Selecting the Discount Rate (2017)

Recently Economica undertook a detailed re-evaluation of our recommendations concerning the discount rate. We argue that plaintiffs have available two alternative methods of investing their awards for future losses. In the first, which we call the annuity approach, plaintiffs use their awards to purchase life annuities or structured settlements. In the second, which we call the active management approach, plaintiffs invest their awards in portfolios of secure financial products, such as government bonds and “blue chip” stocks.
We find that the real rate of return is higher using the active management approach than the annuity approach – approximately 2.5 percent versus zero percent. At the same time, however, the risk that plaintiffs’ investments will be depleted before they die is much greater if plaintiffs manage their investments than if they purchase annuities. Accordingly, it may be that risk averse plaintiffs would prefer to purchase annuities than to manage their own portfolios even if they earn a lower rate of return.
We conclude that, as economists cannot know how risk averse individual plaintiffs are, our role should be to calculate two values for each future loss – one using zero percent and one using 2.5 percent. It will then be for the court to decide which discount rate is relevant to the particular plaintiff facing it.

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The Structure of a Cost of Care Report

Dr. Bruce and Ms. Rathje provide an economist’s perspective on various issues that arise in the presentation of cost of care reports. These include issues such as incremental costs, requirements that will vary over a plaintiff’s lifetime, the approach to ranges of estimates for costs or replacement frequencies, the costs of housekeepers and personal care attendants, and presentation. They also provide a sample calculation, to illustrate the issues discussed in the article.

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The Effect of Incarceration on Future Earnings

In this article, Dr. Bruce and Mr. Aldridge find that the literature regarding the effect of a criminal record on income suggests incarceration has a relatively small effect on lifetime earnings. Those who have been incarcerated tend to have lower levels of income than those without a criminal record, not because incarceration has changed their vocational/economic outcomes, but because they are drawn from a group with relatively low income to begin with. Further, the length of a person’s incarceration (holding the severity of the crime constant) appeared to have little impact on earnings, except in the case of “white collar” crime such as fraud or embezzlement. The literature suggests that individuals with supportive family ties, such as those living with their spouses and children, were the most successful at transitioning back into the workforce. In addition, the likelihood of recidivism decreased as an individual aged (i.e., those 30 and 40 year olds who were incarcerated in their early 20s are not likely to become repeat offenders).

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Are Data from the 2011 Census Reliable?

In this article, Dr. Bruce examines the reliability of the 2011 Census income data. In the past, completion of the long form census was mandatory. In 2011, however, completion of this form was voluntary and the response rate decreased. While this created statistical problems concerning the reliability of the data, Statistics Canada had anticipated these problems and took steps to mitigate them. In his article, Dr. Bruce discusses these problems, and the solutions implemented by Statistics Canada, concluding that the 2011 census remains a reliable, high quality data source. It will remain our primary source of earnings information until data from the 2016 census are released sometime in 2018.

With respect to the 2016 census, we would note that it will be mandatory. Further, Statistics Canada will be sending the long-form section to a greater number of households than in past censuses (one in four households instead of one in five households), and will use income data directly from the Canada Revenue Agency, providing data for 100 percent of households. It is anticipated that because of these changes, the income data from the 2016 census will be the most accurate of any census to date.

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Cross versus Sole Dependency in Fatal Accident Actions

In this article, Dr. Bruce notes that a fundamental assumption in economics is that individuals are rational. Therefore, when an individual is observed to make a voluntary choice, it can be concluded that the individual must have expected that choice to make him/her better off (or at least, no worse off). With respect to fatal accident actions, this implies that if spouses are rational, they must have expected that the decisions they made about spending on one another would make them better off. He then shows that if this proposition is accepted, the sole dependency approach is preferred to cross dependency.

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The Cost of Household Services, Alberta 2014: A Survey

Christopher Bruce and Russette Pack summarise the results of a 2014 survey they conducted concerning the costs of providing household services in Alberta. They report that the costs of meal preparation, maintenance and repairs, snow removal and lawn mowing, housecleaning and laundry, and child care have all increased since our last survey; and that the costs of home care and meal preparation have not changed since 2010.

