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Court Testimony from Experts @ BEC

Excerpt from Ferraiuolo v. Olson

[2002] ABQB No. 330, [Langston J., Judicial District of Lethbridge/Macleod]

With respect to the SAA claim, the judge ruled in favour of the methodology testified to by Ms. Brown in the amount of $39,000. The following excerpts are from Langston, J.'s decision:

[26] The plaintiff advances a claim under Section 5 of the Survival of Actions Act for lost earning capacity and relies on the trial and appellant decisions rendered in the matter of Duncan Estate v. Baddeley (2000) 192 D.L.R. (4th) 52.

[27] The approach adopted in that case can be summarized as follows: 1. Determine the lump sum value of the expected gross income of the deceased over the working life she would have had but for the accident. 2. Deduct from the gross income the income tax that would likely have been paid by the deceased appropriate to the level of predicted income, in order to determine the present lump sum value of her expected after tax income. 3. Deduct from the estimated "after tax" income a further amount to reflect the deceased's expected expenditures for her personal living expenses over her pre-accident working life expectancy; and 4. Deduct a further amount to reflect the contingencies inherent in predicting the deceased's life and earnings into the future.

[28] The assessment contemplates a time period equivalent to the "working life" of the deceased. By implication this suggests that the calculation would not go beyond a statistically established retirement age. While it may be argued that the case does not apply to retired individuals, it is clear that proposition has not been adopted by the Court (see Ratz Estate v. Fellman, Action number 9901-11742; 2001 ABQB 372). In that case Justice Kent determined that a 79 year old pensioner fell within the provisions of the Survival of Actions Act. I accept that compensation for lost earnings is not limited to employment income, but does include certain income from other sources. In Ratz the court determined that the CPP benefits were deferred income and therefore a compensable loss. Since the Old Age Pension was not based on contribution, nor was it tied to a pensioner's work history, it was not a loss to the deceased and therefore not recoverable. I accept this approach.

[29] Accordingly the deceased's Old Age Security income of $4,959.00 is not to be included in her income calculations. The pensions which the deceased received from Italy totalled $11,257.00 in 1998. The only evidence as to the nature of these pensions is that provided by the deceased's son who testified that they were contributory in nature. He had experience with this system since he resided in Italy prior to coming to Canada. I accept his evidence in this regard. Mrs. Ferraiuolo received her own pension and a survivor's pension. Each was the result of contributions made and therefore form the basis for a compensable loss. In my opinion $11,257.00 represents the most reliable figure upon which to base the calculation, since it is the income in the year preceding death. It is apparent that Mrs. Ferraiuolo paid little if any tax. Her expenses are detailed by her son who was in a position to give such evidence. However, it is clear from the budget tendered in evidence that, even recognizing the inclinations of his deceased mother, there is no allowance made for items such as clothing and personal care items. It is inconceivable that Mrs. Ferraiuolo would not have had such fundamental expenditures. I fix those additional expenditures at $55.00 per month. Her income, for the purposes of calculating the lost years, is the value of the combined Italian pensions of $11,257.00 annually or $938.00 monthly. Her total income, including Old Age Security was $16,200.00 or $1,350.00 per month. Her total living expenses were $600.00 per month. Accordingly Mrs. Ferraiuolo expended 44% of her total income on living expenses. For the purposes of this action I assume her lost years income of $11,257.00 and her non-lost years income of $4,959.00 contributed proportionately to her expenditures. Therefore the living expense deduction as it relates to the Italian pension income is 44% of $11, 257.00 or $412.00 per month. The monthly income from the Italian pensions is $938.00 per month. Therefore the surplus is $526.00 per month.

[30] Expert evidence was adduced by the plaintiff and defendant in relation to the calculation of the appropriate present day value of this claim. The defendant's approach, in my view did not address the facts as I have found them and I therefore prefer the methodology of the expert called by the plaintiff. That methodology mirrors the approach I have taken and differs only in respect to my view that Mrs. Ferraiuolo's expenditures should reflect an increase of $55.00 per month. In all other respects I accept the assumptions and conclusions of Ms. Brown.

[31] Ms. Brown testified that at the date of trial the total loss, in present dollars, would be $39,000.00 inclusive of pre-judgment interest. This sum is made up of a pre-trial loss of $18,500.00 and a future loss of $20,500.00. It is apparent that the extra $55.00 per month which I have attributed to Mrs. Ferraiuolo would make some minor modification to this opinion. However, given the 44% lost year deduction used by Ms. Brown, there would appear to be little real deviation in the result.