Written by David Lackman, Senior Counsel & Lawyer
Losing a loved one is never easy. As we work through grief and feelings of loss, we may try to comfort ourselves by thinking of a death being an end to suffering if a person had a lengthy illness, or perhaps to try to celebrate a long life or one lived to its fullest.
If a death is unexpected and someone leaves us “before their time,” it can be especially difficult to process our grief. And if the death came about due to another’s negligence, or was intentional, there is an added complication. A “wrongful death” is a fatality that occurs in circumstances where a party (an individual or institution) is alleged to have caused the death through a wrongful act, either negligent or intentional. In these circumstances there may be need for criminal and civil litigation in the interest of seeing justice done. While criminal cases look at an offense committed against the state and society, civil action considers damages done to an individual from the loss of a life. Courts can provide survivors with pecuniary (monetary) damages to acknowledge the very real financial loss felt when someone’s life is taken due to another person’s negligent or intentional actions. But the idea of seeking money damages for the emotional loss, and the loss of care, companionship and guidance, referred to as non-pecuniary loss, can make some people feel very uneasy. How on earth can we put a price on a life’s worth? The answer is simple – we can’t. Yet assigning non-pecuniary damages provides an important symbolic expression of the non-quantifiable aspects of a wrongful death.
The process
Be mindful of the general 2-year time limitation for launching legal actions for negligence claims. If a lawyer determines there is a sound basis to proceed with legal action – and importantly if there is an insurance fund or an estate against which to make a momentary claim – wrongful death cases proceed through various stages of litigation. First, pleadings are drafted. Part of this step involves assessing pecuniary damages for things such as loss of earned income or unpaid labour for dependants, funeral and burial expenses, and grief counselling or other related medical expenses. Once all parties involved are served with notice of the action, documentary and oral discoveries occur. This involves additional research and depositions to gather facts critical to assessing the case. Sometimes a case is relatively straightforward; for example, a medication error causing the death in an otherwise healthy patient. In other cases, there may be multiple factors that played a role in contributing to a death, and pinpointing the role of negligence in a death, or whether the negligent conduct was indeed the cause of the death, is more difficult. In these cases, expert witnesses may be sought to provide opinions to support a case. In certain jurisdictions mandatory mediation is set in advance of a pre-trial conference to settle issues. If mediation is unsuccessful, usually a judge uses the pretrial conference to attempt to settle the case or at least create a trial management plan. The case will then proceed to trial if necessary, either before a judge alone or a judge and jury.
Non-pecuniary damages
Whether at mediation or at trial, discussion of non-pecuniary damages will likely arise. It wasn’t all that long ago that a then-$15,000 deductible on Ontario Family Law non-pecuniary fatal claims was finally (and thankfully) removed. This deductible put significant downward pressure on these claims and practically wiped out claims by grandparents and grandchildren. As talks over these claims occur, it is important to remember that grieving is a long process and intense emotions may come to the surface. Thinking about putting a dollar value of a loved one’s life can bring about feelings of guilt or feelings of anger, particularly if a defendant is questioning your motivation. Remember that while a life is priceless, providing non-pecuniary damages is the legal system’s only means of symbolically honouring a survivor’s overall sense of loss. Asking for these damages, whatever they amount to, gives survivors a tangible reminder that their grief and loss is something to value when another person’s negligence (or intentional act) has taken something so precious from them. If you have experienced what you believe to be a wrongful death of a family member, please feel free to contact us to talk about how Gluckstein Lawyers can help you as you deal with your grief and rebuild your life after such a profound loss. It’s part of our commitment to full circle care. We can be reached at lackman@gluckstein.com.