Dr. Bruce and Ms. Pack also discuss two puzzles in the data: Why do housecleaning services cost $10 to $15 per hour more if those services are provided by professional companies than if they are provided by individuals hired from websites such as Kijiji? And why do individuals advertising on Kijiji charge approximately $10 per hour more than the wages paid to employees listed as “light duty cleaners” in the Alberta Wage and Salary Survey.

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The Dependency Rate as a Percentage of After-tax Income: Canada 2008

We examine whether or not the dependency rate increases or decreases as family income increases (or decreases). In particular, some experts have argued that the survivor’s dependency decreases as the deceased’s income increases. For example, whereas the widow of a man with low income might need, say, 80 percent of his income in order to be left in the same financial state as if he had lived, the widow of a wealthy man might need only 50 percent.

In this article, we will show that the dependency rate does not differ significantly from the lowest to the highest quintiles.

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Implied Rates of Return on Structured Settlements

In this article, Derek Aldridge and Christopher Bruce contrast our recommended discount rates with those used by one important set of sophisticated investors, the insurance companies who write structured settlements. They find that our recommended rates are greater than those being offered by these companies, suggesting that our rates may be too high.

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The Discount Rate Simplified

In this article, which was written collaboratively by Christopher Bruce, Laura Weir, Kelly Rathje, and Derek Aldridge, we begin by setting out a number of criteria that we believe should be met when selecting the discount rate. We ultimately conclude that a portfolio of Government of Canada bonds of varying maturity dates meets our criteria. We then argue that forecasts of Government of Canada bond rates that are based on historical statistics are unreliable for many reasons. Finally, we argue that the rates of return that are currently available on government bonds represent reliable predictions of future rates. Short-term interest rates can perform this role because they represent rates that are actually available currently; and long-term rates reflect the forecasts that have been made by sophisticated financial institutions that have substantial investments in the market.

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The Cost of Household Services, Alberta, 2010: A Survey

Perhaps the most important difference between this survey and the previous two is that whereas the 1999 and 2005 surveys were conducted primarily using telephone and newspapers, the 2010 survey relied almost exclusively on the internet – either Kijiji and Craigslist or agencies’ websites. We found that, with respect to most of the services that we surveyed, costs had risen approximately in line with average increases in wages across the economy.

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Premiums, Profits, and Costs of Business in Alberta’s Automobile Insurance Industry, 1996-2006

In February 2008, Economica was retained by the Canadian Bar Association to prepare a series of reports on automobile insurance premiums in five provinces: Alberta, Ontario, New Brunswick, Prince Edward Island, and Nova Scotia. We have now completed this work, having prepared two reports on Alberta and one on each of the other four provinces. The first article in this newsletter summarises the main findings of the first of these reports, Alberta’s Minor Injury Regulation: Automobile Insurance Profits, Premium Rates, and Costs.

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The Discount Rate Revisited (Spring 2008)

This article reports on our latest survey of discount rates. We conclude that no changes to our existing discount rate assumptions are warranted, though a reduction in our long-term rate may be necessary in the future if the observed long-term rates remain significantly lower than our assumed rate.

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The Impact of Childhood Sexual Abuse on the Educational Attainment and Adult Earnings of Canadian Women

This article concerns sexual abuse cases and the difficult task of determining the impact that the harm has had on the plaintiff’s earning capacity. Christopher Bruce and his colleague from the University of Calgary, Daniel Gordon, found that, on average, sexual abuse is not associated with lower educational levels or lower adult incomes among victims.

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Forecasting the long-term interest rate on Government of Canada bonds: “market-based” versus “conservative” investment

In the article Christopher Bruce examines a subtle issue relating to interest rates. He explains the difference between the interest rates realised by buying bonds and holding them to maturity, and selling and re-buying before maturity. These approaches will result in different estimates of historical interest rates.

