for non‑pecuniary dam-
[Page 330]
ages and there can be no excuse for depriving
the infant plaintiff of an allowance for those non-pecuniary damages fixed in a
fashion which I shall discuss hereafter by requiring her to use those
non-pecuniary damages to live on. The problem has caused concern in many other
cases. Lord Denning in Taylor v. Bristol Omnibus Co., dealt with a claim for loss of future
income by a boy three-and-a-half-years old at the time of the accident. At pp.
1112-3, he said:
3. Loss of future earnings
The judge assumed that Paul would start
earning at the age of 19. He took the yardstick of his father’s position. He
took an average figure of £2,000 a year and used a multiplier of 16. This
making £32,000. Less one-half for present payment: making £16,000.
Counsel for the defendants urged us to
adopt a new attitude in regard to babies who are injured. He suggested that the
loss of future earnings was so speculative that, instead of trying to calculate
it, we should award a conventional sum of say £7,500. He suggested that we
might follow the advice given by Lord Devlin in H. West & Son Ltd. v.
Shephard, [1963] 2 All E.R. 625 at 638, [1964] A.C. 326 at 357, that is:
(i) give him such a sum as will ensure that for the rest of his life, this boy
will not, within reason, want for anything that money can buy; (ii) give him,
too, compensation for pain and suffering and loss of amenities; (iii) but do
not, in addition, give him a large sum for loss of future earnings. At his very
young age these are speculative in the extreme. Who can say what a baby boy
will do with his life? He may be in charge of a business and make much money.
He may get into a mediocre groove and just pay his way. Or he may be an utter
failure. It is even more speculative with a baby girl. She may marry and bring
up a large family, but earn nothing herself. Or, she may be a career woman,
earning high wages. The loss of future earnings for a baby is so speculative
that I am much tempted to accept the suggestion of counsel for the defendants.
In Kemp & Kemp on The Quantum of Damages,
4th ed., v. 1, p. 135, in a paragraph entitled “Where the plaintiff is a
child or youth and has not commenced on any career, and so there is no figure
for net annual loss at the date of the trial”,
[Page 331]
it is stated that in that class of case the
court is really reduced to pure guesswork.
Lord Denning, in the statement of Taylor which
I have quoted, cites the argument of counsel that there should be awarded “a
conventional sum of say £7,500”.
As I have said, I think we must make an award of
some sum but we have no guidance whatsoever in the fixation of that sum. It
would seem to me that we are entitled to say that the infant plaintiff would
not have become a public charge. To award an annual loss of income of the sum
of $5,000 is to make an award of an amount which, in the present economic
state, is merely on the poverty level, yet, I cannot justify an award based on
an amount of $10,000 as did Zuber J.A. I think that we would be doing justice
to both plaintiff and defendants, and I find it equitable, to determine that
the infant plaintiff would, at least, have earned $7,500 per year for her
business life.
As I have already pointed out, this Court in The
Queen v. Jennings et al., supra, found that there should be no deduction
for income tax from the amount allowed by loss of future income.
I am of the view that annual amounts should only
be calculated from the time the infant plaintiff would have reached 20 years of
age until she would have reached the normal retirement age in industry today of
65 years. Moreover, when we assume that the plaintiff would have been a wage
earner, we must also consider that all wage earners are faced with
possibilities of failure through illness short of death, financial disasters,
personality defects, and other causes. I, therefore, believe that we should
allow a 20 per cent contingency deduction from the $7,500 to make a net annual
loss of income of $6,000 and then calculate the present value of payments of
$6,000 commencing at the time the infant plaintiff would have attained the age
of 20 years and continue until she would have reached 65 years. That present
value, in my view, should be calculated at the same discount rate of 7 per cent
as the present value of the amount pro-
[Page 332]
vided for future care for the reasons which I
have discussed above. This calculation appears hereafter in my summary.
