Arnold v. Teno

Arnold v. Teno
Collection
Supreme Court Judgments
Date
1978-01-19
Report
[1978] 2 SCR 287
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
Ontario
Subjects
Torts
Decision Content
Supreme Court of Canada
Arnold v. Teno, [1978] 2 S.C.R. 287
Date: 1978-01-19
Wallace Arnold and Brian Arnold (Defendants) Appellants;
and
Diane Marie Teno, an Infant by her Next Friend Orville Teno, the Said Orville Teno and Yvonne Ten (Plaintiffs) Respondents;
and
J.B. Jackson Limited and Stuart Galloway (Defendants).
J.B. Jackson Limited and Stuart Galloway (Defendants) Appellants;
and
Diane Marie Teno, an Infant by her Next Friend Orville Teno, the Said Orville Teno and Yvonne Teno (Plaintiffs) Respondents;
and
Wallace Arnold and Brian Arnold (Defendants);
and
Yvonne Teno in her Capacity as Defendant to a Claim for Indemnity (Plaintiff) Respondent.
Yvonne Teno and Orville Teno (with Respect to the Claim of the Defendants for Contribution and Indemnity (Plaintiffs) Appellants;
and
Wallace Arnold, Brian Arnold, J.B. Jackson Limited and Stuart Galloway (Defendants) Respondents;
and
Diane Marie Teno, an Infant by her Next Friend Orville Teno and the Said Orville Teno (Plaintiffs) Respondents.
1977: June 16, 17; 1978: January 19. Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Negligence—Mother allowing child to cross street to purchase ice cream from vending truck—Child struck by passing car—Liability of truck owner, operator, car owner and driver—Duty of care—No liability of mother to contribute—Standard of care—Folly.
Damages—Quantum—Young child struck by car while recrossing street after purchasing ice cream from vending truck—Injuries to brain with resultant physical disabilities and mental impairment.
The infant plaintiff, Diane Teno (DT), a four-and-a-half-year-old child, crossed a street with her six-year-old brother (having first obtained permission and money from her mother, Yvonne Teno (YT) to make a purchase from an ice cream vending truck owned by the defendant J.B. Jackson Limited (J) and operated by the defendant Stuart Galloway (G). The children were served at a service window of the truck on the curb (right) side. The infant plaintiff was served first and while G was serving her brother, DT left to return to the opposite side of the street. After passing around the front of the truck, she was struck by a car owned by the defendant Wallace Arnold (WA) and driven by the defendant Brian Arnold (BA). The car had been approaching from the rear but was not seen by G through his rear windows as, at the time, he was reaching into the freezer to fill the order of DT’s brother. As a result of the injuries sustained by DT, her mobility was seriously lessened although technically she was not paralyzed, and she suffered a considerable degree of mental impairment.
The trial judge gave judgment against the four defendants apportioning the negligence between them in the following percentages: one-third against the defendants BA and WA; one-third against the defendants J and G, and one-third against the defendant J. The Court of Appeal varied the apportionment of negligence as follows: BA and WA 25 per cent; J 25 per cent; G 25 per cent and YT 25 per cent.
As to damages, the trial judge assessed the total damages of DT at $950,000 divided into two parts: $200,000 for non-pecuniary damages and $750,000 for pecuniary damages. The Court of Appeal reduced the award for pecuniary general damages by $75,000, but otherwise did not interfere with the assessment of damages at trial.
On appeal to this Court, the defendants J and G appealed both against the judgment of the Court of Appeal as to their liability and as to the quantum of damages assessed by the Court of Appeal. The defendants WA and BA, on the other hand, appealed only against the quantum of damages awarded by the Court of Appeal and resisted the appeal of J and G as to the issue of their liability. The original plaintiffs DT and her parents OT and YT, as respondents, resisted the appeals both as to liability and quantum of damages.
Held: The appeal of J and G as to liability should be dismissed; the appeal of OT and YT against the finding by the Court of Appeal of contributory negligence on the part of YT should be allowed, de Grandpré J. dissenting; the appeal of the defendants as to the quantum of damages recoverable by the infant plaintiff should be allowed and the damages to her fixed at $540,000. The award to the plaintiff OT of special damages against the defendants in the sum of $14,979.62, of which $7,500 is to be held in trust for his wife YT, should be confirmed. As between themselves, the defendants J and G and the defendants WA and BA should be liable for 50 per cent of the damages awarded.
