Index

ACCUMULATED WEALTH, LOSS OF,See LOSS OF WEALTH

ACTIO PER QUODconstitutional validity, 270damages, 271employer’s claim, 275nature and status, 268parent’s claim, 274spouse’s claim, 268

ACTIONABLE PER SEnominal damages where, 139

ACTUARIAL ASSESSMENT

acceptance of, 72alternatives to, 71annuity method, 83average earnings method, 77averages and, 80characteristics of, 73compound vector method, 77expert evidence, 78fixed life expectancy method, 77global awards, 72history of, 72judicial role and, 61mathematical calculations, 76multiplier method, 82simple probability and, 80stale-datedness and, 544tax gross-up and, 66 See also GROSS UP FOR

TAXyear-by-year method, 77

“ADDITIONAL EXPENSE”

APPROACH

overlap of heads and, 770, 772

ADJUDICATION

judge and jury, 61

settlements, 62 See also STRUCTUREDSETTLEMENTS

ADMINISTRATIVE COSTS,

See MANAGEMENT FEES

ADOPTION OF CHILDREN

fatal accident claims, 1010

ADULT EDUCATION

interference with, 364

AGGRAVATED DAMAGES

exemplary damages distinguished, 763fatal accident claims, 909feminist analysis and, 50history of, 757intentional wrongdoing and, 758itemization of, 760multiple parties, 762nature and scope, 757pleading of, 760purpose of, 758quantification of, 760sexual assault and, 758summary of, 757survival actions, 1051

ALTERNATIVE MEDICINE

claim for cost of, 235

AMENITIES, LOSS OF,

See NON-PECUNIARY LOSS

ANNUITY METHOD

assessment by, 83

ANXIETY, SeeNON-PECUNIARY LOSS

ASSETS, LOSS OF, See LOSS OFWEALTH

AUTO-ACCIDENTS

apportionment and, 906-907causal patterns, 781-784devaluation approach, 1067divisible harm, 1067factual causation and, 781-784intervening cause and, 907onus of proof, 781, 782percentage approach, 783-784successive accidents, 1079

AUTO-ACCIDENT SCHEMES

cost of, 21development of, 19measure of relief, 28rationale, 21structure of, 24

boundaries, 25causation, 26measure of relief, 28nature of deprivation, 26other schemes, relationship to, 30victim responsibility, 27

tort action and, 19

“AVERAGE EARNINGS” METHOD, SeeACTUARIAL ASSESSMENT

AVERAGES

actuarial method and, 80industrial average earnings, 307

BASIC NECESSITIES

gross up and, 662lost years 514overlap of heads and, 194, 434, 468, 662

BREACH OF CONTRACT

remoteness of damage, 1263

“BUT FOR” CAUSE, See also FACTUALCAUSATION

causal sequences, 1077defined, 1070

compensatory principle and, 1072thin skull rule and, 1073

crumbling skulls and, 1073emotional harm and, 1082multiple necessary causes and, 1075psychological harm and, 1082successive accidents, 1079

CANADA PENSION PLAN, See alsoCOLLATERAL BENEFITS

deduction of, 832

CAP ON AWARDS

non-pecuniary loss, 120, 707

CARE AND GUIDANCE

fatal accident claims, 914

CAREER CHANGE

loss of earnings and, 333

CATALOGUE OF SERVICES

evaluation of homemaking loss, 438, 457, 744voluntary services and, 255

CAUSA CAUSANS, See FACTUAL CAU-SATION

CAUSA SINE QUA NON,See FACTUAL CAUSATION

CAUSATION,

See FACTUAL CAUSATION

CHANCE, LOSS OF, See FACTUALCAUSATION; SIMPLEPROBABILITY

CHARTER OF RIGHTS ANDFREEDOMS

compensatory principle and, 409, 415women’s earnings, effect on, 270, 409, 415

CHILDCARE, DEDUCTION OF

loss of earnings and, 406, 468

CHILDREN

fatal accident claims, 903claims by, 903, 972death of, 959

INDEX1350

CHILDREN — continuedgross up for tax and, 1002

loss of earnings of, 361cost of care and, 381delay in education, 364education, loss of, 364indicia of ability, 369opportunities and, 362, 364part-time work, 361permanent disability, 365post-accident prognosis, 378probabilities and possibilities, 365very young children, 362young women, 367, 374 See also

WOMENloss of opportunity for, 364lost years and, See LOST YEARS

CIVIL ACTION

appraisal of, 14causation and, 16compensation through, 17cost of, 18critique, 14-18deterrence and, 18discrimination and, 15insurance and, 19legal fees, 17practical context, 16proof and, 16rehabilitation and, 16schemes compared, 19

COLLATERAL BENEFITS, See alsoVOLUNTARY SERVICES

alternative remedies and, 235Canada Pension Plan, 841charity exception, 884

distress Funds, 887ex gratia employer payments, 890generally, 884gifts, 889health care benefits and, 893history of, 885philosophy of, 885trust for repayment, 885

collective agreements and, 853compensatory principle and, 818

double recovery and, 821

inadequacy of, 821loss distribution and, 819

contingencies, effect on, 874contribution to by plaintiff, 846, 854current position summarized, 812deduction, 829

compensatory principle and, 830contingencies and, 831contributory negligence and, 840employer-funded benefits, 867health care benefits, 833indemnity and, 832mandatory benefits and, 829meaning of, 833public benefits and, 829salary continuation, 867shift towards, 813underpinning for, 829wage payments, 869

deterrence and, 824disability pay, 815double recovery, 811

avoidance of, 811early position, 811meaning of, 811

evidence of contribution, 863-867expenses, third party payment of, 889factual causation and, 1147fatal accident claims, 1011

benevolence, 1012compensation schemes, 1015distress funds, 1016employment benefits, 1013estate, benefits from, 1017ex gratia payments, 1016family and friends, benefits from, 1015insurance, 1012overview, 1011public benefits, 1013statutory benefits, 1013voluntary services, 1015

heads of damages and, 831health care benefits, 833history, 815income-replacement benefits, mandatory, 841incomplete compensation and, 893

contributory negligence, 895legal fees, 896policy, 893

INDEX 1351

COLLATERAL BENEFITS — continuedstatutory limits, 896unsatisfied judgments, 893

loss distribution and, 826medicare benefits, 814non-pecuniary loss and, 821part-contribution to, 858practicality and, 828pre-accident expenses, 825private insurance exception, 852

acceptance of, 852Canada Pension Plan and, 814employee-employer funded benefits, 860employer-funded benefits, 867evidence of contribution, 862history of, 854personal insurance, 858restriction of, 893-895salary continuation, 869sick leave entitlements, 872summary of, 854underpinning for, 856wage payments, 854

problem outlined, 812public and mandatory benefits, 829

Canada Pension Plan, 841compensatory principle and, 830deduction of, 829heads of damage, 831health care benefits, 833income-replacement benefits, 841public benefits distinguished, 829subrogation for, 829summary of position, 829(un)employment insurance, 847welfare, 850

reimbursementcharity exception and, 885direction to repay, 892distress funds, 887ex gratia employment payments, 890gifts, 885health care benefits and, 833loss distribution and, 827mechanisms for, 827private insurance benefits and, 877

trust for repayment, 883underpinning for, 891undertaking to repay, 883

unemployment insurance and, 850voluntary services and, 885

salary continuation, 867sick pay, 815solutions outlined, 814subrogation, 877

full indemnity and, 878health care benefits, 833private insurance and, 867quasi-insurance and, 877(un)employment insurance, 847waiver of, 878, 892

theory of, 818thin skull and, 825underpinnings of, 822(un)employment insurance, 847welfare payments, 850wrongdoer benefiting and, 822

COLLATERAL SOURCES, SeeCOLLATERAL BENEFITS

COMMON LAW SPOUSES

fatal accident claims by, 903

COMPENSATION NEUROSIS

thin skull rule and, 1209

COMPENSATION SOURCES

benevolence, 14mandatory, 12private, 14public, 12

COMPENSATION SYSTEMS

boundaries, 25causation, 26collateral benefits and, 30cost of, 21critical legal studies and, 53development of, 19erosion of, 23funding of, 24inflation and, 23integration, 20measure of relief, 28nature of deprivation, 26other schemes, relationship to, 30rationale, 21

INDEX1352

COMPENSATION SYSTEMS — contin-ued

structure of, 24victim responsibility, 27

COMPENSATORY PRINCIPLE

actuarial assessment and, 156“but for” reasoning, 165collateral benefits and, 160context, 152crumbling skulls and, 1195equality and, 166extent of harm and, 1191factual causation and, 1196fatal accident claims and, 913foundation of, 152full and fair compensation, 153functional approach to, 160history of, 152limits to, 164loss distribution and, 161loss of homemaking capacity and, 158lost years and, 163need and, 162non-pecuniary loss and, 158pecuniary loss and, 155realism and, 160reasonableness and, 155remedies and, 155restitution and, 155societal resources and, 1solace and, 120, 158taxation and, 391taxation gross-up and, 651theoretical underpinning, 167thin skull rule and, 1195women’s earnings and, 38

