Wed, 2 Jun 2004 09:02:08 –0400
the apparent absence of an immediate reply from our professorial
colleagues, I'll provide a practitioner's answer to you, for any
of them to add to in due course - or correct if I've erred.
law practice is the same as the Quebec practice you describe. If
there is appropriate evidence of the potential for such a loss,
the appropriate award will be made. It will be either a lump sum
or periodic payments - the latter where permitted by recent statutory
changes. My assumption is that the award you've mentioned is for
the possibility of a future loss of income on account of the victim's
injuries, notwithstanding he or she is currently able to continue
working at pre-accident financial levels.
common law allows the same result, provided there is appropriate
evidence of a real contingency that the victim will sustain future
income loss. The required standard of proof isn't balance of probabilities.
The test is whether the evidence is cogent enough to establish a
reasonable possibility (also called a real possibility) of the future
loss. The judge takes into account both positive and negative contingencies.
Hence, the award is based on a percentage of what a 100% award would
be, if the judge concludes an award is appropriate. If there is
appropriate evidence that the victim's future earnings may be reduced,
the judge is required to award something to reflect that contingency.
It will be a percentage of some amount, the ultimate award being
a present value award or, where provincial rules permit and the
facts make this appropriate, the award will be for periodic payments
of some amount.
Graham v Rourke (1990) 75 OR (2d) 622, 74 DLR (4th) 1 (CA) at. 41
the Court summarizes Prof. Cooper-Stephenson's statement of the
law which is: "A plaintiff who establishes a real and substantial
risk of future pecuniary loss is not necessarily entitled to the
full measure of that potential loss. Compensation for future loss
is not an all-or-nothing proposition. Entitlement to compensation
will depend in part on the degree of risk established. The greater
the risk of loss, the greater will be the compensation. The measure
of compensation for future economic loss will also depend on the
possibility, if any, that a plaintiff would have suffered some or
all of those projected losses even if the wrong done to her had
not occurred. The greater this possibility, the lower the award
for future pecuniary loss: Personal Injury Damages in Canada, supra,
at pp. 91-92."
follows is the full text of para 40-42 of Graham v Rourke
A trial judge who is called upon to assess future pecuniary loss
is of necessity engaged in a somewhat speculative exercise: J.A.
Andrews v. Grand and Toy Alberta Ltd.,  2 S.C.R. 229, 19 N.R.
50, 8 A.R. 182,  1 W.W.R. 557; 83 D.L.R.(3d) 452; 3 C.C.L.T.
225, at 249-250 S.C.R. The ultimate questions to be determined -
will the plaintiff suffer future loss and, if so, how much? - cannot
be proved or disproved in the sense that facts relating to events
which have occurred can be proved or disproved. A plaintiff who
seeks compensation for future pecuniary loss need not prove on a
balance of probabilities that her future earning capacity will be
lost or diminished or that she will require future care because
of the wrong done to her. If the plaintiff establishes a real and
substantial risk of future pecuniary loss, she is entitled to compensation:
Schrump et al. v. Koot et al. (1977), 18 O.R.(2d) 337, at 340-343
(Ont. C.A.), Giannone et al. v. Weinberg (1989), 33 O.A.C. 11, 68
O.R. (2d) 767, at 774 (Ont. C.A.). Messrs. Cooper-Stephenson and
Saunders, the authors of Personal Injury Damages in Canada (1981),
aptly describe the task involved in assessing future pecuniary loss
claims, at p. 84:
different standard of proof which governs most of a damage assessment
may be termed 'simple probability'. It involves the valuation of
possibilities, chances and risks according to the degree of likelihood
that events would have occurred, or will occur. This contrasts with
'the balance of probabilities', more familiar in civil actions,
which involves an 'all-or-nothing' approach.
A plaintiff who establishes a real and substantial risk of future
pecuniary loss is not necessarily entitled to the full measure of
that potential loss. Compensation for future loss is not an all-or-nothing
proposition. Entitlement to compensation will depend in part on
the degree of risk established. The greater the risk of loss, the
greater will be the compensation. The measure of compensation for
future economic loss will also depend on the possibility, if any,
that a plaintiff would have suffered some or all of those projected
losses even if the wrong done to her had not occurred. The greater
this possibility, the lower the award for future pecuniary loss:
Personal Injury Damages in Canada, supra, at pp. 91-92.
Factors affecting the degree of risk of future economic loss and
the possibility that all or part of those losses may have occurred
apart from the wrong which is the subject of the litigation are
referred to as contingencies. The contemporary Canadian approach
to contingencies is described in Andrews v. Grand and Toy Alberta
Ltd., supra. Mr. Andrews was 23 years old when he was rendered a
quadriplegic as a result of the negligence of the defendants. At
trial he was awarded damages for loss of future earning capacity
and also for future care costs to be incurred as a result of his
medical condition. In the course of assessing the quantum of those
damages, the trial judge reduced the total amounts by 20% as an
allowance for negative contingencies. The Court of Appeal increased
that deduction to 30%. In addressing the contingency deduction for
future lost earning capacity, Dickson, J., said, at p. 253 S.C.R.:
is a general practice to take account of contingencies which might
have affected future earnings, such as unemployment, illness, accidents
and business depression ... There are, however, a number of qualifications
which should be made. First, in many respects, these contingencies
implicitly are already contained in an assessment of the projected
average level of earnings of the injured persons, for one must assume
that this figure is a projection with respect to the real world
of work, vicissitudes and all. Second, not all contingencies are
adverse, as the above list would appear to indicate. As is said
in Bresatz v. Przibilla (1962), 108 C.L.R. 541, at 544 (H.C.) ...
'Why count possible buffets and ignore the rewards of fortune?'
Finally, in modern society there are many public and private schemes
which cushion the individual against adverse contingencies. Clearly,
the percentage deduction which is proper will depend on the facts
of the individual case, particularly the nature of the plaintiff's
occupation, but generally it will be small ...
After noting the absence of more detailed evidence concerning contingencies,
the court restored the trial judge's ruling and applied a 20% contingency
deduction: Andrews v. Grand and Toy Alberta Ltd., supra, at pp.
many of the common law provinces / territories (I'm uncertain whether
it's all) there are now statutory provisions allowing the award
to be made, where facts warrant, in periodic payments form rather
than a lump sum.
trust that this helps to answer your question.
Bennett Best Burn LLP
Original Message -----
From: "Deslauriers Patrice"
Sent: Friday, May 28, 2004 5:14 PM
Subject: ODG: Question
have a question on Torts.
Civil Law has problems dealing with the assessment of pecuniary
damages when the victim, despite her injuries, is able to continue
working at the same salary she had prior to the accident. (We have
also problems with non-pecuniary damages but this is another question).
judges will allow a lump sum based on the medical incapacity. For
example, 1%=7000$ 10%=70000$.
rule has been criticized but it remains very popular amongst lawyers
and judges. My question is the following : how does Canadian common
law address this problem?
you for your assistance.
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