Personal injury can cause major upheaval, both for the injured individual and for their family and friends. In the event that an individual suffers a serious injury or dies, the impact on his or her family is likely to be considerable.
Under British Columbia’s Family Compensation Act, when there is a death that is caused by another person’s wrongful act or negligence, the deceased’s family members may be entitled to pursue a claim for damages under the wrongful death laws. In this article, we examine the key points of the legislation, such as the type of death covered, who may be eligible for compensation, and how damages are determined.
Under the common law, there is no action for wrongful death. However, the Family Compensation Act allows certain family members to obtain compensation from the person responsible for the death.
Section 2 of the Family Compensation Act states:
If the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not resulted, have entitled the party injured to maintain an action and recover damages for it, any person, partnership or corporation which would have been liable if death had not resulted is liable in an action for damages, despite the death of the person injured, and although the death has been caused under circumstances that amount in law to an indictable offence.
In other words, if a person dies as a result of another individual’s wrongdoing, such that the person would have been entitled to take legal action and receive compensation had they not died, the individual, partnership or corporation that would have been at fault is responsible under the Family Compensation Act.
The proceedings need to be brought by the personal representative of the deceased, and there can only be one action. Those entitled to compensation are the spouse, parents and children of the deceased. Where there are multiple entitled family members, the amount recovered is divided amongst them.
Under the Family Compensation Act, a spouse is defined as the person married to the deceased at the time of death or the person who lived with the deceased in a marriage-like relationship for at least two years ending no earlier than one year before the death.
The definition of parent includes a grandparent and stepparent, and the definition of child includes a stepchild and a person to whom the deceased stood in the role of a parent. A stepparent is defined as a person who lives with the parent of a child as their spouse for not less than two years and who contributes to the support of the child for not less than one year.
Siblings and other family members do not have rights under the Family Compensation Act.
Damages under the Family Compensation Act are limited to pecuniary or economic losses only. This includes the actual financial benefit of which the family member has been deprived and the financial benefit which might reasonably be expected to accrue in the future if death had not occurred. However, compensation for grief or emotional distress following the tragic death of a family member is not recoverable.
The types of compensation that may be claimed include:
- Loss of financial support – to reflect the portion of the deceased’s earnings that would have been given to the claimant to support them.
- Loss of guidance – covers the loss of the pecuniary advantage that the claimant, usually a child, would have received from the continuing guidance of the deceased had they lived.
- Loss of inheritance – takes account of the fact that the claimant will receive a lower (or no) inheritance as a result of the death due to the reduced amount of time for the deceased to accumulate assets.
- Loss of household services – to compensate the claimant for the lost pecuniary benefit of household services provided to them in life by the deceased.
The Family Compensation Act also allows for the recovery of medical and hospital expenses and reasonable expenses of the funeral and disposal of the remains if they were incurred by a claimant.
The purpose of the Family Compensation Act is to place claimants in the economic position they would have occupied but for the wrongful death.
Damages can be very difficult to calculate and may require expert evidence. For example, any allowable damages for the death of a child are usually based on the parents’ possible future loss of financial support or household services. The calculation of damages requires the court to consider what the deceased child might have done in the distant future, which involves factoring in several contingencies.
Another factor in calculating damages is the possibility that the claimant would have replaced the deceased with another person who performs the same service or role. For example, as a general principle, if a surviving spouse now earns benefits from a new partner, these need to be deducted from an award of compensation because the purpose is to place the surviving spouse in the financial position they would have been in if the wrongful death did not occur.
Contact the Personal Injury Lawyers at Meridian Law Group for Exceptional Representation in Wrongful Death Claims
The knowledgeable personal injury lawyers at Meridian Law Group in Vancouver help families understand their rights under the Family Compensation Act and diligently pursue the maximum compensation possible for the wrongful death of loved ones. The firm provides innovative solutions and compelling advocacy for all manner of personal injury disputes.
Since 1988, Meridian Law Group has been synonymous with legal quality and excellence. Located in downtown Vancouver, the firm assists clients in West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. Meridian Law Group‘s experienced and effective litigators pay close attention to client concerns, are accessible at every stage of the litigation process, and consistently produce exceptional results for their clients. To schedule a confidential consultation to discuss your personal injury matter, please contact us online or call 604-687-2277.