[2] The judgment is reported at (1991), 75 D.L.R.(4th) 668.

[3] The negligence alleged with respect to the infant plaintiff, Elizabeth Cherry, was restricted to the abortion procedure itself. The negligence alleged with respect to the adult plaintiff, Jody Cherry, extended to the defendant's post-operative care.

[4] The defendant first saw the plaintiff on August 4, 1982 and the abortion procedure was carried out on August 31, 1982. The defendant admitted that he was negligent in respect to his post-operative attendance on the adult plaintiff on September 10, 1982 when he examined her and concluded the abortion procedure had been successful. The fact was it had failed and the foetus had not been aborted. That admission was incorporated into the formal order granted by Cumming, J., as he then was, on April 10, 1987:

"This Court Finds that the defendant Borsman was at fault in the post-operative care he gave the adult plaintiff from September 10th, 1982 and subsequently, and that had the defendant determined on or about September 10th, 1982 that the adult plaintiff was still pregnant, as this court finds he should have, the adult plaintiff would have had a second, and the infant plaintiff would not have been born."

[5] Liability and damages with respect to the infant plaintiff's claim and damages with respect to the adult plaintiff's claim were determined by Mr. Justice Skipp in his judgments dated December 3, 1990 and February 13, 1991.

[6] There is both an appeal and a cross-appeal.

[7] The grounds of appeal on liability as set out in the appellant's factum are:

"1. The trial judge erred in finding that the defendant, when performing an abortion at the request of the adult plaintiff, owed a duty of care to the foetus not to harm it.

"2. The trial judge erred in finding that the infant plaintiff suffered 'damage', recognized by law, as a result of the negligence of the defendant. This is the 'wrongful life' issue which was pleaded in the alternative.

"3. The learned trial judge misapprehended the evidence and thus erred in finding:

(a) the pregnancy test ordered by the defendant on August 4, 1982 would probably not have been positive if the adult plaintiff had become pregnant on July 10, 1982;

(b) the defendant used the wrong sized curette to perform the abortion;

(c) using a no. 6 curette was a breach of duty to the infant plaintiff.

"4. The trial judge erred by accepting and relying upon the evidence of the plaintiffs' experts on the causation issue when that evidence amounted to no more than speculation."

[8] The appellant seeks an order that the appeal be allowed and that the judgment in favour of the infant plaintiff be set aside and that the damages in favour of the adult plaintiff be reduced. Alternatively, the appellant seeks an order for a new trial.

[9] The defendant doctor, a specialist in obstetrics and gynaecology, first saw Jody Cherry on August 4, 1982 on referral from her family doctor. The plaintiff had missed her period and had had a positive pregnancy test on August 3. Dr. Borsman examined Mrs. Cherry and ordered another pregnancy test. He asked her about the date of her last period and possible dates of conception. The defendant concluded that the plaintiff was in the early stages of pregnancy. He recommended that permission be granted for a therapeutic abortion.

[10] On August 6, the adult plaintiff received permission from the abortion committee of the hospital to terminate her pregnancy. The defendant undertook the abortionprocedure on August 31. Unknown to him that procedure failed and the foetus was not aborted. The infant plaintiff was born with a number of serious and debilitating mental and physical impairments which are permanent.

[11] The trial judge found that the defendant was negligent in the way he performed the abortion and that in doing so he breached his duty of care to both the adult and infant plaintiffs.

[12] The trial judge said (at pp. 670-671):

"The defendant attempted, on August 4th, 1982 through taking the plaintiff's history and by way of a physical examination to determine how far the adult plaintiff's pregnancy had progressed. She told him that her last period had been on June 16th which had been the last day of her period, it having begun five days earlier. The defendant then asked her about possible dates of conception. She told him that she had had intercourse around June 22 or 23 and around July 10 when she returned from a trip to Toronto. Dr. Borsman concluded that it was unlikely that she would have conceived on June 22 or June 23 and in the belief that her period had commenced on June 16, he concluded that she had probably conceived around July 10, 1982.

"He ordered a further urine pregnancy test which was positive. At that time, the pregnancy would have attained at least a six-week duration before there could have been a positive result and so, had the plaintiff conceived on July 10th it was unlikely that the test would have shown a positive result at that time. Nevertheless, he concluded that she had probably conceived in July . The genesis of the error as to the gestational age of the fetus could well have been a failure of communication between the patient and the doctor, she telling him the date of the end of her period, i.e., June 16th, and he assuming that the date was the commencement of her period.

"On August 6th the adult plaintiff received permission from the Therapeutic abortion Committee of the Lady Minto Hospital to terminate her pregnancy. The defendant doctor decided to wait two weeks before performing the abortion as there is a greater risk of a failed abortion if it is done too early. Dr. Borsman was the only doctor performing abortions at the hospital at that time.

"The abortion was done on August 31, 1982 when the fetus had a gestational age of approximately ten and a half weeks." (Emphasis added)

[13] It is common ground that the trial judge's reference to June 16 should have been to June 18.

[14] Under the heading "Breach of duty" the trial judge said (at p. 679):

"The remaining questions are with the abortion procedure itself. I find that the defendant was negligent in the way that he performed the abortion and that in so doing he breached his duty of care to both the adult and infant plaintiffs.

" First the defendant in all probability made an error in calculating the date of the adult plaintiff's conception. While this was in part due to information imparted by her, the fact that her pregnancy test was already positive on August 4, 1982 should have alerted him to a potential error. This error became material when he used a size six curette to scrape her uterus.

"Admittedly, the size six curette was the only size available which could be used, however, I accept the medical evidence that it would have been difficult to achieve an abortion of a woman who was 10 to 11 weeks pregnant using this size curette which is appropriate for women in the earliest stages of pregnancy.

" In my view, Dr. Borsman erred in determining the age of the fetus. His opinion was that conception occurred July 10, 1982, when it probably was on June 23rd. Thus he was under the impression that the fetus was younger than it was. For the actual size of the fetus, a larger size curette would have been appropriate. A size eight curette should have been used but that size was not available at the Lady Minto Hospital. Dr. Borsman's error resulted in him not being aware of the possible problems involved with the use of a size six curette.

"I find that the defendant doctor did not take adequate care to ensure that the fetal material was removed. Knowing as he did that he was using the smallest curette available and that the adult plaintiff had an acutely retroflexed uterus, it was incumbent upon him to have been extremely careful to make sure that the fetal material had been removed.

"Evidently practioners [sic] are generally aware that the fetus is being aspirated based on a combination of sight and feeling. The suction curette used herein was unexceptional save for yellowed tubing which evidently made it impossible for the doctor to observe the products of the abortion being aspirated." (Emphasis added)

[15] From these passages it is clear that the trial judge found two breaches which are critical to the finding of negligence against the defendant in the performance of the operation. The first breach found was the miscalculation of the date of conception and the second was using the wrong-sized curette.

[16] The defendant's counsel asserts that the trial judge misapprehended the evidence on which both those conclusions stand.

[17] Defendant's counsel submitted that the trial judge misapprehended the evidence in reaching his conclusion that as of August 4 the pregnancy would have had to have attained "at least a six-week duration" before there could have been a positive result on the urine pregnancy test. If the trial judge had not misapprehended the evidence, counsel submitted, he would have found that the pregnancy test would probably have been positive on August 3 and 4, had the date of conception been July 10.

[18] Based on information obtained from the adult plaintiff, the defendant thought her last menstrual period had commenced on June 18, 1982. The plaintiff told the defendant that the only times she could have become pregnant were June 22 or 23, prior to her departure on a trip to Toronto, or on July 10, 1982, when she returned.

[19] The defendant testified that he examined the plaintiff on August 4 and formed the opinion, based on examination, that she was in the early stages of pregnancy. In particular, he found her uterus to be firm which is an indication of pregnancy in its early stages.

[20] The defendant concluded, as shown by his clinical notes, that it was most unlikely that the plaintiff had become pregnant on June 23. His consultation report contains the following.

"I saw this young woman this morning requesting an abortion. Her last menstrual period was June 18, 1982 and she claims she became pregnant on June 23, 1982. This is most unlikely. It was more likely that she became pregnant around July 10, 1982 which meant that for some reason her cycle was going to be altered. However, Dr. Levitt did a pregnancy test in the office which was positive and she was going to have it repeated in the hospital today. However, the patient is nauseous and has breast tenderness.

"Pelvic examination showed a markedly retroverted uterus with the cervix markedly up and forwards. Both the cervix and the uterus were firm in consistency, so presumably the typical symptoms of pregnancy are not yet apparent."

[21] There was evidence that the usual or normal menstrual cycle is 28 days, and that ovulation, during which conception becomes possible, occurs between the 13th and 16th day of the cycle. The commencement of the cycle is taken to be the first day of the menstrual period.

[22] The defendant's conclusion that if the first day of her last menstrual period had been June 18, it would have been unlikely for conception to have occurred on June 23 or 24 is, in itself, unexceptional. However, the defendant decided that she must have conceived on July 10, despite the fact that if the first day of her last menstrual period had been June 18, July 10 would also have been an improbable conception date, assuming that her periods were normal in duration and cycle.

[23] There is no indication in the defendant's clinical records that he had obtained information from the adult plaintiff about her menstrual periods but he did state in his evidence that to the best of his recollection, she had indicated that her periods were normal in duration and cycle.

[24] If the adult plaintiff's last period commenced on June 18, as the defendant believed, he ought to have recognized that July 10 was also an improbable conception date. The positive pregnancy test on August 3, if also inconsistent with an assumed conception date of July 10, ought to have alerted him to a possible error in the calculation of the gestation age of the foetus.

[25] Although counsel submitted that the trial judge relied on the evidence of Dr. Cronhelm, a specialist called on behalf of the plaintiffs, in reaching his conclusion that it was unlikely that the pregnancy test would have been positive if the adult plaintiff had conceived on July 10, the trial judge made no specific reference to the evidence on which he had relied in reaching that conclusion. There was other evidence, including that of Dr. Shaw, Dr. Munro, and the defendant himself, which is relevant to the question of when the urine pregnancy test was first likely to show a positive result.

[26] In a report dated July 10, 1985, Dr. Cronhelm stated:

"An important factor in this is the dating of the pregnancy at the time of the operation. On Dr. Borsman's chart it states the LMP was June 18, 1982. The patient however states that this may have been the last day and not the first day as is usually stated. A urine pregnancy test was first positive August 3 and checked again in the hospital August 4. This would agree with a dating of 10½ to 11 weeks at the time of the termination on August 31, 1982. It would be difficult for the pregnancy to be much less advanced than this with a positive pregnancy test on August 3rd and stated symptoms of early pregnancy at that time. I say this because the urinary pregnancy test does not become positive generally until 10 days after the first day of the first missed period."

[27] "LMP" is an abbreviation for last menstrual period.

[28] Counsel submitted that if the plaintiff's last menstrual cycle had begun on June 18, as the defendant had understood, the first day of plaintiff's missed period would be July 16. That would only be so if the plaintiff had had a regular 28-day cycle. But the defendant could not have assumed a regular 28- day cycle, for if conception took place on July 10, that would have meant a considerable delay in ovulation.

[29] At trial the defendant gave this evidence:

"Q. 'Her last menstrual period was June 18, 1982 and she claims she became pregnant on June 23, 1982. This is most unlikely.' Why did you conclude at that time that it was most unlikely?

