1981 CarswellAlta 350
Alberta Court of Queen’s Bench
Osborne v. Peeling
1981 CarswellAlta 350, 30 A.R. 500, 8 A.C.W.S. (2d) 77
Osborne and Osborne v. Peeling and Peeling
Peeling v. Osborne
Foisy, J.
Judgment: February 19, 1981

Counsel: A. Weir, for plaintiff (defendant by counterclaim).
D. W. Lutz, for defendants (plaintiffs by counterclaim).
Subject: Public

Headnote

Motor Vehicles --- Rules of road — Keeping proper lookout
Plaintiff riding motorcycle -- Motorcycle colliding with vehicle operated by defendant -- Plaintiff injured -- Visibility good -- Defendant failing to see plaintiff -- Plaintiff exceeding speed limit -- Liability apportioned 25% to plaintiff and 75% to defendant.
Motor Vehicles --- Rules of road — Right of way — Arterial highways — Motorist on secondary or private roadway — Duty to stop
Highway Traffic Act, R.S.A. 1970, c. 169, s. 122.
S. 122 of Act placing onus on driver defendant not to leave stop sign and proceed across intersection until movement can be done safely -- Defendant negligent -- Liability apportioned 25% to plaintiff and 75% to defendant.

Foisy, J.:

1      The plaintiff sues for damages sustained as the result of a collision between a motor cycle operated by the plaintiff with a motor vehicle operated by the defendant, Judith Lynn Peeling. The motor cycle was owned by the plaintiff’s father and operated by the plaintiff with his father’s consent. The defendant, Sidney James Peeling, owned the vehicle driven by Judith Lynn Peeling and had consented to its operation by her. Sidney James Peeling counterclaims for the damages to his motor vehicle.

Liability

2      The accident occurred on the 19th of September, 1975, at approximately 8:30 in the morning, at the intersection of Brentwood Boulevard and Alder Avenue in Sherwood Park, Alberta. It was a bright, sunny, clear day and the road was dry. Brentwood Boulevard, at its point of intersection with Alder Avenue, is a wide road running north and south with the north-bound and south-bound traffic being separated by a median. At the point of intersection of Brentwood Boulevard and Alder Avenue, there are four north-bound lanes, the most easterly being for a right turn, two straight-through lanes, and the most westerly along the median being for traffic turning left onto Alder Avenue. At that point, there were three lanes accommodating south-bound traffic.

3      At that time of day, traffic is heavy, both with vehicular and pedestrian traffic. Both the plaintiff and the defendant, Judith Lynn Peeling, were familiar with this intersection and were aware of the amount of traffic which then might reasonably be expected.

4      Brentwood Boulevard is a throughway and traffic crossing Brentwood Boulevard on Alder Avenue, in either direction, is controlled by a stop sign. The evidence is clear that at the stop sign on Alder Avenue, on the west side of Brentwood Boulevard, visibility to the south is unrestricted for at least some 300 yards.

5      I am satisfied on the evidence of the witnesses, Lamont, Steinert and Rabby, that the speed limit on Brentwood Boulevard at that time was 30 miles per hour.

6      Just prior to the accident, the defendant Judith Lynn Peeling was proceeding in an easterly direction on Alder Avenue. She intended crossing Brentwood Boulevard. She stopped at the stop sign on Alder Avenue at the Brentwood Boulevard intersection. It was 8:30 a.m. Before proceeding, she looked in both directions and saw a school bus approximately equidistant between Alder Avenue and Wye Road. Wye Road runs east and west and is approximately three blocks south of the Brentwood/Alder intersection. She felt it was safe to proceed across the intersection and did so, at an estimated speed of 5 to 10 miles per hour. She stated that she did not see the motor cycle at any time prior to the collision, but when she was about three-quarters of the way through the intersection, in that portion of the boulevard accommodating north-bound traffic, she was struck by the motor cycle. From the stop sign at Alder Avenue, there was a clear view all the way to Wye Road. She denies that the sun was shining in her eyes when she was stopped at the stop sign. She further testified that after leaving the stop sign, she was not certain if she looked to her right again. She did not see the motor bike and could only guess that it might have been on the east side or to the rear of the school bus.

