Information that survivors should know about fatal injury claims in Newfoundland.
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 occurred in Newfoundland and 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 Accidents Act exists to provide guidelines surrounding this compensation in Newfoundland. This financial compensation can include compensation for lost wages, medical expenses, and funeral or burial expenses. Newfoundland 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. These expenses can be covered under the Fatal Accidents Act or the Survival of Actions Act in Newfoundland.
Important Newfoundland Legislation for Fatal Injury Claims
The Fatal Accidents Act and the Survival of Actions Act are two Acts that often cause confusion because they have a great deal of overlap. They are both actions that are brought by the personal representatives of the estate or the deceased’s dependants when someone dies as the result of someone else’s negligence. Both actions will typically also benefit the same people (the family/dependants of the deceased).
The Fatal Accident Act is designed to provide compensation for the pecuniary losses that are caused to the dependants by the deceased’s death. The Survival of Actions Act is designed to continue the cause of action that the deceased would have had for their actual pecuniary loss to either them or their estate, that they would have had if they had survived. Essentially, the Fatal Accidents Act compensates dependants for their loss, whereas the Survival of Actions Act compensates the deceased for theirs.
Fatal Injury Legal Claims for a Wrongful Death in Newfoundland
A family member or the personal representative of the deceased’s estate may pursue a claim for fatal injury damages. A civil suit must typically be filed within two years in Newfoundland. A fatal injury legal claim under the Fatal Accidents Act must be for the benefit of the spouse, partner, parent or child of the deceased.
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 Newfoundland, there is very little case law in this area. One case that does provide some guidance is Lynch Estate v. Anderson (1999), 180 Nfld. & P.E.I.R. 225, 548 A.P.R. 225. In Lynch Estate v. Anderson, the Newfoundland Court awarded $10,000 ($14,703 in present-day dollars) to the deceased’s widow and $25,000 ($36,757 in present-day dollars) to his adult daughter who had cerebral palsy for the care, guidance and companionship that they had lost. Funeral and burial expenses for $16,561 ($24,349 in present-day dollars) were also awarded.
Younger children are often awarded more in damages because they will be without their parent for a longer time. However, there are exceptions to this rule. For example, in Lynch Estate v. Anderson, although his oldest daughter received an award, nothing was awarded to the deceased’s youngest daughter because she was married, working full-time and residing outside of Canada. As a general rule, the court typically considers the loss of guidance elements to be more significant for children who will no longer have the opportunity to learn from their parent.
Claiming Compensation for Dependency Loss
Another type of damage available in a fatal injury claim is compensation for dependency loss. Dependency loss considers the financial loss that the survivors will experience because of the family member’s death. The factors involved in calculating dependency loss include:
- Pre-loss wages of the deceased
- The survivor’s income
- Age of the survivor(s) and the deceased
- Likelihood of divorce
- Likelihood of re-marriage
- Life expectancy statistics
- Other insurance benefits (Canada Pension, life insurance, etc.)
- Other benefits to the estate of the deceased.
Three approaches can be used to calculate dependency loss. These three approaches are the sole dependency approach, the cross-dependency approach, and the modified sole-dependency approach. For more information on these approaches, please see this post.
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 value of the tasks that were normally performed by the deceased for the benefit of the household. An annual amount for the valuable services lost is then computed. This figure can then be projected as an ongoing loss into the future.
For more information about this type of damage, see our post on valuable services.
Newfoundland’s Fatal Accidents Act
Family members involved in a fatal injury claim should review the relevant Acts in Newfoundland surrounding fatal injuries to appreciate the various rules and restrictions that exist surrounding a fatal injury claim. The legislation can be found here:
- Fatal Accidents Act
- Survival of Actions Act
Speak to a Personal Injury Lawyer with Experience handling Fatal Injury Claims
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.
To book your free consultation with Jeff Mitchell, call 1.800.262.8104 or email [email protected]