A. If a woman had a 28 day cycle or reasonably close to 28 days, then one presumes ovulation is very roughly mid cycle. It might be a day or two prior to mid cycle, that is, it might be day 12 or 13. It would be most unlikely, I couldn't say impossible, but it would be most unlikely for a person to have the first day of a period on June 18th and become pregnant June 23rd. In most cases they would still be menstruating which again would mitigate against her becoming pregnant. I, therefore, assumed since the second date of July 10th would fit more closely with both what was possible and what I had found with what I thought was a very early pregnancy. I picked the July 10th date even though that would be flying in the face of her stated menstrual period but although it is (sic) already mentioned that periods are by and large the most accurate way of dating a pregnancy, the fact is they sometimes are not accurate and circumstances such as a trip or some emotional problems and so on can cause a change in the cycle at any time and, therefore, that is not outside the realm of possibility."

[30] If the defendant believed, in order to account for the July 10 conception date, that the plaintiff's cycle must have altered, there can be no foundation for taking July 16 as the first day of her first missed period. In our view, the July 16 date cannot be used in conjunction with Dr. Cronhelm's evidence that a urine pregnancy test would not be affirmative until approximately ten days after the first day of the first missed period in order to show that the defendant had no reason to be alerted to his error by the positive pregnancy tests.

[31] Defendant's counsel also submitted, based on Dr. Cronhelm's evidence, that a positive pregnancy test was possible if the conception date was July 10. At trial Dr. Cronhelm was asked:

"Q. On the same report page 1 under the heading description of operation, you have fixed the age at the date of abortion August 31 as being 10 and ½ to 11 weeks. And you refer to the urine pregnancy test of August 4 being positive. Would you tell the court the earliest stage at which a urine pregnancy test administered August 3/82 would have been positive?

A. In 1982 at the Lady Minto Hospital the only method -- the usual method of pregnancy testing at that time would show a positive test -- it would not be affirmative until approximately ten days after the last missed period. That would mean about 24 to 25 days after conception. Therefore, one can deduce from that that, in fact, the dating at the time of abortion would be approximately 10 and ½ to 11 weeks."

[32] Counsel argued that Dr. Cronhelm's evidence shows that had the date of conception been July 10, as the defendant assumed, the pregnancy tests could have been positive for if one counts from July 10 to August 3 or to August 4, there are 24 days and 25 days respectively between those dates. In his submission, the trial judge appears to have thought that what Dr. Cronhelm was saying was that the pregnancy test would not be positive until six weeks after conception and suggested that such a misunderstanding could have arisen because of different ways in which pregnancy dates are calculated.

[33] We are satisfied that the trial judge's reference to "a six-week duration" was to gestational age of the foetus, and not post-conception weeks.

[34] The expert witnesses, as well as the defendant, referred to the gestational age of the foetus in menstrual weeks, that is, weeks from the first day of the last menstrual period. The following excerpt is from a letter written by Dr. Cronhelm to plaintiffs' counsel:

"In summary it is normal practice to ask first day of last menstrual period and to deduce the most likely period of amenorrhoea ( menstrual age). Then to attempt to correlate this to the uterine size. Remembering at all times that obstetricians always, in this area, when stating gestational age refer to weeks of amenorrhoea, i.e. age from conception plus 2 weeks ." (Emphasis added)

[35] In a report filed as an exhibit, Dr. Shaw, an obstetrician and gynaecologist, said the following under the heading "Pregnancy dating":

"Jody herself seems to have been confused with respect to her dates, but if the LMP of June 18th, 1982 was accepted as correct by Dr. Borsman, she would have been 10½ weeks gestational (menstrual) age at the time of the abortion on August 31st. In any event with a positive pregnancy test on August 3rd, Jody must have been at least 9 weeks gestational age at the time of the abortion, since the routine pregnancy test becomes positive no earlier then 5½ weeks ." (Emphasis added)

[36] When taken within the context of that paragraph, Dr. Shaw's reference to "5½ weeks" can only be understood as gestational weeks, not post-conception weeks, for between June 18, which the defendant took to be the first day of the plaintiff's last period, and August 31, the date of the abortion procedure, there are 75 days, or about ten and one-half weeks.

[37] Counsel's submission that if the plaintiff had conceived on July 10, the pregnancy test would probably have been positive, is also not in accord with other evidence which bears directly on the point.

[38] In his report Dr. M.G. Munro, an obstetrician and gynaecologist called by the defendant, opined:

"3. Gestational age . On reviewing the data, it is my impression that this patient's last menstrual period commenced June 13th but she most likely conceived on or approximately June 23rd and thus at the time of the therapeutic abortion, August 31st, would be 11 weeks gestational age .

"The data which supports this include the following:

(a) Mrs. Cherry stated that she had a q-28 day times 5 day menstrual cycle that was always regular.

(b) Although there is a consistent referral to the June 18th being the date of the last period, in the discovery it seemed quite clear that the 'date of the last menstrual period' was indeed the date of 'conclusion' of the menses. This, of course, is a day which has little significance in medical practice. If indeed menses started on June 13th and intercourse occurred on June 23rd, it is quite possible that conception may have occurred by an ovulation which would normally occur between day 12 and day 16 in the cycle.

" I think it is highly unlikely but not impossible that she conceived on or about July 10th . This would imply that there was a substantial delay in ovulation. It might be important to note whether other stresses had been related to this individual having irregular menses, irregular menses reflecting irregular ovulation. Given the positive pregnancy test, it is not possible for the pregnancy to have conceived much beyond July 8th because of the presence of a positive pregnancy test on August 3rd or the 4th which implies at least 26 days of post conception time ." (Emphasis added)

[39] When the plaintiff saw the defendant on August 4, the defendant completed an application form for a therapeutic abortion on which he recorded the age of the foetus as four to six weeks. Four weeks menstrual age accords with neither of the possible conception dates the defendant had been given. At four weeks it would have been unlikely that the plaintiff herself would have realized that she was pregnant as she would likely not yet have missed a menstrual period. The abortion procedure was performed four weeks after the defendant had seen the plaintiff on August 4. In the operation report completed after the procedure, the defendant recorded "a uterus enlarged to about 8 weeks size". That corresponds with his earlier notation on August 4 about the age of the foetus.

[40] If the plaintiff was only four weeks pregnant on August 4th, the defendant ought to have recognized that the urine pregnancy tests would not have been positive, as the following extract from his evidence shows:

"Q. Now, Doctor, on page four of your chart you, in the second sentence state that: the last menstrual was June 16th, 1982. She claims she became pregnant June 23rd. You felt that most unlikely and felt it was more probably she became pregnant around July 10th. Now, did you reach that conclusion strictly from physical examination?

A. No, sir.

Q. Did you do a scan?

A. No, sir.

Q. What factors did you take into account in reaching that conclusion?

A. First of all, Mr. Phippen, she had a period on June 18th, she would not become pregnant on the 23rd. That would be the fifth day of her cycle which would be approximately ten days out, eith [sic] to ten days out. That's the first thing. And then I must have, probably, you know put down dates and estimated -- yes that was strictly on the basis of dates that I assumed she became pregnant about July 10th. I don't remember the details as to how I arrived at that decision.

Q. Well, now you knew she had had a urine pregnancy test on August 3rd and August 4th, both of which were positive?

A. Yes, that's right.

Q. And you knew that that test does not disclose a positive result unless the patient is five and a half to six weeks pregnant?

A. The test they used at that time, that's probably correct . I don't remember whether they were using most sophisticated tests in those days.

Q. My instructions are that five and a half to six weeks.

A. That was the one. " (Emphasis added)

[41] In this portion of the evidence we think it clear that the defendant understood the reference to be to gestational weeks, not post-conception weeks. If the reference was understood to mean post-conception weeks, the defendant made a damaging admission because between July 10, the defendant's assumed date of conception, and August 3, the date of the first positive pregnancy test, there are only 24 days, or about three and one-half weeks.

[42] The trial judge's conclusion on the evidence that the pregnancy would have had to have attained at least "a six-week duration" before there could be a positive urine pregnancy test is in accord with the evidence in which "gestational weeks" are used for pregnancy dating.

[43] The only possible objection to the reasoning of the trial judge on this point is that, on the evidence, a urine pregnancy test could become positive after between five and one-half weeks to six weeks rather than after six weeks. But the trial judge did not rule out the possibility of a positive result on the defendant's assumed date of conception, he simply said it was unlikely. The evidence supports that conclusion.

[44] We find no error in the trial judge's conclusion that the positive pregnancy test ought to have alerted the defendant to a potential error in accepting July 10 as the conception date.

[45] The trial judge found that the defendant had made an erroneous determination of the age of the foetus, with the result that he used the wrong-sized curette to perform the abortion. The defendant used a size six metal curette. The trial judge found that for the actual size of the foetus, a larger sized curette would have been appropriate. He accepted the medical evidence that it would have been difficult to achieve an abortion of a woman who was ten to eleven weeks pregnant using that size curette. The trial judge also found that the defendant's erroneous determination of the age of the foetus resulted in his not being aware of the problems involved with the use of the size six curette. Thus, the trial judge concluded that the defendant did not use adequate care to ensure that all the foetal material was removed.

[46] The defendant's counsel submitted that the trial judge misapprehended or ignored evidence with respect to the sizing of metal and plastic curettes with the result that his conclusion, based on the medical evidence that it would have been difficult to achieve an abortion using a size six curette, was in error.

[47] A biomedical engineer, who had compared the sizes of metal and plastic curettes, stated in his report filed at trial that the internal diameter of a no. 6 metal curette was identical in size to that of a no. 8 plastic curette, specifically, 6.2 millimetres.

[48] Counsel pointed out that Dr. Cronhelm's evidence that it would be difficult to achieve an abortion of a woman who was ten to eleven weeks pregnant using a size six curette, was based on using plastic, not metal, curettes. The trial judge, he submitted, accepted the evidence that the defendant should have used a plastic size eight curette but failed to account for the fact that the defendant was using no. 6 size metal curette, which has the same internal diameter size as a no. 8 plastic.

[49] Counsel's assertion that the trial judge accepted the evidence that the defendant should have used a plastic size eight is not well-founded. The trial judge noted that the defendant should have used a size eight curette, but he did not specify either plastic or metal. The evidence of Dr. Cronhelm does not support a conclusion that a size eight plastic would have been appropriate.

[50] Dr. Cronhelm gave this evidence:

"Q. Now, in turning to the abortion operation itself. Would you give the court a brief description of the instruments used and their purpose and the operation itself: Suction and curettage?

A. Most therapeutic abortions, -- in the first trimester up to 12 weeks, -- are done by suction and curettage method. This involves dilatating the patient, -- generally speaking under anaesthesia but not always, -- involves dilatating the cervix either prior to or at the time to sufficient diameter to allow a suction curet of approximately the same number of millimetres as weeks of gestation, ie. if the patient is approximately ten weeks one would use the ten millimetre suction curet. If 12 weeks you would use 12. If 8 weeks you would use 8 . Those are approximate, but not absolute figures. Do you wish more detail?

Q. Yes. Would you give his lordship a brief description of the operation?

A. After the cervix has been dilated to sufficient size to accept the sized suction curet one has decided to use, the suction curet is placed into the uterus, past the internal os and the vacuum is turned up. At this time the product of conception are aspirated through the vacuum through the vacuum tube into a bottle. And at the end of the procedure, -- which one can visualize because these tubes are by and large clear plastic, -- one can see placenta and fetal products. Depending on the age of gestation prior to 8 weeks it is not easy. Up to 8 weeks it is usually just whitish placental material. After 8 weeks, certainly 10 to 12 weeks there is not much difficulty confirming there is also fetal products.

The Court: After 8 weeks did you say?

A. This 8 to 10 week span, -- depending on one's experience, -- one might have difficulty.

The Court: After 10 weeks?

