Case Name:

Teno et al. v. Arnold et al.

(1975), 7 O.R. (2d) 276

ONTARIO
HIGH COURT OF JUSTICE
KEITH, J.

27TH SEPTEMBER 1974

Negligence - Burden of proof - Child buying ice-cream from truck - Running into street - Struck by passing car - Whether reversed onus applicable to both vehicles - Highway Traffic Act, s. 133(1).

Negligence - Duty of care - Children buying ice-cream from truck - Obligation of owner and driver to children.

Section 106(1) of the Highway Traffic Act, R.S.O. 1960, c. 172 (now R.S.O. 1970, c. 202, s. 133(1)), provides that 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". Where a small child, having bought ice-cream from an ice-cream truck parked at the curb, dashes into the street and is struck by a passing car, the owner and driver of the car and the owner and driver of the ice-cream truck must discharge the onus imposed. Apart from the statute, the owner of the ice-cream truck owes a duty of care to customers too young to be held responsible for their actions. If it is uneconomic to employ a second person to travel with the truck and be responsible for the safety of young children who are customers, then it is at the very least the owner's duty to instruct the driver-salesman to discharge this responsibility. If this cannot be done economically then the truck should not be on the streets. The driver ought to recognize that little children may momentarily forget to take care and when he serves them he should look for traffic and take proper steps to keep them away from the road until it has passed.

It is not unusual for children aged four to six to approach ice-cream trucks without being supervised by their parents and in allowing this to occur the parents do not depart from the accepted standard.

Where the other motorist, having recognized the parked ice-cream truck, and knowing that unsupervised small children who have a habit of running across the street are commonly to be found in the vicinity of an ice-cream vendor, fails to reduce his speed to a point where even the sudden emergence of a child into the path of his car would not have precluded his stopping without striking the child, he fails to shift the onus of adducing evidence and fails to discharge the constant burden of proof upon him.

[Godfrey et al. v. Gadbois et al., [1949] O.W.N. 635, [1949] 4 D.L.R. 844; M'Alister (or Donoghue) v. Stevenson, [1932] A.C. 562, apld; Gordon v. Trottier, [1974] S.C.R. 158, 38 D.L.R. (3d) 682; Bedard et al. v. Gauthier, [1958] S.C.R. 92; Freedman v. City of Cote St. Luc, [1972] S.C.R. 216, consd and expld; Gambino et al. v. DiLeo et al., [1971] 2 O.R. 131, 17 D.L.R. (3d) 167, distd; Home Office v. Dorset Yacht Co. Ltd., [1970] A.C. 1004; Mead v. Parker (1965), 340 F. 2d 157; Sidders v. Mobile Softee Inc. (1961), 184 N.E. 2d 115; Bloom v. Good Humor Ice Cream Co. of Baltimore et al. (1941), 18 A. 2d 592; Vought v. Jones et al. (1965), 139 S.E. 2d 810; Mackey v. Spradlin et al. (1965), 397 S.W. 2d 33; Jacobs v. Draper (1966), 142 N.W. 2d 628; Hastings et al. v. Smith (1969), 443 S.W. 2d 436; McCallion v. Dodd et al., [1966] N.Z.L.R. 710; Culkin v. McFie & Sons, Ltd., [1939] 3 All E.R. 613; British Railways Board v. Herrington, [1972] A.C. 877; Pannett v. P. McGuinness & Co. Ltd., [1972] 3 All E.R. 137; Mitchell et al. v. C.N.R. Co. (1974), 46 D.L.R. (3d) 363, 6 N.S.R. (2d) 440, 1 N.R. 344; Howe v. Niagara St. Catharines & Toronto R. Co. (1924), 56 O.L.R. 202, [1925] 2 D.L.R. 115; Jordan House Ltd. v. Menow et al., [1974] S.C.R. 239, 38 D.L.R. (3d) 105; Carmarthenshire County Council v. Lewis, [1955] A.C. 549; Cowle and Cowle v. Filion, [1956] O.W.N. 881, 6 D.L.R. (2d) 258, refd to]

Damages - Permanent disability due to brain damage - Provision for future maintenance and expenses - Guaranteed life annuity unsatisfactory method - Lacking in flexibility - Cost of purchasing annuity convenient and useful check in calculating lump sum award - Use of 5% interest rate as hedge against inflation - Larger capital base thereby provided.

[Oliver et al. v. Ashman et al., [1962] 2 Q.B. 210; Taylor v. O'Connor, [1971] A.C. 115, apld; Loney v. Voll et al., [1974] 3 W.W.R. 193, not folld; Mallett v. McMonagle, [1970] A.C. 166, refd to]

Damages - Permanent disability - Provision for future care and maintenance - Lump sum to be increased because of prospects of taxation.

[Taylor v. O'Connor, [1971] A.C. 115, apld; The Queen in right of Province of Ontario v. Jennings et al., [1966] S.C.R. 532, 57 D.L.R. (2d) 644, distd]

Damages - Permanent disability - Mother of disabled child giving child extraordinary care over several years prior to assessment of damages - Propriety of allowing sum on quantum meruit.

ACTION for damages for personal injuries.

Earl A. Cherniak, Q.C., and Martin H. Wunder, for plaintiffs.

R. Barnes, Q.C., and J. Holland, for defendants, Wallace Arnold and Brian Arnold.

J.D. Bell, Q.C., for defendants, J.B. Jackson Limited, Thomas J. Lipton Limited and Stuart Galloway.

Marc S. Kaczkowski and Barry A. Percival, for Orville Teno and Yvonne Teno with respect to a claim for contribution under the Negligence Act.

KEITH, J.:- This action had been set down for trial by Judge and jury pursuant to a jury notice served on behalf of the plaintiffs. When the case was called for trial, counsel for the plaintiffs applied to strike out the jury notice and after careful consideration, counsel representing all other parties consented to such an order.

Having regard to the complexities of the issues which were apparent from the outset, I had no hesitation in acceding to the motion and the trial proceeded without a jury.

I propose to divide my judgment into three parts as follows:

1. The evidence as to the occurrence giving rise to this action and my findings.
2. The issues as to liability and my judgment thereon.
3. The evidence as to the damages alleged to have been suffered by the plaintiffs respectively and my assessment of such damages.

PART ONE

THE EVIDENCE AS TO THE OCCURRENCE GIVING RISE TO THIS
ACTION AND MY FINDINGS

Diane Marie Teno (hereinafter referred to as Diane) was born on November 24, 1964, and resides with her parents Orville Teno and Yvonne Teno, her sister Denise, born December 15, 1960, her brother Mark, born February 27, 1962, and her brother Paul, born May 25, 1963, at 3070 Academy Dr., in the City of Windsor, Ontario.

Academy Dr. is a handsome, quiet residential street. The houses are well-spaced and the street itself is divided into separate roadways for northbound and southbound traffic, each of such roadways being 18 ft. wide and separated from each other by a 22-ft. grassy boulevard planted with ornamental trees and shrubs.

The Teno residence is on the east side of the street fronting on the roadway reserved for northbound traffic.

July 1, 1969, the day on which the accident occurred that has brought about this litigation, was warm and sunny and a public holiday. On that date Diane was a little more than four years and seven months old, and her brother Paul was a month past his sixth birthday.

At about 1:30 in the afternoon, a specially designed and equipped ice-cream truck owned by the defendant J.B. Jackson Limited and driven by the defendant Stuart Galloway, drove southerly on Academy Dr. and stopped to sell ice-cream and other confections at the most westerly curb of Academy Dr., facing south and in front of 3085 Academy Dr.

At this time, Orville Teno was at work in Detroit, Michigan. Yvonne Teno was busy with her household duties, but interrupted by a telephone call from her husband, and the four children were playing in front of the home of the neighbours to the south. Mrs. Teno heard the sound of bells announcing the arrival of the ice-cream truck -- a familiar sound to her -- and then Diane, followed by Paul, came running in the house for money to buy something at the truck.

Mrs. Teno says she gave Diane 10 cents and then gave Paul 30 cents so that he could get something for himself and for his older brother and sister, and then the two children ran out of the house. Mrs. Teno returned to the telephone and shortly after she heard the sound of brakes or tires. She says instinctively she feared an accident involving the children. She ran out and across the street and found Diane lying in the roadway unconscious.

Stuart Galloway, the driver and operator of the ice-cream truck was almost 20 at the time of the accident and had started to work for J.B. Jackson Limited in this capacity about six weeks before. He explained that he had been driving easterly on West Grand Blvd. and had turned south from that street onto Academy Dr., proceeding slowly and ringing the bells with which his vehicle was equipped to announce his arrival on the street. He stopped at the curb in front of 3085 Academy Dr., having observed two children on a lawn on the east side of the street. To him they were potential customers.

While he was still in the cab of his truck where he would be when driving it, he saw the two children running towards him across the northbound traffic lanes, hand in hand, and he says, he realized they were probably coming to buy something.