7      The plaintiff, William Osborne, a 15-year-old high school student, left home that morning on his way to school. He was operating a 350 Kawasaki motor cycle, described as a trail bike. He was familiar with the motor cycle in question, and stated that it was in good condition. The motor bike had no windshield, and the headlight was on. He was wearing a yellow helmet with black and white flourescent stripes. The bike was painted a bright green. He states he was wearing a burgundy leather jacket and blue jeans. The road was paved, dry and clean, and visibility was good. The bike was handling well. He travelled westerly on Wye Road and turned north on Brentwood Boulevard. He caught up to a school bus, passed the bus on its right side, and pulled into the lane in front of the bus. He stated that the next thing he saw was a car in front of him. He clenched his fist, hit the brakes, and struck the car. His evidence is that he passed the bus approximately a block or less north of the Wye Road intersection with Brentwood, and had been travelling in front of the bus for approximately two blocks before coming to the intersection where the accident occurred. He further stated that there were no other vehicles in the immediate area. He estimates his speed at the time of the accident at approximately 30 miles per hour, although he was not watching his speedometer. He was familiar with the intersection in question and knew that any vehicles coming through the intersection from Alder Avenue would have to stop, and that he had the right-of-way. The defendant’s car was approximately one car length away from his motor cycle when he first saw it.

8      Glen Rabby testified that at 8:30 that morning, he was on Alder Avenue on the east side of Brentwood Boulevard. He was parked at the stop sign facing west. He noticed the motor cycle operated by the plaintiff when it was 300 to 400 feet south of the intersection where the accident occurred. Rabby had had some experience with motor bikes, having owned one, and from time to time having gone bike riding with his brothers and brother-in-law, who also owned motor cycles. He states that he clearly saw the motor cycle’s headlight on and that there was no school bus in the vicinity of the motor cycle operated by the plaintiff. His evidence is that the plaintiff wore a white helmet and that the motor cycle in question was yellow. He estimated the speed of the motor cycle in excess of 40 miles per hour. He testified that its driver had changed gears at least three times. His car window was open and he could hear the sound of the gears changing. This is consistent with the plaintiff’s evidence to the effect that the motor cycle in question was noisy. In his view, the motor cycle was continually accelerating up to the point of impact. He states that although the plaintiff made no attempt to brake, he did swerve perhaps some 20 feet to the east prior to the point of impact. He stated that the motor cycle was in the more easterly of the two north-bound lanes. In cross-examination he agreed that the motor bike might have been operating close to the more westerly of the two north-bound lanes. Further in cross-examination, Rabby admitted that in a previous statement given sometime in 1979, he had estimated the plaintiff’s speed at 35 to 40 miles per hour. While he disagreed with some of the contents of the statement made in 1979, he did not say that he disagreed with his estimate of the plaintiff’s speed given at that time. In his view, the motor cycle could not have escaped colliding with the car. The defendant’s car was blocking that entire portion of the intersection at the time of the collision.

9      Beryl Steinert was driving her school bus at approximately 8:30 that morning. She was proceeding north on Brentwood Boulevard and estimated her speed to be between 25 and 30 miles per hour -- no more than 30 miles per hour. At some point between Wye Road and the intersection of Brentwood with Alder, she noticed a motor cycle to her right. The motor cycle would have passed her some distance south of the intersection of Alder with Brentwood. The motor cycle did not proceed in her lane in front of her. She did not notice anything unusual about the motor cycle. She was still south of the intersection in question when the accident occurred. This is consistent with Rabby’s evidence that 3-400 feet prior to the point of impact he observed the accelerating motor bike in the easterly north-bound lane and could not see the school bus. Mrs. Steinert was not paying particular attention to the motor cycle. She had the responsibility of watching the children on the school bus and was also paying attention to a child that was crossing Brentwood Boulevard from west to east to her left. She says that she noticed the child while she was still some distance south of the intersection. Her evidence is that she was travelling in the most westerly north-bound lane, closest to the median.

