Andrews v. Grand & Toy Alberta Ltd.

Andrews v. Grand & Toy Alberta Ltd.
Collection
Supreme Court Judgments
Date
1978-01-19
Report
[1978] 2 SCR 229
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe
On appeal from
Alberta
Subjects
Torts
Decision Content
SUPREME COURT OF CANADA
Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229
Date: 1978-01-19
J. A. Andrews, Dorothy Andrews, Ivan Stefanyk (Plaintiffs) Appellants;
and
Grand & Toy Alberta Ltd. and Robert G. Anderson (Defendants) Respondents.
1977: June 15, 16; 1978: January 19.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION
Damages — Young adult rendered a quadriplegic and faced with lifetime of dependency on others — Applicable principles in assessment of damages.
In a negligence action for personal injury involving a young man rendered a quadriplegic in a traffic accident, ' the trial judge awarded $1,022,477.48. The Appellate Division of the Supreme Court of Alberta reduced that sum to $516,544.48. Leave to appeal to this Court was granted on the question whether the Appellate Division erred in law in the assessment of damages.
Liability was not an issue. The trial judge found that the fault was entirely that of the respondents. The Appellate Division (one member dissenting on this issue) found the appellant James Andrews 25 per cent con­tributorily negligent. Those findings did not arise for discussion in this appeal. Nor did the question of special damages.
This Court was called upon to establish the correct principles of law applicable in assessing damages in cases such as this where a young person has suffered wholly incapacitating injuries and faces a lifetime of dependency on others. On the date of the accident, Andrews was an apprentice carman, 21 years of age and unmarried.
Held: The appeal should be allowed. General damages were assessed at $740,000 which together with the special damages of $77,344 gave a final figure of $817, 344. Of this amount the appellant was granted judgment for 75 per cent, that is $613,008, under the uncontested apportionment of liability. 1. Pecuniary loss
(a) Future care
(i) Standard of care: The paramount issue to be decided was whether in a case of total or near-total disability the future care of the victim should be in an institutional or a home care environment. The trial judge chose home care and found that it would take $4,135 per month to provide such care for Andrews. The Appellate Division agreed that home care would be better but denied it to him. It considered that this standard of care was unreasonably and unrealistically high. Without giving any reason for selecting the par­ticular figure chosen, it substituted $l,000 per month. The Court of Appeal erred in law in the approach it took. It failed to show that the trial judge applied any wrong principle of law or that the overall amount awarded by him was a wholly erroneous estimate of the damage.
Contrary to the view expressed in the Appellate Divi­sion, there is no duty to mitigate damage, in the sense of being forced to accept less than real loss. There is a duty to be reasonable. There cannot be "complete" or "per­fect" compensation. An award must be moderate and fair to both parties. Clearly, compensation must not be determined on the basis of sympathy, or compassion for the plight of the injured person. What is being sought is compensation, not retribution. But, in a case like the present, where both Courts have favoured a home envi­ronment, "reasonable" means reasonableness in what is to be provided in that home environment. It does not mean that Andrews must languish in an institution which on all evidence is inappropriate for him. The ability of the defendant to pay has never been regarded as a relevant consideration in the assessment of damages at common law. The focus should be on the injuries of the innocent party. Fairness to the other party is achieved by assuring that the claims against him are legitimate and justifiable.
Was it reasonable for Andrews to ask for $4,135 per month for home care? Home care is expensive, but auxiliary hospital care is so utterly unattractive and so utterly in conflict with the principle of proper compensa­tion that this Court was offered no middle ground.
(ii) Life expectancy: Figures introduced at trial showed that the life expectancy of 23-year-old persons in general is 50 years. However, a statistical average is helpful only if the appropriate group is used. Medical testimony at trial indicated that possibly five years less than normal would be a reasonable expectation of life for a quadriplegic. This figure was accepted by the Appellate Division and also by this Court.
