Teno et al. v. Arnold et al., (1978) 19 N.R. 1 (SCC)

• Judge: Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 19, 1978
• Jurisdiction: Canada (Federal)
• Citations: (1978), 19 N.R. 1 (SCC);3 CCLT 272;[1978] 2 SCR 287;19 NR 1;83 DLR (3d) 609;6 AR 182;[1978] SCJ No 8 (QL);[1978] CarswellOnt 586;1978 CanLII 2 (SCC);AZ-78111100

Teno v. Arnold (1978), 19 N.R. 1 (SCC)

MLB headnote and full text

Teno et al. v. Arnold et al.

Indexed As: Teno et al. v. Arnold et al.

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.

January 19, 1978.

Summary:

This case arose out of a claim for damages for personal injuries arising out of a motor vehicle accident. The plaintiff, a four year old girl, crossed a four lane residential city street with her six year old brother to purchase ice cream from a "Good Humour" truck. The driver salesman, who was alone in the truck, served the little girl and subsequently served her six year old brother. While he was serving the six year old brother the girl dashed out onto the street to return home and was struck by a passing car. The girl was severely injured. The girl commenced an action against the owner and driver of the ice cream truck and the owner and driver of the passing car. The defendants claimed contribution from the girl's mother for failure to exercise proper care and control of the girl.

The Ontario Supreme Court allowed the girl's action and held all four defendants liable. The Ontario Supreme Court refused to order contribution to be made by the girl's mother to the defendants. The Ontario Supreme Court awarded the girl $950,000 general damages for personal injuries.

On appeal to the Ontario Court of Appeal the apportionment of negligence between the defendants was varied - See paragraphs 4 and 5. In addition, the Ontario Court of Appeal held that the girl's mother was contributorily negligent and was liable to contribute to the defendants. The judgment of the Ontario Court of Appeal is reported at 11 O.R.(2d) 585. The Ontario Court of Appeal reduced the girl's general damages for personal injuries from $950,000 to $875,000.

On appeal to the Supreme Court of Canada the apportionment of negligence was varied - See paragraph 49. In addition, the Supreme Court of Canada held that the owner of the ice cream truck was vicariously liable for the negligence of the ice cream truck driver but that the owner was not negligent in providing only one man to drive and sell ice cream from the trucks. The Supreme Court of Canada reduced the girl's general damages for personal injuries from $875,000 to $540,000.

Spence, Judson, Dickson and Pigeon, JJ., dissenting in part, in the Supreme Court of Canada, would have held that the owner of the ice cream truck was negligent in providing only one man to drive and sell ice cream from the truck - See paragraphs 9 to 28.

de Grandpré, J., dissenting in part, in the Supreme Court of Canada, would have held that the girl's mother was contributorily negligent in allowing the girl to cross the street in the circumstances of this case - See paragraphs 117 and 118.

Torts - Topic 550

Negligence - Motor vehicle - Evidence - Burden of proof on an owner or driver of a motor vehicle respecting loss or damage sustained by a pedestrian - Ontario Highway Traffic Act, s. 133(1) - The Supreme Court of Canada stated that the onus of proof pursuant to s. 133(1) applies only where the evidence pro and con is evenly balanced - See paragraphs 13 to 15.

Torts - Topic 83

Negligence - Duty of care - Whether the defendant took reasonable care - The defendant was the owner of an ice cream vending business - The defendant sold ice cream from trucks which stopped on city streets - A driver of such a truck used lights and bells to attract children - A four year old girl bought ice cream from one of the defendant's parked trucks and was injured when she dashed across the street to return home - The girl was struck by a car - The truck was operated by a single driver who was unable to sell ice cream and ensure that his young customers crossed the street in safety - The Supreme Court of Canada held that the defendant owner acted reasonably in providing only one man to drive and sell ice cream from the trucks - See paragraphs 107 to 114 and 116.

