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FATALITY CLAIMS: CALCULATION OF DAMAGES IN WESTERN CANADA By: Ken Holmstrom Member of the Law Societies of Alberta and British Columbia CHOMICKI BARIL MAH LLP Edmonton, Alberta INTRODUCTION: This paper is concerned mostly with the assessment of fatality claims in Alberta, given the legislation in effect in Alberta which has been interpreted to include not only the standard fatality claims that we have come to expect, but also a “lost years” component that can be significant. What we have historically come to note as being a proper calculation of a fatality claim generally includes some bereavement amount which is set by statute, special damages which generally include funeral expenses and related matters, dependency claims for a surviving spouse and surviving children, and even surviving parents in exceptional circumstances, as well as a loss of valuable services claim. With dependency and loss of valuable services claims, we sometimes see tax gross-ups added as well. In claims that arise out of motor vehicle accidents, one also is entitled to deduct those funds received by way of the accident benefits portion of an auto policy. Beyond those amounts, there is very little that can ever be deducted from the amount of the claim that a Court would assess. 2 As indicated, the majority of this paper will be devoted to the Alberta perspective, although we will briefly touch upon the other three western provinces. In British Columbia, fatality claims are essentially governed by the Family Compensation Act and since there is fault automobile insurance in British Columbia, those claims do arise. In Saskatchewan and Manitoba, with their “no fault” automobile benefits under their personal insurance protections plans, the benefits are entirely set by statute. The fatality claims in those jurisdictions that would be faced by the insurance industry as a whole would not arise from auto accidents in terms of tort exposure. FATAL ACCIDENTS ACT (ALBERTA): 1. Bereavement: Presently in respect of motor vehicle accidents that occurred after March 1, 2000, bereavement damages are paid in the sum of $43,000.00 to the surviving spouse and $27,000.00 to each of the surviving children who fit the definitions set out in the Fatal Accidents Act . The relevant definitions of spouse and children are as follows: 1.(a) “Child” includes a son, daughter, grandson, granddaughter, stepson, stepdaughter and illegitimate child; (b) “Cohabitant” means a person of the opposite sex to the deceased who lived with the deceased for the three year period immediately preceding the death of the deceased and was during that period held out by the deceased in the community in which they lived as the deceased’s consort; (c) “Parent” includes a father, mother, grandfather, grandmother, stepfather and stepmother; (d) “Spouse” means husband or wife. 3 These sums attract pre-judgment interest under the Judgment Interest Act of Alberta from the date of the loss to the date of payment. They attract interest at 4% per annum. One has to ensure that the claimant fits within the definitions. When in doubt, additional evidence likely will be required, often through collateral sources, i.e. the community, other witnesses, other family members, neighbours, and so on. Within the SPF 1, section B, there is an amount which is usually payable to the same group of claimants, and these are generally called “death benefits”. These amounts, if paid, are then deducted at the end of the file when payment is made on the tort side of the equation. Section 642 of the Alberta Insurance Act, R.S.A. 2000, is the relevant section that deals with this deduction. 2. Funeral Expenses/Special Damages: The Fatal Accidents Act provides as follows: Damages Section 7: If an action is brought under this Act and if any of the following expenses and fees were reasonably incurred by any of the persons by whom or for whose benefit the action is brought, then those expenses and fees, in a reasonable amount, may be included in the damages award: (a) Expenses incurred for the care and wellbeing of the deceased person between the time of injury and death; (b) Travel and accommodation expenses incurred in visiting the deceased between the time of injury and death; (c) Expenses of the funeral and the disposal of the body of the deceased, including all the things supplied and services rendered in connection with the funeral and disposal; 4 (d) Fees paid for grief counseling that was provided for the benefit of the spouse, cohabitant, parent, child, brother or sister of the person deceased. The Section B portion of the auto policy provides for $2,000.00 in funeral benefits to be paid, and as per the foregoing section they are to be deducted. Generally speaking, funeral expenses exceed $2,000.00 and that is where the Fatal Accidents Act applies to deal with these additional expenses. It is often within this area that claimants seek advances. It is not unusual for insurers to provide advances of some of the out-of-pocket expenses, particularly on the funeral expense side of things, as it is often these expenditures that go unpaid that are remembered by the family of the victim when the time comes to try to be reasonable in settling the dependency, loss of valuable services and (ultimately) the “lost years” portion of the claims. It has been my experience over the years that a willingness on the part of the insurer to make an advance under what is now section 636 of the Alberta Insurance Act towards obvious expenses where monies have been paid, assuming no limits issues, is a gesture of goodwill that can often lead to a more rational settlement at the end of the day. This result is more particularly the case where the family of the victim has not retained counsel but wants to deal as far as possible with the insurance company representative because they understand that Plaintiff counsel is going to charge them anywhere from 25% to 40% of the amount of the settlement as their fee. One also has to bear in mind liability issues on the part of the deceased if you are going to take a look at some sort of advance. 