International Tort Law Week 16 Proof of Negligence

International Tort Law Week 16 – Proof of Negligence & Remoteness of Damage November 29 th, 2010 J. P. Rodrigues

Legal Word for the Week Remoteness in English law is a set of rules in both tort and contract, which limits the amount of compensatory damages for a wrong. In negligence, the test of causation not only requires that the defendant was the cause in fact, but also requires that the loss or damage sustained by the claimant was not too remote.

Recap - What is Damage? Physical injuries and damage to property are apparent and far less problematic. However, mental injuries and economic losses are actionable under more restrictive circumstances. If the injury takes a long time to become apparent, the right of action will only arise at that point.

Recap - What is Damage? This is important because: 1. It avoids flimsy claims, 2. It sets the time period for when the statute of limitations begins to run.

Recap - Causation In order to establish a cause of action in negligence, a major requirement is that the plaintiff must show a causal link between the defendant’s breach of duty and the injury suffered by the plaintiff. Ie: Their injuries would not have occurred if it was not for the defendant breaching their duty of care

Recap - The “But for” Test The first test is whether the alleged factor in the “causation” chain is NECESSARY to complete the set of conditions sufficient to produce the injury in question. This test is universally known as the “But For” test. If it can be proved, on the balance of probabilities, that the plaintiff’s injury would not have occurred WITHOUT (but for) the defendant’s negligent conduct, the causal connection IN FACT is established. (Klar, at 321)

Recap - The Scope of the “But For” Test The “but for” test is not necessarily CONCLUSIVE. The factor in question, beyond passing the “but for” test must scale the additional hurdle of “proximate” or “legal” cause. The “but for” test is thus a NECESSARY but insufficient condition of legal responsibility.

Kaufmann v. T. T. C Facts Defendant appealing judgment that awarded plaintiff in damages for injuries suffered by her after a fall on an escalator in the defendant’s St. Clair subway station Plaintiff stepped upon the escalator, and in front of her were a man and two youths Youths began scuffling and fell back against the man who in turn fell back upon the plaintiff Plaintiff fell upon the escalator steps with these two or three people on top of her Defendant’s appeal allowed

Kaufmann v. T. T. C Reasons There was a total absence of evidence that the man immediately ahead of the plaintiff or the two reckless and irresponsible youths ahead of him were grasping or attempted to grasp the hand rail before or in the course of the scuffle and consequent falling Nor was there any evidence that in the circumstances the plaintiff would not have fallen if her hands had been grasping a rubber oval hand rail

Kaufmann v. T. T. C Ratio The “but-for” causal relation between the alleged negligence and the injury must be made out by the evidence and not left to the conjecture of the jury

Recap -Material Contribution Test Initially, the courts insisted on a doctrine of strict proof of causation. While this doctrine was tenable in cases where a single cause could be attributed to a harm, in other cases where multiple, independent “causes” may bring about a single harm, the “but for” test proved unworkable. In this latter type of cases, it is virtually impossible to prove causation with mathematical precision or even on a balance of probability. In attempting to remedy this defect, the courts devised another test known as the “material contribution test. ”

Recap - The Material Contribution Test Thus, in cases where more than one set of sufficient conditions can account for a single injury, the courts ask the question whether each of the conditions was a substantial factor. For example, if two persons simultaneously approach a leaking gas pipe with lighted candles and the resulting inferno burns down a neighboring house, it would be unwise to apply the “but for” because both alleged tortfeasors may then escape liability. See Walker Estate v. York Finch Gen. Hospital

Walker Estate v. York Finch Gen. Hospital Facts Three plaintiffs sued the Canadian Red Cross Society (C. R. C. S. ) alleging negligence in its donor-screening method in the early 1980 s which resulted in the plaintiffs contracting the HIV virus from transfusions of tainted blood At trial, only two were successful in their claim The trial judge found that even if C. R. C. S. had met the proper standard of care by warning donors, the third plaintiff still would have given blood CA said third plaintiff should also be successful Defendants’ appealed was dismissed

Walker Estate v. York Finch Gen Reasons (Major) The but-for test is unworkable in some situations, particularly where multiple independent causes may bring about a single harm In cases of negligent donor screening, it may be difficult or impossible to prove hypothetically what the donor would have done had he or she been properly screened by the C. R. C. S.

