Section 2 of the Survival of Actions Act (SAA) provides that a “cause of action vested in a person survives for the benefit of his estate.” Section 5 of the SAA specifies that “only those damages that resulted in actual financial loss to the deceased or his estate are recoverable.” In Duncan Estate v Baddeley, the Alberta Court of Appeal ruled that the loss of a chance of future earnings was an actual financial loss. This report recommends the SAA be amended to reflect its intended aim; and that claims for damages for the loss of a chance of future earnings not survive the death of the injured person. The ALRI suggests that the basis for awarding money damages for the loss of a chance of future earnings is and should be compensation for the injured person. Money cannot compensate a deceased person; it can only compensate those who are alive and injured. Through the Fatal Accidents Act, listed dependents and relatives can recover damages for loss of expected financial support or services, for grief, and the loss of companionship. This is the direct and correct way to assess damages. To assess the damages for a loss of a chance of future earnings claim, the court is forced to predict the deceased’s potential future earnings through actuarial evidence, which is often speculative and illusionary. This process is justifiable when compensating a living person, but is not justified when the injured individual can no longer be compensated.
Final Report
Back to Publication SearchShould a Claim for the Loss of a Chance of Future Earnings Survive Death? Final Report 76
Resource Details
Publication No: | 76 |
FORMAT: | Publications |
TAGS: | claim, compensation, damages, death, estate, survival of action, wrongful |
FILE: | fr076.pdf |