Pulwicki v Primmum Insurance Company, 2013 ABQB 744

Court of Queen ’ s Bench of Alberta Citation: Pulwicki v Primmum Insurance Company, 2013 ABQB 744 Date: 20131216 Docket: 1101 00426 Registry: Calgary Between: Bonifacy Pulwicki, the Same Bonifacy Pulwicki In His Capacity As Personal Representative of the Estate of Malgorzata Pulwicki, Deceased, the Same Bonifacy Pulwicki Next Friend of Robert Pulwicki, an Infant, Alexandra Pulwicki and Julia Pulwicki Plaintiffs - and - Primmum Insurance Company Defendant _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice R.J.

Hall _________________________________________ ______________ [ 1 ] The Defendant issued a standard policy of automobile insurance which included an SEF 44 Family Protection Endorsement. It is acknowledged by the Defendant that that Endorsement responds to this claim. [ 2 ] On December 27 th , 2009, Christopher Rae was operating a stolen Ford F150 truck westbound on 20 th Avenue N.W. near the intersection of 10 th Street N.W. in the City of Calgary when he went through a red light at the intersection and drove into the driver’s side of the Pulwickis’ Saturn vehicle. Robert Pulwicki was driving the Saturn.

His father, Mr. Pulwicki, was in the front passenger seat, and his mother, Mrs. Pulwicki was in the driver’s side rear passenger seat of the Saturn. Mrs. Pulwicki was wearing a seat belt at the time of the accident. Mrs. Pulwicki was tragically killed in this accident. Robert and Mr. Pulwicki each suffered personal injuries in the

accident. [ 3 ] The Pulwickis sued Mr. Rae, who failed to defend the action. Accordingly, the defence of the action was taken up by the Motor Vehicle Accident Claims Fund. That Fund has paid the maximum allowed under its legislation, of $200,000.00 plus costs of that action. [ 4 ] It has been agreed by the parties that Mr.

Pulwicki’s damages are to be valued at $15,000.00; Robert Pulwicki’s damages are to be valued at $17,500.00; Special Damages are valued at $13,818.27. [ 5 ] In addition, pursuant to s 8 of the Fatal Accidents Act, bereavement amounts are payable to each of the surviving Plaintiffs as follows: To Mr. Bonifacy Pulwicki $75,000.00; To Alexandra Pulwicki $45,000.00; To Julia Pulwicki $45,000.00; To Robert Pulwicki $45,000.00. [ 6 ] The total of the agreed damages is $255,818.27.

Of this amount, the Motor Vehicle Accident Claims Fund has paid $200,000.00, leaving $55,818.27 payable by the Defendant pursuant to SEF 44 Endorsement with respect to the agreed damages. Matters in Issue [ 7 ] However, the parties have not agreed upon the value of the loss of support to the Pulwicki family arising from Mrs. Pulwicki’s death; nor have they have agreed on the value of loss of household services which would have been provided by Mrs. Pulwicki had she not been killed in the accident. Those are the two issues before this Court.

Witnesses [ 8 ] All of the surviving Pulwicki family members gave evidence for the Plaintiffs at trial, as did Dr. Mark Sosnowski, long-time family physician for the Pulwicki family. I qualified Dr. Sosnowski as an expert in family medicine, entitled to give opinion evidence with respect to the health of both Mr. and Mrs. Pulwicki during the time they were in his care. Dr. Sosnowski continues to be the family physician for Mr. Pulwicki at this time. [ 9 ] In addition, Ms.

Kelly Rathje gave evidence on behalf of the Plaintiffs, and I qualified her as an expert in economics, entitled to give opinion evidence on calculation of dependency claims, including loss of income and loss of housekeeping services in fatal accident scenarios. While Ms. Rathje had only given expert evidence twice in the Court of Queen’s Bench of Alberta, she testified that she has worked on 1200 personal injury damage claims, of which maybe 40 to 50 percent involved fatal accidents. [ 10 ] The only defence witness called was Mr. Darren Benning.