COMPLEMENTARY MEDICINE

claim for cost of, 235

COMPOSITE APPROACH TO

ASSESSMENT

loss of working capacity and, 304, 313, 336

COMPOUND VECTOR ASSESSMENT,

See ACTUARIAL ASSESSMENT

CONCEPTUAL APPROACH

non-pecuniary loss and, 686, 688, 689, 702,704, 740

CONTEMPTUOUS DAMAGES

usage of, 141

CONTINGENCIES

business profits and, 956collateral benefits and,874cost of future care, 636

additional costs, possibility of, 644general contingencies, 639generally, 636institutional care, possibility of, 642optional nature, 666separate consideration of, 637specific contingencies, 642summary of, 636tax gross-up and, 666

duplication of, 537, 994fatal accident claims, 992

collateral benefits, 1011discount rate, 999duplication of, 994family separation, 1009moderation in, 993post-death contingencies, 997post-retirement income, 954pre-death contingencies, 995re-marriage, 1005summary, 994tax gross-up, 1002

general and specific, 527loss of working capacity, 522

basic calculations and, 522compensable contingencies, 539culpable contingencies, 541duplication, 537general contingencies, 527, 534general nature, 522history, 524mistaken assumptions, 522moderation, 534partial loss and, 540percentage generally, 524

INDEX 1353

CONTINGENCIES — continuedpre-accident and post-accident

contingencies, 528specific contingencies, 527, 545statistics for, 542women’s earnings, 420

positive and negative, 530possibilities and, 523simple probability theory, 529women’s earnings and, 378, 420working life expectancy and, 995

CONTRIBUTORY NEGLIGENCE

collateral benefits and, 895falls during recovery, 1250fatal accident claims and, 906gross-up and, 651intervening cause and, 1278mitigation and, 1316seat belt defence, 1204second accidents and, 1078special damages and, 246sufficient as cause, 1161third party claims and, 271, 281

CORPORATE DIVIDENDS, LOSS OF,

See LOSS OF PROFITS

CORRECTIVE JUSTICE

critique of, 35morality and, 34tort law and, 34

COSMETIC SURGERY

cost of care and, 612, 786

COST OF EARNING

reduced need for, 800

COSTS

nominal damages and, 140

COST OF CARE

actual use of damages for, 565, 575claimable items, 601collateral benefits and, 584compensatory principle and, 565contingencies, 636

additional costs, possibility of, 636

general contingencies, 639generally, 636institutional care, possibility of, 642separate consideration of, 637specific contingencies, 642summary of, 636tax gross-up and, 645

cosmetic surgery, 612, 786counselling, 610cultural sensitivity, 603, 633discount rate and, See DISCOUNT RATEdistributive justice and, 7, 582emotional well-being, 610excessive claims for, 568exercise equipment, 613fatal accident claims, 906full compensation for, 565gross-up, See GROSS-UP FOR TAXhome care, 584

alternative choices,contingencies and, 598factors considered, 590feminist analysis and, 49institutional care and, 584, 593

level of expense, 584lifestyle and, 601limits on compensation for, 568

non-pecuniary loss and, 707 See alsoOVERLAP OF HEADS

reasonableness, 568social burden, 570

lists of items, 606loss of earnings and, 536-545 See also

OVERLAP OF HEADSoptimal care and, 7, 569overlap of heads, See OVERLAP OF HEADSperiod of claim, 625

duration of expense, 631fixed life-expectancy, calculation by, 629initial capital outlay, 626life-stages and, 632on-going expenses, 629post-accident life expectancy, 633segmentation and, 633shortened life expectancy, 633year-by-year calculation, 631

possibilities, proof of, 598reasonableness and, 568

INDEX1354

COST OF CARE — continuedduty to mitigate and, 432 See also DUTY

TO MITIGATEhome or institutional care, 584objective or subjective, 575psychological benefits, 594special damages and, 230

recreational facilities, 613relocation, 609restitution for, 568, 701simple probability, 572special damages, 230

clothing, wear and tear, 240cultural difference, 234home adjustments, 240hospitalization, 236household and living expenses, 240limits of claim, 239medical expenses, 236range of expenses, 231reasonableness, 230, 232subjectivity, 234thin skull and, 166-168 See also THIN

SKULL RULEthird party payment, 243travel for care, 238unusual expenses, 614voluntary services, 242 See also

VOLUNTARY SERVICESsubjective considerations, 575subsidized health care, 582 See also

COLLATERAL BENEFITSsurvival actions

deceased’s expenses, 1036estate’s expenses, 1038funeral expenses, 1039subdivision of, 1036third parties, 1041

taxation, See GROSS UP FOR TAXtravel, 609voluntary services and, 615 See also

VOLUNTARY SERVICES

COUNSELLING, COST OF, See also

COST OF CARE; SPECIALDAMAGES

future cost of, 610special damages and, 786

CRITICAL LEGAL STUDIES

deconstruction, 56judicial reasoning, 55movement, development of, 53political process, law as, 53postmodernism, 56pragmatism, 56scepticism, 56themes of, 56

CROSS-DEPENDENCY, See LOSS OF

SHARED FAMILY INCOME;INTERDEPENDENCYRELATIONSHIPS

CRUMBLING SKULL

application of rule, 1218endorsement of rule, 1217extent of harm rule, 1194factual causation and, 1062, 1073general approach, 1218onus of proof, 1224standard of proof, 1083, 1097thin skull and, 1201

CULTURAL DIFFERENCE

cost of care and, 234mitigation and, 234thin skull rule and, 234

DE FACTO SPOUSES

fatal accident claims by, 270, 997

DE MINIMISpossibilities and, 1099

DEATH, See FATAL ACCIDENTCLAIMS; SURVIVAL CLAIMS

DEDUCTIONS, See OFF-SETTING AD-VANTAGES; COLLATERAL BENE-FITS; CONTINGENCIES; REDUCED

NEED

DELAY IN PAYMENT

interest in damages, 116

DENTAL SURGERY

claim for cost of, 238

INDEX 1355

DETERRENCE

civil action and, 44, 397collateral benefits and, 824economic analysis and, 44tax and loss of earnings, 396

DIFFICULTY OF ASSESSMENT

no bar to claim, 109special damages and, 110tax gross-up and, 655taxation and earnings, 399

DIRECTION TO REPAY

collateral benefits and, 815, 892

DIRECTNESS TEST

foreseeability and, 1181novus actus and, 1174

DISCOUNT RATE

calculations, 76, 562components of, 549consistent assumptions for, 551cost of care and, 548Diplock approach to, 548evidence of, 559explanation of, 549fatal accident claims, 548generally, 547inflation, 547interest, 547investment portfolio and, 561legislated discount rates, 358, 553loss of earnings, 548management fee and, 563mathematical effect of, 553productivity and, 547, 552 See also

PRODUCTIVITYstatutory rates, 553

variation of, 555

DISTRESS, See NON-PECUNIARYLOSS

DISTRESS FUNDS

collateral benefits and, 887

DISTRIBUTIVE JUSTICE

collateral benefits and, 820

compensatory principle and, 414corrective justice and, 38cost of care and, 7, 582definition, 5equality and, 35, 166, 414legislative reform and, 402no fault schemes, 22social cost of awards and, 6socialized health care and, 582taxation and loss of earnings, 402women’s earnings and, 406, 414

DIVISIBLE HARM

factual causation and, 1067

DOCTRINE OF CHANCES, See SIMPLE

PROBABILITY

DUPLICATION, See OVERLAP OFHEADS

DUTY TO MITIGATE

avoided losses, 1322capacity to mitigate, 1324compensatory principle and, 164contributory negligence and, 1316costs of, 1319cultural belief and, 234, 1331education and, 204employment and, 915expense of, 1333factual causation and, 1077, 1119failure to mitigate, 1345financial ability and, 1333impecuniosity and, 1333incapacity caused by accident, 1326intervening cause and, 1315law and fact, 1316medical treatment and, 1336

benefits of treatment, 1340chance of success, 1340cost of treatment, 1339refusing treatment, 1341reliance on advice, 1341risks of, 1337

nature and scope, 1309non-medical mitigation, 1343onus of proof, 1316pre-existing attributes, 1328

INDEX1356

DUTY TO MITIGATE — continuedreasonableness and, 1323

general standard, 1323objective or subjective, 1325pre-existing capacity, 1324risk-benefit equation, 1335

religious belief and, 1331relocation and, 1320, 1334risks of, 1335special damages and, 193, 204subjectivism, move towards, 1327thin skull rule and, 1314third party mitigation, 1323underpinnings of, 1313unemployment and, 915

