Losing a loved one can be one of the most painful experiences in life. At times, we know the end is approaching and we are able to say our goodbyes to achieve a sense of closure. Other times the end is sudden and unexpected, and we must work through our grief knowing that some things had been left unsaid. When a death is unnatural, there can be even greater challenges trying to make sense of what happened and what it means to you and your loved ones as you move forward.
A wrongful death occurs when a death is caused by the negligent, willful, or wrongful act of another person, or by negligent inaction, omission, or default. In these circumstances, the law determines whether the deceased person would still be living were it not for the wrongful actions or inaction of another person.
Wrongful death claims are a matter of civil law, but the action or inaction that led to the death may also result in criminal charges. For example, a homicide may lead to criminal charges by the Crown, while the family and/or loved ones of the victim may file a civil lawsuit for damages caused by a wrongful death. It is important to note that even if criminal charges are not filed or a criminal case is unsuccessful, a plaintiff may sue the person responsible for the wrongful death and receive compensation and damages if successful.
The law and wrongful deaths.
Common cases involving wrongful death.
Wrongful death occurs when a deceased person would, if not for the death, be entitled to recover damages for personal injury if they were still living. Some common incidents that result in wrongful death include:
- Motor vehicles accidents - fatalities involving cars, trucks, motorcycles, ATVs, public transit or other vehicles in which another person caused or contributed to the accident.
- Medical malpractice - when a patient dies as a result of a negligent breach of the standard of care in a medical environment or while a patient is or should be receiving treatment for a medical condition.
- Harmful or hazardous materials (product liability) - when a manufacturer’s failure to warn about the harm caused by the use or foreseeable misuse of a product, design defects, manufacturing defects, or other breaches of contract law or statutory law lead to a person’s untimely death.
- Accidents from unsafe premises or negligent hosts (occupier’s liability) - a person responsible for a property’s upkeep and/or a guest’s safety either while they are on the property or after leaving a property, could be liable for an accident causing a death.
- Homicide or manslaughter - a person who intentionally kills another person or whose negligent actions or inaction unintentionally cause a fatality.
What is needed to make a claim?
To satisfy the courts that a wrongful death tort claim is viable, a plaintiff must prove several things:
- The deceased person’s death was the result of the willful or negligent action or inaction of another person.
- The deceased person would have been entitled to damages had they not died.
- The person making the claim is related to a deceased person based on Part V of the Family Law Act. A deceased person’s spouse, parents, grandparents, children, grandchildren and siblings are considered eligible family members. The Act’s definition of these relationships may not be how you define your family attachments, however. It is important to speak to an experienced personal injury lawyer to determine if you are eligible.
- The person making the claim suffered compensatory damages as a result of the family member’s death.
What types of damages are compensated?
- Motor vehicle accidents
- Slip and falls
- Medical malpractice
- Pediatric Injuries
- Long term disability
- Social host liability
- Occupier's Liability
- And more
In a tort claim, the types of damages you can sue for in a wrongful death claim include pecuniary damages (calculable expenses) such as:
- Lost income caused by providing care to the person following their injury, prior to their death, and the costs associated with this care (a travel allowance, medications, and medical treatments).
- Lost income following the person’s death due to an inability to work (grief and emotional pain and suffering).
- Future income losses (earnings or benefits such as pensions that would have come from the deceased person if the death did not occur).
- Expenses incurred due to the loss of the deceased person (for example, if there are now costs associated with home maintenance or child care that the deceased had previously provided).
- Funeral and burial expenses.
The law also provides the possibility for non-pecuniary damages (losses that cannot be established in pure economic terms) such as:
- Loss of guidance.
- Loss of care.
- Loss of companionship.
Other damages may be available.
If the death occurred as a result of a motor vehicle accident, family members of the deceased person may also be able to access compensation through the Statutory Accident Benefits Schedule, also known as ("SABS").
The spouse of a deceased person is entitled to a death benefit of $25,000. Each dependent of the deceased person is entitled to $10,000. If optional insurance coverage was purchased, those amounts double. In the event the deceased family member did not have a spouse, the spousal benefit is divided equally among any dependents.
SABS also pays a funeral benefit to cover expenses of up to $6,000 or up to $8,000 with optional coverage.
SABS coverage (including death benefits for family members) is available for anyone involved in a motor vehicle accident in Ontario, regardless of whether they were at fault for the accident. Although a statutory deductible for non-pecuniary damages is imposed by law in claims by family members arising from the injuries suffered by a loved one, this deductible does not apply when family members sue for wrongful death.
Gluckstein Personal Injury Lawyers can help.
After the initial shock and despair that accompany the news of the wrongful death of your loved one, you may be feeling overwhelmed at the thought of all the changes this tragic incident will bring to your life. Deciding whether or not to file a claim for damages and not knowing what it may entail can weigh heavily on your mind.
Gluckstein Personal Injury Lawyers believe that you deserve the utmost compassion, empathy and sensitivity during this unimaginable time in your life. When you contact one of our wrongful death lawyers for a free consultation, you will soon learn what our law firm’s commitment to full circle care can come to mean for you.
Our team of personal injury lawyers will not only ask questions to help assess the potential for damages, but also ask how we can be there for you as you grieve. We will offer to help connect you with support groups who have been immensely helpful to some of our other clients. And, as we fiercely advocate for compensation for your losses, we will work with you as a trusted companion on your healing journey.
With expertise in wrongful death cases and a proven track record for results, Gluckstein Personal Injury Lawyers in Toronto, Ottawa, Niagara, and Barrie have the experience, skills and passion to help victims’ families in their quest for justice.
What are some damages that a wrongful death lawyer at Gluckstein Personal Injury Lawyers can help you recover?
Some damages that a wrongful death lawyer can help pursue through a wrongful death claim include:
- Loss of income the decedent would have provided in the future;
- Expenses for medical care, travel, and other obligations taken on by surviving family members as a result of their loved one’s passing;
- Reasonable funeral and burial expenses;
- Loss of household and handyman services;
- Loss of care, companionship, and guidance.
- Loss of income the decedent would have provided in the future;
Who can pursue a wrongful death claim?
In cases where an accident causes someone to suffer an untimely passing, the right to file suit transfers to their immediate surviving family members and dependents, including:
What are some accidents that commonly lead to unexpected deaths?
Some common accidents that lead to unexpected deaths are:
- Car accidents;
- Motorcycle collisions;
- Truck crashes;
- Unsafe work environments;
- Medical malpractice;
- Bicycle crashes;
- Defective product injuries.
- Car accidents;
What are the steps in a wrongful death claim?
First, pleadings are drafted. This includes assessing pecuniary (calculable) damages.
Once all parties involved are served with notice of the action, documentary and oral discoveries occur.
Facts critical to assessing the case are gathered. 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.
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