I similarly qualified him as an expert in economics, entitled to give opinion evidence with regard to the calculation of losses in fatal accident dependency claims. [ 11 ] From the evidence of the Pulwicki family, I have learned that Mrs. Pulwicki had a Masters of Science in Math and Computer Sciences while Mr. Pulwicki had a Masters of Science in Mechanical Engineering, which he then supplemented by taking computer programming courses. [ 12 ] Mr. and Mrs. Pulwicki met in their native Poland. They moved to England in 1979, then moved to Calgary in 1982.

They married in June of 1984 and their first child, Julia, was born in 1985. She was followed by Alexandra in 1991, and by Robert in 1995. [ 13 ] As at the close of trial, Julia was 28, Alexandra was 22, and Robert 18 years of age. [ 14 ] Mr. Pulwicki was employed in Calgary with Pan Canadian Petroleum Limited in 1983 and then Revelstoke Companies in 1984 and 1985, then with Thorne Riddell from 1985 to 1986, thereafter with Amerada Minerals Corp. in 1987, whereupon he undertook two years of training at SAIT obtaining his Computer Technology Diploma.

He worked for the Calgary Board of Education as a Programmer and Analyst from 1991 to 1997; with Telus Enterprise Solution Inc. in 2001 and 2002. He returned to University of Calgary to take a two year Web Developer Surf Certificate program. He worked as a contract developer at IBM from 2004 through 2005; at ATCO I-TECK from 2006 to 2008, and with IBM again from December 2008 to April 2009. After April, 2009, he earned no further employment income, due to health problems involving his spine and his hips. In November 2011 and March 2012, he had two hip replacements. He continues to complain of spine difficulties.

He presently receives a pension from the Canada Pension Plan, and also receives Old Age Security payments. The experts for each side have agreed that Mr. Pulwicki’s ongoing income should be assumed at $9,902.00 per annum, from those two sources, and I agree. [ 15 ] Mrs. Pulwicki commenced her employment in Calgary with Pan Canadian Petroleum as a Systems Support Analyst, where she worked from 1983 to 1992. In 1992 she changed positions to join the Calgary Regional Health Authority as an Analyst. She continued in that employment until the date of her unfortunate death.

No evidence was put forth to suggest that she had any intention of leaving that employment until whenever she retired. [ 16 ] As of the date of the accident, Mr. and Mrs. Pulwicki had been married for more than 25 years. They had put their two daughters through University. Julia obtained an Honours Bachelor of Science Degree in Astrophysics in 2008 and was enrolled in the

PhD program at the University of Calgary studying Theoretical Physics. Alexandra was enrolled in a Bachelor of Science program studying Environmental Science with a concentration in physics. Robert was in High School. [ 17 ] The evidence of the family is that education was very important within the Pulwicki family, and particularly at the urging of Mrs. Pulwicki. Julia has gone onto her fifth year of a sixth year post graduate program to get her PhD. She moved from the family home in May 2011.

Alexandra is in her fifth year of her Bachelor of Science degree and intends to attend Glaciology and Polar Studies Program in Stockholm, Sweden after that degree is completed. Robert is in his second year of a Bachelor of Kinesiology Degree Program at the University of Calgary, intending to go on and obtain his physiotherapist qualification thereafter. [ 18 ] At the time of the accident, Mrs. Pulwicki was 58 years of age. As at the trial date, had she survived, she would be 62 years of age. The Experts Dr. Sosnowski [ 19 ] Dr.

Sosnowski is an accomplished and knowledgeable family physician, very familiar with the health histories of both Mr. and Mrs. Pulwicki. He was well prepared to give evidence, and his evidence was entirely reliable. With regard to Mrs. Pulwicki, he advised that she demonstrated increasing cholesterol levels starting from 1998, again discussed in his chart in 2003. In March of 2009 he spoke with Mrs. Pulwicki about taking medication for that high cholesterol, recommending that she take Crestor to lower her cholesterol.