There remains the assessment of the quantum of
non-pecuniary damages. These damages are spoken of as “compensation” for pain
and suffering, loss of amenities of life, loss of expectation of life—a grant
of largely subjective considerations the very naming of which indicates the
impossibility of precise assessments. I have recited above in very complete
detail the evidence and report of a pre-eminent medical specialist. I repeat
his conclusion: “This accident has produced one of the most disabled children I
have ever seen”. The learned trial judge in his global award of $950,000
assigned $200,000 as non-pecuniary damages. The Court of Appeal, despite
vigorous attacks on that amount by counsel for all defendants confirmed that
amount. The same counsel launched the same attack in this Court.
The real difficulty is that an award of
non-pecuniary damages cannot be “compensation”. There is simply no equation
between paralyzed limbs and/or injured brain and dollars. The award is not
reparative: there can be no restoration of the lost function. There can be no
doubt that awards for non-pecuniary damages in the immediate past have been
increasing apace. In the case of many verdicts in the United
States, it may well be said that they have been
soaring. The reasons probably are many. Firstly, I have pointed out the
impossibility of accurate assessment. Then there must be many cases of what
really are expressions of deep sympathy for the terribly injured plaintiff and
a mistaken feeling that his or her sore loss of the amenities of life may be
assuaged by the feeling of satisfaction from a pocket-full of money. There
might even be some element of punishment for the wrongdoer or, the most
irrelevant of considerations, a measuring of the depth of the defendant’s
purse. Certainly, such awards, which one may well characterize as exorbitant,
fail to accord with the requirement of reasonableness, a proper gauge for all
damages.
[Page 333]
I repeat my view expressed earlier that in these
cases of very serious personal injuries the prime purpose in fixing an award of
damages is the provision of adequate reasonable care for the plaintiff for the
rest of the plaintiff’s life. This I have attempted above by providing a fund
from which may be drawn annually the necessary sum for care and attention and
by an award for loss of future income from which she may supply the ordinary necessities
of life. These two amounts I reach without regard for any social impact of the
admittedly, and necessarily, large award. Indeed, the social burden may only be
borne by a proper and reasonable assessment of the amounts. Under the present
common law system of liability for fault, there can be no excuse for foisting
on the public the burden of caring for the plaintiff or supplying her with the
necessities of life. However, that accomplished, and I hope I have accomplished
it, one may and should have regard for the social impact of very large and, as
I have said, non-compensatory awards for non-pecuniary damages. The very real
and serious social burden of these exorbitant awards has been illustrated
graphically in the United States in cases concerning medical malpractice. We have a right to fear a
situation where none but the very wealthy could own or drive automobiles
because none but the very wealthy could afford to pay the enormous insurance
premiums which would be required by insurers to meet such exorbitant awards.
One solution might be that discussed in some
English cases, i.e., to confine the non‑pecuniary damages to “an
arbitrary conventional sum”. This solution I seek to avoid. Rather, I adopt the
course taken by my brother Dickson in Andrews, that is, to fix the non‑pecuniary
damages by reference to a rational basis for them. If, as did my brother
Dickson, one realizes that it is impossible to compensate for the losses of the
various elements involved in non-pecuniary damages and that it is reasonable,
none the less, to make an award then gauge that award by attempting to set up a
fund from which the plaintiff may draw, not to compensate for those losses,
but, to provide some substi-
[Page 334]
tute for those amenities. As Harman L.J. put it
so well in Warren v. King, at p.
528, “…what can be done to alleviate the disaster to the victim, what will it
cost to enable her to live as tolerably as may be in the circumstances”.
I am in respectful agreement with Dickson J.
that there should be uniformity, always allowing flexibility to meet each
differing individual case, in awards for non-pecuniary damages. Perhaps one
should say there must be upper limits with awards lower in some cases and some
higher in exceptional cases. Dickson J. has found $100,000 as being the upper
limit in both Andrews and Thornton. As I have pointed out, those
were both cases of young men turned by the accidents into quadriplegics but
whose mental faculties were unimpaired and who, by use of wheel chairs and
appropriate automotive vehicles, will be able to get about amongst their
fellow-men.