(iii) Contingencies of life: The trial judge allowed a 20 per cent discount for "contingencies and hazards of life". The allowance by the Appellate Division of a further 10 per cent discount was an error. The trial judge's figure of 20 per cent as a discount for contingen­cies was not an allowance for a decreased life expectan­cy, as the Appellate Division characterized it, for this had already been taken into account by reducing the normal 50-year expectancy to 45 years. The "contingen­cies and hazards of life" in the context of future care are distinct. They relate essentially to duration of expense and are different from those which might affect future earnings, such as unemployment, accident, illness. They are not merely to be added to the latter so as to achieve a cumulative result. The trial judge's figure of 20 per cent was accepted by this Court as a reasonable allowance for the contingencies relating to future care.
(iv) Duplication with compensation for loss of future earnings: Proper future care is the paramount goal of damages for personal injuries. To determine accurately the needs and costs in respect of future care, basic living expenses should be included. The costs of necessaries 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 to the accident. The projected cost of neces­sities should, therefore, be included in calculating the cost of future care, and a percentage attributable to the necessities of a person in a normal state should be reduced from the award for future earnings.
(v) Cost of special equipment: In addition to his anticipated monthly expenses, Andrews required an ini­tial capital amount for special equipment. The assessment by both Courts below was correct in principle and was therefore accepted.
(b) Prospective loss of earnings
It is not loss of earnings but, rather, loss of earning capacity for which compensation must be made.
(i) Level of earnings: The holding of the Appellate Division that $1,200 per month represents a reasonable estimate of Andrews' future average level of earnings was affirmed.
(ii) Length of working life: The capitalization of future earning capacity must be based not on the shortened life expectancy but rather on the expected working life span prior to the accident. It is the loss of the income-earning capacity which existed prior to the acci­dent for which the appellant must be compensated.
(iii) Contingencies: The figure used to take account of contingencies which might have affected future earnings, such as unemployment, illness, accidents and busi­ness depression, is obviously an arbitrary one. The figure of 20 per cent which was used in the lower Courts (and in many other cases), although not entirely satisfactory, should be accepted.
(iv) Duplication of the cost of future basic mainte­nance: At trial evidence was given that the cost of basics for a person in the position of Andrews prior to the accident would be approximately 53 per cent of income. This figure was accepted and his anticipated future monthly earnings were accordingly reduced to $564.
(c) Considerations relevant to both heads of pecuniary loss
(i) Capitalization rate: allowance for inflation and the rate of return on investments: The discount rate to be used in calculating the present value of the awards for future care and loss of earnings in this case should be varied from five to seven per cent. The approach at trial was to take as a rate of return the rental value of money which might exist during periods of economic stability, and consequently to ignore inflation. The approach adopted by this Court was to use present rates of return on long-term investments and to make some allowance for the effects of future inflation.
(ii) Allowance for Tax: As it is earning capacity and not lost earnings which is the subject of compensa­tion, no consideration should be taken of the amount by which the income from the award for prospective earnings will be reduced by payment of taxes on the interest, dividends or capital gain. A capital sum is appropriate to replace the lost capital asset of earning capacity. Tax on income is irrelevant either to decrease the sum for taxes the victim would have paid on income from his job, or to increase it for taxes he will now have to pay on income from the award.
The impact of taxation upon the income from the capital sum for future care is mitigated by the existence of s. 110(1) (c) (IV.1) of the Income Tax Act in respect of the deduction of medical expenses. Because of this provision and because of the position taken in the Courts below, where no allowance was made to adjust the amount assessed for future care in light of the reduction from taxation, this Court made no allowance for that item. Also, with respect to the determination of the present value of the cost of future care, the calculations should provide for a self-extinguishing sum. To allow a residual capital amount would be to over-compensate the injured person by creating an estate for him.
2. Non-pecuniary losses
In the case of a young adult quadriplegic like Andrews the amount of $100,000 should be adopted as the appropriate award for all non-pecuniary loss, includ­ing such factors as pain and suffering, loss of amenities and loss of expectation of life. Save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature.
