How do claims for damages work in the case of fatal accidents?

In the most difficult cases, a person is killed by the negligence or reckless behaviour of another.  A case can still be brought against them when this happens, but the claim for damages will be different to reflect the circumstances.

This area of the law is set out in the Family Compensation Act in British Columbia.  The details may be different in other provinces.  This type of claim is commonly referred to as a wrongful death claim.

In what cases can you claim for damages in a fatal accident?

You can claim for damages for any fatal accident that would have resulted in liability if the person had survived.  In other words, the conditions for bringing a case are the same for both fatal and non-fatal accidents.

Who can claim for damages in a fatal accident?

Three groups of people related to the person who died can bring a claim for damages in BC:

• the deceased’s child, including step children and adopted children
• the deceased’s spouse, either through marriage or a common law relationship of at least two years (if separated, separation must be less than a year before death)
• the deceased’s parents, including step parents and grandparents

How do you claim for wrongful death damages?

Usually, the personal representative of the person who died will bring the case to court for the benefit of everyone who is eligible to claim damages.  If there is no personal representative or there is one, but that person does not start an action in court within six months of the death, then those making a claim can start it themselves.

There can only be one case against the defendant for the death, so any action that is started has to be for all possible beneficiaries together.

The process of proving responsibility for the injury, in this case a death, is the same as in cases with less serious injuries.  Once liability is established, the amount of damages is calculated.

What damages (compensation) is available for wrongful death claims?

Many of the damages that can be claimed are the same as for non-fatal accidents.  For example, cost of care paid by the family before the person died and legal fees can be claimed.  Reasonable funeral costs can also be claimed.

The more complicated calculation is loss of financial benefit.  This is similar to loss of future earning capacity in cases of non-fatal injuries.  The likely future earnings of the deceased are calculated and then the amount of that which would have benefited the child, spouse, or parent is estimated.  For example, a child would have had living expenses paid until reaching adulthood as well as education costs.  A spouse who was dependant would also have had living expenses paid as well as benefiting from the deceased’s pension upon retirement.  If the person who died did not work, but took care of the home and children, then the financial equivalent of that work would be assessed.

Each individual claimant’s loss is calculated separately.

What if the person who died had life insurance?

Any money paid out by insurance to the deceased’s beneficiaries is not considered in the calculation of damages.

Return to the main BC Wrongful Death Lawyers page.

Wrongful death claim lawyers serving Surrey, Langley, Abbotsford, Chilliwack, Aldergrove and Maple Ridge.