As they approached, crossing the wide boulevard, he noticed in his rear vision mirror a southbound car approaching his truck from the rear. It occurred to him that the children, who turned out to be Paul and Diane Teno, might not have been aware of the car, so he called out to them to watch out for the car. The children stopped on the west curb of the boulevard until the car had passed and then they crossed the southbound traffic lanes. From the relative locations of 3070 Academy Dr. from which address the children had come, and 3085 Academy Dr., in front of which the ice-cream truck was stopped, I would infer that the two children crossed in front of the truck to the west side of Academy Dr. and then down along the right-hand side of the truck to the serving window open on that side. As the children left the boulevard, Galloway moved from his cab to the serving position in the truck.

These two children were his first customers at this stop although he had seen other children and older people in front of their houses, up and down the street, who also were potential customers.

When he saw the children next they were standing in front of the serving window of the truck, the little boy to Galloway's right as he faced them, i.e., nearer the rear of the truck and the little girl to Galloway's left, or nearer the front of the truck.

Galloway recalls that the boy appeared taller, bigger and older than the little girl who he estimated would be of preschool age.

Galloway asked the little boy what he wanted, but he had not made up his mind. It will be recalled that he was buying for himself and his older brother and sister. The little girl said she wanted a "Tiger Stripe" so Galloway got one from the freezer, took her dime and gave it to her.

The little boy had now decided and gave his order. Galloway turned about and was reaching deep into the freezer when he heard a thump and the sound of "tires braking". He looked to his right, southerly on Academy Dr., and saw the little girl rolling on the pavement and a car coming off the boulevard at an angle to the direction of the street.

The only other eyewitness as to the events leading up to the actual impact between the car and Diane was Brian Arnold, the driver of the car owned by his father Wallace Arnold.

Brian Arnold (hereafter referred to as Brian) was 18 at the time of the accident and lived with his parents at Woodland Ave., four blocks east of Academy Dr. It was conceded he was driving the car with the permission of his father. He had two-and-a-half years' driving experience and had owned a car personally for about a year.

He was very familiar with the district, having lived at the same address most of his life, and informed me that West Grand Blvd. intersects Academy Dr. and that Norfolk Ave. intersects Academy Dr. at the south end of the "3,000 block". A short distance south of Norfolk Ave., Academy Dr. ends at the premises of St. Mary's Academy. It is to be understood that for municipal purposes, buildings fronting on Academy Dr. are numbered by assigning a specific 100 to each block starting with 100 at the commencement of the street and rising by a hundred with each block as one proceeds from the the first one.

Early on this holiday afternoon Brian decided to call on a friend who lived in the second house south of West Grand Blvd. on the west side of Academy Dr. On leaving his own home he proceeded north on Woodland Ave., then west on West Grand Blvd., stopping at Academy Dr., then turned left to proceed south on Academy Dr. His attention was concentrated on the driveway adjacent to his friend's house, because if his friend's car was parked in that driveway he would know he was at home, and if not, he would assume his friend was not at home. During this brief period he estimated his speed to be about 15 m.p.h.

Having satisfied himself that his friend was not at home, he accelerated according to him, to about 25 m.p.h. and had reached that speed when for the first time he consciously recognized the parked ice-cream truck in front of him. He says he was driving with his left wheels "hugging" the west curb of the boulevard, but not because of the ice-cream truck. (On his examination for discovery, however, he gave this as his reason for "hugging the curb" at the extreme left of the southbound roadway, which it will be recalled is 18 ft. wide.)

The total distance from the friend's house and driveway towards which Brian's attention had been exclusively directed until he had passed the premises having made sure his friend's car was nowhere about, was estimated by him under cross-examination to be between 350 ft. and 400 ft. This is consistent with the sketch of the street entered as an exhibit. It is only reasonable to infer, as I do, that he was something less than this distance from the rear of the truck when he had accelerated to about 25 m.p.h. and become aware that an ice-cream truck was parked beside the west curb of the southbound roadway in front of him. He was quite familiar with this type of vehicle, and when he finally redirected his attention to what was in front of him, he recognized the vehicle for what it was at once. Numerous photographs of an identical vehicle were entered as exhibits and these were supplemented by detailed verbal descriptions. The rear of the van, which a driver in Brian's position would see, is painted white, as is the rest of the vehicle, and is equipped with a pair of doors occupying the maximum possible space at the back of the van, each door having a large square clear glass window in it. Below the window on the right at the rear is a stylized sign proclaiming "Good Humour Ice Cream". Below the window at the left is a cartoon type picture of the friendly operator. In the centre of the panel above the doors is a large sign painted in black letters on an orange background -- "Watch for Children" -- and in each of the four corners of the rear of the van, facing overtaking traffic, are flashing red lights which are under the control of the operator of the van.

According to Galloway, the van-type truck he was driving on the day of the accident was new when he became responsible for it in May, 1969, although this type of van had been adopted and put into service by the defendant-owner, J.B. Jackson Limited, a year before. There is no doubt that it was a decidedly distinctive vehicle.

Brian swore that at no time as he approached the ice-cream truck were the rear flashing lights operating. In this connection it is Galloway's evidence that he turned these lights as well as similar ones at the front of the truck, on, when he commenced his afternoon route, that they are all activated by a single switch on the dashboard in the cab and that when he was on the roadway in front of the truck after the accident he has a clear recollection of seeing the front warning lights flashing.

Brian Arnold told me that had he seen the rear lights flashing, he would be certain that children were being served from the service window on the right side of the truck but if not flashing, he would make no assumption one way or the other.

However, he says that when he saw the ice-cream truck, he took his foot off the accelerator and rested it without pressure on the brake pedal, that the speed of his car gradually decelerated, that knowing he must be cautious because young children were likely to be around the truck, he looked but saw none. The right or west side of the truck not being within his view, and knowing that children had a habit of running across the road, he conceded that his inability to see the serving side of the truck demanded extra caution.

He stated that having seen no children in the vicinity, he continued to coast by the truck and when he became parallel with the truck for the first time he saw the little girl and she was "directly at my right front fender". He says he steered left, there was an impact, he steered onto and off the boulevard and stopped on Academy Dr. facing west and blocking both lanes.

Under cross-examination, he confirmed that ice-cream trucks were not uncommon in the area, that he knew there were many young children in the district and that they patronized the ice-cream vendor, that he knew children were likely to be around the truck, and that he ought to be cautious when overtaking an ice-cream truck because of children around it, "as they have a habit of running across the road, being unsupervised". There was much more to the same effect. He said further that his brakes had not taken effect when the impact occurred and that his speed when he first noticed the truck would be about 25 m.p.h. Without braking, he estimated his speed to be as much as 20 m.p.h. at the time of impact.

Then his version of what he saw changed and he said that the child was still in front of the truck, about one foot from the front -- somewhere between the west curb and the left front of the truck when he first saw her. And again, under cross-examination he said he knew the child ran into the side of his car because when he lost sight of her she was within one foot of his car.

It is also to be remembered that with his car hugging the left curb and the truck parked at the right or west curb there had to be four to six feet separating the two vehicles, which the child had to traverse.

He never sounded his horn.

The child was running diagonally south-east, that is, away from the front of the truck, and the impact occurred five to six feet south of the truck. (In this connection Constable Glen, the investigating police officer who arrived on the scene within a very few minutes after the accident, stated that he found tire marks left by the left wheels of the Arnold car on the grassy boulevard starting five to six feet south of the front of the truck and continuing in an arc for 44 ft. 6 ins. before leaving the boulevard, the arc being of such a nature as to achieve a maximum perpendicular distance from the east curb of this portion of Academy Dr. of four to five feet.)

When Brian Arnold brought his car to a stop, he saw the little girl lying unconscious in front of the ice-cream truck and her friends, about five of them, trying to stand her on her feet. He says he ran towards them shouting at them to leave her alone. He had no idea where all these children came from so suddenly.

The last witness to whom I must refer although he did not see the actual impact is Michael Lawson who lived at 3130 Academy Dr. This young man was getting ready to mow the lawn in front of his house and noticed the ice-cream truck and as many as half-a-dozen children around it. From where he was he could not possibly have had a better view of the west side of that truck than Brian Arnold and yet he was able to see the children. He also saw the southbound car being driven at an "average" speed down the street, such speed he estimated at between 20 and 25 m.p.h. The car did not change speed until he heard the screech of tires and saw the car heading towards the boulevard. It was not until he got over to the other side of the street that he saw that a child had been hit.

The investigating officer, Constable Glen, to whom I have referred, could find no marks either on the Arnold car or on the roadway from which he could infer at what point on the road the impact had occurred, or what part of the car struck the child.

Neither Constable Glen nor Michael Lawson have any recollection one way or the other as to whether or not the flashing lights on the ice-cream truck were in operation at any relevant time.

On all this evidence I make the following findings of fact:

1. The impact between the Arnold car and Diane Teno occurred about the right front corner of the Arnold car on the side rather than the front and at a time when the front of the Arnold car was five or six feet past or south of the front of the parked ice-cream truck;
2. that the speed of the Arnold car was still between 20 and 25 m.p.h. and that no brakes had been applied;
3. that the child was running diagonally across the street away from, rather than towards the southbound car;
4. that the flashing lights on the ice-cream truck were functioning properly (in this connection I prefer the recollection of Stuart Galloway to that of Brian Arnold);
5. that there were other children around the ice-cream truck, possibly as many as five or six at the time of the impact.

