Information that survivors should know about Fatal Injury Claims in Nova Scotia.
Losing a loved one is difficult. The tragedy of an untimely death can be devastating for friends, family, and other loved ones. If that death was caused by someone else’s wrong or negligent behaviour, then family members may be able to receive financial compensation for their loss by advancing a fatal injury claim. Although no amount of money can replace a loved one, compensation can alleviate some of the financial strain associated with such a difficult loss. The Fatal Injuries Act exists to provide guidelines surrounding this compensation. This financial compensation can include compensation for lost wages, medical expenses, and funeral or burial expenses. Survivors may also receive compensation for the loss of financial support, care, guidance, services and companionship that they received from the deceased.
Compensation for Funeral Expenses
If funeral expenses are paid for by family members, then damages may be awarded to reimburse reasonably necessary expenses. Such expenses typically include the burial of the deceased, transportation, supplies and services rendered in connection with the funeral. Automobile insurance may also cover up to $2500 of funeral expenses in Nova Scotia.
Fatal Injury Legal Claims for a Wrongful Death in Nova Scotia
A family member or the executor of the deceased’s estate may pursue a claim for fatal injury damages. This claim must be for the benefit of the spouse, common-law partner, parents or children of the deceased. A civil suit must be filed within one year in Nova Scotia. You can learn more about important dates for fatal injury claims in this post.
Claiming Compensation for Loss of Care, Guidance, and Companionship
Family members are entitled to claim compensation for the loss of care, guidance, and companionship that they will no longer receive due to the death of their loved one. In Nova Scotia, compensation is determined based on case law. There is limited guidance in case law because only very few fatal injury legal claims go to trial.
Legal cases consider the closeness of the relationship between the family member and the deceased. For a spouse or partner, the court will consider how close their relationship was with the deceased. The court should consider the length of time of the relationship, the closeness of the relationship, the amount of activity sharing, whether children were involved, the intermingling of assets, shared expenses, and overall compassion and commitment.
In the case of Murray v. Advocate Contracting limited and Wilbert Stewart Clark, 2001 CarswellNS 426, the court made an award of $65,000 ($89,000 in present-day dollars) to a spouse who had been married to his wife for 13 years before she died. She had two children and was described by the judge to be a “warm, loving, compassionate and caring individual who devoted nearly all of her time and energy to her family”. The deceased participated in family activities and also took a large role in keeping the house tidy.
Children are also considered for compensation for their own loss of care, guidance, and companionship. Younger children are often awarded more in damages because they will be without their parent for a longer time. The courts also generally consider the loss of guidance elements of the claim to be more significant for a younger child who will not have the opportunity to learn from their parent. Companionship is also more meaningful for younger plaintiffs. In Murray, the court awarded $35,000 to the 7-year-old son and $40,000 to a 6-year-old daughter. Those awards are roughly $48,000 and $55,000 respectively in today’s dollars. When making the awards, the court noted that the relationship the children had with their mother was significant to their development.
Claiming Compensation for Dependancy Loss
Another type of damage available in a fatal injury claim is compensation for dependency loss. Dependency loss considers the financial loss the survivors will experience because of the family member's death. The factors involved to calculate dependency loss include:
- pre-loss wages of the deceased;
- the survivors' income;
- ages of survivors and deceased;
- likelihood of divorce;
- likelihood of re-marriage;
- life expectancy statistics;
- other insurance benefits (Canada Pension, life insurance, etc.); and
- other benefits to the estate of the deceased.
There are three approaches that can be used to calculate dependency loss. They are the Sole Dependency Approach, the Cross Dependency Approach, and the Modified Sole-Dependancy Approach.
Sole Dependency Approach
The Sole Dependency approach may be appropriate when the household income is solely derived by the deceased person. In this instance, it is assumed that 30% of the deceased person's income benefits him or herself, while the remaining 70% benefits the surviving spouse and any dependents.
The Cross-Dependency Approach may be appropriate when the household income is derived by both the deceased and surviving spouse. This approach considers the inter-dependency of incomes between spouses. In this case, the income dependency loss is calculated as 70% of the combined after-tax income for the spouse, less 100% of the surviving spouse's after-tax income.
The critique of this approach is that it produces an absurd result if there is a large discrepancy between the earning levels of each spouse. If the gap is greater than 2.3 times, the calculation will produce a zero value for dependancy loss. This result, in our view, is never appropriate because it does not reflect the reality of the relationship or spousal contributions.
Modified Sole-Dependency Approach
The Modified Sole-Dependency approach is similar to the Sole Dependancy approach expressed earlier in this post, however, the Modified Sole-Dependency Approach uses a lower dependency rate. A 60% dependency rate is used to calculate the income dependency loss.
Claiming Compensation for Valuable Service Losses
Another main category of damages is the loss of valuable services. This sum includes recurring costs that the survivors are expected to incur as a result of the incident.
To accurately capture this amount, an analysis is performed to determine the tasks normally performed by the deceased for the benefit of the household. Those tasks are then quantified based on the cost to hire replacement labour. An annual valuable services loss is then computed which can then be projected as an ongoing loss into the future.
For more information about this type of damage applicable to fatal injury claims, read our post of valuable services.
Nova Scotia Fatal Injury Act
Family members involved in a fatal injury claim should review the Nova Scotia Fatal Injury Act to appreciate the various restrictions that will be important to know during the course of a fatal injury claim. The legislation can be found here.
Speak to a Personal Injury Lawyer
Jeff Mitchell is an experienced personal injury lawyer who has navigated fatal injury claims to successful resolutions. Fatal injury claims are delicate and emotionally charged. NOVA Injury Law's process for fatal injury claims attempts to limit the emotional toll the claim process will take.