J. Date: 20020221 Docket: CA 172264 NOVA SCOTIA COURT OF APPEAL [Cite as: MacLean v. MacDonald, 2002 NSCA 30] Cromwell, Hallett and Hamilton, JJ.A. BETWEEN: ANN MacLEAN, in her own right and under the Fatal Injuries Act in respect of the death of Paul Levy, deceased and DAVID LEVY, LEONARD LEVY, and MICHAEL LEVY and DOUGLAS E. MacDONALD Respondent REASONS FOR JUDGMENT Counsel: M. Shaun O’Leary and James D. MacNeil for the appellants David Farrar and Christa M. Hellstrom for the respondent Appeal Heard: November 30, 2001 Judgment Delivered: February 21, 2002 THE COURT: Appeal dismissed per reasons for judgment of Cromwell, J.A.; Hallett and Hamilton, JJ.A. concurring. CROMWELL, J.A.: I. Introduction: [1] Where person is killed due to the fault of another, the person’s estate may sue the wrongdoer for certain damages which have resulted in “an actual pecuniary loss to the estate.” The main question to be decided in this case is whether the earnings which the deceased would likely have earned had he or she not been killed are “an actual pecuniary loss to the estate” and are, therefore, recoverable by the estate in an action against the wrongdoer. [2] In my opinion, for the reasons which follow, the Legislature has denied such claim to the estate but has provided the deceased’s dependants with statutory cause of action for the lost financial support and other losses resulting from the wrongful death. If the redress under that statutory cause of action is thought to be inadequate, the cure must be legislative, not judicial. II. Facts and Decision of the Chambers Judge: [3] Paul Levy died on January 25, 1999. He was fifteen. His mother, Ann MacLean, along with Paul’s father and two brothers started an action in the Supreme Court of Nova Scotia in which they allege that Paul’s death resulted from the negligent driving of the respondent, Mr. MacDonald. (I will refer to the plaintiffs collectively as the appellants and to Mr. MacDonald as the respondent). [4] The appellants’ action is based on two Nova Scotia statutes. In their claims under each of them, the appellants rely on allegedly wrongful acts of the respondent for which Paul Levy could have sued had he been injured rather than killed. [5] The first statute under which the appellants sue is the Fatal Injuries Act, R.S.N.S. 1989, c. 163. This claim is not directly in issue on this appeal. Under that Act, defined group of persons, including the deceased’s parents, may claim for damages against wrongdoer who caused the deceased’s death. The damages are to compensate the survivors for the loss of financial support which they could reasonably have expected and the loss of the care, guidance and companionship which they would have received from the deceased had he lived. Where child is killed as result of another’s negligence, the fatal injuries action is not likely to provide much in the way of compensation for the surviving family members. Generally no one would have reasonable expectation of receiving significant financial support from the child. While there is provision in the fatal injuries statute for damages for loss of companionship, those damages have generally in the past been fairly modest. [6] The second statute under which the appellants claim is the Survival of Actions Act, R.S.N.S. 1989, c. 453. Under that Act, any right to sue in negligence which Paul would have had, if he had not been killed, survives for the benefit of his estate. However, the Act limits the type of damages which may be recovered by the estate to those which have resulted in “actual pecuniary loss to the estate”. It also specifically excludes damages for punitive and exemplary matters, loss of expectation of life and pain and suffering. The restriction of damages to “actual pecuniary loss to the estate” and the exclusion of damages for loss of expectation of life are at the heart of this appeal. [7] The appellants, in their action under the Survival of Actions Act, advance a claim for Paul’s lost earning capacity. Their statement of claim alleges that “... it was reasonably expected that Paul Levy would in future earn income in employment or otherwise, and by his death his estate has suffered pecuniary loss arising from the loss of Paul Levy’s future earning capacity.” [8] The appellants’ claim is straightforward. They say, in my view correctly, that had he been seriously injured instead of being killed, Paul’s loss of earning capacity would have been treated as capital asset the value of which had been either diminished or destroyed by his injuries. The appellants claim that this capital asset was destroyed by his death, that this loss crystalized in the instant before his death and, therefore, passed to his estate upon death. The estate, they say, can, therefore, sue for damages for this loss under the Survival of Actions Act. [9] The appellants, in essence, ask the Court to interpret the survival of actions legislation so as to prevent an injustice. The deceased here, Paul Levy, was young person. If he had been badly disabled instead of killed as result of the accident, he might well have been able to succeed in substantial claim for damages for his lost earning capacity. Even if he had died from his injuries shortly after that claim had been resolved, his estate would likely have benefited from the award as the unspent portion of the settlement or judgment would pass to the estate on death. As it is, though, unless his estate is entitled to claim for his loss of future earnings, the only significant claim will be under the Fatal Injuries Act. Any recovery under that Act, for reasons mentioned earlier, is likely to be much smaller than would be recovery by seriously injured person who lived to sue. (Of course, none of the facts about liability or damages are before us, so am speaking here in generalities). [10] The respondent says that such damages cannot be awarded under the Survival of Actions Act. His position is that the loss of the deceased’s future earning capacity is not an “actual pecuniary loss to the estate” and therefore is not recoverable. Alternatively, the respondent argues that this claim is for loss of expectation of life and is, therefore, specifically excluded. [11] The appellants applied to MacDonald, A.C.J.S.C. for the determination of preliminary point of law. The question posed for the judge’s determination was whether Paul Levy’s estate has right to claim damages under the Survival of Actions Act in respect to the deceased’s loss of earning capacity. In a written decision reported at (2001), 2001 NSSC 83 (CanLII), 195 N.S.R. (2d) 44, the learned Associate Chief Justice concluded that the estate was not entitled to do so because loss of earning capacity does not constitute an “actual pecuniary loss to the estate,” as required by the Survival of Actions Act. The appellants now appeal that determination. [12] It is important to remember that there has been no trial in this matter. The facts before the Court are those agreed to by the parties for the limited purpose of resolving preliminary point of law. Whether Mr. MacDonald, the respondent on this appeal, was negligent and liable for damages in relation to Paul’s death have not been decided and are not in issue here. The only question on this appeal is one of law, namely, whether, if Mr. McDonald was at fault, Paul Levy’s estate would be entitled to claim damages for Paul’s lost earning capacity. 1. The Question for Decision: [13] To succeed on their Survival of Actions Act claim for damages for Paul’s lost earning capacity, the estate: (a) must have cause of action that survives his death for the benefit of the estate; and (b) the damages claimed for his lost earning capacity must not be excluded by the provisions of that Act. [14] It will be helpful at this point to set out the relevant provisions of the Nova Scotia Survival of Actions Act: (1) Except as provided in subsection (2), where person dies, all causes of action subsisting against or vested in him survive against or, as the case may be, for the benefit of his estate. 4. Where cause of action survives for the benefit of the estate of deceased person, only damages that have resulted in actual pecuniary loss to the estate are recoverable, and in no case are damages recoverable for (a) punitive and exemplary matters; (b) loss of expectation of life; (c) pain and suffering. (emphasis added) [15] For the purposes of this preliminary point of law, it has been assumed that Paul Levy had, at the time of his death, cause of action in negligence “vested in him” against the respondent and that, under s. of the Act, that cause of action therefore survives “for the benefit of his estate”. The issue, therefore, is whether the damages sought by the estate for Paul’s lost earning capacity are excluded under s. 4, either because they do not constitute “an actual pecuniary loss to the estate” or because they relate to damages for “loss of expectation of life.” [16] The main legal question on this appeal thus boils down to the interpretation of few words in Nova Scotia’s survival of actions legislation the phrase that restricts recovery of damages in survival actions to “actual pecuniary loss to the estate” and the phrase that prohibits the award of damages for “loss of expectation of life.” [17] The survival of actions legislation was enacted to relieve against specific aspects of very old common law rule. It was enacted after fatal injuries legislation which addressed another related common law rule. All of this legislation was enacted against particular background of how damages for lost earning capacity are assessed in personal injury actions by living plaintiffs. Therefore, while only few words of the statute are in the foreground of this appeal, there is rich and complicated background against which they must be interpreted. [18] In attempting to find the correct interpretation of these statutory provisions, the Court must “... determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids”: see Ruth Sullivan (ed.), Driedger on the Construction of Statutes (3rd, 1994) at 131. Having considered these matters, the Court should adopt the appropriate interpretation. The appropriate interpretation is one which is plausible in the sense that it complies with the text of the Act, which is efficacious, in the sense that it promotes the legislative purpose and that is acceptable in the sense that the outcome is reasonable and just: Ibid. [19] will, therefore, address the context of the legislation, its purpose and the consequences of the proposed interpretations offered by the parties. will then turn to determination of the appropriate interpretation in light of plausibility, efficary and justice. (i) The common law background: [20] This case concerns the rights of survivors of persons killed as result of the negligence of another person. At common law, the question of what these rights were had simple but harsh answer. There were none. This result flowed from two very old common law