(Supreme Court of Canada) The injured plaintiff sought damages for future loss of earnings and for the cost of future care.
Held: Dickson J said: ‘It is clear that a plaintiff cannot recover for the expense of providing for basic necessities as part of the cost of future care while still recovering fully for prospective loss of earnings. Without the accident, expenses for such items as food, clothing and accommodation would have been paid for out of earnings. They are not an additional type of expense occasioned by the accident.
When calculating the damage award, however, there are two possible methods of proceeding. One method is to give the injured party an award for future care which makes no deduction in respect of the basic necessities for which he would have had to pay in any event. A deduction must then be made for the cost of such basic necessities when computing the award for loss of prospective earnings: ie the award is on the basis of net earnings and not gross earnings. The alternative method is the reverse: ie to deduct the cost of basic necessities when computing the award for future care and then to compute the earnings award on the basis of gross earnings.
The trial judge took the first approach, reducing loss of future earnings by 53 per cent. The Appellate Division took the second. In my opinion, the approach of the trial judge is to be preferred. This is in accordance with the principle which I believe should underlie the whole consideration of damages for personal injuries: that proper future care is the paramount goal of such damages. To determine accurately the needs and costs in respect of future care, basic living expenses should be included.
The costs of necessaries when in an infirm state may well be different from those when in a state of health. Thus, while the types of expenses would have been incurred in any event, the level of expenses for the victim may be seen as attributable to the accident. In my opinion, the projected cost of necessities should, therefore, be included in calculating the cost of future care, and a percentage attributable to the necessities of a person in a normal state should be reduced from the award for future earnings.’
Judges:
Laskin CJ and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpre JJ
Citations:
[1978] 2 SCR 229, (1978) 83 DLR (3d) 452, [1978] 1 WWR 577, 1978 CanLII 1 (SCC), 8 AR 182, 3 CCLT 225, AZ-78111098, [1978] CarswellAlta 214, [1978] SCJ No 6 (QL)
Links:
Jurisdiction:
Canada
Cited by:
Applied – Watkins v Olafson 1989
(Supreme Court of Canada) The plaintiff sought damages for his injury. He was cared for by the state between the accident and the trial and so had no claim for the cost of care during that period. The Appeal Court (British Columbia) had held that in . .
Cited – O’Brien and others v Independent Assessor HL 14-Mar-2007
The claimants had been wrongly imprisoned for a murder they did not commit. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. They also appealed differences from a . .
Cited – Heil v Rankin, Rees v Mabco (102) Ltd, Schofield v Saunders and Taylor Ltd and Other cases CA 23-Mar-2000
The Law Commission had recommended that the general level of damages awarded for pain suffering and loss of amenity in personal injury cases should be raised. The Court now considered several cases on the issue.
Held: The court would do so. . .
Lists of cited by and citing cases may be incomplete.
Damages
Updated: 11 June 2022; Ref: scu.250033