Wrongful Death Claim when a Family Member suffers Accidental and Preventable Death

Posted by Stevenson Whelton MacDonald & Swan
February 06, 2019

One of the families impacted by the tragic Humboldt Broncos bus crash recently announced that they are filing a wrongful death lawsuit against the driver of the tractor trailer truck, the trucking company and the manufacturer of the bus in which the young men were travelling.  The claim states that the driver only received two weeks of training and failed to stop at a stop sign during his first time driving the route.  The parents of the deceased young man say that their son’s death has caused them severe emotional distress, anxiety, anger and sadness, and undermines their ability to be productive.

In Ontario, the Family Law Act gives family members the right to sue an individual, or multiple persons, who caused the death of a loved one through their negligent action.  This type of lawsuit is referred to as a wrongful death claim, and any of the following relatives of the deceased person may initiate a wrongful death claim.

  • Children
  • A spouse
  • Parents
  • Grandchildren and grandparents
  • Siblings

The loss of a close family member is the most emotionally distressing event most of us suffer during our lives. In many circumstances, losing a loved one also places undue financial hardship on families.  And, in addition to the grief we suffer when a loved one passes away, the family members of an accident victim who suffered a sudden death often have a particularly difficult time coming to terms with their loss and feelings that the death was senseless and preventable

Certainly, no amount of money can make up for the accidental death of a loved one, and a wrongful death claim is not intended to place a monetary value on the emotional and psychological loss we suffer when a family member is fatally injured. However, under the Family Law Act, family members may seek compensation for the kinds of losses the deceased person would have been eligible to claim if they survived the accident.  The following damages may be claimed by family members in a wrongful death lawsuit:

  • Damages for the loss of companionship, care and guidance experienced by family members due to their loved one’s death.
  • Loss of financial contribution, including income, the deceased person would have provided. A dependant child and spouse may claim lost income that would have been earned by the deceased person if they had lived, based on the number of years of their dependency.
  • Expenses that were incurred on behalf of the deceased person
  • Funeral and burial expenses
  • Travel costs and out-of-pocket expenses incurred by family members when visiting the deceased person during their treatment or recovery
  • Any housekeeping or attendant care expenses provided by family members after the accident and before the victim died

A wrongful death claim may be brought as a result of a car accident, medical malpractice, boating accident or another incident caused by a negligent or careless action.  In Ontario, car accidents are the leading cause of accident death and accordingly, most wrongful death claims are brought as a result of car accidents, motorcycle accidents, pedestrian accidents and other negligent driving-related accidents.

Claiming damages for loss of companionship, care and guidance

In Fiddler v. Chiavetti (2010), a mother was awarded $125,000 when her daughter was fatally injured in a car accident.  This decision reflects the maximum amount of damages that Ontario Courts generally award for the loss of companionship, care and guidance.  However, in a landmark case, Vokes Estate v. Palmer (2012), the court awarded a 5-year-old and 2-year-old each $117,000 and $135,000 for loss of companionship, care and guidance after their mother was fatally injured in a car accident caused by a reckless driver,

A family member will not be awarded damages for loss of companionship, care and guidance unless the court believes they suffered a real loss.  Loss of care refers to any type of caregiving action no longer provided by the deceased person, such as cleaning, feeding, clothing and driving the family member.  Guidance refers to discipline, life teaching and other actions that provide guidance, and is generally provided by a parent or older person to a child or younger sibling.  Companionship involves the important benefits and joy that family members get from one another during long-term interactions and shared experiences.

Statutory Accident Benefits

In addition to filing a wrongful death lawsuit against the negligent party, when an accident victim suffered fatal injuries as a result of a car accident, surviving family members are entitled to make a claim against their vehicle insurance policy or the insurance policy of a driver involved in the accident.  'No fault' accident insurance claims can be made whether or not the deceased person was found to be responsible for the automobile accident.  These claims fall under the Statutory Accident Benefits Schedule (SABS) of Ontario's Insurance Act, which states that family members may claim the following death and funeral benefits:

  • Spouse’s benefit of $25,000
  • Dependents’ benefit of $10,000 for each defendant, in addition to splitting the $25,000 between dependants if the deceased person had no spouse
  • Funeral benefit of up to $6,000 to pay for funeral costs

Each of these benefits are on a standard policy but some policies carry an optional higher level of benefits.

At Stevenson Whelton MacDonald & Swan, we strive to provide compassionate support and representation for families who are struggling with the death of a loved one.  If you lost a family member as a result of another person’s negligence, our wrongful death lawyers can help you understand your legal rights and will apply our considerable experience in obtaining a successful outcome for your wrongful death claim.

Disclaimer: Our blog is intended to inform our existing and prospective clients about topics pertinent to their lives. While our goal is to provide accurate and factual information, this in no way should be taken as legal advice or applied to specific cases. It is in your best interest to contact a licenced and practising lawyer for legal representation, as matters of the law are often complicated and cannot be fully assessed without knowing all of the details of a case.