10      Sigfreid Moser that morning was driving his son to school. He stopped at the intersection of Brightcroft Road (a southerly extension of Brentwood Boulevard) at the intersection of Brentwood and Wye Road. While stopped for a red light, he saw a motor cycle proceeding westbound on Wye Road take the cut-off turning north onto Brentwood Boulevard. Mr. Moser is familiar with motor cycles and had some racing experience, and had owned motor cycles. He estimated the motor cycle he saw to be at least a 300 cc bicycle. The posted speed on the Wye Road at that time was 45 miles per hour. In his estimation, the motor cycle in question was travelling in excess of 50 miles per hour when turning onto Brentwood Boulevard. His evidence was that the driver of the motor cycle, in order to maintain control, had to lean into the turn to such an extent that portions of the bottom of the bicycle were touching the pavement and causing sparks. After the motor cycle turned north onto Brentwood Boulevard, he could hear it accelerating. He lost sight of the motor bike approximately a half a block to a block after it had turned onto Brentwood Boulevard. He testified that he did not see any school bus in the vicinity of the motor cycle, nor in the vicinity of the intersection where he was stopped. As he proceeded north on Brentwood after the light changed, he did see a school bus at the intersection of Alder and Brentwood, but that the school bus was not in the northbound lane closest to the median, but rather in the next lane to the east. He had to go around the school bus when he came to the intersection of Alder and Brentwood. There is no evidence that he saw the accident in question. His evidence is that when he saw the motor bike turning onto Brentwood from the Wye Road, it was approximately 8:15 in the morning, and that the intersection of Brentwood and Alder is approximately three blocks to the north. He does not remember if the driver of the bicycle wore a helmet, and doesn’t think the motor cycle had a wind screen. He does not recall the colour of the motor cycle. He cannot say whether or not the motor cycle had its headlight on at the time, or even if it was equipped with a headlight. The plaintiff denies having turned onto Brentwood Boulevard in the manner described by Moser.

11      In summation, Mr. Moser states that he was at the intersection of Brentwood (Brightcroft Road) and the Wye Road, at 8:15 a.m. He was unable to adequately describe the motor cycle or its driver. He did not see a school bus either at the intersection where he was stopped or to the north, although there was clear visibility all the way to Alder Avenue. When he did come upon a school bus it was not in the lane next to the median but rather the next lane to the east. He did not see the collision or at least what transpired immediately after the collision. I am led to the conclusion that the motor cycle observed by Moser was not the motor cycle driven by the plaintiff. The school bus he passed at the intersection of Brentwood and Alder was not the bus driven by Mrs. Steinert.

12      Cpl. Lamond of the Royal Canadian Mounted Police attended at the accident approximately 15 minutes after the accident had happened. He was there at 8:45 a.m. When he arrived at the scene of the accident, Judith Peeling’s car was in one of the northbound lanes and the motor bike was towards the front of the car. The point of impact was in one of the north-bound lanes on Brentwood Boulevard. He positioned the defendant’s car by markings made to Exhibit 3, a plan of the intersection, across the two through north-bound lanes, and positioned the plaintiff’s motor cycle slightly to the east and south of the front of the defendant’s vehicle. He saw no skid marks leading to the point of impact and no physical evidence of speed. The absence of skid marks is consistent with Rabby’s evidence that the plaintiff had not applied the brakes just prior to impact.

13      On the evidence of the plaintiff, Glen Rabby, and Beryl Steinert, I am satisfied that for considerable distance south of the intersection in question, the motor cycle operated by the plaintiff was to the front of the school bus operated by Mrs. Steinert. It was in plain view. The color of the motor cycle, the attire worn by the plaintiff and the fact that the motor cycle had its headlight on, made it clearly visible. While Judith Peeling did not see the motor cycle, clearly she should have seen it. Her failure to see it under those circumstances constitutes negligence. Further in my view it was negligence on her part to attempt to cross this wide and very busy intersection without again checking for north-bound traffic after leaving the stop sign. She states that she is not certain if she checked to her right for north-bound traffic after leaving the stop sign. I am of the view that she clearly did not again check or she would have seen the motor cycle proceeding north-bound on Brentwood Boulevard.

14      Section 122 of the Highway Traffic Act, R.S.A. 1970, c. 169 as it read in 1975 provided as follows:
122. Where a driver is required to stop pursuant to s. 120 or 121,
(a) he shall not proceed until the condition of the traffic upon the highway being entered upon is such that he can enter thereon in safety, and
(b) he shall yield the right of way to all traffic approaching thereon.