A. There should be no difficulty whatsoever. One is alerted to the fact that the uterus is emptied by the fact that the uterine muscle grabs the vacuum curet and the inside of the uterus feels rougher and a quite different character to the time at the beginning when there is obviously product of conception inside. After that routine then when it appears to be empty I use a sharp metal curet to check the walls of uterus to be certain that the uterus is empty. Then one last quick suction to clean out any small residual. After that the patient is allowed to wake up, and it is the end of procedure.

Q. Doctor Borsman in his operative report describes using a 6 millimetre curet in this operation.

Q. Now, Doctor, where does the size six fit in the scheme of things; is there anything smaller than 6?

A. 6 millimetre curet is the smallest suction curet we have.

Q. In your report you have stated that in your opinion it would be difficult to terminate a 10 and ½, 11 weeks pregnancy using a 6 millimetre curet.

Q. Now, would you tell the court why it would be difficult to properly terminate a 10 and ½ to 11 week pregnancy using a 6 millimetre curet?

A. Purely because of the amount of volume that is to be suctioned through the curet. It would be more difficult and tedious to do so. It wouldn't be impossible, but it would not be the correct curet to use. Sometimes people do use it in smaller cases because it is easier to get it through a cervix that is difficult to dilate. But, in fact, it is a tedious and difficult method of using it. It would not be the norm to use such a curet in 10 weeks gestation, or 8 weeks gestation , for that matter ." (Emphasis added)

[51] In the testimony just quoted, Dr. Cronhelm was referring to plastic, not metal, curettes, but it is impossible to conclude from that evidence that a size eight plastic curette would have been appropriate, given the gestational age of the foetus being ten to eleven weeks. It is possible, however, to extrapolate from Cronhelm's evidence that a size eight metal curette would have been appropriate.

[52] The trial judge said that the defendant should have been using a size eight curette. That finding, assuming that the trial judge was referring to metal curettes, is consistent with Dr. Cronhelm's evidence, for a size 10 plastic has the same internal diameter as a size eight metal.

[53] In our opinion there is no basis for assuming that the trial judge was referring to anything other than that which the defendant had available to him at the hospital, that is, metal curettes.

[54] In describing the procedure used by the defendant, the trial judge noted that the plaintiff's cervix was dilated up until the "Hegar 10" and that the defendant had attempted to insert a size 11 dilator without success.

[55] In respect to dilators and suction curettes, Dr. Cronhelm gave this evidence:

"Q. If [the cervix] dilates easily to number 10 Hegar, would there be a problem to using a 10 to 12 suction curet?

A. There would be no problem using a 10. One would have to dilate further to put in a number 12.

The Court: What is the 'Hegar'?

A. Hegar is the man that invented the type of dilator. There are different types of dilators Hegar and Pratt. Hegar is the oldest one we used to use, but that measured in millimetres. Diameter 10 means 10 millimetres.

The Court: Are these inside or outside diameters?

A. External.

The Court: For the curets as well as dilators?

A. Yes, exactly. External circumference. There is a medical term: O.D.

The Court: Outside diameter?

A. Outside diameter, yes.

The Court: Does it follow from that, Doctor, that if it can be dilated to number 10 Hegar that it could accommodate a ten millimetre curet; is that what you are saying?

A. Yes."

[56] Dr. Cronhelm was referring to plastic curettes in this testimony.

[57] The trial judge's description of the procedure included the following (at p. 671):

"His next procedure was to insert the appropriate size curette into the uterus ... Generally, a size 10 curette would be used with a size 10 Hegar dilator . The only sizes then available at the Lady Minto Hospital were sizes six, nine, 11, and 13. The sizes of the curettes did not correspond to the sizes of the dilators , the result being that the size nine curette was too large to fit inside the adult plaintiff's cervix as dilated with a Hegar 10. The only other curette available was a size six which was the smallest size that was manufactured and which ordinarily would be used for very early abortions. This was the curette the defendant employed." (Emphasis added)

[58] From that passage, it is evident that the trial judge was alive to the evidence that the sizing of the curettes which were available to the defendant did not correspond to the ones generally used, which were plastic, and corresponded to the Hegar dilators in size number.

[59] Apart from the fact that the curette used by the defendant had the same internal diameter as the size eight plastic, it is apparent from the defendant's evidence that he would not have used the curette he did had he recognized his error about the gestational age of the foetus. He gave the following evidence on discovery, which was read in at trial:

"Q. Now the next proposition, I put to you and ask whether you agree or disagree. It would be exceedingly difficult to evacuate a ten to eleven week gestation using a six millimetre suction curette?

A. It would not be difficult. It would take longer. More prolonged, more persistent I guess.

Q. If you had formed the opinion that the gestational age as of August 31st as ten and a half weeks, you would not be using a six millimetre curette would you?

A. No."

[60] Using a size six metal curette would not have made the procedure impossible, but greater care would have been required to ensure that all the foetal products had been removed. As the trial judge found, the defendant's error in the gestational age of the foetus resulted in his not being aware of the possible problems involved with the use of the size six curette.

[61] It can be seen that there was evidence upon which the trial judge could have reached the conclusions he did in respect to the defendant's use of a size six curette to perform the abortion procedure. We can provide no good reason to disagree with the trial judge's conclusions on either of the evidentiary issues.

[62] The first thing that must be said here is that in our opinion this is not a "wrongful" case as asserted by the defendant. The plaintiffs say this case falls to be determined on ordinary negligence principles and we agree. This is the position of the plaintiffs both in their pleadings and before us in argument. This is not a case where the plaintiffs assert a legal obligation to the foetus to terminate its life as was the position in McKay v. Essex Area Health Authority , [1982] 2 All E.R. 771 (C.A.).

[63] This is what the trial judge said (at pp. 676-677) on this issue of duty of care to the infant plaintiff:

"The question as to whether the defendant owed the plaintiff a duty of care is central to any finding of negligence and depends upon the relationship between the parties. Here there are two plaintiffs with separate and distinct duties owed to each of them.

"I find that the defendant doctor also owed a duty of care to the infant plaintiff at the time of the attempted therapeutic abortion. This duty arose from the neighbourhood principle first enunciated in Donaghue v. Stevenson , [1932] A.C. 562 - that is, that one must not do an act which will foreseeably injure one's neighbour. It is clearly foreseeable that a negligently performed abortion may affect a fetus. The defendant had a duty to prevent this foreseeable harm.

"Two factors complicate this seemingly straightforward analysis. First, it implies that a fetus is a 'person' with its own rights. In fact, this is not the case. A fetus does not become a person until it is born alive. The British Columbia Court of Appeal in R. v. Sullivan (1988), 43 C.C.C. (50) 65; 65 C.R.(3d) 256; 31 B.C.L.R.(2d) 145, approved Robins, J.'s comments in Dehler v. Ottawa Civil Hospital (1979), 25 O.R.(2d) 748; 14 C.P.C. 4; 101 D.L.R.(3d) 686 affirmed 29 O.R. (2d) 677; 117 D.L.R.(3d) 512 (C.A.) to the effect that:

'While there can be no doubt that the law has long recognized foetal life and has accorded the foetus various rights, those rights have always been held contingent upon a legal personality being acquired by the foetus upon its subsequent birth alive and until then a foetus is not recognized as included within the legal concept of 'persons' ... A foetus, whatever its state of development is recognized as a person in the full sense only after birth. In the law of torts or property, in cases involving inheritance or prenatal injury , a foetus would have no rights if stillborn. Only upon live birth can rights acquired during gestation be asserted.'

"In my view finding that there was a duty owed by the defendant doctor to the infant plaintiff is not conferring upon the fetus the status of legal personhood. It did not put the defendant in the impossible situation of owing a duty to one person to terminate the existence of another person. Had the abortion been successfully completed, the infant plaintiff would have had no rights. Her rights only arose when and because she was born alive. At that point she became an independent legal entity who could claim compensation for the injuries suffered in utero.

"The concept that a duty is owed to a fetus is not a novel one. A close analogy is that of the thalidomide children. These children were injured in utero at an early stage. The injuries sustained by these infants were compensable when they were born alive (see Distillers Co. (Biochemicals) Ltd. v. Thompson , [1971] All E.R. 694, [1971] A.C. 458). Had they been stillborn or miscarried, they would not have been able to commence proceedings in their own right. Their right to claim damages for their prenatal injuries exists from the moment of their live birth.

"I find no conflict in the duties owed by the defendant doctor to the respective plaintiffs. Dr. Borsman owed a duty to the adult plaintiff to perform the abortion with due care and he owed a duty to the infant plaintiff not to injure her. The injuries inflicted upon the fetus resulted in rights which accrued to the child upon her live birth. Had the abortion been effective, her cause of action would not have arisen."

[64] The defendant says such a dual duty of care to both the mother and foetus puts the surgeon in an impossible conflict of interest. He asks how can the surgeon have a duty to the mother to destroy the foetus and at the same time have a duty to protect the foetus. He goes on to say that duty of care to the mother negatives any duty of care to the foetus. As we understood counsel, his position is that because of the clear duty of care to the mother, and that duty of care being in sharp conflict with any alleged duty of care to the infant plaintiff, there cannot be any proximity as between the surgeon and the foetus, now the infant plaintiff. When we say proximity we mean as that word is used in the analysis of the concept of a duty of care in the law of negligence.

[65] We cannot agree. We think the law would be wanting and badly flawed if it found itself in the position of having to deny any remedy to this infant plaintiff because of what at first glance may appear to be established principles of negligence. In our opinion the principles of negligence do not stand in the way of recovery for this plaintiff. We think that a surgeon on performing an abortion in a case such as this owes a duty of care to the mother to perform his task properly but at the same time owes a duty of care to the foetus not to harm it if he should fail in meeting the duty of care he owes to the mother.

[66] The law is clear that while the foetus has no cause of action as such, a cause of action arises on its live birth. This is the case here.

[67] In our opinion, the law on this subject is succinctly stated by Fraser, J., of the Ontario High Court (as it then was), in Duval v. Seguin (1972), 26 D.L.R.(3d) 418, 433 where he said:

"Ann's mother was plainly one of a class within the area of foreseeable risk and one to whom the defendants therefore owed a duty. Was Ann any the less so? I think not. Procreation is normal and necessary for the preservation of the race. If a driver drives on a highway without due care for other users it is foreseeable that some of the other users of the highway will be pregnant women and that a child en ventre sa mere may be injured. Such a child therefore falls well within the area of potential danger which the driver is required to foresee and take reasonable care to avoid.

"In my opinion it is not necessary in the present case to consider whether the unborn child was a person in law or at which stage she became a person. For negligence to be a tort there must be damages. While it was the foetus or child en ventre sa mere who was injured, the damages sued for are the damages suffered by the plaintiff Ann since birth and which she will continue to suffer as a result of that injury."

[68] It is significant that the infant plaintiff relies on the injuries she alleges she suffered in the August 31 operation. No reliance is placed by the infant plaintiff on the defendant's failure to realize the abortion had failed. The duty of care in that respect, say the plaintiffs, is a duty to the mother and the mother only. That, say the plaintiffs, is why this is not a wrongful life case. We agree with that analysis.

[69] The defendant says that the infant plaintiff has failed to prove that the alleged negligence of the defendant caused the injuries and disabilities suffered by her. This is what the trial judge said on the issue of causation (at pp. 681-682):

"The Supreme Court of Canada has recently restated the principles to be applied to the ofttimes (sic) difficult task of determining causation in medical malpractice cases.

"In Farrell v. Snell (16 August 1990), 10873 (S.C.C.) at 14, Sopinka, J., speaking for the court, defined causation as follows:

'Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.'

"There has not been consensus in the Canadian courts as to the proper test to be applied to determine causation in medical malpractice cases. Causation is difficult to establish in many instances because of the uncertainty inherent in medical science, especially with regard to fetal medicine. It often cannot be said with absolute certainty that the defendant's actions caused the injury because the exact mechanisms by which the damage occurred are unknown.