His understanding is that while he had prescribed it, she was reluctant to commence it and had not commenced taking Crestor at the time of the accident. He had assessed her cardiovascular risk score and determined her risk was 11.7 percent which is in the moderate category which category ranges from 10 to 20 percent. In his opinion, she was essentially healthy, active and she exercised. He wasn’t worried that he needed to do anything beyond monitor her condition although he did note that her cardiovascular risk score rose from 3.4 percent in 1997 to 11.7 percent in March 2009.

In cross examination he noted that in 1999 she was complaining of arthritis pain in her hip, for which he had prescribed Arthrotec. He also sent her to a specialist, Dr. Fagneau, who did not feel that her marker for arthritis was significant. There was no evidence of ankylosing spondylitis, but Dr. Sosnowski did acknowledge that there was an increased risk. In October, 2007 he had noted that her blood pressure was slightly elevated, for which he had prescribed diet, loss of weight and at home monitoring. [ 20 ] In Dr. Sosnowski’s opinion, Mrs.

Pulwicki was in average health, for a person of her age, and had an average life expectancy. [ 21 ] Turning to Mr. Pulwicki, Dr. Sosnowski had prepared two reports detailing muscular skeletal issues. He said that Mr. Pulwicki had had problems in his back for so long as he had known him (since 1983), and that his problems became worse over time. In the 2000’s he developed osteoarthritis in his hips, which led to the two hip replacement surgeries previously mentioned. In October of 2009 Dr. Sosnowski had submitted a physician’s report to Service Canada accompanying an application by Mr.

Pulwicki for a disability pension. The pension request was denied by Service Canada, who advised that Mr. Pulwicki did not have enough earnings in contributions to qualify for CPP disability benefits. Nevertheless Dr. Sosnowski considered Mr. Pulwicki to be disabled, by his back problems, from further employment at that time. [ 22 ] From the evidence of Dr. Sosnowski, I conclude that Mr. Pulwicki was disabled from further employment by October of 2009 and certainly at the time of the motor vehicle accident. Mr.

Pulwicki was otherwise of reasonably good health and is to be considered to having an average life expectancy. Kelly Rathje [ 23 ] Ms. Rathje’s reports were well written and carefully considered. Her evidence was given in a frank and forthright manner and she explained the rationale for various differences in her approach and opinion as to the value of the loss of income and loss of household services suffered by the Pulwicki family suffered as a result of Mrs.

Pulwicki’s death. [ 24 ] There is nothing disingenuous in her report or her evidence; however, as brought out in cross examination, 70 to 80 percent of the cases where Ms. Rathje provides an opinion are requested on behalf of personal injury plaintiffs. Darren Benning [ 25 ] Mr. Benning has given expert opinion evidence approximately 11 times in Alberta courts and in British Columbia courts he estimates he has given evidence approximately 100 times.

He notes that the company by whom he is employed primarily provides defence expert opinion evidence in Alberta, but does more plaintiff work in British Columbia, so overall he estimates that he is retained to provide expert opinion evidence approximately equally by both plaintiffs and defendants. He states that he has done 4,000 to 5,000 assessments in his career, of which approximately 20 percent were fatality assessments. He acknowledges that nine out of the 11 cases in Alberta where he has testified were on behalf of the defendant.

However, in British Columbia, he estimates that 90 percent of the cases in which he has testified have been on behalf of plaintiffs. [ 26 ] Mr. Benning’s reports were detailed and carefully considered, and his evidence was also delivered in a forthright manner. [ 27 ] What appears from the foregoing is that each of the experts are well qualified and knowledgeable individuals. However, on certain key assumptions or rationales, the two experts significantly differ. What follows is identification of the areas of dispute, and my findings in respect of them.