EARLY RETIREMENT

loss of earnings and, 310, 318

EARNING CAPACITY, See LOSS OFEARNINGS

EARNINGS, DEPENDENCY ON, SeeFATAL ACCIDENT CLAIMS

ECONOMIC ANALYSIS

ability to pay and, 48critique of, 47deterrence and, 44introduction to, 44market economics, 47medicare and, 814tenets of, 46wealth maximization, 45

ECONOMIC PREDICTION, See

ACTUARIAL ASSESSMENT

EDUCATION, COST OF

retraining, 157, 1320, 1336, 1343

EDUCATION, LOSS OF

adult education, 364delay in entry to workforce, 362indicia of student ability, 369loss of earnings and, 362non-pecuniary loss and, 364opportunities and, 364permanent disability, 365

possibilities and, 365very young children, 362young women, 374 See also WOMEN

EGG-SHELL SKULL RULE, See THINSKULL RULE

EMOTIONAL HARM, See also NON-PECUNIARY LOSS

causes of action for, 1305factual causation and, 1292future development, 1291physical injury and, See NON-PECUNIARY

LOSSremoteness and, 1198, 1285

EMOTIONAL WELL-BEING

cost of care and, 610special damages and, 610

EMPLOYERS

third party action by, 275

ENJOYMENT OF LIFE, LOSS OF, SeeNON-PECUNIARY LOSS

EQUALITY

corrective justice and, 35formal and substantive equality, 415women’s earnings and, 37, 423

ESTATE, ACTION AGAINST, See

SURVIVAL ACTIONS

ESTATE, ACTION BY, See SURVIVALACTIONS

ESTATE, LOSS OF, See LOSS OFWEALTH

EVIDENCE, See PROOF OF DAMAGES;ACTUARIAL ASSESSMENT; ONUSOF PROOF; BURDEN OF PROOF

EX GRATIA PAYMENTS

collateral benefits and, 890

INDEX 1357

EX TURPI CAUSA, See ILLEGALEARNINGS

EXCEPTIONAL DAMAGE

pleading of, 122

EXEMPLARY DAMAGES

actions against estates, 910aggravated damages distinguished, 763fatal accident claims and, 910loss, relevance of, 1023purpose of, 134, 910quantification of, 137summary of, 134survival actions, 1023, 1028

EXERCISE EQUIPMENT

cost of care and, 613

EXPENSES, See SPECIAL DAMAGES;COST OF CARE

EXPERT EVIDENCE, See also

STATISTICAL EVIDENCEactuarial assessment and, 918

EXTENT OF HARM

crumbling skulls, 1194cultural belief and, 1197defendant advantage, 1197emotional susceptibility, 1197extent of harm rule, 1194family situation and, 1197foreseeability and, 1195homemaking and, 1198intellectual susceptibility, 1198physical susceptibility, 1198post-injury events and, 1196 See also POST-

INJURY EVENTSreligious belief and, 1197thin skull rule, 1191, 1195 See also THIN

SKULL RULE

EXTRAORDINARY EVENTS

intervening cause and, 1241, 1255, 1262

FACT INDETERMINACY, See PROOFOF DAMAGES

FACTUAL CAUSATION

balance of probabilities, 1056causa causans, 1076causa sine qua non, 1076causal sequences, 1077chance, loss of, 1087, 1110crumbling skulls and, 1062collateral damage and, 1209compensatory principle and, 1142definitions, 1063

additional cause, 1140alternative cause, 1140“but for” cause, 1070necessary causes, 1063probabilistic cause, 1066successive causes, 1065sufficient causes, 1064

divisible harm, 1067inference of, 1085legal causation distinguished, 1060liability issues and, 1060

chance, loss of, 1062, 1110necessary causes, 1061summary of, 1060

loss and, 1127, 1142multiple causes, 1075, 1137nature of inquiry, 1056necessary causes, 1063no-fault schemes and, 1063, 1070omissions and, 1129onus of proof, 1085, 1087opportunities, loss of, 1111past facts, 1119probabilistic cause, 1066

chance, loss of, 1087, 1110defined, 1066generally, 1066

proof ofcurrent position summarized, 1085liability issues and, 1086past facts, 1094simple probability, 1056, 1066, 1082, 1083

psychological harm, 1082reverse onus, 1091successive auto-accidents, 1079sufficient causes

INDEX1358

FACTUAL CAUSATION — continuedadditional culpable cause, 1147additional non-culpable cause, 1156alternative causes, 1153contributory negligence, 1161culpable causes, 1147devaluation theory, 1150joint liability, 1151logical analysis, 1139non-culpable causes, 1156overtaking cause, 1153principles applicable to, 1139property damage compared, 1140simultaneous causes, 1148successive causes, 1149summary of, 1054

thin skull rule and, 1068, 1073, 1083time of loss, 1144workers’ compensation and, 1089

FACULTIES, LOSS OF, See

NON-PECUNIARY LOSS

FAILURE TOMITIGATE, SeeDUTY TOMITIGATE

FAILURE TO QUANTIFY

nominal damages where, 139

FALLS DURING RECOVERY

effect on damages, 1250

FAMILY BUSINESS LOSSES, See LOSS

OF PROFITS

FAMILY, COST OF

reduced need for, 509 See also LOST YEARS

FAMILY RELATIONS,

INTERFERENCE WITH

third party claim for, 1285, 1305

FAMILY SEPARATION

contingency of, 995

FARM INCOME, LOSS OF, SeeSPECIAL DAMAGES; LOSS OFWORKING CAPACITY

FATAL ACCIDENT CLAIMS

adoption of children, 1010aggravated damages and, 909claimants, 903collateral benefits, 1011

benevolence, 1015compensation schemes, 1015distress funds, 1016employment benefits, 1013estate, benefits from, 1017ex gratia payments, 1016insurance, 1012public benefits, 1013statutory benefits, 1013voluntary services, 1015

compensatory principle, 913contingencies, 992

discount rate, 999duplication of, 994family separation, 993moderation in, 993post-death contingencies, 997pre-death contingencies, 995re-marriage, 993statutory rates, 1001summary, 992

contributory negligence, 906, 921deductions, 1005defendant, death of, 899dependency and, 902derivative action, 904discount rate, 999estate, benefits from, 521

assets, 911survival claim damages, 521

familial relationship and, 916family work, loss of, 962

care and guidance, 973children, claims by, 972collective losses, 964dependents income, loss of, 978individual losses, 964nature of claim, 962parents, claims by, 977period of loss, 976

INDEX 1359

FATAL ACCIDENT CLAIMS — contin-uedquantification, 967replacement cost, 969spare time work, claim re, 912valuation of, 967

general damages, 908heads of damages, 911intentional torts, 1251lost years damages and, 521management fees, 921 See also

MANAGEMENT FEESmarriage, effect of, 1005, 1007mitigation and, 915 See also DUTY TO

MITIGATEnature of action, 901non-pecuniary loss, 988, 906

denial of claim, 988history of, 988quantification of, 991statutory provision for, 988

offsets, 1005period of loss, 919, 957quantification, 913remarriage, 1005, 1007separate calculation, 920shared family income, loss of, 932

benefit premiums, 935children, death of, 959cost of earning, 946cross-dependency and, 952dependency, value of, 946fringe benefits and, 938illegal earnings, 940income, assessment of, 944insurance premiums, 945pensions, dependency on, 939period of loss, 957personal expenses, deduction of, 948post-retirement income and, 954quantification method, 917spouse, dependency of, 916taxation and, 944two-income families, 951undeclared income, 942

single action, 904special damages, 908, 928

expenses generally, 928funeral expenses, 930

grief counselling, 928overview, 928voluntary services, 931

statutory basis, 899summary, 926survival actions distinguished, 901tax gross-up, 1002types of damages, 906

aggravated damages, 909exemplary damages, 910general damages, 908negative loss, 907non-pecuniary loss, 906pecuniary loss, 906positive loss, 907special damages, 908

wealth, loss of, 980evidence, 984nature of claim, 980present value of, 983quantification of, 983

wrongdoer, death of, 901

FAULT PRINCIPLE

collateral benefits and, 37corrective justice and, 34liability rules and, 34

FEMINIST ANALYSIS

application of, 52focus of, 49interconnectedness of ideas, 50postmodernism and, 50themes of, 50

FIXED LIFE EXPECTANCY METHOD,

See ACTUARIAL ASSESSMENT

FORESEEABILITY PRINCIPLE

degree of foreseeability, 1179extent of harm and, 1191, See also EXTENT

OF HARMflexibility of, 1182intentional torts, 1192kind of harm, 1184negligence and, 1174, 1178novus actus and, 1174post-injury events and, 1175 See also POST-

INJURY EVENTS

INDEX1360

FORESEEABILITY PRINCIPLE — con-tinued

remoteness test, 1173scope of risk and, 1182sequence leading to injury, 1188specificity of analysis, 1184strict liability, 1193thin skull, 1191 See also THIN SKULL RULEtime of harm, 1190unusual susceptibility, 1179, 1195 See also