"The difficulty in proving causation should not bar an innocent plaintiff from recovering damages. Therefore, an inference of causation is necessary. Legal inferences are far from rare. For example, it could never be proven absolutely that a thalidomide victim was damaged by the drug and not by some other unknown mechanism. Yet, given the rarity of the pattern of defects and the fact that all the mothers had taken the drug at an early, and most dangerous, stage of pregnancy, it was not difficult for most to infer causation.

"In Farrell v. Snell (supra) at 19, Sopinka, J., set out that inferences of causation were necessary in some instances. He stated that:

'The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced.'

"In his view, an inference such as the one drawn concerning the effects of thalidomide is not a matter of speculation, but is merely the application of common sense. He stated at p. 26 that:

'... it is not essential to have a positive medical opinion to support a finding of causation. Furthermore, it is not speculation but the application of common sense to draw such an inference where, as here, the circumstances, other than a positive medical opinion permit.'

"Prior to Farrell v. Snell , Canadian courts had applied a variety of tests to determine causation, largely arising from McGhee v. National Coal Board , [1973] 1 W.L.R. 1; [1972] 3 All E.R. 1008 (H.L.). This area of the law was uncertain as McGhee (supra) was criticized for a number of reasons, most notably for Lord Wilberforce's referral to an onus shift from the plaintiff to the defendant in certain circumstances (see Wilson v. Essex Area Health Authority , [1988] 2 W.L.R. 557). McGhee (supra) has also been interpreted as holding that an 'inference' of causation could be drawn in appropriate circumstances (see for example, Haag v. Marshall , [1990] 1 W.W.R. 361 (B.C.C.A.)).

" Farrell v. Snell mandates a return to traditional negligence principles in the field of medical malpractice. This requires that the plaintiff establish, on a balance of probabilities, that the defendant's negligent act caused or materially contributed to the injury. As stated previously, inferences may be drawn; the standard is proof on a balance of probabilities, not proof beyond a shadow of a doubt. After considering all the evidence, I am satisfied that, on a balance of probabilities, the defendant caused the injuries suffered by the infant plaintiff."

[70] Causation is a question of fact. Before this court can interfere with such a finding it must be shown that the trial judge was wrong in reaching the conclusion he did. The judge referred to the recent decision of the Supreme Court of Canada in Snell v. Farrell , [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229 and went on to say:

"I find that the failed abortion attempt began a chain of events that resulted in the infant plaintiff having to contend with serious physical, mental and social handicaps. All of these consequences, in all probability, were as a result of the negligent abortion attempt."

[71] In our opinion, on the basis of the principles enunciated by the Supreme Court of Canada in Snell v. Farrell it was open to the trial judge to make this finding, and it has not been demonstrated to us that he erred in finding as he did on this issue.

[72] These are the awards made by the trial judge.

1. Cost of future care for

the infant plaintiff

2. Tax gross up award on

the cost of future care

3. Award for infant plain-

tiff's loss of future in-

come, including as a com-

ponent, loss of opportun-

ity to enter into a per-

manent inter-dependency

relationship

4. Management fee to manage

the award for future care

5. Nonpecuniary damages

6. Past care award for the

adult plaintiff, includ-

ing loss of past income

7. Award to the adult plain-

tiff for pain and emotion-

al distress

8. Award to the adult plain-

tiff for future wage loss

9. Special damages

[73] The errors in judgment cited in the defendant's factum are:

"The learned trial Judge misapprehended the evidence and thus erred:

(a) in awarding the infant Plaintiff a home of her own with a fulltime, live-in attendant;

(b) in awarding the infant Plaintiff a management fee;

(c) in calculating the tax gross up on the basis that the income from the cost of future care be 'stacked' on top of all other income received by the infant Plaintiff;

(d) in awarding the adult Plaintiff $53,459.00 for past nursing care costs when the evidence indicated that those costs were not actually incurred;

(e) in awarding the adult Plaintiff $200,000.00 for future wage loss;

(f) in awarding the adult Plaintiff respite care costs in the amount of $3,500.00 per annum to age 19;

(g) in awarding the adult Plaintiff babysitting support to age 19 of $2,100 per annum."

[74] The defendant asserts that the learned trial judge erred in misapprehending the evidence and in awarding the infant plaintiff a home of her own with a full-time live-in attendant after she reaches the age of 19.

[75] We quote from the reasons of the trial judge on this issue (at pp. 694-696):

"The question of the appropriate housing for Elizabeth after age 19 was addressed both by the plaintiffs and the defendants. The plaintiff called one G. Ronald Neufeld whose curriculum vitae consisted of eleven pages of accomplishment; he obtained a Ph.D. in 1974 and he has held many offices having to do with the mentally retarded. In 1978 to 1980 he was the executive director of the B.C. Corrections for the Mentally Retarded. A major priority of that organization, under his direction, had to do with getting persons with mental retardation out of institutions into the community. A number of these people had been institutionalized at Woodlands.

"Dr. Neufeld recounted an extensive connection with the development of monitoring procedures for group homes. He had some criticisms of group homes, specifically that the individual has to comply with the rules and regulations and that the individual has no choice with respect to them nor as to her companions. He felt that as all the residents would be retarded to some extent that the milieu was an unnatural one, an unnatural ratio as he put it.

"Dr. Neufeld's model is apparently a natural ratio which you would have in a normal family. In response to a question from the court he agreed that it would be far better for the retarded individual to live in a family context than in a group home.

"I conclude that for Dr. Neufeld the choices in order of preference would be:

1. A family home setting.

2. A group home setting.

3. An institution.

"He as well, in reference to group homes, referred to a high staff turnover which, in his view, comes about because the staff in group homes are under a great deal of pressure by virtue of the constant interaction with a concentration of persons with mental handicaps and perhaps other handicaps.

"On the other hand, Dr. Kevin Farrell, associate professor in the Department of Paediatrics at U.B.C. and the director of the seizure clinic at B.C. Children's Hospital, set out in Exhibit B, a report dated December 19, 1989 as follows:

'As an adult, I believe strongly that it would be in Elizabeth's best interests to live in a group home. Neurologically disabled adults often describe their major handicap as being their difficulty in maintaining employment and their social isolation. This poor self concept and lack of social skills relates only partly to cognitive dysfunction. The attitude of others towards them and their difficulty in establishing and maintaining friendships appears also to play a significant role. It is very important that neurologically disabled are allowed to remain in a setting where they can enjoy social interaction with their peers and are able to make some contribution to society. Thus, I think that it would be much better that she live in a setting where she was with several other handicapped children. Possibly matched so that they would be able to contribute partly to the welfare of each other. Clearly, such a group home would require to be modified to meet her motor needs. Furthermore, the support staff would also be required to meet her other neurological disabilities.'

"If the court were to be guided by the expense involved, the choice would be that Elizabeth would go as an adult into a group home. However, I conclude that in Elizabeth's case a home or apartment of her own would be reasonable. There is no duty upon her to mitigate in the sense of being forced to accept less than her real loss. I prefer the evidence of Dr. Neufeld and the evidence of Jody Cherry and of various witnesses who have observed the interaction of this infant plaintiff with her mother."

[76] The defendant attacks this finding on the grounds that the evidence does not support it. He says the trial judge must have misapprehended the evidence of Dr. Farrell when he, the judge, said:

"If the court were to be guided by the expenses involved, the choice would be that Elizabeth would go as an adult into a group home."

The point made by the defendant is that the question of expense was not the thrust of Dr. Farrell's opinion. The thrust of this doctor's opinion, the defendant asserts, can be found in this excerpt from his evidence.

"The question that I was addressing here related to what might be the most appropriate setting for Elizabeth when she was adult. I see many multiple handicapped children and in my experience the majority of these children and the parents appear to prefer to use a group home. The arguments in favour of using a group home are that it allows the child the sense of growing up and becoming independent from the parents and it also allows the child to have the company of peers. One of the major problems in handicapped children is that they often grow up with relatively little in the way of social skill and self-esteem because they have always been handicapped and people have helped them."

[77] The defendant goes on to submit that Dr. Neufeld testified in generalities and without specific mention of the infant plaintiff whereas Dr. Farrell had seen her on two occasions and testified that in his opinion the best interests of this plaintiff in the future would be served by her living in a group home.

[78] Defendant's counsel relies on the evidence of the adult plaintiff in support of his submission that the evidence does not support this award. This is the evidence of the adult plaintiff with respect to what she has in mind after the infant plaintiff reaches the age of 19:

"Q. What are your plans for Elizabeth in the future?

A. As far as when she grows up or --

Q. Well, from now until she's 19 and from 19 thereafter, whatever date comes to your mind?

A. Well, until 19 or 20 I expect her to be living with me and going to school. After that I'm hoping to get some independence from her, both for her sake and for my sake. I have seen retarded adults who live with their parents, and I don't think it's quite an adequate situation.

Q. What would you like for Elizabeth?

A. So I would really like to have her looked after and attended upon whatever she needs, and I would be living fairly nearby to supervise and keep an eye on things, but have her living in an independent situation.

Q. There's been some intimation that the defence would seek to have her living in a group home. What's your reaction to that?

A. I feel that would be a step backwards to everything we have been attempting to do so far with Elizabeth. We've gotten her into a regular school, a regular community, she's making some friends in the community. The whole push of integration these days is to live at home in a natural setting, so I think this would be a step backwards, and also it's not as stable as I would like it. As I mentioned, when she was with the babysitter she was very emotionally disturbed by that situation, and I think changing residence and changing caregivers would cause her a lot of problems.

Q. Now, in adulthood similarly what's your reaction to having her group-homed as an adult?

A. It's the same thing."

[79] The submission of the defendant is that in making the finding he did on this issue, and mindful of the other evidence that bears on it, the trial judge must have thought that the adult plaintiff would be living with her daughter in a family setting after her daughter reached the age of 19.

[80] In our opinion it was open to the trial judge on the whole of the evidence before him on this issue to conclude as he did. In his testimony Dr. Neufeld said:

"Q. Does the patient in the group home have any input into policy decisions of the management?

A. That's very, very difficult. There are attempts to get input from people, but by and large when one runs an operation that has up to eight people in it there is a need to get median opinions. That is, to respond to the interests of the group rather than the individuals in it. And so the individual interests and needs of people in that context are considerably limited by virtue of the numbers of people that need -- whose needs must be met, and so autonomy is very difficult.

The Court: Just as it is in a large family?

The Witness: Well, yes.

The Court: I mean, it's not a perfect parallel but --

The Witness: No. The other complicating factor here in contrast to a family is that in my experience with group homes, my personal experience is that boards are very concerned about public attitudes and so they establish rules and policies that in a family context can be quite flexible and respond much more to individual need. Where, in the context of a social program, for example, the whole issue of policy as it relates to the interaction between the sexes, that's a very difficult decision for boards to make and they come down in this area and other areas on the conservative side in the interest of not offending community or not making the community nervous. And so there is a difference. And then, of course, if you have residents -- up to eight residents, then you have a sizable number of staff, and so again, typically, looking at family structures today, in many group homes, the majority of group homes you have a larger than natural number of people. And also, and this I think is very significant, and unnatural ratio of handicapped to non- handicapped people.

The Court: Wait a minute, now. An unnatural ratio or ratio of handicapped to non-handicapped?

The Witness: Yes.

The Court: Explain that? What do you mean by that?

The Witness: Okay. What I mean by that is that in principle we are all --

The Court: All of the people in there are presumably retarded mentally, is that --

The Witness: Yes.

The Court: Are we talking about the retarded?

The Witness: Yes.

The Court: And we are talking about various degrees of retardation?