Walker Estate. York Finch Gen The added element of donor conduct in these cases means that the “but-for” test could operate unfairly, highlighting the possibility of leaving legitimate plaintiffs uncompensated Thus the proper test for causation in cases of negligent donor screening is whether the defendant’s negligence “materially contributed” (Athey v. Leonati) to the occurrence of the injury – a material contribution is one that falls outside the de minimis range

The Material Contribution Test In effect, where there are multiple “causes” each independently capable of “causing” the single harm in question, all that the plaintiff is required to prove is that the dft’s negligence “materially contributed” to the injury. Query: if firefighters arrive late and without equipment, would the owner of a burnt down house succeed in an action in negligence against the firefighters?

Recap - Materially Increased Risk Another test now discredited is “did the dft’s negligence “materially increase the risk” of injury to the ptf. The classic case on this test is Mc. Ghee’s case. There, the ptf contracted dermatitis from the dft’s brick yard. dft’s failure to provide washing facilities was held to be negligent but it was unclear whether the provision of washrooms would have prevented ptf’s disease. There was evidence, however, that the absence of washrooms materially increased the risk of the ptf contracting dermatitis.

Mc. Ghee Facts An industrial illness case in which the defendant employer had a pre-existing duty to the plaintiff employee:

Mc. Ghee Decision The majority of the HL held that if the defendant’s negligent act significantly increased the risk of a particular kind of injury and that very injury befell the plaintiff, the defendant would be deemed to be a causer Lord Wilberforce stated that the burden of proof in causation would shift in such circumstances from the plaintiff to the defendant

Mc. Ghee Ratio All activities which unreasonably increase risk of injury are negligent in law even when they have not in fact caused any harm or injury. VERY RADICAL REDEFINITION Burden of Proof shifts to defendant to prove lack of causation as well. The SC in Canada rejected Mc. Ghee in Snell v. Farrell.

Snell v. Farrell Facts Dr. Farrell performed a cataract operation on Mrs. Snell and after injecting the local anaesthetic, he noticed a slight discolouration due to a very small retrobulbar bleed On further examination, he found no other signs of bleeding, and so he proceeded to operate Following surgery, there was blood in the eye, which took nine months to clear The optic nerve atrophied and resulted in blindness in the eye – this could have occurred naturally or been the result of continuing the operation according to expert evidence Defendant’s appeal dismissed

Snell v. Farrell Reasons (Sopinka) Mc. Ghee should NOT be used in Canada Instead the following test should be applied: In many malpractice cases, the facts lie particularly within the knowledge of the defendant In these circumstances, very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary The burden of proof is not shifted, but the hurdle has been lowered for the plaintiff

Multiple Causation There may be several tortious causes responsible for a ptf’s injury. Examples include cases where individual tortious acts insufficient to produce an injury in their respective capacities are nonetheless essential in combination to produce the ultimate injury OR cases where multiple actors combine to produce a greater injury than would have been produced by one actor alone.

Multiple Causation Where two or more acts operating simultaneously are independently capable of causing the injury at bar both actors would be liable. For example, if A and B both fired at C, both A and B would be liable to C. It would be unhelpful to apply the ‘but for’ test in such circumstances because the test would operate to exonerate both tortfeasors. See Cook v. Lewis In cases where dfts operate independently, the ptf has a separate cause of action against each actor. The ptf must plead and prove all elements of negligence against each and every dft.

Multiple Causation However, where the ptf is an additional culpable cause, the reasoning would be different. For example, A and B both approach a room full of gas at the same time, each carrying a lighted candle causing an explosion. (Klar at 330). If A is injured, s/he cannot succeed in negligence against B because A would have been injured by his/her own negligence regardless of B’s own negligence.