The infant plaintiff Diane Teno, although not
completely paralyzed, is so disabled that her very limited ability to walk is
accomplished in such an awkward fashion as to cause her continual
embarrassment. Her left arm is very clumsy, her right is useless because of
spastic weakness, her speech is impaired and nearly unintelligible and her
mental impairment has reduced her to the “dull normal range”. I am of the
opinion that such a condition justifies a very generous award to permit the
infant plaintiff to find some way by which her life may be made a little more
tolerable. Moreover, the infant plaintiff in the present appeal has a life
expectancy of 66.9 years while Andrews has a life expectancy of only 45 years
and Thornton only 49 years.
Therefore, despite the fact that the infant plaintiff, unlike Andrews and
Thornton, will not need the frequent actual treatment required by the latter
such as turning in bed every two hours, the other circumstances to which I have
referred justi-
[Page 335]
fy the allowance of the same sum of $100,000 to
her under this heading of non-pecuniary damages.
The result of these reasons, I would summarize
as follows:
Firstly, the
respondent Orville Teno is entitled to retain his judgment against all the
defendants for special damages fixed at $14,979.62 of which sum he is to hold
$7,500 in trust for his wife Yvonne Teno.
Secondly, the
respondent Diane Teno is entitled to the following sums:
|
(1)
|
For future care:
|
|
|
|
To provide a fund of $21,000 per annum for 57
years, calculated at discount rate of 7 per cent
|
$ 294,387
|
|
|
To provide an additional sum of $6,000 per
annum commencing in 1984 (when she attains the age of 19 years) and
continuing for the balance of her life
|
$ 54,735
|
|
|
(This sum will have generated a fund of
$82,708 by 1984).
|
|
|
(2)
|
Loss of future income:
|
$ 54,272
|
|
|
Fixed at $6,000 per year for 45 years
commencing in 1984 when this sum at a discount rate of 7 per cent will have
accumulated a fund of $82,008.
|
|
|
|
Thirdly,
non-pecuniary damages
|
$ 100,000
|
|
|
Fourthly,
management fee
|
|
|
|
TOTAL
damages of Diane Teno
|
$ 538,394
|
|
|
rounded
out at
|
|
The judgments in the amounts aforesaid should be
payable in full by all four of the defendants, Wallace Arnold and Brian Arnold,
J.B. Jackson Limited and Stuart Galloway, but as between themselves Wallace
Arnold and Brian Arnold taken together should contribute 50 per cent to their
co-defendants J.B. Jackson Limited and Stuart Galloway and vice versa.
[Page 336]
The costs at trial should remain unchanged.
Although the global award made by the learned trial judge was much reduced upon
appeal, no costs were awarded against the plaintiff Diane Teno by the Court of
Appeal for Ontario. Despite the
further reduction of the global award in this Court, I am of the opinion that
the matters involved in its determination were questions of policy upon which
there had been little guidance in previous decisions of this Court and that it
would be proper to refrain from making any order as to costs in this Court
against the appellant Diane Teno.
The appellant Yvonne Teno is entitled to her
costs against all defendants upon the third party issue in which contribution
was claimed against her.
The judgment of Martland, Ritchie, Pigeon and
Beetz JJ. was delivered by
PIGEON J.—I have had the advantage of reading
the reasons of Spence J. I am in agreement with him on all but one point.
Specifically, I agree that all defendants should
be held liable and that, as between them, there should be an even division
between Wallace Arnold and Brian Arnold on one hand and J.B. Jackson Limited and Stuart Galloway on the
other. I also agree to restore the conclusion of the trial judge that there
should be no contribution by Yvonne Teno. The evidence fully supported the
conclusion of Keith J.:
The parents of these children did not
depart from the generally accepted standard of care.