The Witness: Yes.

The Court: Okay.

The Witness: And what I am saying in the context of a home, if you are trying to achieve a natural setting and natural circumstances, then it seems logical to try and have -- excuse me -- it seems logical to try and create a context in which you have a natural ratio. That is, the same kind of a ratio that you would have in a natural family, if they had a person with a mental handicap, of handicaps to non-handicap.

The Court: Well, in a family -- yeah, I understand what you are saying. I mean, there's usually the one retarded family member and the rest are not retarded?

Witness: I know of two families that I personally have dealt with in British Columbia where there are two persons with mental handicaps. That's very unusual. That's very unusual. We do know, of course, in the context of mental retardation that there are a considerable number of families with one person. Again, people in our field who are striving and struggling for the ideal, contend that an unnatural ratio of handicapped to non- handicapped people creates problems --

Mr. Phippen:

Q. Well, Doctor I think --

A. -- for the person that's trying to provide services.

Q. -- you are treading into an editorial area here, which we are trying to avoid. If, I mean, the only -- is it correct that the only residents in a group home are handicapped? If they weren't handicapped they wouldn't be there?

A. Yes.

The Court: Yes. So we have -- before we leave this, we have to read your remarks as saying it's way better to be in the family context than being in the group home?

The Witness: Yes. Yes."

[81] We have concluded that the evidence of the adult plaintiff as to what she sees as her preference for the future in terms of living with her daughter is not determinative of the issue of the infant plaintiff being provided with a home of her own. On the basis of the evidence of Dr. Neufeld quoted above we do not think it can be said there was no evidence to support this award.

[82] We say this because in our opinion it was open to the trial judge to conclude on the basis of the evidence of Dr. Neufeld that living in a family context does not necessarily mean, in this case, the infant plaintiff living with her mother. The trial judge described Dr. Neufeld's model as "a natural ratio which you would have in a normal family", and in our opinion this is supported by the evidence of Dr. Neufeld.

[83] In our opinion, this ground of appeal must fail.

[84] The next issue is the award of $225,500 for management fee to manage the future care award made to the infant plaintiff. This award is made up of $207, 000 plus $18,500 for GST.

[85] The defendant submits that the rationale of a tax "gross-up" on a future care award is to preserve the integrity of the fund to ensure it survives as long as, in this case, the infant plaintiff. The same rationale, says the defendant, underlies the award of a management fee, but here the uncontradicted expert evidence on the defendant's side is that the expected real rate of return on investment after taking into account the fees which are paid to money managers should exceed 3.5%. Three and one-half percent is the discount rate used in calculating the present value of the future care damages. This 3.5% is the rate set pursuant to s. 51 of the Law and Equity Act , R.S.B.C. 1979, c. 224. The defendant then goes on to submit that in this case inasmuch as the presumed real rate of return (3.5%) is less on the evidence than the expected real rate of return, to award a management fee is to create an estate for the infant plaintiff. This is so because, again on the evidence, the expected rate of return is such that the future care fund will not be self-liquidating as it is intended to be.

[86] This is what the trial judge said on this issue (at p. 722-723):

"There remains the cost of fund management award and Carson's calculations put that at $207,000 plus $18,500 for GST. The submission of the defence made at the trial, was that there was no need for such an award here, as the result of professional management will be to increase the amount required in the fund over and above the amount required to result in it being exhausted upon the infant plaintiff attaining the age of 60 which is the result for which the fund was designed.

"While this is a possibility, I was of the view and I am of the view, that the situation of this young infant plaintiff is such as to constitute her an ideal candidate for an award for the cost of fund management and I award as the cost of fund management $225,500."

[87] The issue here is whether the court should hold that the statutory discount rate is intended to reflect reality and thus not look behind that rate when it comes to the issue of a management fee or should the court take into account the real rate of return as disclosed by the evidence.

[88] Had there been evidence that the real rate of return was lower than 3.5% and thus the rate was too low to maintain the future care award for the infant plaintiff's life, such evidence, in our opinion, would have been irrelevant because of the statutory direction under the Law and Equity Act . In our opinion, if such evidence cannot avail a plaintiff nor should it a defendant. There always has been and always will be an area of real uncertainty as to what the future holds with respect to what a realistic discount rate is when it comes to calculating the present value of an award of damages. The legislature has seen fit to give to the Chief Justice of the Supreme Court a discretion to make regulations prescribing the discount rate for this calculation. In our opinion, it must be assumed that this rate reflects reality as a matter of law. The fact is that a plaintiff is always at risk that unforeseen and unpredictable factors will affect the ability of the discount rate applied to maintain the fund, in this case, throughout the life of the infant plaintiff. We see no reason the defendant should not be subject to those same risks on the other side of the coin.

[89] We conclude that as a matter of law the discount rate under s. 51 of the Law and Equity Act is assumed to be a rate that will see the fund established for future care exhaust itself at the end of the plaintiff's life expectancy.

[90] In our opinion the appeal against the award of a management fee cannot succeed.

[91] The next issue is the calculation of the tax "gross-up" on the award for cost of future care.

[92] In addition to the income the infant plaintiff will have from the award for future care costs, she has the income from the awards for nonpecuniary damages ($160,000), loss of future income ($395,000) and management fees ($225,500). The defendant is not obliged to protect those awards against the incidents of income tax: see Scarff v. Wilson (1990), 66 D.L.R.(4th) 52, 65 (B.C.S.C.).

[93] What the trial judge did in the case before us was to "stack" the income from the cost of the future care fund on top of the "other" income in order to calculate the tax. The effect of "stacking" is to insulate the income from the future care fund from the incidence of tax it would have suffered had there been co-mingling of all the income from all sources of funds in the hands of the infant plaintiff.

[94] This is how the trial judge approached it (at pp. 721-722):

"The next deferred item was the tax gross-up on the cost of future care award. In Exhibit 129 Carson has calculated a tax gross-up of $445,150 and he has added $9,240 to that amount to allow for the GST for a total of $454,390.

"Carson's method to calculate the appropriate gross-up was criticized by counsel for the defendant and therefore some description of his methodology becomes necessary. In calculating the gross-up on the cost of future care award Carson first calculated the tax liability on the income which will flow from the award for the loss of earnings, that amount being $395,000.

"Carson treated that $395,000 as first dollars. He then, as stated, calculated the tax liability on the income from it and he then added the total amount of the cost of future care award, being $1,717,870, to the award for loss of future income to the infant plaintiff, being $395,000, for a total of $2,112,870. He then calculated the tax that would accrue on the income from that total fund of $2,112,870.

"Carson then subtracted the tax liability that would be incurred on the income from the $395,000 from the tax liability that would be incurred on the income from the $2,112,870. To put it another way, Carson calculated the difference between the tax liability on the loss of income award and the tax liability on the total award.

"Carson, using that remainder or difference, then calculated its present value, and that he referred to as the starting gross-up. He then testified that that present value becomes an exhausting fund as well, and that it will earn interest and dividends which will as well be taxed. Carson testified that he had to keep making calculations to allow for that and it was in this manner that he eventually arrived at $445,150.

"Counsel for the defence criticizes this method of calculation. He submits that the court should assess the tax gross-up rather than calculate it, and he takes exception to the loss of future income award and the loss of future care award being 'stacked'. He submits that because Carson stacked the income from the two awards that the gross-up should be reduced by 10%. To paraphrase counsel's submission, it is that Carson has artificially increased the tax payable by stacking the income.

"Counsel for the defendant cited Scarff v. Wilson et al. (1990), 42 B.C.L.R.(2d) 273 and he found solace in what he took from the remarks of Cumming, J.A. and I assume those are the remarks on page 286 and I set them out:

'Thus it is clear, for the reasons given in the authorities to which I have referred, that no gross-up for tax can be added to an award for loss of earning capacity per se. However, the fact remains that the proceeds of that award in favour of the plaintiff remain held to her credit, co-mingled with the other funds held invested on her behalf by the Public Trustee, and contribute to the income earning capacity of the total pool with the result that it is bound to affect, in an upward direction, the marginal tax bracket in which she will find herself when she ultimately becomes liable to pay tax.'

"The concept of co-mingling appealed to counsel for the defendant much more than that of stacking. The submission would seem to be that co-mingling avoids what counsel sees as the unfair aspect of treating the loss of future income dollars as first dollars, thus positioning the income from the cost of the future care award income into higher tax brackets.

"On the evidence before me I assess the gross up at $445,150 plus $9,240 for a total of $454,390. I consider Carson's method of calculating the gross-up to be fair as it subtracts from the gross-up the portion of tax liability that is incurred by the income from the loss of future income award. Stacking does result in the taxpayer paying more income tax as a result of being in a higher bracket but it now seems to be the law in Canada that it is proper to increase the gross-up on that account."

[95] The defendant submits there are three approaches to this problem:

1. ignore the other income altogether which would mean tax on the future care income at the lowest rate;

2. co-mingle all income from all sources as the Department of National Revenue does; and

3. "stack" the income from the future care fund onto the other income, as the trial judge did in this case, which means the highest rate of tax is the "gross-up" figure.

[96] The defendant says that by "stacking" or by co-mingling all income from all sources the net effect is that from an income tax standpoint there is a tax " gross-up" on the "other" income, and in particular on the income from the future loss of earnings fund and the law is clear that this income does not attract tax "gross-up" as part of a damage award in a case such as this.

[97] For the infant plaintiff it is submitted the law is that income from a cost of future care fund should be treated as "second dollars" or "stacked" as the trial judge did here. Authority for this proposition is said to be found in Nielsen et al. v. Kaufmann (1986), 13 O.A.C. 32; 54 O.R.(2d) 188, 205 (Ont. C.A.), McErlean v. Brampton (City) et al. (1987), 22 O.A.C. 186; 61 O.R.(2d) 396, 434 (Ont. C.A.) and Scarff v. Wilson (1990), 66 D.L.R.(4th) 52 (B.C.S.C.).

[98] In Scarff , Cumming, J., as he then was, referred to the judgment of McEachern, C.J.B.C., in Scarff in the Court of Appeal (55 D.L.R.(4th) 247, 260) where he said:

"... I see no reason in principle why the fund awarded for future costs of care should not be protected against the incidence of tax. Without gross-up, such a fund is clearly inadequate for the purpose for which it is intended."

Cumming, J., then went on to say:

"In McErlean v. Sarel (1987), 42 D.L.R.(4th) 577, 61 O.R.(2d) 396, 42 C.C.L.T. 78, the Ontario Court of Appeal took a similar view (at p. 588):

'As a matter of principle, regard has to be paid to the impact of taxation on income from the award for the cost of future care. If this impact is ignored, as the appellant submits it should be, then the award cannot accomplish its prime purpose which is to assure that the plaintiff should be adequately cared for during the rest of his life.'

"Those who argue against making an allowance for taxation in calculating the cost of future care do so, not on the ground that the allowance is not required if the plaintiff is to be adequately provided for, but mainly on the basis that the calculation is so speculative that it should not be attempted.

"As a practical matter the court recognized that the plaintiff would be subject to the payment of tax on the income earned from the award. If this approach were not countenanced the fund, which is designed to be self-liquidating over the plaintiff's life expectancy, could be depleted before the prescribed actuarial date (the expiry of her assumed life expectancy) and would result in there being less than full restitutio in integrum .

"Similarly, he argued that other income of the plaintiff should also be recognized and taken into account. If the true tax rate of the plaintiff is not realized then full restitutio in integrum is again not achieved, and again the fund would be prematurely depleted. In light of the decision of the Supreme Court of Canada in this case, other income must clearly be recognized for otherwise, in the words of Madam Justice McLachlin 'the award will prove insufficient to meet the plaintiff's projected needs'.