Per Laskin C.J. and Judson, Spence and Dickson JJ.:
I Liability:
The design of the ice cream truck, its appearance, and the appearance of the products dispensed were all carefully calculated to attract small children to purchase the wares dispensed from that vehicle. In these circumstances, so soon as the defendants J and G put the truck in operation on the streets, they then put themselves in such a relationship with their child patrons that they became the neighbours of those children and in the words of Lord Atkin in Donoghue v. Stevenson, “must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”. It was inevitable that when the company attracted the patronage of young children, on the evidence found to be so young that they were of preschool age with little ability to comprehend danger and none to read a warning sign on the side of the truck, then fail to take proper steps to see that these children were not subjected to the gravest danger of traffic accidents was only to fail to do what anyone with the slightest common sense would have done. If J could not carry on its business profitably and safely without a second attendant in the truck then the company should not have been carrying on business in that fashion.
There was also negligence on the part of G and his negligence became the further responsibility of his employer. Had G not committed any other act of negligence, his failure to take the slightest precaution of looking through his rear window in order to protect his little customers would have been enough to attach liability to him. There were, however, other acts of negligence. Having earlier realized that these children might be injured by a passing vehicle, not to warn them or either one of them before they started to return across the boulevard of the danger which could arise from other cars was negligence. In fact, the permitting of the children to cross the street at all in order to purchase might well be considered negligent. That danger had been realized and in a manual which it was said applied to an earlier vehicle the operators were warned not to permit children to cross the street, and that warning was repeated for children old enough to read with a sign on the left side of the truck.
II As to liability of YT to contribute:
The liability of the parent to contribute himself must be considered in view of the accepted standard of care by parents generally in the community. Here there was a mother of four young children who was speaking to her husband on the telephone and was interrupted by the two youngest crying for money to buy ice cream confections to be supplied by the defendant J from a vehicle designed to attract if not entice young children. The children had been used to buying confections from the same kind of dealer, if not the same dealer, previously. The children had both received very strong instructions as to how they should behave in reference to crossing the street and, in fact, had crossed the street for that very purpose on other occasions. The mother specifically reminded the children on this very occasion to “watch out for cars”. It could not be said that that mother who permitted her children to cross a quiet residential street to buy wares from the ice cream truck as the same children and other children in the neighbourhood had been accustomed to doing could be found to be contributorily negligent.
The circumstances refuted the submission that to refuse contribution against YT would be to put a higher standard of care of this infant upon J and G than on her own mother. YT and the other mothers in the immediate community were entitled to rely on the vendor of the ice cream from the vehicle in question to exercise some care toward the children which it attracted. III Apportionment of liability:
The negligent driving of BA was a major contributory cause of the accident and the negligent operation of the business of J and the negligent conduct of its driver G taken together was a like major contributory cause. All four defendants were liable to the plaintiffs for the full amount of their damages but as between themselves WA and BA should contribute 50 per cent to their co-defendants and J and G should likewise contribute 50 per cent to those first named defendants.
IV Quantum of damages:
All of the evidence supported the conclusion of the trial judge that the infant plaintiff could only receive the proper care to which she is entitled under the regime advanced by the plaintiffs witnesses, that is, in her own apartment with the attendants which her care requires. The provision of such an appropriate standard of care must be the prime purpose in the awarding of damages in personal injury cases such as the present. Therefore, the view of the trial judge as confirmed in the Court of Appeal that damages will have to provide for the care of the infant plaintiff in the sum of $21,000 per year until she reaches the age of 19 years and in the sum of $27,000 per year thereafter was adopted.
The problem of finding what amount of damages should be directed by the judgment in order to assure the infant plaintiff the provision of those sums of money annually for the rest of her natural life brought up at once the question of the discount rate which should be applied to find that present sum and this involved the consideration of income tax, of present day investment rates, and of future inflation.
The deductions provided for in ss. 81(1)(g.1) and 110(1)(c)(iv.1) of the Income Tax Act reduce the problem of income tax on the income from the portion of the award devoted to the care of the infant plaintiff to a great deal less significant proportion. In view of future uncertainty as to the rate specified in s. 110(1)(c)(iv.1) and of the fact that future rates of income tax, certainly those applicable in particular circumstances, are only matters of speculation, there would be no justification in assessing an amount to cover that possible income tax.