Multiple Causation Where successive wrongs produce the same injury, a variety of approaches have been adopted. First, both actors may be treated as jointly responsible for the ptf’s injury. Second, the most recent tort may be construed as having overtaken the first tort for the purposes of assessing damages. Third, the first tortfeasor may be held liable for all of the ptf’s losses. This is the favoured approach in Canada. See Athey v. Leonati

Athey v. Leonati Facts Plaintiff suffered from pre-existing back condition Defendant’s carelessness led to a traffic accident with the plaintiff, resulted in the plaintiff sustaining injuries to his neck and back Plaintiff began an exercise program on advice from his physician, but felt his lower back pop during warm-up stretches and experienced a disk herniation This left him partially disabled, requiring him to quit his job The plaintiff’s appeal was allowed, and he was entitled to recover 100% of damages

Athey v. Leonati Ratio (Major) If a defendant has materially contributed (contribution outside the de minimis range) to single, indivisible injury (along with a nontortious cause), or has made a necessary contribution to that injury, then the defendant is fully liable for the damages flowing from the injury, whether or not there was another cause of the injury.

Nowlan Facts Defendant contractor had been negligent in constructing the plaintiff’s house, which suffered extensive rot due to leaks in the structure Defendant blames the architect’s poor design for not providing for proper ventilation

Nowlan Ratio When there are concurrent torts, breaches of contract or a breach of contract and a concurrent tort both contributing to the same damage, whether or not the damage would have occurred in the absence of either cause, the liability is a joint and several liability and either party causing or contributing to the damage is liable for the whole damage to the plaintiff

Nowlan It is important to distinguish situations in which two or more defendants are held jointly and severally liable as independent tortfeasors, from those in which two or more defendants are held jointly and severally liable as joint tortfeasors Independent tortfeasors – each defendant acts independently of the others Joint tortfeasors – liability of joint tortfeasors stems from the legal relationship between them, rather than from the causal role that they individually played in bringing about the plaintiff’s losses (one party may not have played any causal role in the plaintiff’s injuries); three major situations include: Situations in which two or more parties agree to act in concert to bring about a common end which is illegal, inherently dangerous or one in which negligence can be anticipated

Baker Facts Plaintiff was struck by a motor vehicle Shortly before trial, plaintiff was shot in leg by robber and had to have that leg amputated

Baker Reasons In cases where you have two tortious acts: The 1 st tortfeasor is responsible for all of the plaintiff’s losses that flowed from the first tort The 2 nd tortfeasor is liable only for any additional harm that may have flowed from the second tort Therefore, second tortious claim is not a relevant factor in assessing damages against the first tortfeasor, with a few exceptions Assume plaintiff was killed by the second shot The first tortfeasor would no longer have to compensate for the loss of income for the rest of the plaintiff’s working life Therefore, the general rule when you have two torts – each tortfeasor is responsible for losses that their tort caused; and each tortfeasor takes his victim as he finds him

Proof of Negligence Two kinds: legal and evidentiary burdens of proof Legal burden of proof in a civil action is the burden of proving an issue on the BOP and remains on the same party throughout (generally the plaintiff) Evidentiary burden may shift back and forth as evidence is introduced in a trial – because if plaintiff has made a persuasive case, an absence of evidence to the contrary from the defendant will lead to an inference being made in the plaintiff’s favour

Proof of Negligence Plaintiff is thus subject to two burdens at the outset: Must prove the elements of her case on a balance of probabilities Must immediately adduce sufficient evidence to establish a prima facie case If after the plaintiff has presented her case but before the defendant has presented his, the judge does not believe that the plaintiff’s evidence on its own could possibly support the imposition of liability, a nonsuit will be ordered and the trial ended immediately In most cases plaintiff is able to discharge the evidentiary burden, and then this burden shifts to the defendant to introduce evidence that prevents the trier of fact from concluding that the plaintiff has established her case on a BOP