Total award
Rather than make an overall assessment of the total sum, it is more appropriate to make an overall assessment of the total under each head of future care, prospective earnings, and non-pecuniary loss, in each case in light of general considerations such as the awards of other courts in similar cases and an assessment of the reasonableness of the award.
Nance v. B.C. Electric Railway Co., [1951] A.C. 601; Admiralty Commissioners v. S.S. Susquehanna, [1926] A.C. 655; West & Son Ltd. v. Shephard, [1964] A.C. 326; Admiralty Commissioners v. S.S. Valeria, [1922] 2 A.C. 242; Livingstone v. Rawyards Coal Co. (1880), 5 App. Cas. 25; Cunningham v. Harrison, [1973] 3 All E.R. 463; Fletcher v. Autocar & Transporters Ltd., [1968] 1 All E.R. 726; R. v. Jennings, [1966] S.C.R. 532; Bisson v. Corporation of Powell River (1967), 62 W.W.R. 707, 64 W.W.R. 768; Jennings v. Cronsberry (1965), 50 D.L.R. (2d) 385; Skelton v. Collins (1966), 39 A.L.J.R. 480; Olivier v. Ashman, [1962] 2 Q.B. 210; McCann v. Sheppard, [1973] 1 W.L.R. 540; Warren v. King, [1963] 3 All E.R. 521; McKay v. Board of Govan School Unit No. 29 of Saskatchewan, [1968] S.C.R. 589; Bresatz v. Przibilla (1962), 108 C.L.R. 541; Mallet v. McMonagle, [1970] A.C. 166; Re: Anti-Inflation Act, [1976] 2 S.C.R. 373; Schroth v. Innes, Perry and Shiels, [1976] 4 W.W.R. 225; Ward v. James, [1965] 1 All E.R. 563; Hamel v. Prather, [1976] 2 W.W.R. 742; Jackson v. Millar, [1976] 1 S.C.R. 225, referred to.
APPEAL by the plaintiffs, from a judgment of the Supreme Court of Alberta, Appellate Division[1], reducing an award of damages of Kirby J. in a negligence action for personal injuries. Appeal allowed.
D. K. Laidlaw, Q.C., R. Cummings and D. Andrews, for the plaintiffs, appellants.
J. A. Weir and B. Larbalestier, for the defendants, respondents.
The judgment of the Court was delivered by
DICKSON J.—This is a negligence action for personal injury involving a young man rendered a quadriplegic in a traffic accident for which the respondent Anderson and his employer, Grand & Toy Alberta Ltd., have been found partially liable. Leave to appeal to this Court was granted on the question whether the Appellate Division of the Supreme Court of Alberta erred in law in the assessment of damages. At trial Mr. Justice Kirby awarded $1,022,477.48; the Appellate Division reduced that sum to $516,544.48.
The amount awarded in each Court under each of the several heads of damages is set out below:
Pecuniary Loss
(a) Cost of Future Care
Trial
Appellate Division
—special equipement
$14,200
$14,200
—monthly amount
4,135
1,000
—contingencies
20%
30%
—capitalization rate
5%
5%
—life expectancy
45 years
45 years
$735,594
$164,200
(b) Loss of Prospective Earnings
—level of earnings
$ 830
$1,200
—basic deduction to avoid duplication between the award for future care and that part of the lost earnings that would have been spent on living expenses
440
—
Net
$390
$1,200
—contingencies
20%
20%
—work span
30.81
30.81
—capitalization rate
5%
5%
Total
$ 59,539
$175,000
Non-Pecuniary Loss
—Pain and Suffering
$150,000
$100,000
—Loss of Amenities
—Loss of Expectation of Life
Special Damages
$77,344
$77,344 Liability is not an issue. The trial judge found that the fault was entirely that of the respondents. The Appellate Division (McDermid J.A. dissent­ing on this issue) found the appellant James Andrews 25 per cent contributorily negligent. Those findings do not arise for discussion in this appeal. Nor does the question of special damages.