PART TWO

THE ISSUES AS TO LIABILITY AND MY JUDGMENT THEREON

Brian Arnold. There is no dispute as to the applicability of what is commonly referred to as the onus section of the Highway Traffic Act to this case in so far as Brian Arnold is concerned. At the time of the accident it was s. 106(1) of the Highway Traffic Act, R.S.O. 1960, c. 172 (now R.S.O. 1970, c. 202, s. 133(1)). Since the section must also be considered with respect to other defendants it will be convenient to quote it now:

106(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.

This statutory provision has been the subject of a multitude of reported decisions. In my view, where the judgments of appellate Courts may appear to be at variance from time to time, such results flow not from any disagreement as to the meaning and effect of the section in law, but rather from the application of the law to the evidence in each particular case. A striking example of this is to be found in a recent judgment of the Supreme Court of Canada in Gordon v. Trottier, [1974] S.C.R. 158, 38 D.L.R. (3d) 682. In that case, a six-year-old child had been struck by a car and sought damages. At the trial she succeeded. The judgment of the trial Judge was reversed by the Ontario Court of Appeal. In the Supreme Court of Canada no less than three judgments were delivered, one by Ritchie, J., for himself and Judson, J., dismissing the appeal, a separate one but concurring in the result by Pigeon, J., and a third and dissenting judgment by Laskin, J. (as he then was), for himself and Spence, J., which would have restored the trial judgment. It is quite clear, however, that all five Judges subscribed to two statements quoted by Ritchie, J., at p. 165 S.C.R., pp. 686-7 D.L.R., as follows:

The statutory onus created by such provisions as those in s. 106(1) of The Highway Traffic Act, supra, was fully discussed by Lord Wright in the well-known case of Winnipeg Electric Co. v. Geel, [1932] A.C. 690, where he said:

"No doubt the question of onus need not be considered if at the end of the case the tribunal can come to a clear conclusion one way or the other but it must remain to the end the determining factor unless the issue of negligence is cleared up beyond doubt to the satisfaction of the jury."

Speaking of the onus of proof in another connection, Lord Dunedin observed, in the course of his reasons for judgment in Robins v. National Trust Co., [1927] A.C. 515, 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 majority of the Court came to the one conclusion that on the evidence what the trial Judge characterized as negligence on the part of the motorist, ought not, in all the circumstances, to be so characterized, with the result that the motorist had proven that the loss or damage had not occurred by reason of any "negligence or improper conduct" on her part. In short, the majority were of the view that she had satisfied the onus on her. The minority on the other hand were unable to reach that conclusion on the evidence and hence by application of the onus would have restored the judgment at trial.

The phrase that I have used, "in all the circumstances", I think is significant in the light of the judgment of Pigeon, J., at pp. 172-3 S.C.R., p. 688 D.L.R., of the report, where he discusses the cases of Bedard et al. v. Gauthier, [1958] S.C.R. 92, and Freedman v. City of Cote St. Luc, [1972] S.C.R. 216.

In the first case the motorist was held to have failed to discharge the onus upon him because having regard to the locality where that accident happened, he ought to "have anticipated the possibility, when passing a parked truck, that children might dart across the street". In the second case, again having regard to the locality where the accident happened, the Court was of the opinion that the motorist was not under an obligation to anticipate any such possibility, and since his driving otherwise met acceptable standards, he had effectively discharged the onus upon him.

There is one other effect of the onus section, however, that should be referred to specifically and that is that the onus of adducing evidence in disproof of negligence or improper conduct rests on the driver or owner in the first instance. In his examination-in-chief, Brian Arnold sought to discharge the onus of adducing evidence as well as the burden of proof, by testifying that when he first saw the child, she was so close that nothing he could do could prevent an accident. Under cross-examination, however, any hope that he might have had either to shift the onus of adducing evidence or of discharging the constant burden of proof upon him disappeared.

On his own evidence, having recognized the parked ice-cream truck, he knew that unsupervised small children who had a habit of running across the street were commonly in the vicinity of and customers of the ice-cream vendor. He failed to reduce his speed to a point where even the sudden emergence of a child into the path of his car would not have precluded his stoppage without striking the child: see Gambino et al. v. DiLeo et al., [1971] 2 O.R. 131, 17 D.L.R. (3d) 167.

He further failed, in my opinion, to keep a proper look-out. From his position behind the wheel on the left side of his car, next the east curb of Academy Dr. he must have been at least 10 ft. from the left side of the truck. He admitted in cross-examination first seeing the child five or six feet away while she was still in front of the truck and running on an angle away from the truck and from him and not as he said, under direct examination, when she was only a foot away from the side of his car.

He conceded that his whole attention had been concentrated on determining whether his friend was at home or not until he had passed the last point where he could check his friend's property, and that it was not until then that he even looked to see what was in front of him as he drove down the street. He has failed to satisfy me that he was concentrating as he ought to, 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.

Wallace Arnold. It was not disputed that if Brian Arnold is found liable, then Wallace Arnold, the owner of the vehicle, must be found vicariously liable as a result of the application of s. 105(1) of the Highway Traffic Act, R.S.O. 1960, c. 172 (now s. 132(1) of R.S.O. 1970, c. 202).

J.B. Jackson Limited and Stuart Galloway. These defendants are the owner and driver-operator respectively of the ice-cream truck. In addition to denying liability, they assert that the infant plaintiff's injuries resulted from the negligence of Brian Arnold and the adult plaintiffs, Diane's parents, and plead the Negligence Act, R.S.O. 1960, c. 261 (now R.S.O. 1970, c. 296).

The infant plaintiff's case against these defendants is put on several grounds. The first of these relies on the same sections of the Highway Traffic Act under which Brian and Wallace Arnold have been found liable. Counsel for the Arnolds supports counsel for the plaintiff in this respect. Reliance is placed on the judgment of the Ontario Court of Appeal in Godfrey et al. v. Gadbois et al., [1949] O.W.N. 635, [1949] 4 D.L.R. 844. In that case the plaintiff was a passenger in a car that had stalled on the highway. While attempting to start the car with a hand crank he was struck by another car. Action was brought against the owner of the stalled car as well as the owner and driver of the car that struck the plaintiff. The trial Judge left the case to the jury on the basis that the onus section was applicable to all defendants. The jury were not required to specify any act or acts of negligence attributable to the defendants, but simply to answer the standard question in such cases: "Have the defendants satisfied you that the injuries of the plaintiff did not arise through the negligence of the defendant ...?" The jury answered this question with respect to both the owner of the stalled car and the driver of the car that struck the plaintiff, in the negative. The first ground of appeal was that the onus section did not apply to the owner-driver of the stalled car.

Laidlaw, J.A., in delivering the judgment of the Court on this point, said at p. 636 O.W.N., pp. 846-7 D.L.R.:

Counsel for the appellant argued that there is no evidence or no sufficient evidence in this case to make applicable the section of the statute quoted above. He argues, with his usual great force and persuasiveness, that before a person can rely upon that section and put the onus of proof, as therein provided, upon the owner or driver of a motor vehicle, he must adduce evidence showing a causal connection between a person who sustains loss or damage and a motor vehicle on a highway. He urges that in this case no such connection exists. Counsel for the plaintiffs (respondents) suggests that the words "by reason of" in the section can be properly read "as a result of" and that in that way the meaning and scope of the section is made plainer. It appears to me to be impossible to define or specify the elements which bring a case within the language and scope of the legislation or to formulate any general rule to determine in what case or class of case the statutory onus rests on the owner or driver of a motor vehicle. Each case must be considered separately and the decision must be made upon the particular evidence adduced at trial. In the present case there is sufficient evidence upon which a jury acting judicially could properly find that loss or damage was sustained by the plaintiff "by reason of" the motor vehicle of the appellant Sproule on the highway, and I would therefore hold that the section is properly applicable to the case. The infant plaintiff was on the highway because the motor vehicle of the appellant was stalled there, or, in other words, it was the presence and state of the motor vehicle under the particular circumstances that occasioned his presence at the place of the accident.

(Emphasis added.)

This case seems to have settled the point that the section is not restricted in its application to the motor vehicle which actually inflicted injury. Counsel did not refer me to any other authority on the point, nor does this case, as far as I can discover, appear to have been judicially considered in any other reported Canadian case.

In my opinion, the circumstances of that case are analogous to the present case, and the words used by Laidlaw, J.A., which I have emphasized, are directly in point. To paraphrase them, the infant plaintiff in the present case was on the highway returning to her home on the opposite side of the street because the ice-cream truck was parked on the street, across from her home, for the purpose of selling ice-cream. In the result then, it is my opinion that s. 106(1) of the Highway Traffic Act then in force is applicable to these defendants.