THIN SKULL RULE

FORM OF AWARDS

adjudication of damages, 61lump sum, 62

appropriateness of, 64requirement of, 66

periodic payments, 62arguments for, 65rejected, 82

structured settlements, 69advantages of, 70nature of, 69

FRINGE BENEFITS

fatal accident claims and, 337loss of, 336

accommodation, loss of, 337classification of, 337insurance-type benefits, 338pensions, 340stock options, loss of, 338unconditional benefits, 337

special damages, 201

FUNCTIONAL APPROACH

jurisprudential theory and, 43lost years and, 499non-pecuniary loss, 787overlap of heads of damage and, 743realism and, 709, 713, 744reduced need and, 800solace and, 702, 713unaware plaintiffs and, 684, 739, 792underpinnings of, 507

FUND ADMINISTRATION, SeeMANAGEMENT FEES

FUNERAL EXPENSES

fatal accidents claims, 930survival actions, 1039

GENERAL DAMAGES, See also LOSSOF WORKING CAPACITY; COST

OF CARE; NON-PECUNIARY LOSSheads of damages under, 142special damages compared, 124

GIFTS

collateral benefits and, 889

GLOBAL AWARDS

itemization required, 723non-pecuniary loss and, 722quantification of, 722rejection of, 722women’s earnings and, 378, 405

GOVERNMENT AGENCIES

cost of care given by, See COLLATERALBENEFITS

GRATUITIES

special damages claim, 201

GRATUITOUS SERVICES, SeeVOLUNTARY SERVICES

GRIEF COUNSELLING

fatal accidents, expense of, 928

GROSS NEGLIGENCE

falls during recovery, 1250intervening cause and, 1249medical treatment, 1088

GROSS UP FOR TAX

acceptance of, 649computer models and, 651contributory negligence and, 651cost of care and, 649difficulty of assessment, 650

INDEX 1361

GROSS UP FOR TAX — continuedevidence regarding, 657fatal accident cases, 650generally, 649history of, 652homemaking capacity and, 650loss of earnings award, effect on, 654loss of interdependent relationship, 650management fee and, 650non-pecuniary loss and, 667rationale for, 655reform of, 677rounding out calculations, 676shared family income and, 780stacking and, 665standardization of, 677variables, 659

basic necessities, 662future tax policy, 675infancy, 661inflation rate, 671initial capital outlay, 661interest on other heads, 667investment portfolio, 672outside income, 664rate of withdrawal, 663size of award, 662tax credits, 674third parties, 660

GUIDANCE AND COMPANIONSHIP,

LOSS OF

fatal accident claims, 907, 974third party claims for, 692

HEADS OF DAMAGES

fatal accident claims, 926personal injury, 142terminology, 142

HEALTH CARE BENEFITS, See alsoCOLLATERAL BENEFITS

deduction or subrogation of, 833

HOME CARE, See COST OF CARE

HOMEMAKING CAPACITY, LOSS OF,

See LOSS OF HOMEMAKING

CAPACITY

HOMEMAKING, DEPENDENCY ON,

See LOSS OF FAMILY WORK

HOSPITALIZATION BENEFITS, See

also COLLATERAL BENEFITSdeduction or subrogation of, 30, 236

HOUSEKEEPING ABILITY, LOSS OF,

See LOSS OF HOMEMAKING

CAPACITY

HOUSEKEEPING, DEPENDENCY ON,

See LOSS OF FAMILY WORK

HYPOTHETICAL FACTS, See SIMPLE

PROBABILITY

ILLEGAL EARNINGS

compensatory principle and, 152distributive justice and, 164fatal accident claims, 940loss of

earnings from illegal source, 345undeclared income, 348underpinnings, 343

policy or principle, 343tax evasion and, 343unreported income, 942

INCOME, DEPENDENCY ON, SeeFATAL ACCIDENT CLAIMS

INDEMNITY PRINCIPLE

collateral benefits and, 897incomplete compensation, 897subrogation and, 897

INFLATION, See also DISCOUNT RATEnon-pecuniary loss, effect on, 999

INDEX1362

INHERITANCE, LOSS OF, See LOSS OFWEALTH

INITIAL CAPITAL OUTLAY

cost of care and, 145, 626

INJURIA SINE DAMNOnominal damages and, 139

INSTITUTIONAL CARE, See COST OF

CARE

INSURANCE PAYMENTS, SeeCOLLATERAL BENEFITS

INTENTIONAL ACTS

aggravation of loss, 1247, 1250criminal conduct exacerbating harm, 1256depression and, 1251intervening cause and, 1248suicide, post-accident, 1251

INTENTIONAL TORTS

remoteness of damage and, 1192

INTERDEPENDENCY

RELATIONSHIPS, See also LOSS OFSHARED FAMILY INCOME

loss of earnings, impact of, 201, 469

INTEREST

post-judgment interest, 116pre-judgment interest, 110

items excluded, 112legislative provisions re, 553period, 114rate of interest, 114

INTEREST RATES, See DISCOUNT

RATE; INTEREST

INTERVENING CAUSE, See also POST-INJURY EVENTS

criminal conduct, 1256definition of, 1227duty of care, 1230ex turpi causa and, 1236extraordinary events, 1262falls during recovery, 1248

family conduct as, 1261foreseeability and, 1238gross negligence as, 1249history of, 1225inanimate events as, 1240intentional conduct as, 1244marital breakdown, 1262medical mistreatment, 1257mitigation and, 1227nature of, 1225negligent conduct as, 1243non-negligent conduct as, 1241omission as, 1229recklessness as, 1244suicide as, 1251theory of, 1225unconventional claims, 1263

INVESTMENT OF LUMP SUM, SeeDISCOUNT RATE

INVESTMENT PORTFOLIO

gross up and, 468

INVESTMENT SERVICES, SeeMANAGEMENT FEES

ITEMIZATION OF AWARDS

composite approach and, 766exception to, 684overlap of heads and, 766requirement of, 766

JOINT LIFE-EXPECTANCY

fatal accident claims, 920, 957

JUDICIAL REASONING, SeeJURISPRUDENTIAL THEORY

JURISPRUDENTIAL THEORY

collateral benefits and, 37constraints on judges, 33corrective justice, 34

critique of, 35equality and, 35special morality, 34

critical legal studies, 53deconstruction, 56development of, 54

INDEX 1363

JURISPRUDENTIAL THEORY — con-tinuedjudicial reasoning, 55political process, law as, 53postmodernism, 55themes of, 56

doctrinal view, 32economic analysis, 44

ability to pay and, 48critique of, 47introduction to, 44loss of homemaking capacity, 48tenets of, 44wealth maximization, 45

external point of view, 31feminist analysis, 49

focus of, 49postmodernism and, 50themes of, 50

formalism, 34internal point of view, 31introduction to, 31natural law, 34perspectives, 31rights thesis, 39

critique of, 40community and, 40integrity and, 40liberalism and, 40policies and, 40principles, 40

role of, 31rules, insufficiency of, 39styles of reasoning, 33theoretical perspective, 31utilitarianism, 45

JURY AWARDS

non-pecuniary loss and, 751appellate review, 755judicial guidance and, 751

KIND OF HARM

foreseeability of, 1167

LEISURE ACTIVITY, LOSS OF, See

NON-PECUNIARY LOSS

LIFE EXPECTATION, See PERIOD OFLOSS; LOST YEARS

LIFE INSURANCE

collateral benefits and, 810, 827, 859

LOSS DISTRIBUTION

collateral benefits and, 826

LOSS OF AMENITIES, See

NON-PECUNIARY LOSS

LOSS OF EARNING CAPACITY, SeeLOSS OF EARNINGS

LOSS OF EARNINGS

actual earnings or earning capacity, 305annual income, 306average industrial earnings, 307base earnings, 307basic earnings calculations, 305

annual income, 306base earnings, 307earnings increase, 308overtime work, 310part-time work, 310spare time work, 312unconventional work, 309

business profits, 382 See also LOSS OFPROFITSacceptance of, 388contingencies and, 388evidence of, 387family businesses, 385secondary income, 389uncertainty of, 387

children and students, 361cost of care and earnings, 381delay in entry to workforce, 362education, loss of, 362indicia of ability, 369opportunities and, 364part-time work, 361permanent disability, 365possibilities and probabilities, 365post-accident prognosis, 378very young children, 362young women, 374 See also WOMEN

contingencies, 522

INDEX1364

LOSS OF EARNINGS — continuedbasic calculations and, 522compensable contingencies, 539culpable contingencies, 541duplication, 537general contingencies, 527, 534general nature, 522history, 524mistaken assumptions, 522moderation, 534partial loss and, 540percentage generally, 524specific contingencies, 527, 545statistics for, 542women’s earnings, 420

cost of care and, 536-545 See also OVERLAPOF HEADS

criminal record, 322discount rate, 547

calculations, 76, 562components of, 549consistent assumptions for, 551cost of care and, 548Diplock approach to, 548evidence of, 559explanation of, 549fatal accident claims, 548generally, 547homemaking capacity, 574inflation, 547interest, 547investment portfolio and, 561legislated discount rates, 358, 553management fee and, 563mathematical effect of, 553productivity and, 547, 552 See also