Wakelin Facts Defendant drove a train on the line which crossed a public footway and struck and killed, the plaintiff’s husband, while he was on the footpath Deceased left the cottage and was never seen again until his body was found the same night on the down line near the crossing There was no evidence as to the circumstances under which he got on to the line Plaintiff’s appealed dismissed

Wakelin Ratio If the plaintiff’s evidence is equally consistent with injury having been caused by plaintiff’s own negligence as by the negligence of the defendants, she has not established a prima facie case and a nonsuit must be ordered

Sindell Facts Defendants manufactured, promoted and marketed DES, a drug which was supposed to have prevented miscarriages, but it may have actually caused cancerous vaginal and cervical growths in the daughters exposed to it before birth, because their mothers took the drug during pregnancy As a result of the DES ingested by her mother, plaintiff developed a malignant bladder tumour which was removed by surgery – she still suffers from adenosis and must constantly be monitored to insure early warning of further malignancy The trial court dismissed the action; this appeal involves only five of the ten defendants named in the original claim – this Court allowed the plaintiff’s appeal

Sindell Reasons Plaintiff asserts that the 5 defendants produced 90% of the DES marketed – if this is established to be the fact at trial, then there is a corresponding likelihood that this comparative handful of producers manufactured the DES which caused plaintiff’s injuries, and only a 10% likelihood that the offending producer would escape liability Court adopts “market share liability” – Each defendant will be held liable for the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the product which caused plaintiff’s Under this approach, each manufacturer’s liability would approximate its responsibility for the injuries caused by its own products

Sindell Comments In Snell v. Farrell, Justice Sopinka said that we do not have market share liability in Canada In the context of litigation against tobacco manufacturers, the B. C. legislature adopted a principle of “liability based on risk contribution” that is similar to “market share liability” However, the B. C. SCC held that this Act as a whole was unconstitutional The B. C. legislature will probably try again in the near future.

Wagon Mound (No. 1) Facts Defendants negligently permitted oil to spill into harbour, and wind and tied carried it under the plaintiff’s wharf Plaintiff’s employees were using welding equipment and some molten metal fell, igniting a rag that was floating upon some debris Burning debris ignited the floating oil, severely damaging the wharf Defendants’ appeal allowed as it was held that it was not reasonably foreseeable that if you spread oil on water, it would ignite

Wagon Mound (No. 1) Reasons We use the standard of foreseeability because if acts were foreseeable (ie. natural or necessary or probable), then the injurer could have done something to prevent it Thus, foreseeability becomes the effective test for remoteness, not directness

Hughes Facts Defendant’s employees left a paraffin lamp and open manhole unattended A boy knocked lamp into the manhole and the paraffin vaporized causing an explosion The boy fell into the hole and was badly burned Plaintiff’s appeal allowed

Hughes Ratio A defendant is liable so as long as he caused injuries to the plaintiff which were reasonable foreseeable in “kind”, even if they were not foreseeable in “degree” or in exactly how the damage occurred.

SMITH v. LEECH BRAIN & CO. Facts Plaintiff’s husband was operating a crane when a piece of molten metal or flux struck and burned his lower lip Some time later, the spot where he had been burned began to ulcerate and he was diagnosed with cancer and subsequently died The burn promoted the cancer in tissues which already had a premalignant condition as a result of the deceased’s exposure to tar or tar vapours some 20 years earlier Court found in favour of the plaintiff

SMITH v. LEECH BRAIN & CO. Ratio A defendant is liable for the injuries caused to the plaintiff if the type of injury could have been reasonably foreseen, regardless of the extent of the injury’s impact on the plaintiff. Tortfeasor takes his victim as he finds him (so extent of injury does not need to be foreseeable)