"The three cases of which the Supreme Court of Canada approved in this case: Fenn v. City of Peterborough (1979), 104 D.L.R.(3d) 174 at pp. 230-1, 25 O.R.(2d) 399, 9 C.C.L.T. 1 (C.A.); Nielsen v. Kaufmann (1986), 26 D.L.R.(4th) 21 at pp. 34-41, 54 O.R.(2d) 188, 36 C.C.L.T. 1 (C.A.), and McErlean v. Sarel , supra; leave to appeal refused 46 D.L.R.(4th) vi, 63 O.R.(2d) x, [1988] 1 S.C.R. xi, all recognize the 'other income' of the plaintiff in calculating the tax gross-up, as did the trial judge in Watkins v. Olafson (1986), 40 Man.R.(2d) 286, at pp 309-10, 39 A.C.W.S.(2d) 475 (Q.B.).

"In Fenn v. Peterborough , supra, at p. 230 the Ontario Court of Appeal (Mackinnon A.C.J.O., Jessup, Arnup, Zuber and Morden JJ.A.) said:

'It is important, however, to keep the tax question within its proper limits. The defendants are not obliged to provide a sum to pay the taxes that will be incurred on the interest income on the general damage award. We are concerned simply with the amount for future care. However, it must be recognized that other amounts which generate income will propel a plaintiff into a position where the tax rate applicable on the amounts in question will be higher .' (Emphasis added)

"In Nielsen v. Kaufmann , supra, at p. 38 the Ontario Court of Appeal (Mackinnon A.C.J.O, Lacourciére and Morden JJ.A.) stated:

'... it is our view that the trial judge was right to include the amount of Mr. Nielsen's own income ($18,000) in the calculation. There is no justification for ignoring Mr. Nielson's probable actual tax rate which, of course, would be based on his total income: see Waddams, The Law of Damages (1983), at pp. 399-400.' (Emphasis added)

"Similarly, in McErlean v. Sarel , supra, at p. 612, the Ontario Court of Appeal (Howland, C.J.O., Houlden, Morden, Robins and Tarnopolsky, JJ.A.) quoted with approval the passage I have cited from Fenn v. City of Peterborough . And at p. 615, the court observed that this issue had now been settled by the decision in Nielsen v. Kaufmann . They said:

'The appellant also submitted that Mr. Segal's evidence, and hence the trial judgment, was in error in taking the respondent's total income into account in determining the rate of taxation to apply. This point has already been decided by this court, adversely to the appellant's submission: Nielsen et al. v. Kaufmann (1986), 54 O.R.(2d) 188 at p. 205, 26 D.L.R.(4th) 21 at pp. 38-9, 36 C.C.L.T. 1.'"

At p. 61 Cumming, J., concluded his review of the authorities by saying:

"It would appear in principle, that a plaintiff with extra independent wealth is in the same position as one with an extra thin skull."

[99] Mr. Justice Cumming then turned to the question of what other income of the plaintiff should be taken into account, her only other income at the time being that generated by the damage awards made in her favour. He concluded his remarks by saying at pp. 65-66:

"As appears from the passage I have quoted from Fenn the defendant is not obliged to provide a sum to pay the taxes on the interest income on the general damage award nor, on the authority of Thornton , is she obliged to pay the taxes on the interest income of the award for loss of earning capacity. It is the marginal increase on the income earned from the award for the cost of future care occasioned by those other sources of income that is to be protected against."

[100] We conclude that the weight of authority supports the conclusions of the trial judge on this issue and that in arriving at the tax "gross-up" on the award for future care costs he was correct in "stacking" the income from that award onto the "other" income.

[101] In our opinion, what is decisive on this issue is that to do other than "stack" this income means one of two things, neither of which is acceptable in principle. The first is that it would mean the future care fund standing by itself would not survive the plaintiff's life expectancy. The second is that to do otherwise than "stack" would mean calling upon the plaintiff to use her income from her loss of future earnings award and other income to maintain the integrity of the future care costs throughout her life expectancy. In our opinion the obligation to maintain the integrity of the future care award falls on the defendant, not the plaintiff. Lastly, it should be emphasized that this conclusion as to "gross-up" is based on the evidence before the court in this case.

[102] In our opinion, the defendant fails on this issue.

[103] The next issue is the award to the adult plaintiff of $53,459 for past nursing care.

[104] On a rule 18A application in June 1988, Cumming, J., as he then was, awarded the adult plaintiff $75,000 for past loss of wages for the period November 1, 1982 to October 3, 1987. In making this award Cumming, J., said:

"This application raises two issues. The first is whether the plaintiff is, in the circumstances of this case, entitled to recover her loss of earnings, and the second, assuming the first is resolved in her favour, is the measure of that loss.

"With respect to the first issue, the law, in my opinion, is that the negligence of the defendant resulting in the unplanned birth of the child Elizabeth entitles the adult plaintiff to recover, among other heads of damage, the loss of earnings which she has suffered as a result of having given birth to an unwanted child, that no grounds of public policy stand in the way of her right to such relief, and that her right is not affected by the fact that the child born suffers from disabilities which, however they may have been caused, (that is whether by the negligence of the defendant or otherwise) have resulted in that loss of earnings being greater than it otherwise would have been had the child been healthy."

[105] This is how the trial judge in the case now before us dealt with the claim of the adult plaintiff for past care (at pp. 717-718):

"Dealing with the adult plaintiff's claim for past care she has rendered to the infant plaintiff, counsel have agreed that there should be no duplication between past wage loss and past nursing care costs for the same periods of time. Accordingly, the award made by Cumming, J. on June 29, 1988 in the amount of $75,000 in respect of past wage loss for the period November 1, 1982 to October 31, 1987 will be deducted from the award to be made herein in respect of past nursing care costs.

"I find that the annual cost for nursing care is $18,287 including the emergency relief costs. This amount must be discounted annually to make provisions for inflation. Using the factors provided by Mr. Carson in Table 1, Consumer Price Index Values from 1987 (see Exhibit 68), the value of the $18,287 annual award can be discounted to November of 1982. The total amount after such discounting is $128,459. Deducting the $75,000 award made by Cumming, J. in respect of past wage loss, the net award is $53,459. The adult plaintiff is entitled to court order interest on this amount from January of 1983 to the date of this judgment.

"Following the principles stated in the Supreme Court of Canada decision of Arnold v. Teno (1978), 83 D.L.R.(3d) 609, this sum is to be held in trust for Jody Cherry as a quantum meruit for the care and service which she had to supply to her daughter up to the date of trial, January 15, 1990."

[106] Counsel for the defendant says in his factum on this issue:

"The evidence indicates that the adult Plaintiff has nursing training. The evidence indicates further that the adult Plaintiff has provided extensive care to the infant Plaintiff throughout her life. It was upon this basis that Mr. Justice Cumming awarded $75,000.00 to compensate the adult Plaintiff for the time that she was off work taking care of the infant Plaintiff, from January 1, 1983 through December 31, 1987 inclusive. It is respectfully submitted that the adult Plaintiff has been fully compensated for the time spent caring for the infant Plaintiff up to that date (December 31, 1987). It is not proper to calculate the adult Plaintiff's loss on the basis of what it would have cost the infant Plaintiff to hire an outside agency to provide nursing care."

[107] As we read the judgment of Cumming, J., his award for loss of earnings was based on the loss suffered by the adult plaintiff as a result of the unplanned birth of the infant plaintiff with all her physical and mental infirmities. It was not an award based on the cost of nursing care resulting from the negligence of the defendant causing those infirmities. It was an award based on the breach of the duty of care owed by the defendant to the adult plaintiff.

[108] What the trial judge did was to conclude what nursing care costs would have been and then discounted those costs back to 1982. He then awarded court order interest on that figure.

[109] It is clear from the evidence that the infant plaintiff received nursing care well over and above what care would have been provided during the ordinary working hours of a day. We think it was open to the trial judge in this particular case to assess damages for past nursing care as he did making a deduction for past loss of wages of $75,000, and it has not been shown to us that he erred in principle in arriving at the award he did. This being so we would dismiss the appeal from this award.

[110] This is what the trial judge said in making this award (at p. 719):

" Loss Of Future Income Of Adult Plaintiff

"The evidence at trial established that Mrs. Cherry's income, on a full time basis, would likely not exceed $26,000 per year. I accept that she will, in all probability, not be employed on a full time basis in the future, in order to balance work with the time she needs to spend with Elizabeth. Making appropriate allowances for her reduced periods of income earning employment and for inflation, I conclude that an appropriate award for compensation of Mrs. Cherry's loss of future income is $200,000.

"This award is based on the assumption that Mrs. Cherry would attain an average annual income of $10,500 for her half time employment. The present value of this amount to Mrs. Cherry's age 65, as per the net present value of future losses evidence of Mr. Carson, I valuate to be [(10,500/1,000) x 19,030] = $199,815."

[111] An award was made to the adult plaintiff of $17,503.20 for an item described in the Lancaster report as:

" Attendant Care To Age 19 : To relieve Jody Cherry from her on-going care-giving responsibilities, and to allow her to seek full time employment, the services of a nanny were secured in October, 1989 to age 19 ... 17,503.20"

[112] That takes care of the years up to the infant plaintiff reaching the age of 19. After that time the plan of the adult plaintiff is that both she and her daughter will live on their own. This is the evidence of the adult plaintiff as to what the future holds for her in terms of earning an income.

"A. ... so I finally started working in April of '89.

Q. Part time or full time?

A. It was a full-time job but they were temporary assignments so that I could work around my appointments.

The Court: A full-time job but --

A. Temporary assignments with a temporary secretarial agency.

Q. And when that person was hired you went back to part-time work yourself, did you not?

A. That's correct.

Q. In December of '89?

A. It was actually full time, but temporary assignments.

Q. Yes. And you were working right up to Christmas, were you not, in '89?

A. That's correct.

Q. And what's your aim in the future, what do you intend to do after this case is resolved in the way of working yourself and looking after Elizabeth?

A. I would like to get a part-time -- a permanent part-time job, but that would hinge on an employer being lenient enough to give me time off to go to Vancouver. If that wasn't possible, I would have to continue with temporary assignments.

Q. Go to Vancouver for what purpose?

A. For the orthopaedic doctor, and also I have to go for the braces, manufacture and adjustment of the braces."

[113] It can be seen from the above that the only impediment to a full-time job facing the adult plaintiff is the need to come to Vancouver to see the orthopaedic specialist over the years. It will be remembered that the plaintiffs live in Victoria.

[114] In making the award of $200,000 for loss of future earnings the trial judge calculated this figure on the basis of her working half time until age 65.

[115] With respect, we do not think the adult plaintiff has met the onus on her of establishing future loss of earnings up to age 65. In our opinion, the adult plaintiff has failed to demonstrate on a balance of probabilities that she will suffer any loss of income in the future or that there is any real risk of any such loss as a result of the negligence of the defendant and the tragic condition her daughter has to live with. We would allow the appeal against the award of $200,000 for future loss of earnings of the adult plaintiff.

[116] This award appears in the Lancaster report which the trial judge reproduced in his reasons for judgment "indicating the amount allowed for each item in her report". Suzanne Edith Lancaster is described in her report as "Senior Consultant, President and Founder, West Coast Rehabilitation Consultant Ltd.". Item 27 in that report reproduced in the reasons for judgment has been reproduced in these reasons above. That is the award of $17,503.20 a year for attendant care to age 19. Item 31 in that same report is:

"Babysitting support to age 19 . - $2,100.00 a year."

[117] For the defendant it is submitted that this award is unnecessary and inappropriate given that the infant plaintiff has already been awarded $17,503.20 per annum for full-time attendant care. For the plaintiffs it is submitted that this award "is fully supported on the evidence".