rules. [21] The first of those rules was that the estate of deceased person could not sue or be sued for any tort committed against or by the deceased in his or her lifetime: John G. Fleming, The Law of Torts (9th, 1998) at 741; P.A. Landon, Pollock’s Law of Torts (14th, 1939) at 53 54. The second rule was that there was no action at common law for wrongful death. That is, one person could not recover damages from another person for causing the death of third: see e.g., Alberta Law Reform Institute, Report No. 76: Should Claim for the Loss of Chance of Future Earnings Survive Death? (1998). For example, the death of family’s breadwinner due to the wrongful act of another person did not give rise to any right of action on the part of the family members whom the deceased had supported: see A.I. Ogus, The Law of Damages (1973) at 264; Pollock’s Law of Torts, supra at p. 54 58. [22] The result of these two rules was as follows. First, where person was killed due to the fault of another, no cause of action in tort, which the deceased would have had if he had lived, survived his death for the benefit of the estate. Second, those who suffered financial loss as result of the loss of support previously provided to them by the deceased had no independent cause of action against the wrongdoer who caused the death. Thus, the estate had no right of action derived from the wrongful act suffered by the deceased because the deceased’s claim did not survive his or her death. The deceased’s dependants had no separate claim for the loss of support suffered directly by them as result of the wrongful act because no cause of action for wrongful death was recognized. (ii) Legislative reforms: [23] These rules were unsatisfactory. They were changed by legislation in two main respects. First, the dependants of deceased person were given statutory right to sue the wrongdoer whose negligence caused the death of the deceased. Under these statutes (often called “fatal injury” or “wrongful death” statutes), they could recover compensation for the amount they would have received from the deceased had he or she not been killed. Second, legislation (generally called survival of actions legislation) was enacted stating that causes of action which existed in favour of or against the deceased at the time of death survived for or against the deceased’s estate. It will be helpful to review these legislative developments. (a) Wrongful death claims: [24] As noted, the common law did not recognize claim for wrongful death. This rule was considerably amended by legislation in England in 1846 and similar changes occurred in Canadian common law jurisdictions about the same time. By 1873, Nova Scotia legislation permitted an action to be brought for the benefit of the deceased’s “wife, husband, parent or child” against person whose wrongful act caused the deceased’s death: R.S. 1873, c. 113, s. and 2. [25] This action was for what is often referred to as the “dependancy amount”. The damages awarded (apart from certain other claims not relevant here) were to be based on the financial support that the wife, husband, parent and child could reasonably have expected to receive from the deceased had he or she not been killed. The defendant’s liability depended on it being shown that the death was caused by the defendant’s wrongful act which would have entitled the injured party to sue had death not occurred. However, the damages recoverable were based on the loss his or her death caused to the surviving spouse, parent and children. [26] The starting point for the calculation of that loss was (and is) the earnings which the deceased would have received had he or she not been killed; in other words, the earnings during the period by which the deceased’s working life was shortened by the wrongful death. That period is included in what is often called the “lost years”, that is, the years of life lost as result of the wrongful act. [27] It is significant that the primary purpose of this legislation was to put the survivors of person wrongfully killed in the financial position they would have been in had the deceased lived and continued to provide support. [28] In the case of Nova Scotia’s legislation, this basic purpose has been expanded in two respects. First, in 1956, the Fatal Injuries Act (which had been enacted in 1873) was amended to make it clear that, in assessing the compensation to be paid, sums payable on the death of the deceased such as pensions or proceeds of insurance were not to be deducted from the compensation otherwise payable by the defendants: S.N.S. 1956, c.26, s. 1(2). Second, in 1986, the Act was amended to permit recovery of damages for the guidance, care and companionship which the survivors lost as result of the deceased’s death: S.N.S. 1986, c. 30, s. 1(d). In addition to these two major changes, the list of persons included in the definition of dependants has been updated from time to time. [29] think it important to note that this fatal injuries legislation does not do away entirely with the common law rule barring wrongful death actions. Rather, it only modifies the rule in specific ways. The claim under the legislation is limited to defined class of persons. It provides for compensation for all of them, but in one action, and the compensation to which they are entitled is primarily for the loss of support they reasonably could have expected to receive from the deceased had he or she lived. [30] note that this is not an old statute that has been ignored by the Legislature in the many years since it was first enacted. The statute has been amended several times with respect to both the types of damages that are recoverable and the definition of the persons for whose benefit the action may be brought. think it is significant that the Legislature has, over the years, including quite recently, repeatedly addressed itself to both these issues. (b) Survivorship Claims: [31] As noted earlier, the common law rule was that actions in tort did not survive the death of the injured person. This was altered in all Canadian common law jurisdictions and in England by legislation providing that all, or virtually all, causes of action survive for the benefit of, or against, the estate of the deceased. [32] The legislative change in England was made by the Law Reform (Miscellaneous Provisions) Act, 1934. This was nearly 90 years after the introduction of statutory wrongful death actions. The 1934 Act provided that, upon death, all causes of action subsisting against or vested in the deceased (except defamation, seduction and inducing one spouse to leave another) survived against or for the benefit of the deceased’s estate: s. 1(1). There were certain restrictions on the damages which could be recovered. For example, there could be no award for exemplary damages: s. 1(2). Apart from such restrictions on the damages recoverable and the exclusion of the three types of action referred to earlier, the legislation placed the estate of the deceased in the same position with respect to the action as the deceased would have been had death not occurred. [33] It is important to note that the English statute, unlike the later Nova Scotia one, did not contain stipulation that only damages which were an “actual pecuniary loss to the estate” could be recovered and it did not bar the recovery of damages for loss of expectation of life. [34] The impact of the English legislation was considered by the House of Lords in Rose v. Ford, [1937] A.C. 826 (H.L.). That case concerned young woman who had been seriously injured in car accident and died from her injuries four days later. The woman’s father sued both under the Fatal Accidents Act (1846) (i.e. the wrongful death statute) and under the 1934 survival of actions legislation. An award was made at trial under the former Act which was not challenged on appeal. An award was also made under the survival of actions legislation, but the trial judge refused to include damages for loss of expectation of life. The Court of Appeal agreed that no such damages could be awarded in survival action. The father appealed to the House of Lords and his appeal succeeded. [35] In the House of Lords, four extended speeches were delivered. Lord Atkin (with whom Lord Thankerton concurred) held that if, as he decided was the case, living plaintiff could recover damages for loss of expectation of life, it followed that such “... right is vested in him in life and on his death passes under the Act of 1934 to his personal representative.” at 834. He specifically refrained from deciding, however, how those damages should be calculated as that question was not before the House. Lord Russell of Killowen agreed. He stated that living plaintiff could recover damages for loss of expectation of life and that it followed from the words of s. 1(1) of the 1934 Act that the cause of action is made to survive for the benefit of the estate and is, therefore, enforceable by her legal personal representative against the defendant: at 837. Lord Wright was of the same view, joining the other Law Lords in emphasizing that the result flowed from the fact that living plaintiff could recover damages for loss of expectation of life and that such claims, not being excluded from the general provisions of the 1934 Act, could be asserted after death by the deceased’s personal representatives. [36] Lord Roche agreed that living plaintiff could claim for loss of expectation of life and that the 1934 statute permitted this claim to be asserted by the personal representatives. He also commented on the nature of the compensable loss under this head. He noted that the sum of £1000, which the Court of Appeal found would have been appropriate if damages were recoverable for loss of expectation of life, “... was obviously and rightly arrived at without regard to the question of the amount of future earnings ... [O]rdinarily, person may be assumed to have or be able to earn enough to live his or her life and to enjoy it. Earnings or income are otherwise and to an extent beyond this irrelevant.”: at 861. (emphasis added) [37] turn now to the development of survival of actions legislation in Canada. Dean Wilbur F. Bowker provided succinct summary as follows: The first survival legislation in Canada appeared in Ontario in 1886 as provision in the Trustee Act. The Northwest Territories borrowed Ontario’s Act and Alberta kept it. Thus section 32 of Alberta’s present Trustee Act provides for survival where the victim dies and section 33 where the wrongdoer does. The other western provinces have long had similar provisions. England had none until the Law Reform Act of 1934. Later each Maritime province passed Survival of Actions Act based on the English Act. Newfoundland’s survival provisions are in the Trustee Act, and are confined to torts to property. (W.F. Bowker, “The Uniform Survival of Actions Act” (1964), Alberta L.R. 197 at p. 197) [38] As Dean Bowker noted, general statutory provision for