5 3. Dependency: There are two aspects to a dependency claim. These would be loss of dependency on the income of the deceased person, and loss of dependency on the household services. I will deal with the household services under “loss of valuable services” further in this paper. What the Court is first obligated to do is to make a variety of conclusions regarding the income of the victim, the income of the household, income streams into the future, including retirement date, part-time employment, life expectancy, negative contingencies, fringe benefits, productivity and the discount rate. In addition, the Court must determine the dependency rate. The dependency rate is the family’s rate of dependency on the deceased before his death. In other words, the percentage of the income that the family consumed as opposed to the percentage that the deceased spent on himself. One makes the determination in order to try to decide how much the family will need in the future to maintain the same standard of living as it would have had if the deceased had not been killed. Dependency rates are calculated from statistics, or from actual expenditure patterns. Generally speaking, economic experts prefer the statistical approach, although calculations based upon actual expenditure patterns can be pursued. 6 The recent Alberta case of Millott v. Reinhard, handed down on December 18, 2001, by Mr. Justice Fraser in Calgary (cited at 2001 A.B.Q.B. 1100) is a very lengthy case which carefully analyzes the approach taken as to dependency rates by experts and by other Alberta case law. In fact, it goes so far as to review case law from other Canadian jurisdictions to determine how they have approached the matter. The Court was faced with issues of sole dependency, cross dependency and modified dependency. In conclusion, Mr. Justice Fraser used a cross dependency approach by taking into account that there were two wage earners in the Millott family who pooled their income into a joint account from which they paid bills. Of interest, the cross dependency rate that was calculated by the Judge essentially ended up being about the same as the “standard dependency rate” that was put forward by Plaintiff’s counsel. In that case, there was a family of a husband, wife and two children. He accepted that the “standard” dependency rate for a couple would be 70% with 4% for each child. Therefore, the dependency rates were set at 78% during the period in which both children would still be at home, 74% after one child left the home but one child was still at home, and at 70% from then on when only the spouse was assumed to be remaining in the home. The Judge made findings as to what years the children would leave, so that the economists could go back and do the appropriate calculation based upon the income which the Judge found would be the income to be used, both in the past and into the future. 7 In that particular case, the Judge then found that the income would be $23,000 as at the date of death in August of 1998, increasing to $40,000 by October of 2002, when the first child would leave the home. During that timeframe, there would be a 78% contingency rate. Then, from October, 2002, to October, 2007, while there was one child at home, and with the income increasing from $40,000 to $60,000 on a level basis, the dependency rate would be 74%. From October, 2007, until retirement at age 62, an additional ten years, the Judge felt the income level would have increased each year by inflationary and productivity factors, and there would also be a 70% dependency rate. He then left it to the experts to perform the necessary calculations based upon these findings. Where there has been a recent separation in a relationship, with shared custody, then other assumptions have to be made. Expected disposable income has to be calculated in the absence of the accident, the determinations have to be made as to what type of expenses would be variable, and what type of expenses would be fixed. In one case where there were two children of a relationship, with joint shared custody, the experts used essentially a three person family for a portion of the year. In that situation, where a separate residence would be kept that would house three individuals throughout the year for about half a year in total, there would be fixed expenditures such as shelter and private transportation and the statistics would then be used based upon a three person family. Specific expenditures then have to be looked at much more closely than would be the case in a standard family where the parties all lived together on a full-time basis wherein greater reliance can be made on overall statistics that one encounters through 8 studies such as the 1996 family expenditures survey (FAMEX) conducted by Statistics Canada. In addition, the Court is obliged to split up the dependency aspect between the survivors. The dependency rate in respect of the spouse may be subject to further contingencies for divorce and remarriage, whereas in respect to the children, the amounts seldom change. 