Wrongful Death Claims

Yesterday I blogged about the Family Compensation Act of British Columbia which allows a spouse, parent, or child of a person whose death has been caused by the wrongful act negligence or default of another, to sue for compensation.

There are several heads of damages, and probably the largest in terms of pecuniary amount is that of loss of financial support.

The following cases are a brief summary of this head of damage:

In the decision Johnson v. Carter, 2007 BCSC 622, the court referred to some of the principles in the following paragraphs:

Here, the claim is for loss of financial support.

In Keizerv. Hanna, [1978] 2 S.C.R. 342, Dickson J. said the following at 351-52:

… The appellant is entitled to an award of such amount as will assure her the comforts and station in life which she would have enjoyed but for the untimely death of her husband. If one is speaking of contingencies, I think it is not unreasonable to give primary attention to the contingencies, and they are many, the occurrence of which would result in making the award, in the light of events, entirely inadequate. An assessment must be neither punitive nor influenced by sentimentality. It is largely an exercise of business judgment. The question is whether a stated amount of capital will provide, during the period in question, having regard to contingencies tending to increase or decrease the award, a monthly sum at least equal to that which might reasonably have been expected during the continued life of the deceased.

The conventional approach to determining an award for loss of future earnings is as follows:

1. A calculation is made of the income

which has been lost up to the date of the trial.

2. A calculation is made of the loss of

future earnings.

3. A reduction is then made for personal

consumption of the deceased.

4. Contingencies are reviewed to

determine if a further reduction is required.

[Cogar Estate v. Central Mountain Air Services Ltd.

(1992), 72 B.C.L.R. (2d) 292 (C.A.)]

 

Loss of support, like loss of future earning capacity, involves an inquiry into the unknowable:

Because damage awards are made as lump sums, an award for loss of future earning capacity must deal to some extent with the unknowable. The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458. Possibilities and probabilities, chances, opportunities, and risks must all be

considered, so long as they are a real and substantial possibility and not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen.

[Rosvoldv. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at [paragraph] 9]

[6] Our Court of Appeal in Brown v. Finch, 42 B.C.L.R. (3d) 116 also said at 1J3:

3. The basis upon which damages must be assessed is that stated by McFarlane J.A. in Cox v. Takahashi (1977), 5 B.C.L.R. 162 (B.C.C.A.) at 164:

It is well established that the measure of damages under the statute as interpreted by the Privy Council in Nance v. B.C. Bee. Ry., [1951] A.C. 601, 2 W.W.R. (N.S.) 665, [1951] 3 D.L.R. 705, is the pecuniary loss suffered by the dependants as a consequence of the death. That pecuniary loss is the actual financial benefit of which they have been deprived and includes financial benefit which might reasonably be expected to accrue in the future if the death had not occurred