Wagon Mound (No. 2) Facts Same fact situation as Wagon Mound (No. 1), except the plaintiffs here are the owners of two boats that were damaged in the fire However, here there are different findings of fact – in Wagon Mound 1 it was found that the defendants could not reasonably have foreseen the oil on water igniting Here, it was found that the officers would regard furnace oil as very difficult to ignite, but not impossible – it was possible in exceptional circumstances, though not probable

Wagon Mound (No. 2) Ratio There does not have to be foreseeability of a probable risk, only a possible risk A reasonable person will take steps to eliminate the risk of injury if there is a real risk, meaning that it is not far-fetched (it does not have to be probable, only possible), so long as the cost of prevention is not high.

Intervening Cause An intervening act is one that causes or contributes to the plaintiff’s losses after the original defendant has been negligent Traditionally, the original tortfeasor was relieved of liability because the causal link between his negligent act and the plaintiff’s loss was seen as being severed by the negligent intervening cause, which was labelled the novus actus interveniens (a new intervening act) Most recent development – general principle known as the “within the scope of the risk” test Some courts analyze whether plaintiff’s damages caused by the intervening act were within the scope of the risk created by the original tortfeasor Others ask whether the intervening act itself was within the scope of the risk When test of intervening causes is applied, the negligence of the original tortfeasor has already been established – now we’re trying to limit his liability

Assessment of Damages Nominal damages: generally awarded to vindicate the plaintiff’s rights in situations in which she has suffered no injuries; does not exist in negligence suits since there must be a loss or injury in a negligence claim Compensatory damages: main damage heading in negligence actions; purpose is to put the plaintiff in the position that she would have been in had the tort not been committed Punitive damages: may be awarded in any situation in which the defendant’s malicious, outrageous, vicious, high-handed, or otherwise socially unacceptable conduct warrants punishment and/or deterrence; these are very rare in negligence actions in Canada

Assessment of Damages Burden of Proof Plaintiff has burden of proving a type of loss that is recognized as recoverable in tort Plaintiff also bears burden of proving the quantum of damages that she is claiming Standard of Proof For pre-trial losses, plaintiff must prove existence and quantum of such losses on BOP – if met, she will recover 100% of the claim; if not met, she will get no recovery For post-trial losses, plaintiff must meet prove on a reasonable or substantial probability test (lower test than the BOP) – once established, she is entitled to recover for this loss subject to the likelihood of it occurring (eg. if there’s a 35% chance of blindness she will receive 35% of the damages that such blindness would cause)

Assessment of Damages Mitigation of Damages Plaintiff is under an obligation to act reasonably in all the circumstances of the case to mitigate her loss Defendant has the burden of proving that the plaintiff failed to do so Three principles of mitigation: plaintiff must take all reasonable steps to avoid or minimize her loss plaintiff may recover for losses incurred in taking such reasonable steps plaintiff cannot recover for losses that she has successfully avoided, even if she was not required to have avoided them under the first rule

Assessment of Damages Set-off of Parallel Expenditures If the plaintiff is claiming the full cost of nursing home care which includes food, the defendant may be permitted to reduce this claim by the amount the plaintiff saved on food during this period Lump Sum Payments Given this system, the trier of fact is forced to speculate on a range of issues including the future condition of the injured plaintiff, probable increases in health costs, impact of inflation on purchasing power, etc. Roles of juries, judges, and appellate courts It is the jury’s responsibility to assess damages and the law does not allow counsel or the judge to provide much assistance

Assessment of Damages Because special damages (pre-trial pecuniary losses) must be specifically pleaded, juries are provided considerable guidance for such quantification In contrast, juries have been provided with little guidance with respect to general damages (pre-trial non-pecuniary losses and all post-trial losses) Neither counsel nor the trial judge is permitted at common law to refer the jury to awards that have been given in similar cases Appellate courts are not to interfere with a jury’s assessment of damages unless there is a clear error in law, or the amount is so grossly out of line that it must be a “wholly erroneous” estimate of damages (Andrews v. Grand & Toy)