4. Loss of Valuable Services/Housekeeping: Under this head of damage in a fatality claim, the Court is required to ascertain the value of the housekeeping services performed by the deceased and which now have to be replaced or done by others. Generally speaking, one quantifies the number of hours spent annually by the deceased on housekeeping matters, and then assigns a dollar value to those activities. The resulting annual figures are then converted to a lump sum, present value figure, using essentially the same rationale and methodology in relation to the income dependency claim. It is not unusual to see a Plaintiff expert evaluate this loss of household services, and often an occupational therapist with a speciality in assessment of replacement of domestic chores is retained. A dependency rate also applies to household services. The rate determines what percentage of the household services performed by the deceased needs to be replaced for the family to maintain its former standard of living. We have to remember that the deceased is no longer around and would have benefited to some extent from the work that he would have performed. 9 The simple calculation in a four person household is to allege that 25% of the benefit would have gone to the deceased, such that there is a 75% allocation to the rest of the family. As the children leave home, this percentage is reduced to the point where it becomes 50% once it is only the couple that would have been left in the household, and of course one of them has already died. The alternative approach, at the other extreme, is that there is no deduction for dependency as the same amount of work generally is required to do things such as seasonal cleaning, regular cleaning, outdoor maintenance, maintenance and repair, and so on. In other words, even though the deceased would have benefited, the same amount of work is still required to perform the tasks, regardless of whether there is one person in the household or four. eld In the Millott case cited above, the Court h that a 10% reduction would be appropriate, such that there was a 90% dependency rate of the total amount of services to be replaced. In that case, the Court held that virtually everything the deceased did was for the family as a whole. He had no other hobbies that he spent time working on, and he felt that it would not be appropriate to make a significant deduction. Other cases may follow a different approach, to as much as an appropriate percentage reduction by the number of people that are in the house as indicated above. 10 The expert in that case then determined the number of hours on a weekly basis and on an annual basis that would be required for replacement, and an appropriate replacement cost had to be determined. In Millott the Plaintiff was seeking a replacement cost in excess of $26.00 per hour for essentially handyman services. The defence put forward the argument that the Alberta Courts typically use an average hourly wage of $11.00 to $13.00 per hour and that would be more appropriate. The Court picked a mid range to determine that in maintenance and repair, handyman services would be more expensive but in basic household services, the cost would be less expensive. The Court also set monthly rates for things such as outdoor maintenance that involved snow shoveling, lawn mowing and so on. Other relevant factors take into account changes in the household as children grow and are expected to participate in chores. The age at which one would expect that the deceased would not have been living in the same type of accommodation because of advancing age, infirmity, changes in lifestyle, and so on is also considered. The advancement of the deceased’s career which may have led to further time being away from home also has to be addressed. The key element from here in the Millott case is that in addition to the 10% deduction from the yearly amounts to reflect the portion of the deceased’s household services that were for his own benefit and need not be replaced, the Court then further decreased the amounts put forward by the Plaintiff’s expert by 35% to account for “general contingencies” and in some cases reduced certain items by 50%, depending upon the 11 particular item wherein there might be a child who would have to pick up the slack in any event, as per the usual expectations in a family situation where children would be expected to help out with the chores. As with the income dependency, the award is then split up between the various survivors to account for the loss that each of them would suffer as opposed to the loss simply suffered by the family unit as a whole. In addition, as I have indicated above, there may be a further negative contingency reduction for the potential for re-marriage. 