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The Cost of Household Services, Alberta, 2006: A Survey

The article reports the results of a survey we conducted in late 2005 and early 2006. We obtained housecleaning, handyman, landscaping and snow removal, child care, and home care/meal preparation rates from a large sample of agencies and individuals in both Calgary and Edmonton, and housecleaning rates for smaller samples in Lethbridge, Grande Prairie, and Red Deer. In the article we present our findings and explain how we will apply these results in our calculations.

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Estimating non-discriminatory lifetime earnings for young females

This articles examines the sources of male/female earnings differentials that might arise from differences between the sexes in labour force participation rates, part-time hours, and retirement ages. It concludes that, even in the absence of labour market discrimination, women may earn 25 to 35 percent less than men.

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Death and Retirement: Allowing for Uncertainty

In this article Christopher Bruce explains how experts deal with situations in which there is uncertainty about the plaintiff’s future income path – such as when it is not known whether the plaintiff will recover from his or her injuries. He also comments on an error that experts often make when dealing with such uncertainty.

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Estimating the Impact of Mid-Career Retraining

In this article we investigate an issue we have not seen raised anywhere else in the literature on personal injury damages: When an individual is injured in their 30s or early 40s, and has to retrain for a new career, will that individual begin in that career at a salary equivalent to those of individuals with the same age as the plaintiff? Or will the plaintiff’s starting salary be more similar to those of younger individuals in the new career – perhaps 25-29 year-olds? The authors present information from a recent study that investigated this question; and comment on the use of this study for personal injury cases.

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The Discount Rate Revisited

In this article we review the recent evidence – both statistical and theoretical – concerning the discount rate (or real rate of interest). We review a number of different interest rates for each quarter since 1995 and find that every series has trended downward virtually continuously over the entire period. We then review the theoretical arguments that have been put forward to explain why this trend has been observed; and ask whether it is better to base a forecast of future rates of interest on the rates that are currently being observed or on averages of historical rates. We conclude that it would be inappropriate to rely on historical figures and instead we recommend use of multiple rates, based on the rates currently available for a variety of short- and long-term government bonds.

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The Impact of Disability on Earnings: Reliable Data

From his analysis in his previous article, Dr. Bruce concluded that, to be reliable, evidence must be based on data sets that meet two criteria: First, the number of observations must be large enough that one can be certain that a representative sample has been drawn. And, second, the data set must include individuals drawn from all of the comparison groups that are of interest.

In this article Dr. Bruce uses these two criteria to identify a set of research reports that he considers to be reliable; and he summarises the findings of these reports with respect to the impact that each of spinal cord injuries, chronic pain, visual and hearing disabilities, and brain damage have on both education and earnings.

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The Reliability of Statistical Evidence Concerning the Impact of Disability

In the article Christopher Bruce provides a caution concerning the acceptance of statistical evidence about disability. Dr. Bruce argues that the courts and opposing counsel do not subject certain types of medical opinion to sufficiently strict statistical standards. Specifically, he shows that evidence based on: (i) the expert’s “experience,” (ii) the expert’s interpretation of third party statistics, or (iii) the expert’s understanding of published statistical reports may be unreliable. In this article, he provides examples of how statistical evidence may fail to meet the standards expected by the courts; and he offers suggestions about how counsel might respond to these deficiencies.

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Using family background to Predict Educational Attainment in Canada

When a minor has suffered a serious injury, it is necessary to predict what the income level of the plaintiff would have been in the absence of that injury. In most cases, this is done by projecting an education level for the plaintiff and using census statistics to project the average income for that education level. This article examines some of the factors that can be used to predict a child’s eventual educational attainment.

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The Impact of the “Net Income” Provisions of the Insurance Amendment Act, 2003

The article examines the implications of the changes to section 626.1 of the Insurance Act that were introduced in The Insurance Amendment Act, 2003. Dr. Bruce argues that these changes will: (i) require that income taxes be calculated for every year of both the with-accident and without-accident income streams in all personal injury cases; and (ii) raise the strong possibility that the courts will allow income tax “gross ups” on awards for loss of earnings. He also shows how the income tax gross up is calculated and estimates the overall impact of the revisions on personal injury awards; and he argues that those revisions will have no effect on the manner in which CPP premiums have been treated in Alberta.