In my view, the same should be said of defendant
J.B. Jackson Limited, the ice cream vending company whose truck was in the
charge of the defendant Stuart Galloway. Although I see no reason to interfere
with the concurrent findings of negligence against the latter, I am unable to
accept the finding that J.B. Jackson Limited is liable for the accident, not
only by reason of Galloway’s
negligence but also by reason of the way in which its vending business was
conducted. Here is how this finding was expressed by Zuber J.A.:
[Page 337]
If there is any validity in the argument of
the defendants, that it was impossible for one man in Galloway’s position to do
any more, it succeeds only in impaling these defendants on the other horn of a
dilemma. If a single attendant can not adequately care for the children
attracted into the street, then he creates an unreasonable risk by first
attracting them. A pied piper cannot plead his inability to take care of his
followers when it was he who played the flute.
I agree with the result arrived at by
Mr. Justice Keith in finding responsibility on the part of Jackson and
Galloway. I agree as well with his further characterization of the position of
the defendant Jackson. Not only is Jackson vicariously responsible for the particular failings of Galloway,
but Jackson itself was negligent in the manner in which it carried on business.
Without taking any adequate precautions for their safety, it attracted children
into the roadway with the consequent forseeable and unreasonable danger to
them.
A good deal of evidence was led by the
plaintiffs in this case concerning ice cream vending to young children from
trucks in the streets. In Windsor, in 1969, when the accident occurred, this
was not a new operation, it was an established business operating under a
permit as in a great many other cities in Ontario and elsewhere in North
America as well as overseas. In a few places, the operation was banned and a
traffic expert gave evidence of a report he had made in support of such a
by-law which was promoted by dealers in ice cream selling it in stores. In
1962, Jackson vainly tried to
have the ban lifted by the Township of Etobicoke. No such ban was in effect in Windsor or in most cities and towns in Ontario. In some places, consideration had
been given to the possibility of requiring a second person on each truck. It
was appreciated that under present economic circumstances this would be the
equivalent of banning the operation and no action was taken. The witness Amer
had been by-law enforcement officer for the Township of North York where there was a restrictive by-law. He said that he
had seen on one occasion an ice cream vending operation carried on by
one man in the truck and another on the sidewalk.
[Page 338]
The trial judge said in particular:
J.R. Jackson who was for many years
Vice-President and General Manager of the defendant J.B. Jackson Limited was
called as a witness for the plaintiff. In direct examination he stated that
their drivers were given no specific instructions about handling young children
coming from the opposite side of the street, or indeed from any place, but
conceded that common sense requires you to keep them off the street. When asked
why special precautions were not taken, such as requiring the driver to leave
the truck and escort little ones to safety or by providing a second person on
the truck for just such purposes (as was considered necessary in Culkin v.
McFie & Sons Ltd.) his honest but damning answer was that the
exigencies of business, i.e. to make a profit, overrode safety factors.
The actual answer of the witness was:
Q. Was there any consideration of having
two men on the truck, one to serve and one to assist pedestrians?
A. One of the municipal suburbs of Toronto suggested we do that. We did not
consider this because we would have, there just is not the margin, there is not
enough profit in the operation to pay two men. As a matter of fact we
experimented with a young lad but I think they contributed more to general
breakdown of morale than anything else. Like school boys, that was not working.
In my view the trial judge’s comment was not
justified. The law does not impose a duty to take all possible safety
precautions. As Rinfret C.J. said in Eaton v. Moore, at p. 475:
The law does not require more of any man
than that he should have acted in a reasonable way.
On this aspect of the case, the question is
whether a one-man operation was reasonable. It cannot be denied that a two-man
operation would have been safer, but it would also have been economically
impossible. The general opinion, among municipal authorities clearly was that
the one-man operation was reasonable. The parents of the children as well so
considered it by giving their children money to buy ice cream from the vending
truck rather than objecting to the operation. I
[Page 339]
agree that the parents acted reasonably. They
were entitled to expect that the truck operator (“the piper”) would not fail to
watch for oncoming traffic and to warn the children against imprudently
crossing the street in front of the truck. The parents were also entitled to
expect that automobile drivers would not pass such trucks without taking the
special precautions called for. I cannot agree that what the parents considered
reasonably safe, should be considered a “folly” on the part of the ice cream
vending company. In Cavanagh v. Ulster Weaving Co. Ltd., Viscount Simon said at p. 158:
It would, I think, be unfortunate if an
employer who has adopted a practice, system or set-up, call it what you will,
which has been widely used without complaint, could not rely on it as at least
a prima facie defence to an action for negligence,.