This Court is called upon to establish the correct principles of law applicable in assessing damages in cases such as this where a young person has suffered wholly incapacitating injuries and faces a lifetime of dependency on others. The question of "million dollar" awards has not arisen in Canada until recently, but within the past several years four such cases have been before the Courts, namely: (i) the case at bar; (ii) Thornton v. The v Board of School Trustees of School District No. 57 (Prince George), at present under appeal to this Court, in which the award at trial was $1,534,058, reduced on appeal to $649,628; (iii) Teno v. Arnold, also under appeal to this Court, in which the award for general damages at trial was $950, 000, reduced on appeal to $875,000; (iv) McLeod v. Hodgins, (unreported), in which Mr. Justice Robins, of the Ontario High Court, awarded at trial an amount of $1,041,197, of which $1,000, 000 were general damages.
Let me say in introduction what has been said many times before, that no appellate court is justified in substituting a figure of its own for that awarded at trial simply because it would have awarded a different figure if it had tried the case at first instance. It must be satisfied that a wrong principle of law was applied, or that the overall amount is a wholly erroneous estimate of the damage; Nance v. B.C. Electric Railway Co.[2]
The method of assessing general damages in separate amounts, as has been done in this case, in my opinion, is a sound one. It is the only way in which any meaningful review of the award is possible on appeal and the only way of affording reasonable guidance in future cases. Equally important, it discloses to the litigants and their advisers the components of the overall award, assuring them thereby, that each of the various heads of damage going to make up the claim has been given thoughtful consideration.
The subject of damages for personal injury is an area of the law which cries out for legislative reform. The expenditure of time and money in the determination of fault and of damage is prodigal. The disparity resulting from lack of provision for victims who cannot establish fault must be disturb­ing. When it is determined that compensation is to be made, it is highly irrational to be tied to a lump sum system and a 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 continuing 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 Corn. 56-Report on Personal Injury Litigation-Assessment of Damages) following strong opposition from insurance interests and the plaintiffs' bar.
The apparent reliability of assessments provided by modern actuarial practice is largely illusionary, for actuarial science deals with probabilities, not actualities. This is in no way to denigrate a respected profession, but it is obvious that the validity of the answers given by the actuarial witness, as with a computer, depends upon the soundness of the postulates from which he pro­ceeds. Although a useful aid, and a sharper tool than the "multiplier-multiplicand" approach favoured in some jurisdictions, actuarial evidence speaks in terms of group experience. It cannot, and does not 'purport to, speak as to the individual sufferer. So long as we are tied to lump sum awards, however, we are tied also to actuarial calculations as the best available means of determining amount.
In spite of these severe difficulties with the present law of personal injury compensation, the positive administrative machinery required for a system of reviewable periodic payments, and the need to hear all interested parties in order to fashion a more enlightened system, both dictate that the appropriate body to act must be the Legislature rather than the Courts. Until such time as the Legislature acts, the Courts must proceed on established principles to award damages which compensate accident victims with jus­tice and humanity for the losses they may suffer.