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Forecasting the Rate of Growth of Real Wages (Productivity)

Christopher Bruce summarises the most recent theoretical and empirical evidence concerning one of the most controversial, and poorly-understood, components of the calculation of future earnings – the so-called “productivity factor.” He notes that, although the observed rate of increase in earnings is tied to the rate of increase in labour productivity over the very long run, in shorter periods the two rates may differ if there is a significant increase or decrease in the supply of labour. Specifically, he reports that most economists now believe that the slow down in “real” wage growth (the rate of growth in excess of the rate of inflation) in the 1980s and 1990s occurred because of the increase in labour supply that came with the influx of “baby boomers.” That the baby boom is now working its way through the system implies, therefore, that the rate of growth of real wages will increase significantly in the next two decades.

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Experience-Rating of Automobile Insurance: A Good Idea that Won’t Work

In this article Christopher Bruce identifies some of the weaknesses of legislation that requires automobile insurance companies to use “experience rating” – a system in which the only factor that determines your premiums is your driving record.

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Selecting the Discount Rate – An Update

This article extends the work done by us in issues 5(3) and 6(4) of The Expert Witness, we conclude that it would be appropriate to revise our existing 2½ and 3½ percent two-part forecast of real interest rates. We propose to use a rate of 2¼ percent for the first five years of all calculations. For all subsequent years we propose to use a rate of 3¼ percent.

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The Connection between Labour Productivity and Wages

In this article Christopher Bruce examines the theory and evidence behind the assertion that wage growth among workers in a specific industry can be linked to the productivity growth of those workers. He finds that there are sound theoretical reasons for predicting that there will be very little correlation between an industry’s productivity growth and its wage growth. He also finds that the empirical evidence supports this prediction.

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Duty to Care for Orphaned Minors

In this article Christopher Bruce considers cases in which the courts have been asked to calculate the loss of dependency of orphaned minors – who have been taken into the care of close relatives. The important issue that is raised by this arrangement is whether the expenditures incurred by the surrogate parents should be set off against the children’s loss of dependency on their natural parent(s).

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Complementarity in the Retirement Behaviour of Older Married Couples: An Update

In this article Daryck Riddell and Christopher Bruce examine the tendency of workers to make their retirement decisions based on the retirement decisions of their spouses. That is, if a 57 year-old woman’s husband has already retired, that could indicate that she will retire earlier than would otherwise have been predicted. Mr. Riddell and Dr. Bruce report on three hypotheses concerning the likelihood that the retirement ages of spouses will be correlated.

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Destruction of evidence

In this article Christopher Bruce discusses situations in which information required to establish negligence remains in the possession of one of the parties. In the absence of any penalties, a party who believes that this evidence may suggest that he or she should be held liable will have an incentive to destroy the evidence.

The purpose of Dr. Bruce’s article is to develop a model of the legal process that will offer insight into the determination of legal remedies for the destruction of evidence by a defendant. He bases this model on the assumption that the first role of such remedies must be to discourage the defendant from destroying any information that might reasonably be expected to assist the court in the determination of liability.

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No-Fault Automobile Insurance

In this article Christopher Bruce and Angela Tu Weissenberger respond to a recent paper which recommends that Alberta adopt a no-fault automobile insurance system. In their response, Dr. Bruce and Ms. Tu Weissenberger examine the deterrent effect of tort rules; the high cost of no-fault insurance systems; arguments concerning the role of lawyers; evidence concerning the costs of bodily injury claims; and evidence concerning insurance fraud. They identify several weaknesses in the usual arguments that are made in support of a no-fault regime.

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The Deduction for “Expenses Related to Earning Income” in Rewcastle

In this article Christopher Bruce and Derek Aldridge discuss the court’s decision in the recent case of Rewcastle v. Sieben. The case concerned an estate claim brought under the Survival of Actions Act. In his decision, Justice Hutchinson introduced a new method for calculating the deduction for “expenses directly related to earning income.” In their article Dr. Bruce and Mr. Aldridge summarise Justice Hutchinson’s method and comment on its broader applicability.