survival of actions in Canadian common law jurisdiction first appeared in Ontario in 1886 (Statute Amendment Act, S.O. 1886, c. 23.). (This was nearly fifty years before the English statute of 1934). The Ontario statute, which was adopted in some other Canadian jurisdictions, simply provided that rights of action, except in defamation, survived and could be asserted by the legal representatives of the deceased person. [39] The history of the Ontario provision is reviewed in detail in Balkos v. Cook (1990), 1990 CanLII 6743 (ON CA), 75 O.R. (2d) 593 (C.A.). One aspect of that history is particularly relevant to the issues on this appeal. [40] Not long after the decision of the House of Lords in Rose v. Ford in 1937, the Ontario provision was amended to undo the effects on Ontario law of that decision being followed. In Balkos, the Court cited 1938 article by Dean Cecil Wright (“The Abolition of Claims for Shortened Expectation of Life by Deceased’s Estate” (1938), 16 Can. Bar Rev. 198, at pp. 193-94) which described the background to this amendment as follows: Ontario had on the statute books for over fifty years legislation which, while differing in many respects from the English Act, undoubtedly was designed to achieve the same result of allowing the personal representative of person injured by tortious conduct to continue the action for the benefit of the estate. For over fifty years no one had thought that personal representative could collect damages for the estate of deceased person based solely on the fact that such person’s life had been shortened or that he had been killed by the defendant’s tortious conduct. Immediately after the new English legislation and the decision of the House of Lords in Rose v. Ford we find all this gone. personal representative is entitled on behalf of the estate to collect damages for the death. Presumably, therefore, this has been, in theory, the law of Ontario for over fifty years only no one knew it until in England legislation similar to ours was passed. (emphasis added) [41] The Nova Scotia survival of actions legislation was enacted in 1954 (Survival of Actions Act, S.N.S. 1954, c. 12). It was thus drafted in light of, among other things, the House of Lords decision in Rose v. Ford and the Ontario amendments of 1938 in response to it. The Nova Scotia legislation contained several exclusions and limitations not found in the earlier Ontario and English legislation. The Nova Scotia Act excluded causes of action for adultery and inducing spouse to leave or remain apart from his or her spouse: s. 2. Most relevant to this appeal is the limitation on damages set out in s. of the 1954 Act which provided: Where cause of action survives for the benefit of the estate of deceased person, only damages that have resulted in actual pecuniary loss to the estate are recoverable; and in no case are damages recoverable for: (a) punitive and exemplary matters; (b) loss of expectation of life; (c) pain and suffering. (emphasis added) [42] Thus, the Nova Scotia legislation excluded damages for loss of expectation of life, and thereby excluded the sorts of claims discussed by the House of Lords in Rose v. Ford. It also excluded damages for pain and suffering. In at least these two respects, the estate of person killed as result of the negligence of another (or injured and dying from some other cause before the negligence claim was resolved) was in significantly different position than seriously injured plaintiff who was able to pursue the negligence claim to judgment (or settlement) while living. The living plaintiff may recover substantial non-pecuniary damages for pain and suffering and loss of expectation and enjoyment of life. The estate of the person cannot. [43] The Nova Scotia legislation also limited damages to “... damages that have resulted in actual pecuniary loss to the estate ...”, limitation not found in the English statute. Like the English act, the Nova Scotia statute provided that the rights conferred under it were in addition to and not in derogation of rights of dependants under the Fatal Injuries Act: s. 5. The current form of the Act retains these features. (I have set out the relevant current provisions above.) [44] In the early 1960's, the Uniform Law Conference of Canada studied and reported on the subject of survival of actions legislation and drafted Uniform Survival of Actions Act: see W.F. Bowker, “The Uniform Survival of Actions Act” (1964), Alberta L.R. 197. The subject was initially referred to the Alberta Commissioners who reported in 1961. Their report reviewed the various provincial and territorial enactments and, among other issues, considered the question of survival of claims for loss of future earnings (what we would now call lost earning capacity) following death. The Alberta Commissioners in 1961 Report of the Alberta Commissioners in 1961 Proceedings of the Forty-Third Annual Meeting of the Conference of Commissioners on Uniformity of Legislation in Canada (August, 1961) were of the view that such claims did not survive death: At least one of the provinces excludes damages for death and compensation for expected earnings subsequent to death. We think this exclusion is not necessary because these items are not included in the first place; they are not surviving rights. ... (page 110) (emphasis added) [45] In the draft Uniform Act filed with the Report of the Alberta Commissioners, s. 6(1)(f) provided that no damages were recoverable for loss of expectancy of earnings subsequent to death. The Commissioners added note indicating they did not recommend inclusion of this restriction as they thought such loss was not recoverable in any case. [46] The Uniform Act was finalized in 1963 and its key provisions were as follows: (1) All causes of action vested in person who dies after the commencement of this Act, other than causes of action in respect of (a) adultery, (b) seduction, or (c) inducing one spouse to leave or remain apart from the other, survive for the benefit of his estate. (2) The rights conferred by subsection (1) are in addition to and not in derogation of any rights conferred by The Fatal Accidents Act. 4. All causes of action subsisting against person who dies after the commencement of this Act survive against his estate. 6. Where cause of action survives for the benefit of the estate of deceased person, only damages that have resulted in actual pecuniary loss to the deceased person or the estate are recoverable and, without restricting the generality of the foregoing, the damages recoverable shall not include punitive or exemplary damages or damages for loss of expectation of life, pain and suffering or physical disfigurement. (emphasis added) [47] Apparently accepting the view of the Alberta Commissioners, the Uniformity Commissioners did not include an express exclusion of damages for loss of expectancy of earnings subsequent to death. [48] Dean Wilbur F. Bowker was one of the Alberta Commissioners. He published an article in 1964 about the Uniform Survival of Actions Act to which have already referred. While the article does not address explicitly the issue of the deceased’s lost earning capacity, it does deal at length with the Uniform Act’s exclusion for damages for loss of expectation of life. Dean Bowker noted that legislation in all but two common law provinces had abolished the claim by statute (Nova Scotia among them, as mentioned earlier). The reason for the Conference’s adoption of that position is instructive. The Conference was of the view that, given the fatal injuries legislation which had been earlier enacted, the award of loss of expectation of life under the survival of actions legislation would be of no practical assistance to dependants. As Dean Bowker put it: ... The legislation should not cast its net so wide as to allow the estate of victim to make claim that represents no loss whatever to the estate. If the Fatal Accidents Act is too narrow it should be widened; and Survival Act should not be the vehicle for doing this indirectly, erratically and inefficiently: at 201 (emphasis added) [49] The texts of the current survival legislation in the common law provinces vary somewhat from jurisdiction to jurisdiction. These have been well summarized elsewhere and will not repeat these summaries here: see S.M. Waddams, The Law of Damages (looseleaf edition, updated December 2001) at para. (c) Compensation for the “lost years” in personal injury actions: [50] There is another common law rule that is part of the context for the interpretation of the survival of actions legislation. That rule concerns the calculation of the loss of future income in personal injury claims by living plaintiffs. [51] In many personal injury cases, one of the most significant claims is for compensation for the injured person’s loss of the ability to earn income which has resulted from the accident. This is often referred to as the loss of future earning capacity. Generally speaking, the approach is to calculate lump sum representing the present value of the income which the victim would likely have earned had he or she not been injured. There are many legal rules concerning how the proper amount of such claims should be calculated. However, only one aspect of this calculation is of concern in this case. [52] Suppose the accident not only disables the victim from earning income, but reduces his or her life expectancy The length of the reduction in life expectancy is referred to as “the lost years”. Should the victim’s lost earnings be determined having regard to the victim’s life expectancy as if there had been no accident or should the amount be determined on the basis of the victim’s reduced life expectancy after the accident? As the question is often put, should the award for lost earning capacity compensate for the “lost years”? [53] The answer to this question today, both in Canada and England, is yes; an award for lost earning capacity is based on the pre-accident life expectancy of the victim. This makes perfect sense because the object of the award is to put the injured person, as nearly as money can, into the position he or she would have been in had there been no injury. Without the injury (and subject to the risks of life and career) the person would likely have continued to earn income until normal retirement age. The award for the lost years thus compensates for the loss of that period of earning as result of the accident. [54] While this law is clear today, the law’s development on this point has rather tortuous history. In England, the answer to the “lost years” question was, at best, uncertain until the decision of the Court of Appeal in Oliver v. Ashman, [1962] Q.B. 210 (C.A.). (For discussion of the law before Oliver v. Ashman, see, for example, A.L. Armitage et al (eds.), Clerk Lindsell on Torts (12th, 1961) at para. 343; and see as well the 11th edition of the same work (1954) at para. 450). That case decided that the recovery for future loss