Damages for Personal Injuries–The Supreme Court Speaks

McGILL LAW JOURNAL

[Vol. 24

Damages for Personal Injuries –
The Supreme Court Speaks

Any attempt to elicit or synthesize the principles which emerge
in the four important Supreme Court of Canada decisions’ on dam-
ages for personal injuries in’ tort runs the risk’ of superficiality.
The aim of this case note is to provide practitioners and students
with some indication of the principles on which subsequent cases
will be determined. More detailed analysis of the decisions will no
doubt emerge in due course in lengthier articles.

I. TENO v. ARNOLD – TH9 QUESTION OF LIABILITY

Teno v. Arnold alone 2 of the cases involves an important issue of
an appeal on the question of liability as well as the question of the
principles on which damages are awarded which emerge in the
other cases. The facts are relatively simple. Diane, a child of four
and a half years of age, resident in Windsor, Ontario, was permitted
by her mother to accompany her six year old brother to purchase
ice cream from the truck driven by Stuart Galloway and owned
and operated by J. B. Jackson Ltd. At the time the children asked
her permission to make their purchase the mother was talking to
her husband in Detroit (a long distance call but one carrying
a low charge). The street was in a residential area, without side-
walks, and in the summer carried a reduced volume of traffic.
About twenty-five children lived in the block where the accident
occurred. Both children had received repeated instructions on how
to cross the street; they had previously bought ice cream from a
truck in the vicinity and the mother further admonished them to
“watch out for cars” before giving them the money with which to
buy the ice cream. The driver of the ice cream truck served Diane

1 Teno v. Arnold (1978) 19 N.R.’ 1, 3 C.C.L.T. 272 (S.C.C.). Thornton v. Board
of School Trustees of School District No. 57 (Prince George) [1978] 1 W.W.R.
607, 19 N.R. 552 (S.C.C.). Andrews v. Grand & Toy Alberta Ltd [1978] 1 W.W.R.
577, 3 C.C.L.T. 225 (S.C.C.). Keizer v. Hanna and Buch (1978) 19 N.R. 209, 3
C.C.L.T. 316 (S.C.C.).
2There was, however, a question in Keizer v. Hanna, ibid., about whether
Buch, the original owner of the vehicle causing the accident, had divested
himself of ownership in favour of Hanna, the driver at the time. As the
apparent intention of the parties was that Hanna was only to become owner on
production of an insurance policy relating to the vehicle, Buch remained
liable as owner of the vehicle. See infra, note 5.

1978]

COMMENTS – COMMENTAIRES

first and then bent down to serve her brother. At this point Brian
Arnold, aged eighteen, who was driving his father’s car was about one
hundred and twenty to one hundred and thirty yards away and
travelling at about twenty miles per hour. Galloway, aged nineteen,
failed to see the approach of Arnold through the large rear window
of the track (from which he had earlier seen the children’s approach)
nor did he observe that the children were in danger when they cross-
ed the street to return home. In the ensuing accident Diane became
permanently disabled

At first instance, Keith J. held the defendants liable in the follow-

ing proportions:

1/3 against the defendants Brian Arnold. the driver, and Wallace

Arnold, the owner of the car;5

13 against the defendants J.B. Jackson Ltd, the owner of the
vehicle and Stuart Galloway, the person in control of the ice cream
truck; and

1/3 against the defendant J.B. Jackson Ltd.
The Court of Appeal held the mother, Yvonne Teno, 1 to blame
and the liability of the other defendants was reduced from 1/3 to
/.

The basis for imposing liability on the driver and owner of the
car which struck Diane posed no particular problem. The ice cream
truck had its lights flashing to indicate that customers were being
served and the Court concluded that the driver had failed to keep a
sufficient lookout to avoid the children, a common danger in the
vicinity of ice cream trucks. The driver seems to have been pre-
occupied with whether or not a friend of his was at home in the
neighbourhood. The only surprise is that the Arnolds’ share of
responsibility was so small.

The case against the truck driver, Galloway and J.B. Jackson
Ltd is more difficult. It was urged that under section 105(1) of
The Highway Traffic Act of Ontarioe the owner of the ice cream

3 Teno v. Arnold (1978) 19 N.R. 1, 30 (S.C.C.).
4 Under the provisions of The Highway Traffic Act, (R.S.O. 1970, c.202,
s.133(1) is the current provision, though R.S.O. 1960, c.172, s.106(1) was in
force at the time of the accident) the onus of proof is on the driver to
show that the accident did not occur as a result of his negligence or im-
proper conduct. S.133(2) provides that s.133(1) does not apply to collisions
between motor vehicles, nor to actions brought by passengers against the
driver of a car in which they were riding.

5Under s.105(1) of The Highway Traffic Act, R.S.O. 1960, c.172, now R.S.O.
1970, c.202, s.132(1), the owner of a vehicle is liable for the negligence of anyone
in control of a vehicle with the owner’s permission.

6 R.S.O. 1960, c.172 (now R.S.O. 1970, c.202, s.132(1)).

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truck was liable for the negligence of anyone in control of the
vehicle with his permission and that the usual onus of proof was
reversed so that the driver or owner had to prove that due care had
been exercised.7 The argument that these provisions applied not-
withstanding that the vehicle in question was not the one which
inflicted the actual injury and that the defendants’ vehicle was not
in active use on the road at that time was accepted by Keith J. and
the Ontario Court of Appeal but turned out to be quite academic in
the eyes of the Supreme Court of Canada. The Court found other
reasons for imposing liability on the driver of the ice cream truck
and his employer.” The attractive nature of the vehicle to children
(adorned as it was with cartoons and equipped with the “Pied
Piper’s” bells), their age and the surrounding circumstances created
a duty towards the children. This duty could only have been dis-
charged either by handing the children their wares together so that
the elder child could control the younger or by checking that the
street was clear before giving them the ice cream. However, the
decision goes further in holding that J.B. Jackson Ltd owed a direct
duty to children independent of its vicarious responsibility. The
flashing lights with which the vehicle was equipped (reminiscent
of a school bus) and the sign on the truck “Wait on the Curb –
I’ll come to you” indicated that the nature of the risk to children
was well appreciated. It was even suggested that the ice cream truck
needed an employee to escort children from the truck across the
road after being served 9 and, if this was uneconomic, the enterprise
should not have been undertaken.”‘ The youth, inexperience and
lack of training on the part of the driver (especially in dealing
with children), common in seasonal jobs, was regarded as signi-
ficant. The allurement -doctrine, however, would not explain the
whole case against J.B. Jackson. Many static stores in dangerous
locations downtown are immensely attractive to children. But an
ice cream truck equipped with bells or chimes, which emphasize
the ephemeral nature of its visit, lures out young children from
homes where they would otherwise be safe in residential areas
where parents may well feel supervision is unnecessary. As Spence
J. said:

7The Highway Traffic Act, R.S.O. 1960, c.172, s.106(1) (now 1.S.O. 1970,

s Supra, note 3, 9.
9 Quaere would an escort be required while the child was en route to the

c,202, s.133(1)).

truck.

1oSupra, note 3, 14, adopting the argument of Keith 3. and the Ont.C.A.,

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

19781

COMMENTS – COMMENTAIRES

[S]o soon as these defendants put that ice cream truck in operation
on the streets of Windsor in the fashion which has been described above,
then they put themselves into such a relationship with their child patrons
that they became the neighbours of those children and in the words of
Lord Atkin, “must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your neighbour”.

To the objection that what is charged against these defendants is
an omission and not a commission, and that liability in negligence can
only be found in the case of an omission when it is a failure to do
what others carrying on a like business ordinarily do, or when it is so
obviously needed that it would be folly for anyone to fail to so act, my
answer is that the latter category exactly fits the actions of the defendant
1. B. Jackson Limited. It was inevitable that when the company attracted
the patronage of young children, on the evidence found to be so young
that they were of pre-school age with little ability to comprehend
danger and none to read, then to take proper steps to see that these
children were not subjected to the gravest danger of traffic accidents
was only to fail to do what anyone with the slightest common sense
would have done.”3

This line of reasoning which found favour with the three levels of
courts 12 attracted some criticism. Pigeon J.13 thought that requiring
two employees per truck was uneconomic and few municipalities
had required it. All that the ice cream vending company had to do
was to act in a reasonable way.

Some debate had taken place in

the Ontario Court of Appeal
and in the Supreme Court of Canada about whether Diane’s mother
had behaved reasonably. The Ontario Court of Appeal imposed upon
her a proportionate responsibility of twenty-five percent. De Grand-
pr6 J. (in his dissenting judgment) concluded:

With respect, I do not agree with my brethren that the mother has
committed no negligence. If an ice cream merchant is responsible to his
young customer because his employee failed to take the reasonable care
owed to a child who had become his “neighbour”, the mother, in the
circumstances of this case, can not be said to be in a better position.
The duty of care resting on a parent is a paramount one and does not
come to an end because a third party comes into the picture and is
found to have been negligent for having allowed the child to cross the
street and for having failed to warn that child of an approaching car.
The mother, who had just given to her two young children (6 and 4/2
years old respectively) the money to buy ice cream and who knew that
the truck was on the other side of the boulevard, cannot be said to be
under a lesser duty than that resting on the merchant’s employee.14
Keith J. and the majority of the Supreme Court felt otherwise.
The mother was preoccupied on the phone, the children had bought

“Supra, note 3, 13-14.
12 The trial Judge, the Ont.C.A. and the majority of the S.C.C.
‘ 3 Supra, note 3, 46.
14 Ibid., 49.

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ice cream from the same truck before, they had been properly
schooled on how to cross the road and thus she had not fallen
below the standard of a reasonably prudent mother in the locality,
the relevant test in such a case.15

De Grandpr6 J. might even have gone further and held that
there was no liability on the part of the ice cream truck driver or
his employer. 16 This emphasis on the parents’ responsibility to
supervise their children seems to have diminished steadily since
cases like Phipps v. Rochester Corporation.7 There is something
slightly paradoxical in holding that traffic risks are slight enough
to be disregarded by parents but not by ice cream vendors.