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The Deduction of Accelerated Inheritance

In this article Chris Bruce discusses a requirement established by the Court of Appeal in its October 17, 2000 ruling in Brooks v. Stefura. This was that “accelerated inheritances” should be deducted from each plaintiff’s dependency award.

The Court did not, however, state clearly what it meant by “accelerated inheritances,” nor did it specify how those inheritances were to be calculated. In this article, Chris offers some observations that may cast some light on these issues.

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Evidence About “Customary Practice”

In this article Christopher Bruce summarises some recent research that suggests that doctors systematically err when estimating the standards of “ordinary, or common, practice.” In particular, this research finds that doctors overestimate the speed with which patients are treated and diagnosed in emergency rooms. Hence, they systematically bias malpractice suits in favour of plaintiffs.

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Incorporating the Effect of Reduced Life Expectancy into Awards for Future Costs of Care

In this article David Strauss, Robert Shavelle, Christopher Pflaum, and Christopher Bruce argue that the method used by most economists and actuaries for calculating life expectancy among the seriously disabled is flawed. They argue that this method leads to the systematic overestimation of costs of future care. They show, for example, that the costs of care for plaintiffs with cerebral palsy are commonly overestimated by 10 to 15 percent. Strauss and Shavelle are able to provide life expectancy data that correct for this error.

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Selecting the Discount Rate

In this article we begin by providing clear definitions of a number of fundamental concepts. These include: real interest rate; nominal interest rate; discount rate; real return bonds; and core rate of inflation. We then summarise the recent statistical data for various measures of inflation and interest rates in Canada. Finally, we use those data to calculate the “real interest” rate and to forecast a long-run discount rate. We conclude from this analysis that that rate appears to be 4.0 percent. However, as there has been some recent volatility in interest rates, we propose to revisit our forecast a year from now.

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Combining Occupational Options

In this article, Christopher Bruce notes that it is often not clear at the time of trial what occupation the plaintiff would have entered had he or she not been injured, or what occupation he/she will now enter. In these cases, it is common for the vocational expert to offer a menu of possible occupations that are consistent with the plaintiff’s observed interests and aptitudes. In his article, Dr. Bruce looks at how one could combine these occupations (and the corresponding incomes) in order to determine an average, expected income for the plaintiff.

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The Impact of Disability on Earnings: Results of the Health and Activity Limitation Survey

This article presents some information from Statistics Canada’s Health and Activity Limitation Survey (HALS). Although HALS was one of the most comprehensive surveys ever conducted on the effects of disability, Statistics Canada has chosen to publish results from that survey in a form that is not of great value to litigators. Accordingly, HALS has become one of those sources that is referred to far more often than it is employed.

Economica has obtained access to Statistics Canada’s electronic records of over 100,000 individual questionnaires from HALS. This has allowed us to estimate income and education levels for each of four levels of disability, for both males and females, cross-categorised by four levels of education and four age groups. In their article, Christopher Bruce, Derek Aldridge, and Kris Aksomitis report the statistics derived from this process. Although the statistics reported there are too aggregated to allow practitioners to estimate damages in specific cases, they can act as a check to see whether the damages calculated in any particular case are “reasonable.”

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Recent Canadian Court Decisions Concerning the Impacts of Child Sexual Abuse on Earnings

In this article Christopher Bruce and Matthew Foss discuss the response of the courts to lawsuits for loss of income resulting from sexual abuse. This is the second part of an article that began in the previous Expert Witness – in which Matthew Foss reviewed the academic literature concerning the impact of sexual abuse on the victim’s psychological well-being, education, and earning capacity.

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The Current Status of Survival of Actions Act Claims

In this article Christopher Bruce discusses two trial court decisions concerning the method by which claims for loss of earnings are to be calculated under the Survival of Actions Act. He argues that, although these two decisions clarify many of the outstanding issues in this area, a number of crucial problems remain unresolved.