Loss of Income Dependency Pre Accident Income [ 28 ] In order to calculate the loss of income dependency, a finding first has to made as to what pattern Mrs. Pulwicki's income would have followed, had it not been for the motor vehicle accident. Both economists assume Mrs. Pulwicki would have continued at her present employment, an assumption which I accept. [ 29 ] Both economists look to Mrs. Pulwicki’s income history from 2003 to 2009 to determine an average income for purposes of going forward. After applying various assumptions and analyses, Ms. Rathje projected Mrs.

Pulwicki’s annualized before tax income at $114,181.00. Mr. Benning used $104,775.00. To arrive at her number, Ms. Rathje added back into Mrs. Pulwicki’s pre accident income the amounts which she had paid out of that income to purchase RRSP’s. Mr. Benning argued that to be inappropriate and noted that Ms.

Rathje failed, in her future projections, to take into effect the taxes that would have to be paid when those RRSP’s were later brought back into income. [ 30 ] On this subject, guidance can be obtained from reviewing the decision of this court in Palmquist v Ziegler [2010] ABQB 337, a case where the plaintiff’s economists had treated the issue of RRSP contribution being added in in a similar fashion as they have herein.

Justice Reid stated, at para 254: This seems illogical given that RRSP’s are normally withdrawn during retirement at a time when the children would be independent and must be assumed to be used for the day to day living expenses of the retiree and his surviving spouse. Because of the uncertainty respecting what would have occurred in the future in respect to RRSP contributions and the difficulty in modeling the many assumptions, as pointed out by Mr.

Taunton, in my view, the possibility of RRSP contribution and the effect this would have on the PCR used, is so difficult to determine that the best course of action is to simply ignore potential RRSP contributions. [ 31 ] I agree with that finding and state that Mrs. Pulwicki’s income is not to be grossed up by the amount of RRSP contributions made annually by her; nor is any calculation of the effect of income tax on the RRSP contributions when they are withdrawn to be taken into consideration. [ 32 ] Because of Mrs. Pulwicki’s death, all of her RRSP’s have now been rolled over to Mr. Pulwicki. Mr.

Pulwicki will receive, over the course of time, all of the value of the RRSPs after income tax is deducted and paid. That is a greater amount than he would have realized if Mrs. Pulwicki survived, since a portion of her RRSP would have been used for Mrs. Pulwicki’s personal benefit, had she survived. Mr. Benning argues that $4,500 per year should be deducted from Mr. Pulwicki’s loss to account for that. I disagree. The RRSP is a capital asset, not income. The Court is charged with calculating loss of income. If Mr. and Mrs.

Pulwicki had the foresight of creating savings in RRSP’s they did so with the intention of utilizing those savings later on, either to the benefit of both of them or to the benefit of the survivor. Such benefit arises not as a result of Mrs. Pulwicki’s unfortunate date, but rather as a result of good forward planning by the Pulwicki’s. The fact that Mr. and Mrs. Pulwicki saved for their future by purchasing RRSP’s is not to be turned into a saving to Mr. Pulwicki from his loss. No deduction from the loss is allowed on this heading. [ 33 ] Ms. Rathje increased her estimate of Mrs.

Pulwicki’s income by 11 percent in order to make allowance for non-wage (fringe) benefits. Mr. Benning, acknowledges that, with respect to Mrs. Pulwicki’s private pension benefits, such fringe benefits should be added into Mrs. Pulwicki’s assumed income, although that contingency should not be applied during the working years, but rather used to estimate pension benefits for the subsequent years. With regards to other non-wage benefits, such as dental or health care plans, Mr.

Benning maintains that such benefits should not be added in, as there is no reliable evidence whether or to what extent they would be used. [ 34 ] Mrs. Rathje estimated the non-wage pension benefits to be 7 percent of the total 11 percent that she added in. I accept that as being a reasonable estimation of the non-wage pension benefits. They are to be calculated in the manner described by Mr. Benning, that is by estimating pension benefits for the post-accident years. The remaining 4 per cent is not be included.