I proceed now to a brief recital of the injuries sustained by the appellant James Andrews in the present case. He suffered a fracture with disloca­tion of the cervical spine between the fifth and sixth cervical vertebrae, causing functional tran­section of the spinal cord, but leaving some con­tinuity; compound fracture of the left tibia and left humerus; fracture of the left patella. The left radial nerve was damaged. The lesion of the spinal cord left Andrews with paralysis involving most of the upper limbs, spine and lower limbs. He has lost the use of his legs, his trunk, essentially his left arm and most of his right arm. To add to the misery he does not have normal bladder, bowel and sex functions. He suffers from spasticity in both upper and lower limbs. He has difficulty turning in bed and must be repositioned every two hours. He needs regular physiotherapy and should have someone in close association with him at all times, such as a trained male orderly. The only functioning muscles of respiration are those of the diaphragm and shoulders. There is much more in the evidence but it need not be recited. Andrews is severely, if not totally disabled. Dr. Weir, a spe­cialist in neurosurgery, said of Andrews' condition that "there is no hope of functional improvement." For the rest of his life he will be dependent on others for dressing, personal hygiene, feeding and, indeed, for his very survival. But, of utmost impor­tance, he is not a vegetable or a piece of cordwood. He is a man of above average intelligence and his mind is unimpaired. He can see, hear and speak as before. He has partial use of his right arm and hand. With the aid of a wheelchair he is mobile. With a specially-designed van he can go out in the evening to visit friends, or to the movies, or to a pub. He is taking driving lessons and proving to be an apt pupil. He wants to live as other human beings live. Since May 31, 1974, he has resided in his own apartment with private attendant care. The medical long-term care required is not at a sophisticated level but rather at a practical care level.
Andrews was twenty-one years of age and unmarried on the date of the accident. On that date he was an apprentice carman employed by the Canadian National Railways in the City of Edmonton.
I turn now to consider assessment of the damages to which Andrews is entitled.
Pecuniary Loss
(a) Future Care
(i) Standard of Care: While there are several subsidiary issues to be decided in this case, there is one paramount issue: in a case of total or near-total disability should the future care of the victim be in an institutional or a home care environment? The trial judge chose home care. The Appellate Division agreed that home care would be better but denied it to him. Chief Justice McGillivray who delivered the judgment of the Court on this issue said: "All the evidence called supports the proposition that psychologically and emotionally Andrews would be better in a home of his own, where he would be lord of the manor, as it were." Some evidence even indicated the medical superi­ority of a home environment.
The trial judge found that it would take $4,135 per month to provide care for Andrews in a home environment. The Appellate Division considered that this standard of care was unreasonably and unrealistically high. Without giving any reason for selecting the particular figure chosen, the Appellate Division substituted $1,000 per month. Obvi­ously, here is the heart of the controversy. On other matters there was substantial agreement be­tween the lower Courts.
In my opinion, the Court of Appeal erred in law in the approach it took. After the statement quoted above that Andrews would be better psychological­ly and emotionally in a home of his own, Chief Justice McGillivray referred to some of the evi­dence supporting that proposition. He quoted the following passage from the evidence of Dr. Weir:
Well, J think [sic] that the greatest problem they have and the greatest burden of their affliction is the fact that they are all depressed because not only have they lost the potential for many normal and enjoyable human activities. In fact up until the present they pretty well have been converted into lifelong inhabitants of a hospi­tal institution and an institution is an institution, it is virtually a life sentence and has been to this date. I would say that if you really, you know, if you wanted to give him the optimal potential it would be in a home environment in which he had some, in which he had the control of it to the same extent that the rest of us have control over our own homes and dwelling places. I don't really think that any hospital or medical institution has the potential to give someone that same feeling that they are in fact the lords and masters of their own castle.
The Chief Justice noted that Andrews had said he would not live in an institution and the following excerpts from the evidence were quoted:
Q. Tell us, Jim, would you be prepared to live in an auxiliary hospital?
A. Never.
Q. Would you elaborate on that?
A. Well there is just no way that I would go into an auxiliary hospital that is—I don't know, I think that is one step into a grave, that is all it is, too many old folks that have nothing to do but remi­nisce, you know, I don't know, but just from what I have heard of auxiliary hospitals.
Q. Well how about other disabled people, do you have any difficulty getting along with them, would you be prepared to live with them, say if they were even younger?
A. My age?
Q. Yes.
A. With my same disability?
Q. Yes, if you were in some place with people that have disabled problems?
A. No, because it is the same thing, people get into a state of depression and they throw it on the group, like even now in the hospital like the way it is now there is a group of younger people and, you know, even friction can be created amongst us because of one person's bad day kind of thing, and I wouldn't want to live with other disabled persons, not at all.