PRODUCTIVITYstatutory rates, 553

variation of, 555fringe benefits, loss of, 336

accommodation, loss of, 337classification of, 337insurance-type benefits, 338pensions, 340stock option, loss of, 338unconditional benefits, 337

illegal earnings, 343earnings from illegal source, 345undeclared income, 348

underpinnings, 343integration of subheads, 437lost opportunities, 313lost years, 497

amenities, cost of, 514amount of deduction, 508community contributions, 519compensatory principle and, 504fatal accidents, relationship to, 521family expense, deduction of, 515functional approach and, 507history, 500homemaking capacity and, 519hypothetical dependants, 508interdependent relationship, loss of, 520personal living expenses, 509problem outlined, 498reduced need and, 505shared family income and, 520summary of position, 498taxation, 518theoretical underpinnings, 503very young children, 500

non-pecuniary loss and, 305 See alsoOVERLAP OF HEADS

off-setting advantages, 468 See also

OFF-SETTING ADVANTAGESopportunities, loss of 364overlap of heads, 434 See also OVERLAP OF

HEADSpartial loss of earnings, 323

capital asset approach, 330career change, 333contingencies and, 326duty to mitigate, 326employment, change of, 333experience, loss of, 326post-accident prognosis, 327prestige, loss of, 326retraining, 333

period of loss, 486average earnings method, 491generally, 486homemaking and loss of interdependent

relationship, 496life expectancy tables, 491, 492life-segments, calculation by, 495lost years, 490 See also LOST YEARS

INDEX 1365

LOSS OF EARNINGS — continuedpensions, effect of, 488 See also FRINGE

BENEFITSpermanent incapacity, 489

relevant period, 489short-term losses, 491working life expectancy, 489year-by-year method, 495

temporary incapacity, 487poor prospects, 321probabilities and, 313productivity, effect of, 349

discount rate and, 355 See also

DISCOUNT RATEgeneral and personal productivity, 349history of, 353inclusion of, 355legislation and, 358meaning of, 349special damages and, 354summary, 349

projected earnings loss, 305promotion and advancement, 319reduced need for, See REDUCED NEEDspecial damages, 199

basic calculation, 199contingencies, 200duty to mitigate, 204 See also DUTY TO

MITIGATEfringe benefits, 201gratuities, 201increase in earnings, 200interdependent relationship, loss of, 204overtime work, 202partial loss, 199seasonal earnings, 203

statistical evidence, 313 See alsoACTUARIAL ASSESSMENT

taxation and, 390critique of, 391history of, 391rationale of, 396reform of, 394summary of position, 390

women’s earnings, 403actuarial evidence, 420average earnings, measurement of, 423childcare, deduction of, 406compensatory principle, 408

contingencies, 429cost of care and, 434distributive justice and, 414earning capacity approach, 413equality and, 414history of, 411marriage, effect of, 405overlap of heads and, 434post-accident prognosis, 430poverty level approach, 418principled approach, 419range of problems, 405reform of, 435relationships, impact of, 425sociological background, 407statistical evidence, 420summary of position, 403

LOSS OF EDUCATION, SeeEDUCATION, LOSS OF

LOSS OF ENJOYMENT OF LIFE, See

NON-PECUNIARY LOSS

LOSS OF EXPECTATION OF LIFE, SeeLOST YEARS; NON-PECUNIARYLOSS

LOSS OF FAMILY WORK

care and guidance, 973children, claims by, 972collective losses, 964dependents income, loss of, 978history, 962individual losses, 964nature of claim, 962negative loss, as, 966parenting work, 977parents, claims by, 977period of loss, 976quantification, 967replacement cost, 969spare time work, 963, 969valuation of, 969

INDEX1366

LOSS OF HOMEMAKING CAPACITY

actual work value as measure, 292capacity, idea of, 435causation and, 444children and, 446claim for, generally, 206claimants, 450compensatory principle and, 444contingencies, 466development of, 458discount of, 467earning capacity thesis, 460economic analysis of, 440, 460evidence, 461feminist analysis and, 508gross up for tax, 467historical problems, 438, 447integration of subheads, 437labour functions, 454management functions, 454negative loss, 441non-pecuniary award and, 442 See also

SPECIAL DAMAGESoverlap of heads and, 468

basic services, 468cost of care and, 468family services, 468recreation and homemaking, 468stress of working, 468

period of loss, 465lost years, 438permanent incapacity, 465temporary incapacity, 465

personal loss to homemaker, 442quality of work, 452quantification of, 455

alternatives, 455catalogue of services,457opportunity cost, 460substitute homemaker, 457

range of claimants, 450range of work, 452recognition of claim, 438secondary homemaking, 211special damages for, 206

difficulty in performing tasks, 207itemization of, 209non-pecuniary loss and, 209pain and discomfort, 208

pecuniary loss, 209quantification of, 211replacement labour, 212secondary homemaking, 211spare-time work, 211tutoring children, 965unperformed tasks, 208

statistics, 461survival actions, 1020third party benefit and, 211undervaluation of, 245, 258

LOSS OF PROFITS

acceptance of claim, 216contingencies and, 225evidence of, 223family businesses, 221secondary income, 294special damages for, 212

acceptance of claim, 216corporate dividends, 216family business, 221quantification of, 212, 220remoteness and, 215, 217return from labour and, 214self-employment, 213subsequent endorsement, 219

uncertainties of, 226

LOSS OF SHARED FAMILY INCOME,

See SHARED FAMILY INCOME,LOSS OF

LOSS OF WEALTH

evidence re, 984nature of claim, 980present value of, 983quantification of, 983

LOSS OF WORKING CAPACITY, Seealso LOSS OF EARNINGS; LOSS OF

HOMEMAKING CAPACITY;SHARED FAMILY INCOME, LOSSOF; SPECIAL DAMAGES

actual earnings or capacity, 292business profits, loss of, 382 See also LOSS

OF PROFITScapitalization rate, 547 See also DISCOUNT

RATE

INDEX 1367

LOSS OF WORKING CAPACITY —continued

composite approach to, 302concepts, 293consistent assumptions and, 292discount rate, 349 See also DISCOUNT RATEgeneral principles, 288homemaking capacity, loss of, 299 See also

LOSS OF HOMEMAKING CAPACITYintegration of sub-heads, 302loss of earnings, 305 See also SPECIAL

DAMAGESannual income, 306average industrial earnings, 306basic calculations, 307capital assets approach, 330career change, 333children, 361 See also CHILDRENcriminal record, 343duty to mitigate, 326earnings increase, 308fringe benefits, loss of, 336 See also

FRINGE BENEFITSillegal earnings, 343lost opportunities, 313overlap of heads, 339 See also OVERLAP

OF HEADSovertime work, 310partial loss of earnings, 323part-time work, 310poor prospects, 321post-accident prognosis, 327prestige, loss of, 326probabilities and, 313productivity, effect of, 349 See also

PRODUCTIVITYprojected earnings loss, 305promotion, 319retraining, 333spare time work, 312statistical evidence, 313 See also

ACTUARIAL EVIDENCEstudents, 361 See also CHILDRENtaxation and, 390 See also TAXATIONunconditional benefits, 337unconventional work, 313undeclared income, 348women’s earnings, 374 See also WOMEN

loss of homemaking capacity, 299 See alsoLOSS OF HOMEMAKING CAPACITY

lost years, 302 See also LOST YEARSnegative losses and, 198non-pecuniary award, enhanced, 305period of loss, 321 See also PERIOD OF

LOSSquantification mechanisms, 290, 300shared family income, loss of, 292 See also

SHARED FAMILY INCOME, LOSS OFsub-heads of, 292survival actions, 362 See also SURVIVAL

ACTIONSstandard of living, maintenance of, 320summary of, 292terminology, 295work patterns and, 299

LOST YEARS

compensatory principle and, 504deductions for, 508

amenities, cost of, 514community contributions, 519family, expenses of, 515hypothetical dependants, 508personal living expenses, 509taxation, 518

fatal accidents, relationship to, 521functional approach to, 507history, 500homemaking capacity and, 519interdependent relationship, loss of, 520problem outlined, 498reduced need and, 505shared family income and, 520summary of position, 498survival actions, 507taxation and, 518theoretical underpinnings, 503very young children, 500

LUMP SUM AWARDS

appropriateness of, 64common law and, 62management of, 67 See also MANAGEMENT

FEESrequirement of, 66

INDEX1368

MALICIOUS CONDUCT

exemplary damages, 135, 910

MANAGEMENT FEES

basis of award, 170discount rate and, 172fatal accident claims, 921gross-up and, 171inability to manage alone, 173independent head of damage, 170meaning of, 168need for services, 171non-pecuniary loss and, 169quantification of, 175rationale for award of, 170voluntary services and, 170