Negative Contingencies [ 35 ] There are then a number of negative contingencies to be considered by the court. They are as follows: Unemployment / Part Time / Part Year / Disability [ 36 ] Ms. Rathje provided various calculations based upon a variety of unemployment assumptions, such that a calculation of loss can be made dependent upon whether the court finds ages of retirement from age 62 to age 66. Ms. Rathje acknowledges that the average retirement age for a person employed in a position such as was Mrs. Pulwicki is age 60. However, she has presumed that Mrs.

Pulwicki would not have been retired at the time of trial. She leaves it to the Court to decide the age at which she would retire, noting that Robert was likely to remain living at home and be supported by his mother and father until he completed his degree at age 23, which would make Mrs. Pulwicki 66 at that time. [ 37 ] Ms. Rathje then applies a disability contingency to recognize the possibility that Mrs. Pulwicki might have become disabled from working to the date of retirement. [ 38 ] Mr. Benning noted that Mrs.

Pulwicki’s employer, Alberta Health Services, indicated in January, 2013 its intention to cut spending by $185 million dollars over the next year. In his opinion, unemployment, part time and part year employment contingencies should be calculated by using 2006 census data applicable to Alberta females who have completed a Masters Degree, organized by five year age cohorts. Mr. Benning does not apply a disability contingency because the contingencies he does apply would include those

occasioned by disability. [ 39 ] The Court is not to ignore evidence of this family and their particular circumstances. In that regard, the Court accepts that Mrs. Pulwicki would not have become voluntarily unemployed nor worked voluntarily part-time or part-year until her son, Robert, had completed his first degree at age 23. Her presumed retirement age is therefore set at 66 years old. The Court also, however, cannot ignore the contingency that Mrs.

Pulwicki may have become unemployed, not as a result of her own decision, but as a result of economic forces beyond her control, such as forced early retirement, or forced reduction of work hours, or disability. [ 40 ] Unfortunately, as I understand the evidence, the statistics do not allow for a calculation of the non-voluntary unemployment or non-voluntary part-time or part-year contingencies. They simply provide percentages, without delving into the reasons for such unemployment, part-time or part-year work.

If I am incorrect in that understanding, then the economists are to calculate the contingencies of nonvoluntary unemployment, part-time or part-year work using the most current available statistics most applicable to Mrs. Pulwicki. If, however, such calculation cannot be done, then the contingencies assumed by Mr. Benning on this score will be reduced (somewhat arbitrarily) by 50 percent in an effort to recognize that there was no reasonable likelihood that Mrs.

Pulwicki would have voluntarily retired or voluntarily assumed part-time or part-year employment. [ 41 ] These contingencies are to be calculated from the date of the accident. Mortality Contingency [ 42 ] The mortality contingency is to be applied from the date of the accident. Divorce/Remarriage Contingency [ 43 ] There is no indication in the evidence that Mr. and Mrs. Pulwicki were likely candidates for divorce. Nor is there any evidence that Mr.

Pulwicki intends or is likely to remarry. [ 44 ] Both economists have performed calculations either with or without the divorce and remarriage contingencies being applied. [ 45 ] Notwithstanding that each of divorce and remarriage was unlikely for the Pulwicki family, it cannot be said that they are impossibilities. Hence the need to apply contingencies, to take into account the reasonable possibility of such occurences. [ 46 ] I find that both the divorce and remarriage contingencies are to be applied. Real Interest Rate [ 47 ] Ms.

Rathje applied 12 different real interest rates in her report in order to convert future losses to a present value basis. She assumed a real interest rate of 1.8 percent per annum for the first three years, rising in subsequent years, to 3 percent by the fifteenth year. She bases that progressive interest rate on a study performed by the company by whom she is employed and set forth in an article, “ The Discount Rate Revisited” appearing in the 2006 edition of the company’s newsletter. Ms.

