Wrongful Death Claims and The Family Compensation Act

Tegemann v. Pasemko 2007 BCSC 1062 is a good case example of the principles for compensation under the Family Compensation act of British Columbia.

In this particular case the deceased was a 50-year-old mother, who is survived by her husband aged 49 at the time of the accident, and two young children aged six and three at the same time.

The plaintiff based his claim under the following sections of the Family Compensation act:

Action for death by wrongful act, neglect or default

2 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.

Procedures for bringing action

3 (1) The action must be for the benefit of the spouse, parent or child of the
person whose death has been caused, and must be brought by and in the
name of the personal representative of the deceased.

The court or jury may give damages proportioned to the injury resulting from the death to the parties respectively for whose benefit the action has been brought.
The amount recovered, after deducting any costs not recovered from the defendant, must be divided among the parties in shares as the court or jury by their judgment or verdict directs.

In assessing damages any money paid or payable on the death of the deceased under any contract of assurance or insurance must not be taken into account.
In an action brought under this Act, damages may also be awarded for any of the following expenses if the expenses have been incurred by any of the parties for whom and for whose benefit the action is brought:

any medical or hospital expenses which would have been recoverable as damages by the person injured if death had not ensued;
reasonable expenses of the funeral and the disposal of the remains of the deceased person.

It is most noteworthy that the action may only be brought for the benefit of the spouse parent or child of the person whose death has been caused, and that it must be brought in the name of the personal representative of the deceased.

 

There are a number of heads of damages that can be claimed such as:

Loss of care, guidance and affection;
Loss of inheritance;
Loss of dependency;
Loss of household and childcare services;
Special damages.
Loss of financial support (usually the largest monetary claim)
loss of future earnings

Many of the heads of damages such as financial loss, are calculated with the assistance of actuaries and/or economists based on financial analysis of past income tax returns etc.

Needless to say it can be very complex to determine.

 

CONTINGENCIES OF LIFE

 

Once a judge reaches the various numbers of the heads of damages the judge often then takes into account the various contingencies of life such as the husband’s statistical chances for divorce and/or remarriage that should be deducted from such an award.

In this particular case the court deducted 20% of his calculation for loss of dependency, based on the reasonable expectation that the husband will remarry.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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