of earnings should be confined to the period during which the plaintiff was likely to remain alive. The calculation was based on the victim’s post-accident, shortened life expectancy; lost earnings were not recoverable for the “lost years”. [55] Oliver v. Ashman is important for four reasons. First, and as already noted, it settled the law in England that expected earnings during the lost years were not compensable in personal injury action by living plaintiff. Second, the court held that this result was mandated by the decision of the House of Lords in Benham v. Gambling, [1941] A.C. 157. Third, the Court expressed the view, following Benham v. Gambling, that the same approach to the “lost years” question should be followed in both personal injury and survival of actions claims. Finally, and notwithstanding the view just mentioned, the case recognized that treating the lost years question the same way in both personal injury and survival of action cases did not always produce sensible results. Holroyd Pearce, L.J. began his discussion of the “lost years” issue by noting that neither of the possible approaches, (i.e., using pre-accident or post-accident life expectancy to calculate the loss of future earnings) produced “wholly satisfactory” result: at 225. Echoing some comments made by Professor Jolowicz in note in [1960] Cambridge Law Journal 160, he observed that the trial judge’s approach of using pre-accident life expectancy (i.e., ignoring the shortened expectation of life) seemed more appropriate in the case of living plaintiff while basing the award on the post-accident life expectancy was more apt in the case of survival of actions claim: 225. [56] As Professor Jolowicz pointed out in the note have just referred to, if the lost years are compensated in the case of living plaintiff, logic would suggest that “... damages for loss of earnings calculated by reference to the deceased’s pre-accident expectation of working life should be awarded for his estate ...” under the survival of actions legislation. However, he continued: So far as is known this has never in fact been done, nor is it desirable that it should be done. Whatever the logic of Rose v. Ford [1937] A.C. 826 and similar cases, the notion of awarding damages to deceased person’s estate in respect of the tort which killed him is merely fanciful so long as the Fatal Accidents Acts remain on the statute book. The loss is not that of the deceased but of his dependants, and those Acts provide the proper medium for the award of damages. It is to be observed, moreover, that damages under the Fatal Accidents Acts are calculated by reference to what the deceased would have earned if he had lived. (emphasis added) [57] should note here one aspect of the decision of the House of Lords decision in Benham v. Gambling which was relied on by the Court in Oliver. Benham was survival of actions case. Viscount Simon, speaking on behalf of unanimous House of Lords, stated that damages for loss of expectation of life (which had been held to be recoverable in survival of actions claims in Rose v. Ford) could not include any allowance for financial losses during the period of which the victim has been deprived: at 167. This is the statement relied on by the Court of Appeal in Oliver v. Ashman for the proposition that loss of prospective earnings for the lost years were not recoverable. [58] Until it was overruled in 1978, Oliver v. Ashman settled the law of England concerning the calculation of loss of future earning capacity in personal injury action by living plaintiff. This position changed, however, when in 1978 the House of Lords reversed Oliver v. Ashman in Pickett v. British Rail Engineering Ltd., [1979] All E.R. 774. [59] Pickett was claim by living plaintiff for damages suffered as result of his having contracted lung disease from inhaling asbestos in the defendant’s workshops. The lung disease greatly reduced Mr. Pickett’s life expectancy; at the time of trial, it was only one year. The trial judge awarded damages for loss of prospective earnings but, following Oliver v. Ashman, limited the award to the period of Mr. Pickett’s shortened life expectancy. He appealed, but died before the appeal had been heard by the Court of Appeal. His widow was substituted as plaintiff. The Court of Appeal, while increasing the amount of general damages, did not disturb the trial judge’s award in relation to loss of future earnings. The plaintiff appealed this aspect and the defendant appealed the increase of general damages to the House of Lords. will limit my consideration of the case to the issue of damages for loss of future earnings during the so-called lost years. [60] The House decided (Lord Russell of Killowen dissenting) that Oliver v. Ashman should be overruled. In assessing the loss of future earnings, the plaintiff’s pre-accident (or in this case pre-illness) life expectancy was to be considered. [61] Lord Wilberforce began his speech by pointing out the apparent injustice on the facts of Pickett. He noted that the law was clear that because Mr. Pickett had brought action in his life-time and recovered judgment, his dependants could not bring an action after his death under the fatal injuries legislation. He also noted that, in fatal injuries claim, unlike personal injury action by living plaintiff, the award would be based on the probable future earnings of the deceased according to his pre-accident life expectancy. In other words, even though Mr. Pickett had died before his appeal had been heard in the Court of Appeal, his widow had been denied any substantial recovery on account of loss of future earnings. The action had been brought and tried while Mr. Pickett had been alive and, therefore, no further action to benefit the dependants could be brought under the fatal injuries legislation. [62] Lord Wilberforce then turned to Oliver v. Ashman. He rejected the view expressed by Holroyd Pearce, L.J. in Oliver that the issue had been settled in Benham v. Gambling. He was of the view that Viscount Simon in Benham was not referring to claim by living person for earnings during the “lost years”. [63] Turning to consider the question as matter of principle, Lord Wilberforce rejected the notion that nothing is of value unless the person is there to spend or save it. He characterized person’s good health and sound earnings as “... an asset of present value quite separate and distinct from the expectation of life which every man possesses ...”. (at 780) Lord Wilberforce added: do not think that the problem can be solved by describing what has been lost as an ‘opportunity’ or ‘prospect’ or an ‘expectation’. ... [The law] always has to answer question which in the end can hardly be more accurately framed than as: “Is the loss of this something for which the claimant should and reasonably can be compensated?” (at 781) (emphasis added) [64] Lord Wilberforce concluded in these words: My Lords, in the case of the adult wage earner with or without dependants who sues for damages during his lifetime, am convinced that rule which enables the ‘lost years’ to be taken account of comes closer to the ordinary man’s expectations than one which limits his interest to his shortened span of life. The interest which such man has in the earnings he might hope to make over normal life, if not saleable in market, has value which can be assessed. man who receives that assessed value would surely consider himself and be considered compensated; man denied it would not. ... (p. 781) (emphasis added) Lord Salmon, Lord Edmund-Davies and Lord Scarman agreed. [65] The law lords agreed that compensating for income that would likely have been earned during the ‘lost years’ is consistent with the fundamental principle of compensation; that is, to put the plaintiff in the financial position he or she would have been in had the compensable injury not occurred. They also affirmed that the loss of future earnings during the lost years has value that can be assessed. They seemed to acknowledge, however, that the loss is of an ‘opportunity’ or ‘prospect’ or an ‘expectation’: see e.g. Lord Wilberforce at 780. Lord Scarman noted that there are “... logical and philosophical difficulties [in] compensating man for loss arising after his death ...” and that while such losses are pecuniary in the sense that “... the money would have been his to deal with as he chose, had he lived ...”, the loss is also, “... to some extent ...”, non-pecuniary loss: at p. 798. [66] Lord Russell of Killowen dissented on the lost years issue. While agreeing with his colleagues that Benham v. Gambling did not settle the issue as the Court of Appeal had thought in Oliver, he held that the matter should be resolved by legislation rather than judicial decision. He rejected the comparison to assessment of damages under the fatal injuries legislation, noting that fatal injuries claims are brought on behalf of living people “... in respect of their living periods, which is expressly based on what they have lost by death.” [67] After Pickett, the law of England in personal injury cases brought by living plaintiffs was that the calculation of loss of future earnings should provide compensation for the lost years. [68] The same rule was accepted in Canada. While apparently both before and after Oliver v. Ashman the question was the cause of some doubt in Canadian courts, the Pickett approach was unequivocally endorsed by the Supreme Court of Canada in Andrews v. Grand Toy Alberta Ltd., 1978 CanLII (SCC), [1978] S.C.R. 229. While the Court referred to this question as controversial one, it endorsed the view that, in personal injury actions by living plaintiffs, the claim for loss of future earnings should be assessed on the basis of pre-accident life expectancy. The lost years should be the subject of compensation: at 252. [69] Also relevant here is the way in which the Supreme Court of Canada characterized the loss of future earnings. The Court referred to this claim as one for the loss of earning capacity rather than of future earnings, emphasizing that it is “capital asset” that has been lost and which must be valued: at 251. The Court recognized, however, that determining this value requires gazing “... more deeply into the crystal ball ...” in order to discover the sort of career the victim would have had the “prospects” and “potential” before the accident: at 251. It is also worth noting that the Supreme Court of Canada in Andrews, consistent with longstanding practice, included the damages for lost earning capacity as part of the award of “general” damages: Andrews at p. 265 266. To understand why this is significant point, must say word about the nature of “general” damages in personal injury cases. [70] In personal injury cases, the damage award has two main components. The first is the special damages component which relates to pre-trial pecuniary loss. The second is the general damages component which includes all non-pecuniary losses as well