Rathje defends the sliding rate in her February 26 th , 2013 report, Exhibit 10 at some length, and notes that this approach has been adopted by this Court in Park v Heimbeckner , 2007 ABQB 386 , and in Vetter v Goodman 2007 ABQB 199 . [ 48 ] However, Mr. Benning argued for a 3.5 percent per annum discount rate to be applied across the board. He references the decision in Schmolzer v Higenbottam [2009] ABQB 522. There, Justice Romaine stated; (para 156): In my view, the year by year approach taken by Dr. Bruce is both too complex and too reliant upon certain assumptions.

A simple approach, which is to look at long term data and arrive at one single discount rate, is preferable where the loss of income projection extends over so many years. For these reasons I prefer the approach of Mr. Benning. [ 49 ] That reasoning was also used in Malinowski v Schneider [2010] ABQB 734; in Ward v Ward [2010] ABQB 654; and in Calahasen v Northern School Division No. 61 , [2012] ABQB 611. [ 50 ] Each approach has its frailties. The complexity of the graduated discount rate concerns me. I do not believe the Court can make such a determination based upon the niceties to which Ms.

Rathje makes reference. [ 51 ] However, I am also disturbed at a rate of 3.5 percent as proposed by Mr. Benning. I think that rate is excessive. [ 52 ] Accordingly, the real discount rate to be utilized in this calculation is to be 3 percent per annum, across the board. Productivity (Real Wage Growth) [ 53 ] Ms. Rathje assumed economy wide real wage growth of 1 percent per annum. Originally, Mr. Benning pegged that growth at .5 percent per annum. However, Mr.

Benning has since adjusted that assumption, based upon more current data, and now predicts real wage growth at .75 percent per annum. [ 54 ] I am prepared to accept Mr. Benning’s estimate of real wage growth at .75 percent per annum, based upon the most current information available. Cross Dependency or Sole Dependency

[55] Ms. Rathje argued in favour of calculating the dependency claim based upon the sole dependency model, where only Mrs.Pulwicki’s income would be considered and without regard to Mr. Pulwicki’s income. Mr. Benning, however, argued in favour of thecross-dependency methodology of calculation where the incomes of the husband and wife are added together and thereafter the portionwhich would have been used by the deceased is deducted from the total. [56] Where there were two income earners prior to the fatality, I consider that the cross dependency methodology is the correct oneto be utilized.

This has earlier been accepted as appropriate in Millott Estate v Reinhard, 2001 ABQB 1100; Labbee v Peters (AB KB), [1997] AJ 176; Matthews v Hostess Food Products Ltd. [2009] ABQB 14. The cross dependency method of calculationof loss should be considered as applicable where both the deceased and the surviving spouse were earning income at the time of death,and where the Court finds that they would have continued to do so thereafter, had the death not occurred. Rate of Dependency [57] Ms.

Rathje argues that she has determined that in the average case in which the dependents consist of a surviving spouse andthree dependent children, the total dependency will equal 72 percent for the surviving spouse, plus 4 percent for each surviving child.That provides for a total dependency of 84 percent while all three children are dependent; 80 percent when Mr. Pulwicki, Alexandra andRobert are dependent; 76 percent when Mr. Pulwicki and Robert are dependents; and 72 percent when only Mr. Pulwicki is dependent. [58] Mr.

Benning conducts his analysis using the survey of Household Spending in 2000 conducted by Statistics Canada whereeach typical expenditure of a family is broken into categories which would either be to the personal benefit of Mrs. Pulwicki, Mr.Pulwicki, Julia, Alexandra or Robert, or into a category classified as “indivisible” expenditures that benefit all members of the Pulwickihousehold. He relies upon a 2004 document prepared by the Manitoba Department of Agriculture and Food entitled “Family LivingCosts” in order to estimate the proportion of expenditures in the categories of food, clothing and personal care.

He details his reasoningfor other expenditures such as transportation, health care, recreation, reading materials, education, tobacco and alcohol, security and giftsand contributions. [59] I consider that Mr. Benning’s report makes too many estimates or assumptions in regard to the Pulwicki family to be reliable. [60] I consider Ms. Rathje’s calculation to be the more reasonable calculation of the two. [61] Accordingly the total dependency equals 72 percent for the surviving spouse plus 4 percent for each surviving child while that surviving child is dependent.

