Diane Teno, a four-and-a-half-year-old girl, crossed a street with her six-year-old brother (having first obtained permission and money from her mother, Yvonne Teno) to make a purchase from an ice cream truck owned by J.B. Jackson Limited and operated by Stuart Galloway. The children were served at a service window of the truck on the curbside. Diane was served first and while her brother was being served she 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 Wallace Arnold and driven by Brian Arnold. As a result of the injuries sustained by Diane her mobility was seriously lessened, although technically she was not paralysed, and she suffered a considerable degree of mental impairment.
The trial judge gave judgment against the four defendants apportioning the negligence between them: 1/3 against the Arnolds; 1/3 against Jackson and Galloway, and 1/3 against Jackson alone. The Court of Appeal varied the apportionment of negligence to 1/4 for the Arnolds, 1/4 for Jackson, 1/4 for Galloway, and 1/4 for Yvonne Teno, the mother. The trial judge assessed the total damages of Diane 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.
- What is the appropriate method for determining the prospective loss of future earnings of a child?
Appeal allowed; damages fixed at $540,000.
The lower court had decided to use the yearly salary of the little girl's mother ($10,000/year) in the absence of any other guide. The court held that this cannot be used because they cannot rely merely upon speculation. They say that an award of $5,000 yearly would be too low as it would place her below the poverty line. As a result they split the difference and award lost earnings of $7,500/year and use a discount rate of 7% in assessing the total.