As to the appropriate discount rate, the figure of 7 per cent was adopted as being the best compromise to, at the same time, recognize the present very high rates of investment income and the probability of future inflation.
The calculation by the Court below that the award should be increased by an amount of $35,000 to provide a fund for the payment of a financial management fee was accepted.
An award of some sum must be made for loss of future earnings but there was no guidance whatsoever in the fixation of that sum. It was found equitable to determine that the infant plaintiff would, at least, have earned $7,500 per year for her business life. As held by this Court in The Queen v. Jennings, [1966] S.C.R. 532, there should be no deduction for income tax from the amount allowed by loss of future income.
A contingency deduction of 20 per cent should be allowed from the $7,500 to make a net annual loss of income of $6,000 and the present value of payments of $6,000 should only be calculated from the time the infant plaintiff would have reached 20 years of age until she would have reached the normal retirement age of 65 years. That present value should be calculated at the same discount rate of 7 per cent as the present value of the amount provided for future care.
As to non-pecuniary damages, while it is impossible to compensate for the losses of the various elements involved in such damages, it is reasonable, none the less, to make an award then gauge that award by attempting to set up a fund from which the plaintiff may draw, not to compensate for those losses, but, to provide some substitute for those amenities.
There should be uniformity, always allowing flexibility to meet each differing individual case, in awards for non-pecuniary damages. Perhaps one should say there must be upper limits with awards lower in some cases and some higher in exceptional cases. This Court has found $100,000 as being the upper limit in both Andrews and Thornton. Those were both cases of young men turned by the accidents into quadriplegics but whose mental faculties were unimpaired and who, by use of wheel chairs and appropriate automotive vehicles, will be able to get about amongst their fellowmen.
The infant plaintiff DT, although not completely paralyzed, is so disabled that her very limited ability to walk is accomplished in such an awkward fashion as to cause her continual embarrassment. Her left arm is very clumsy, her right is useless because of spastic weakness, her speech is impaired and nearly unintelligible and her mental impairment has reduced her to the “dull normal range”. Such a condition justifies a very generous award to permit the infant plaintiff to find some way by which her life may be made a little more tolerable. Moreover, the infant plaintiff in the present appeal has a life expectancy of 66.9 years while Andrews has a life expectancy of only 45 years and Thornton only 49 years. Therefore, despite the fact that the infant plaintiff, unlike Andrews and Thornton, will not need the frequent actual treatment required by the latter such as turning in bed every two hours, the other circumstances mentioned justify the allowance of the same sum of $100,000 to her under the heading of non-pecuniary damages.
Per Martland, Ritchie, Pigeon and Beetz JJ.: All defendants should be held liable and, as between them, there should be an even division between WA and BA on one hand and J and G on the other. Also, there should be no contribution by YT. The evidence fully supported the conclusion of the trial judge that the parents of these children did not depart from the generally accepted standard of care. The same should be said of the defendant J, the ice cream vending company whose truck was in charge of the defendant G. Although there was no reason to interfere with the concurrent findings of negligence against the latter, the finding that J was liable for the accident, not only by reason of G’s negligence but also by reason of the way in which its vending business was conducted, could not be accepted. The general opinion among municipal authorities was that a one-man operation was reasonable. The parents of the children as well so considered it by giving their children money to buy ice cream from the vending truck rather than objecting to the operation. The parents were entitled to expect that the truck operator would not fail to watch for oncoming traffic and to warn the children against imprudently crossing the street in front of the truck. The parents were also entitled to expect that automobile drivers would not pass such trucks without taking the special precautions called for. It could not be accepted that what the parents considered reasonably safe, should be considered a “folly” on the part of the ice cream vending company.
Per de Grandpré J., dissenting in part: While inclining to the view that there was no negligence on the part of J and G, the conclusion was reluctantly reached, because of the concurrent findings in the Courts below, that they cannot be considered blameless. However, the views of Pigeon J. were shared that the liability of J is vicarious only.
It could not be accepted that the mother had committed no negligence. If an ice cream merchant is responsible to his young customer because his employee failed to take the reasonable care owed to a child who had become his “neighbour”, the mother, in the circumstances of this case, cannot be said to be in a better position. The duty of care resting on a parent is a paramount one and does not come to an end because a third party comes into the picture and is found to have been negligent for having allowed the child to cross the street and for having failed to warn that child of an approaching car. The mother who had just given to her two young children the money to buy ice cream and who knew that the truck was on the other side of the boulevard cannot be said to be under a lesser duty than that resting on the merchant’s employee.