15      There is a heavy onus on the defendant Judith Lynn Peeling not to leave the stop sign and not to proceed across the intersection until such movement could be done in safety. This she did not do.

16      I am also satisfied that, while the main cause of the accident was the defendant Judith Lynn Peeling’s negligence, nonetheless the plaintiff contributed to the accident by exceeding the speed limit.

17      While I have concluded that the motor cycle seen by Sigfreid Moser was not the motor cycle driven by the plaintiff, I am satisfied on the evidence of Glen Rabby that just prior to the time of the accident the plaintiff was operating his motor cycle at a speed of 35 to 40 miles per hour, and accelerating. This was not totally inconsistent with the evidence of the plaintiff, in that he estimated his speed at approximately 30 miles per hour, nor is it inconsistent with the evidence of Beryl Steinert, who testified that when the plaintiff did pass her, she had been travelling 25 to 30 miles per hour. The plaintiff’s knowledge of the amount of traffic he could expect to encounter at the intersection at that time, coupled with the fact that he was accelerating when approaching the intersection and travelling at a rate of speed exceeding the speed limit constituted a breach of duty owed to the defendant. His negligence contributed to the accident to the extent of 25%.

Non-Pecuniary Loss

18      The plaintiff was seriously injured as a result of the accident. His left hip was dislocated and the ligaments in his left knee were torn. Dr. John Huckle, an orthopaedic surgeon, has treated the plaintiff from the time of the injury to the time of the trial. He testified that the hip was reduced and surgery was attempted to repair the ligaments. The plaintiff was in the hospital from September 19 to October 10, 1975. While the reduction of the hip appeared to be successful, the same cannot be said for the operation to the knee ligaments. In January of 1976, the plaintiff was re-operated, in an attempt to increase the stability of the loose knee. The knee is still loose at the present time. Upon examination in September of 1980, the plaintiff still had a painful and stiff hip. The knee was still very unstable and tended to give way. The hip socket was showing post traumatic arthritis, with some calcification. In the doctor’s opinion, it was highly likely that stiffness in the hip would increase as would the pain, with the requirement for some type of modified joint replacement. Dr. Huckle stated that this type of operation was to be postponed as long as possible in a young person, but that it might have to be done in five or ten years. Any joint replacement tends to wear and break down. In a young person, this could mean a second replacement of the joint. As well, there is the possibility of infection and the loss of bone stock. In his view, a hip fusion would not be likely. The fact that the injured knee was on the same side as the injured hip compounded the problems to the hip.

19      The knee area discloses two visible surgical scars. There is distinct looseness of the knee. He indicated that there was no major arthritic change in the knee, but that the instability and pain would increase and eventually a reconstruction of the knee, using parts around the knee, would have to be attempted or in the alternative the knee joint would have to be replaced. Again, because of the age of the plaintiff, such treatment should only be attempted as a last resort and should be delayed as long as possible. A further alternative would be a knee fusion which would leave a stiff knee.

20      He has described the plaintiff as being reasonable and cooperative. He states that in his view the plaintiff cannot embark upon sporting activities, cannot do heavy work, cannot lift, and is limited to a sedentary-type of activity. In his view the plaintiff would have difficulty applying pressure with the left foot without pain. Simply sitting would cause a certain amount of inertial pain to develop. In his estimate, taking into account any future contingencies and treatment, the plaintiff has a disability equal to 20% of total.

21      The court heard evidence from two other orthopaedic surgeons, namely Drs. Henderson and Gort. Both doctors agreed in large part with the evidence given by Dr. Huckle. Dr. Gort agreed with Dr. Huckle’s estimation that the plaintiff is disabled to the extent of 20% of total, while on the other hand Dr. Henderson felt that if both the knee and the hip had to be replaced, the plaintiff would be left with a residual disability of 25 to 30% of total. Dr. Henderson was of the opinion that if the knee replacement was successful, the hip might not worsen and a replacement of the hip would not be necessary. After a knee replacement and without a hip replacement, he estimated disability at 15% of total. It is clear that any replacement operation would be painful and would involve a stay of 3 to 6 weeks in hospital. The plaintiff would then be required to take physiotherapy.