[118] Ms. Lancaster was called at trial as a witness for the plaintiffs. We have read her cross-examination and it was not put to her that there is a duplication here or any element of duplication. That being so, we are left to speculate and substitute our own view for that of Ms. Lancaster which was accepted by the trial judge. We cannot do that. The onus is on the appellant to show error and this has not been done. We would dismiss the appeal from this award.

(d) Respite Care Costs

[119] This figure was $8,400 in the Lancaster report and reduced to $3,500 by the trial judge. "Respite Care" is described as:

"... an essential component of the support services which should be available to the parent of a disabled child to age 19."

[120] The defendant says this award overlooks the evidence of the adult plaintiff that respite services are available to her at little or no cost. The trial judge reduced this claim from $8,400 yearly to $3,500 and we cannot say he was wrong in reaching this conclusion. We would dismiss the appeal from this award.

[121] We reproduce from the factum of the plaintiffs the matters appealed on the cross-appeal:

"1. The learned Trial Judge erred in fixing the life expectancy of the infant Plaintiff as 60 years, based on Tables introduced in medical evidence which were of Institutionalized females, and which did not take into account the life expectancy of females with their own home with good attendant care, and did not take into account probable advances in medicine which would tend to extend her life expectancy.

"2. The learned Trial Judge erred in:

(a) Reducing the amount awarded for future wage loss by diminished life expectancy of the infant respondent;

(b) Calculating the amount of future wage loss of the infant respondent based on two year post secondary education of a female rather than the average lifetime earnings of a University educated male;

(c) Discounting the $190,449.00 figure for loss of marriage opportunity or opportunity to form an interdependency relationship by 47% in view of the uncontradicted evidence of the Economist Carson which was accepted, and should have resolved the issue by applying a discount of 20% for the possibility that the infant respondent might yet marry.

"3. The learned Trial Judge erred in the manner in which the amount for past care of the infant was awarded the adult Plaintiff and should have awarded the higher of the past wage loss for the years 1988, 1989 and 1990 and the figure for past nursing care that he found, and the award should have been $85,880.00.

"4. The learned Trial Judge erred in principle in accepting the evidence of Irene Harris and discounting the amounts for initial outlays for mobility aids/orthotics and the yearly cost of same and should have awarded an initial outlay of $33,142.80 and a yearly cost of $5,690.50 rather than the respective figures $19,470.00 and $4,041.06 that he did award."

[122] We deal now with the trial judge fixing the life expectancy of the infant plaintiff at 60 years.

[123] The trial judge said in his reasons that the medical opinion was that the infant plaintiff's life expectancy would be between 50 and 60 years and he concluded: "that I must proceed on the basis that she will survive to age 60".

[124] For the infant plaintiff it is said that all the evidence before the trial judge on this issue dealt with institutionalized females and there were no statistics for females "living in their own home with good attendant care". It is the submission on behalf of the infant plaintiff that in her circumstances and with the resources that will be available to her, her life expectancy must, as a matter of principle, be considered to be longer than studies referred to in the evidence. Counsel directs us to the evidence of Dr. Tibbles, a specialist in paediatric neurology, called by the plaintiffs who testified:

"Q. All right. Now, then turning to life expectancy. Would you run through your report and give the court your conclusions on the life expectancy of this child?

A. As I've written on page 7, studies that have been done on the life expectancy firstly of patients with mild mental retardation once they've reached the age of between 5 and 10 it's close -- considered close to that of the normal population. And of the studies that are relevant, there is one carried out in Sweden that has been somewhat more generous than most others, but they've found the expectancy to be 98 percent of the standard population for that group. Then in a study done in -- in the UK, the average age of death of institutionalized females; in other words, who are in hospital with varying severities, it was found to be about 60 years in 1980. And then in a Canadian study, which is probably the most applicable to us here, obviously, has described an additional life expectancy in those who reach the age of 5 to be 53 years more which would be in the same ballpark. So there on the basis of being mildly mentally handicapped only, one would expect this to be fairly close to 60 as a life expectancy. There are, however, her other problems, and it's difficult to know how much weight to give those. The cerebral palsy is mild so I wouldn't anticipate that it would reduce Elizabeth's life expectancy much. The information on CFTD is that one wouldn't anticipate that it would make a significant reduction in life expectancy so I have arbitrarily reduced my life expectancy a little and -- because there are no firm figures to go on and I have said I think a figure of expecting between 50 and 60 years as her life expectancy.

Q. That statistic of -- that you refer to, Carter and Jancar, that's the UK one, is it?

A. Yes.

Q. That talks about institutionalized females. Is there a statistic for females living in their own home with attendant care?

A. No. The studies that have been done, for obvious reasons, are easier to do on people that live in institutions and so that's where the figures come from.

Q. Would you expect there to be a difference between -- in the life expectancy between the institutionalized female and the female living in her own home with attendant care?

A. It's a little trite to say it is going to depend on the calibre of the home.

Q. The calibre of the care, yes.

A. But if it's a good home with good resources, I would expect it to be longer. I don't know how much longer because there aren't any figures, but one would look to having one individual who's dedicated to the care of somebody and who is capable as being able to provide somewhat better care than a succession of individuals who, although capable and devoted and responsible, are nevertheless doing a job rather than being a parent. However, as I say, there aren't figures that I'm aware of that tell you that."

[125] Counsel says this opinion of Dr. Tibbles supports the conclusion that 65 is the correct figure for life expectancy.

[126] The important thing in our judgment is that the evidence as accepted by the trial judge is that life expectancy for the infant plaintiff is between 50 and 60 years. The trial judge chose 60 years. In our opinion, by concluding a life expectancy at the highest end of the range it must be taken that he was mindful of the evidence from which it could be inferred that the infant plaintiff's life expectancy was greater than the figures in the cases that formed the studies and conclusions placed before him in evidence. Had the trial judge concluded 55 was the life expectancy we would have been slow to interfere on the ground that it could not be said this would have been a palpable and overriding error and plainly wrong. At a figure of 60 we are of the opinion that no error whatever can be attached to this finding and it is amply supported by the whole of the evidence. We would dismiss the cross-appeal from this finding of fact.

[127] The next issue on the cross-appeal is the reduction of the amount awarded for the infant plaintiff's loss of future earnings by her diminished life expectancy.

[128] The defendant concedes that in the usual case it is inappropriate to reduce the award for future wage loss by reason of the diminished life expectancy of the plaintiff: see Andrews v. Grand and Toy (Alberta) Ltd. , [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452; [1978] 1 W.W.R. 577; 3 C.C.L.T. 225. However, in this case, says the defendant, the infant plaintiff was born with a reduced life expectancy and so it was appropriate for the trial judge to calculate the future loss of earnings based on that reduced life expectancy. This is how the defendant puts it in his factum:

"In other words, if the Respondent is successful in upholding the finding of a breach of duty, and the finding that the breach of duty has left the Plaintiff alive but injured (and therefore incapable of working), it would clearly be inappropriate to assume a normal life expectancy. The assumption, given no breach of duty, is that the Plaintiff would not have had any life expectancy. She would not have earned anything. The negligence of the Defendant, as found by the learned trial Judge, was in allowing her to survive but in a state in which she could not earn any income. In these very extraordinary circumstances, it is appropriate and proper to calculate the future income loss on the basis of the reduced life expectancy."

[129] In our opinion, as mentioned above, the law is clear that a foetus while injured en ventre sa mere does not have a cause of action for those injuries until he or she is born live: see R. v. Sullivan and Lemay (1988), 31 B.C.L.R.(2d) 145 (B.C.C.A.), affirmed on this point [1991] 1 S.C.R. 489; 122 N.R. 166, citing Dehler v. Ottawa Civic Hospital (1979), 25 O.R.(2d) 748, affirmed 29 O.R.(2d) 677. We quote from the judgment of the court in Sullivan at p. 154:

"In Dehler v. Ottawa Civic Hospital (1979), 25 O.R.(2d) 748, 14 C.P.C. 4, 3 L. Med. Q. 141, 101 D.L.R.(3d) 686, affirmed 29 O.R.(2d) 677, 117 D.L.R.(3d) 512 (C.A.), an application was brought by an Ottawa lawyer as a representative of those unborn persons or that class of unborn persons whose lives may be terminated by abortion in the defendant hospital, claiming certain injunctive and declaratory relief the effect of which would be to prohibit further therapeutic abortions from being performed in the hospital. The court held that an individual suing on behalf of unborn children had no standing to pursue an action claiming declaratory and injunctive relief against the hospital to require it to comply with the therapeutic abortion provisions of the Criminal Code . The court went on to state that foetuses do not have an independent legal personality prior to birth. Robins, J., stated at p. 695:

'What then is the legal position of an unborn child? Is it regarded in the eyes of the law as a person in the full legal sense? Does it have the capacity in law to prosecute an action sounding in tort or to sue for injunctive relief? The short answer to the latter questions is 'No'. While there can be no doubt that the law has long recognized foetal life and has accorded the foetus various rights, those rights have always been held contingent upon a legal personality being acquired by the foetus upon its subsequent birth alive and, until then, a foetus is not recognized as included within the legal concept of 'persons'. It is only persons recognized by law who are the subject of legal rights and duties. 'Persons are the subjects of rights and duties: and as the subject of a right, the person is the object of the correlative duty ... A person is such, not because he is human, but because rights and duties are ascribed to him. The person is the legal subject or substance of which the rights and duties are attributes. An individual human being, considered as having such attributes is what lawyers call a natural person': Pollock, First Book of Jurisprudence , p. 110.

'Since the law does not regard an unborn child as an independent legal entity prior to birth, it is not recognized as having the rights the plaintiff asserts on its behalf or the status to maintain an action. A foetus, whatever its state of development, is recognized as a person in the full sense only after birth. In the law of torts or property, in cases involving inheritance or pre-natal injury, a foetus would have no rights if stillborn. Only upon live birth can rights acquired during gestation be asserted. In none of the decisions to which I have referred or of which I am aware, has the foetus been regarded as a person before its birth. In short, the law has set birth as the line of demarcation at which personhood is realized, at which full and independent legal rights attach, and until the child en ventre sa mere sees the light of day it does not have the rights of those already born.'

"An appeal to the Ontario Court of Appeal was dismissed.

"Earlier, the Supreme Court of Canada in Montreal Tramways Co. v. Léveillé , [1933] S.C.R. 456, 41 C.R.C. 291, [1933] 4 D.L.R. 337 [Que.], had held that a child who suffers injury while in its mother's womb as a result of the wrongful act or default of another has a right after birth to maintain an action for damages for the injury received by it in its prenatal state. Lamont, J., delivering the judgment of the majority, said at p. 463:

'To the Company's contention that an unborn child being merely a part of its mother had no separate existence and, therefore, could not maintain an action under article 1053 C.C., the answer, in my opinion, is that, although the child was not actually born at the time the Company by its fault created the conditions which brought about the deformity of its feet, yet under the civil law, it is deemed to be so if for its advantage. Therefore when it was subsequently born alive and viable it was clothed with all the rights of action which it would have had if actually in existence at the date of the accident . The wrongful act of the Company produced its damage on the birth of the child and the right of action was then complete.'

"These cases illustrate that in civil proceedings in Canada the line of demarcation drawn by the court has been the live birth of the child." (Emphasis added)

[130] On birth the infant plaintiff had the right to have her claim for future loss of earnings or earning capacity assessed on the basis she would have enjoyed a normal earnings life span. That is, on the basis of what her life span would have been absent the injury to the foetus. To paraphrase Lamont, J., in the Montreal Tramways case (above quoted), when the infant plaintiff was subsequently born alive she was clothed with all the rights of action which she would have had if actually in existence at the date of the injury to the foetus. In our opinion, the damage for future loss of earnings must be assessed on that basis.