In Julia’s case, that dependency is agree to have ended on May 1st, 2011 when she moved out of the familyhome. In Alexandra and Robert’s case, it is assumed that neither will be dependent after they reach the age of 23. As each child ceases tobe dependent, the dependency for the remainder will be reduced by 4 percent. [62] For purposes of dividing the award amongst members of the family, I further accept the assumption put forth by Ms. Rathje,that when all three children and Mr.

Pulwicki are dependent, each child is entitled to 15 percent of the dependency figure, and Mr.Pulwicki is entitled to the remaining 55 percent. When two children and Mr. Pulwicki are dependent, each child is entitled to 20 percentof the dependency figure and Mr. Pulwicki is entitled to 60 percent; when one child and Mr. Pulwicki are dependent, the remainingdependent child is entitled to 25 percent of the dependency figure and Mr. Pulwicki is entitled to 75 percent. When only Mr. Pulwicki isdependent he is entitled to 100% of the dependency on Mrs. Pulwicki’s income.

Loss of Household Services [63] The surviving family members are entitled to be compensated for the loss of Mrs. Pulwicki’s household services due to herdeath. Each of the experts have calculated that loss of household services. Ms. Rathje utilized Statistics Canada’s publication entitled“As Time Goes By... Time Use of Canadians” and has summarized the average number of hours spent by females in each age group onhousehold chores. From those statistics she determined that a married female age 45 to 64 working full time works approximately 3.2hours per day on household chores.

A married female age 65 and above and not employed works 4.6 hours per day on family chores. Ms.Rathje estimates that 20 percent of Ms. Pulwicki’s household activities would have benefited her alone and therefore deducts that amountfrom the total statistical average above. [64] Ms. Rathje then seeks to replace those hours. She assumes that professional service providers would be 25 percent moreefficient than would Mrs. Pulwicki and therefore she allows only 75 percent of Ms. Pulwicki’s hours.

She applies rates between $25.90and $31.08 as being the cost of replacing these household services by hiring professional outside service providers, then adds in GST thatwould have to be paid for these replacement services. [65] Mr. Benning took a somewhat novel approach in this case. He considered the fact, that at the time of the accident, only Mrs.Pulwicki was employed, and Mr. Pulwicki was a “stay at home husband”. Mr. Benning says there are no reliable statistics to reflect thissituation. Mr.

Benning has put forth the proposition that, in such a situation, the roles of the parties are switched; and therefore, inestimating the amount of services that would be provided by Mrs. Pulwicki, he treated her as being the average employed male of herage, rather than the average employed female, up until age 65 (at which time Mr. Benning assumes Mrs. Pulwicki would be retired).From Mrs. Pulwicki’s age 65 onwards, he based his calculations on average services performed by a retired female. [66] Mr.

Benning assumed that individuals before retirement performed 30 percent of their housekeeping services for their ownexclusive benefit, and that after retirement, 40 percent of the domestic work and shopping/services is for their exclusive benefit. [67] Mr. Benning then arrives at the total number of hours, and then applies to those hours the average rate of pay earned byhomemakers, housekeepers, light duty cleaners, landscapers and ground maintenance labourers, as opposed to Ms. Rathje’s calculation

where she looked at the cost to the survivors of obtaining those services in the marketplace. [ 68 ] Mr. Benning proposes an hourly wage rate of $16.00 per hour to estimate the loss of household services to the surviving members of the Pulwicki family. Mr. Benning does not reduce the hours further for the efficiency, contemplated by Ms. Rathje, of having chores performed by a professional. [ 69 ] I am not prepared to consider Mrs. Pulwicki as doing the work of the average employed male, rather than that of the average employed female. It is correct that Mr. Pulwicki was at home. It is also to be noted that Mr.

