This memorandum solicits the reader’s views and comments on the following question: should a deceased person’s estate be entitled to claim damages from a wrongdoer for the loss of the deceased person’s chance at future earnings? It is desirable that the legislation make it clear either that the claim survives the wronged person’s death or that it does not. Three issues are open for comment. First, as a general rule, should a claim for damages for the loss of a chance of future earnings survive death? If the answer is no, should such a claim survive death if the death was caused by an intentional wrong, or should such a claim survive death if the plaintiff commences action in their lifetime? Third, does it make a difference whether or not the deceased person’s death was caused by the wrongful act which caused the loss of a chance of future earnings? This memorandum reviews the relevant common law, statutory reforms in Alberta, and statute law of other provinces and territories. Several policy arguments are put forth including the basic arguments for and against damages for loss of a chance of future earnings and that it should not be “cheaper to kill than to maim.”
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