as future pecuniary losses: see K. Cooper-Stevenson and Iwan Saunders, Personal Injury Damages in Canada (1981), at 43. This distinction between general and special damages is discussed as followed in Cooper-Stevenson and Saunders at p. 43 44: The primary distinction in personal injury cases is between “special damages”, which constitute pre-trial pecuniary loss, and “general damages”, which constitute future pecuniary loss and all non-pecuniary loss. This corresponds with the fourfold division of heads of damage recently adopted in Canada for personal injury cases. The distinction between special and general damages in this sense is now well accepted, and was outlined by Lord Goddard in B.T.C. v. Gourley, [1956] A.C. 185 (H.L.) as follows: In an action for personal injuries the damages are always divided into two main parts. First, there is what is referred to as special damage, which has to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Secondly, there is general damage which the law implies and is not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future. The rationale of this distinction is that pre-trial pecuniary loss is capable of fairly accurate mathematical calculation. This was emphasized by Fullagar J. in Paff v. Speed (1961), 105 C.L.R. 549 (Aus. H.C.) where he explained the categorization more fully as follows: Special damages are awarded in such cases in respect of monetary loss actually suffered and expenditure actually incurred. Their two characteristics are (1) that they are assessed only up to the date of verdict, and (2) that they are capable of precise arithmetical calculation or at least of being estimated with close approximation to accuracy. The familiar examples are medical and surgical fees paid or payable, ambulance and hospital expenses and loss of income. Where the plaintiff has been employed at fixed wage or salary, his loss of income can commonly be calculated with exactness. Where the plaintiff has not been employed, but is, for example, professional man, his monetary loss can be estimated without difficulty by reference to his past earnings. In high proportion of cases the amount of the “special damages” is agreed between counsel for the plaintiff and counsel for the defendant. “General damages” on the other hand, are of their very nature, incapable of mathematical calculation, and (although the expression is apt to be misleading) commonly very much “at large”. They are at large in the sense that jury has, in serious cases, wide discretion in assessing them. Also general damages may be assessed not with reference to any limited period, but with reference to an indefinite future. ... (emphasis added) [71] Although the Court in Andrews did not define the terms ‘pecuniary’ and ‘non-pecuniary’, think these terms are used in their ordinary sense. pecuniary loss is one that is “... of, concerning or consisting of money” (see Katherine Barber, The Canadian Oxford Dictionary (1998) at p. 1071). non-pecuniary loss is one that is not, such as pain and suffering and loss of enjoyment of life. [72] Thus, while lost earning capacity is pecuniary loss because it is loss ‘of, concerning or consisting of money’, it is the loss of future prospect or potential. Damages to compensate this loss are general damages because they are not “... capable of precise arithmetical calculation or at least of being estimated with close approximation to accuracy”. (See Cooper-Stevenson and Saunders, above at p. 44). [73] The facts that, in the case of living plaintiff, the loss of earning capacity is viewed as the loss of “capital asset” and that account must be taken of the “lost years” in assessing its value, play an important part in the appellants’ argument in this appeal. Reduced to the basics, the submission is that once claims by living plaintiffs for future loss of earnings are treated as capital asset with present value calculated by including the lost years, it follows that the same approach should be taken in assessing the estate’s damages in survival of actions case. It is therefore necessary to examine how the “lost years” issue has been treated by the Courts in survival of actions claims. (d) The lost years and survival claims: [74] It would appear from highly respected texts and academic commentary that there was no real controversy, even before Oliver v. Ashman, concerning the rule about the lost years in survival actions. The rule was that there could be no claim for loss of future earnings beyond the time of death: see, e.g., J.A. Jolowicz, “Damages Prospective Loss of Earnings Reduced Expectation of Life”, [1960] Camb. L.J. 160 at 162 163; A.I. Ogus, The Law of Damages (1973) at 116; Clerk Lindsell (10th, 1947) at 290; Clerk Lindsell (12th, 1961) at para. 386; Clerk Lindsell (13th, 1969) at para 419; Clerk Lindsell (14th, 1975) at para. 419. [75] It is convenient at this point to look in more detail at the decision of the House of Lords in Benham v. Gambling, supra, which addressed the nature of the estate’s recovery under the English survival of actions statute for the deceased’s loss of expectation of life. [76] That case concerned an action by the personal representative of two and one-half year old child who had been severely injured in motor vehicle accident and died the same day. The only issue at trial was the amount of damages which should be awarded and in that regard, it was recognized that the only substantial claim which could be asserted was for the child’s lost expectation of life. The trial judge awarded £1200 and that sum was upheld on appeal to the Court of Appeal. The further appeal to the House of Lords raised only the issue of the assessment of damages for loss of expectation of life. [77] Viscount Simon delivered the only extended speech in the House of Lords. He held that the damages for loss of expectation of life should be reduced to £200 and that “... in assessing damages under this head, whether in the case of child or an adult, very moderate figures should be chosen.”: at 168. He noted (at 167) that “[of] course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not of loss of future pecuniary prospects.” [78] So long as Oliver v. Ashman and Benham v. Gambling remained good law, there was no reason to think that future loss of earnings beyond the time of death were recoverable in survival of actions case. [79] However, Benham v. Gambling and Oliver did plant the seed of an important change in English law. Both cases took the view that the rule about recovery for the lost years must be the same in both personal injury actions by living plaintiffs and in survival of actions claims. It followed that when the House of Lords, in Pickett overruled Oliver and held that prospective loss of earnings were recoverable for the “lost years” in actions by living plaintiffs, the extension of that approach to survival of actions cases was inevitable. [80] The inevitable happened when the House decided Gammell v. Wilson, [1981] All E.R. 578. The case involved the claims by the parents of two young men who had been killed in accidents caused by the negligence of the defendants. Claims were asserted under both the fatal injuries and the survival of actions legislation. In both cases, awards were made under the survival of actions legislation for loss of prospective earnings during the lost years. These awards were upheld by the House of Lords. [81] The appellant’s submission in this case is that we ought to interpret the survival of actions legislation in Nova Scotia to reach the same result in this case as was reached by the House of Lords in Gammell. It is useful, therefore, to note the extreme reluctance with which the House of Lords reached that conclusion. [82] Lord Diplock commented that, in his opinion, the result in Gammell was neither sensible nor just: at 581. Lord Fraser of Tullybelton had this to say at p. 588: It is, no doubt, just and sensible that, where the death of the family breadwinner is caused by the negligence of some other person, that person should be liable to compensate the deceased’s dependants for the injury which they have suffered from the death. The main element of injury will normally be loss of support. Such compensation is provided for by the Fatal Accidents Act 1976. But it seems to me difficult to justify law whereby the deceased’s estate, which may pass to persons or institutions in no way dependent on him for support, can recover damages for loss of earnings, or other income, which he would probably have received during the ‘lost years’. It is particularly difficult to justify the law in cases such as the present, in each of which the deceased was young man with no established earning capacity or settled pattern of life. In such cases it is hardly possible to make reasonable estimate of his probable earnings during the ‘lost years’ and it is, think, quite impossible to take the further step of making reasonable estimate of the free balance that would have been available above the cost of maintaining himself throughout the ‘lost years’, and the amount of that free balance is the relevant figure for calculating damages. The process of assessing damages in such cases is so extremely uncertain that it can hardly be dignified with the name of calculation: it is little more than speculation. Yet that is the process which the courts are obliged to carry out at present. (emphasis added) [83] Lord Russell of Killowen (the sole dissenter in Pickett) summed up his reluctance to apply Pickett to survival of actions cases as follows at p. 590: My Lords, regret these decisions. think that the law has gone astray by excessive refinement of theory. would welcome legislation which overruled in the future the results of the decision in Pickett, and its extension in cases such as the present, which since Pickett has led to almost grotesque embodiment of estimates, or rather guesses. That might be combined with legislation which in some way prevented respondents being barred from Fatal Accidents Act claim by the fact that the deceased pursued his claim to judgment. (emphasis added) [84] Finally, would quote the following remark of Lord Scarman at p. 595: My Lords, there is some disquiet expressed by judges, and understandably felt by insurers, about two aspects of the law: the ‘double recovery’ now possible in some cases, and the very great discrepancy which can arise, as happened in the Furness case, between the damages recoverable by the estate for the lost years and the damages recoverable by the dependants under the Fatal Accidents Act. Each of these possibilities may well be mischief; certainly, law which allows the discrepancy to arise wears the appearance of anomaly, and is unlikely to be understood or acceptable. [85] Parliament reversed the effects of Gammell the next year by the Administration of Justice Act, 1982. Section 4(2)(a) specifically excepted from actions under the 1934 survival of actions legislation claims for exemplary damages and “... any damages