I) The Impact of the Trilogy

Since the trilogy, the assessment of damages for personal injuries has become a much more sophisticated and reliable process. There remains an unavoidable degree of speculation but the use of actuaries and other experts allows the courts to achieve a much greater degree of accuracy than before. The trilogy has also led to an increase in the quantum of damages awarded in personal injury litigation. Lawyers are particularly diligent in ensuring that all potential pecuniary losses are identified and claimed because, unlike the award of non-pecuniary damages, the awards for pecuniary losses are not subject to a cap on quantum. This increase in damage awards is clearly advantageous to plaintiffs but it has exacerbated the gap between the compensation available to the victims of fault-based accidents and that available to those who suffer disability from other causes (e.g., workplace accidents) and it has increased the pressure on the liability insurance system, particularly in respect of medical malpractice claims.

2) Death

At common law the death of either the plaintiff or the defendant terminated existing and contemplated tort litigation. The death of the defendant extinguished all liability and no action could be brought or continued against the deceased's estate by those who had suffered losses as a result of the defendant's wrongdoing. Equally, any cause of action the deceased enjoyed at the time of his death could not be brought or continued by the deceased's estate against the wrongdoer. Moreover, the family of the deceased could not sue for their pecuniary and non-pecuniary losses where death was caused by the wrongful act of another.

This state of affairs, which gave rise to the bleak observation that at common law it was "cheaper to kill than to maim," did not outlast the nineteenth century. The increase of fatal accidents associated with rail travel and industrialization led to the initial legislative reform that allowed family members to sue in respect of a wrongful death. Later, legislation permitted the deceased's estate to sue and be sued in tort. These legislative initiatives terminated all impetus for judicial reform and, even today, reference must be made to the appropriate fatal accidents or survivorship legislation to determine the impact of death on tort litigation. Fatal accidents legislation deals with the rights of the family of a person killed by the defendant's wrongful act. Survivorship legislation deals with the rights and duties of the deceased's estate.

a) Fatal Accidents Legislation

Fatal accidents legislation [Note 182: See Alberta Fatal Accidents Act, R.S.A. 1980, c. F-5; British Columbia Family Compensation Act, R.S.B.C. 1996, c. 126; Manitoba The Fatal Accidents Act, R.S.M. 1987, c. F50; New Brunswick Fatal Accidents Act, R.S.N.B. 1973, c. F-7; Newfoundland Fatal Accidents Act, R.S.N. 1990, c. F-6; Northwest Territories Fatal Accidents Act, R.S.N.W.T. 1988, c. F-3; Nova Scotia Fatal Injuries Act, R.S.N.S. 1989, c. 163; Ontario Family Law Act, R.S.O. 1990, c. F.3, ss. 61-63; Prince Edward Island Fatal Accidents Act, R.S.P.E.I. 1988, c. F-5; Saskatchewan Fatal Accidents Act, R.S.S. 1978, c. F-11; and Yukon Territory Fatal Accidents Act, R.S.Y. 1986, c. 64.] in all provinces provides a remedy for family members in respect of their losses arising from the wrongful death of a relative. The legislation is not uniform but some degree of generalization is possible. [Note 183: For a full discussion of damages in fatal accident actions, see Cooper-Stephenson, above note 170, c. 11.]

This statutory cause of action arises where the deceased, if he had survived the accident, would have had a valid cause of action against the defendant. The cause of action is, therefore, a derivative one and is subject to any defences that the defendant would have been able to raise against the deceased. Although the death of a person may have significant adverse financial and personal consequences for a wide range of persons and corporations, the legislation restricts the claimants to a narrow band of family members. Normally, only spouses (including common law spouses and same sex spouses [Note 184: M. v. H., [1999] 2 S.C.R. 3. Amendments are being made to provincial legislation as a consequence of this decision. See, for example, Ontario Amendments Because of the Supreme Court of Canada Decision in M. v. H. Act, 1999, S.O. 1999, c. 6, s. 25.] , children (including stepchildren and adopted children), and parents (including grandparents) are included. Siblings are included in some provinces. All of the legislation provides for the recovery of the claimants' pecuniary losses arising from the death of a family member and some also permit recovery of their non-pecuniary losses.

The primary purpose of the legislation is to allow claimants to re- cover their pecuniary losses arising from the death of a family member. The cause of action is particularly important to dependent spouses and children but a dependency is not required. Claimants may recover all financial benefits that they might reasonably have expected to receive from the deceased in her lifetime. Damages may be awarded for pre-trial pecuniary losses, the loss of future financial support of the claimants, the value of future domestic work that the deceased would have undertaken for the claimants, and the loss of future wealth. Although one action is brought on behalf of all the claimants by the executor of the deceased's estate, each claimant's loss is assessed individually.

The most important claim is for the loss of the future financial support of the claimants. This demands a difficult calculation of both the deceased's future earnings and the proportion of it that would have been available to the family if the deceased had lived. A variety of deductions must be made to the future gross earnings of the deceased to determine how much of it would have been spent on the claimants. Deductions must be made for income taxes, insurance premiums, personal costs and living expenses, work-related expenditures, personal expenditures, and savings. A wide range of negative and positive contingencies that might have affected both the deceased's future financial situation and the claimant's receipt of financial benefits from the deceased must be taken into account, and the length of time that each claimant would have received pecuniary benefits must be calculated with the assistance of actuarial tables. The lump sum is then calculated in a manner similar to that used in respect of personal injuries. That sum is then grossed up to cover future tax liabilities on income generated by investment of the lump sum. The claim for future domestic work includes all household tasks that the deceased would probably have provided in his lifetime. The usual method of valuation is the cost of replacement services converted to a lump sum in the standard manner. The loss of future wealth includes not only the loss of potential inheritance but also any gifts that the deceased would probably have made during his lifetime.

