Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97
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- Theory of Compensation
- Valuing the Dependency
- Non-Pecuniary Losses
Fatal AccidentsBasicsAt CL, no civil claim for fatal accidents. Deceased’s cause of action dies with them, and family members rarely have loss. Employers had actions for loss of employees, and husbands had actions for loss of wives, but that has all been overcome by legislation. Now, establishing a cause of action: you as a family member are not suing for the deceased’s loss on their behalf, but for your own loss as a survivor. What can be recovered? Compare different Acts.
Family members in particular have an expectation of support from other family members It’s possible to place quantifiable value on that: the economic value that you would have expected.
Who Can Recover?See Family Compensation Act: S. 1 – Definitions: "child" includes (a) a person to whom the deceased stood in the role of a parent, and (b) a person whose stepparent was the deceased; "parent" includes a grandparent and a stepparent; "person" means a natural person; "spouse" means a person who (a) was married to the deceased at the time of death, or (b) lived and cohabited with the deceased in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years ending no earlier than one year before the death; "stepparent" includes a person who lives with the parent of a child as the spouse of the parent for a period of not less than 2 years and who contributes to the support of the child for not less than one year. S. 2 – 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. (2) 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. (3) 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. (4) If there is no personal representative of the deceased, or, there is a personal representative but no action has been brought within 6 months after the death of the deceased person by the personal representative, the action may be brought by and in the name or names of all or any of the persons for whose benefit the action would have been if it had been brought by the personal representative. …. (8) 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. (9) 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: (a) any medical or hospital expenses which would have been recoverable as damages by the person injured if death had not ensued; (b) reasonable expenses of the funeral and the disposal of the remains of the deceased person. Child, spouse, cohabiting/marriage-like parties S. 2 overrules the common law. S. 3 allows for bringing an action in the name of a deceased for the benefit of family members The award is global, but damages are actually divided among survivors and calculated differently depending on who they are (children, spouses, etc.) The remedies side of this issue is valuing the dependency Valuing the DependencySee Keizer. Factors: Deceased’s likely income Deceased’s other monetizable contributions (e.g. housekeeping) Less tax on deceased’s income Less personal expenditure Contingencies affecting deceased Contingencies affecting survivors and period of dependency Discounted and tax gross-up
Grief, pain & suffering: not recoverable. Sort of. Courts have been broadening the meaning of pecuniary loss in these cases. No longer limited to ‘the loss of money’ now includes things that can be valued in money. Unpaid work in the home, etc., can now be recovered Loss of care, guidance, support Children’s claims These are considered pecuniary loss [McDonnel Estate (1997, BC)] Generally, awards are reduced as age of child increases [McDonnel] But not always – it depends on evidence [Bjornsen] May even be available for adult children where there is a special dependency of children on the parents, etc. Children typically diminish the wealth of a household, not increase it. Nevertheless, where a proven special relationship exists between a child and parent, courts may make awards to parents for loss of care, guidance, family support from a child. [See e.g. Mason v. Peters33] The argument can be made in any case, but it will require evidence to convince the court. Cultural evidence has been convincing in some cases [see e.g. To and Lian34] General damages for grief – vary across the country Not available in BC – pecuniary only Problems of individualization Inefficient dispute resolution; Incommensurable injuries Arbitrary conventional sums in some provinces [see commentary in To]
Directory: outlines outlines -> Chabot College Fall 2010 Course Outline for Computer Application Systems 60 business software applications/general accounting outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11 outlines -> Course Outline as/huma 2650 0A Download 1.08 Mb. Share with your friends:
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