22      On the totality of the medical evidence, I am satisfied that taking into account the injuries sustained by the plaintiff and taking into account any future contingencies and treatment, the plaintiff has a disability equal to 20% of total.

23      Clearly, the plaintiff will be limited to a quiet life and will not be able to participate actively in any stressful activities. Simply standing or sitting in one position for any period of time will cause pain and suffering. Excessive walking will cause discomfort. Lying in bed in one position for a period of time will cause pain and discomfort. Going up and down stairs will cause discomfort.

24      The plaintiff testified that prior to the accident he was an avid, competitive, curler. He enjoyed many activities including horseback riding, badminton, motor cycle riding, skidoo riding, skiing, skating, dancing and jogging. Since the accident, he had tried curling and found it too painful. He tried to play badminton and found that too painful. While he can ride a motor cycle if he positions himself correctly, he can no longer ride a skidoo. He is afraid to attempt to skate because of the unstability in his left knee. He states that driving a car for a lengthy period of time causes pain. He no longer dances, nor can he jog. He attempted to play racquetball and could not. Simply sitting in a bent position causes pain in his hip. If he walks for any length of time, the knee starts to cause pain. He has difficulty in bending forward. He has great difficulty in going down stairs due to the unstable knee. He states that the knee has restricted inward and forward movement. While taking flying lessons, he found that after a short while at the controls he would get uncomfortable and could only get relief if he was able to reposition his knee.

25      A number of cases have been cited by counsel regarding awards made for this type of injury.

26      The plaintiff relies on Thorogood v. Bowden (1978), 21 O.R. (2d) 385, 89 D.L.R. (3d) 604 (C.A.). In that case the Ontario Court of Appeal refused to vary an award of $119,250.00 for injuries suffered by a 17-year-old boy similar to those sustained by the plaintiff in this case. Lacoussiere, J.A., speaking for the majority, makes it clear that a large portion of the award in Thorogood was compensation for loss of earning capacity. As damages for loss of earning capacity will be dealt with separately in this case, the Thorogood case is of little assistance.

27      In Cropp v. Potashville School Unit No. 25, [1977] 6 W.W.R. 267, 4 C.C.L.T. 12, 81 D.L.R. (3d) 115 (Sask. Q.B.), Noble, J., of the Saskatchewan Court of Queen’s Bench awarded general damages of $75,000.00 to a 14-year-old boy who suffered a slipped femoral epiphysis of the right hip. An at tempt to fix the hip failed, the pin was removed and a new hip socket had to be installed. At least one further such operation would be required. The leg became 3 cm shorter than the other, with a resultant 50% permanent disability to the hip. The plaintiff would never be entirely free from pain and must face the probable premature loss of use of his leg.

28      In Godin v. Bourque (1980), 28 N.B. (2d) 643, A.P.R. 643 (Q.B), the New Brunswick Court of Queen’s Bench awarded $60,000.00 (including $20,000.00 for loss of future income) to a 24-year-old man who suffered a dislocated hip, with fracture of the socket and who would require a hip replacement within 5 years and a further replacement in 20 years.

29      The defendant has referred me to three Alberta decisions: Yaremkevitch and Piwowar v. Gunderson (1977), 3 A.R. 82; Farnsworth v. Raubenheimer (1978), 9 A.R. 576; and Fladhamer v. Harvey and Harvey (1978), 7 A.R. 82.

30      In Yaremkevitch a 48-year-old plaintiff was awarded $32,500.00 for severe injuries to both legs and a knee injury requiring disfiguring skin grafts, a leg shorter than the other resulting in a total disability of 25% of total.

31      Laycraft, J., in Fladhamer awarded a 19-year-old woman $25,000.00 for a comminuted compound fracture of the right patella, a fractured ankle, a fracture of a bone to the foot and other more minor injuries. Evidence was that disability was 20-30% of total but the court did not appear to be completely satisfied on this point.

32      In Farnsworth, Moshansky, J., awarded $25,000.00 to a 31-year-old plaintiff for a comminuted fracture of the patella and a fracture of the colceneum. Treatment included removal of the patella. Subsequently, the plaintiff developed post traumatic arthritis to the knee and to the subaltar joint of the right foot. Further surgical intervention to the foot might be required. Disability was assessed at 12-15% of total.