for loss of income in respect of any period after that person’s death.” (emphasis added) In other words, there could be no claim for prospective loss of income under the survival of actions legislation with respect to the period following the death of the deceased. [86] Canadian law, with very few exceptions, has not taken the course followed by the House of Lords in Gammell. It must be remembered as well that the wording of many of the Canadian survival of actions statutes is significantly different than the English statute considered in Gammell. [87] have already referred to Dean Wright’s article in 1938, Dean Bowker’s article and the Uniformity Commissioners Report and draft act in the early 1960's. These all express the view that the various survival of actions statutes in Canada were not intended to give the estate claim for the deceased’s loss of future earnings. Writing in 1981, Cooper-Stevenson and Saunders stated that it was settled, as matter of practice, in all Canadian jurisdictions that the estate could not recover for the deceased’s loss of future earnings in survival of action claim: at 390. They could find no case in Canada in which damages had been awarded in survival action for future earnings. [88] While the learned authors questioned whether this result was fully justified on the wording of some of the provincial statutes, their observation about the settled practice is an important part of the context in which Nova Scotia’s survival statute was enacted. In 1954 (the year the Nova Scotia Act was passed) it was settled practice in other Canadian jurisdictions which had survival legislation that loss of income during the “lost years” was not compensable under the survival of actions legislation. This is not only the view of Cooper-Stevenson and Saunders but of the Uniformity Commissioners in the early 1960's (see above) and of the Alberta Institute of Law Research and Reform in 1977: see Alberta Law Reform Institute, “Should Claim for the Loss of Chance of Future Earnings Survive Death” (Report no. 76, 1998) at 11. This view is strongly supported by the complete absence of case authority to the contrary. In 1954, the same position on the point was held in England. have earlier reviewed the leading texts and scholarly writing supporting that view. (iii) Conclusions concerning context: [89] It may be helpful to summarize the most important conclusions to be drawn from this review of the context in which the Nova Scotia survival of actions legislation was enacted. [90] First, the English survival of actions statute of 1934 did not explicitly exclude damages for pain and suffering or for loss of expectation of life. The English courts held that these were recoverable heads of loss in survival action by the personal representatives of deceased person. By contrast, the Nova Scotia statute explicitly prevented these results by expressly excluding recovery under these heads. [91] Second, English law was somewhat uncertain until Oliver v. Ashman as to whether living plaintiff could recover damages for loss of earnings during the so-called “lost years”. However, it was generally accepted until 1978 that there could be no claim for loss of expected future earnings for the time after death in an action by personal representatives under the survival legislation. The same may be said of the Canadian position. [92] Third, it was settled in England by the early 1940's that damages for loss of expectation of life in survival action (which was permitted in England but not under the Nova Scotia Act) did not include any amount on account of the loss of earnings which could have been anticipated had death not occurred. [93] Fourth, the rights under the Survival of Actions Act were said to be in addition to and not in derogation of any rights under the Fatal Injuries Act. This makes it unlikely that the Legislature foresaw any significant overlap between the remedies available under the two acts. Of course, the calculation of both the dependancy amount, which may be recovered by dependants under the Fatal Injuries Act, and the deceased’s loss of prospective earnings are based on the income the deceased would have earned had he or she lived. It follows that if both claims may be asserted, there is the potential of the defendant being required to pay damages twice over for essentially the same loss. [94] These problems of overlap and potential double recovery might not be insuperable in practice. It is hard to think, however, that the Legislature would have enacted provision which created such overlap and potential for double recovery without addressing, in any manner, the way in which these problems should be resolved. more plausible inference is that the Legislature did not foresee that the loss of prospective earnings might be recovered in survival action and, therefore, did not think that any serious problems of overlap or double recovery were likely to arise. [95] The cases deciding that the “lost years” should be counted in calculating damages for lost earning capacity for living plaintiff treat the loss as one capable of being valued in money or, in Canada, as something in the nature of capital asset whose value has been diminished or extinguished. However, the cases also recognize that this loss is the loss of an ‘opportunity’, ‘prospect’ or an ‘expectation’ (see Pickett at 781), that it relates to the loss of ‘prospects and potential’ and requires gazing “... deeply into the crystal ball ...” (see Andrews at 251). The damages to compensate this loss are categorized as general damages because they cannot be calculated with anything approaching mathematical precision. [96] Survival of actions legislation was enacted to undo the effects of general common law rule holding that personal actions in tort did not survive for or against deceased person. It had the general purpose of putting the deceased’s estate, with very minor exceptions, in the same position as regards causes of action by or against the deceased as the deceased would have been if he or she had not died. However, it did not attempt to place the estate in the same position as regards the available remedies; as noted, certain kinds of losses are not compensable in an estate action and only actual pecuniary losses are recoverable. Moreover, the survival of actions legislation was not aimed specifically at the rights and interests of surviving family members in wrongful death cases. That subject had been addressed earlier by fatal injuries legislation. [97] The primary purpose of the Fatal Injuries Act was to put group of dependants, defined by that statute, in the same economic position (subject to the separate issue of collateral benefits) as they would have been in had the deceased lived and continued to provide support. [98] There is, of course, fundamental difference between claim for damages for loss of prospective earnings in survival of actions claim on one hand, and claims by living plaintiff or by dependants under the wrongful death statutes on the other. In the latter types of claims, the object of the award is to put the plaintiff (or his dependants if the plaintiff has been killed) in the position they would have been in, financially, had the accident not occurred i.e. had the plaintiff not been injured or killed and, therefore, continued to earn and support the dependants. This is not applicable reasoning in the case of claim by the estate for the deceased’s loss of prospective earnings. Such earnings would only have been received by the deceased had he or she not been killed, but the estate only takes the deceased’s assets upon death. The estate’s claim, therefore, is to an “asset” of the deceased which the estate could not get except upon the death of the deceased. It bears repeating that the claim asserted here is not for the amount by which the estate would have appreciated had the deceased not died prematurely and continued to earn. Rather, it is for something in the nature of capital asset which the estate could never acquire without the wrongful death. The Alberta Law Reform Institute notes in its report “Should Claim for the Loss of Chance of Future Earnings Survive Death” at p. 28: ... earning capacity is not something that the deceased person could dispose of while living or by will ... the destruction of the .. deceased person’s ability to earn will not reduce that deceased person’s heritable property and will not reduce the estate. [99] It is clear that the Nova Scotia Legislature intended to avoid some of the results which had flowed from judicial interpretation of the English survival statute. As noted earlier, the Nova Scotia Act specifically eliminated the claim for loss of expectation of life. Of course, as the context in which the Act was passed clearly demonstrates, no reasonably well informed lawyer in Nova Scotia in 1954 would have thought that claim for future earnings survived the deceased’s death. [100] The appellants referred us to the explanatory note to the Nova Scotia survival of actions Bill which accompanied its introduction in April of 1954. The note states that the Bill’s purpose was “... to provide for the survival of [personal] actions by or against the estate of deceased person.” This is hardly controversial. However, the note is somewhat misleading when it goes on to state that the Bill adopted, in substance, the English Act of 1934. As mentioned, the Nova Scotia legislation, unlike the English, excluded damages on account of loss of expectation of life and specifically limited survivor claims to actual pecuniary loss to the estate. The explanatory note is, therefore, of no help on the issue we face in this appeal. 