Torts - Topic 4366

Negligence - Suppliers of goods - Retailers - Street vendors, duty to children - The defendant driver salesman sold ice cream to children from his truck - A four year old girl crossed a four lane residential city street to buy ice cream from the defendant driver - While the driver was serving his next customer the girl dashed out from behind the truck to return home and was struck by a passing car - The Supreme Court of Canada held that the driver was negligent in failing to watch and warn the girl of imminent danger - See paragraphs 27 to 32.

Torts - Topic 7148

Joint and concurrent tortfeasors - Liability of concurrent tortfeasors for the whole of the plaintiff's damages - The Supreme Court of Canada referred to the liability of each of several concurrent tortfeasors for the full amount of the plaintiff's damages - See paragraphs 49 and 102.

Torts - Topic 6618

Defences - Contributory negligence of parents for the failure to exercise care and control over children - A four year old girl, in the company of her six year old brother, was permitted by a mother to cross a four lane residential street on July 1, 1969 to purchase ice cream from a "Good Humour" truck - The girl was severely injured when she dashed back across the street to return home and was struck by a car - The ice cream salesman and the car driver were held liable for the girl's damages and they both claimed contribution from the girl's mother - The Supreme Court of Canada dismissed the claim for contribution - The Supreme Court of Canada stated that the mother was not contributorily negligent in such circumstances - See paragraphs 33 to 48.

Torts - Topic 7383

Joint and concurrent tortfeasors - Considerations in the apportionment of fault between several concurrent tortfeasors - The Supreme Court of Canada made an order for contribution between several concurrent tortfeasors and referred to some of the considerations in making such an order - See paragraph 49.

Damage Awards - Topic 4

Personal injuries - Impossibility of uniformity of damage awards - The Supreme Court of Canada stated that a goal of similarity of damage awards is "quite impossible to attain" - See paragraph 51.

Damage Awards - Topic 486

Personal injuries and death - General damage awards - Large awards - The Supreme Court of Canada stated that in cases of large assessments for general damages for personal injuries that it was desirable for a judge to refer to some basic calculations to serve as a guide or check - See paragraphs 56 and 57.

Damage Awards - Topic 102

Head injuries - Brain damage resulting in paralysis and permanent physical and intellectual disabilities - Four year old girl - The Supreme Court of Canada awarded the girl $540,000 general damages for personal injuries, being, $350,000 for future care, $55,000 for loss of future income, $100,000 for pain and suffering and other non-pecuniary damages and $35,000 for a management of fund fee - See paragraph 101.

Damages - Topic 1563

General damages for personal injury - Matters of speculation - A severely injured four year old girl required personal care for the rest of her life - The Supreme Court of Canada considered the potential income tax liability on income accruing from the investment of a large damage award - The Supreme Court of Canada referred to significant medical expense income tax deductions and the uncertainty of future tax rates and concluded that in such circumstances potential income tax liability was a matter of speculation which should not be considered - See paragraphs 74 to 77.

Evidence - Topic 2277

Special modes of proof - Judicial notice - Money and value of money - Inflation - The Supreme Court of Canada took judicial notice of inflation and referred to an expected rate of inflation of 3.5% over the long term future - See paragraph 84.

Damages - Topic 1546

General damages for personal injuries - Discount rate and present value of future payments - The Supreme Court of Canada adopted a discount rate of 7% by deducting a 3.5% inflation rate from a 10.5% investment rate - See paragraphs 78 to 84.

Damages - Topic 1548

General damages for personal injury - Management of fund fee - The Supreme Court of Canada awarded an injured plaintiff $35,000 for the future cost of skilled financial advisors for the management of a large damage award - See paragraph 85.

Damages - Topic 1550

General damages for personal injuries - Prospective loss of earnings for injured babies - The Supreme Court of Canada outlined the proper considerations in assessing the future loss of earnings for a severely injured baby - See paragraphs 86 to 94.