33      In this case, having regard to the serious injuries suffered by the plaintiff, the probability of a future knee and hip replacement and possible subsequent need for surgery, the resultant risks from these operations, the loss of amenities and ensuing pain and suffering, I assess the plaintiff’s damages for non-pecuniary loss at $45,000.00.

Loss of Future Earnings

34      The plaintiff testified, and this was supported by the plaintiff’s father, that he had an interest in becoming a pilot. The plaintiff did not do anything with respect to taking any training to become a pilot until the spring of 1977. At that time, he took seven hours of duo flying time and eight hours of ground school. He and his father attended at Mount Royal College in Calgary with the view to possibly enrolling the plaintiff at that College to obtain a pilot’s license. In June of 1977, the plaintiff completed Exhibit 11, a report of medical examination for the Department of Transport, indicating that his flying interest was for recreation purposes as opposed to career or business, and that he desired a private pilot’s license. He was advised by the interviewer at Mount Royal College to obtain his private pilot’s license before enrolling in the school. The plaintiff states that he wanted to become a private pilot and eventually get a commercial license. When he went for his Ministry of Transport medical examination, he was advised that he had a hernia and accordingly did not pass the examination. There is no evidence to show that the hernia is in any way related to the accident or to the injuries sustained by the plaintiff as a result of the accident. The plaintiff was operated for the hernia, however did not take any additional medical examinations after the operation with the view of obtaining a pilot’s license. He testified that because of his condition there was no point in attempting to obtain a pilot’s license.

35      Frances Graham, coordinator of the aviation program at Mount Royal College in Calgary, testified that pilots are trained on a two-year course. Forty per cent of the subjects relate to non-aviation related academic courses, thirty per cent of the courses have to do with aviation related academic courses, and thirty per cent of the time is spent in flying. Approximately 40 students commence the course each year, with only 23 to 25 completing it. Those who drop out usually cannot meet the academic standards or requirements of the College. Most students that graduate are hired by small commercial airlines and eventually move on to major airlines. Starting salary with a small carrier would be $1,200.00 to $1,500.00 per month and if and when one moved on to a major airlines, starting salary would be about $750.00 per month, going up to $1,500.00 per month after two years. After the seventh year, the pay would be approximately $3,000.00 per month and after ten years, $50,000.00 per year or more. Retirement of a captain is at age 60, although retirement with full pension is possible at 55. His evidence was that only five per cent of all commercial pilots end up working for major carriers but that if you graduated from Mount Royal, you would have a 75 to 80 per cent chance of getting on with a major carrier.

36      Since the College stresses academic courses and requirements, a person who had not passed high school Math or first year Arts would not make an impressive applicant. He did say, however, that a person with a 6.8 college average would have a reasonably good chance of getting into Mount Royal. It is noted here that the plaintiff admitted to having failed some academic courses in high school, notably grade twelve mathematics, and also that he failed his first year of Arts. In my view, it is doubtful that the plaintiff would have been admitted to Mount Royal College and had he been admitted, it is certainly doubtful that he would have completed the course.

37      Peter Sevensma, First Officer with Pacific Western Airlines and local chairman of the Canadian Airline Pilots Association, testified that only one to two per cent of private license holders eventually get commercial and airline jobs. He agreed that graduates from Mount Royal College have a good reputation and are highly recommended as potential airlines pilots. He stated however that airlines right now are in a cut-back or non-hiring position and probably would be so until 1985. M.O.T. medical requirements are strict and if there is the slightest defect, it is difficult to obtain a pilot’s license. He further stated that medicals given by individual airlines companies are even more restrictive. Thirty per cent of airline pilots do not reach age 55 due to license loss for medical reasons.

38      Sevensma described the pay scale of Pacific Western Airlines. As second officer, one would start off at approximately $1,500.00 per month, work up to $2,700.00 per month and after three years, upon being made a first officer, you work up to $3,900.00. After ten years, as captain, the pay range would be between $4,800.00 and $5,000.00 a month. That would be top pay.

