DUPLICATION IN PERSONAL INJURY DAMAGES AWARDS

Abstract

In the trilogy, the Supreme Court of Canada dealt inconsistently with the problem of overlap between the care and earnings heads of damage. In Andrews and Thornton the court awarded the gross cost of care under the care head, and deducted for necessity expenses not caused by the tortfeasor under the earnings head. This is conceptually incorrect and it may make a significant difference to the size of the award. The approach in Teno may have been correct, but it is difficult to review or to apply correctly. This article suggests a "net cost of care" approach which should be adopted as a matter of law.