Axiak v Pezzano [No 2]

The appeal in *Axiak v Pezzano [No 2]* concerned the calculation of interest on a past loss of income award in a wrongful death claim. The appellant, the plaintiff, sought to recover damages for the death of her husband, Ivan James Ternovy, who was killed in a motor vehicle accident. The primary dispute revolved around whether interest awarded on the past loss of income should be calculated before or after a deduction for the dependency of the deceased's infant son.

The central legal issue before Sheller JA was whether the interest on the past loss of income should be calculated on the gross amount of that loss or on the net amount after the deduction for the infant's dependency. The appellant argued that the interest should be calculated on the gross amount, as the loss of income was a direct consequence of the deceased's death, and the dependency deduction was a separate consideration for the apportionment of the final award.

Sheller JA reasoned that the interest awarded on a past loss of income is intended to compensate for the loss of the use of that money from the time it would have been earned until judgment. The deduction for dependency, while relevant to the ultimate distribution of the award, does not alter the fact that the entire income would have been earned by the deceased had he lived. Therefore, the interest should be calculated on the gross amount of the past loss of income before the dependency deduction is applied. The court allowed the appeal, setting aside the verdict and judgment of the court below. In lieu thereof, a verdict and judgment was entered for the appellant in the sum of $1,439,586.25. Of this amount, $368,125.00 was apportioned for the benefit of the infant son, Jordan Dimitri Ternovy, to be paid into court and managed by the Public Trustee. The respondent was ordered to pay the appellant's costs of the proceedings below, save for costs thrown away by specific adjournments, and the appellant's costs of the appeal.