39      While there is certainly evidence to show that the injuries sustained by the plaintiff in the accident may well have prevented him from obtaining a pilot’s and/or commercial pilot’s license; taking the evidence as a whole, I am of the view that for reasons not related to these injuries, the reasonable probability is that he would never have become a commercial pilot, especially a commercial pilot employed by a major airline. He did nothing towards obtaining a pilot’s license until one and one-half years after the accident. It is true that prior to the accident he was 15 years of age, but there is no evidence to show that he took any ground school, that he joined any flying club or that he actively did anything to demonstrate his desire to be a pilot. Many young boys dream of becoming pilots. It is an enticing prospect. Some do something about it, others, like the plaintiff, do not. There was a clear lack of serious motivation displayed when the plaintiff did not attempt to pass an M.O.T. medical after the hernia operation, regardless of whether he would have passed it or not. It is questionable if he would have been admitted to Mount Royal College and if he had, his academic capability may have prevented him from completing that course. Had he completed the course, there was 20 to 25 per cent chance that he would not have been employed by a major airline. Because of the cut-back position of the industry to 1985 and since, according to Mr. Graham, commercial airlines prefer candidates no older than 26 years, it becomes apparent that because of the age of the plaintiff by 1985, he would be almost past the preferred age group. While the plaintiff had a dream or desire to become a commercial pilot, in my view, this dream or desire under the circumstances is too remote to be considered seriously. While it is evidence that cannot be completely discounted in attempting to assess any loss of capability to earn, not much weight can be attached to it.

40      In 1977 the plaintiff enrolled in a general Arts program at the University of Alberta. After failing first year he has since maintained a 6.8 average and anticipates that he will finish his Arts degree in the spring of 1981. He states that he has no definite plans after he receives his Arts degree. He may go back and work for the family businesses. He is a minority shareholder and treasurer of the family company that operates a dining lounge in Edmonton. He has taken some courses at the University of Calgary oriented towards Commerce or pre-Commerce.

41      Kenneth Heavener, manager of the Canada Employment Centre at the University of Alberta, testified that general Arts graduates have a wide variety of work available in banks, investment houses, financial institutions, departments of government, retail sales, and in the personnel field.

42      While the starting salaries vary, the average is approximately $1,120.00 per month. He agreed that some people with disabilities do have greater difficulty in obtaining employ ment, depending on the disability.

43      The plaintiff has cited Conklin v. Smith, [1978] 2 S.C.R. 1107, 6 B.C.L.R. 362, 5 C.C.L.T. 113, 22 N.R. 140, 88 D.L.R. (3d) 317 and has directed my attention to the view expressed by Spencer, J., in Conklin at page 1114:
It is my view that a court in considering a claim for loss of future income is in a very different position than a court considering a claim for damages for breach of contract. The plaintiff may well fail to prove the damages for breach of contract as including the loss of future profit on some specific contract for a variety of reasons. If in a personal damage action the plaintiff is able to prove that he was gainfully employed, then the court may award damages in view of the wages he was then receiving from such gainful employment. If, however, the plaintiff was not gainfully employed at the time of the accident but intended to be and was capable of being so gainfully employed thereafter, the court must make a reasonable allowance for the probable loss of future income due to the plaintiff having been deprived of that opportunity.
He continues on page 1115:
I am, therefore, of the opinion that it is the duty of a court to assess such sum for loss of future income as may be determined from a reasonable appraisal of all the evidence. Applying that consideration to the facts of the present appeal, we have the case of a young man who had shown academic excellence, one might almost say brilliance, both before and after the accident, who had shown great determination and perseverance and who, upon all of the evidence, had the health qualifications to allow him to apply his intelligence and earn himself a good living.
In the case of Thornton, supra, what was calculated was earnings as a workman, appropriate under the circumstances of the particular plaintiff. In Arnold v. Teno, supra, for want of a better guide, 150 per cent of the poverty level was taken. Here, there was much more evidence. The appellant had been earning $8,300.00 per year in a temporary job as a letter carrier. After the accident, he was qualifying himself for a position in which he would earn $14,000.00 to $16,000.00 per year as a prosthetics specialist. There would seem to have been a reasonable probability that apart from the acci dent he would have earned from $4,000.00 to $6,000.00 more per year.

