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Arnold v. Teno

[1978] 2 SCR 287 Court SCC Decision date 1978-01-19 English

PartiesWallace Arnold and Brian Arnold (Defendants) Appellants·Diane Marie Teno, an Infant by her Next Friend Orville Teno, the Said Orville Teno and Yvonne Ten (Plaintiffs) Respondents·J.B. Jackson Limited and Stuart Galloway (Defendants). Appellants·J.B. Jackson Limited and Stuart Galloway (Defendants) Appellants·Diane Marie Teno, an Infant by her Next Friend Orville Teno, the Said Orville Teno and Yvonne Teno (Plaintiffs) Respondents·Wallace Arnold and Brian Arnold (Defendants) Respondent·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·Wallace Arnold, Brian Arnold, J.B. Jackson Limited and Stuart Galloway (Defendants) Respondents·Diane Marie Teno, an Infant by her Next Friend Orville Teno and the Said Orville Teno (Plaintiffs) Respondents

Counsel (9)
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.
B.A. Percival, Q.C., and M.S. Kaczkowski, for the appellants Yvonne and Orville Teno.
R.E. Barnes, Q.C., and J.A. Bear, for the respondents, Wallace and Brian Arnold.
Solicitors for the appellants, Wallace and Brian Arnold: Wilson, Barnes, Walker, Montello, Beach & Perfect, Windsor.
Solicitors for the appellants, J.B. Jackson Limited and Stuart Galloway: Bell, Temple, Toronto.
Solicitors for the appellant, Yvonne Teno with respect to claim for contribution: Benson, McMurtry, Percival & Brown, Toronto.
Solicitor for the respondents, Diane Marie, Orville and Yvonne Teno: M. Wunder, Windsor.

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

Delivered by Majority

On appeal from Ontario

Subjects Torts

Contents

The judgment of Laskin C.J. and Judson, Spence and Dickson JJ. was delivered by

She has a severe left hemiparesis involving the arm and the leg about equally. It is unlikely that this will improve very much. This means that she will probably never have any useful movement of her left hand.
She has some slight spastic weakness of the right side but a very severe action tremor, probably from involvement of her extrapyramidal system. This now makes the right hand almost useless in anything but the most coarse activity. It is probable that this will improve considerably over the next two or three years.
Because of her motor involvement, she is now unable to walk. With continuing physiotherapy I think it is likely that she will walk by herself eventually but her gait will always be unsteady and precarious.
The motor involvement also affects her speech which is now difficult to understand. This will improve although she will always speak slowly and probably indistinctly.
The possibility of post-traumatic epilepsy exists. The fact that she has been 15 months without a seizure is very encouraging and the chance of this occurring is less than 10%.
The severe brain injury has affected her intellectual capacity. I found this difficult to evaluate but thought she was probably behaving at about a borderline level. I had her seen by Dr. Netley, head of our Department of Psychology and am attaching his report. You will see that he estimates her IQ within the dull normal range.
Putting all these disabilities together means that we have a child with reasonable intellectual potential but without the physical ability to make much use of it. She is going to need a special educational program and her subsequent ability to earn a living is going to be very limited. She is going to need continuing physiotherapy for years.
It is only 15 months since the accident and children have a remarkable capacity for recovering more than one expects. I think she should be reassessed in about a year or 18 months.

Dr. Prichard examined Diane again on July 3, 1973, and on April 9, 1974, and reported as follows:

[Page 319]

I think it is most unlikely that this young lady will ever be able to live by herself. Her physical disabilities are tremendous. I do not think she will be able to go to a store to buy supplies, prepare her own food or cook for herself, wash, look after or mend her clothes, or indeed dress herself, or perform most of the tasks we take for granted when people live independently. This means that whilst she will probably not need permanent nursing care, she will need permanent help in the form of somebody living with her all the time. I think she will require this for all her life.
I have just finished seeing this little lady and her parents. It is disappointing to see how little she has improved during the last year.
The parents have the following remarks to make about her present performance:
1. She still has no functional use of her right hand. She cannot use it to steady anything. She likes to keep it quiet by sitting on it.
2. Her left hand is very clumsy. She is unable to dress herself, feed herself, perform simple toilet needs, or drink from a cup. She can drink from a straw or training cup.
3. She is able to walk by herself but does so slowly and clumsily. She cannot run.
4. Her speech is very difficult to understand. It is slow and laborious.
5. She is going to school and is in Grade 1. She is able to read at about the mid Grade I level, according to her parents.
6. She seems to be a happy little girl. She has some school friends and gets on well with them.
Her general health is good.

Footnotes

  1. [1] (1976), 11 O.R. (2d) 585.
  2. [2] (1976), 11 O.R. (2d) 585.
  3. [3] [1949] 4 D.L.R. 844.
  4. [4] [1927] A.C. 515.
  5. [5] [1932] A.C. 562.
  6. [6] [1970] A.C. 1004.
  7. [7] [1974] S.C.R. 239.
  8. [8] (1947), 75 C.L.R. 339.
  9. [9] [1971] 2 O.R. 131.
  10. [10] [1953] O.R. 303.
  11. [11] (1913), 29 O.L.R. 527.
  12. [12] [1956] O.W.N. 881.
  13. [13] [1966] N.Z.L.R. 710.
  14. [14] [1966] S.C.R. 532.
  15. [15] [1956] A.C. 185.
  16. [16] [1970] A.C. 166.
  17. [17] [1971] A.C. 115.
  18. [18] [1975] 2 All E.R. 1107 (C.A.).
  19. [19] [1963] 3 All E.R. 521.
  20. [20] [1951] S.C.R. 470.
  21. [21] [1960] A.C. 145.