[Bressington v. Commissioner for Railways (1947), 75 C.L.R. 339, distinguished; Donoghue v. Stevenson, [1932] A.C. 562; Gambino v. Dileo, [1971] 2 O.R. 131; Beckerson v. Dougherty, [1953] O.R. 303; Cowle v. Filion, [1956] O.W.N. 881; McCallion v. Dodd, [1966] N.Z.L.R. 710; The Queen v. Jennings, [1966] S.C.R. 532; Mallett v. McMonagle, [1970] A.C. 166; Taylor v. O’Connor, [1971] A.C. 115; Taylor v. Bristol Omnibus Co., [1975] 2 All E.R. 1107; Warren v. King, [1963] 3 All E.R. 521; Eaton v. Moore, [1951] S.C.R. 470; Cavanagh v. Ulster Weaving Co., [1960] A.C. 145, referred to.]
APPEALS from a judgment of the Court of Appeal for Ontario[1], allowing in part an appeal from a judgment of Keith J. in an action for damages for personal injuries. Appeal of defendants J.B. Jackson Limited and Stuart Galloway as to liability dismissed; appeal of plaintiffs Orville Teno arid Yvonne Teno against finding by Court of Appeal of contributory negligence on part of Yvonne Teno allowed, de Grandpré J. dissenting; appeal by all defendants as to quantum of damages allowed.
Appeal re damages:
B. O’Brien, Q.C., for the appellants, J.B. Jackson Limited and Stuart Galloway.
R.E. Barnes, Q.C., and J.A. Bear, for the appellants, Wallace and Brian Arnold.
E. Cherniak, Q.C., M. Wunder, Q.C., and Ms. M.A. Sanderson, for the respondents, Diane, Orville and Yvonne Teno. Appeal re liability:
B. O’Brien, Q.C., for the appellants, J.B. Jackson Limited and Stuart Galloway.
B.A. Percival, Q.C., and M.S. Kaczkowski, for the appellants Yvonne and Orville Teno.
E. Cherniak, Q.C., M. Wunder, Q.C., and Ms. M.A. Sanderson, for the respondents, Diane, Orville and Yvonne Teno.
R.E. Barnes, Q.C., and J.A. Bear, for the respondents, Wallace and Brian Arnold.
The judgment of Laskin C.J. and Judson, Spence and Dickson JJ. was delivered by
SPENCE J.—These are my reasons for judgment in these appeals. Taken together, these three appeals are grouped as one of a series of four cases in which this Court was concerned with the quantum of damages to be awarded for very serious personal injuries. In two, Andrews v. Grand and Toy Limited et al., and Thornton v. Board of School Trustees et al., the plaintiffs were young men who became quadriplegic as a result of their injuries although their mental capacities were unaffected while in the present appeal the plaintiffs mobility was very seriously lessened although technically she was not paralyzed and she suffered a very considerable degree of mental impairment. The fourth appeal was in a claim under The Fatal Accidents Act. In all four, however, very similar problems arose and the Court has determined to pronounce its judgments on all four at the same time. The very serious problems in the assessment of damages have been engaging the attention of the members of the Court for some months. We have received much assistance from each other. I am most grateful for the opportunity to peruse and consider the reasons of my brother Dickson in Andrews and in Thornton and I have adopted much of his reasoning herein.
I turn now to the three appeals considered in these reasons. They are three appeals all taken with leave of this Court. The action was originally taken by Diane Marie Teno, an infant, by her next friend Orville Teno, and the said Orville Teno and Yvonne Teno against four defendants: J.B. Jack- son Limited, Stuart Galloway, Wallace Arnold and Brian Arnold.
By their statement of defence, the defendants J.B. Jackson Limited and Stuart Galloway claimed contribution from the plaintiffs Orville Teno and Yvonne Teno and the defendants Wallace Arnold and Brian Arnold took a like course in the statement of defence filed on their behalf.
Keith J., in very detailed and most carefully considered reasons for judgment, gave judgment against the four defendants apportioning the negligence between them in the following percentages:
1/3 against the defendants Brian Arnold and Wallace Arnold,
1/3 against the defendants J.B. Jackson Limited and Stuart Galloway, and
1/3 against the defendant J.B. Jackson Limited.