4. Consequences of the Proposed Interpretation: [101] The appellants ask us to reach the same result as the House of Lords in Gammell. have already reviewed the extreme reluctance to reach that result which was expressed by the Law Lords in that case. Their remarks induce in me no enthusiasm to follow their example. They viewed the consequences of their decision as being neither sensible nor just. [102] Professor Waddams in his text The Law of Damages (Looseleaf edition, updated December 2001) describes the decision in Gammell (and, therefore, the results of following it) as having several far-reaching consequences: at para. 6.830. He describes them as follows: ... First, where the same persons are the beneficiaries of the estate and entitled to claim under Lord Campbell’s Act (as is usual)[i.e., the fatal injuries legislation], recovery under the Act was effectively superseded, for the estate’s recovery of the lost earning capacity will always equal or exceed the value of the lost dependency. second consequence is that tortfeasor who causes the death of an unmarried wage-earner has to pay much larger damages than formerly thought to be exigible, for the value of the lost earning capacity will be recoverable by the estate. Thirdly, if it should happen that the estate beneficiaries and the Lord Campbell’s Act claimants are different persons, there is real prospect of the defendant being made to pay twice over for the loss of the deceased’s earning capacity. (emphasis added) [103] The first and third of these consequences view as serious from the point of view of attempting to give effect to legislative purpose. These two consequences mean that the damages available under the Survival of Actions Act, depending on the facts, either supercede or duplicate those available under the Fatal Injuries Act, results which are not consistent with the legislative purpose of either Act. [104] What is really at stake here, as Professors Cooper-Stevenson and Saunders perceptively point out, is the question of which survivors of the deceased deserve protection, and to what extent, through an award to the estate: Personal Injuries Damages in Canada (1981) at 389. In my view, the Legislature spoke very specifically to this issue when it enacted the Fatal Injuries Act. Further, it has amended the provisions of that Act from time to time over the years to expand both the remedies and the group of persons who may make claims. It is hard to think that the Legislature’s purpose in enacting the Survival of Actions Act was to render the fatal injuries scheme either irrelevant or duplicative of other remedies depending on the facts of the particular case. Yet this would be the consequence of the appellants’ interpretation. The Fatal Injuries Act may well not achieve what many will think to be just result in all cases, but it does represent clear and considered legislative judgment about which survivors of person wrongfully killed should be compensated and on what terms. 5. Rules of Interpretation: [105] Only one special rule of interpretation is implicated in this case. It is embodied in section 9(5) of the Interpretation Act and requires that every enactment be considered remedial and interpreted to insure the attainment of its objects. This rule, however, is not directed to giving the statute the most favourable interpretation possible to permit recovery, but to giving an interpretation that will ensure the attainment of the statute’s objects. In my view, this rule is fully complied with through the detailed contextual analysis which am undertaking in this case. 6. Conclusions concerning context, purpose and consequences: [106] In my opinion, neither the context in which the Survival of Actions Act was enacted nor its purpose provides support for the interpretation advanced by the appellants. Where death ensues from an injury wrongfully inflicted (as is alleged in this case), the appellants’ interpretation would effectively give potentially duplicative remedies to two groups of people for the wrongful death. The estate would recover for the beneficiaries under the survival legislation and the dependants would recover under the fatal injuries legislation. However, the Legislature specifically addressed the question of how losses of survivors should be compensated in wrongful death cases when it enacted the Fatal Injuries Act. It was not the purpose of the survival legislation either to duplicate or supercede that recovery. [107] turn next to consider whether the appellants’ interpretation is plausible, efficacious and acceptable. 7. The Appropriate Interpretation (i) Is the appellants’ interpretation plausible? [108] The question here is whether the appellants’ interpretation is plausible in the sense that it complies with the text of the Act. In my view, it is not. [109] The issue is whether claim for deceased person’s loss of prospective income relates to “an actual pecuniary loss to the estate.” [110] should say at the outset that in looking for “plausible” interpretation, one is looking for the most plausible interpretation in light of the words used by the legislation judged in their full context. The phrase “actual pecuniary loss to the estate’ is, as matter of dictionary definition, reasonably capable of bearing the meaning the appellants advance. However, do not think that their position that the deceased’s lost earning capacity is an ‘actual pecuniary loss to the estate’ is the most plausible of the possible meanings which the words may reasonably bear. [111] There is no dispute here that the lost earning capacity is pecuniary loss; it is loss ‘of, concerning or consisting of’ money. The focus of debate, therefore, is whether this pecuniary loss is ‘actual’ and ‘to the estate’. [112] The appellants submit that the word “actual” may be used in the sense of “real” and that loss may be real even though it is prospective: see Duncan v. Baddeley (1997), 1997 CanLII 11516 (AB CA), 145 D.L.R. (4th) 708 (Alta. C.A.). Kerans, J.A. opined in that case that the exclusion of losses other than those which are ‘an actual financial loss’ is meant “... to rid the surviving action of any claim that is notional or fictive (e.g. punitive and exemplary damages) or that is for non-pecuniary loss.” (at 712). However, in applying this reasoning to Nova Scotia’s legislation, two difficulties arise. [113] First, that interpretation makes the phrase “actual pecuniary loss to the estate” superfluous. Punitive damages and damages for pain and suffering and loss of enjoyment of life are expressly excluded by specific language in the Nova Scotia legislation: see ss. 4(a), (b), (c). It follows that if the phrase ‘actual pecuniary loss to the estate’ is meant only to exclude exemplary and non-pecuniary damages, it adds nothing to the specific exclusions of these matters. [114] Second, this interpretation, in the context of the Nova Scotia Act, makes the word “actual” redundant. If all that was intended was to exclude non-pecuniary losses, why add the word ‘actual’ to modify the word ‘pecuniary’? pecuniary loss is, by definition, not non-pecuniary loss, so limitation of recovery to pecuniary loss would have excluded recovery for non-pecuniary losses. [115] With all due respect, it seems to me to be poor definition of phrase that renders it redundant and an even poorer definition of word that renders it meaningless. Yet these are the consequences if the reasoning of Duncan v. Baddeley is applied to the wording of the Nova Scotia survival statute. [116] think more plausible interpretation results from paying attention to the legal parlance surrounding claims for lost earning capacity. Such claims, while relating to “real” losses, have always been treated as an element of the general damages award because they are not capable of precise calculation. Such claims have been recognized as relating to the loss of potential or of prospective earnings. The use of the word ‘actual’ to describe such losses while perhaps not completely implausible strikes me as, at best, curious choice of words. [117] Moreover, think the word actual must be considered as part of the phrase “actual loss ... to the estate.” Under the Nova Scotia Act (unlike the Alberta statute considered in Duncan) the claim must relate to an actual loss to the estate. As MacDonald, A.C.J.S.C. noted in his reasons in the present case, the Alberta legislation is differently worded than the Nova Scotian legislation. In Alberta, the legislation specifies that “... only those damages that resulted in actual financial loss to the deceased or his estate are recoverable ...”: Survival of Actions Act, R.S.A. 1980, c. 30 s. 5. [118] In Duncan, Kerans, J.A. (Coté, J.A. concurring) held that the deceased’s loss of earning capacity is an actual loss to the deceased but not an actual loss to the estate: at page 716. The context in which they reached this conclusion was consideration of s. of the Alberta statute. That section states that, in assessing damages, gains or loss to the estate as result of the death are to be excluded. Kerans, J.A. (with Coté, J.A. concurring) reasoned that this clause would extinguish the loss of earnings claim if it were pecuniary loss to the estate. However, they concluded that the loss was in fact loss to the deceased, not to the estate. [119] In light of the way claims for lost earning capacity have been characterized in personal injury cases, think more plausible interpretation is to say that the phrase “actual pecuniary loss to the estate”, in the context of damages for personal injury and death, refers to more precisely quantifiable claims and excludes general damages. This approach commended itself to majority of the Alberta Court of Appeal in James v. Rentz (1986), 1986 ABCA 95 (CanLII), 27 D.L.R. (4th) 724. In that case, Sevenson, J.A. (as he then was) expressed the view that the limitation of recovery to “actual financial loss to the deceased or his estate” in the Alberta survival legislation was intended to distinguish “... between quantified economic loss in the nature of special damages and general damages. The term “actual” serve[d] to exclude possible or contingent claims.” (at p. 726) (emphasis added) [120] In considering the plausibility of the appellants’ interpretation, it is worth repeating the reasoning which they advance to support the claim that the deceased’s loss of prospective earnings is an ‘actual ... loss to the estate’. It is this. The lost earning capacity is capital asset which is destroyed in the instant before the deceased’s death. The deceased, therefore, dies having suffered this loss. The right to claim this lost capital asset therefore passes to the estate and its loss is, therefore, loss to the estate. This almost metaphysical line of reasoning may be good logic. But to describe this prospective asset, which is notionally lost in the instant before death, as an “actual” loss seems to me to push the language beyond its plausible meaning. [121] conclude, therefore, that the appellants’ interpretation of the phrase “actual pecuniary loss to the estate” so that it refers to the deceased’s loss of future earnings is not plausible in the sense that it is not the most plausible interpretation in light of the full context in which words are employed. (ii) Is the appellants’ interpretation efficacious? [122] The question here is what interpretation of the legislation would best give effect to the Legislature’s purpose. In my view, holding that the estate’s claim for the deceased’s loss of prospective earnings is not ‘an actual pecuniary loss to the estate’ would best serve the legislative purpose of both the survival legislation and the wrongful death statute. [123] will briefly reiterate the purposes of the legislation which have discussed earlier. The primary purpose of the survival of actions legislation is to provide for the general survival of causes of action that arise during the deceased’s life both for and against the deceased’s estate, but not to preserve claims to all heads of damage. There are, as noted earlier, several restrictions on the types of losses which may be compensated in survival action. The primary purpose of the fatal injury legislation is to provide compensation to dependants for the loss of prospective support which they could reasonably