One suspects that although the courts have rejected the concept
of ability to pay when assessing damages,’ 8 it is relevant in deciding
whether or not to impose liability. Unfortunately, spreading or
shifting of loss, a rational concept, seems to be an implicit rather
than explicit feature of so many cases. It has, however, little to do
with traditional fault-based tort laws. The decision of the Supreme
Court of Canada to spread the loss amongst the driver of the car
and its owner, the driver of the ice cream truck and its owner, and
J.B. Jackson Ltd in a principal as opposed to vicarious liability is
very important. In fact, however, only two insurers would be in-
volved: the insurers of the car and J.B. Jackson’s insurers. The
latter insured the ice cream truck and, possibly, any other liability
of J.B. Jackson. It is not clear whether the full measure of damage
would be recovered by Diane Teno from the two insurers. If there
were any shortfall, the obvious defendant to pursue for the balance
would be J.B. Jackson Ltd. It would then be up to Jackson to
recover this sum by way of contribution and indemnity from the
other concurrent tortfeasors. In the case of Galloway, good indus-
trial relations preclude this possibility 9 and the inability of young
persons such as Galloway (and possibly Arnold) to pay may make
this right of recovery illusory. In all probability neither Brian Arnold
nor Stuart Galloway would have insurance operating whilst they
drove other peoples’ motor vehicles relying instead on the owners’
insurance.

15 Ibid., 23..
16 Ibid., 48-49.
17 [1955] 1 Q.B. 450.
‘8 E.g., the comments of DicksonJ., infra, note 32, in Andrews [1978] 1

W.W.R. 577, 587-88 (S.C.C.).

19Despite Lister v. Romford Ice and Cold Storage Co. [1957] A.C. 555

(H.L.).

19781

COMMENTS – COMMENTAIRES

II. QUANTIFICATION OF DAMAGES – THE LIVE SURVIVING

VICTIM

A. Introduction

At first instance the decisions produced awards in two cases of
over a million dollars: $1,022,477.48 in Andrews20 and $1,534,058.93
in Thorntoi2 ‘ and just under a million ($950,000)
in Teno v. Ar-
nold.2 2 Some of these awards were reduced drastically on appeal.
In Andrews2 and Thornton2 4 the awards were roughly halved. In
the award was reduced only by $75,000. Neverthe-
Teno v. Arnold
less the almost simultaneous occurrence of several enormous dam-
age awards in different provinces meant that the time was ripe for
the Supreme Court of Canada to give guidance and some underlying
coherence to the approach to such cases in the future.

In the Supreme Court of Canada the trial awards were restored
in part. A first impression from the judgment is that large awards
are here to stay and -that many drivers will need to increase their
public liability insurance substantially to cover the possibility of
a million dollar award.
In Thornton general damages were
$810,000,26 Andrews $ 7 4 0 ,0 0 0 T and in Teno v. Arnold total damages
were $540,000, as set by the Supreme Court of Canadala Clearly
these sums exceed by a considerable margin the paltry $35,000
minimum liability cover required in Nova Scotia. 8 A second im-
pression is that the Court by hearing these cases together hoped
to stabilize awards pending the possible introduction of more gen-
eral no-fault sohemes in Canadian provinces. Quebec, following
Saskatchewan, Manitoba and British Columbia, has moved ahead
with its no-fault motor insurance scheme2 9 and the Pearson Report

20 (1975) 54 D.L.R. (3d) 85 (Alta. S.C.T.D.).
21 [1975] 3 W.W.R. 622 (B.C.S.C.).
22 (1975) 55 D.L.R. (3d) 57 (Ont.H.C.).
= (1976) 64 D.L.R. (3d) 663 (Alta S.C. App.Div.).
24 [1976] 5 W.W.R. 240 (B.C.CA.).
(1976) 11 O.R. (2d) 585 (C.A.).

2
2
B Plus a further $49,628 special damages including $7,500 for the plaintiff’s

mother.

27 Plus special damages of $77,344 subject to a finding of 25% contributory

negligence, leaving damages of $613,008.

27a A detailed breakdown of damages is set out in an appendix at the end

of this commentary.

28 See Insurance Act, R.S.N.S. 1967, c.148, s.95.
29 Automobile Insurance Act (1977), Bill 67, 2d Sess., (1st reading), 31st

Leg. (Que.).

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in the United Kingdom 0 has made proposals which go further than
the Quebec act but not as far as those in New Zealand. 1 Dickson J.
made an eloquent plea against the blunt instrument of the lump-sum
system with its “once and for all” award:

The lump-sum award presents problems of great importance. It is subject
to inflation; it is subject to fluctuation on investment; income from it
is subject to tax. After judgment new needs of the plaintiff arise and
present needs are extinguished; yet, our law of damages knows nothing
of periodic payment. The difficulties are greatest where there is a con-
tinuing need for intensive and expensive care and a long-term loss of
earning capacity. It should be possible to devise some system whereby
payments would be subject to periodic review and variation in the light
of the continuing needs of the injured person and the cost of meeting
those needs. In making this comment I am not unaware of the negative
recommendation of the British Law Commission (Law Com. 56 – Report
on Personal Injury Litigation – Assessment of Damages)
following
strong opposition from insurance interests and the plaintiffs’ bar.82

However, Dickson J. recognized
towards periodic
payments or other schemes required legislative intervention and
was not a suitable topic for judicial initiative.

that a move

3ORoyal Commission on Civil Liability and Compensation for Personal

Injuries, 1978, Cmnd. 7054-1-111, H.M.S.O. The main proposals include:

1. A “no-fault” system of motor insurance which will mean that every-
one who suffers in a car accident will be compensated, whether they
can prove that the accident was someone else’s fault or not.

2. A new social security benefit for all children with severe handicaps,
whatever the cause. In addition “vaccine damaged” children will be free
to pursue their tort remedy, if any.

3. No change in the fault-based system of tort compensation for in-
dustrial injuries, but a higher scale of benefits under the no-fault
social security industrial injuries scheme.

4. “Strict” liability for irjuries caused by defective products, i.e., no

necessity to prove negligence by the producer.

5. More rational ways of calculating damages particularly in the way
damages are assessed. Social security benefits received should be
offset in full against any awards of damages, thus eliminating double
compensation. At present other benefits are taken only partly into
account in calculating damages.
In cases of long-lasting injury, provision should be made for inflation-
proof periodic payments to be made instead of a lump-sum award.

In The Times, London, May 10th, 1978, 3, it was announced that the
British Government would make a tax-free payment of 10,000 to children
who have been severely damaged by vaccines over the past 30 years.

31The Royal Commission of Inquiry into Compensation for Personal
Injury, leading to the Accident Compensation Act 1972, Stat. N.Z. 1972,
vol.1, no 43. See further Fahy, Accident Compensation Coverage for Industry,
Home and Recreation (1976).

32 Andrews, supra, note 18, 581.

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COMMENTS – COMMENTAIRES

B. Principles

For assessing damages

injury cases, Professor
Charles33 has extracted the following twelve principles from the
four Supreme Court cases dealt with above:

in personal

(1) The judge should assess damages using an itemization approach

rather than a global approach.

(2) Courts should continue to use actuarial evidence as long as lump
sum payments are made, but with the realization that actuarial pre-
dictions are not as accurate in relation to individual cases as they
might seem to be.
(3) General principles:

(a) The mitigation of damage principle has no place in personal

injury cases.

(b) There should be full compensation for pecuniary loss.
(c) The law cannot provide perfect or complete compensation and

the plaintiff has a duty to be reasonable in his claim.

(d) The award must be moderate and fair to both parties.
(e) Compensation must not be determined on the basis of sympathy
for the victim but neither should the court try to punish the
defendant.

(4) The primary or guiding principle in total disability cases is to ensure
that the injured plaintiff should be adequately cared for during the
rest of his or her life.

(5) A lump sum should be awarded to cover all non-pecuniary losses
such as (i) pain and suffering, (ii) loss of amenities, and (iii) loss of
enjoyment of life. The upper limit in most total disability cases will
be $100,000 unless exceptional circumstances exist.

(6) In computing lost future earnings, the court should take into account
various factors that might increase or decrease the plaintiff’s earning
capacity. This will, in most cases, result in a reduction of the amount
computed, but, in most cases, the percentage reduction will be small.
(7) When capitalizing to present value, courts should recognize the effects
of inflation upon damage awards and the fact of high interest rates.
This can best be done by adopting a discount rate of 7 per cent in
relation to sums awarded for cost of future care and loss of future
earnings.

(8) Allowance for tax:

(a) In non-fatal injury cases the effect of taxation is not to be
considered in computing loss of future earnings or in relation
to taxation of the award.

(b) In fatal injury cases the effect of taxation upon the lost depen-

dency is to be taken into account.

(9) Credit should be given for the “lost years”. Capitalization of future
earnings capacity should be based on the expected working life span
prior to the accident rather than the shortened life span.

33 A New Handbook on the Assessment of Damages in Personal Injury Cases

From the Supreme Court of Canada (1978) 3 C.C.L.T. 344, 365.

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(10) In computing the future [lost] earnings of a very young child, it is
not proper to assume that the child will necessarily adopt the vocation
of the parent and to calculate lost future earnings on this basis.

(11) In cases where the plaintiff is mentally incapable of handling his or
her own affairs, it is proper to add a management fee to the damage
award.

(12) The cost of providing basic necessities should be deducted from the
award for loss of future income rather than from the award for cost
of future care.

Clearly, not all of these principles are of equal weight. Some
are rather elusive33 a and others require balancing so that the inter-
ests of both parties are fairly protected. This note attempts to
emphasize some of the more important principles.