Keith J. refused to order any contribution to be made by the plaintiffs Orville Teno and Yvonne Teno. The Court of Appeal varied the apportionment of negligence as follows:
Brian Arnold and Wallace Arnold 25%
J.B. Jackson Limited 25%
Stuart Galloway 25%
Yvonne Teno 25%
I should add that Thomas J. Lipton Limited had been named originally as a party defendant but the plaintiffs discontinued against that party at trial and the action was dismissed as against it. I shall refer later to the quantum of damages.
The circumstances giving rise to the action are somewhat complicated. Rather than set them out in detail, I shall refer to the judgment of the Court of Appeal for Ontario, now reported as Teno et al. v. Arnold et al.[2] Zuber J.A. giving judgment for the Court, at pp. 587-590, set those facts out and, except where I shall be required to refer further to facts or evidence, I adopt them for the purpose of these reasons. In their appeal to this Court, the defendants J.B. Jackson Limited and Stuart Galloway appealed both against the judgment of the Court of Appeal as to their liability and as to the quantum of damages assessed by the Court of Appeal for Ontario. The defendants Brian Arnold and Wallace Arnold, on the other hand, appealed only against the quantum of damages awarded by the Court of Appeal for Ontario and resisted the appeal of J.B. Jackson Limited and Stuart Galloway as to the issue of their liability. The original plaintiffs Diane Teno and Orville Teno and Yvonne Teno, as respondents, resisted the appeals both as to liability and quantum of damages and the original plaintiff Yvonne Teno appeals from that portion of the judgment of the Court of Appeal granting contribution against her to the extent of 25 per cent.
I
AS TO LIABILITY
As I have said, Keith J. at trial found liability against all defendants. As to the defendant Brian Arnold, the driver of the vehicle which struck the infant Diane Teno, Keith J. cited the provisions of s. 106(1) of The Highway Traffic Act, R.S.O. 1960, c. 172, which was in effect at the date of the accident and which now appears as R.S.O. 1970, c. 202, s. 133(1). It reads:
133. (1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner or driver of the motor vehicle is upon the owner or driver.
After a detailed examination of the evidence; Keith J. expressed his conclusion as follows:
He has failed to satisfy me that he was concentrating as he ought, on the potential traffic situation in front of him as he overtook and passed the ice cream truck. Had he been driving at a proper speed he could and ought to have seen the child in time to have avoided striking her.
In the result Brian Arnold must be held liable to the plaintiffs for any damages suffered by them. Keith J., of course, held Wallace Arnold liable as the owner of the vehicle under the provisions of the then s. 105(1) of The Highway Traffic Act, nows. 132(1) of R.S.O. 1970, c. 202.
The judgment, in so far as the liability of those two defendants, was confirmed in the Court of Appeal. As I have said, they did not contest the said judgment as to liability in this Court.
Keith J. commenced his consideration of the liability of the defendants J.B. Jackson Limited and Stuart Galloway by again referring to the provisions of the onus s. 133(1) which I have quoted above and after examining Godfrey et al. v. Gadbois et al.[3], came to the conclusion that the onus section applied to those defendants.
Much argument in both the Court of Appeal and in this Court was directed toward the correctness of that decision. I am of the opinion that the question is quite academic as there is no doubt that the findings of fact made by Keith J. and by the Court of Appeal, with which findings, as I shall show, I am in agreement, make it unnecessary to consider any question of the application of the onus.
I adopt the view of Lord Dunedin in Robins v. National Trust Co.[4], at p. 520:
But onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no such conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered.
The approach taken by both Keith J. at trial and by the Court of Appeal was that the renowned speech by Lord Atkin in Donoghue v. Stevenson[5], at p. 580, set out the duty which lay upon J.B. Jackson Limited and the driver of the ice cream truck Stuart Galloway. Although those words have been oft cited, I repeat them:
At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of “culpa”, is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. This appears to me to be the doctrine of Heaven v. Pender, 11 Q.B.D. 503, 509, as laid down by Lord Esher (then Brett M.R.) when it is limited by the notion of proximity introduced by Lord Esher himself and A.L. Smith L.J. in Le Lievre v. Gould, [1893] 1 Q.B. 491, 497, 504. Lord Esher says:
That case established that, under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.