MANDATORY STRUCTURED

JUDGMENTS

arguments for, 63lump sums compared, 62rejection of, 64

MARRIAGE

breakdown, caused by injuries, 903, 954fatal accident claims, 106, 954future loss of working capacity, 406loss of earnings and, 405, 423loss of homemaking capacity and, 443, 473loss of interdependent relationship, 204loss of shared family income, 954

MEDICAL TREATMENT

intervening cause, as 89loss of a chance of cure, 89mitigation and, 234, 1336 See also DUTY TO

MITIGATEpost-accident events and, 236

MEDICARE BENEFITS, See alsoCOLLATERAL BENEFITS

deduction or subrogation of, 814

MENTAL DISTRESS, See EMOTIONAL

HARM

MITIGATION, See DUTY TOMITIGATE

MULTIPLE CAUSES, See alsoFACTUAL CAUSATION

“but for” test, 1075causal sequences, 1077compensatory principle and, 1142divisible harm, 1067necessary causes, 1063

chance, loss of, 1087, 1110compensatory principle and, 1142crumbling skulls and, 1062defined, 1063divisible harm, 1067multiple necessary causes, 1075, 1137psychological harm and, 1082successive auto-accidents, 1079thin skull rule and, 1068, 1073, 1083

sufficient causesadditional culpable cause, 1147additional non-culpable cause, 1156alternative causes, 1153contributory negligence, 1161culpable causes, 1147devaluation theory, 1150joint liability, 1151logical analysis, 1139non-culpable causes, 1156overtaking cause, 1153principles applicable to, 1139property damage compared, 1140simultaneous causes, 1148successive causes, 1149summary of, 1054

MULTIPLIER METHOD

assessment by, 82imprecision of, 74rejection of, 82

NECESSARY CAUSES

chance, loss of, 1087, 1110compensatory principle and, 1142crumbling skulls and, 1062divisible harm, 1067multiple necessary causes, 1075, 1137psychological harm and, 1082successive auto-accidents, 1149thin skull rule and, 1068, 1073, 1083

INDEX 1369

NEED

compensation compared, 10damages and, 10

NEGATIVE LOSSES

loss of working capacity and, 121positive losses compared, 120

NERVOUS SHOCK

causes of action, 1083future development, 1083remoteness of damage, 989, 1083

NET DISCOUNT FACTOR, See

DISCOUNT RATE

NEW ZEALAND COMPENSATION

SCHEME

history of, 21, 26

NO-FAULT SCHEMES

comprehensive, 21cost of, 21critical legal studies and, 58development of, 19erosion of, 23funding of, 26inflation and, 23medical error, for, 21rationale, 21sports injuries, for, 21structure of, 24

boundaries, 25causation, 26measure of relief, 28nature of deprivation, 26other schemes, relationships to, 30victim responsibility, 27

NOMINAL DAMAGES

availability of, 139practical uses of, 140quantification of, 141

NON-PECUNIARY BETTERMENT

generally, 792off-setting of, 792

NON-PECUNIARY LOSS

actio per quod and, 692aggravated damages, 757 See also

AGGRAVATED DAMAGESamenities, loss of, 688anxiety, 687cap on awards, 706capacity, loss of, 688classification of, 682compensatory principle and, 684consolation and, 683conventional sub-heads, 685cost of care and, 704 See also OVERLAP OF

HEADScurrent position of, 703distress, 682duration, loss of, 683enjoyment of life, loss of, 688expectation of life, loss of, 690faculties, loss of, 688fatal accident claims, 906, 988

denial of claim, 991history of, 988quantification of, 991right to claim, 988statutory provision for, 990

functional approach to, 701conceptual approach compared, 702explained, 703personal approach compared, 702policy behind, 706theory of, 701

generally, 681gross-up and, 649guidance, care and companionship, loss of, 692homemaking and, 744jury awards, 751

appellate review, 755judicial guidance and, 751

leisure activity, loss of, 690loss of amenities, 688mitigation losses, 687, 694overlap of heads, 743 See also OVERLAP OF

HEADSpain and suffering, 686past loss, 740psychological harm, 696, 734quantification of, 722

comparable awards, 729

INDEX1370

NON-PECUNIARY LOSS — continuedextent of loss, 722factors generally, 729functional assessment, 724global awards, 722inflation, 741judicial tariffs, 726modified functional method, 725period of loss, 736policy, 726solace, need for, 732strict functional method, 724

reduced need, 743reform of, 684scope of, 685sexual assault and, 748shortened life expectancy and, 705society and comfort, loss of, 698solace for, 683, 701spouses, by, 692survival actions, 1043

aggravated damages, 1051amenities, loss of, 1045expectation of life, loss of, 1046generally, 1043pain and suffering, 1044physical disfigurement, 1051quantification, 1050underpinning for, 1047

third party claims for, 692actio per quod, 692Alberta statute, 697Ontario statute, 694

unaware plaintiffs, 714history and, 716loss of amenities and, 717pain and suffering, 714principle, 714quantification, 738recent authority, 718

upper limit, 707devastating injury for, 707different injuries and, 710inflation and, 711judicial guidance, 707policy of, 708practical application, 709standard of living, increase in, 712

NOVUS ACTUS INTERVENIENS, SeeINTERVENING CAUSE

OFF-SETTING ADVANTAGES

avoided losses and, 804earnings increase, 804increased earnings, 804personal benefit, 803spare time increased, 804third party benefit, 805

ON-GOING EXPENSES, See COST OF

CARE

ONUS OF PROOF, See also PROOF OFDAMAGES

current position, 1085factual causation, 1086inferences, 1097past facts, 1094special damages and, 185

OPPORTUNITIES, LOSS OF, See LOSSOF EARNINGS; SIMPLEPROBABILITY; FACTUAL

CAUSATION

OPPORTUNITY COST

evaluation of homemaking loss, 262voluntary services and, 257

OPPORTUNITY TO MARRY, SeeSHARED FAMILY INCOME, LOSSOF

OUTSIDE INCOME

gross-up for tax and, 650

OVERLAP OF HEADS

cost of care and homemaking capacity, 781basic services, 781cost of care, subsumption under, 783family services, 782

cost of care and loss of working capacity, 769“additional expense” approach, 772approaches, 769basic necessities, meaning of, 777income level and, 779

family situation and, 779

INDEX 1371

OVERLAP OF HEADS — continuedperiod of loss and, 780

tax implications and, 780“total lifestyle” approach, 774variables, 778

cost of care and non-pecuniary loss, 785amenities, cost of, 787costs enhancing amenities, 788functional approach and, 787non-pecuniary betterment, 792purpose of heads, 789reduction of non-pecuniary loss, 786unaware plaintiffs, 792

homemaking capacity and, 781income expenditure categories of, 767

categories of, 767relevance of, 768

marginal cost and, 767non-pecuniary loss, 785overview of award and, 766reduced need, 800 See also REDUCED NEEDspecial damages and, 769summary of, 766women’s earnings and, 434working capacity and non-pecuniary loss, 793

amenities, cost of, 796charitable work, 793homemaking and recreation, 793increased life expectancy, 795interdependent relationship, loss of, 799recreation and work, 793stress of working, 794

OVERTIME WORK

future loss of, 308special damages and, 202

PAIN AND SUFFERING, SeeNON-PECUNIARY LOSS

PARENTAL VISITS

claim for costs of, 192

PARENTS

fatal accident claims by, 977third party action by, 977

PARTIAL LOSS OF EARNINGS, SeeLOSS OF EARNINGS

PART-TIME WORK

children and, 361future loss of, 361

PAST FACTS

proof of, 1094

PECUNIARY LOSS, See also COST OFCARE; LOSS OF HOMEMAKINGCAPACITY; LOSS OF EARNINGS;SHARED FAMILY INCOME, LOSS

OF; SPECIAL DAMAGESclassifications under, 178, 907functional approach to, 1046non-pecuniary loss and, 907social burden and, 914

PENSIONS

collateral benefits and, 809fatal accident claims, 939 See also FATAL

ACCIDENT CLAIMSloss of, 340 See also FRINGE BENEFITS

PERIOD OF LOSS

cost of care, 625duration of expense, 631fixed life-expectancy, calculation by, 629initial capital outlay, 626life-stages and, 632on-going expenses, 629post-accident life expectancy, 625, 630segmentation and, 633shortened life expectancy, 633year-by-year calculation, 631

fatal accident claims, 521evidence, 521

homemaking capacity, loss of, 496interdependent relationship, loss of, 496loss of working capacity, 486

average earnings method, 491compensatory principle and, 504history, 500homemaking and interdependent relation-

ship, 496life expectancy tables, 491life-segments, calculation by, 495

INDEX1372

PERIOD OF LOSS — continuedmortality tables, 492pensions, effect of, 488 See also FRINGE