44      In this case, in my view, it is not reasonably probable that the plaintiff would have become a commercial pilot, and less probably a pilot with a major airline. It is a reasonable probability that had it not been for the accident, he would have been capable of earning additional income. In having come to this conclusion, I have considered the plaintiff’s dream or wish to become a commercial pilot, although for reasons outlined above, I have not attached much weight to it. His desire to have a career coupled with the fact that he will certainly obtain a university degree in Arts clearly demonstrates the plaintiff’s determination to be more than a clerk doing routine office work. While he will have greater opportunities available to him because of his degree in Arts, his disability will, as is indicated by Heavener, probably make it more difficult for him to obtain employment. The plaintiff’s disability will make it practically impossible to engage in any non-sedentary pursuit. Even such activity will be difficult if carried out over a prolonged period of time. It is for probable loss of capacity to earn income in the future and the deprivation of that opportunity to earn that compensation is made.

45      It is difficult to assess exactly how much the capability to earn has been reduced or impaired as a result of the accident. Nonetheless, a figure must be chosen and taking into account the above-mentioned considerations, it is my view that such loss amounts to $300.00 per month.

46      Bruce Shep, an actuary, testified. It was agreed by the parties that the figures given by Mr. Shep should be based on a discount rate of three per cent. While it is normal to calculate the life working expectancy from the time of an accident, in this case because the plaintiff was a student and is being compensated for his actual loss of income prior to graduation, life working expectancy should be calculated from the time he graduates from university in 1981, with a retirement age of 65. According to Mr. Shep’s figures and without any allowance for contingencies, the present value of $300.00 per month paid from the time of the plaintiff’s graduation in 1981 to age 65 is $88,164.06. Contingencies such as early demise, illness, unemployment, accidents and business depression should be considered. Shep would have allowed 3% for early demise alone. It is difficult to assess the value of these contingencies. Each case must be assessed on its own peculiarities. In this case I would reduce the award by 10% or $8,816.40.

Special Damages and Loss of Income

47      1. The claim of the Alberta Hospitals Services Commission in the sum of $2,914.00 was admitted by the defendant.

48      2. The counterclaim of Sidney James Peeling for damages to this motor vehicle in the sum of $942.86 was admitted by the plaintiff.

49      3. Damages to the motor bike in the sum of $975.00 were admitted however the only evidence adduced at trial is that the motor cycle was owned by the plaintiff’s father and not by the plaintiff. The father is not a party and that portion of the claim is accordingly dismissed.

50      4. Loss of income. At the time of the accident, the plaintiff worked for two companies owned and controlled by his family. He worked as a stock clerk and was paid $3.00 per hour, and would average 17 hours a week on a part-time basis. He was unable to work from the time of the accident until the end of January, 1976. He further testified that after the accident, as a result of missing school work while in the hospital, he had to drop a course. In order to catch up, he took an additional course in summer school in 1977 and thus missed five weeks of work. He could have earned $120.00 to $150.00 per week. While it is true that he was only attending class during a portion of the day, nonetheless in my view it is reasonable that the remainder of a normal working day should have been spent studying and preparing for classes and exams. I am of the view that he was not in a position to mitigate his loss during this period of time. The remainder of the time the plaintiff either attended school and worked part-time or chose not to work. Accordingly, the plaintiff’s claim for lost income from the time of the accident to the end of January, 1976, is allowed in the sum of $900.00. Further, for the five-week period from July 1, 1977, to August 5, 1977, in the sum of $750.00 is allowed. For reasons previously given any claim for loss of income based on probable loss of income from 1979, when the plaintiff might have completed his pilot’s training, to May 1981, is disallowed.

51      Accordingly, the plaintiff will have judgment for 75 per cent of the following sums, namely:
a. Non-pecuniary award of $45,000.00
b. Alberta Hospital Services Commission in the amount of $2,914.00.
c. Actual loss of income in the sum of $1,650.00
d. Net award for loss of future earnings in the sum of $79,347.66

52      The plaintiff Sidney James Peeling will have judgment for 25 per cent of $942.86 being damages to his motor vehicle.

53      Costs may be spoken to if necessary.
 	
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