So A.L.Smith L.J.:
The decision of Heaven v. Pender, 11 Q.B.D. 503, 509, was founded upon the principle, that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other.
I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act.
Counsel for the appellants Jackson and Galloway submit that to find his clients liable represented a drastic and unreasonable change in the law in that that company and its servant Galloway were carrying on a legal and an ordinary business and that the negligence charged against them in the lower Courts was the negligence of omission submitting that a defendant should not be found guilty because of an omission in the conduct of his business unless it was shown that either the thing which was not done was commonly done by other persons in like circumstances or that it was a thing which was so obviously wanted that it would be folly for anyone to neglect to do it. In the circumstances of this case, the defendant J.B. Jackson Limited caused to be designed for it a particular form of vehicle for the purpose of selling ice cream products on the streets. The design of the vehicle, its appearance, and the appearance of the products dispensed were all carefully calculated to attract small children to purchase the wares dispensed from that vehicle. The driver of the vehicle was instructed that he should dispense those wares from the vehicle. Printed in red letters along the left hand side of the vehicle were the words: WAIT ON CURB—I’LL COME TO YOU.
Evidence was given by John R. Jackson, who, at the time of the accident giving rise to this action, had been president of J.B. Jackson Limited, that a manual had been issued to operators which included most specifically directions to require the operator to carry out that course and never permit children to cross the street to the ice cream truck, but, he continued, that manual had application particularly to a smaller and differently designed truck and it was not practicable from a business economics standpoint to adopt such a course in the business operation carried out by the truck used at the time of the accident. Galloway gave evidence that upon reading the manual and looking at the truck, he also concluded that such a course was not practicable and that he was informed by a supervi- sor on his instruction, which took only part of one day, that certain portions of the manual were inapplicable.
The operators, such as Galloway, were given no specific instructions as to the handling of young children.
A slight consideration had been given to the suggestion, made by municipal authorities in another city, that the truck should be manned by a second person so that some care could be given to small children who were its constant patrons but it was not adopted on the ground of economic infeasibility.
In dealing with the liability of J.B. Jackson Limited, Keith J. said:
In all these circumstances, I have no doubt that the defendant J.B. Jackson Limited quite apart from any vicarious liability, owed a duty of care to customers too young to be held responsible for their actions and that they were in breach of such duty on the occasion of the accident in question. If, as it may well have been, uneconomic to employ a second person to travel with the truck and be responsible for the safety of young children customers, then it was at the very least their duty to instruct their driver‑salesman to discharge this responsibility. If even this couldn’t be done economically, then they shouldn’t have had their trucks on the streets.
Zuber J.A. in giving judgment for the Court of Appeal for Ontario upon the same topic after quoting as I have from Donoghue v. Stevenson, supra, and then referring to Home Office v. Dorset Yacht Co. Ltd.[6] and Jordan House Ltd. v. Menow & Honsberger[7], continued:
In considering how these principles may be applied to this case, some further comment with respect to factual matters is required. The defendant Jackson and its employee, Galloway, were in the business of selling ice cream largely to children. To accomplish this end, children were deliberately drawn into the street by the use of an attractive truck and ringing bells. The defendants were aware that many of the children so attracted were obliged to cross and re-cross the roadway and also that many of the children were too young to take proper care for their own safety. The evidence amply demonstrates (if indeed it is necessary) that the defendants knew of the danger inherent of this type of enterprise.
When Galloway and Jackson induced the Teno children into the street, they assumed a duty to take reasonable care of them. It is perhaps ironic that while others concerned with the safety of children do what they can to dissuade children from running into the street, the purpose of the defendants was to accomplish the opposite. The children induced into the street by the defendants, to use Lord Atkin’s expression, become the neighbours of the defendants.
I am of the opinion that such conclusions by the learned trial judge and by the Court of Appeal for Ontario were perfectly proper applications of the salutary principle so clearly put by Lord Atkin in Donoghue v. Stevenson, supra, and I arrived at a conclusion exactly in accordance with them. As to the objection that these defendants were carrying on a legal and ordinary business, certainly they are entitled to carry on that business but they must carry it on with ordinary regard for the safety of others inevitably, and therefore foreseeably, involved in the defendants’ operation of the business. I am of the opinion that so soon as these defendants put that ice cream truck in operation on the streets of Windsor in the fashion which has been described above, then they put themselves in such a relationship with their child patrons that they became the neighbours of those children and in the words of Lord Atkin, “must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”.