C. Evidence & methods of calculation

Given that lump sum awards are with us to stay, there is an
urgent need to refine the tools available to the court. In estimating
the cost of future care of a paraplegic or quadriplegic, often the
vital element of life expectancy is supplied by reference to healthy
twenty-three year olds rather than twenty-three year old quadrip-
legics.34 Until actuaries are able to provide the specific tables, if
this is possible, the court can rely merely on the hypothesis of expert
witnesses such as Drs Weir and Gingras that a reduction of five
years from the norm seems reasonable 3 5 Moreover the Court was
at some pains to point out that actuarial evidence is based on group
rather than individual experience and may give calculations an
illusory appearance of accuracy3 6

The need to guard against an illusion of accuracy is accompanied
by the modern trend for Canadian courts to itemize the components
of an award under various headings rather than to adopt a more
“global” approach.3 7 Such an itemized approach gives appellate
courts more chance of supervision, allowing them to examine the

33a E.g, 3 (d) and (e).
– See Andrews, supra, note 18, adopting the views of McGillivray C.J. of

the Alberta Appellate Division in the same case.

35 See Andrews, ibid., 592.
36 Ibid., 581.
37 See further Charles, “Justice in Personal Injury Awards: The Continuing
Search for Guidelines” in Klar (ed.), Studies in Canadian Tort Law (1978),
37. In one of the last cases involving a global approach, a global award of
$250,000 to a 56 year old plaintiff earning $40,000 per annum in respect of loss
of. earnings and non-pecuniary losses, was reduced to $133,000. See Trizec
Equities Ltd v. Guy (1978) 26 N.S.R. (2d) 1 (App.Div), (Macdonald Jones &
CooperJJ.). Leave given to appeal to Supreme Court of Canada, April 21st,
1978.

1978]

COMMENTS – COMMENTAIRES

individual components of an award as well as the total sum arrived
at. This also requires the trial court to clarify the basis on which
the calculations were made. In Keizer v. Hanna, Dickson J. con-
cluded with some regret that “it is difficult, if not impossible, to
know what use, if any, the trial judge [had] made of actuarial
tables to which he was referred” 38 nor was the judgment of the
Ontario Court of Appeal much more helpful since, as Dickson J.
also noted,9 it gave no explanation as to why its award of $65,000
should have been regarded as appropriate.

D. Pecuniary loss

The Supreme Court of Canada has made a conscious attempt to
hold down non-pecuniary losses by imposing an upper limit of
$100,000 for such losses? 9a In the case of pecuniary losses, however,
no such similar restraint can be detected and the Court expressly
held that the ability of the defendant to pay is irrelevant in the
quantification of pecuniary loss9b

1. Future care

In Andrews, a male traffic accident victim of twenty-one lost the
use of his legs, his trunk, his left arm and most of his right arm.
His misery was compounded by loss of bowel, bladder and sex func-
tions. He required turning and repositioning in bed every two hours
and regular physiotherapy. The attendance of a male orderly at
all times was regarded as essential and his position was without
hope of improvement. In Thornton, as a result of inadequate super-
vision during a physical education class, a fifteen year old youth
suffered injuries rendering him a quadriplegic. In Teno, the young
girl suffered severe head injuries leaving her with reduced intel-
lectual capacity (“in the dull-normal range”) and a possibility of post
traumatic epilepsy, slow and indistinct speech, unsteady gait, per-
manent severe impairment of the left hand and a severe spastic
weakness of the right side affecting the use of her right hand, the
latter being likely to improve over the next three years.

The question in such cases is whether the family of the young
person should be obliged to provide services at little or no cost to
the tortfeasor. If the child requires services that the parents cannot

38 (1978) 19 N.R. 209, 213-14 (S.C.C.).
39 Ibid., 216.
39a Supra, note 18, 605.
Sab Ibid., 587-88.

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provide or cannot be expected to provide, should the award reflect
the cost of care provided in an institution?

in Thornton, strong expert evidence was introduced that life in
an auxiliary hospital or other institutional setting was unsuitable
for youthful quadriplegics because they would lack recreational and
treatment facilities and would be forced to mix with predominantly
older patients. Such a life would be lonesome, the patient would
feel forgotten and might lose his will to live.40 In light of this and
other evidence that the provision of an ongoing practical level of
orderly care would involve costs of $4,305 per month plus a capital
sum of $65,000 to cover the cost of a home, an Econo-Van equipped
for quadriplegic use and other equipment, the trial Judge, Andrews
I., approved expenditures on this scale. The figures, however, were
adjusted on appeal:

I have no doubt that the increase in life expectancy would be enhanced
if the ideal level of care proposed for the respondent is available. The
question is, however, whether that ideal level of care with its attendant
cost is one which should be imposed upon the appellants. 41
On this basis, and after speculating (without any evidence to
back this view) that several quadriplegics might share their re-
sources and cut costs by setting up a group home or that the State
might take an increased interest in the care of quadriplegics, the
Court of Appeal reduced the monthly figure available for future
care to $1,500 and deleted the sum provided for the purchase of a
home and the Econo-Van. In effect, this compelled the appellant
to life in an institutional setting, which in turn, because of the
depressing environment and the minimal level of care provided,
reduced his life expectancy. This conclusion in turn reduced the
capital sum required to produce the requisite monthly figure –
a
clear example of a self-fulfilling prophecy.

The Supreme Court strongly deplored the practice of an Appel-
late Court conjuring up, of its own account, possibilities without
support in the evidence as to practicability or cost.4 Dickson J.
concluded that ability or inability to pay was an irrelevant criterion
in the assessment of damages.43 The Court felt that fairness to the
defendant was achieved by asking whether the plaintiff’s claims
were legitimate and justifiable and whether right-thinking persons

40″They die … because ‘there is nothing to help them live’ “, comment of
Dr. Ezzedin, an expert witness in Thornton, [1978] 1 W.W.R. 607, 612, 19 N.R.
552, 560 (S.C.C.).

41 [1976J 5 W.W.R. 240, 247 per Taggart JA..
42Supra, note 40, 613.
43 Ibid., 614 and 616.

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COMMENTS – COMMENTAIRES

would regard this as a squandering of money.44 In order to deny
cost on the ground that it was unreasonable, more was required
than merely to demonstrate its size. Much the same view was ex-
pressed in Andrews. The Alberta Appellate Divisiona4 a had con-
sidered that care for Andrews in his home environment at $4,135
per month was unrealistically high. The principle of mitigation of
damage was alleged to require that Andrews accept institutional
care, and therefore, without giving reasons for selecting the partic-
ular figure, the monthly care cost was reduced to $1,000 per month.
Dickson J. rejected the view that mitigation of damages applied in this
type of case.45 The appellant’s desire to live in a home environment
was neither unrealistic, nor chosen simply to inflate the damages.
The Supreme Court of Canada was not prepared to consider that
Andrews’ mother (to whom in fact he was not particularly close)
should have helped to minimize the quantum of damage. Even if
they had been on close terms and the mother had provided services
for her son, it did not follow that these should be on a gratuitous
basis46 In particular, Dickson JY7 rejected the Appellate Division’s
contention that the appellant’s disinclination to live in an institution
was equivalent to him saying that “…. he would not live in Alberta, as
. and that he wished to live
he did not wish to face old friends, ..
in Switzerland or the Bahamas”4 8 Dickson J. also rejected the
Appellate Division’s analogy~a that being cared for in his own home
amounted to supplying him with a private hospital. This was to
imply an extravagant standard of care when in reality all that was
being sought was practical nursing provided by two orderlies and
a housekeeper.4 9 Contrary to the Appellate Division’s view, Dickson
J. was not prepared to accept that reasonably-minded persons would
regard home care as an unreasonable expense. Workmen’s com-
pensation and federal pension rates did not provide an appropriate
basis for comparison.50 Compensation and fault are involved in tort
cases, and workmen’s compensation or pension schemes involve
different bases.

441bid.
44a Supra, note 23.
4 5 Andrews, supra, note 18, 585-87.
46 Ibid. Note the quantum meruit awards of $7,500 to the plaintiffs’ mothers

in Thornton and Teno.
47 Supra, note 18, 589.
48Supra, note 23, 701.
48a Ibid.
49 Supra, note 18, 589.
50 Ibid.

McGILL LAW JOURNAL

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The distinction drawn by Dickson J. between compensation in
tort cases and “provision” in workmen’s compensation is, however,
not without difficulty, especially where (as with the principal liabil-
ity of J.B. Jackson Ltd in Teno) the fault is marginal and may involve
loss spreading rather than fault. At the same time the combined
ability of workmen’s compensation schemes and our social services
to deal with cases of very severe injury may need examination.
Universality of coverage and the provision of something by way of
compensation for pecuniary losses without proof of fault, may not
even cover the extremely high cost of future care in cases of severe
injury, quite apart from lost future earnings and non-pecuniary
losses. Dickson J. concluded that it was inappropriate to speculate
(without evidence) on the possibility that Andrews might enter an
institutional setting and not, spend the entire lump sum award.
Except for minors and mentally disordered persons, plaintiffs have
the flexibility to control their awards.o a In short, society will have to
accept that insurance rates will go up and it cannot expect them
to be kept artificially low by depressing damage awards below their
proper level.

In fact, it may well be in the interest of insurance companies
and the state to consider setting up group home units for quadrip-
legics, with shared orderly care and in close proximity to hospitals
where medical resources are available and more economic. However,
until such schemes are available (and at present such facilities are
rare) 51 and evidence of their existence is actually brought before

50a Since the decision there have been reliable reports that Mr Andrews tried
to set up his own home but then found life in the Grand View Auxiliary
Hospital more practicable and more congenial.

51The ongoing problem is illustrated by a recent article by Yaffe, entitled
“Quadriplegic tired of hospital life” in The Globe and Mail (Toronto), Apr.
4, 1978, 14 about Mr Ken Ashbee, a 37 year old quadriplegic victim of a car
accident in 1965 who as been living in a hospital for 10 years:

“Every time Mr Ashbee leaves the hospital, he signs out. He signs in
when he returns. His friends must visit him between 11 a.m. and 9 p.m.
He eats when the trays are wheeled en masse out of the cafeteria.
Patients and staff open his door and enter his room without ever
knocking or considering that he might want to be alone.