I am hesitant to enter upon a detailed analysis of the reasons advanced by the Appellate Division for its decision, but in view of the importance of the matters raised in this litigation, not only for the appellant Andrews but for others in a similar plight, I do not think any other course is open.
Following the passage from the evidence of Andrews which I have quoted, Chief Justice McGillivray said:
In having a home of his own, it is stated that Andrews needs at least 20 hours a day care. He has to be turned at night every two hours, he has to have constant attention, and it is on this footing that two orderlies and a housekeeper and the cost of operating a three-bedroom home are advanced as being reasonable costs. Now, while the proposition that to the extent that money can do it, a plaintiff should be put into the position he would have been in, but for the accident, this does not mean that the plaintiff does not have to be reasonable and mitigate damage.
With respect, I agree that a plaintiff must be reasonable in making a claim. I do not believe that the doctrine of mitigation of damages which might be applicable, for example, in an action for conver­sion of goods, has any place in a personal injury claim. In assessing damages in claims arising out of personal injuries, the ordinary common law principles apply. The basic principle was stated by. Viscount Dunedin in Admiralty Commissioners v. S.S. Susquehanna[3], at p. 661 (cited with approval in West & Son Ltd. v. Shephard[4], at p. 345) in these words:
... the common law says that the damages due either for breach of contract or for tort are damages which, so far as money can compensate, will give the injured party reparation for the wrongful act .. .
The principle was phrased differently by Lord Dunedin in the earlier case of Admiralty Commissioners v. S.S. Valeria[5], at p. 248, but to the same effect:
… in calculating damages you are to consider what is the pecuniary sum which will make good to the sufferer, so far as money can do, the loss which he has suffered as the natural result of the wrong done to him.
The principle that compensation should be full for pecuniary loss is well established. See McGre­gor on Damages, 13 ed., at p. 738:
The plaintiff can recover, subject to the rules of remote­ness and mitigation, full compensation for the pecuniary loss he has suffered. This is today a clear principle of law.
To the same effect, Kemp & Kemp, Quantum of Damages, vol. 1, 3rd ed., at p. 4: "The person suffering the damage is entitled to full compensa­tion for the financial loss suffered." This broad principle was propounded by Lord Blackburn at an early date in Livingstone v. Rawyards Coal Company[6], at p. 39, in these words:
I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.
In theory a claim for the cost of future care is a pecuniary claim for the amount which may reasonably be expected to be expended in putting the injured party in the position he would have been in if he had not sustained the injury. Obviously, a plaintiff who has been gravely and permanently impaired can never be put in the position he would have been in if the tort had not been committed. To this extent, restitutio in integrum is not possi­ble. Money is a barren substitute for health and personal happiness, but to the exent [sic] within reason that money can be used to sustain or improve the mental or physical health of the injured person it may properly form part of a claim.
Contrary to the view expressed in the Appellate Division of Alberta, there is no duty to mitigate, in the sense of being forced to accept less than real loss. There is a duty to be reasonable. There cannot be "complete" or "perfect" compensation. An award must be moderate and fair to both parties. Clearly, compensation must not be determined on the basis of sympathy, or compassion for the plight of the injured person. What is being sought is compensation, not retribution. But, in a case like the present, where both Courts have favoured a home environment, "reasonable" means reasonableness in what is to be provided in that home environment. It does not mean that Andrews must languish in an institution which on all evidence is inappropriate for him.
The reasons for judgment of the Appellate Divi­sion embodied three observations which are worthy of brief comment. The first: "It is the choice of the Respondent to live in a home of his own, and from the point of view of advancing a claim for damages, it is a most salutary choice, because it is vastly the most expensive." I am not entirely cer­tain as to what is meant by this observation. If the import is that the appellant claimed a home life for the sole purpose of inflating his damage claim, then I think the implication is both unfair and unsupported by evidence. There is no doubt upon the medical and other evidence that a home envi­ronment would be salutary to the health of the appellant and productive of good effects. It cannot be unreasonable for a person to want to live in a home of his own.