To the objection that what it charged against these defendants is an omission and not a commission and that liability in negligence can only be found in the case of an omission when it is a failure to do what others carrying on a like business ordinarily do or when it is so obviously needed that it would be folly for anyone to fail to so act, my answer is that the latter category exactly fits the actions of the defendant J.B. Jackson Limited. It was inevitable that when the company attracted the patronage of young children, on the evidence found to be so young that they were of pre-school age with little ability to comprehend danger and none to read, then fail to take proper steps to see that these children were not subjected to the gravest danger of traffic accidents was only to fail to do what anyone with the slightest common sense would have done. I agree with the comments made by both the learned trial judge and Zuber J.A. that if the defendant Jackson could not carry on its business profitably and safely without a second attendant in the truck then the company should not have been carrying on the business in that fashion.
Counsel for the appellant cited, inter alia, Bressington v. Commissioner For Railways[8], for the proposition that unless it is shown that it is practicable to provide against a danger it cannot be shown that it is reasonable to do so. The facts in that case are so startlingly different that one must be most careful in drawing any general principle therefrom. They were as follows. A busy railway shunting yard was open only to members of the shunting crew. There the railway cars could move at any time without any warning when shunted by a locomotive from the other end of a line of cars. Two men, without watching, walked a few feet behind a stationary railway car. An impact at the other end of the line of cars drove the last one forward to hit them. It was argued that the accident might have been avoided if there had been placed at the end of each line of railway cars an employee to warn his fellow employees when one of the railway cars might be moved. The mere recital of the facts show how little application they have to a case where, by ringing bells and flashing lights on a truck adorned by cartoons, to attract attention, most desirable confections were sold to very young children.
It is true that the ease with which protection may be afforded is a strong argument that to provide such protection is only reasonable, but surely that principle would not apply to protect those who, for commercial purposes, engage in a business which is intended to and does attract very young children into an area of extreme danger. I would, therefore, confirm the finding of negligence against J.B. Jackson Limited. Both the trial Court and the Court of Appeal for Ontario found that in addition to the negligence of J.B. Jackson Limited its driver Stuart Galloway was also negligent in the course of his employment for which negligence his employer is, of course, responsible in law.
As I have said before, Galloway was extremely untrained. He was an 18 or 19-year-old student (both ages are mentioned in the reasons) who had been working for about six weeks after reading a manual said to be inapplicable at least in part to the vehicle which he operated and who had a part of a day’s instruction by a supervisor. That supervisor seemed mostly concerned not with safety but with efficient merchandising. As Galloway drove south on Academy Drive, he observed to his left on a lawn at the east side of the street two young children who turned out to be the victim and her brother aged, respectively, 4½ years and 6 years plus a month. It was quite evident to Galloway that these children had been attracted by the ice cream truck with its bells and lights and were coming to purchase. Galloway stopped his truck on the west side of Academy Drive against the west curb so that these children had to cross, firstly, the two northbound lanes then the boulevard and then the two southbound lanes to get to the right hand side of his truck where the service window was open awaiting them.
Galloway observed in his rear view mirror, while still seated at the steering wheel, a vehicle approaching from the north so that that vehicle would pass to the left side of his then stopped truck, and he spoke to these two children warning them to stop. The two children stood on the easterly curb of the southbound lanes, that is, at the west side of the boulevard until that car had passed then crossed the southbound lanes and came to his service window.
In the report of the judgment for the Court of Appeal for Ontario to which I have referred above, it is recited how Galloway first served the little girl, Diane Teno, the plaintiff, and then turned to her brother. On Brian Arnold’s evidence, at the moment when Galloway took the latter child’s order and turned to bend down into the freezer and take out the wares which the child had ordered he, Brian Arnold, was proceeding southward on Academy Drive between his friend’s house and the rear of the truck. That distance, on the evidence, was about 350 to 400 feet. Brian Arnold travelled between a minimum of 15 and a maximum of 25 miles per hour and, on his evidence, as he approached the rear of the truck he was travelling about 20 miles per hour so that the latter might be taken as his average speed. At that average speed, it would take him between 11 and 12 seconds to cover this distance from his friend’s house to the ice cream truck. During that whole distance, he would have been plainly visible to Galloway if Galloway had chosen to give the slightest glance through the large glass windows in the rear of his truck. Had he done so, he could n