Most accidents involving pedestrians happen in areas where pedestrians and motor vehicles frequently are in close proximity, this includes crosswalks, intersections, and parking lots. Accidents also happen more frequently in the evenings and winter when visibility is low.
When pedestrian accidents result in a fatal collision, those left behind have the ability to bring a pedestrian fatal injury claim against the driver. The compensation provided through fatal injury claims cannot replace your loved one, but they can provide needed financial support for those who have been left behind. This will often include funeral costs.
The time following a fatal injury of your loved one can be overwhelming but it is important to remember that you only have a limited period in which to file a fatal injury claim. If you find the process too overwhelming, an experienced personal injury lawyer can help to walk you through it.
What is a Pedestrian Fatal Injury?
A pedestrian is an easily understood concept. They are any user of the road who is not operating a motor vehicle and is not a cyclist. What a fatal injury is can be more complicated.
The news and media may have influenced your perception on what a fatal injury is. While many may have the notion that in a fatal accident, the death must be immediate, this is not true.
Pedestrian accidents can be fatal even if the death does not happen immediately after the accident. A pedestrian who was severely injured in an accident and eventually succumbs to their injuries was still involved in a fatal accident.
Sometimes there may be confusion with regards to whether there has been a fatal accident. Perhaps there were complications that were not connected to the accident, or it has been such a long time since the accident that you are uncertain whether you can bring a fatal injury claim. An experienced personal injury lawyer can help answer these questions.
How do I make a Claim after a Fatal Injury?
There are two types of claims that you can make following a fatal injury: accident benefits claims and wrongful death claims.
An accident benefit’s claim can only be made by the spouse or dependents of the deceased. The amount of payment depends on the position of the deceased person in the household. The compensation can range from $25,000 for heads of households to $5,000 for dependents. Accident benefits payments will be made to the head of household or spouse, and if there is none, the payment will be divided equally among the surviving dependents.
A wrongful death claim deals with intentional or negligent acts that result in death. They are governed by the Fatal Injury Act in Nova Scotia which places deadlines on claims and outlines the types of compensation permitted.
Can I Bring a Wrongful Death Lawsuit?
Whether you can bring a claim on behalf of a pedestrian involved in a fatal accident depends on your relationship to that person and the timing of the claim.
If you are a family member or the executor of the deceased’s estate, you can pursue a claim for fatal injury damages. However, this claim must be for the benefit of the deceased’s spouse, common-law partner, parents, or children. In Nova Scotia, these claims cannot be made on the behalf of the deceased’s siblings.
In Nova Scotia, you only have one year after the death of your loved one to file a fatal injury claim. Because of this narrow window, it is advisable to contact a personal injury lawyer to ensure that you do not miss the deadline.
Who is Responsible?
To hold someone responsible for a fatal accident, you need to be able to show three things:
- The driver’s action or inaction contributed to the death;
- The death was caused by driver’s action or inaction; and
- Because of the death, the deceased’s family suffered damages.
A driver’s action or inaction can be understood as either an intentional act to cause the death, or a negligent action which resulted in the death.
In Nova Scotia with regards to pedestrian accidents, the Insurance Act 148C(2) places a reverse onus on drivers. This means that we presume that the driver was negligent, and that the pedestrian was injured because of the driver’s negligence.
This means that rather than you having to prove that the driver’s negligence caused the death of your loved one, the driver has to make the argument that they were not responsible. If they successfully make this argument, you may have to counter it.
1. The Driver’s Negligence Contributed to the Death
In Nova Scotia, drivers have a statutory duty under section 100(1) of the Motor Vehicle Act to drive carefully. When drivers fail to drive carefully, they are automatically below a reasonable standard of care. This means that they were driving negligently.
Common examples of failing to drive carefully are:
- Distracted driving;
- Driving while under the influence; or
2. The Death was Caused by the Driver’s Negligence
To counter this, the driver would have to prove either that they did not hit the pedestrian or that the pedestrian was actually the cause of the accident. This evidence must be enough to fully or partially rebut the presumption of negligence, as noted in Drysdale v Bev & Lynn Trucking Limited, 2016 NSSC 109.
If a driver were to argue that the pedestrian was somewhat responsible for the accident, this an argument for contributory negligence. In cases where this is successfully argued, the compensation provided to the family for a fatal injury claim may be reduced.
Arguments for contributory negligence by the pedestrian can include:
- The pedestrian was not walking on a sidewalk where one was provided;
- The pedestrian was ignoring traffic signals;
- The pedestrian was not walking on a crosswalk where one was provided;
- The pedestrian was intoxicated; or
- The pedestrian was jaywalking.
To ensure your fatal injury claim is successful, you should consider whether an argument seen above or similar to them may be used in your fatal injury claim and consider arguments against it. For example: the pedestrian was reasonable in not using the crosswalk because there was a hazard there.
3. Because of the Death, the Deceased’s Family Suffered Damages
Compensation for a Fatal Injury
Compensation for a fatal injury claim is not limited to the wages that the deceased would have made that are necessary to support dependants. Compensation is also aimed towards recognizing the other impacts of a loved one’s loss on a family such as the loss of someone who helps with household chores or the loss of a person who would have been important to a child’s development.
Compensation in Nova Scotia can include:
- Funeral costs including burial, transportation, supplies, and other services.
- Loss of guidance and companionship, especially with regards to young children.
- Loss of future earnings of the deceased.
- Medical costs prior to death.
What to Do After a Fatal Injury
If your loved one has been involved in a fatal pedestrian accident, you should gather information around the accident. You may want to note information you know about the accident as well as the driver’s contact details, insurance information, and licence plate number.
You may also want to seek the contact information of people who were witnesses to the accident. If you yourself were a witness, you should write down what you remember of the accident. Pay special attention to any unlawful or careless behaviour by the driver.
How Can NOVA Injury Help?
At NOVA Injury Law we will act on your behalf to advocate for your fatal injury. Our legal team will help you to navigate through the law in Nova Scotia around fatal injury 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 fatal injury claim in Halifax, Nova Scotia, 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.