5. Tax Gross-Up: The main issue in this area, usually, is whether the Plaintiffs proved they needed investment and management assistance. The management fee may be a percentage of the overall amounts awarded, or it may be a set amount based upon the evidence presented. The simple theory, of course, is that the money that is awarded gets invested, and the investment income from it is taxed such that, in the truest sense, even though it is present value the amount that it earns would not end up at the same result because a portion of it has to be paid to the government. Therefore, you have to increase it by a certain amount to take into account the tax that has to be paid so that the original award will stand to ensure that the claimants receive in their pocket that which they are entitled to receive. Use of structured settlements will assist in avoiding this head of damage or keeping it as small as possible, if in fact it can be established. 12 “LOST YEARS” ASSESSMENT – Duncan Estate v. Baddeley: In Alberta, the calculation of “lost years” deduction has become an important aspect of the personal injury case law. The Duncan Estate claim, which has been approved by the Court of Appeal of Alberta, has essentially stated that where life expectancy has been terminated because of the accident, there should be compensation awarded for the Plaintiff’s earnings which have been foregone from the time of death to the projected date of retirement, and then present valued to the date of the award. However, the Courts have determined that there has to be a deduction from this overall amount for personal living expenses, taxes and other items. A second case, Brooks v. Stefura, also out of the Court of Appeal of Alberta, have enunciated the principles in trying to determine the “available surplus” which forms the basis for the award. The guidelines which the Alberta Court of Appeal has set out in coming to this “available surplus” approach are as follows: From Brooks (Estate) v. Stefura, 2000 A.B.C.A., 276: • The ingredients that make up the living expenses are the same regardless of the personal characteristics of the deceased; • The sum to be deducted as living expenses is the amount spent by the deceased to maintain himself at the standard of living appropriate to his income level; • Living expenses should not include projected expenditures based on personal character traits, lifestyle decisions or spending habits, unless the expenses would have been necessary to maintain the deceased person in order to earn the anticipated income; • Sums expended to maintain or benefit others do not form part of the deceased’s personal living expenses; 13 • Personal living expenses include the deceased’s personal living expenses plus his pro-rated share of joint family expenses; and • Joint family expenses are limited to such things as rent or mortgage payments, utilities and the cost of operating a car. The Court of Appeal also clarified that income taxes must be deducted along with contingencies, if appropriate. Taxes are to be deducted from gross income, before expenses to earn income and the personal living expenses are deducted. The Courts appear to have adopted a “lifecycle approach” which has a personal living expense deduction of 35% with two children at home, 44% with one child at home and 50% with only the spouse at home. It is based upon the consideration that a deceased’s share of joint living expenses decreases as the number of family members increase, which means the opposite is true as well. Accordingly, one can see that this award is comprised of: • Income earned and not spent; • Income that is spent but then results in capital items; • Income spent on others, such as family members; • Income that is spent on items or events that are not key to “earn the income one needs to live”, which means luxury items or the likely cost of life. • These four items then make up the “available surplus”. In the Duncan claim, a number of agreements were made that have to be considered in each individual case. In that case, the agreements were: 14 • Duncan would have earned $35,000.00 per year from the year that he would expect to enter the workforce (he was 16 when he died in 1987 and 1993 was the year he was expected to enter the workforce) until retirement age of 62. No wage growth was applied to the figure. • A discount factor of 3% was used. • There was no contingency deduction for the risk of mortality prior to retirement. • There was no application of a productivity factor to the calculations. • There was an overall 5% deduction for contingencies, which was to be applied against the amount arrived at as the net figure after applying the lost years deduction. The Court accepted the approach that includes the following: • Determine the present lump value of the expected gross income of the deceased over the working life he would have had but for the accident. • Deduct the income tax that likely would have been paid. • Deduct from this “after tax” income a further amount to reflect his own personal expenditures. • Deduct any other contingencies inherent in predicting his life and earnings into the future. The Court then made the following findings: • Present value of Duncan’s gross income had he lived = $1,006,500.00. • Deduction for income tax = 28%. • Deduction for personal living expenditures = 35% (they did not use the lifecycle approach which is now generally accepted). • Contingency deduction agreed upon by the parties = 5%. • Additional contingency deduction endorsed by the Judge = 5%. 