Lord Tucker with whom Lord Jenkins agreed said
(at pp. 161-2):
I would, however, desire to express my
agreement with what was said by my noble and learned friend, Lord Cohen, in Morris’s
case ([1956] A.C. 552) where, after reviewing what had been said on this
subject in Paris v. Stepney Borough Council, ([1951] A.C. 367, 382;
[1951] 1 T.L.R. 25; [1951] 1 All E.R. 42) and considering the language used by
Parker L.J. in the case under consideration, ([1954] 2 Lloyd’s Rep. 507, 518)
he said ([1956] A.C. 552, 579): “I think that the effect of their Lordships’
observations is that when the court finds a clearly established practice ‘in
like circumstances’ the practice weighs heavily in the scale on the side of the
defendant, and the burden of establishing negligence, which the plaintiff has
to discharge, is a heavy one.” And later he equates the word “folly” as used by
Lord Dunedin and Lord Normand to “unreasonable or imprudent”, thereby
emphasising that Lord Dunedin could not have been intending to extend the employer’s
common law liability beyond that which had been laid down in Smith v.
Charles Baker & Sons ([1891] A.C. 325; 7 T.L.R. 679) and many
subsequent cases in this House. To give the word “folly” any other meaning
would necessarily have this result...
[Page 340]
Lord Somerwell of Harrow added at p. 167:
In my view it would be unfortunate if
courts had to consider what amounted to folly.
DE GRANDPRÉ J. (dissenting in part)—The
facts giving rise to this litigation are not in dispute. They have given rise
to a condemnation against the owner and the driver (the Arnolds) of the motor
car that struck young Diane Marie Teno and there is no appeal before us on the
point.
On the issue of the liability of the ice cream
merchant (Jackson) and of his employee (Galloway), I would have been inclined
to decide that there was no negligence on their part. Because of the concurrent
findings in the Courts below, I have reluctantly come to the conclusion that
their conduct cannot be considered blameless. However, I share the views of my
brother Pigeon that the liability of Jackson is vicarious only.
With respect, I do not agree with my brethren
that the mother has committed no negligence. If an ice cream merchant is
responsible to his young customer because his employee failed to take the
reasonable care owed to a child who had become his “neighbour”, the mother, in
the circumstances of this case, cannot be said to be in a better position. The
duty of care resting on a parent is a paramount one and does not come to an end
because a third party comes into the picture and is found to have been
negligent for having allowed the child to cross the street and for having
failed to warn that child of an approaching car. The mother, who had just given
to her two young children (6 and 4½ years old respectively) the money to buy
ice cream and who knew that the truck was on the other side of the boulevard,
cannot be said to be under a lesser duty than that resting on the merchant’s
employee.
I agree with Zuber J.A. that (11 O.R. (2d) 585
at p. 596):
the conduct of Yvonne Teno falls short of
the standard to be expected from a reasonably prudent mother under the
circumstances
and I adopt all his reasons in support of that
conclusion.
[Page 341]
In the result, I would hold that the
consequences of the accident must be borne equally in the proportion of
one-third by the Arnolds, by Jackson and Galloway and by Yvonne Teno.
Judgment accordingly.
Solicitors for the appellants, Wallace
and Brian Arnold: Wilson, Barnes, Walker, Montello, Beach & Perfect,
Windsor.
Solicitors for the appellants, J.B.
Jackson Limited and Stuart Galloway: Bell, Temple, Toronto.
Solicitors for the appellant, Yvonne Teno
with respect to claim for contribution: Benson, McMurtry, Percival & Brown,
Toronto.
Solicitor for the respondents, Diane
Marie, Orville and Yvonne Teno: M. Wunder, Windsor.
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