‘I have to fight like hell to keep my self-respect and stay active. I

live without privacy, without freedom and dignity.’

Mr Ashbee said that the staff tell him repeatedly that if he is un-
happy at the hospital, he is free to leave. ‘There’s the catch,’ the dark-
haired man said with a smile. For disabled people in Ontario, there are
few places –

other than hospitals and nursing homes –

to live.

Mr Ashbee, the victim of an automobile accident in 1965, does not
regret the years he has spent in rehabilitation and chronic care hospitals.

1978]

COMMENTS – COMMENTAIRES

the court, the Supreme Court is unwilling to speculate on their
relevance. As between the auxiliary hospital and his own home, the
Supreme Court will prefer to award damages sufficient to enable
the victim to have his own home. In contrast to Thornton, no capital
claim was made in Andrews to cover the cost of purchasing a house,
though the figure agreed in both lower courts for $14,200 for equip-
ment was allowed to stand. In both Thornton and Andrews 2 depre-
ciation over six years was allowed in respect of the Econo-Van. In
eastern Canada, where the use of salt on roads in winter is more
common, there may be a case for a higher depreciation figure.

He said in an interview yesterday that ‘an isolation period was needed
for my physical and mental adjustment to my disability.’ But he said he
now is ready to try life in the community and be independent.

Mr Ashbee’s name is on a list of people who are to move next year
from the aging Dunn Avenue institution into a new chronic care hospital
at 550 University Avenue. When the prospect of moving from one hospital
room into another is raised, Mr Ashbee shakes his head.

‘I’m not going. I have a lot at stake here. I’ve made up my mind.
I will not move into a new hospital.’ Life in a chronic care hospital
‘means a total write off’ for a young person, he said.

Mr Ashbee, an accountant and poet, would like to work but finds
it impossible to cope with a job while living in a chronic care hospital.
He worked for just over a year in 1974 but ‘it was such a hassle getting
out of the hospital and coming back that I quit my job. I’ll never try
to work again while I’m in a hospital.’

He is hoping to get married but how is it possible while he is

living in a hospital, he asked.

‘I want to be able to get up on my own time. I want to be able to
have home-cooked food. Everyone has a right to live a normal, active
life. If I stay in here I’m going to be entirely dependent on others for the
rest of my life.’

The few Metro Toronto group homes and apartments offering support
services for handicapped people are full and have waiting lists. And so
Mr Ashbee is working on his own alternative.

He is a member of a committee which is attempting to design a

12 to 15-unit housing project for the disabled in the Parkdale area.

Mr Ashbee recently secured a $12,000 Canada Works grant to survey

the recreational and accommodation needs of handicapped people.

The Central Mortgage and Housing Company has said it will support
the committee’s project providing the province agrees to pay the cost
of support services, such as attendant care. However, a March 7 letter
from the Social Service Ministry informed Mr Ashbee that the province
has no funds available for any new projects.

David Pitt, chairman of a provincial committee studying the housing
problem, said that his committee will present to the province within
the next few weeks its recommendations regarding the future develop-
ment of housing for the disabled.”

52 See further Appendices B & C.

McGILL LAW JOURNAL

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Whether it is better to claim for the cost of buying a house or rent-
ing an apartment may be to some extent a matter of choice. The
apartment rental element must reflect the need for an apartment
big enough for the equipment and possibly “live-in staff”. Awarding
a claim for house purchase gives the victim a saleable cash asset
which may, in some circumstances, increase in value, in contrast
to the “wasting asset” approach on which lump sums are usually
based. However, the upkeep on the property may be expensive,
particularly if the victim is unable to do the usual “do it yourself”
jobs undertaken by householders not subject to a disability.

In calculating the capital sum necessary to provide for future
care, it follows that the life expectancy will reflect the longer life
resulting from home rather than institutional care. As accurate life
expectancy figures for quadriplegics at a given age do not yet seem
to exist, the best courts can do is rely on the evidence of the expert
witnesses and modify the figures available for the general public.13
In the Teno case, Yvonne Teno had provided care for Diane up
to the date of trial (for which she was compensated with $7,500 as
a quantum meruit)4 However, it was impracticable for her to
continue to supply this care in the future. It therefore became neces-
sary to provide care for Diane within the family home (one attendant
five days per week on a twenty-four hour basis, and weekend cover
provided by a relay of attendants working shifts). When Diane
reached nineteen, it was reasonable to expect her to make her own
home and at this point the cost of providing attendants would
rise from $21,000 per annum to $27,000 per annum. This cost of care,
as might be expected, was less than in the cases involving quadrip-
legics. Spence J. in the Supreme Court of Canada agreed with the
trial Judge that a home rather than institutional setting was the
only appropriate one for Diane.

A further problem arose in Teno: the cost of future care of
nearly $350,000 did not cover the ordinary cost of living. In Andrews
however, Dickson J. suggested that these items were better dealt
with by way of inclusion in future care:

To determine accurately the needs and costs in respect of future care,
basic living expenses should be included. The costs of [necessities] when
in an infirm state may well be different from those when in a state of
health. Thus, while the types of expenses would have been incurred in
any event, the level of expenses for the victim may be seen as attributable

5 E.g., the “best guess” of Drs Weir and Gingras, the expert witnesses in

Andrews. See supra, p.324.

64 Her father was entitled to just tinder $7,500 as special damages incurred

in respect of Diane prior to the trial.

1978]

COMMENTS – COMMENTAIRES

to the accident. In my opinion, the projected cost of necessities should,
therefore, be included in calculating the cost of future care, and a per-
centage attributable to the necessities of a person in a normal state
should be reduced from the award for future earnings.55

In Thornton Dickson J. said that this “reflects the fact that the
costs of necessities may be different when in an infirm state than
when in a state of health. A difference would also arise if there is a
difference in the contingency factor”.56 Since basic needs such as
food, shelter, and clothing should be included in the cost of future
care, a deduction must be made from the award for prospective
earnings to avoid duplication. At the same time there is the possibil-
ity of some of the $4,000 per month being surplus to requirements
if the victim is subsequently hospitalized for a period.” For this
contingency the Supreme Court in Thornton and Andrews reduced
the capitalized sum by twenty per cent. This seems more reasonable
than the approach of the British Columbia Court of Appeal which
was to depress the level of provision to $1,500 per month (thus
virtually ensuring that Thornton would live in an institution), and
then further to reduce the award by thirty per cent on the basis that
he might enter a general hospital for special treatment at some
time. Much the same criticism could be made of the decision of the
Alberta Appellate Division in Andrews.

2. Lost earnings

The second item of pecuniary loss is lost earnings. Whereas the
Court had some basis for predicting future earnings in respect of
a twenty-one year old in Andrews, predicting the lost earnings of a
toddler in Teno was almost completely speculative. Her ability and
motivation are uncertain and whether the traditional homemaker
role will exist in fifteen years time, or whether Diane would have
married is equally uncertain. In the face of this the Ontario Appeal
Court deemed that Diane, like her mother, would have become a
teacher earning $10,000 per annum.57a The Supreme Court of Can-
ada could not justify this but arrived at the figure of $7,500 as
being the equitable difference between a poverty level of $5,000

55 Supra, note 18, 593-94. See Appendix B for a detailed breakdown of the
cost of necessities. It is not clear why the depreciation rate for an Econo-Van
should be so different in two adjacent provinces.
56 Supra, note 40, 618. See Appendix C for a detailed breakdown of the cost

of necessities.

6 The high risk of quadriplegics suffering from urinary or respiratory
infections perhaps explains why a contingency deduction was made in these
cases but not in Teno.

57L Supra, note 25, 602.

McGILL LAW JOURNAL

(Vol. 24

per annum and the figure of $10,000 per annum attributed as earn-
ings by the Ontario Court of Appeal. 7b Of interest here is the
Court’s emphasis on the provision of care aspect of the case; the
loss of earnings aspect becomes secondary. If the Court has ensured
that the victim is properly cared for in the future, the limitations
on the Court in making an award for lost income are more accept-
able. By the time the Court had deducted a twenty per cent con-
tingency to cover the possibility that illness, or any one of a number
of factors might have prevented her working from the ages of twenty
to sixty-five (the normal retirement age) lost earnings were reduced
to an estimated $6,000 per annum.

In Andrews the Court had somewhat more information on which
to base its assessment of the twenty-one year old victim’s prospect-
ive earnings. The Appellate Division had assessed his earnings at
$1,200 per month – midway between his current earnings of $830
per month and the maximum for his type of work of $1,750 per
month. Although the Supreme Court regarded this as a little con-
servative the award was allowed to stand. However, the length of
working life was assessed on the basis that Andrews could have
retired at age fifty-five on a full pension. The Supreme Court, affirm-
ing the trial judgment, based Andrew’s working life expectancy on
his pre-accident working life expectancy, refusing to follow the
much criticized decision in Oliver v. Ashman58 that working life
should be calculated on the post-accident shortened expectancy? “a
On this Andrews’ working life expectancy was calculated at almost
thirty-one years. Again a twenty per cent deduction for contingen-
cies was made, although arguably the loss of earnings or reduced
earnings was no more likely than that Andrews’ career might have
gone better than expected. However, although the Court believed
better evidence of contingencies might exist, none had been adduced
and the trial Judge’s figure was allowed to stand. Since there was
no evidence supporting this sum, the twenty per cent deduction
might equally have been reduced or disregarded. The danger in
such a procedure is that contingencies become a one-sided device
for keeping awards down.

Thornton represented an intermediate case in which the victim
was fifteen at the time of the accident and eighteen at the time of
trial. There counsel had agreed to ascribe to the plaintiff a possible

57b Supra, note 3, 40. The mean between two wrong answers apparently pro-

vides the correct one.

58 [1962] 2 Q.B. 210 (C.A.).
58a Supra, note 18, 595.