The next observation:
Secondly, it should be observed that in many cases, particularly in Alberta, where damages have been awarded, the persons injured were going to live with their families. Here, the evidence (in spite of the fact that the Respondent's mother advanced a claim for $237.00 which represented a towing charge for the motor cycle and parking, taxis and bus fare expended on visits to her son in the Hospital for approximately a nine-month period prior to the issue of the Statement of Claim) is that the Respondent and his mother were not close before the accident, and matters proceeded on the footing that the mother's natural love and affection should have no part in Andrews' future. Again, this situation is the most expensive from the point of view of the Respondent.
The evidence showed that the mother of the appellant James Andrews was living alone, in a second-floor apartment and that relations between Andrews and his mother were strained at times. This should have no bearing in minimizing Andrews' damages. Even if his mother had been able to look after Andrews in her own home, there is now ample authority for saying that dedicated wives or mothers who choose to devote their lives to looking after infirm husbands or sons are not expected to do so on a gratuitous basis. The second observation is irrelevant.
The third observation was in these words:
Thirdly, it should be observed that the learned trial judge has referred with approval to the English authori­ties which held that full compensation for pecuniary loss must be given. It does not, however, follow that every conceivable expense which a plaintiff may conjure up is a pecuniary loss. On the evidence, then, should this Court consider that Andrews should live in a home of his own for the next 45 years at the expense of the Appellant?
I agree that a plaintiff cannot "conjure up" "every conceivable expense." I do not think that a request for home care falls under that rubric.
Each of the three observations seems to look at the matter solely from the point of view of the respondents and the expense to them. An award must be fair to both parties but the ability of the defendant to pay has never been regarded as a relevant consideration in the assessment of damages at common law. The focus should be on the injuries of the innocent party. Fairness to the other party is achieved by assuring that the claims raised against him are legitimate and justifiable.
The Appellate Division relied upon Cunningham v. Harrison[7]. In that case, as a result of an acci­dent, the plaintiff was permanently paralyzed in his body and all four limbs. The trial judge found that the plaintiff was a self-opinionated person who should, if possible, live in some dwelling of his own where he would be looked after by a housekeeper and the persons who did the nursing. The Court of Appeal held that the plaintiff's enti­tlement to reasonable expenses for nursing and accommodation appropriate to a normal person should not be increased by reason of his exceptional personality. The Court of Appeal in reducing the award from £72,616 to £59,316 took into account three factors: (i) the difficulty of obtain­ing a housekeeper and nurses; (ii) that ground floor flats specially designed for handicapped persons were being built in the Borough; (iii) that the plaintiff might accept the aid of statutory and voluntary organizations at much less cost. None of these factors is significant in the present case. Although it reduced the award, the Court never­theless affirmed that the award included provision for a housekeeper and nursing services and also for extra accommodation. The case does not stand for the proposition that though home care is better, it will not be provided because the cost is excessive. In the present case, the Appellate Division asked: "If Andrews does have a home of his own, however, should he not so locate that orderly service from existing hospitals could be available to him at night and in the daytime for his hygienic and getting-up periods? Is it to be assumed that in a province such as Alberta, orderly services could not be given outside the four walls of an institution if the subject of the service is a nearby resident?" The respondents did not raise the possibility about which the Court speculated. There was no evi­dence as to the feasibility of such a proposal, no evidence as to the availability or cost of outpatient care. With respect to Andrews' disinclination to live in an institution, the Court commented: "He might equally say that he would not live in Alberta, as he did not wish to face old friends, or for any other reasons, and that he wished to live in Switzerland or the Bahamas." Andrews is not asking for a life in Europe or in the Carribean. He asks that he be permitted to continue to live in Alberta and to see his old friends, but in his own home or apartment, not in an institution.