15 • Net total (rounded) = $425,000.00. In addition, there were the Fatal Accidents Act bereavement damages on top, plus appropriate pre-judgment interest on any of the damages which would have been past damages, including bereavement. Lost Years Deduction With Dependency: In the Court of Appeal case in Brooks v. Stefura, the Court raised the possibility of double recovery where the same person claims a dependency award as a dependent, and a lost years award as heir. Both awards are based on the same negligent act. Both awards are paid from the same future earnings stream. Therefore, one award must be deducted from the other to avoid double recovery. While a lost years’ award represents the deceased’s loss of future income and accrues to the estate, a dependency award is based on the dependant’s actual needs and belongs to the dependent. In calculating a dependency award, a Court is required not only to consider the losses the dependent suffers, but also the financial gains which result from the deceased’s death. Accordingly the dependency award is reduced by the amount of the accelerated inheritance. The Court of Appeal further stated that to avoid double recovery, the following method should be used to compute the appropriate award when dependency claims are made under the Fatal Accidents Act, a lost years’ claim is made under the Survival of Actions Act, and the beneficiaries and heirs are the same people: 16 • Calculate the dependency award for each dependent, including pre-judgment interest if it is granted; • Calculate the lost years’ award, including pre-judgment interest if it is granted; • Allocate the lost years’ award to each beneficiary in accordance with the deceased’s Will, or if the deceased died intestate, in accordance with the Intestate Succession Act; • Compare the dependency award with the allocated lost years’ award for each claimant, and reduce the dependency award by the amount of the lost years award, which represents an accelerated inheritance; • If the lost years’ award is greater, the claimant receives only that amount, and; • If the dependency award is greater, the claimant receives the full lost years’ award together with the differences between the two as the dependency award. The Court goes on to state further at paragraph 15 that since the dependency award represents the dependants’ net loss, other deductions may be in order. For example, receipt of an accelerated inheritance from the deceased’s estate in addition to the lost years’ award means this inheritance must be subtracted from the dependency award. In pouse’s the Millott case, the Court refused to deduct the receipt of the deceased’s joint s interest in the matrimonial home. In that case, the Court found that the net estate was pretty well taken up by the liabilities, in any event, such that there was no real accelerated inheritance that had to be deducted. Ultimately in Brooks, the Court returned the matter to the trial Judge for calculation of the various items. No decision has yet been rendered as to what that means and it may well be that the case has been settled. PRACTICAL CONSIDERATIONS: A number of claims in Alberta have attempted to add the lost years’ claim beyond the limitation period where the claim was not brought in the name of the estate. The Fatal 17 Accidents Act provides that a claim under the Fatal Accidents Act can be brought in the name of the estate or simply on behalf of the surviving beneficiaries who are entitled to advance a claim under the Fatal Accidents Act. The Survival of Accidents Act clearly has to see its claim brought in the name of the estate since it is the lost years to the estate that is being claimed. In each case, the Court has rejected the amendment which means that an estate had to go through administration or probate, either where there was no executor appointed because there was no Will, or where there in fact was a Will and there was an executor or executrix. It is that person that makes the claim. In addition, one must remember that dependency claims for loss of valuable services are over and above the “lost years” claim. I now propose a review of some practical calculations of these types of claims. One often hires as an expert an economist such as Gerry Taunton of Peta Consultants in Vancouver, who seems to have the most reasonable approach that we have seen, or alternatively a forensic accountant, to assist in making these calculations. Where the person’s estate is fairly complex because of the nature of their various businesses, a forensic accountant may be the best approach. Sometimes one would use a forensic accountant along with an economist but an appropriately trained forensic accountant, such as Gord Smith of Deloitte & Touche In Edmonton, has the ability to provide the same calculations as the 18 economist with the further ability to get all of the forensic accounting information in place so that the calculations can be made appropriately. CASE EXAMPLES: The following examples come from actual cases in which our office was involved, and are based upon calculations put forward by an economist: A. Apprentice welder born in August, 1978, died March, 1998: 1. Lost years’ deduction based on one person household (50%): Past loss: $21,257.00 Future loss $216,285.00 Total loss: $237,542.00 Plus bereavement and specials 2. Lost years’ deduction of 35%, 44% and 50% based upon a one person to four person household at various stages of the person’s life (the lifecycle approach): Past loss: $40,399.00 Future loss: $456,584.00 Total loss: $496,983.00 Plus bereavement and specials B. Same individual as above, but continuing on after obtaining his welder’s ticket to become a mechanical engineer after attending university: 1. Lost years’ deduction based on one person household (50%): Past loss: $21,257.00 Future loss $265,246.00 Total loss: $286,503.00 Plus bereavement and specials 19 2. Lost years’ deduction of 35%, 44% and 50% with a one to four person household at various stages of the person’s life (the lifecycle approach): Past loss: $40,399.00 Future loss: $473,868.00 Total loss: $514,267.00 Plus bereavement and specials C. Female born November 1980, died August 1999, at the age of 18 years who had almost no track record of income and who did poorly in school. Her elder brother did not complete school, but had entered into a welding program. The father owned a farm equipment dealership. Assumptions are made regarding what occurs if she graduates from high school, then college and then university based upon statistics that the economist had available. In this case, the economist used only the 35% deduction and did not use the life cycle analysis. As well, other contingencies took into account fringe benefits, unemployment, mortality, and non-participation in the labour force which may well have been likely (which was assessed at 15% to 25%, a fairly high contingency) resulting in the following analysis: High school graduate: $242,600.00 College graduate: $287,300.00 University graduate: $374,900.00 Of course, these calculations were present valued, they did not include any Fatal Accidents Act bereavement damages or other special damages. D. Deceased was born March, 1964, and died September 1998. At the time of death, he had shared custody of the children. They spent half the time with the father and half the time with the mother. He was employed as a paramedic for the ten years prior to his death. 1. Calculation of past and future loss of employment income, i.e. lost years: Past loss: $69,134.00 Future loss $297,306.00 Total loss: $366,440.00 20 From here, there would be a loss of financial support for each of the children, loss of household services for each children and loss of healthcare coverage. It is submitted that the case law in Alberta would now be that the loss of financial support would reduce the claim for the “lost years”. The loss of household services would remain in place, and in the case of this particular person where healthcare coverage was a negotiated benefit, it is likely that amount would be in excess of the employment income loss. These calculations were made as follows: Loss of financial support: Child A: Past loss $16,998.00 Future loss $46,933.00 Total loss: $63,931.00 Child B: Past loss: $16,998.00 Future loss: $56,662.00 Total loss: $73,659.00 Loss of household services: Child A: Past loss $9,187.00 Future loss $13,959.00 Total loss: $23,146.00 Child B: Past loss: $9,187.00 Future loss: $23,757.00 Total loss: $32,945.00 Loss of healthcare coverage: 21 Child A: Past loss $3,664.00 Future loss $8,960.00 Total loss: $12,624.00 Child B: Past loss: $3,664.00 Future loss: $10,562.00 Total loss: $14,226.00 Accordingly, one would deduct from the child’s portion of the recovery of the lost years the amount of loss of financial support, but one would have to add in the loss of household services and the loss of healthcare coverage. The foregoing four illustrations are simply that i.e. illustrations based upon a set of facts and assumptions that the economists reviewed. Each case has to be judged on its individual merits, but the foregoing does give some indication as to rough calculations that can be looked at when one is attempting to determine what the loss would be and how one sets reserves. BRITISH COLUMBIA: The Family Compensation Act permits claims for compensation for the pecuniary loss arising from a death of a spouse, parent or child. The intent of the Act is to place the claimant in the same economic position that he or she would have enjoyed but for the death. 22 An action under this Act is advanced for the benefit of a surviving spouse, parent, grandparent or child of the deceased as defined in the Act. The definition of a spouse includes a common law spouse who lived with the deceased for at least two years. As with Alberta, we essentially have claim for loss of dependency, loss of valuable services and management fees or tax gross-up. In addition, there is a claim for loss of guidance which is not mandated by statute as is the case in Alberta. The younger the child would be at the date of death of the deceased, the higher the guidance award. Generally, one sees the highest guidance awards into the $25,000.00 to $30,000.00 range. In addition to the age of the child, the previous degree of dependency of the child of the deceased parent is considered. If both parents are killed, the child has two separate causes of action arising from the death of each parent. There is no deduction made for the care and guidance replaced by another adult. An award for loss of inheritance represents the amount a deceased would have left to his or her family had they lived a normal life. The amount is reduced to present day value. It is generally difficult for a Court to make the calculation. However, awards are still put forward. The major concern is whether B.C. would ever move more in the direction of the “lost years” approach. There is no case law yet in that direction but Courts have raised the thought, from time-to-time. Nonetheless, despite the difficulty of calculating this amount, it is an area that has to be addressed. 