Docstoc

FATALITY CLAIMS CALCULATION OF DAMAGES IN WESTERN

Document Sample
FATALITY CLAIMS CALCULATION OF DAMAGES IN WESTERN Powered By Docstoc
					 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.

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:1
posted:3/11/2012
language:
pages:25