Damages - Topic 1543

General damages for personal injuries - Pain and suffering, loss of amenities of life and other non-pecuniary damages - The Supreme Court of Canada referred to the basis for such awards and awarded a four year old girl $100,000 for non-pecuniary damages where the girl suffered brain injuries which resulted in paralysis and permanent physical and intellectual disabilities - See paragraphs 95 to 100.

Practice - Topic 8331

Costs - Costs of appeal - Novel questions - The Supreme Court of Canada refused to award costs of appeal to a successful party where questions of policy were determined upon which the precedents offered little guidance - See paragraph 103.

Cases Noticed:

Godfrey et al. v. Gadbois et al., [1949] 4 D.L.R. 844, refd to. [para. 13].

Robins v. National Trust Co., [1927] A.C. 515, folld. [para. 15].

Donoghue v. Stevenson, [1932] A.C. 562, refd to. [para. 16].

Home Office v. Dorset Yacht Co. Ltd., [1970] A.C. 1004, refd to. [para. 22].

Jordan House Limited v. Menow & Honsberger, [1974] S.C.R. 239, refd to. [para. 22].

Bressington v. Commissioner of Railways (1947), 75 C.L.R. 339, dist. [para. 25].

Gambino et al. v. Dileo et al., [1971] 2 O.R. 131, refd to. [para. 40].

Beckerson and Beckerson v. Dougherty, [1953] O.R. 303, refd to. [para. 42].

Pedlar v. Toronto Power Company (1913), 29 O.L.R. 527, refd to. [para. 42].

Cowle and Cowle v. Filion, [1956] O.W.N. 881, refd to. [para. 44].

McCallion v. Dodd and another, [1966] N.Z.R. 710, refd to. [para. 45].

R. v. Jennings et al., [1966] S.C.R. 532, folld. [para. 74 and 93].

British Transport v. Gourley, [1956] A.C. 185, refd to. [para. 74].

Mallett v. McMonagle, [1970] A.C. 166, refd to. [para. 78].

Taylor v. O'Connor, [1971] A.C. 115, refd to. [para. 79].

Taylor v. Bristol Omnibus Company, [1975] 2 All E.R. 1007, refd to. [para. 89].

Warren v. King, [1963] 3 All E.R. 521, folld. [para. 98].

Eaton v. Moore, [1951] S.C.R. 470, folld. [para. 111].

Cavanagh v. Ulster Weaving Co. Ltd., [1960] A.C. 145, folld. [para. 112].

Statutes Noticed:

Highway Traffic Act, R.S.O. 1960, c. 172, sect. 133(1) [para. 9].

Income Tax Act, S.C. 1973-74, c. 14, sect. 23(2) [para. 75].

Authors and Works Noticed:

Kemp & Kemp on The Quantum of Damages, 4th Ed., Vol. 1, page 45 [para. 80]; page 135 [para. 90].

Counsel:

Brendan O'Brien, Q.C., for Jackson & Galloway;

R.E. Barnes, Q.C. and J.A. Bear, for Arnold;

Earl Cherniak, Q.C., Martin Wunder, Q.C. and M.A. Sanderson, for respondent Diane M. Teno;

B.A. Percival, Q.C. and M.S. Kaczkowski, for Yvonne Teno et al.

This appeal was heard by LASKIN, C.J.C., MARTLAND, JUDSON, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ and de GRANDPRE, JJ., at Ottawa, Ontario on June 16 and 17, 1977.

The judgment of the Supreme Court of Canada was delivered on January 19, 1978 and the following opinions were filed:

SPENCE, J. - see paragraphs 1 to 104.

PIGEON, J. - see paragraphs 105 to 114.

de GRANDPRE, J. - see paragraphs 115 to 119.

LASKIN, C.J.C., JUDSON and DICKSON, JJ. concurred with SPENCE, J.

MARTLAND, RITCHIE and BEETZ, JJ. concurred with PIGEON, J.