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Applying Economic Analysis to Tort Law

In this article Christopher Bruce expands the use of economic analysis in tort law. Dr. Bruce identifies the distinguishing characteristics of the economic approach versus the more traditional methods of legal analysis. This is the first of a series of articles to follow regarding the economic analysis of torts.

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The Role of the Expert Witness in Developing “New” Law

In this article Christopher Bruce explores the role of the expert witness. He delineates both the advantages and disadvantages to the legal system when an expert adopts a “constructive” rather than a “passive” approach. While recognising the pitfalls with either approach, he points out the potential benefits that may accrue when the specialist is allowed to bring his/her expertise to bear, shedding light upon the complexities of personal injury litigation.

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Outstanding Issues in the Valuation of Household Services

In this article Therese Brown and Christopher Bruce wrap up the series of five articles on household services which have been presented in our newsletter. They deal with several of the issues which have not been dealt with specifically in previous articles. Included are the following: the suggested approach when a plaintiff is still able to undertake a particular household activity, albeit more slowly than previously; a discussion of how long to run the loss of household services; and the effect of retirement on the loss of household services.

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BOOK REVIEW: The Expert: A Practitioner’s Guide, (Carswell) 1997

Christopher Bruce reviews this collection of 27 essays concerning expert testimony, each essay having been written by one or more experts in the relevant discipline. The purpose of the book, according to the foreword, is to provide trial lawyers with a basic understanding of both “… the role of the expert in the legal process … [and] … the fundamental concepts of the discipline within which the expert operates.”.

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D’Amato v. Badger – Complications Arising when the Plaintiff is a Business Partner

In this article Christopher Bruce and Scott Beesley bring clarity to some of the complex issues that surround the loss of income which arises when the proprietor of a small business is injured. In particular, they deal with the situation encountered in the recent Supreme Court decision of D’Amato v. Badger, in which D’Amato was a partner in a small business. The issue of compensation became clouded because D’Amato, through his partner’s generosity, was in receipt of a wage post-accident that exceeded the value of his contribution, given his compromised condition.

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Implications of Duncan v. Baddeley

This article deals with the impact of the recent Alberta Appeal Court decision in Duncan v. Baddeley. Christopher Bruce discusses the implications of this decision for: fatal accident actions in which there are no dependants; the selection between the Fatal Accidents Act and the Survival of Actions Act; and the valuation of the “lost years” deduction in both fatal accident and personal injury actions.

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The “Lost Years” Deduction

In this article Christopher Bruce deals with the current issue of appropriate compensation for the “lost years” of a plaintiff with reduced life expectancy. One of the approaches discussed includes the view that the plaintiff should be compensated for the lost earnings which remain after the cost of necessities is deducted. Further clarification is required on this issue to establish an estimated cost for “necessities.”

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Calculation of the Dependency Rate in Fatal Accident Actions

In this article Christopher Bruce deals with the topical issue of alternative approaches to the calculation of the dependency rate. He argues here that determination of whether a sole dependency method, a revised dependency method, or a revised cross dependency method is appropriate will depend upon the nature of the marriage of the couple in question.

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Damage Calculations in Fatal Accident Actions After Galand

This article is Christopher Bruce’s second of two reports on the ramifications of the Alberta Court of Appeal decision in Galand Estate v. Stewart. The article in this issue considers the implications of Galand for the calculation of damages.

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What is a “Discount Rate”?

In this article Christopher Bruce provides a simple introduction to a concept which litigators must use every day – the discount rate, or “real rate of interest.” This article is the first in a series which will discuss the underlying concepts employed in the derivation of the lump sum values of future streams of losses.

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Loss of Earnings for Wrongful Confinement and Wrongful Sterilization: The Case of Leilani Muir

In this article Christopher Bruce offers a brief comment on the case Muir v. Alberta, in which damages were awarded to the plaintiff because she was wrongfully confined in a home for the mentally defective and was wrongfully sterilized. However, the court denied her loss of earnings claim.

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