19783

COMMENTS – COMMENTAIRES

base income of $850 per month. No evidence emerged as to the
basis of the figure of $850 but it was nevertheless accepted by the
Supreme Court. The trial judge made no deduction for contingencies
(for example, being made redundant, or becoming unfit or unable
to work) since these, on the evidence, were no more likely than
that the plaintiff would have received promotion and salary in-
creases. The beneficial and adverse possibilities cancelled one
another out. The Court of Appeal, however, imposed a ten per cent
deduction, and the Supreme Court of Canada declined to interfere.

3. Rule in Oliver v. Ashman: The lost years doctrine

Calculation of the costs of future care has been determined on
the basis of the post-accident life expectancy. However, some con-
troversy has arisen over the calculation of lost earnings. The English
rule in Oliver v. Ashman determines lost earnings on the basis of
post-accident life expectancy. This necessarily means that in due
course the dependents of the victim on his death will inherit a
decreased sum with which to face the future. 9 In Canada the lost
earnings calculation, at least since Andrews (though probably for
long before) and in Australia since Skelton v. Collins,60 proceeds on
the basis of the pre-accident life expectancy. In Andrews Dickson J.
referred to the manifest injustice of the Oliver v. Ashman rule as
revealed in McCann v. Sheppard6′ where, because the victim died
between the trial and appeal, the damages for lost earnings were
reduced from 15,000 to 400. If the defendants sought to enforce
their own claim under fatal accidents legislation, they could face
either statute of limitations problems or the merger of the “Fatal
Accidents” claim with that of the victim’s own claim. If, however,
the victim has no dependents (within the meaning given to the word
by the Act) using the pre-accident life expectancy may lead to an
unexpected windfall to those inheriting from him. This is, however,
consistent with the approach in The Queen v. Jennings which

59 As in McCann v. Sheppard [1973] 1 W.L.R. 540 (CA.).
60 (1966) 39 A.LJ.R. 480 (Aust.H.C.).
6l Supra, note 59.
62 [1966] S.C.R. 532. In Cirella v. The Queen [1978] C.T.C. 1 (F.C.T.D.) the
Court treated a claim for “special damages” comprising lost earnings between
the accident and the trial as free from tax by analogy with the post-trial
position in respect of lost earnings under the Jennings decision. In Jennings,
supra, 544, Judson J. suggested that a claim for lost earnings as special
damages may be different. It is a moot point whether taking such a sum
free of tax overcompensates a plaintiff for his delay in receiving the funds.
What is certain is that it under-compensates the tax authorities.

McGILL LAW JOURNAL

[Vol. 24

characterizes the loss as that of a capital asset. An alternative would
be to allow the dependents an action independent of the victim for
the financial loss accruing to them during the victim’s lost years.
It is unlikely, but not impossible, that section 60 of The Family
Law Reform Act, 197812a of Ontario was intended, or is wide enough,
to cover this.

4. Quantification of damages –

taxation problems

a) The Nature of Claims and Tax Repercussions

The nature of a Fatal Accident claim is for the loss of the money
or services which the dependents would have received from the
deceased. In making the assessment the court deducts from the
deceased’s income that portion which he would have spent on him-
self and, (despite the qualms of the Supreme Court of Canada)O

6a S.O. 1978, c.2.

“60. –
(1) Where a person is injured or killed by the fault or neglect
of another under circumstances where the person is entitled to recover
damages, or would have been entitled if not killed, the spouse, as defined
in Part II children, grandchildren, parents, grandparents, brothers and
sisters of the person are entitled to recover their pecuniary loss resulting
from the injury or death from the person from whom the person injured
or killed is entitled to recover or would have been entitled if not killed,
and to maintain an action for the purpose in a court of competent
jurisdiction R.S.O. 1970, c.164, s.3(1), amended.
(2) The damages recoverable in a claim under subsection 1 may include,
(a) actual out-of-pocket expenses reasonably incurred for the benefit

of the injured person;

(b) a reasonable allowance for travel expenses actually incurred in

visiting the injured person during his treatment or recovery;

(c) where, as a result of the injury, the claimant provides nursing,
housekeeping or other services for the injured person, a reasonable
allowance for loss of income or the value of the services; and

(d) an amount to compeisate for the loss of guidance, care and com-
panionship that the claimant might reasonably have expected to
receive from the injured person if the injury had not occurred.”

63 The majority of the Supreme Court of Canada in Gehrmann v. Lavoie
[1976) 2 S.C.R. 561 had decided that tax was not to be deducted in calculating
damages under fatal accidents legislation. However, by the time of Keizer v.
Hanna, de Grandpr6 J., who had reserved his position in Gehrmann v.
Lavoie, had won over all the Supreme Court except Spence J. to the view that
income tax was deductible in a fatal accidents case. De Grandpr6 J. alone
of the members of the Supreme Court raised a question of the mechanics
of the calculation:

“Two approaches are to be found in the jurisprudence; one is that out-
lined by Cowan C.J.T.D. in Spurr v. Naugler (1974), 50 D.L.R. (3d) 105 …
and another in the decision of the House of Lords in Taylor v. O’Connor

19781

COMMENTS – COMMENTAIRES

on his taxes. The remainder is the figure regarded as provision for
the dependents. In contrast, claims by victims for the injuries they
themselves have suffered, since The Queen v. Jennings,” have been
classified as loss of a capital asset and therefore not subject to
income tax. The reaffirmation of Jennings in the recent Supreme
Court of Canada decisions has apparently not removed all doubts as
to its correctness. Within two months of the decisions, Macdonald
S.A. of the Nova Scotia Appeal Division said:

I well appreciate the inherent problems that would be involved if income
tax were to be taken into account in assessing damages for loss of future
earnings, yet, with respect, it seems unrealistic to me not to make some
allowance for it. In this day of high wages, high taxation and high damage
awards, to make an assessment of damages for loss of future earnings
without considering, as a factor, the incidence of taxation, is to cloak the
award in a coat of artificiality which in many cases will result in over
compensation. The law, however, is as stated in the Jennings case and
I shall refrain from saying anything further on the subject except to
express the hope that the Supreme Court of Canada will, in the opportune
case, reconsider the Jennings principle.65

… [1970] 1 All E.R. 365. In the Spurr case Cowan C.J.T.D. deducted the
income tax ‘on that part of the gross income not available for the widow
and the other dependents’ (p.110). In Taylor we find the following in the
speech of Lord Reid (pp.367-68):

‘But take the present case. The respondent will have the 10,000 to
which I have referred and damages in respect of: (a) loss of her de-
pendency; and (b) loss of her interest in the savings which the
husband would have made. The damages for the loss of dependency
ought to be such that she will have available to spend each year
free of tax a sum equal to the amount of the dependency. But if the
damages are calculated without a reference to income tax that will
not be so. Suppose the damages are sufficient to buy an ordinary
annuity for her life of that amount. Part of each year’s anuuity
payment will be a return of capital and will not be taxable; but that
part which is truly income will have to bear tax. So the amount
available to her to spend will fall short of what it should be by the
amount of that tax. The damages will, therefore, have to be in-
creased by an amount necessary to counteract this shortfall. This
shortfall will be increased by the present high rates of interest.’

To my mind, both approaches stem from the same philosophy but the
means chosen by the House of Lords are to be preferred. The method
outlined in Spurr only gives an exact result if care is taken not to pro-
rate the income tax between the deceased and the dependents. Keeping
in mind the progressive feature of the taxing statute, the greater bite of the
tax should be on the deceased’s share because the remainder coming to
the dependents attracts a lower rate.”

e4 Supra, note 62, in contrast to the British position following from British

Transport Commission v. Gourley [1956] A.C. 185 (H.L.).
6 See Trizec Equities Ltd v. Guy, supra, note 37, 25-26.

McGILL LAW JOURNAL

[Vol. 24

In principle there is no reason why the wife’s claim for the loss of
a husband should not have been regarded as a claim for the loss
of a capital asset, but such claims traditionally have not been so re-
garded. There is no doubt that deducting tax prior to establishing the
appropriate level of damages merely operates to confirm the aphor-
ism that it is cheaper to kill than to maim. Even disregarding the
high cost of future care in Teno, Thornton and Andrews, the compari-
son of an award of $93,500 in Keizer (covering wife and son) with
the awards in the other cases is striking. Tax will, of course, be pay-
able on the future interest earned by the lump sum damage award
unless, as the Court noted in Teno, some statutory exemption or
deduction applies. The capital element returned on the exhausting
fund basis is not, however, taxable as income. Currently an exemp-
tion exists in respect of income arising from damages awarded for
personal injury of persons under twenty-one until they attain that
age.” Equally, medical expenses exceeding three per cent of the
taxpayer’s income are deductible and would include the cost of the
sort of orderly care involved in several of the current cases. 7
However, although the Court in Teno noted these factors, they
concluded that future changes in tax laws were so uncertain that
it was impossible to assess an amount to cover future income tax
liability0 8

E. Contingencies

In the past the contingency rule has generally operated to reduce
damages, sometimes by substantial percentages.0 9 This somewhat
pessimistic preoccupation by courts with the possibility that the
victim, even if he had not been injured, would be made redundant,
become a drug addict or suffer an illness rendering him unfit for
work, now seems to have been restrained. In both Andrews and
Thornton Dickson J. rejected the view that all contingencies were
likely to be adverse. The figure now is likely to be low,70 perhaps

66See Income Tax Act, S.C. 1973-74, c.14, s.81(1)(g.1), as am. by S.C. 1974-

75-76, c.26, s.44(2).

67See Income Tax Act, S.C. 1970-71-72, c.63, s.11(1)(c)(iv), as am. by S.C.

1976-77, c.4, s.43(1).

68 Supra, note 3, 35.
16 The reduction has sometimes been as high as 37%. E.g., Atkins v. Ulrichsen

[1973] 3 W.W.R. 406 (B.C.S.C.).