In addition, however, it is strongly urged that quite apart from the Highway Traffic Act, these defendants individually and together as master and servant, owed a duty of care at common law to a child customer such as the infant plaintiff and that they were guilty of negligence in the performance of that duty. I think it convenient then to consider the law and the evidence on this branch of the case since part at least of the same evidence is relevant to the issue as to whether or not these defendants have succeeded in discharging the onus upon them under the Highway Traffic Act.

Counsel for the plaintiffs opened his argument on this point by quoting the following familiar passage from the opinion of Lord Atkin in M'Alister (or Donoghue) v. Stevenson, [1932] A.C. 562 at pp. 580-1:

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 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.

The foregoing statement was referred and the principle enunciated therein reaffirmed in Home Office v. Dorset Yacht Co. Ltd., [1970] A.C. 1004, per Lord Reid at p. 1027, and Lord Morris of Borth-y-Gest at p. 1034.

I think counsel was right to start with a basic principle because as was stressed to me, there is no Canadian case in which liability has been sought to be attributed at common law to persons in the position of these defendants. The case of Gambino v. DiLeo, supra, was indeed a case in which a child was injured by a car when leaving an ice-cream vendor's truck but action was not brought against the owner or operator of the truck, hence my brother Osler was not called upon to deal with the matter.

Such actions have, however, been brought in other jurisdictions.

In Mead v. Parker (1965), 340 F. 2d 157, the United States Court of Appeal's Sixth Circuit dismissed an appeal from the judgment of the United States District Court for the Eastern District of Tennessee, Northeastern Division. Liability was sought to be attached to the defendant driver and defendant owner of an ice-cream truck for injuries sustained by a young child in circumstances similar to the present case, on two grounds, "attractive nuisance" and ordinary negligence. In dismissing the appeal, the Court said, at pp. 159-60:

After reviewing the Tennessee authorities, the district court held that this is not a proper case for application of the attractive nuisance doctrine, saying:

"The Court, therefore, finds and concludes: ... that these defendants' ice cream vending vehicle was engaged at the time and place of this accident in a lawful business, that it would have been extremely difficult for the defendants to have prevented any obvious danger to youthful purchasers of its merchandise without totally destroying the usefulness of the vending truck, that the attractive presence of the vending truck at the time and place of this accident merely created the occasion which afforded opportunity for another event to produce the minor plaintiff's injuries, and that, accordingly, the plaintiffs have not thereby charged these defendants with either actionable negligence or actionable failure to observe any legal duty owing the minor plaintiff."

We are not willing to hold as a matter of law that an ice-cream vending truck is an attractive nuisance under the averments of the complaint in this case.

Sidders v. Mobile Softee Inc., 184 N.E. 2d 115, is a similar case decided by the Court of Appeals of Ohio in 1961. In dismissing the action the Court said, at p. 117:

The defendant is accused of being a sort of modern Pied Piper and as such responsible for any and all mishaps to its young customers. It is not an insurer of the safety of its patrons. Nor is it charged with a violation of law. The operation of an ice-cream vending truck attractive to children is admittedly not a nuisance. The Supreme Court has held that it is not so closely related to the public health, safety, etc., as to render its elimination by police ordinance constitutional.

Negligence is charged against the defendant by stating generalities and conclusions of law, which will not prevail against demurrer. We are unable to find that it has been charged with any negligent act or omission.

In addition to the foregoing cases, counsel for these defendants further relied on Bloom v. Good Humor Ice Cream Co. of Baltimore et al., 18 A. 2d 592, a 1941 case in the Maryland Court of Appeals. That case is of no assistance, however, since the infant in that case was 10 years old at the time of the accident and was held responsible for his own negligence in crossing the street.

However, I was also referred to a number of cases in the Courts of the United States where the protection of free enterprise was not the apparent criterion and such actions as the present ones were sustained. In Vought v. Jones et al. 139 S.E. 2d 810, a 1965 case, the Supreme Court of Appeals of Virginia held that the driver of an ice-cream vending truck knew or in the exercise of reasonable care should have known that children would cross the road and gather around his truck for the purpose of buying his products. With such knowledge, it was the duty of the operator to exercise ordinary care to provide a reasonably safe place for children who were his business invitees, and he was required to exercise ordinary care to select or position on the road where he could stop his vehicle and dispense merchandise to a child without exposing the child to danger.

In Mackey v. Spradlin et al., 397 S.W. 2d 33, another 1965 case, the Court of Appeals of Kentucky held that one who intentionally attracts small children to a place in or so close to a street or highway that there is danger of their being struck by passing traffic, is under a duty to maintain a lookout for such traffic, and if he observes or in the exercise of ordinary care should observe a vehicle approaching close enough to constitute an immediate hazard, to warn children or make such other reasonable effort to prevent their being injured. Further, that the negligence of the ice-cream vendors whose seven-year-old customer was killed by a passing dumptruck while running from behind their vehicle, was that they should have realized the danger of just such an accident, with or without some degree of negligence on the part of a passing driver.

In Jacobs v. Draper, 142 N.W. 2d 628, a 1966 case, the Supreme Court of Minnesota held that the gist of the negligence of the operator of an ice-cream truck from which a child darted into the path of a motorist and was killed, was that when he parked his truck in an area where many children resided, used recorded music to attract customers, and was selling a product enticing in itself to children, he should have realized the danger of an accident involving children in the street and oncoming traffic, with or without some degree of negligence on the part of a passing motorist.

I do not propose to quote from other cases, but refer to Schwartz v. Helms Bakery Ltd. et al. (1967), 430 P. 2d 68 (Supreme Court of California); Ellis v. Trowen Frozen Products Inc. (1968), 70 Cal. Rptr. 487 (California Court of Appeal); Thomas v. Goodies Ice Cream Co. (1968), 233 N.E. 2d 876 (Court of Appeals of Ohio); Hastings et al. v. Smith (1969), 443 S.W. 2d 436 (Supreme Court of Tennessee), and Nicosia et al. v. Good Humor Corp. et al. (1969), 170 N.W. 2d 164 (Court of Appeals of Michigan), in all of which cases it was held that there was a duty of care imposed on the driver and owners of such vehicles with respect to young children, and that whether such duty had been breached or not was to be determined by the evidence. In the Hastings v. Smith case, the duty was spelled out in this language [headnote]:

Operator of mobile ice cream vendor who dispensed ice cream from vehicle parked on road in residential area owed duty to maintain lookout for moving traffic and warn children of approach of such traffic.

In McCallion v. Dodd et al., [1966] N.Z.L.R. 710, the President of the Court of Appeal of New Zealand said at p. 722:

There can, I think, be no doubt that if a stranger takes a small child on to the highway he immediately undertakes a legal duty to exercise reasonable care for the child's safety.

There are a number of English cases to which I wish to refer. The first of these is Culkin v. McFie & Sons, Ltd., [1939] 3 All E.R. 613. ln that case the defendants were held liable for failing to take appropriate measures for the safety of young children who were in the habit of chasing their lorry to retrieve sugar spilling from broken bags. Croom-Johnson, J., said at p. 620:

To send this moving and attractive vehicle down this street with an insufficient number of look-out men, as I find that the defendants did, was, in the circumstances, to act with a reckless disregard of the consequences.

Then and much more recently in British Railways Board v. Herrington, [1972] A.C. 877, the House of Lords held that there was a duty of care for the safety of young children who were trespassers on railway property. I quote the following passage from the judgment of Lord Reid, at pp. 899-900:

It is always easy to be wise after the event and in judging what ought to have been done one would have to put out of one's mind the fact that an accident had occurred and visualise the position of the occupier before it had happened. Quite probably this would not be the only point on his land where tresspass was likely. One would have to look at his problem as a whole and ask whether if he had thought about the matter it would have been humane or decent of him to do nothing. That may sound a low standard but in fact I believe that an occupier's failure to take any preventive steps is more often caused by thoughtlessness than by any shirking of his moral responsibility. I think that current conceptions of social duty do require occupiers to give reasonable attention to their responsibilities as occupiers, and I see nothing in legal principles to prevent the law from requiring them to do that.

If I apply that test to the present case I think that the appellants must be held responsible for this accident. They brought onto their land in the live rail a lethal and to a young child a concealed danger. It would have been very easy for them to have and enforce a reasonable system of inspection and repair of their boundary fence. They knew that children were entitled and accustomed to play on the other side of the fence and must have known, had any of their officers given the matter a thought, that a young child might easily cross a defective fence and run into grave danger. Yet they did nothing. I do not think that a large organisation is acting with due regard to humane consideration if its officers do not pay more attention to safety. I would not single out the station master for blame. The trouble appears to have been general slackness in the organisation. For that the appellants are responsible and I think in the circumstances culpable.

This case and the subsequent English case of Pannett v. P. McGuinness & Co. Ltd., [1972] 3 All E.R. 137, were cited with approval in a recent and as yet unreported case in the Supreme Court of Canada -- Mitchell et al. v. C.N.R. Co. (February 12, 1974) [since reported 46 D.L.R. (3d) 363, 6 N.S.R. (2d) 440, 1 N.R. 344].

