A wrongful death claim is a civil action or lawsuit against a person whose negligent action caused the death of a loved one. Wrongful death claims may be brought by family members who experienced a financial and/or non-economic loss due to the death.
Among the financial losses that may be sought in a wrongful death claim are:
- the loss of income that the deceased person would have contributed to the family;
- death and funeral expenses;
- travel expenses when visiting the accident victim during their treatment; and
- income lost by a family member who was caring for the accident victim after they became injured.
Non-economic losses include compensation for the loss of guidance, care and companionship that the family member reasonably expected to receive if their loved one had not passed away.
Under Ontario’s Family Law Act, the following family members are entitled to sue a negligent party for wrongful death.
- Spouse or common law partner
Robins v. Wagar (2017) is a wrongful death lawsuit that arose after a 59-year-old woman was killed in a car accident. The defendant driver was uninsured, unlicensed, and impaired by alcohol, and was convicted of a criminal offence as a result of his actions. In this civil action, the accident victim’s husband, Mr. Robins, sought damages against the defendant pursuant to the Family Law Act, s. 61.
The circumstances of this case were enormously devastating for the plaintiff because he not only lost his life partner, but he also lost a wife who provided a tremendous amount of support and caregiving, which Mr. Robins relied on because he is legally blind and deaf in one ear. The plaintiff testified that his wife’s support allowed him to live as normal a life as possible, given his disabilities. In his action against the defendant driver, the plaintiff claimed damages for loss of care, guidance and companionship, as well as for past and future attendant care.
Justice Mew referenced the landmark trial, Fiddler v. Chiavetti (2010), for the upper limit to be awarded for loss of care, guidance and companionship. In Fiddler, the court awarded $125,000, however, judges commonly adjust this amount for inflation.
In order to determine the owed damages for attendant care in the current case, Justice Mew referred to Parsons Estate v. Guymer et al. (1998). Parsons Estate is a wrongful death case involving a recently-retired man who lost his wife in a car accident caused by a negligent driver, and then had a stroke four months after the accident. The stroke was not caused by the accident but as a result of the stroke, the man was unable to care for himself. In assessing damages in Parsons Estate, the judge evaluated the loss of the wife’s stroke-related care and how much it would cost to replace her as a caregiver, with the assumption that she would likely have provided both physical and managerial care to her disabled husband.
Justice Mew asserted that the circumstances of the current case are exceptional since the accident victim was effectively her husband’s caregiver. The plaintiff receives some help from his married daughter, but her support is limited since she works full-time and has a young family. The plaintiff also relies on an intervenor from the CNIB, who assists him with household chores and community activities 3 hours a week. However, it is expected that the plaintiff’s need for help will increase as he gets older.
An occupational therapist assessed the plaintiff’s attendant care needs and recommended three kinds of assistance: 1) personal care, such as grooming, dressing and other needs; 2) home maintenance, including help with cleaning, garbage and snow removal, lawn maintenance, home repairs, reading mail and financial management; and 3) community mobility, which includes transportation to medical appointments and to leisure and volunteer activities. The occupational therapist determined that the value of these activities is $130,681 annually until the age of 70, at which point it’s believed Mrs. Robins would have provided transportation assistance valued at $32,825 annually. However, the plaintiff’s lawyer acknowledged that the plaintiff has not, in fact, received all of these services for obvious economic reasons, and isn’t seeking an exact actuarial amount of damages. Nevertheless, if Mrs. Robins was still alive, she would have provided most or all of the services with which her husband requires assistance, and the plaintiff’s quality of life is severely diminished by his loss.
Justice Mew assessed the plaintiff’s damages as $390,000, based on three years at $130,681 per year. The plaintiff’s wife would have been 67 at the time of the trial, had she lived. And, the amount of damages is intended to reflect the services the plaintiff has been deprived of, as well as the care, guidance and companionship he could reasonably have expected to receive, but for the defendant’s negligence.
The judge found that the plaintiff is fully entitled to the $390,000, as this award does not involve ‘double recovery’ with respect to the $200,000 which the plaintiff already received from the insurer of the vehicle in which the deceased woman was a passenger. ($200,000 is the maximum available limit for uninsured motorist coverage, which is applicable in this case because the defendant was an uninsured driver.) The plaintiff also received $50,000 from other defendants in the case.
If you lost a family member in a car accident caused by a careless driver or as a result of another negligent action, you may be entitled to wrongful death damages. Talk to an experienced wrongful death lawyer at Kotak Law to find out how we can help.
|Call your trusted long term disability lawyers at 1-888-GOKOTAK or (416) 816-1500. Our consultation is free and we don't get paid until you do. We can meet you at our offices, a coffee shop, your home or a local court house. We can meet electronically though Skype, Zoom or WebEX. We represent disabled people throughout Ontario including Toronto, Mississauga, Brampton, Milton, Georgetown, Orangeville, Oakville, Burlington, Hamilton, St.Catharines, Niagara Falls, Stoney Creek, Kitchener/Waterloo, Cambridge, London, Windsor, Markham, Pickering, Oshawa, Peterborough, Keswick, Kingston, Ottawa, Guelph, Timmins and other locations.