70The contingency figure imposed by the Supreme Court of Canada in
Thornton was 10% for loss of future earnings and 20% for future care,
and 20% in Andrews for both. No contingency appears to have been deducted
in Teno in relation to future care, although a 20% deduction was made from
the sum for loss of future earnings.

19781

COMMENTS – COMMENTAIRES

twenty per cent, unless supported by evidence. In Andrews” Dickson
J. requested lawyers to -obtain further evidence, if possible, and
asked courts to show how they had arrived at their figure. The
question of contingencies was more fully discussed in Keizer v.
Hanna,72 a Fatal Accidents claim by the twenty-seven old wife of
a thirty-three year old tool room foreman. The contingencies which
were adverted to by the trial Judge included:7a

(a) Possibility of remarriage;
(b) Possibility of widow’s death before expiry of joint

expectancy period;

(c) Possibility of deceased’s dying under other circumstances

prior to expiry of said joint expectancy period;

(d) Possibility of deceased husband’s retiring before expiry

of joint expectancy period;

(e) Acceleration of inheritance to widow – bearing in mind
likelihood of increased inheritance in event death had
not occurred;

(f) Possibility the infant child may not be a burden to the
father or require additional benefits for the full period
of his calculated working life.

As to (e) the acceleration of inheritance to the widow, the trial
Judge clearly believed (and the Appellate Court found no reason
for thinking the contrary), that the acceleration of the inheritance
was offset by it being much smaller than if the husband had lived
out his expected life span. Again the emphasis seems to be on acting
to reduce awards only by virtue of contingencies of which there is
evidence.73 As Dickson J. said in Keizer:

It is, of course, true that a trial judge must consider contingencies tend-
ing to reduce the ultimate award and give those contigencies more or
less weight. It is equally true there are contingencies tending to in-
crease the award to which a judge must give due weight. At the end of
the day the only question of importance is whether, in all the cir-
cumstances, the final award is fair and adequate. Past experience should
make one realize that if there is to be error in the amount of an award
it is likely to be one of inadequacy. 74
Factors (b) and (c) although cited in both the judgment of the

7 Supra, note 18, 596.
72 Supra, note 38.
72a [1975] 7 O.R. (2d) 327, 333 (County Ct.).
73 Sometimes certain facts will be assumed; e.g., that dependent children
usually become self-supporting. Thus in relation to factor (f) the trial Judge
accepted that the son would not normally have been a burden on his father
for his whole working life.

74 Supra, note 38, 216.

McGILL LAW JOURNAL

[Vol. 24

trial Judge and the Court of Appeal were, in Spence J.’s view,7
invalid considerations since both already had been dealt with in
establishing the joint life expectancy. Factor (d), according to
Spence J. and the Ontario Court of Appeal, was too narrowly drawn
by the trial Judge since it did not cover the possibility of other
factors affecting the deceased husband’s ability to earn (for ex-
there
ample, industrial accident, unemployment etc.). Moreover
was the further factor overlooked by the trial Judge:

[T]he possibility that the husband, had he lived, might have ceased to
provide support for his wife and child for a variety of other reasons –
some emotional, some mental, some due to later developed changes in
character.Y6

Despite the length at which the Court dealt with the matter, dam-
ages in Keizer were reduced by only $1,500 to cover the contingencies
–
a clear contrast to the twenty per cent deducted in relation to
some or all of the claims in Thornton, Teno and Andrews.

In a 1973 lecture77 Mr Justice Haines concluded that Canadian
courts presumed that all contingencies applied and that the burden
was on the plaintiff to rebut them. As the recent Supreme Court
decisions show, not all contingencies are adverse to the plaintiff
and the evidential burden cannot rest on him to rebut those in his
favour. The critical question is what should a court do when the
possibility of contingencies is raised but without any evidence to
assist the court in deciding what figure to attribute to them. The
trial Judge’s deduction of twenty per cent in Andrews was necessar-
ily arbitrary, (Kirby J.’s own choice of word), 78 and probably based
more on experience than actual evidence placed before the Court at
the trial. Since the majority of the contingencies appear to reduce
rather than increase damages,1 9 if a trial Judge reduces damages by a

75 Ibid., 224.
76 Ibid., 225.
77″New Developments in the Law of Torts” in Law Society of Upper Canada,

Special Lectures (1973), 27.

7 8 Supra, note 20, 101.
79Although it must surely be a moot point whether the possibility of Mr
Andrews’s career prospering beyond that expected by the court was more
likely than the sum total of the negative contingencies of illness, accident,
unemployment, premature retirement, etc., in Thornton the Supreme Court,
on relatively little evidence decided to deduct 20% for contingencies from
the cost of future care (see supra, p.331) and 10% from future earnings. The
trial Judge had thought that the contingencies relating to future earnings were
evenly divided and therefore deducted nothing. The B.C.C.A., with little
evidence, reduced the agreed income of $850 par month by 10% and this was
upheld by the Supreme Court of Canada. Perhaps some small deduction can
be justified for the accelerated payment of long term future earnings.

19783

COMMENTS – COMMENTAIRES

moderate amount (twenty per cent or less) this is unlikely to be set
aside on appeal. This is not, however, a foregone conclusion because,
as Dickson 3. pointed out in Thornton, “[t]he imposition of a contin-
gency deduction is not mandatory, although it is sometimes treated
almost as if it were to be imposed in every case as a matter of law”.
The courts may well refuse to accept reductions based on a mere spec-
ulation of a widow’s chance of remarriage or acceleration of inherit-
ance. Counsel for defendants may be well advised to place actual
evidence of contingencies before the court if they possibly can.
There seems to be developing on the part of the courts a reluctance
to use contingencies merely as a way of keeping down damage
awards. Dickson J. said in Keizer8′ “[p]ast experience should make
one realize that if there is error in the amount of an award it is
likely to be one of inadequacy.”

F. Collateral benefits

In Keizer, when establishing the appropriate award, the majority
of the Supreme Court of Canada deducted the amount paid to the
appellant as insurance benefits. So far as collateral benefits are
concerned, a difference of approach has emerged between benefits
received from private or public sources (such as private or public
financed or regulated schemes, to which the plaintiff has contributed
directly or indirectly, or has an entitlement as of right) and other
schemes. In relation to the former benefits the tendency seems to
be to disregard these in quantifying damages. To do otherwise
would either be to punish the victim for his foresight in making
provision for his dependents, or to deprive him of rights which
vested in him by virtue of his direct or indirect contribution or to
which he has a right independent of the liability of a third party.s2
Moreover this would give an unwarranted windfall to the tortfeasor
in terms of reduced liability8 3 So far the cases seem to allow ac-
cumulation of: Canada Pension Plan benefits,s4 unemployment bene-
fits,”‘ welfare payments, 6 private accident insurance benefits,s
ex gratia payments88 and payments under a contract of employment

80 Supra, note 40, 618.
81 Supra, note 38, 216.
82 See Boarelli v. Flannigan [1973] 3 O.R. 69, 75 (C.A.).
83 See White v. Parkin [1974] 3 W.W.R. 509, 521 (B.C.S.C.).
84 Supra, note 82.
85 Bourgeois v. Tzrop (1957) 9 D.L.R. 214 (N.B.S.C. App.Div.).
s6 Supra, note 82.
8 7 Canadian Pacific v. Gill [1973] S.C.R. 654. See also The Family Law

Reform Act, 1978, S.O. 1978, c.2.

88 Cunningham v. Harrison [19731 3 All. E.R. 463 (C.A.).

McGILL LAW JOURNAL

[Vol. 24

for sick leave benefits.” In many of these cases the similarity with
insurance is emphasized, for a person upon joining the scheme has
no way of knowing whether he will qualify for benefits. In relation
to other schemes the “foresight” argument applies less clearly and
may even fly in the face of the wording of a statutory scheme, espe-
cially where, as in Keizer v. Hanna, the plaintiff had received pay-
ment under a state sanctioned introduction of a limited “no-fault”
insurance scheme in 1971.9o This scheme, when properly construed,91
provided that the benefits under the 1971 amendment complied with
the extension of the word “insured”, and the addition to section 237
of The Insurance Act 92 required the deduction of the benefits from
the Fatal Accidents Act 92

a award.

In other cases the courts have characterized payments in such
a way as to allow deductions. One recent case seemingly out of
step with other cases is Trizec Equities Ltd v. Guy,3 in which the
Nova Scotia Appeal Division characterized early retirement pension
payments to the plaintiff as in reality a form of reduced salary or
deferred salary payment notwithstanding that this was a contributory
scheme. As the plaintiff had been appointed to the Board of Direc-
tors and had earned directors fees for the time between accident
and trial (money he would not have received whilst an employee),
these were added to the pension in calculating his lost earnings
during this period. No deduction for future directors fees for the
period after the trial was made because of the uncertain ability
of the plaintiff to continue as a director. No allowance seems to
have been made for the fact that, had the plaintiff worked through
to his normal retirement date (assumed by a majority of the court
to be sixty years because of the plaintiff’s pre-existing ill health),
his retirement pension would have been much higher than the
amount accruing under the early retirement pension. Leave to appeal
to the Supreme Court of Canada was granted, inter alia, on this

89 Wren v. Superintendent of Insurance (No. 2) (1977) 75 D.L.R. (3d) 567

(Ont.H.C.).

9o The Insurance Amendment Act, 1971, S.O. 1971, c.84.
91 See Gorrie v. Gill; McRoberts v. Gill [1976] 9 O.R. (2d) 73 (CA.).
92 The Insurance Act, R.S.O. 1970, c224, s.237, as am. by s.17 of The In-

surance Amendment Act, 1971, S.O. 1971, c.84.

92a R.S.O. 1970, c.164.
93 Supra, note 37. See also Woodworth v. Farmer (1963) 39 D.L.R. (2d) 179
where Ilsley C.J. refused to allow accumulation where a plaintiff had con-
tinued to receive his wages as of right from his employer. He was not
entitled to recover the same sum from the wrongdoer because he had simply
suffered no loss of wages. The insurance sickleave cases were treated as
distinguishable.