BENEFITSpermanent incapacity, 489short-term loss, 487summary of current law, 498theoretical underpinnings, 503working life expectancy, 488year-by-year method, 495

lost years, 497 See also LOST YEARSnon-pecuniary loss, 736

PERIODIC PAYMENTS

arguments for, 69court-awarded, 69lump sums compared, 69rejected, 69

PERSONAL APPROACH

non-pecuniary loss and, 683

PERSONAL EXPENSES, See OVERLAPOF HEADS; LOST YEARS

PERSONALITY CHANGE

thin skull rule and, 1207

PERSPECTIVES, SeeJURISPRUDENTIAL THEORY

PLEADING

flexibility in, 184special damages and, 182traditional rules, 182

POSITIVE LOSSES

negative losses compared, 120

POSSIBILITIES, See SIMPLE

PROBABILITY

POST-INJURY EVENTS, See alsoEXTENT OF HARM; DUTY TOMITIGATE; THIN SKULL

extraordinary events, 1262foreseeability and, 1175, 1196intervening cause and, 1225plaintiff conduct

depression, 1251falls during recovery, 1248intentional aggravation, 1238suicide, 1251

summary of position, 1225theory, 1225third party conduct

criminal conduct, 1256family conduct, 1261medical negligence, 1257successive auto accidents, 1079

POST-JUDGMENT INTEREST, SeeINTEREST

POSTMODERNISM

critical legal studies and, 53description of, 53feminist analysis and, 54nihilism and, 56

POST-RETIREMENT EARNINGS, SeeFRINGE BENEFITS; FATALACCIDENT CLAIMS

PRE-EXISTING CONDITION, See THINSKULL RULE

PRE-JUDGMENT INTEREST, SeeINTEREST

PRE-TRIAL LOSS, See SPECIALDAMAGES

PRIVATE INSURANCE, SeeCOLLATERAL BENEFITS

PROBABILISTIC CAUSE, SeeFACTUAL CAUSATION

PRODUCTIVITY, See also DISCOUNTRATE

discount rate and, 358, 547general and personal productivity, 349, 552history of, 353inclusion of, 355increase in earnings, factors in, 349legislation and, 358meaning of, 349

INDEX 1373

PRODUCTIVITY, — continuedsummary, 349

PROFESSIONAL INCOME, See LOSS

OF EARNINGS; LOSS OF PROFITS

PROFITS, LOSS OF, See LOSS OFPROFITS

PROOF OF DAMAGES

assessment, difficulty of, 109balance of probabilities, 90

all-or-nothing, 107onus of proof, 93past facts and, 90simple probability contrasted, 95

fatal accidents and, 105policy issues, 107underlying principle, 85

PROVOCATION

nominal damages and, 27, 1312

PROXIMITY, See REMOTENESS OFDAMAGE

PSYCHOLOGICAL HARM, See NON-PECUNIARY LOSS

PSYCHOLOGICAL WELL-BEING

cost of care and, 9special damages and, 9

PUNITIVE DAMAGES, See

EXEMPLARY DAMAGES

RATE OF WITHDRAWAL

gross-up for tax and, 659

REAL WAGE INCREASES, See

PRODUCTIVITY

RECKLESS CONDUCT

fails during recovery, 1239intervening cause and, 1246

RECREATION

increased cost of, 610

REDUCED LIFE-EXPECTATION, SeeLOST YEARS

REDUCED NEED

children, cost of, 802earning costs of, 800

reduced expenses, 800taxation, lost years and, 801

family provision, cost of, 802homemaking capacity and, 802lost years and, 801reduced life expenditures, 801shared family income and, 802

REHABILITATION

no-fault schemes and, 19cost of, See COST OF CARE

REIMBURSEMENT OF THIRD PARTY,

See also>COLLATERAL BENEFITS;

THIRD PARTY CLAIMSexpenses and, 1008voluntary services and, 1008

RELATIVES

third party action by, 899

RELOCATION

cost of care and, 1037

REMARRIAGE

fatal accident cases, 908

REMOTE POSSIBILITIES, See alsoREMOTENESS OF DAMAGE

disregard of, 98

REMOTENESS OF DAMAGE, See alsoDUTY TO MITIGATE; EXTENT OFHARM; FORESEEABILITY

PRINCIPLE; INTERVENINGCAUSE; POST INJURY EVENTS;THIN SKULL RULE

breach of duty and, 1169concepts, summary of, 1168contract law, 1263

assumption of responsibility thesis, 1270history of, 1263integration with tort, 1279

INDEX1374

REMOTENESS OF DAMAGE, — contin-uedlikelihood of harm, 1269overall fairness, 1275psychological damage, 1279reasonable contemplation test, 1267risk allocation and, 1266special circumstances, 1273subsidiary rules, 1277underpinnings, 1265

duty of care and, 1170duty to mitigate, See DUTY TO MITIGATEextent of harm, See EXTENT OF HARMforeseeability principle, 1173 See also

FORESEEABILITY PRINCIPLEinterrelation of concepts, 1168intervening cause, See INTERVENING

CAUSElaw and fact, 1171post injury events, 1175 See also

POST-INJURY EVENTSpsychological harm, 1279thin skull, See THIN SKULL RULEtort and contract, 1279

REPLACEMENT COST

voluntary services and, 198

REPLACEMENT WORK, See LOSS OF

HOMEMAKING CAPACITY

RESTITUTION

compensatory principle and, 155

RETIREMENT AGE, See WORKING

LIFE EXPECTANCY

RETRAINING

loss of earnings and, 157

RIGHTS AND REMEDIES

breach, injury and loss, 2integration with remedies, 2relationship between, 2

RISK AS DAMAGE

factual causation and, 1093risk-creation, 1107

SEAT BELT DEFENCE

extent of harm and, 1204factual causation and, 1204

SECONDARY HOMEMAKING

claim for impairment of, 211

SECONDARY INCOME, See LOSS OFEARNINGS, LOSS OF PROFITS

SELF-EMPLOYMENT, See LOSS OFPROFITS

SEQUENCE LEADING TO INJURY

foreseeability of, 1188

SEXUAL ASSAULT

aggravated damages for, 749exemplary damages and, 138non-pecuniary loss and, 133, 684, 748pecuniary loss and, 133psychological harm and, 684, 1221thin skull and, 1221

SEXUAL HARASSMENT

causes of action for, 1307

SHABBY MILLIONAIRE

thin skull rule and, 1197

SHARED FAMILY INCOME, LOSS OF

fatal accident claims, 932benefit premiums, 935children, death of, 959cost of earning, 946cross-dependency and, 952dependency, value of, 946income, assessment of, 944fringe benefits and, 938illegal earnings, 940insurance premiums, 945pensions, dependency on, 939period of loss, 957personal expenses, deduction of, 948post-retirement income and, 954quantification method, 917spouse, dependency of, 916taxation and, 944two-income families, 951

INDEX 1375

SHARED FAMILY INCOME, LOSS OF

— continuedundeclared income, 942

personal injury claims, 743components of, 142cost reductions, 17integration of sub-heads, 743overlap, 743quantification, 743special damages and, 123

SHAREHOLDER LOSSES, See LOSS OFPROFITS

SHORTENED LIFE EXPECTATION,

See COST OF CARE; LOST YEARS;

LOSS OF EXPECTATION OF LIFE;NON-PECUNIARY LOSS

SICK LEAVE ENTITLEMENTS, LOSS

OF

claim for, 339, 854

SIMPLE PROBABILITY, See alsoPROOF OF DAMAGES

actuarial method and, 80

SOCIAL BURDEN

cost of care and, 570damages awards and, 570non-pecuniary loss and, 120, 145, 160pecuniary loss and, 120

SOCIETY AND COMFORT, LOSS OF

fatal accident claims, 698, 898 See alsoFATAL ACCIDENT CLAIMS

third party claim for, 282

SOLACE, See NON-PECUNIARY LOSS

SPARE TIME

off-setting advantages and, 804

SPARE-TIME WORK

future loss of, 312partial loss of earnings and, 912special damages claim, 912

SPECIAL DAMAGES

business losses, 216 See also LOSS OFPROFITS

classification of, 177pre-trial pecuniary loss, 178uncertain pre-trial loss, 179

commission income, 213compensatory principle and, 189contingencies, 225 See also

CONTINGENCIEScorporate dividends, loss of, 216 See also

LOSS OF PROFITScost of care, 230

cultural difference, 234counselling, cost of, 236home adjustments, 240hospitalization, 236household and living expenses, 240limits of claim, 239medical expenses, 236range of expenses, 231reasonableness, 230, 232spare-time activity costs, 241subjectivity, 234thin skull and, 166-168 See also THIN

SKULL RULEtravel for health care, 238unusual expenses, 236

expenses, 247fatal accidents, 908, 928

expenses generally, 928funeral expenses, 930grief counselling, 928overview, 928voluntary services, 931

intervening cause and, See INTERVENINGCAUSE

loss of earnings, 199basic calculation, 199contingencies, 200 See also

CONTINGENCIESduty to mitigate, 204 See also DUTY TO

MITIGATEfringe benefits, 201gratuities, 201increase in earnings, 200interdependent relationship, loss of, 204overtime work, 202partial loss, 199