Assessment of Damages In the late 1970 s, the SCC rejected the global assessment approach in favour of an approach that requires separate assessment of each head of recovery that has been proved by the plaintiff – this makes appellate review much easier This has also resulted in an increase in the size of the damage awards Framework has been established under the following headings: Pecuniary Loss Future Loss Lost Earning Capacity Considerations Relevant to Both Heads of Pecuniary Loss Non-Pecuniary Loss

Andrews v. Grand & Toy Facts: This is a negligence action for personal injury involving a young man rendered a quadriplegic in a traffic accident for which the defendant and his employer, Grand & Toy have been found partially liable Plaintiff is severely, if not totally disabled, and there is no hope of functional improvement

Andrews v. Grand & Toy Pecuniary Loss: Future Care To the extent, 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 the claim Type of future care: home care vs. Institutional care Standard to be applied to the plaintiff is not merely “provision” but “compensation”, ie. 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, especially in the case of a victim who is still mobile and still in full control of his mental faculties The claims have to be reasonable, but it is completely reasonable for the plaintiff to prefer a home environment to an institution

Andrews v. Grand & Toy Life expectancy (how many years do you award future care for? ) statistics on the expectation of life of quadriplegics were used courts will tend to estimate longer expectancy periods than actuarial tables because they don’t want to risk under-compensating plaintiffs Contingencies of Life (discount the award) trial judge was reasonable in allowing a 20% discount for “contingencies and hazards of life”, which relate essentially to duration of expense (ie. that despite any wishes to the contrary, the plaintiff in the years to come may be obliged to spend a great deal of time in hospital for medical reasons or because the of the difficulty of obtaining help) the whole question of contingencies is difficult, for it is in large part pure speculation

Andrews v. Grand & Toy Cost of special equipment will be awarded if proven There is 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; so if the plaintiff’s mother would be taking care of him, this would not reduce damages With respect to the present value of the cost of future care, the calculations should provide for a self-extinguishing sum – idea is that the amount will be gone by the time but not before the time the plaintiff dies; to allow a residual capital amount would be to over-compensate the injured person by creating an estate for him

Andrews v. Grand & Toy Pecuniary Loss: Lost Earning Capacity Level of earnings Figure should be between plaintiff’s present salary and the maximum for this type of work The is reasonable, as the value of the plaintiff’s earning capacity over his working life is undoubtedly higher than his earnings at the time of the accident Length of working life It is reasonable to assume that he would retire as soon as it was open for him to do so on a full pension Capitalization of future earning capacity should be based on the expected working life span prior to the accident and not the shortened life expectancy

Andrews v. Grand & Toy Contingencies It is a general practice to take account of contingencies which might have affected future earnings, such as unemployment, illness, accidents and business depression However, there a number of qualification which should be made: in many respects, these contingencies implicitly are already contained in an assessment of the projected average level of earnings of the injured person, for one must assume that this figure is a projection with respect to the real world of work not all contingencies are adverse – why count the good and not the bad? in a modern society there are many public and private schemes which cushion the individual against adverse contingencies The percentage of deduction will depend on the specific facts of each individual case, but generally will be small (here at trial, it was determined to be 20%)

Andrews v. Grand & Toy Duplication with compensation for loss of future earnings Plaintiff cannot recover for the expense of basic necessities as part of the cost of future care AND recover fully for prospective loss of earnings, since many of these necessities would have been paid for out of earnings had the accident not occurred Proper approach: do not make a deduction to the cost of future care, but make a deduction for the cost of such basic necessities when computing the award for loss of prospective earnings (ie. base the award on net earnings, not gross earnings) The costs of necessaries when in an infirm state may well be different from those when in a state of health 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

Andrews v. Grand & Toy Other Things to Consider: Capitalization rate: allowance for inflation and the rate of return on investments The correct approach is to use present rates of return on long-term investments and to make some allowance for the effects of future inflation Note: the appropriate discount rate to be applied is now specified by legislation, so this is no longer an issue Allowance for tax 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

