Assessment of Personal Injury Damages

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1 Assessment of Personal Injury Damages Fifth Edition Christopher J. Bruce, Ph.D. Kelly A. Rathje, M.A. Laura J. Weir, M.A. f LexisNexis*

2 Acknowledgments About the Authors Tables How to Use This Book v vii xvii xxiii Chapter 1: Personal Injury Excluding Cost of Care 1 I. Loss of Earnings Capacity 1 1. Earnings Stream If Accident Had Not Occurred 2 (a) Base Year Income 2 (b) Growth Rate of Income 7 (c) Positive Contingencies 8 (d) Negative Contingencies 11 (e) Retirement 14 (f) Forecasting Female Earnings 15 (g) Minors and Young Adults 16 (h) Self-employed Individuals 17 (i) Sample Calculation Earnings Stream After Accident Has Occurred 21 (a) Base Year Income 22 (b) Growth Rate of Income 23 (c) Positive Contingencies 23 (d) Negative Contingencies 23 (e) Retirement 24 (f) Loss of Earning Capacity 25 (g) Sample Calculation 25 II. Loss of Pension Income 26 III. Replacement of Household Services 27 IV. Calculation of Lump Sum Damages Calculation of the Pre-Trial Loss Calculation of the Lump Sum Value of the Future (Post-Trial) Loss 29 (a) Mortality Adjustment 29 (b) Calculation of the Lump Sum Loss 30 V. Impairment of Marital Prospects 37 VI. "Lost Years" 39 VII. Non-Pecuniary Damages ("Pain And Suffering") 43 Appendix: The "Multiplier" 45 Chapter 2: Personal Injury Cost of Care 49 I. Base Year Costs Non-Disabled Consumption Expenditures 50

3 2. Disabled Consumption Expenditures Medical Expenditures Goods and Services Tax 54 II. Growth Rate of Costs 54 III. Calculation of Lump Sum Damages Evaluation of Annual Costs of Care Duration of Expenditure/Life Expectancy Sample Calculation Without Income Tax "Gross Up" The Income Tax "Gross Up" 57 (a) Method of Calculation 57 (b) Determination of the Income Tax Rate 59 Chapter 3: Fatal Accident Claims 61 I. Earnings, Pensions and Household Services Earnings Stream Pensions Household Services 63 (a) Valuation of Services 63 (b) Two Legal Issues 63 II. The Dependency Dependency on Wage and Pension Income 64 (a) Dependency Rate 64 (b) Cross-Dependency versus Sole Dependency Dependency on Household Services 72 (a) Dependency Rate 72 (b) Cross-dependency versus Sole Dependency 73 III. Calculation of Lump Sum Damages Life Expectancy, Divorce and Remarriage Duration of the Children's Dependency Division of Income Among Family Members 77 IV. Losses of Estate and of Care, Guidance and Companionship Loss of Estate 78 (a) Stocks, Bonds, Registered Retirement Savings Plans (RRSPs) and Other Financial Investments 78 (b) Investments in a Business 79 (c) Consumption by the Deceased 79 (d) Housing and Other Physical Assets Loss of Care, Guidance and Companionship 80 V. Impact of Loss of Parent on Child's Earning Capacity 81 VI. Both Parents Have Been Killed 82 (a) Loss of Dependency 83 (b) Cost of Child Care 83 VII. Death of a Minor Loss of Valuable Services Loss of Dependency Loss of Care, Guidance and Support 85

4 xi 4. Negligent Infliction of Nervous Shock Negligent Infliction of Mental Suffering Loss of Pecuniary Benefit Hedonic Damages 87 Chapter 4: Base Year Earnings 89 I. Employed Adults 89 II. Minors Family Background 96 (a) Intelligence Quotient ("IQ") 96 (b) Education Earnings Parental Absence Due to Divorce or Death Summary 110 III. Young Adults Aspirations Early Work Experiences Other Factors 126 IV. Using Earnings Data for Males to Forecast the Earnings of Females 127 V. The Self-Employed Hire a Replacement Worker Sell the Business 134 (a) Estimating Annual Pre-accident Income 135 (b) Forecasting Post-accident Income Lease the Business's Assets Continue to Operate the Business without Replacement 138 VI. Other Special Cases Immigrants Aboriginals Alcoholics 150 Chapter 5: Rates of Growth of Earnings 153 I. Inflationary Increases 153 II. Industry-Wide and Economy-Wide Increases in "Real" Wages Economy-wide Changes in Productivity and Real Wages Occupation-specific Changes in Real Wages 157 (a) Measurement 158 (b) Theory Industry Wage Levels 158 (c) Evidence 160 (d) Conclusion 163 III. Individual Earning Patterns Education Occupation Sex Past Performance 172