19783

COMMENTS – COMMENTAIRES

point. In distinguishing the “accumulation” cases,.93 the Court noted
that there was a difference between public and government schemes.
The line, however, is not easy to draw, nor is consistency easy to
find. Subrogation where authorized by statute 94 or contract is in
many ways the most equitable answer.

G. Duplication

Clearly some of the heads of pecuniary loss overlap with one
another. For instance, food and clothing can be treated as part of
the cost of future care. In so doing they will reflect the fact that the
cost of necessities may be higher for the accident victim and the
relevant contingency factor may be different from that applicable
to healthy people. By the same token, when dealing with loss of
income some allowance must be made for the fact that some of
that income (around fifty-three per cent) 95 would have had to have
been expended by the plaintiff on necessities of life, and therefore
a deduction of the appropriate percentage must be made to prevent
the victim recovering twice over for the same expense. For non-
pecuniary losses the award of a global sum prevents duplication
of analytically distinct sums which merge at the margins.

H. Management costs

The investment skills required to ensure that the capitalized
sum produces the requisite revenue are considerable, especially
in a constantly changing tax situation. In Teno v. Arnold96 Spence 3.
allowed an award of $35,000 to cover management expenses from
the time that Diane became an adult and the efficient services of
the Ontario Official Guardiana were no longer available. Admit-
tedly, Diane’s intellectual capacity was reduced but the problems
of managing a large capital sum are daunting for a quadriplegic and
while no management element was included
in Thornton or
Andrews, a claim in a similar case in the future might be success-
ful.

93a Wren, supra, note 89; Boarelli, supra, note 82; Borugeois, supra, note 85;

and Gill, supra, note 91. See Trizec Equities Ltd, supra, note 37, 22.

04 See, e.g., The Hospital Services Commission Act, R.S.O. 1970, c.209, s.20
(i) & (h); The Workmen’s Compensation Act, R.S.O. 1970, c.505, s.8(4). However,
subrogation may not solve all problems –
see Fleming’s comment in (1974)
52 Can.Bar Rev 103.

05 See Andrews, supra, note 18, 593-94.
9O Supra, note 3, 38.
oa See The Infants Act, S.O. 1970, c.222, s.1(6).

McGILL LAW JOURNAL

(Vol. 24

I. Capitalization, Inflation & the discount rate

In relation to the pecuniary losses, the problem arises of produ-
cing out of a capital sum, together with its interest, a sum sufficient
to cover the estimated future care for the plaintiff and his estimated
lost earnings, so that at the end of the relevant period (retirement
or death) the fund is exhausted. This leads to the question of what
is an appropriate rate of interest on which to base one’s calcula-
tions, given that a child like Diane Teno may be expected to live
for a further sixty or more years. The present high interest rates
may not continue. Even if long term (twenty year)” quality high
investments now carrying interest at over ten per cent were utilized,
they might fall in value and require reinvestment three times or
more during the plaintiff’s lifetime. By that time inflation, accord-
ing to the late Dr Deutsch”8 of the Economic Council of Canada,
may have dropped to three and one half per cent and by the same
token interest rates will have dropped, although by this stage one
might predict a substantial decrease in the purchasing power of
the doller from present levels. At these lower rates the return would
be inadequate to produce the figure needed to cover future care or
lost earnings. Canadian courts have not followed the decisions of
some other jurisdictions 9
to disregard the present high interest
rates, a side effect of inflation, and to hope that using a lower rate
of interest (for example, five to six per cent) 100 than that currently
prevailing will to some extent compensate the victim for inflation.
Of course, tax will be paid on some or all of the interest actually
accruing. The effect of different interest rates is graphically illust-
rated by an example taken from Spence J.’s judgment in Teno.’0’
The present value of $1,000 per annum for 66.9 years, if calculated
at four and one half per cent was $21,563, at six and one half per
cent, $15,685 and at eleven per cent, $9,100. In Teno v. Arnold,
Thornton, and Andrews seven per cent became the discount al-
though de Grandpr6 J. vigorously objected to the court arriving
at such a rate when the wife had agreed with the defence to figures

97See the evidence of Mr Grindley in Thornton, supra, note 40, 615.
9SAndrews, supra, note 18, 600.
199 E.g., the “Diplock approach” in Mallett v. McMonagle [1970] A.C. 166, 175
(H.L.) using 4% – 5% as a rate representing a stable economy, and making
calculations on that basis and leaving further inflation out of the account,
In fairness it should be pointed out that at that time sterling’s purchasing
power was falling by a mere 3 1% and double digit inflation had not yet
arrived.

10As the rate representing a long term stable economy.
OlSupra, note 3, 35.

19783

COMMENTS – COMMENTAIRES

being introduced based on an interest rate of between nine and ten
per cent. This seems to be an interim approach part way between
the “Diplock Approach”””a and more complicated attempts at taking
long-term inflation into account. However, when the seven per cent
discount rate is subtracted from a ten per cent nominal interest
rate on secure investments, one arrives at a figure of three per cent.
If that figure were to be accepted as the appropriate discount rate
representing the long-term real interest rate, then the capital sum
required in cases like Thornton would be appreciably higher. The
courts, however, might find this frightening in terms of the size
of awards.

1. Non-pecuniary damages

In contrast to pecuniary damages, the tradition has arisen of
awarding a global sum 10 2 for pain and suffering, loss of amenities 03
and loss of enjoyment of life or loss of expectation of life. Not in-
frequently the award has been large, although none approached the
recent award of $128,500,000 to a scarred victim who had undergone
fifty-two operations, with more to come, after he had been gravely
burned as a result of a Ford Pinto (with an allegedly known design
fault in its tank location) catching fire after an accident. 04 The
courts have recognized that money is a poor substitute for the non-
pecuniary losses and there is no objective yardstick for its measure-
ment. The money awarded aims at helping make up for what has
been lost ,”to alleviate the disaster..,
to enable [the victim] to
live as tolerably as may be in the circumstances”.’0 5 Some personal
aspects enter the picture, so that an injury to a finger on the left
hand may affect an amateur pianist more than a non-musician, but
nevertheless some attempt now must be made to prevent these
awards from becoming extravagant. In Thornton and Teno awards
of $200,000 were made before the cases reached the Supreme Court

10I See supra, note 99.
10 2 The elements are said to merge at the edges, although they are analytical-
ly distinct as Dickson J. suggested in Andrews, supra, note 18, 605. “To
suffer pain is surely to lose an amenity of a happy life at that time. To lose
years of one’s expectation of life is to lose all amenities for the lost period
and to cause mental pain and suffering in the contemplation of this prospect.”
103 Loss of limbs, cosmetic injuries, inability to participate in activities

formerly enjoyed, etc.

10 4 The damages were subsequently reduced to $6.6 million on the ground
that $122 million of punitive damages was execessive, Halifax Chronicle-
herald, Apr. 1st, 1978. In Canada punitive damages are normally only awarded
for intentional torts.

‘.05 Warren v. King [1963] 3 All E.R. 521, 528 (C.A.).

McGILL LAW JOURNAL

[Vol. 24

of Canada. In the past, awards of not dissimilar proportions had
been approved by the Supreme Court of Canada, largely on the
basis of non-interference with awards by provincial courts of ap-
peal. In Hamel v. Prather” Moir J.A. of the Alberta Supreme Court
Appellate Division had predicted that unless the Supreme Court of
Canada intervened, awards for non-pecuniary loss would steadily
rise. That point has now been reached and an upper limit of $100,-
000 established. Clearly, if such severely injured plaintiffs as those
in the present case receive only $100,000 awards in other less serious
cases will be substantially lower. 0 7

In fatal accidents cases no claim is allowed for non-pecuniary
losses although by way of a partial exception in Vana v. Tosta,0 8
the Supreme Court of Canada treated as a pecuniary loss a sum of
$2,000 – $3,000 for the loss of training, guidance, example and encoura-
gement that only a mother can give.sa Under Scottish 10
law a
claim for solatium is permitted and in Alberta a proposal has been
made 10 to allow parents, the surviving spouse and children to each
claim as a class upto $3,000 for bereavement.

III. CONCLUSION

The detailed rules set forth in these decisions seem to be predic-
ated on the further demise of jury trials in personal injury cases since

106 [1976] 2 W.W.R. 742, 748.
loT In Trizec Equities v. Guy, supra, note 37, the Appeal Division of the
Nova Scotia Supreme Court, allowed the plaintiff $25,000 for non-pecuniary
loss resulting from an accident which caused the plaintiff severe back and
neck pain, affected his ability to walk, prevented him from working, and
caused him reactive depression. In reaching this figure the Court compared
the plaintiff’s plight with that of the plaintiffs in Teno, Thornton and
Andrews. However the recent case of Lindal v. Lindal [1978] 4 W.W.R. 592
(B.C.S.C.) was also decided after the S.C.C. decisions. Fulton J. awarded a
plaintiff $135,000 as non-pecuniary damages on the basis that the $100,000 limit
could be exceeded where the injuries were even more severe than in Teno,
Thorton or Andrews.

108 [1968] S.C.R. 71. See also Franco v. Woolfe, especially the judgment of
Haines J. at first instance, (1974) 52 D.L.R. (3d) 355 (Ont.H.C.), modified on
appeal, (1976) 69 D.L.R. (3d) 501 (Ont.C.A.).

ie8a S.60(2) of The Family Law Reform Act, 1978, S.O. 1978, c.2, consolidates
this by allowing recovery for: “(d) an amount to compensate for the loss of
guidance, care and companionship that the claimant might reasonably have
expected to receive from the injured person if the injury had not occurred.”

109 Fleming, The Law of Torts 5th ed. (1977) 658-59. See also N. Territories
of Australia, S. Australia and Ireland and the authorities referred to in
Report 24 of the Institute of Law Research & Reform, University of Alberta,
Survival of Actions and Fatal Accidents Act Amendment (1977), 17.