The Court then expressed the view that the standard accepted by the trial judge was the equivalent of supplying a private hospital. The phrase "private hospital" is both pejorative and misleading. It suggests an extravagant standard of care. The standard sought by the appellant is simply practical nursing in the home. The amount Andrews is seeking is, without question, very sub­stantial, but essentially it means providing two orderlies and a housekeeper. The amount is large because the victim is young and because life is long. He has forty-five years ahead. That is a long time.
In reducing the monthly amount to $1,000, the Appellate Division purported to apply a "final test" which was expressed in terms of the expenses that reasonably-minded people would incur, assuming sufficient means to bear such expense. It seems to me difficult to conceive of any reason­ably-minded person of ample means who would not be ready to incur the expense of home care, rather than institutional care, for himself or for someone in the condition of Andrews for whom he was responsible. No other conclusion is open upon the evidence adduced in this case. If the test enunciated by the Appellate Division is simply a plea for moderation then, of course, no one would question it. If the test was intended to suggest that reasonably-minded people would refuse to bear the expense of home care, there is simply no evidence to support that conclusion.
The Appellate Division, seeking to give some meaning to the test, said that it should be open to consider "standards of society as a whole as they presently exist." As instances of such standards the Court selected the daily allowances provided under The Workmen's Compensation Act, 1973 (Alta.), c. 87, s. 56, and the federal Pension Act, R.S.C. 1970, c. P-7, s. 28. The standard of care expected in our society in physical injury cases is an elusive concept. What a legislature sees fit to provide in the cases of veterans and in the cases of injured workers and the elderly is only of marginal assistance. The standard to be applied to Andrews is not merely "provision", but "compensation": i.e. what is the proper compensation for a person who would have been able to care for himself and live in a home environment if he had not been injured? The answer must surely be home care. If there were severe mental impairment, or in the case of an immobile quadriplegic, the results might well be different; but where the victim is mobile and still in full control of his mental facilities, as Andrews is, it cannot be said that institutionaliza­tion in an auxiliary hospital represents proper compensation for his loss. Justice requires something better.
Other points raised by the Appellate Division in support of its reversal of the trial judge, may be briefly noted: (i) "It seems to me probable that there will be, at Government expense, people employed to look after quadriplegics. In the United States, there are now a few institutions which have special apartments as part of the hospi­tal setting, where patients can receive attention and, at the same time, have privacy." There is no evidence that the Government of Alberta at present has any plans to provide special care or institutions for quadriplegics. Any such possibility is speculation. (ii) "Will the Respondent, in fact, operate a home of his own?" The Court expressed the fear that Andrews would take the award, then go into an auxiliary hospital and have the public pay. It is not for the Court to conjecture upon how a plaintiff will spend the amount awarded to him. There is always the possibility that the victim will not invest his award wisely but will dissipate it. That is not something which ought to be allowed to affect a consideration of the proper basis of compensation within a fault-based system. The plaintiff is free to do with that sum of money as he likes. Financial advice is readily available. He has the flexibility to plan his life and to plan for contingencies. The preference of our law to date has been to leave this flexibility in the plaintiffs hands: see Fleming, "Damages: Capital or Rent?" (1969), 19 U. of Toronto L.J. 295. Save for infants and the mentally incompetent, the courts have no power to control the expenditure of the award. There is nothing to show that the dangers the Appellate Division envisaged have any basis in fact.
In its conclusion, the Appellate Division held that the damages awarded by the trial judge were "unreasonably and unrealistically high" and an award which would result in the appellant receiv­ing approximately $1,000 a month for cost of care would be entirely adequate and would constitute a generous award. The Appellate Division further reduced the award by 30 per cent for potential contingencies. Why $1,000? The main issue at trial was the choice between home care and insti­tutional care. There is no question but that Andrews could be taken care of in an auxiliary hospital, but both Courts below concluded that home care was