The Challenge of Quantifying the Loss of a Loved One in a Personal Injury Claim

How do you put a monetary value on the loss of companionship of one individual to another? This is the legal issue with which Justice Glass was faced in MacDonald v. Duncan. Following the death of their sister, Bernadette MacDonald, from a car accident, Martina and Mary MacDonald sued for liability compensation including loss of care, guidance and companionship under the Family Law Act.

Ontario's Family Law Act, 1990, is a statute that regulates the rights of family members with regard to communal property, inheritance, legal separations, prenuptial agreements and other legal family issues. The purpose of the law is essentially to encourage and strengthen the role of the family.

Case example

While the defense did not dispute liability and the sisters' entitlement to damages for loss of care, guidance and companionship, they differed on what that amount should be. Counsel for the plaintiff believed the MacDonald sisters were deserving of damages in the range of $50,000 to $70,000. However, the defendant's counsel argued that the sisters' situation did not fall within the considerations given in other cases involving the loss of a sibling and judged they were entitled only to damages within the range of $5,000 to $10,000.

Justice Glass considered the facts of the case, which included the background and nature of the relationship between the three sisters. Although the victim Bernadette MacDonald lived in Ontario and her two sisters lived in Nova Scotia, the three were very close and talked daily. None of the three sisters ever married or had any children and all entered into the teaching profession.

While Martina and Mary were retired, Bernadette was still teaching at the time of her death, but had been planning to retire when she turned 58. While not explicitly stated, Mary and Martina both seemed to believe that Bernadette was likely to move to Nova Scotia after retirement.

In his decision, Justice Glass first noted that the case was really about the loss of companionship and not care and/or guidance as neither of the sisters, who were both still in good health, needed their late sister to care for them and as the older sisters, they also did not need her to provide guidance and teaching.

Justice Glass' decision was based on the legal definition of the terms companionship, care and guidance according to the decisions in McIntyre v. Grigg, Thornborrow v. 0 MacKinnon and To v. Toronto Board of Education, respectively, which was as follows.

Companionship is defined as "the loss of the rewards of association which flow from the family relationship"; care is defined as "such things as feeding, clothing, cleaning, and transportation, helping and protecting another person"; and guidance is defined as "things, such as education, training, discipline and moral teaching, usually from older members of the family to the younger."

After considering the judgements of Robinson Estate v. Hogg and To v. Toronto Board of Education, Justice Glass ruled that the sisters were closer than most families and therefore, Mary and Martina were entitled to compensation in the amount of $35,000 each.

He acknowledged that the amount was an enhancement of what the Courts had traditionally awarded in the past. Justice Glass stated his reasoning for this was that the sisters had a closer than average relationship, beyond simply sending Christmas cards and the occasional conversation; they had maintained an incredibly close bond throughout their lives. Because of this bond, he believed that Martina and Mary were likely to greatly suffer the loss of Bernadette.

In Ontario, the maximum amount rewarded to-date for loss of guidance, care and companionship is $125,000, which was rewarded in Fiddler v. Chiavetti by the Court of Appeal to the mother of a girl killed in a car accident.

However, putting a price tag on the loss of a life is a very difficult task; there is clearly no monetary amount that can replace a person or heal the emotional and psychological distress experienced by surviving family members. Yet, Ontario courts are obligated to objectively assign a monetary value to this loss, on a case by case basis, as this is the only remedy available to the courts in a civil case.

In wrongful death claims under the Family Law Act, family members may be eligible to receive compensation for financial losses as well as an award for pain and suffering. Many family members choose to participate in grief counselling and other supportive activities that help them to deal with their loss.

In the Barrie area, there are many reputable grief counselling services available to parents, siblings and other family members who wish to avail themselves of these services.

At Gluckstein Personal Injury Lawyers, we understand how very difficult it can be to deal with the death of a loved one. Our empathetic staff has supported and advised many families in wrongful death claims or negligence suits after having lost a family member.

Gluckstein Lawyers can provide you with a free initial consultation to assess the facts of your case and help you to determine your best legal options for compensation. Please do not hesitate to call or visit us today if you or someone you love experienced serious or fatal injuries in an accident.