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Supreme Court of Canada

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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

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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

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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.

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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

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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

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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

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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[1], 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.

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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-

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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.[2] 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.

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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.

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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.[3], 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.[4], 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[5], at p. 580, set out the duty which lay upon J.B. Jackson Limited and the driver of the ice cream

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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

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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-

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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.[6] and Jordan House Ltd. v. Menow & Honsberger[7], 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

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(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

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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[8], 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.

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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

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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:

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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

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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

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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.[9] 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.

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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[10]. 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.[11], 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.

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In Cowle and Cowle v. Filion[12], 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.

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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[13] 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

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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

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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

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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.

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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

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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.

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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.

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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:

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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.

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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

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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.

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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-

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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.

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I shall refer first to income tax. In The Queen v. Jennings et al.[14], this Court adopted the view expressed by Judson J. that we should reject the principle in British Transport Commission v. Gourley[15], 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-

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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[16], 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

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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[17], 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

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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

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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

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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-

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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.[18], 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”,

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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-

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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.

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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-

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tute for those amenities. As Harman L.J. put it so well in Warren v. King[19], 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-

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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

  $   35,000

 

                                                                           TOTAL damages of Diane Teno

  $ 538,394

 

                                                                                                         rounded out at

  $ 540,000

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.

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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.:

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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.

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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[20], 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.[21], 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.

 



[1] (1976), 11 O.R. (2d) 585.

[2] (1976), 11 O.R. (2d) 585.

[3] [1949] 4 D.L.R. 844.

[4] [1927] A.C. 515.

[5] [1932] A.C. 562.

[6] [1970] A.C. 1004.

[7] [1974] S.C.R. 239.

[8] (1947), 75 C.L.R. 339.

[9] [1971] 2 O.R. 131.

[10] [1953] O.R. 303.

[11] (1913), 29 O.L.R. 527.

[12] [1956] O.W.N. 881.

[13] [1966] N.Z.L.R. 710.

[14] [1966] S.C.R. 532.

[15] [1956] A.C. 185.

[16] [1970] A.C. 166.

[17] [1971] A.C. 115.

[18] [1975] 2 All E.R. 1107 (C.A.).

[19] [1963] 3 All E.R. 521.

[20] [1951] S.C.R. 470.

[21] [1960] A.C. 145.

 

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