When a person dies, it does not only impact them, but their loved ones as well. An untimely death can be devastating for family, not just emotionally, but financially as well. If a death was the result of someone’s wrong or negligent behaviour, then their loved ones may be able to receive financial compensation for their loss through a fatal injury claim.
If you are reading this following the loss of a loved one, please accept our condolences.
While no amount of money could ever replace a loved one, compensation can help to alleviate the financial strain which can accompany such a loss. Compensation can include funeral expenses, loss of guidance, and reimbursement of expenses for medical care.
Who Can Claim Compensation?
In PEI, a family member or the executor of the deceased’s estate can generally claim compensation for a fatal injury. Claims that are filed under the Fatal Accidents Act must be for the benefit of a dependant of the deceased. Dependants include:
The spouse of the deceased;
- A child or grandparent;
- A parent;
- A spouse of a child, grandparent, or parent of the deceased;
- A person divorced from but dependant upon the deceased; and
- A person who, for three years before the death, was dependant on the deceased.
In PEI, the deadline to file is within two years of the death. However, if the deceased had dependants who were minors, then different deadlines apply to them. Children are given until two years after they turn 18 to file.
How Do I Claim Compensation?
In PEI, claiming compensation for a wrongful death is somewhat confusing due to two overlapping acts. Both acts benefit the same people but perform different functions. These statutes are the Fatal Accident Act and the Survival of Actions Act.
The Fatal Accident Act (FAA) is aimed at providing compensation to people who were dependant on the deceased. Compensation is limited to the deceased’s dependants. This act covers losses that happened as a result of the death and can be claimed by either the dependants for their benefit, or by the estate of the deceased for the benefit of the dependants.
The Survival of Actions Act (SAA) is aimed at bringing claims which the deceased could have brought for their losses if they had survived their injury. This act is aimed at compensating the deceased.
What Can I Claim For?
With regards to fatal accidents, you can claim compensation for many different things. This can include funeral expenses, compensation for loss of care, loss of income, and damage to property.
The Fatal Accidents Act exists to provide guidelines surrounding this compensation in Prince Edward Island (PEI). This financial compensation can include compensation for lost wages, medical expenses, and funeral or burial expenses. PEI survivors may also receive compensation for the loss of financial support, care, guidance, services and companionship that they received from the deceased.
The Survival of Actions Act covers causes of actions that the deceased would have had if they had survived. For example, this could include claims for damages done to the deceased’s vehicle in the accident.
Compensation for Funeral Expenses
When funeral expenses have been paid by the family members of the deceased, compensation can be provided. This will generally include expenses for burial, transportation, supplies, and services used for the funeral. A limit of $500 of compensation will be provided in cases where it is necessary to take out the administration of the estate.
Funeral expenses can be claimed under either the FAA or the SAA, but not under both. If you have already claimed compensation under one, you will not be able to be compensated again.
Claiming Compensation for Loss of Care, Guidance and Companionship
Family members are able to claim compensation for the loss of care, guidance, and companionship that has resulted from the death of their loved ones. Loss of care, guidance, and companionship simply refers to the loss of the roles that the deceased person plaid in a loved one’s life. For children, this loss can come from a lack of parental guidance in the future. For spouses, this can come from their loss of a lifelong companion.
There is very little case law in this area in PEI that can be used to determine the amount of compensation, so the other Atlantic Provinces are often considered by the courts when they are assessing damages.
In a case from years ago, O’Hanley v Deacon, 65 APR 133, $6,000 was awarded to the deceased’s eldest daughter (21), $15,000 to the deceased’s middle daughter (17), and $21,000 to the youngest (15). In coming to these amounts, the judge considered that the three daughters had no mother and were still in school and financially reliant upon their father.
When looking to these cases, it is important to consider that modern-day awards can be much higher than what may have been awarded in the past. A personal injury lawyer can help you to determine what your claim will be.
Claiming Compensation for Dependency Loss
Dependency loss refers to the financial loss that a deceased’s loved ones will suffer as a result of their death. Many factors are looked at, which ultimately consider the financial support that the deceased had been providing, and the resulting losses which the survivors will suffer.
These factors taken into consideration include, but are not limited to:
- The wages of the deceased;
- Life expectancy statistics;
- Other benefits the deceased received such as pension and life insurance;
- The surviving family’s income; and
- The ages of the survivors.
In a case called Carrett v Paquet, 5 ACWS (3d) 322, there was no compensation awarded under the Fatal Accidents Act, as the deceased’s adult son failed to show that he suffered any financial loss as a result of the death.
There are several approaches that can be used to calculate dependency loss, including the sole dependency approach, the cross-dependency approach, and the modified sole-dependency approach.
Sole Dependency Approach
The sole dependency approach may be used when the household income is solely provided by the deceased. When calculating, it is assumed that 30% of the deceased’s income is used to their own benefit, while 70% is used to the benefit of the survivors.
As such, compensation will generally be calculated at 70% of the deceased’s income when they were the sole provider of household income.
The cross-dependency approach is usually appropriate when both the deceased and their surviving spouse provide the household income. This approach follows the same process as the sole dependency approach but also considers the surviving spouse to have saved 30% of their income that they would have spent on the deceased.
This approach can produce absurd results, especially in cases of large differences between the earning levels of each spouse. Using this calculation could even result in a zero value for dependency loss.
At NOVA Injury Law, we do not believe that this approach is ever 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 dependency approach expressed earlier. 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 Services Losses
Loss of valuable services takes into account the household tasks which would have been done by the deceased had they not passed away. A court would generally consider what activities the deceased har performed in the household, then calculate the cost of hiring replacement labour. This could include tasks such as:
- Lawncare such as mowing the lawn or shovelling snow;
- Preparing meals; or
It is important to note that the amount of compensation that will be provided under the Fatal Accident’s Act will be proportional to the fault. If the deceased contributed in some way to their own death, such as by not taking reasonable steps to ensure their own safety, then damages awarded under this act may be reduced.
How Can NOVA Injury Help?
At NOVA Injury Law we will act on your behalf to advocate for your wrongful death claim. Our legal team will help you to navigate through the law in PEI around wrongful death claims and help to ensure that you receive the necessary compensation to support you and your family following a loved one’s passing. No amount of money can replace a loved one, but financial support can help to ease an emotionally and financially stressful situation.
The whole idea behind an injury claim is to compensate victims for their losses – and this is a wide-ranging task with unique facts in each case. To learn more about NOVA Injury Law’s approach to protecting injury victims’ rights, contact us now to book your free Case Review. During the free Case Review process, we will give you our honest opinion about your case, how your claim might be worth, and what you should consider as your next steps.
If you are in need of legal advice or representation for your wrongful death claim in PEI, or anywhere in Atlantic Canada, our personal injury lawyers are here to help. Contact us today and tell us more about your claim – we are here to help.