Reference was also made in argument to two cases where a common law duty of care was imposed on defendants where intoxicated persons in no condition to care for themselves, had been ejected from the premises or property of the defendants, having been on such premises or property for the business purposes of the defendants: see Howe v. Niagara St. Catharines & Toronto R. Co. (1924), 56 O.L.R. 202, [1925] 2 D.L.R. 115, following Dunn v. Dominion Atlantic R. Co. (1920), 60 S.C.R. 310, 52 D.L.R. 149, 28 C.R.C. 214, and Jordan House Ltd. v. Menow et al., [1974] S.C.R. 239, 38 D.L.R. (3d) 105. With respect to the latter case, the following sentence which appears at p. 249 S.C.R., p. 112 D.L.R., is of interest:

The imposition of liability upon the hotel in the circumstances that I have recounted has roots in an earlier decision of this Court when related to the evolutionary principles stemming from Donoghue v. Stevenson, [1932] A.C. 562, which have become part of this Court's course of decision.

Although many other cases were referred to during argument, I think they are really further examples of the judicial approach both here and in other countries to a variety of factual situations and the imposition of liability or otherwise, according to what we in this jurisdiction conveniently refer to as "the evolutionary principles stemming from Donoghue v. Stevenson".

I have already discussed the evidence of the defendant Galloway as to the actual accident. There was a great deal of evidence which establishes beyond doubt that both Galloway and his employers were well aware of the danger that young children could be exposed to when attracted to an ice-cream truck parked on a roadway in a residential area. I think it sufficient to refer again to the sign at the back of the truck "WATCH FOR CHILDREN" and in addition, to a large sign on the left side of the truck at the top, "WAIT ON CURB -- I'LL COME TO YOU", and to the flashing lights, reminiscent of a school bus in Ontario, with which the truck was equipped.

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., supra), his honest but damning answer was that the exigencies of business, i.e., to make a profit, overrode safety factors.

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 could not be done economically, then they should not have had their trucks on the streets.

As far as Galloway himself is concerned, on his own evidence he recognized that these little children might momentarily forget to take care and he called out a warning before they crossed the street to be served, with respect to the car that he then saw approaching.

He ought to have recognized that the same danger might arise when one or other or both of the children were leaving the truck. One single precaution he could have taken, was to hand both the children their confections at the same time and not close his transaction with the smaller one first, take her money, turn his back on her and with his head down where he could not see approaching traffic through the rear windows, delve into the freezer for her brother's order.

Before permitting her to have what she came for, he should have looked as he easily could, for southbound traffic (it was a one-way street). Had he done so, he unquestionably would have seen the Arnold car approaching and taken proper steps to keep the child away from the road until it had passed.

In my judgment, Galloway, in serving his employer as he did, was himself negligent and his negligence becomes the further responsibility of his employer.

The acts of negligence that I have found against these defendants individually and collectively must result in the further finding that they have not discharged the onus upon them under s. 106(1) of the Highway Traffic Act then in force.

Thomas J. Lipton Limited. The only connection this defendant has with any of the parties to this litigation is that it appears to be the corporate owner of the shares of the defendant J.B. Jackson Limited with common directors and officers. There is no basis known to law to attribute either direct or vicarious liability to this defendant. J.B. Jackson Limited is a wholly separate legal entity and corporate person, operating its own commercial business, responsible for its own contractual, tax and tortious liabilities and to account for its earnings to its shareholders.

This action must be dismissed as against this defendant.

Orville Teno and Yvonne Teno. All defendants assert negligence against the parents of the infant plaintiff and seek contribution and indemnity from them.

This case is quite distinguishable on its facts from the case of Gambino et al. v. DiLeo et al., supra. Neither parent was at the time and place of this accident in any physical position to exert control over or provide protection for the child. The only fault that the defendants find with Yvonne Teno in relation to this accident was in permitting her four-year-old daughter to cross the street in the care of her six-year-old brother, rather than acting as escort herself.

Each case must stand on its own facts and there are no doubt cases where a parent has been found to be in breach of a duty of care to a child. Gambino et al. v. DiLeo et al. is of course a recent example of this. But as is carefully pointed out by McCarthy, J., in his judgment in McCallion v. Dodd et al., [1966] N.Z.L.R. 710 at p. 729, it is the actual occasion that must be the governing factor, not the mere relationship of parent and child. Reference may also be made to the judgment of Lord Reid in Carmarthenshire County Council v. Lewis, [1955] A.C. 549 at p. 566.

The same submissions that are made in the present case were made and rejected in Cowle and Cowle v. Filion, [1956] O.W.N. 881, 6 D.L.R. (2d) 258. In my respectful view, Miller, Co.Ct.J., applied the correct test in that case, i.e., the accepted standard of care by parents generally in the community.

The sale of confections from this ice-cream vending truck to children very young and older unaccompanied by a parent was the accepted purpose of the vehicle being on this residential street, and as the evidence in this case makes abundantly clear, there was nothing unusual whatever in children of the ages of Diane and Paul Teno appearing at the side of the vehicle, without an adult, to make their purchases. 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 and Yvonne Teno fails.

PART THREE

THE EVIDENCE AS TO THE DAMAGES ALLEGED TO HAVE BEEN
SUFFERED BY THE PLAINTIFFS RESPECTIVELY AND MY
ASSESSMENT OF SUCH DAMAGES

Diane Teno. It will be recalled that this child was four years and seven months old at the time of the accident and that nearly five years had elapsed between the date of the accident and this trial. It would have been wrong to bring the case to trial any sooner, as the time that has passed has been necessarily devoted to such treatment as was possible, the training and development of the child and the affording to the highly qualified professional people who have been called upon to help her, sufficient time to assess the degree of success, no matter how minimal, she may achieve in adjusting to her disabilities. Dr. John S. Prichard, who is head of the divisions of neurology and electroencephalography at the Hospital for Sick Children (on whose staff he has been for 25 years), professor of pediatrics at the University of Toronto, consultant to the Clarke Institute of Psychiatry, Toronto, and a recognized authority throughout the medical world on child neurology, in giving evidence, described Diane as "one of the most disabled children I have ever seen".

As trial Judge, I was afforded the utmost opportunity to see the dreadful extent of such disabilities in her daily life and in this connection I would be remiss, if I failed to acknowledge the assistance that I received from her counsel in the presentation of the evidence with respect to this in a most imaginative and, I believe, unique way in trials to date in Canada. Arrangements has been made by counsel to have the technical crew of a local television station in Windsor, attend at the Teno home in August, 1973, and record on video tape with sound track about one-and-a-half hours of Diane's daily life with her mother and brothers and sister. This evidence was introduced after a proper foundation had been laid as to the technical aspects of the equipment, by use of closed circuit television, with commentary from time to time of doctors who were familiar with the child. I cannot conceive of a more graphic portrayal of what I must try to express in words. I should also mention that all counsel conceded that the evidence was properly admitted. After all, it is only a marked improvement on ordinary motion pictures which have been used at trial for many years.

I turn now to the medical evidence adduced at trial through numerous witnesses and medical and hospital reports.

Diane was admitted to the emergency department of the Hotel Dieu Hospital in Windsor at 1:50 p.m. on July 1, 1969. Shortly thereafter she was seen by Dr. Victor Kleider, a specialist neurosurgeon since 1958, at that time on the staff of the Hotel Dieu Hospital and now chief of neurosurgery at another hospital. Dr. Kleider testified that the child was deeply unconscious, showing decerebrate rigidity, her back was arching, her breathing was irregular and stertorous, indicating to him that her brain stem was not functioning. The pupil of her left eye was "maximally" dilated and did not react to light, evidencing severe trauma to the left side of the brain and severe pressure on the brain. There was evidence of paralysis on the right side and the head of the right optic nerve was swollen. These and other symptoms observed convinced Dr. Kleider that surgical therapy must be carried out immediately to relieve the pressure and to avoid the herniating of the brain and death.

A left frontal osteoplastic craniotomy was carried out. An acute subdural hematoma was evacuated and an adequate decompression and dural graft done to compensate for the extensive brain swelling.

See Dr. Kleider's report of July 28, 1969.

X-rays taken as soon as possible after admission revealed no fractures of the pelvis, arms or legs. Although not disclosed by X-ray, she clearly had a depressed skull fracture which was elevated by the surgery.

Difficulty in breathing which was apparent from the time of admission continued, and a few days later it was necessary to perform a tracheotomy. The tube remained in situ for several weeks and then the wound healed uneventfully.

Both surgical procedures have left conspicuous scars. Normally the scar that extends from just above the inner aspect of the left eyebrow up into and above the hair-line is substantially concealed by the style of hair-dressing that has been adopted for the child. The tracheotomy scar is concealed by high neckline dresser or sweaters.

However, these scars which would be serious in the case of an otherwise normal young girl are minor when placed in the context of this child's injuries.

After four weeks, Dr. Kleider reported that the child's progress had been most unsatisfactory. He stated that at best she was semi-comatose and that her response to painful stimuli, such as a pin prick, was decerebration with extensive spasticity in arms and legs.