Pulwicki suffered considerably from back and hip ailments which restricted his ability to perform various services. Further, I do not think it is appropriate to assume that a working woman with a husband at home would only provide the services usually provided by the working male. [ 70 ] As I indicated during Argument, I believe that the truth lies somewhere in between. [ 71 ] It is to be noted that the Pulwicki family have prepared an estimate whereby they came to the conclusion that Mrs. Pulwicki had been providing services of approximately 3 hours per day prior to her death.

Their estimates are based on their recollection of the services provided by Mrs. Pulwicki, and the time she spent on them. I am prepared to accept the family’s evidence in this case that Mrs. Pulwicki was performing household services of 3 hours per day, and would continue to do so until she retired. [ 72 ] I choose the mid point between Ms. Rathje and Mr. Benning and determine that 25% of those services were solely for the benefit of Mrs. Pulwicki and are therefore not to be considered to be the family’s loss. [ 73 ] Following upon Mrs. Pulwicki’s retirement, Ms. Rathje estimates that Mrs.

Pulwicki would devote 4.6 hours per day to household chores while Mr. Benning estimates she would spend 4.4 hours per day. Neither position recommends itself to me more than the other, and accordingly I set the number of hours that Mrs. Pulwicki would have devoted to household services after her retirement to be 4.5 hours per day. Because the children would no longer be living with the Pulwickis, I find that 35 percent of that work would be to the sole benefit of Mrs. Pulwicki and is therefore to be deducted. [ 74 ] I do not accept Ms.

Rathje’s proposal that the hours be further reduced by 25 percent based on the increased efficiency of having the work performed by professionals; nor do I accept the replacement cost estimates to value the hours of service provided by Mrs. Pulwicki. [ 75 ] Rather, all of the hours that Mrs. Pulwicki would have spent providing household services, after deduction of the percentages relating solely to her own benefit are to be allowed, at a wage commensurate with that paid to persons performing light duties. In that regard, I accept Mr. Benning’s estimate of $16.00 per hour. [ 76 ] Mrs.

Pulwicki’s services benefited each of the members of the family who continued to reside at home. I accept the proportions of that dependency of household services as put forth by Ms. Rathje. Tax Gross Up [ 77 ] Allowance is to be made for the taxes which the surviving spouse will have to pay on the investment income generated by a lump sum award. Consequently, the future loss of dependency awards need to be “grossed up” at the rate at which Mr. Pulwicki will pay taxes in the future.

The two economists differ as to whether it should be assumed the future awards should be invested exclusively in interest bearing securities or invested in a mixed portfolio consisting of both interest bearing securities and equities. [ 78 ] Mr. Pulwicki has demonstrated that he is already investing in a mixed portfolio. Accordingly, in this particular case, I find that the mixed portfolio investment scenario is the appropriate scenario for purposes of calculating the tax gross up.

Conclusion [ 79 ] The foregoing findings should allow for the appropriate calculation of the loss of income dependency and loss of household services dependency. The parties are directed to have their expert economists perform their calculations based upon the findings above.

If the economists can agree, then a Judgment Roll can be prepared, based upon totalling all of the agreed damages and the damages arrived at hereunder, and subtracting from the total, the $200,000.00 paid by the Motor Vehicle Accident Claims Fund, to arrive at the amount of judgment in favour of each of the Plaintiffs against the Defendant under the SEF 44 Endorsement.

Of course the Judgment amount cannot exceed the limits of coverage under the Endorsement. [ 80 ] If there continues to be disagreement between the economists, or if the parties require additional direction as to the calculation of these awards, they are to make further representations to me for my consideration. If my directions herein are incomplete for purposes of calculation of the damages, I reserve the right to complete them. [ 81 ] Costs of this action may be spoken to. Heard on the 6 th day of December, 2013.

Dated at the City of Calgary, Alberta this 16 th day of December, 2013. R.J. Hall J.C.Q.B.A. Appearances: Gary D. Braun First West Law LLP for the Plaintiffs Kimberley Bufton Parlee McLaws LLP for the Defendant