Andrews v. Grand & Toy Non-Pecuniary Loss: Court uses a “functional” approach – rather than attempting to set a value on lost happiness, it attempts to assess the compensation required to provide the injured person “with reasonable solace for his misfortune” (“solace” in this sense is taken to mean physical arrangements which can make his life more endurable rather) additional money to make life more endurable should then be seen as providing more general physical arrangements above and beyond those relating directly to the injuries viewed form this perspective, it is reasonable that large amounts should not be awarded once a person is properly provided for in terms of future care for his injuries

Andrews v. Grand & Toy the first element in assessing such compensation is not to add up items as loss of pleasures, of earnings, of marriage prospects, of children and so on, but to consider the matter from the other side, what can be done to alleviate the disaster to the victim, what will it cost to enable her to live as tolerably as may be in the circumstances. Here, Dickson adopts as the appropriate award in the case of a young adult quadriplegic like the plaintiff the amount of $100, 000; and save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature (this was in 1978 dollars and has since been adjusted to approx. $270, 000)

Maccabe v. Westlock Facts Plaintiff was a 16 year old girl who broke her spinal cord and became a quadriplegic due to a botched gymnastic manoeuvre and her gymnastics teacher was found negligent Plaintiff wanted to be a physiotherapist when she grew up, and also testified that she wanted to have as many as four children and that she might stay at home with those children until they were in school

Maccabe v. Westlock Reasons The base line of income of a female physiotherapist was not disputed since male and female physiotherapists employed in hospitals in AB are paid the same However, the trial judge erred in applying “male contingencies” rather than “female contingencies”, especially since in this case the plaintiff testified that she would like to have several children and likely stay at home with them for the first few years The Latin phrase restitutio in integrum embodies the purpose of tort damages – putting someone back in the position that they would have been had the accident not occurred While principles of equality should inform tort law, the trial judge’s application of equitable principles resulted in her ignoring some of the relevant material facts of this case It would be inappropriate to apply male contingencies to her when there was no evidentiary basis that she would have worked a typical male pattern

KEIZER v. HANNA Facts Mr. Keizer died as a result of the injuries he sustained in a car collision The defendant admitted that the collision was due solely to his negligence Mr. Kezier was 33 years of age with a life expectancy of 38. 55 years He was a toolroom foreman, capable, conscientious, industrious and in good health He had been married for 9 years to the plaintiff who, at the date of his death was 27 years of age with a life expectancy of 49. 60 years They had one child, an infant of six months

KEIZER v. HANNA Reasons The trial judge projected average earnings of $15, 000 for a working expectancy of 31 years, and deducted $3200 for income tax, $1800 for personal use, and $3000 for personal support, leaving $7000 disposal income for dependents He considered contingencies the following contingencies, but in the end did not give significant weight to any one of them: possibility of remarriage; possibility of widow’s death before expiry of joint expectancy period; possibility of deceased’s dying under other circumstances prior to expiry of said joint expectancy period possibility of deceased husband’s retiring before expiry of joint expectancy period acceleration of inheritance to widow – bearing in mind likelihood of increased inheritance in event death had not occurred; possibility the infant child may not be a burden to the father or require additional benefits for the full period of his calculated working life

KEIZER v. HANNA At the end of the day, the only question of importance is whether, in all circumstances, the final award is fair and adequate This is largely an exercise in business judgment – the question is whether a stated amount of capital will provide, during the award, a monthly sum at least equal to that which might reasonably have been expected during the continued life of the deceased Here, the object is to ward a sum which will replace present-day payments of $7000 per year for a future period of 31 years, with some reduction for contingencies This amount should then be reduced somewhat to account for contingencies – including a deduction for the insurance proceeds available on the husband’s death, as this is considered an accelerated inheritance – although this amount will probably not be large Also, in order to yield the sum required net of taxes a greater sum would be called for