Dr. Kleider's responsibility ended when Diane was discharged from hospital to the care of her parents at home on October 4, 1969. At this stage his assessment of his patient was that her injuries were of extreme seriousness and permanent. There was extensive damage to the frontal lobe of the brain, the lobe that is associated with emotion, forward planning and personality.

At the time of discharge from hospital, consideration was given to having Diane transferred to an institution specializing in the care of cerebral palsy cases but this was not carried out. However, it was Dr. Kleider's prognosis that there was little, if any, possibility of Diane ever recovering any significant mental or physical function and that she would require institutional care for the rest of her life.

Dr. H.J. Breault, specialist in pediatrics at Hotel Dieu Hospital, had been consulted from time to time during Diane's stay in hospital and wrote a summary of his findings at the time of discharge. He was not called as a witness but that summary dated September 26, 1969, and follow-up reports dated December 9, 1969, and April 20, 1970, were filed in evidence.

In the summary of September 26, 1969, Dr. Breault stated:

This patient is being re-assessed prior to discharge from hospital. She has been in Hotel Dieu Hospital since July 1/69 when she was struck by a car at which time she had brain surgery by Dr. Kleider. She was decerebrate with spasticity and rigidity for a period and had a tracheotomy which eventually was closed uneventfully. Gradually, the comatosed condition decreased and child became somewhat more aware of her surroundings and began over the past few weeks to be responsive and to begin to recognize persons. At the present time, she has made some considerable headway although there is much residual damage and residual mental retardation, because of the extensive brain injury. At the present time, child is able to sit with support and can stand slightly when supported and when held, but she is unable to walk. Child still shows scars in the left side of the head with some irregularity of the skull contour. Child apparently knows people and can smile. She has to be spoon fed but will open her mouth and take food well. There is spasticity of all extremities. The left arm and left leg are largely immobile. The child cannot grasp or move the left upper or left lower extremity. There is some very jerky spastic movements of the right arm. The fingers are curled up and some of the fingers are extended in a spastic position.

Child can make some grasping gestures with the fingers but is unable to hold any objects. Child will open and close her eyes on command and raise the left leg very jerkely when asked to do so. She knows her parents. She will smile when asked to do so and will point very jerkely to her nose, eyes or mouth and will protrude tongue when instructed to do so. This child still shows considerable spasticity and is receiving physiotherapy to overcome the spasticity of the extremities.

There has been some progress, but child is still a wheel chair case and will require constant care at home when she is discharged and follow-up nursing care and physiotherapy and home nursing.

Two-and-a-half months later he reported as follows:

Today I examined Diane. She shows considerable residuals from her initial brain damage. She is alert but cannot speak except for one mumbled word -- "Mommy". She is spastic and has little function of left hand and leg. There is some movement of the right hand with grasping but this is very shaky although she can grasp and hold objects. She appears to hear well and understands everything.

She is unable to walk or stand, although with support she does remain upright and attempts to place one foot before the other.

Diane can sit alone when placed upright in a sitting position but falls backward easily.

All in all, she will probably be a wheelchair case and will never be self-sufficient nor able to care for herself alone.

Although she has progressed somewhat, the ultimate outlook for rehabilitation is not good.

An evaluation was done by the physical medicine department of the hospital in January, 1970, where it was found that she had severe speech problems, could sit up unsupported, could pull herself to a standing position, but could only maintain this for a few seconds without support, and could walk with support with an in-toe, cross-leg gait. By this time also she had control of her bladder and bowels, but of course could not go to the toilet without maximum help.

Leg braces were prescribed, together with the Red Cross pre-school programme combining physical, occupational and speech therapy.

As indicated, Dr. Breault saw her again on April 20, 1970, and reported that:

She has made some headway but still is unable to care for herself, unable to walk or talk or feed herself or dress herself.

She still requires constant supervision and full assistance in the daily tasks of living.

On October 20, 1970, she was seen for the first time by Dr. Prichard at the Hospital for Sick Children in Toronto. I will refer to his oral evidence in due course, but in the meantime will quote a portion of his report following that examination:

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 mid-line. 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.

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 had 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 severe 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 effects 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 physiotheraphy 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 her next on October 26, 1971, and was discouraged by the absence of improvement. His subsequent examinations were on July 3, 1973, and April 9, 1974. I quote his full reports on these latter examinations:

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 I. 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.

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 even seen.

These findings and opinions were confirmed by Dr. A.T. Jousse, medical director of Lyndhurst Lodge, Toronto, in his written reports and his oral evidence.

In evidence Dr. Prichard said the following significant things:

1. She is aware now of her predicament but at present she is protected in her parents' home.
2. As time goes on her disabilities will be more obvious to her.
3. As to future surgery, the risk of doing further damage is too great, based on present professional knowledge. In any event her left side disabilities offer no hope of improvement, and only the right side might respond to surgery to some extent.

There was a great deal of other evidence adduced to which I do not need to refer.

There is no doubt and I so find that Diane Teno, as a result of the injuries suffered in this accident, has been and will be for the rest of her life to all intents and purposes totally disabled, unable to support herself, with no reasonable possibility of support through marriage, and requiring assistance to perform the most ordinary tasks required in living, on a full-time basis.

The evidence further, is to the effect that her normal life expectancy has not been shortened by the injuries which she has suffered.

Ever since her discharge from hospital in October, 1969, she has been cared for by her mother and father and brothers and sister with that mixture of love, devotion, skill and unwavering self-sacrifice that only a solid family unit could possibly provide.

Fortunately Yvonne Teno is by training and profession a teacher of young children up to grade 8. What progress Diane has made in the past five years must in great degree be attributed to the support that she has received from her family. How much longer that can continue without assistance no one can say, but it is certain, and the evidence to which I will refer later is clear, that these dreadful years have taken appreciable toll of the physical and spiritual resources of the family and particularly of Diane's mother who of necessity has had to bear the principal burden of her child's care.

As Diane and her parents grow older, it is inevitable that changes will have to take place in the arrangements for her care. What is to become of her?

The only real opinion that was placed before me was that of Dr. A.T. Jousse to whom 1 have already referred briefly, and whose opinion carries the greatest weight. As a specialist in rehabilitation medicine on the staff of the Toronto General Hospital, and for 29 years medical director of Lyndhurst Lodge in Toronto, his assessment of the potential and the needs of a disabled person cannot be seriously challenged as indeed they were not in this case.

He has conducted two thorough examinations of Diane, one in May, 1973, and again in April, 1974. He has had the benefit of the observations of her parents and has studied the video tapes that I have mentioned.

Having regard to all her disabilities, he has expressed the following opinions:

1. She will never be able to care for herself and will require constant attendance to do the things people normally do for themselves,
2. The attendance she needs must come from a mature, intelligent, concerned person, with empathy -- and it must be a woman because she requires intimate care,
3. Gainful employment in the future is impossible. She has too many disabilities, has disability to communicate because of her speech impairment and the uncontrollable tremor of the right arm being the ultimate disabilities,
4. As she matures and grows up, the stresses that will face her will widen her recognition of her disabilities,
5. With puberty and awakening of her natural desire to relate to the opposite sex without being able to do so may cause depression,
6. Another critical time is probable when she should be working or marrying,
7. If depression or hostility develops as it well may, it can have an adverse affect on her physical performance,
8. When she is fully grown it will be harder than ever to manage her in her needs, and she will have to guard against overweight,
9. Her life expectancy is not greatly threatened by her injuries and disabilities,
10. She will need more than one attendant to provide adequate full-time assistance,
11. When the time comes to leave her parents' home, she should live in her own home rather than an institution.

Edmund Ratelle, a rehabilitation counsellor at Lyndhurst Lodge, was called to give evidence of the cost of providing the kind of assistance that Diane will need in the future, based on a single attendant on duty 24 hours a day for five days a week, living in, and supplemented by attendants working six shifts of eight hours each on the remaining two days of the week. He calculated that at present rates, in an urban area close to necessary transportation, this would involve at present an expenditure of about $21,000 per year.

In cross-examination, he stated that he did not know of any suitable institution in Ontario or elsewhere as an alternative.

Mrs. Diane Wilson, a placement officer in the Women's Division of Canada Manpower Services in Windsor, estimated that if the proper persons could be found to work on eight-hour shifts throughout the week, it would cost $81 per day at present rates or about $2,500 per month. Her figures were not substantially different when based on a sort of housekeeper companion living in and supplemented by a registered nursing assistant or practical nurse for two shifts of eight hours each day.

Finally, R.A. Mepham, an actuary with the London Life Insurance Company, was called to provide evidence of life expectancy and a variety of figures as to the present value of capital required to produce various sums. His evidence in this respect is not challenged.

First, as to life expectancy, as of the date of trial, a female child born November 24, 1964, as Diane was, had a life expectancy of 66.9 years.

Mr. Mepham stated that the present value of the capital sum invested at 4.5% required to produce $1,000 per year payable monthly in advance over the period of the life expectancy, the fund being exhausted at the end of that time, is $21,563.

