Fatal accidents: calculation of loss.

• Author: Pratt, Christine

The Canadian legal system has long struggled with issues surrounding compensation in fatality situations. These issues put strict rational analyses regarding compensation against the sympathetic and human acknowledgement of the extent of the loss involving a life. Questions which plague lawmakers and the judiciary alike include

* WHO should be compensated for wrongful death?

* WHAT specifically is the loss being compensated? and

* HOW can a value be placed on the loss of a human life?

In Alberta, our legislature attempted to clarify its answers to these questions in the late 1970s, with the enactment of two pieces of legislation. The Fatal Accidents Act made it clear what damages could be claimed by surviving family members. The Survival of Actions Act legislated what remedies could be pursued on behalf of the victim himself, through his estate.

The

This legislation continued the right of dependants of the deceased to bring a claim for the loss of monetary support that they could reasonably have expected to receive from the deceased. Children and spouses are entitled to claim for the loss of that portion of the deceased's expected lifetime income that they could prove would have gone to support them. Children can usually claim for the time until they are 18, or are expected to leave school. A young spouse's claim will likely be reduced by the possibility that he or she will remarry.

In addition, the Fatal Accidents Act provided the surviving family members with a claim for "grief and loss of comfort, guidance and support." Because a person's grief cannot and should not be evaluated in a court, the legislature has set the amount to which claimants are entitled, as follows:

for a spouse $40,000 for both parents of a minor child, or unmarried child under 26 years $40,000 (to be shared) for each minor or unmarried child under 26 years $25,000

These figures were set in 1994, when they were increased from previous levels of $3,000 each, which were set in the late 1970's.

The Act required these figures to be reviewed every five years for inflation. As a result, these figures were increased as of March 1, 2000, so that the $40,000 awards became $43,000, and the $25,000 awards became $27,000.

The

The Survival of Actions Act, which was enacted in 1978, provided that an action available to a person who subsequently died, could be continued by the estate of the deceased person. However, section 5 limited the damages that were recoverable by the estate...