[131] There is no suggestion in the evidence that but for the negligence of the defendant with respect to the duty of care found to be owing to the infant plaintiff her life span and earning capacity would have been reduced from the normal. To hold that the life expectancy of the infant plaintiff for the purpose of calculating future loss of earnings or earning capacity should be on the basis of her life expectancy at birth would be to reduce the liability of the defendant in damages by reason of his own negligence. In our opinion, it would be wrong in principle to assess damages on a basis that would result in the defendant benefiting from the results of his negligence in terms of the assessment of damages for future loss of earnings. If the results of the defendant's negligence were to reduce the otherwise normal earning capacity of the infant plaintiff by reason of some physical or mental impairment that did not reduce life expectancy, the defendant would be liable in damages on the basis of that normal life expectancy. Here, one of the results of the defendant's negligence is a reduced life expectancy, and, in our opinion, he cannot benefit from that result of his own negligent act.

[132] We turn now to the assessment of future loss of earnings. The trial judge awarded $395,000 on the basis of a life expectancy of 60 years and a finding that the infant plaintiff would have worked until age 52. This figure of $395,000 included $100,000 as the loss of family income portion being the financial benefit to be derived from a marriage or like relationship which has been lost to the infant plaintiff.

[133] We think on the basis of the evidence of Carson as accepted by the trial judge and the trial judge's approach to this assessment, the loss of future earnings award should be increased from $295,000 to $340,000. This will bring the award described by the trial judge for "her loss of future income" to $440, 000.

(c) Basis For Assessing Future Wage Loss

[134] The next error asserted by the infant plaintiff is the trial judge assessing future loss of income on the basis of two years of post-secondary education of a female rather than the average lifetime earnings of a university educated male. The figures used by the trial judge were under the heading " Projection of Future Earnings for a B.C. Female with Post-Secondary Non-University Certificate". The infant plaintiff says this award should reflect what the infant plaintiff could have earned. It is submitted on her behalf that "... her lost capacity to earn income should be measured as equivalent to the average lifetime earnings of a University educated male. She could have attained a University education and achieved a high level of income in business or one of the Professions".

[135] Counsel goes on to say that by the time the infant plaintiff would have entered the work force wage rate discrimination between men and women "would probably have disappeared or certainly diminished".

[136] We were referred to Tucker v. Asleson , unreported, Vancouver Registry, April 25, 1991, Finch, J., (S.C.B.C.) and Beaudry v. Hackett , unreported, Vancouver Registry No. C903202, June 28, 1991, Thackray, J. (S.C.B.C.).

[137] In Tucker the plaintiff was eight years old on the date of the accident and 12 years old at the date of judgment. She was described by the trial judge as "an above average student with the potential for further excellent results in academic work". The trial judge found her "totally disabled from gainful employment". He said, "She could have become a doctor, lawyer or business person". He accepted that the measure of her lost capacity to earn an income was the equivalent of the average university-educated B.C. male. He then turned to what he described as "the more difficult question" of evaluating "the likelihood of the plaintiff achieving her potential". He concluded his judgment on this issue by saying:

"Looking at all the evidence in this case, it would in my view be realistic to discount the plaintiff's potential income earning capacity, which I accept as the average of a university educated male, by something on the order of 60-65%. I allow damages under this head in the sum of $350,000.00."

[138] In Beaudry the plaintiff was 21 years of age at the date of judgment. She was the victim of sexual abuse. On the claim for loss of future earnings, Thackray, J., declined to follow the approach taken by Finch, J., in Tucker . Thackray, J., said at p. 10 of his reasons:

"In recent reasons of Mr. Justice Finch he rejected the approach of using the figures for a female. He found that that represented a gender bias and consequently he used the figures for a male and then reduced them to compensate for the historical pattern and for contingencies such as child bearing and rearing on the part of a female. I am not in any way suggesting that Mr. Justice Finch was wrong in his approach but I am not prepared to follow it. I will use the historical pattern but recognize that in the future the disparity between males and females will narrow. On the other side of the coin it is going to have to narrow very quickly with respect to Ms. Beaudry because we are looking at a loss of income for only the next very few years."

and again at p. 11:

"I would set the future loss of income figure at $35,000 but for one factor, and that is that there is the progression in female incomes. Applying that I will increase that figure for future loss of income to $40,000."

[139] At trial the plaintiffs before us called Robert Carson, a consulting economist with Associated Economic Consultants Ltd. In his report filed at trial Carson said:

"The statistical data available from the Census and from other surveys published by Statistics Canada show clearly that women's levels of attachment to the labour market have continued to become stronger, and it is becoming increasingly likely that women will choose occupations in which real earnings and years of experience are strongly related."

[140] We conclude that there was evidence before the trial judge that would have permitted him to increase the figures for a female with post-secondary non- university education to reflect the changing place of women in British Columbia in the market place. Carson testified that "... women's behaviour in the market is changing very quickly, but not fast enough for the statistics to reflect it". However, there was evidence before the trial judge in the form of a report from M. Kaushanky, an educational psychological and rehabilitative consultant retained by the plaintiffs who said:

"It is envisaged that with the recent trend of the Ministry of Education to maintain handicapped youngsters in their own neighbourhood school with ancillary support, Beth will probably remain in the public school system throughout her educational life. Additionally, I would expect Beth to continue for approximately two years at some post-secondary institution to improve basic functional skills.

" Discussion :

"When determining the educational ability and potential of a child, one must assess a number of indices in and around the child's environment:

1. Parental education; level of attainment and presence of any educational problems within the parents' history;

2. Present vocational status of parents and stability of work habits;

3. Achievement or orientation in the household;

4. Sibling (if any) achievement.

"Given the parental background, it is my opinion that Beth could well have finished an academic program in high school. Additionally, I would suggest that she would have been a candidate for a two-year post-secondary technical program at a community college. Additionally, there is the possibility that Beth could have gone on to complete a four-year university course."

[141] This evidence supports the finding made by the trial judge.

[142] Having said what we have on this issue the question before us is whether the trial judge fell into error in principle in using the figures he did. There are few more difficult assessments made in personal injury cases than those for future loss of earnings or earning capacity. The difficulty becomes more marked when there is little or no history to use as a starting point. The assessment in this case could not be more difficult. We have concluded that it cannot be said the trial judge erred in the approach he took to this assessment or the conclusion he reached.

[143] It is useful here to reflect on the judgment of Locke, J.A., of this court in Anderson v. James et al. (1992), 7 B.C.A.C. 205; 15 W.A.C. 205; 87 D.L.R.(4th) 419, at 427, where he said:

"I have examined the tables referred to by Carson in his evidence. I was originally of the view that, if these tables were utilized, the award ought to have been higher. On consideration, however, I am unable to say that the trial judge was wrong in his assessment. He had all the hard evidence of the plaintiff's earnings in front of him and he also had the benefit of seeing the plaintiff. Any inference by this Court would be substituting my own estimate for that of a judge's award, when I am unable to say that he is clearly wrong. So while I might have decided differently, I affirm the figure of $90,000 as the present value of what the plaintiff would have earned from conventional employment until attaining age 65."

[144] As with Locke, J.A., we may have reached a different conclusion than the trial judge did on this assessment, but we cannot say he was clearly wrong in the manner in which he approached the assessment and in the assessment itself.

[145] We would dismiss the cross-appeal on this issue.

[146] There was argued before us a point that was not referred to in the factum of the plaintiffs on the cross-appeal. This was not objected to by counsel for the defendant. That point was that the trial judge failed to take into consideration in his calculations as to loss of future earnings the fringe benefit component. In his report Carson testified that he estimated non-wage benefits would add 10% - 12% to the value of compensation. Looking at the tables that were before the trial judge we are not satisfied that he failed to take fringe benefits into account. In our opinion this argument cannot succeed.

[147] The submission is that this discount of 47% should have been 20%. Counsel for the plaintiffs says the trial judge was bound to follow the uncontradicted evidence of the economist Carson, and that to do otherwise is an error in principle. We cannot agree. Tables and figures are not meant to be the masters but rather are used to assist the judge in making what is in this case even more so, a difficult assessment. The trial judge expressed some reservations about the evidence of Carson on this point. He said (at p. 714):

"I have reduced the loss of family income portion of her loss of future income on the grounds that the infant plaintiff might not have married or formed a similar relationship of interdependency. Furthermore, I am dubious about witness Carson's assumptions that children represent both a cost and a financial benefit to their parents. Children may well be a cost which would diminish any financial benefit the parents may derive from them in the future. Therefore, in my view, any financial benefit derived from a marriage or like relationship must also be adjusted to reflect the cost of bringing up children. As the loss of family income portion of her loss of future income, I have arrived at $100,000."

[148] In our opinion, it was open to the trial judge to take the view he did and it cannot be said that there was error in this. We would dismiss this ground of the cross-appeal.

[149] This witness was called by the defence. Ms. Harris describes herself as a "Certified Work Capacity Evaluator" and works for OT Consulting/Treatment Services Ltd. This is what the judge said on this issue (at pp. 697-698):

"Turning to Exhibit 51, the Lancaster report, the defendant's overall submission was that no award should be made for various reasons. Their alternate submission was that as the infant plaintiff at age 19 should go into a group home, any award for her costs after age 19 should be minimal. The defence called one Irene Marie Harris, B.S.C., who in 1988 was certified as a work capacity evaluator by the State of California.

"Ms. Harris had not seen or interviewed Elizabeth Cherry. In contrast to the plaintiff's witness, Suzanne Lancaster of West Coast Rehabilitation Consultants Ltd., Ms. Harris' recommendations were a good deal more modest than those of Ms. Lancaster. Given the thorough evaluation done by Ms. Lancaster, I am of the view that her evidence, which is a costing of various items the need for which Dr. Beauchamp agreed to, by and large is reliable. At the same time I was impressed by Ms. Harris and I have accepted parts of her evidence."

[150] The plaintiffs say it was in error in principle for the trial judge to accept any of the evidence of this witness. The reason given for this is that Ms. Harris had never seen the infant plaintiff, had never talked to the adult plaintiff, had not talked to any of the infant plaintiff's teachers, physiotherapists, psychologists or doctors, and had not read the reports of the orthopaedic specialist.

[151] In our opinion, it was open to the trial judge to weigh and accept part or parts of the evidence of Ms. Harris with all its imperfections. We would dismiss this ground of appeal.

[152] The error alleged here has been dealt with in the appeal itself and we have concluded the defendant had not demonstrated any error in this assessment. The adult plaintiff cross-appeals on this award saying the trial judge erred in principle in not using the figures in the report of Carson as to the adult plaintiff's anticipated loss of earnings for 1988 and 1989, and using Carson's figure for 1989, for 1990. This, says the adult plaintiff, would increase this award from $53,459 to $85,880. In our opinion, the trial judge is not obliged to accept any particular figures that amount to no more than opinions in a case such as this. These awards are assessed, not calculated. We are not satisfied the trial judge fell into any error in assessing these damages as he did, and in our opinion this ground of the cross-appeal must fail.

1. The appeal against the finding of liability is dismissed.

2. The appeal is dismissed on all the issues of damages with the exception of the award of $200,000 to the adult plaintiff for future loss of earnings.

3. The appeal with respect to the award of $200,000 to the adult plaintiff for future loss of earnings is allowed and that award is set aside.

4. The cross-appeal is dismissed with the exception of the infant plaintiff's claim for future loss of income (as described by the trial judge) and that assessment is increased from $395,000 to $440,000.

[153] On the issue of costs, we direct that the plaintiffs r