Invested at 5% it is $19,752; at 5 1/2% -- $18,198; at 6% -- $16,855 and at 6 1/2% -- $15,685.

Having regard to Diane's age and the probability that she will remain with her parents for some years yet, Mr. Mepham was asked to provide similar figures but predicated first on the initial payment being deferred for 5.5 years, i.e., until Diane would be 15, and secondly, on the initial payment being deferred for 9.5 years or until Diane was 19. In each case there would be a change in the life expectancy period which would be reduced to 61.4 years from the date of the initial payment commencing 5.5 years hence and 57.4 years commencing 9.5 years hence. Using the same rates of interest, the comparative capital sums with payments deferred for 5.5 years are $16,669; $14,919; $13,486; $12,199 and $11,083 respectively, and with payments deferred for 9.5 years are $13,784; $12,134; $10,785; $9,590 and $8,563 respectively.

It is his responsibility to advise his employer and its clients on the appropriate rate of interest to be used in calculating premium rates with respect to long-term liabilities. One presumption made is that over the long term there will be a return to stability from a period of inflation such as the present. In his view, a rate of 5% provides a reasonable hedge against such an eventuality. I will in due course refer to certain authorities in this connection.

Finally, he stated that his company quoted a capital deposit of $15,400 approximately to provide a guaranteed life annuity of $83.33 per month ($1,000 per year) commencing immediately, and about 35% less if the initial payment were deferred for 9.5 years.

The foregoing then is the evidence that I have to consider in assessing the general damages of Diane Teno to compensate her for pain and suffering, permanent disability, loss of the amenities of life and to protect her against the cost of her future maintenance. With respect to the latter, allowance will have to be made for her own living costs, as she has been deprived of any opportunity to provide for herself.

All the stress so far in my judgment has rather naturally been on Diane's disabilities. She has capabilities also even now.

Her schooling is progressing albeit slowly and with difficulty. She enjoys television programmes and stories. She took a lively interest in the trial which she attended from time to time and obviously was fascinated with the portrayal of her own activities on the video tapes. While her intellect has suffered, as has already been stated, it is far from destroyed.

Obviously she will never be able to enjoy normal pursuits involving physical control and strength, such as sports, but on the evidence her world is not a closed one. Reading, some games such as cards, theatre, and travel with attendants are occupations that come to mind at once as probably being within her capacity to engage in and enjoy.

She should not be denied the opportunity of developing her life as much as possible because of any lack of money.

As has been so often recognized, setting a dollar figure by way of compensation for personal injuries must be one of the most inexact sciences known to man rather in the category of economic or weather forecasting. Juries are constantly being required to do just this and it is hoped that in arriving at a figure they fairly represent a view acceptable to the jury's contemporary society. But even this hope fails from time to time when assuming proper instructions, juries clearly do not treat litigants fairly.

Obviously the problem is compounded many times when the injuries are so severe as they are in the present case and will manifest themselves in virtually total disability over a normal life span.

Bearing in mind as first principles that damages are expected to be assessed once and for all and that fairness to both plaintiff and defendant must be kept in mind, I respectfully adopt the language of Pearson, L.J., in Oliver et al. v. Ashman et al., [1962] 2 Q.B. 210, when he said at pp. 242-3:

Where a plaintiff has been rendered helpless by his injuries, which have been caused by the defendants' negligence, the sum awarded as compensation should be sufficient to ensure that he will be properly looked after by others in any situation which can reasonably be foreseen, so that even rather improbable contingencies will be covered.

This statement, of course, is referable to that element of an assessment that is concerned with future maintenance and expenses, and not to such matters as pain and suffering and loss of the amenities of life.

One method that has been adopted from time to time, in an endeavour to achieve the objective described by Pearson, L.J., is the provision of a guaranteed life annuity. I have been furnished with evidence, which, were I disposed to adopt this course, would permit me to apply the relevant figures in making my assessment. This was the course followed by Manning, J., in Loney v. Voll et al., [1974] 3 W.W.R. 193 (Alta. S.C.), although in effect, it would appear that he included in his assessment an amount that would permit the purchase of what he considered an adequate annuity without directing that her income be so secured.

Although this approach is strongly urged upon me by counsel for the defendants (and equally strongly opposed by plaintiffs' counsel), it is an unsatisfactory approach, if for no other reason than its total lack of flexibility. For instance, there can be no recourse to capital should capital be required to purchase a home, in lieu of rented accommodation.

In the case of Taylor v. O'Connor, [1971] A.C. 115 (not referred to in Loney v. Voll et al.), the House of Lords was called upon to review an assessment of damages in a fatal accident case. It was urged on that appeal that a guaranteed life annuity which would produce an amount equal to the contribution of the deceased to his family had he lived, was the appropriate method of arriving at a proper figure. Lord Guest said at p. 135:

It has been suggested that a more precise method of arriving at the extent of the loss would be to obtain actuarial figures as to what sum would be required, based on the widow's expectancy of life, to purchase an annuity of the extent of the loss. This method has been disapproved in the past and never adopted except as a very rough guide. Its adoption would depend on current rates of interest and would not allow for inflation. If it were adopted it would have to be discounted in respect that it provides certainty and does not allow for contingencies. I would not be in favour of its adoption for this or any similar type of case.

Lord Pearson was the only other Judge to comment on the subject although it was argued, and he said at pp. 144-5:

It has often been suggested that the sum to be awarded as damages should be equal to the cost of purchasing an annuity of the relevant amount for the relevant period. This is no doubt a convenient and useful check, but I think it is not on quite the right basis and therefore not wholly reliable. An annuity would give the widow no protection against inflation. She would only have a fixed lump sum per annum however much inflation there might be. As an annuity is not the article she requires, the price of it is not the correct measure of the sum she should receive. The cost of an annuity must tend to be low, because the whole risk, which is a virtual certainty, of continuing inflation is placed on the purchaser.

In an article in the Modern Law Review (1972), vol. 35, entitled "Actuarial Assessment of Damages", the author, a fellow of the Institute of Actuaries, said at p. 155:

Before concluding the consideration of valuation methods and bases it is perhaps necessary to refer briefly to a method often adopted by the courts and occasionally based on actuarial evidence. This is to base the damages award on the cost of purchasing a life annuity or temporary life annuity for the annual amount of the plaintiff's loss. In the writer's view this method is rarely, if ever, appropriate. In the first place there is no reason, if an annuity is not in fact to be purchased, why the defendant should be expected to contribute notionally to the expenses and profit of a life office: but the most important objection is that such an assessment cannot take account of the many complex factors which properly affect the valuation.

I propose therefore to use the figures provided me as to the cost of purchasing a guaranteed life annuity only as a "convenient and useful check".

Another factor that must be considered is inflation. Turning again to Taylor v. O'Connor, Lord Reid's statement commencing at p. 129, in my respectful opinion, puts the matter fairly. He said:

To take any account of future inflation will no doubt cause complications and make estimates even more uncertain. No doubt we should not assume the worst but it would, I think, be quite unrealistic to refuse to take it into account at all.

In the present case no evidence was given as to past or projected rates of inflation. But as I have already noted, Mr. Mepham discussed very clearly his approach to the problem when advising on the cost of meeting long-term liabilities, and said that he used an interest rate of 5% rather than anything approaching current interest levels, as a hedge against inflation. This method, of course, means as far as this case is concerned, that a larger capital base would be provided, with resultant flexibility in the future.

In the article in the Modern Law Review, at p. 153, the author refers to this as the "Lord Diplock approach" having specific reference to a passage in Lord Diplock's judgment in Mallett v. McMonagle, [1970] A.C. 166 at pp. 175-6. Both Lord Reid and Viscount Dilhorne appear to reject this method in Taylor v. O'Connor. In the absence of any evidence to support another method to protect the infant plaintiff against future inflation and the erosion of her financial power to provide for herself, I adopt the opinion of Mr. Mepham when using his figures to assist me in my assessment.

The next factor that requires discussion is the impact of taxation on Diane's income. The first point to be noted is that by s. 23(2) of 1973-74 (Can.), c. 14, amending Statutes of Canada 1970-71-72, c. 63, s. 81(1) of the Income Tax Act, R.S.C. 1952, c. 148, income arising from an award of damages is not taxable until the taxpayer attains the age of 21 years. This feature, if maintained in our tax law, and I can make no assumption one way or another, would mean that investment income available for this child's support will not be reduced by taxation for about 11 more years.

I am strongly pressed, however, to give no consideration to any tax impact for the duration of her life after reaching 21 years and reliance is placed on the judgment of Judson, J. (concurred in by the entire Court), in The Queen in right of Province of Ontario v. Jennings et al., [1966] S.C.R. 532, 57 D.L.R. (2d) 644, that no regard should be paid to possible tax liability in assessing the damages in that case. But what the Court was there considering was an award of damages by way of compensation for loss of future earned income. It has nothing to do with any assessment in this case. I again refer to and adopt the words of Lord Reid on this subject in Taylor v. O'Connor at p. 129, where he said:

If I were assessing damages, I might have to neglect this factor by reason of the absence of evidence. But what I am trying to do is to see whether the learned trial judge's assessment can be justified using a different method, so I think I ought to make some estimate. I would expect -- perhaps I should say guess -- that by reason of this factor the annual dependency would have to be increased by something like 500 pounds per annum.

