This article was originally published in the Summer/Autumn 2002 issue of the Expert Witness.
In August of this year a decision was released in the case Millott (Estate) v. Reinhard (2002 ABQB 761). The decision was of interest to us, since Economica provided expert evidence for the plaintiff in this case – but there are some other aspects of the decision which will certainly be interesting to any lawyer who is involved in fatal accident cases in Alberta. In this article I will briefly discuss one of the most interesting findings.
The issue concerned how to reconcile “dependency” claims under the Fatal Accidents Act (FAA) with “estate claims” made under the Survival of Actions Act (SAA). Recall that the Brooks v. Stefura appeal decision (2000 ABCA 276) addressed the situation in which an heir to the estate (who is a potential recipient of the estate-claim award) is also one of the deceased’s dependants (and therefore is a potential recipient of an award for loss of dependency). Brooks offered the following guidelines at paragraph 14:
- calculate the dependency award for each dependant, including prejudgment interest if it is granted;
- calculate the lost years’ award, including prejudgment interest if it is granted;
- allocate the lost years’ award to each beneficiary in accordance with the deceased’s will, or if the deceased died intestate, in accordance with the ISA;
- compare the dependency award with the allocated lost years’ award for each claimant, and reduce the dependency award by the amount of the lost years’ award, which represents an accelerated inheritance;
- if the lost years’ award is greater, the claimant receives only that amount; and
- if the dependency award is greater, the claimant receives the full lost years’ award together with the difference between the two as the dependency award.
In other words, each surviving dependant is entitled to receive either his/her share of the estate claim or his/her loss of dependency claim, whichever is greater. This seems fairly straightforward, but there are some difficulties, which I addressed in an earlier article (“Estate Claims Following the Appeal Court Decisions in Duncan and Brooks“, Expert Witness Vol. 6, No. 1). The issue that was addressed in Millott is whether the loss of household services is to be considered separately from or together with the loss of dependency on income. This was answered in paragraphs 7 and 8 of Millott:
[7] … In the present case, there are, of course, dependency awards for both household services and transportation which had been provided by James Millott before his death. Despite the difference in the facts involved, Brooks is clear authority that the rationale for avoiding double recovery means that the dependency award amount used in the reconciliation process is only the loss arising from dependency on income, not from any other source (e.g., household services, which are not based on the deceased’s income level)….
[8] Only the dependency on income is generated by the deceased’s income stream. The dependency awards for household services and transportation are not linked to income, and should not be part of the reconciliation.
Thus, based on the Millott decision, it appears that if a dependant/heir’s share of the estate’s loss of income claim (under SAA) is greater than his loss of dependency on the deceased’s income (under FAA), then he is awarded the SAA amount, but can also receive any claim for loss of services under FAA. For example, we see at paragraph 15 of Millott, Mr. Millott’s two children received their shares of the SAA claim, in addition to an award for their loss of dependency on their father’s services (under FAA), as well as their statutory damages (under FAA).
Note that this situation will commonly occur when there is a surviving spouse and one or more teenaged children. I would expect that in most cases a teenaged child’s share of the SAA claim will exceed her loss of dependency on income (since the SAA claim continues for the remainder of her parent’s without-accident work-life, but the FAA claim continues only for as long as the child would have been dependant).