expect to have received from the deceased had death not occurred as the result of wrongful act. While the scheme created by these two pieces of legislation may be far from perfect and does, on occasion, give rise to questions of overlap and duplication, and perhaps leave some gaps, it is generally coherent scheme in the vast majority of cases. [124] The award of damages for loss of prospective earnings to the estate in survival action would substantially undermine this coherence and, as noted earlier, give rise to new and very significant issues of overlap and duplication. [125] The comments by the Law Lords in Gammell are instructive. The House of Lords felt that adopting the interpretation urged on us in this appeal led to result that was neither “sensible nor just”, which had no “social, moral or logical justification”, which showed that the law had “gone astray by excessive refinement of theory.” While, of course, we must respect the text of the legislation, we should be slow to conclude the Legislature’s purpose was to achieve such results. (iii) Is appellants’ interpretation acceptable? [126] The question here is which interpretation produces result which is reasonable and just. The appellants have one main point on this issue which may be expressed in two ways. [127] First, the appellants submit that the same rule of recovery for the lost years should apply in survival actions as in personal injury actions. This argument is straightforward and has superficial logical appeal. The law is clear in personal injury cases that the loss of prospective earnings is recoverable head of loss. It is also now clear in both England and in Canada that damages for the prospective loss of earnings in personal injury cases are awarded for the period of the pre-accident life expectancy; i.e., an award is made which includes compensation for the “lost years”. The appellants submit that this claim survives for the benefit of the estate. All causes of action survive under that legislation unless specifically excluded and the loss of earning capacity is, therefore, compensated provided it is an actual pecuniary loss to the estate. The appellants say that there is no exclusion of this claim and that the loss of the deceased’s earning capacity is an “actual pecuniary loss to the estate”. [128] One of the underpinnings of this argument is the view that similar rules of damages must apply to both fatal injury and survival of actions cases. This position was expressed in Oliver v. Ashman where Holroyd Pearce, L.J. said that there is “... no room for distinguishing between claim brought by living plaintiff and claim brought on behalf of dead plaintiff in respect of the loss of earnings during the years of which he has been deprived.” Whatever the merits of that proposition may have been on the state of authorities which confronted the Court in Oliver, it is not, with respect, sound approach to the interpretation of Nova Scotia’s Survival of Actions Act. [129] respectfully adopt the view expressed by Professors Cooper-Stevenson and Saunders in the first edition of their text, Personal Injury Damages in Canada (1981) with respect to this line of argument: ... Inasmuch as living plaintiff receives damages according to his pre-accident life expectancy, so should his estate. But policy-wise this analysis is much too simplistic. It obscures the fundamental question which is not theoretical symmetry but how to unravel the competing interests of survivors with stake in the deceased’s life. In other words, given that damages can be of no practical value to the deceased, which if any of his survivors deserve protection from the wrongdoer through an award to the estate? (emphasis added) [130] For reasons of history and policy, claims by living persons have been treated differently, both under the common law and by statute, from claims on behalf of deceased persons. Historically, at common law, living person could sue in tort, but his or her personal representatives could not assert that cause of action after the person’s death. While, as practical matter, the estate of deceased person would ultimately benefit from damages award made to that person during his or her lifetime, the estate had no claim if the deceased died before recovering judgment on the cause of action. While those dependant on person during life would seem to have strong claim for recovery against wrongdoer who kills that person and thereby takes away the support which he or she provided, no such claim was recognized by the common law. So, as matter of the legal history of this package of rules, there is no reason to think that claims brought by living persons and those asserted by their personal representatives after death should be treated identically. [131] The progress of statutory reforms is also consistent with this view. It is worth remembering that the common law rule against recovery by dependents for wrongful death was the first of these rules to be reformed. Fatal injuries legislation created new, but limited statutory cause of action for wrongful death in favour of those dependant on the deceased. Their claim, expressed simply, was for the support they could have expected to receive out of the earnings the deceased could have expected to make had he or she lived. To the extent that the estate would benefit those who were not dependants under the fatal injuries legislation, the estate had no claim for the wrongful death. [132] As pointed out in Keizer v. Hanna, 1978 CanLII 28 (SCC), [1978] S.C.R. 342, the method of calculating the amount of damage award under the fatal injuries legislation is similar to that used in calculating the amount of an award for loss of future earnings in cases of serious personal injury: at 352. However, the majority of the Court held in Keizer that the question of whether the award should be reduced to reflect the obligation to pay income tax should be answered differently in fatal injury cases than it would be in personal injury actions by living plaintiffs. In personal injury cases, the loss of prospective earnings is considered something in the nature of capital asset and therefore should not be reduced on account of taxation. However, fatal injury award represents the loss of stream of income to the dependant that could only be paid out of the deceased’s after tax income. Dickson, J. explained this distinction in Andrews v. Grand Toy, 1978 CanLII (SCC), [1978] S.C.R. 229 at 259: (ii) Allowance for tax: In The Queen v. Jennings, supra, this Court held that an award for prospective income should be calculated with no deduction for tax which might have been attracted had it been earned over the working life of the plaintiff. This results from the fact that it is earning capacity and not lost earnings which is the subject of compensation. For the same reason, no consideration should be taken of the amount by which the income from the award will be reduced by payment of taxes on the interest, dividends, or capital gain. capital sum is appropriate to replace the lost capital asset of earning capacity. Tax on income is irrelevant either to decrease the sum for taxes the victim would have paid on income from his job, or to increase it for taxes he will now have to pay on income from the award. In contrast with the situation in personal injury cases, awards under the Fatal Accident Acts should reflect tax considerations, since they are to compensate dependants for the loss of support payments made by the deceased. These support payments could only come out of take-home pay, and the payments from the award will only be received net of taxes: see the contemporaneous decision of this Court in Keizer v. Hanna and Much. [133] The symmetry which the appellants assert ought to exist did not exist in the old common law rules, was not adopted by the reforming statutes and does not obtain as regards the allowance for taxation in the two types of damage calculations. [134] Judges and scholars have recognized that different rules may be appropriate for claims by living plaintiffs and those by the estate of deceased persons. In Oliver itself, Holroyd Pearce L.J. commented that although the law compelled him to do otherwise, there were good reasons for compensating for the lost years in claim by living plaintiff and not doing so in survival of actions case: at 228. Comments by the great torts scholar Professor Jolowicz are to the same effect: see Note, [1960] Cambridge Law Journal 160 at 225. [135] The second aspect of the appellants’ point is that it is only just that the estate recover what would have been received by the deceased had he lived to pursue his claim. However, the question of what is acceptable and just in this case is essentially one of policy which has many aspects and with respect to which reasonable people may reasonably differ. comparison of the majority and minority judgments in Duncan v. Baddeley and consideration of the Alberta Law Reform Institute’s Report in response to that case provide good introduction to the range of questions that must be answered in trying to determine what is just in this context. [136] On one hand, it is suggested that rule barring recovery of the deceased’s future loss of income in survival action allows wrongdoer to escape “scot free” and makes it cheaper for the wrongdoer to kill than to injure. On the other, it is asserted that awards should be compensatory, not punitive, and that claim for the deceased’s loss of prospective earnings is for something which is unacceptably speculative. Whatever one thinks of these and the many other arguments which are made on this subject, we must remember that this case is not about what the best rule for compensation in wrongful death cases might be. It is about determining what rule the Legislature has adopted. [137] In my view, the legislative judgment about the issue we face in this case is clear. The context of the legislation, its purpose and its text all support the conclusion, in my view, that the deceased’s loss of prospective earnings is not an “actual pecuniary loss to the estate” and is therefore not recoverable in a Survival of Actions Act claim. [138] In light of that conclusion, do not need to address the respondent’s submission that such an award is precluded by the Act’s exclusion of damages for loss of expectation of life. IV. Disposition: [139] For these reasons, I would dismiss the appeal. At the hearing, the parties indicated that they had agreed on costs and that we need make no order in that regard. Cromwell, J.A. Concurred in: Hallett, J.A. Hamilton, J.A.
A fifteen year old died in a motor vehicle accident. The estate brought a claim for loss of future income and lost earning capacity. The Chambers judge found that such a claim was not available and the estate appealed. Appeal dismissed; the context of the legislation, its purpose and text all support the conclusion that the deceased's loss of prospective earnings is not an actual pecuniary loss to the estate.