23 In terms of loss of a child, unless it can be shown that somehow that child contributed to the family unit by way of invaluable services or income, or in both, it is unlikely that an award will be made. If the matter arises out of an auto accident, then Part 7 no-fault benefits must be deducted. SASKATCHEWAN (prepared by Shannon Metivier of McKercher & McKercher) Under the Fatal Accidents Act R.S.S. 1978 Ch. S-11, an action may be brought on behalf and for the benefit of a spouse, parent or child of a deceased. The definition of a spouse includes a common law spouse who lived with the deceased for at least two years. The Fatal Accidents Act specifically allows damage awards for pre-trial expenses incurred as a consequence of the death including funeral expenses. Other heads of pecuniary damages, not specifically set out in the Act, are generally categorized in a fatal accidents action as follows: - loss of past and future income dependency (considered on a net income basis); - loss of past and future homemaking and domestic services; - loss of guidance, care and support; - loss of accumulated wealth (inheritance); - gross up for tax purposes. Damages for cost of guidance, care and support are quantified as pecuniary losses. The assessment of an appropriate sum for loss of care, guidance and support is not easily determined. However, the sum of $500.00 per child per year remaining until the age of majority, taking into account inflationary factors, has been used by Saskatchewan courts in the past. In Saskatchewan, to date, damages for “lost years” have not been considered in the context of a fatal accident action nor has it been considered whether such damages could be barred by s. 6 of The Survival of Actions Act S.S. 1990-91 c. S- 66.1 which, as in Alberta, limits damages recoverable by the estate to “actual pecuniary losses”. 24 MANITOBA: (prepared by Dean Giles of Fillmore Riley, Winnipeg, Mb.) Manitoba operates under a simila r statutory regime. Pursuant to The Fatal Accidents Act, R.S.M. 1987, c. F50, every action commenced thereunder is for the benefit of a spouse, common-law partner, support recipient, parent, child or sibling of a deceased. “Common-law partner” is defined as a person who cohabited with the deceased in a conjugal relationship for a period of at least three years proceeding the death, or for a period of at least one year where he or she and the deceased are the parents of a child. As in the other provinces, such actions are comprised primarily of a claim for loss of dependency, loss of homemaking and domestic services, and loss of guidance, care and support, often with a gross-up for tax purposes. The object of an assessment of damages in a fatality claim is to arrive at a specific capital amount sufficient to provide the eligible family members with the amount of periodic support they might reasonably have expected to receive had the deceased survived. The Manitoba Act expressly provides that a damages award may include an amount sufficient to cover reasonable funeral expenses and disposal of the body, where those expenses are incurred by a person for whose benefit the action is brought. With respect to claims for loss of dependency, courts in Manitoba follow the same practice as those in the other provinces. In order to arrive at a suitable award, a variety of factors are considered, including the income of the deceased, overall household income, future income sources, anticipated retirement date and negative contingencies. The right to seek damages for loss of guidance, care and companionship is enshrined in The Fatal Accidents Act. The purpose of the section is to include in an award, where appropriate, an amount to compensate a dependant for the guidance, care and companionship the deceased might reasonably have been expected to provide had he or she lived. Courts in Manitoba have repeatedly emphasized the need for awards under this head of damage to be modest, on the grounds they constitute compassionate allowance unrelated to 25 pecuniary measurement. Put another way, the purpose of an award for loss of guidance, care and companionship is not to compensate survivors but rather to serve as a formal declaration of sympathy for the wrong committed. From 1985 to the present, Manitoba courts have proceeded on the basis of a conventional award of $10,000.00. The trend toward higher amounts in other jurisdictions has been noted and expressly rejected. When it comes to quantifying the past and future loss of homemaking services, the common practice in Manitoba is to include an allowance or deduction for potential negative contingencies. The most obvious example, of course, is the possibility that the spouse of the deceased will remarry at some point.
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