INDEX1376

SPECIAL DAMAGES — continuedseasonal earnings, 203

loss of homemaking capacity, 206difficulty in performing tasks, 207itemization of, 209non-pecuniary loss and, 209pain and discomfort, 208pecuniary loss, 209quantification of, 211replacement labour, 212secondary homemaking, 211spare-time work, 211tutoring children, 965unperformed tasks, 208

loss of profits, See LOSS OF PROFITSsurvival claims, 1021, 1028third party claims, 268

employers, 275parents, 274relatives, 275spouses, 268

voluntary services, 242catalogue of services, 255general position, 242historical gender-bias, 243opportunity cost, 257overlap and, 245quantification of claim, 254replacement cost, 256trust for third party, 265victim’s personal claim, 247

SPECULATIVE POSSIBILITIES

disregard of, 97, 1126, 1318fatal accident cases, 942

SPOUSE, ACTION BY, See THIRDPARTY CLAIMS

STACKING

gross-up for tax and, 665

STATISTICAL EVIDENCE, See alsoACTUARIAL ASSESSMENT

actuarial method and, 420future trends and, 421homemaking capacity and, 423reliability of, 422

STATUTORY DISCOUNT RATES

loss of earnings and, 358productivity and, 553

STRICT LIABILITY

remoteness of damage and, 1192

STRUCTURED AWARDS

arguments for, 62court-awarded, 62lump sums compared, 62rejected, 63tax gross-up and, 66

STRUCTURED SETTLEMENTS

advantages of, 69nature of, 69

STUDENTS

loss of earning for, See CHILDREN

SUBROGATION, See COLLATERALBENEFITS

SUBSTITUTE HOMEMAKER

evaluation of homemaking loss, 457

SUFFERING, See NON-PECUNIARYLOSS

SUFFICIENT CAUSE, See FACTUAL

CAUSATION

SUICIDE

post-accident, 1251

SURVIVAL ACTIONS

actions against estates, 1023actions by estates, 1025

heads of damages, 1027overview, 1025

aggravated damages, 1051cost of care, 1036

deceased’s expenses, 1036estate’s expenses, 1038funeral expenses, 1039subrogation, 1042third party expenses, 1041

estate, loss or gain of, 1029

INDEX 1377

SURVIVAL ACTIONS — continuedexemplary damages, 1023, 1028history, 1021loss of working capacity, 1030

future loss, 1031past loss, 1030

non-pecuniary loss, 1043amenities, loss of, 1045expectation of life, loss of, 1046generally, 1043history, 1047pain and suffering, 1044physical disfigurement, 1051quantification, 1050

unjust enrichment, 1029working capacity, loss of, 1030

post-death, 1031pre-death, 1030

SUSCEPTIBILITY TO INJURY, SeeTHIN SKULL RULE

TARIFF FOR DAMAGES

non-pecuniary loss and, 726

TAX EVASION, See ILLEGALEARNINGS

TAXATION

gross-up for,acceptance of, 649computer models and, 650contributory negligence and, 651cost of care and, 649difficulty of assessment, 650evidence regarding, 657fatal accident cases, 649generally, 649history of, 652homemaking capacity and, 650loss of earnings award, effect on, 654loss of interdependent relationship, 650management fee and, 650non-pecuniary loss and, 667rationale for, 655reform of, 677rounding out calculations, 676shared family income and, 780stacking and, 665

standardization of, 677variables, 659

basic necessities, 662future tax policy, 675infancy, 661inflation rate, 671initial capital outlay, 661interest on other heads, 667investment portfolio, 672outside income, 664rate of withdrawal, 663size of award, 662tax credits, 674third parties, 660

loss of earnings and, 390current law, 390history, 391rationale of, 396reform of, 394summary of position, 390

structured settlements and, 70

THEORY, See JURISPRUDENTIALTHEORY

THERAPY, See COST OF CARE;COUNSELLING, COST OF

THIN SKULL

cost of care and, 1214crumbling skulls, 1194cultural belief and, 1216duty to mitigate and, 859, 875-881 See also

DUTY TO MITIGATEemotional susceptibility, 1207extent of harm rule, 1194factual causation and, 1201family situation and, 1213foreseeability of, 1199intellectual susceptibility, 1211management fees and, 1212nature and scope, 1199physical susceptibility, 1205plaintiff responsibility for, 1204religious belief and, 1216seat belt defence and, 1204shabby millionaire, 1197socioeconomic situation and, 1213standard of proof, 1195

INDEX1378

THIRD PARTIES, See also THIRDPARTY CLAIMS

benefit to, off-setting of, 805gross-up and, 660

THIRD PARTY CLAIMS, See alsoCOLLATERAL BENEFITS; FATALACCIDENT CLAIMS; VOLUNTARY

SERVICESactio per quod, 692

constitutional validity, 693damages, 693nature and status, 692

employers, action by, 275non-pecuniary loss and, 692

actio per quod and, 692Alberta statute, 697Ontario statute, 694

parents, action by, 977relatives, action by, 694

damages, 694nature of claim, 694

statutory claim in Alberta, 697survival actions, 1041

“TOTAL LIFESTYLE” APPROACH

overlapping of heads and, 486

TRAVEL, COST OF

future cost of care, 609special damages, 609

TRESPASS TO THE PERSON

nominal damages for, 139

TRUST FOR THIRD PARTY

collateral benefits and, 885expenses and, 885voluntary services and, 885

TWO-INCOME FAMILIES

fatal accident claims and, 951

UNAWARE PLAINTIFFS, See also LOSTYEARS

non-pecuniary loss and, 714history and, 716loss of amenities and, 717pain and suffering, 714

principle, 714quantification, 738recent authority, 718

overlap of heads and, 743

UNCONSCIOUS PLAINTIFFS, SeeUNAWARE PLAINTIFFS

UNDER-ACHIEVERS

loss of working capacity and, 297

UNDERTAKING TO REPAY, SeeTRUST FOR THIRD PARTY

UNEMPLOYMENT, See also

COLLATERAL BENEFITSloss of working capacity where, 1031

UNEMPLOYMENT INSURANCE

BENEFITS, See COLLATERAL

BENEFITS

UNJUST ENRICHMENT

exemplary damages and, 136survival actions and, 1029

UNUSUAL EVENTS

intervening cause and, 1230

UPPER LIMIT, See NON-PECUNIARYLOSS

UNREPORTED INCOME, SeeILLEGAL EARNINGS

USE OF DAMAGES

cost of care and, 575

VALUABLE SERVICES, LOSS OF, SeeLOSS OF FAMILY WORK

VICISSITUDES OF LIFE, SeeCONTINGENCIES

VOLUNTARY SERVICES

acceptance of claim for, 243future cost of care and, 615

family and friends, 615

INDEX 1379

VOLUNTARY SERVICES — continuedgovernment agencies, 620voluntary organizations, 620

general position, 242historical gender-bias, 243overlap and, 245quantification of claim, 254

catalogue of services, 255compensatory principle, 254duty to mitigate, 255future cost of care, 615opportunity cost, 257replacement cost, 256

trust for third party, 265victim’s personal claim, 247

WAIVER OF SUBROGATION

collateral benefits and, 837

WEALTH, LOSS OF, See LOSS OFWEALTH

WELFARE PAYMENTS, SeeCOLLATERAL BENEFITS

WOMEN

loss of earnings, 403actuarial evidence, 420average earnings, measurement of, 423childcare, deduction of, 406compensatory principle, 408contingencies, 429cost of care and, 434earning capacity approach, 413girls, 374history of, 417integration of sub-heads, 405marriage, effect of, 405overlap of heads and, 434post-accident prognosis, 430poverty level approach, 418principled approach,419range of problems, 405reform of, 406relationships, impact of, 425

sociological background, 407statistical evidence, 420summary of position, 403young women, 374

loss of homemaking capacity, 435not exclusive to women, 437

loss of shared family income, 469cost reductions, 481history of claim, 473integration of sub-heads, 484nature of claim, 469off-setting gains, 481period of loss, 483permanent interdependent relationship, 476quantification, 478range of claim, 470recognition of claim, 473

WORKERS’ COMPENSATION

boundaries, 25causation, 26cost of, 21development of, 19measure of relief, 23nature of deprivation, 26other schemes, relationship to, 19rationale, 12structure of, 24victim responsibility, 27

WORKING CAPACITY, LOSS OF, SeeLOSS OF WORKING CAPACITY

WORKING LIFE EXPECTANCY

contingencies and, 491issue of fact, 491mortality tables, 491pensions, effect of, 491tables, stale-datedness of, 494

“YEAR-BY-YEAR” METHOD, See

ACTUARIAL ASSESSMENT

INDEX1380