This case is in a sense British Transport Commission v. Gourley, [1956] A.C. 185 in reverse, for that case instructs us that we must see what the plaintiff really lost taking account of taxation. There damages had to be reduced if taxation was taken into account. Here they have to be increased.

It was, of course, the Gourley case that was considered and not followed in The Queen v. Jennings et al.

I therefore propose to take the possible incidence of taxation into account in my assessment. Fiscal policy is not static -- for instance, it is only recently that capital gains, and then only some, have attracted tax. Having regard to the sum that the present assessment must involve, I would guess, on the authority of Lord Reid, and for the same purposes, there being no evidence except present tax law, that as much as one third requires to be added to that portion of my assessment related to the cost of future maintenance to protect this plaintiff against taxation.

Submissions were made to me relating to the evidence of the capital cost to provide $1,000 per year if the commencement of such payments were deferred for a number of years. On behalf of the defendants, and having regard to what has happened to the child over the past five years and her present age, it is argued that she is likely, at least for a number of years, to have her home and all other support provided, without costs to her, by her parents. The argument that such circumstances should redound to the benefit of the defendants was advanced and rejected in Daish v. Wauton, [1972] 1 All E.R. 25. In that case, however, while a child of similar age was being cared for by a relative for a period, the injuries were such that confinement to a state institution for most of his life seemed inevitable.

The present case is different. It is obvious from what I have said, that maximum improvement for Diane will be achieved with the continued support of her family, while she is a child. Inevitably, however, this will come to an end, either by her parents' inability to continue (they have no guarantee of life or health) or at her own instance by setting up her own residence.

However, even now and while she is a child, her parents cannot continue to bear the whole burden of her care. Money must be available to engage proper assistance. This will likely necessitate a change in the family accommodation, with attendant expense. Maximum expense to provide for her needs may not be incurred for a few years yet and to this limited extent I would take this factor into consideration in my assessment.

In passing, I note that the deferment of payment of damages, based on the figures submitted to me, results in very substantial advantages to a defendant. In this case, for reasons already mentioned, the trial of the action and assessment of damages was properly delayed as it turned out, for five years, and the defendants have had the use of their money all this time.

One may hope that any temptation to delay the day of settlement with this in mind, will be removed by empowering our Ontario Courts to award interest on damages for personal injury claims back to the commencement of an action. In a society where the personal defendant is unlikely to be the one paying, having regard to the widespread use of insurance, the reasoning that led to the postponement of any right to interest in these cases until damages were assessed seems to have lost its validity long since.

Finally, what effect must I give to what are so often referred to as the contingencies? The evidence in this case is that at the date of trial Diane had a life expectancy of nearly 70 years, based on the latest mortality tables, and that her disabilities did not threaten her life expectancy seriously. In such a situation, she has as good a chance of being one of the persons whose longevity raises the average life expectancy as being one whose untimely death reduces the average. I do not think early death is a significant contingency in this case.

A number of other contingencies that may be realized in Diane's lifetime have already been mentioned, e.g., return to stability in economic conditions, advances in medicine permitting her to some degree to be less dependent, and changes in taxation. There must and will be many other factors that will affect and bring about change in her lifetime, some increasing her need of funds and others reducing such need.

An allowance for contingencies must be considered in reduction of one's initial assessment of what is likely to be required to protect her, but I think it must be a modest percentage. For an interesting discussion of this subject see the article already referred to in the Modern Law Review at pp. 149-50.

I have endeavoured in this unavoidably lengthy judgment to deal with the evidence, the arguments of counsel and the authorities, so that the factors which must be borne in mind in assessing Diane Teno's damages receive proper consideration.

I have had the benefit of studying the judgment of Kirby, J., in the recent case of Andrews et al. v. Grand & Toy Alberta Ltd. et al., released July 31, 1974, and as yet unreported [since reported 54 D.L.R. (3d) 85, [1974] 5 W.W.R. 675]. Liability was not in issue in that case, and the judgment is devoted entirely to the assessment of damages and principally those of a 25-year-old man rendered quadriplegic in an accident. After consideration of many authorities, Mr. Justice Kirby divided his assessment into two component parts, namely, an assessment of what is commonly termed general damages for non-pecuniary loss which of course covers those intangibles such as pain and suffering, disability, loss of the amenities of life and the like and those other and in such cases much larger damages, representing the cost of future care, and where applicable, the loss of future income.

I think his approach, founded as it is on authority, is appropriate to this case. Under the heading then of non-pecuniary loss or damage, I would assess Diane Teno's damages at $200,000, and on the second heading at $750,000.

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.

I do note that he used a rate of 5% to get the present value of $1 per year over the required period but the resulting figures were reduced by 20% for contingencies. This, of course, would produce a base figure from which to work equivalent to one calculated at a very much higher interest rate. As I have already found, in the case before me, an allowance for contingencies must be on a very much reduced percentage.

I cannot and therefore ought not attempt to base my assessment on any mathematical calculation. Rather having regard to the evidence including the mathematical tools placed at my disposal, I must arrive at a composite figure which without attempting to allocate precise figures, represents what may be considered to be fair, not perfect compensation.

In the result then, I assess the total general damages of Diane Teno at $950,000. There is little doubt that the income produced by this substantial sum, having regard to current interest rates which are reflected in interest earned on money paid into Court, will greatly exceed what is required for the first years. This assessment, however, must provide for a whole lifetime. One need only consult the records as to what a dollar would buy 60 years ago compared to today, take note of the rapid growth in population in our urban centres making ever-increasing demands for goods and services, and the forecasts of accelerated growth in the future, to realize that 40 or 50 years hence, the cost in dollars of providing for Diane Teno's needs is likely to vastly exceed anything we presently know. Any accumulation of surplus income now, will in all probability represent the difference between her being able to protect herself and not.

Orville and Yvonne Teno. Claim is made for an award of general damages to these plaintiffs "by reason of the suffering they have experienced as a result of witnessing the effects of the grievous injuries occasioned to their daughter, the infant plaintiff, and for expenses which they will incur as a result of the said injuries in the future". The foregoing is quoted from the statement of claim in the action.

At trial, however, the claim was put forward on a very different basis and only on behalf of Yvonne Teno. On her behalf, a quantum meruit allowance was sought for the many hours that Mrs. Teno has devoted and will have to devote to the care of her child. No evidence on which an assessment in favour of the parents of the child with respect to the claim as pleaded was tendered.

However, the claim for special damages made on behalf of the parents is sufficient to embrace a claim in the nature of that now advanced.

Counsel for the plaintiff submits that on the evidence it is open to the Court to find that Yvonne Teno must have devoted not less than 52 hours per week to the care of Diane because of her disabilities, and hence over a period of about four-and-a-half years since her discharge from hospital something over 12,000 hours have been so required. Based on Mrs. Wilson's evidence it would have cost $25 for an eight-hour shift if a nurse's assistant had been engaged to do this work.

No argument was addressed to me by counsel for the defendants in resistance to a quantum meruit allowance being made.

Similar claims have been allowed in this Province by Holland, J., in Zavitz v. Kittmer (unreported -- December 15, 1973), and by Weatherston, J., in Plein et al. v. Freeman (unreported -- released April 16, 1974), following and adopting Cunningham v. Harrison et al., [1973] 3 All E.R. 463.

I think an allowance should be made to compensate Yvonne Teno for the extraordinary care that she has given Diane over these years but a claim of the magnitude advanced by counsel would be wholly inappropriate. Having given the matter my best consideration, I would allow the sum of $7,500 to be added to the claim for special damages.

Special damages. Apart from the foregoing, special damages were agreed at $7,479.62. Adding the allowance for Mrs. Teno's special services, they are assessed at $14,979.62.

Apportionment of liability. All defendants invoke the Negligence Act, R.S.O. 1960, c. 261, as it was at the time of the accident. I have already found that the accident was caused by the combined negligence of Brian Arnold, Stuart Galloway and J.B. Jackson Limited. Each of these defendants made such a substantial and positive contribution to the circumstances resulting in this tragedy that I find it impossible to blame one more than the other.

In the result, I apportion liability to Brian Arnold, and through him to Wallace Arnold, to the extent of 33 1/3%, to Stuart Galloway and through him to J.B. Jackson Limited, to the extent of 33 1/3%, and to J.B. Jackson Limited to the extent of 33 1/3%.

The plaintiff Diane Teno will have judgment against all defendants except Thomas J. Lipton Limited for $950,000 to be paid into Court subject to further order of the Court.

The plaintiff Orville Teno will have judgment against the same defendants for $14,979.62 of which amount he is to receive $7,500 in trust for Yvonne Teno.

The plaintiffs are entitled to their costs as against the same defendants.

The action is dismissed as against the defendant Thomas J. Lipton Limited with costs up to but not including the trial as against the plaintiffs.

Judgment accordingly.