As a general rule, collateral benefits such as private insurance, public benefits, and private largesse are not deducted from the award. There are, however, deductions made for benefits that result from the wrongful death that would not have accrued to the claimants if the deceased had lived. These include the benefits of remarriage, the benefits of an accelerated inheritance, and any damages awarded to the estate in a survival action that the claimant inherits provided that the damages are a real gain to the claimant, not merely a sum that she would have received in any event. [Note 185: Cooper-Stephenson, above note 170 at 718-20.]

Claims by parents in respect of the wrongful death of young children present special difficulties and arguably some injustice. The award of damages for the parents' pecuniary losses depends upon proof of a reasonable expectation of gaining some financial benefit from the child in the future. The value of anticipated domestic work provided by the child and an expectation of future financial support during the parents' retirement years may qualify but these amounts are discounted by the parental savings in child-raising costs. Contingencies may further diminish the award. It is a fact of life that children are predominantly the recipients of financial support from their parents rather than the providers of financial support to their parents. Unless there are special circumstances, the award for pecuniary loss is likely to be low. The low awards for financial loss to the parents of young children was one of the factors that prompted some provinces to amend their fatal accidents legislation to allow recovery for some of the non-pecuniary loss suffered by members of the family.

Non-pecuniary loss includes the grief, loss of companionship, and emotional distress that arise from the death of a family member. Fatal accidents legislation, as originally drafted, did not expressly provide for recovery of non-pecuniary loss, and a narrow and constrained judicial interpretation of the legislative language restricted recovery to pecuniary loss. Today, public policy favours some recognition and compensation of the family's non-pecuniary loss. Fatal accidents legislation in all provinces, except British Columbia, Newfoundland, and Saskatchewan, has therefore been amended to permit the recovery for non-pecuniary losses. The amendments are not uniform but a common formula is to allow claims for the loss of care, guidance, and companionship of the deceased. There is little interprovincial consistency in the quantum of damages for non-pecuniary loss. Overall, the awards are moderate, ranging from $10,000 to $50,000. [Note 186: Cooper-Stephenson, above note 170 at 699.] This is not surprising. The main priority is the future financial security of the family members and there is a limit to which the public, through the fault/liability system, can be expected to compensate a significant number of family members in respect of non-pecuniary losses. Nevertheless, these modest awards play a useful role in recognizing the intangible losses arising from the tragic and unexpected death of a close family member, especially where there are no pecuniary losses.

b) Survivorship Legislation

Survivorship legislation [Note 187: See Alberta Surivival of Actions Act, R.S.A. 1980, c. S-30; British Columbia Estate Administration Act, R.S.B.C. 1996, c. 122, s. 66; Manitoba The Trustee Act, R.S.M. 1987, c. T160, s. 53; New Brunswick Survival of Actions Act, R.S.N.B. 1973, c. S- 18; Newfoundland Survival of Actions Act, R.S.N. 1990, c. S-32; Northwest Territories Trustee Act, R.S.N.W.T. 1988, c. T-8, ss. 31-32; Nova Scotia Survival of Actions Act, R.S.N.S. 1989, c. 453; Ontario Trustee Act, R.S.O. 1990, c. T.23, s. 38; Prince Edward Island Survival of Actions Act, R.S.P.E.I. 1988, c. S-11; Saskatchewan Survival of Actions Act, S.S. 1990-91, c. S-66.1; Yukon Territory Survival of Actions Act, R.S.Y. 1986, c. 166.] controls the liability of the deceased's estate for torts committed by the deceased and the rights of the deceased's estate, as an entity distinct from individual family members, to bring an action on behalf of the deceased where his death was caused by a tortfeasor. [Note 188: A full discussion of damages in survival actions is found in Cooper-Stephenson, above note 170 at 721-46.]

i) Actions against the Estate

Survivorship legislation in all provinces allows actions to be brought against the estate of a deceased tortfeasor. The defendant's death has little effect on the plaintiff's claim or the assessment of damages.

ii) Actions by the Estate

Survivorship legislation also allows the estate to commence or continue tort actions available to the deceased at the time of his death. In some provinces, claims for personal torts such as defamation and malicious prosecution are barred but claims in negligence for personal injury or property damage that have arisen before the plaintiff's death, and claims arising from wrongful death, continue in the estate. These are derivative claims. The estate acquires the rights of the deceased and any defences that the defendant may have had against the deceased if he had lived apply to the estate.

The most difficult assessment problems arise where the estate is suing in respect of a wrongful death. The heads of damage that the estate may recover are controlled by the pertinent legislation. Unhappily, there is no consistency among the provincial legislation but some broad generalizations are possible. All provinces allow the recovery of funeral expenses and, where death is not instantaneous, recovery is allowed for the deceased's pecuniary losses such as medical expenses, lost income, and the cost of personal care incurred before death. The only province that allows recovery for the deceased's loss of future earnings during the lost years is Alberta, [Note 189: Duncan Estate v. Baddeley (1997), 196 A.R. 161 (C.A.). ] and no province permits the recovery of future care costs. There is significant inconsistency in respect of the deceased's pre-death non-pecuniary loss. Some provinces allow recovery of pain and suffering and loss of amenities of life. Only one allows recovery for loss of expectation of life. There is also no consistency in respect of aggravated and punitive damages.