11oSee ibid.

19781

COMMENTS – COMMENTAIRES

the rules are less easily applied by juries. Moreover, the award of
substantial amounts of damages may inspire a false sense of security
for plaintiffs unless the combination of insurance and a corporate
defendant (Teno and Andrews) or a defendant with access to sub-
stantial resources (the School Board in Thornton) is capable of
paying the. huge damage award. One wonders how the Supreme
Court would have reacted if one of these cases had involved a
private motorist with minimum cover and no resources, or an un-
insured driver, where the statutory uninsured drivers fund was the
provider of damages. Perhaps they might have speculated on the
need for legislation to ensure that public liability cover carried by
motorists is adequate to cover cases of disastrous personal injuries.

Alastair Bissett-Johnson*

Appendix A

Teno v. Arnold
Diane Teno’s Claim
A. For future care:

To provide a fund of $21,000 per annum for 57 years,

calculated at discount rate of 7% ………………………………………………..

$294,387

To provide an additional sum of $6,000 per annum

commencing in 19 years and continuing for the balance of
her life … . .
. ………………………………………………………………………………….
(This sum will have generated a fund of $82,708 by 1984).
B. Loss of future incom e: ……………………………………………………………………….

Fixed at $6,000* per annum for 45 years commencing in 1984

when this sum at a discount rate of 7% will have
accumulated a fund of $82,008

C. N on-pecuniary dam ages: ……………………………………………………………………..
D . M anagem ent fee: ………………………………………………………………………………….

Total dam ages for Diane Teno ………………………………………………………………….

Rounded off at $540,000.

In addition Diane’s father was entitled to $14,979.62

special damages of which $7,500 were held in trust for
Diane’s mother as a quantum meruit for caring for Diane
prior to trial.

54,735

54,272

100,000
35,000

$538,394

* Estimated earnings of $7,500 per annum subjected to a 20% deduction

for contingencies.

* Of the Faculty of Law, Dalhousie University. I should like to acknowledge
the many invaluable discussions on this topic which I had with my colleague,
Professor Hudson Janisch, which resulted in this note’s present form. The
mistakes are, of course, my own.

McGILL LAW JOURNAL

[Vol. 24

Appendix B

Andrews v. Grand & Toy Alberta Ltd
Mr. Andrews’ Claim

A. Pecuniary Loss

1. Cost of future care

–

–

special equipm ent* ………………………………………………………………
(wheel chairs, electric hospital bed, Econo-Van with
power lift, hand controls, etc.)
amount for monthly payments …………………….
(monthly amount $4,135;** life expectancy 45 years;
contingencies 20%; capitalization rate 7%).

2. Prospective loss of earnings ………………………………………………

(monthly amount $564; work span 30.81 years;
contingencies 20%; capitalization rate 7%).

B. Non-pecuniary Loss

–

compensation for physical and mental pain and
suffering endured and to be endured, loss of amenities
and enjoyment of life, loss of expectation of life …………

Total General Damages ………………………………………………..
Rounded off at $740,000.

To arrive at the total damage award, the special damages of

$77,344 must be added to give a final figure of $817,344
subject to 25% contributory negligence = $613,008.

* Special Equipment

$ 14,200

557,232

69,981

100,000
$ 741,413

Standard wheelchair …………………………………………………………………………….
Electric wheelchair ………………………………………………………………………………..
Econo-Van vehicle with specialized power lifts, power steering
Electric hospital bed …………………………………………………………………….
Hoyer lift (and attachments)
Home-aid hardware and architectural changes ………………………………
Daily living sundries ……………………………………………………………………..
Electric typewriter ………………………………………………………………………………..
Tape recorder ……………………………………………………………………………………….
Electric garage door opener ………………………………………………………………..
Commode chair ……………………………………………………………………………
Hand-control for van …………………………………………………………………………..
Cairns selector control ……………………………………………………………………….

…………………………………………………………..

T otal ………………………………………………………………………………………………

$ 525.00
1,100.00
8,500.00
375.00
460.00
450.00
150.00
500.00
775.00
215.00
225.00
175.00
750.00

$14,200.00

**Breakdown of monthly expenses

Two trained orderlies on two ten-hour shifts ………………………………..
Rent- three -bedroom apartment
……………………………………………………..
U tilities ……………………………………………………………………………………………………
F ood …………………………………………………………………………………………………

$ 2,516.00
415.00
35.00
110.00

..

19781

COMMENTS – COMMENTAIRES

C loth in g ……………………………………………………………………………………………………
Alberta H ealth Care ……………………………………………………………………………..
Prescription D rugs ………………………………………………………………………………..
Repairs and replacement of equipment …………………………………………..
Van replacement – basis of six years …………………………………………….
Non-prescription medical supplies ……………………………………………………
Insurance (including van) ……………………………………………………………………
Transportation for medical and recreational purposes ………………..
Personal incidentals ………………………………………………………………………………
H ousekeeper …………………………………………………………………………………………..
Household incidentals …………………………………………………………………………..
D ental care …………………………………………………………………………………………….

347

40.00
7.00
12.00
87.00
118.00
25.00
40.00
80.00
80.00
525.00
40.00
5.00

T otal ………………………………………………………………………………………………

$ 4,135.00

Appendix C

Thornton v. Board Of School Trustees Of School
District 57 (Prince George) et al
Gary Thornton’s Claim

A. Pecuniary Loss

1. Cost of Future Care

(a) Initial Capital Outlay for:

……………………………………………………………………………………

H om e
Econo-Van Motor Vehicle ………………………………………………….
Home Care Equipment* ……………………………………………………

$

45,000
8,500
12,000

(b) Capitalized annual cost of future care (monthly amount
of $4,305,** life expectancy 49 years; contingencies 20%;
capitalization rate 7%) ……………………………………………………….

586,989

2. Loss of Future Earnings

($407 per month; work-span 43 years;
contingencies 10%; capitalization rate 7%)

…………………………..

61,254

B. Non-pecuniary Loss

Compensation for physical and mental pain and suffering
endured and to be endured, loss of amenities and enjoyment
of lite, loss of expectation of life ………………………………………………….

……………………………………………………
Total General Damages
R ounded off at ……………………………………………………………………

To arrive at the total damage award, the special damages of
$49,628, which includes $7,500 to be held in trust for the appellant’s
mother, must be added to give a final figure of $859,628.

100,000

$ 813,743
$ 810,000

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McGILL LAW JOURNAL

[Vol. 24

* Initial equipment outlay expenses.

2 wheelchairs:

standard w heelchair …………………………………………………………………………..

electric chair

.. …………………………………………………………………………….

replacement (4 years)

replacement (5 years)

$ 561.00

1,389.00

Hi-Low hospital bed …………………………………………………………………..
Hoyer lift (and attachements) ……………………………………………………….
Home care hardware and architectural changes …………………………
Daily living comfort sundries (sheepskins, cushion bedding, etc.)
E lectric typew riter …………………………………………………………………………….
T ape recorder ……………………………………………………………………………………..
Five room basic furnishing ………………………………………………………………
C om m ode chair ………………………………………………………………………………….
Electric garage door opener …………………………………………………………
Hand control for Van (installed) ……………………………………………………
Cairns Selector Control ……………………………………………………………
Cablevision hookup cost (2) …………………………………………………….
Programmed Telephone installation ………………………………………………

415.00
460.00
450.00
500.00
500.00
187.00
6,100.00
225.00
215.00
175.00
780.00
25.00
20.00

T o tal ……………………………………………………………………………………….

$12,002.00

**Breakdown of monthly expenses

Home –

taxes, repairs and upkeep (painting, replacement of

furnace, etc.)

………………………………………………………………………….
U tilities ………………………………………………………………………………………………..
F o o d …………………………………………………………………………………………………….
C lo th in g ………………………………………………………………………………………………..
Alberta Health Insurance ………………………………………………………………….
Prescription Drugs 20% of cost ……………………………………………………….
Repair and replacement of equipment …………………………………………
Motor vehicle replacement – 6-year depreciation factor

$ 100.00
38.00
130.00
45.00
8.00
12.00
111.50

(less $1,500 trade-in value at end of 6-year period ………………….

Non-prescription medical supplies ………………………………………………….
Insurance (includes motor vehicle) ………………………………………………
Transportation for medical and recreation ………………………………..
Personal incidentals and needs (all grooming aids,

hygiene, and personal comfort needs) ……………………………………..

Registered nursing orderly –

3 shifts at $932.00 a shift

(based on 7 days/week and 8 hr. shifts) ………………………………….

Housekeeper (minimum) 7 days a week (no allowance

for h olidays) ……………………………………………………………………………………

Household incidentals and maintenance (linen, cablevision,
utensils, replacement, etc.) …………………………………………………………

D en tal care …………………………………………………………………………………………..
Programmed telephone ……………………………………………………………………..
Contingency fund for future unascertainable expenses ………………..

98.00
25.00
57.00
90.00

80.00

2796.00

575.00

55.00
5.00
30.00
50.00

Total ……………………………………………………………………………………….

$ 4,305.50

1978]

COMMENTS – COMMENTAIRES

Keizer v. Hanna
Mrs Keizer’s Claim for herself and her son

Appendix D

Pecuniary Loss

Mr Keizer’s expected annual earnings …………………………..

$ 15,000

LE SS Tax ……………………………………………………..

$3,200

Personal use

……………………………………

Personal support …………………………….

1,800

3,000

8,000

Amount available for dependants ………….

7;000 per annum

Capitalized sum required to produce $7,000 per annum

for 31 years (Mr Keizer’s working life expectancy)
at 61 % discount rate ……………………………………………………

Less small discount for contingencies …………………………..

Total D am ages ………………………………………………….

Divided as to Mrs Keizer …………………………………………………

Stephen Keizer, her son (money paid into court) ……..

95,000

approx.

1,500

93,500

$ 78,500
$ 15,000