5 xii TABLE OF CONTENTS IV. Promotional Advances 172 Chapter 6: Positive Contingencies 173 I. Fringe Benefits 173 II. Overtime and Shift Differential Pay 177 Chapter 7: Negative Contingencies 181 I. Labour Force Participation Rates Male Participation Rates Female Participation Rates 187 (a) Age 188 (b) Education 190 (c) Family Income/Marital Status 192 (d) Children 192 II. Long-Term Disability Wilkins and Adams Canada Pension Plan Workers' Compensation Boards 197 III. Unemployment Average Rates 199 (a) Age and Sex 199 (b) Education 202 (c) Occupation Individual-Specific Rates Employment Insurance Benefits 206 IV. Mortality 207 Chapter 8: Earnings Prospects of the Severely Disabled 209 I. Impact of Severity of Injury on Earnings: Canada, II. Spinal Cord Injuries Employment 214 (a) Severity 214 (b) Current Age 215 (c) Age at Injury 215 (d) Education 216 (e) Disability Payments 217 (f) Area of Residence 217 (g) Employment History 217 (h) Pre-injury Wage Education Income Problems When Seeking Employment Marital Status and Its Association with Employment and Earnings 222

6 xiii 6. The Use of Computers in the Workplace Summary 223 III. Visual Impairment 223 IV. Hearing Impairments 231 V. Brain Damage 238 VI. Back Injury 247 VII. Epilepsy 251 VIII. Amputation 255 IX. Burn Injuries 256 X. Arthritis 257 XL Concluding Comments 260 Chapter 9: Retirement 261 I. Retirement Ages in Canada 261 II. Studies of the Determinants of Retirement Age Pension Income Mandatory Retirement Employment Income Other Financial Considerations Ability to Work Occupation Education Retirement Decision of Spouse Summary 273 Chapter 10: Household Services 275 I. Three Theoretical Approaches Opportunity Cost Replacement Cost Housekeeper Summary 280 (a) Fatal Accident Full-time Housework 281 (b) Fatal Accident Part-time Housework 281 (c) Personal Injury Full-time Housework 282 (d) Personal Injury Part-time Housework 282 II. Hourly Cost of Household Services 282 III. Time Devoted to Household Services Analysis of Current Expenditures Recall Time Diary Survey Data 285 Chapter 11: Dependency Rates 293 I. Family-Specific Dependency Rates Dependencies by Category of Expenditure 293

7 xiv TABLE OF CONTENTS (a) Food 297 (b) Shelter 300 (c) Household Operation 300 (d) Household Furnishings 300 (e) Clothing 301 (f) Transportation 302 (g) Healthcare 302 (h) Personal Care 303 (i) Recreation 303 (j) Reading 304 (k) Education 304 (1) Tobacco and Alcohol 304 (m) Games of Chance 304 (n) Miscellaneous 304 (o) Personal Insurance Payments and Pension Contributions 305 (p) Gifts of Money and Contributions 306 (q) Money Flows Assets, Loans and Other Debts The Total Dependency Application of the Methodology to Specific Cases 311 II. General Dependency Rates 311 III. Children's Dependency When Both Parents Have Died Dependency on Parents' Income Child Care Costs 315 Chapter 12: Remarriage and Divorce 317 I. Remarriage Education Age at First Marriage Age at Separation Children Work Status Welfare Health Income Other Factors 324 II. Divorce Age at Marriage Education Earnings and Income Employment Number of Children Length of Marriage Religion Parents' Marital Status Time of Conception 333

8 XV 10. Job Loss and Disability Effects on the Stability of a Marriage Other Factors 334 Chapter 13: The Discount Rate 337 I. The Discount Rate The Real Rate of Interest Selection 338 (a) Secure 340 (b) Liquid 340 (c) Summary Historical Data Government of Canada Bonds Forecasting the Discount Rate 345 (a) Alternative Techniques 345 (b) A Caution 348 II. Management Fees 348 Appendix: Real Rate of Interest 351 Chapter 14: Experts 353 I. The Role of Expert Evidence 353 II. The Experts Doctors Rehabilitation Nurses Vocational and Rehabilitation Psychologists Home Economists Accountants Economists, Finance Experts and Industrial Relations Experts Actuaries Statisticians/Methodologists 360 III. Employing the Expert Identifying the Expert The Expert's Fees 362 (a) Retainer Fee 362 (b) Hourly Fee 362 (c) Expenses 363 (d) Payment Information Required by the Expert 364 (a) The Division of Responsibility Between Counsel and the Expert 364 (b) Information to be Provided by Counsel 367 IV. Expert Testimony The Expert's Report Qualifying the Expert 377 (a) Procedures for "Qualification" 377 (b) Standards of Qualification 377

9 xvi TABLE OF CONTENTS 3. The Examination-in-Chief Cross-examination 385 (a) Counsel 385 (b) The Expert Re-examination 389 Chapter 15: Structuring the Settlement 391 I. Alternative Methods of Disbursing the Award Capital Expenditures Investment in Financial Markets Structured Settlements 392 (a) Payment Period 393 (b) Determination of Payment Values 394 II. Structuring the Settlement Capital Expenditures Financial Markets versus Structured Settlements 395 (a) Advantages 395 (b) Disadvantages 396 III. Determination of the Plaintiffs Preferences Children Spouse Age Type of Disability 400 IV. Summary 400

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