Unfortunately, most people to do not realize that the loss of a loved one is compensable, but not in the range that you would imagine. It all started back with the Ontario Fatal Accidents Act, in 1911 and which remained in force until 1978 when it was replaced by the Family Law Reform Act. Section 61 of the (now Family Law Act), provides for general damages rising a wrongful death. At Haber & Associates we always request that a jury be present during wrongful death cases. Although, our courts guard against allowing sympathy to enter a courtroom, there is simply no way that a human being sitting on a jury will not be affected in a wrongful death case. The theme that we put together, as lawyers, are generally the relationships that existed between the deceased and you as our client. We try and show the jury how your life has changed since your family members death and what the compensable losses are.
The loss of a family member is not much different then how it is put forth in the legislation. The loss is characterized in a fatality case as loss of cared guidance and companionship. The awards are granted based on what the courts feel is fair and reasonable. If we can, we try to make the deceased person extra ordinary and try to show that their family members have suffered an unusually significant loss as result of the untimely death of their loved ones and thus, they are entitled to more damages. We try and do this because the law requires creative and innovative strategies that will consistently push the boundaries of what the range of damages are currently. We must as lawyers try and push the limits and edge up the recoverable compensation in these fatal cases.
We often try and use demonstrative evidence such as, videos and photographs of the deceased with their family and friends to create emotion and show that the deceased was a real person and there are people who do suffer because of their untimely death.
There is also a dependency loss which can be claimed which is the loss that is experienced by the survivors as a result of the loss of the deceased contribution to the family income over their lives. This was set in a case of Andrews v. Grand & Toy Alberta Limited. The judge in that case said, “What sort of career would the accident victim had. What were his prospects and potential prior to the accident. It is not loss of earnings but loss of earning capacity of which compensation must be made.”). Therefore, we present the dependency loss in a fatality claim as a loss of economics earnings. We must project the future income of the deceased and establish various assumptions. If the deceased was a young person we must try our best to establish a future career path and income stream that would have flown from it. A vocational expert is often used as well as an economist. We must look at the productivity gains of certain occupations given that wages are rising and will continue to rise in excess of mere predictable inflation. It is the best gage for a future economic loss, to look at the deceased history of employment. It is easier for a jury to base an award if there is stable past economic history. Contengencies are calculated in such as, divorce, reduced life expectancy and remarriage. There also maybe a pecuniary loss of a minor in relation to his or her dependency on a lost parent. If that minor was in receipt of child support then the Child Support Guidelines is a tool that we must use to quantify the child’s dependency loss. If the deceased was divorced than a remarriage contingency is generally applied to both, loss of dependency and loss of housekeeping. This however, is a statistical argument which often falls in the deceased spouse’s favour. The possibility, based on Stats Canada of remarriage after a spouse dies is currently only in the range of 16 percent. Most female widows that have been married for ten years or more do not remarry, similarly older widows over 40 are less likely to remarry.
There may also be a pecuniary loss for the survivor. This is also explored in Family Law Act claims. An alternate approach that we can take is a loss of economic opportunity. In this we address the pecuniary losses of a surviving family member. The setting of damages asserted in situations where it is extremely difficult but not impossible to calculate the surviving spouses future wage loss. The surviving spouse often has a difficult economic outlook that suffers either to increase family responsibilities or having their earning potential impacted in some other way.
In fatality claims we can also claim for household and child care services. Under the setting evidence asked that the surviving spouse’s time and interaction with the family will be quit relevant as well as obtaining some form of analysis of what the deceased contribution of the household was over and above the obvious pecuniary aspects.
If the deceased was to survive some time after an initial accident or injury the estate can make its own individual claim under the Trustee Act.
The estate can claim for pain and suffering before the deceased death. Lastly, in fatality claims, the case of McIntoire v Grigg [2006] O.J no. 4420 the Court of Appeal modified but upheld a punitive damage award against the defendant who was operating his motor vehicle after drinking excessively. The plaintiff suffered disastrous injuries after she was run over. The Court of Appeal allowed punitive damages because it found that the defendants conduct was to be deliberate and intentional and that he drank excessively before operating his motor vehicle. If you require anymore information with respect to a wrongful death or fatality claim, please do not hesitate to contact Matt Lalande at matt.lalande@haber-lawyer.com.