Compensation for Death
| Author | Jamie Cassels |
| Profession | Professor of Law University of Victoria |
| Pages | 167-194 |
CHAPTER
COMPENSATION
FOR
DEATH
A.
INTRODUCTION
At
common
law
there
was no
action available either
to a
deceased's
estate
or to
surviving
family
members
for
wrongful
death. Courts stead-
fastly
held that
"[i]n
a
civil court
the
death
of a
human being cannot
be
complained
of as an
injury."1
This
state
of
affairs
reflected
two
separate
rules:
first,
that
a
personal action dies with
the
person,
and
second, that
no one has a
right
of
action
in
respect
of the
death
of
another. Both rules
were
much criticized. They gave
rise
to the
anomaly that
a
tortfeasor
was
much better
off
killing than injuring
his
victim.
With
increasing industrialization
and
mechanized transportation,
these
rules created even greater social
hardship
and
were eventually
altered.
In
1846
the
British Parliament passed
Lord
Campbell's
Act,
which
permitted claims
by
close relatives
for the
death
of a
family
member.
Equivalent
legislation
in all
provinces
now
provides
for
compensation
for
family
members
or
dependants.2
Additionally,
the
rule against sur-
vival
of
actions
has
also been altered
by
legislation providing that certain
1
Baker
v.
Bolton
(1808),
1
Camp. 493,
170
E.R. 1033.
2
Family
Compensation Act,
R.S.B.C.
1996,
c.
126;
Fatal
Accidents Act,
R.S.A.
1980,
c.
F-5;
Fatal
Accidents Act,
R.S.S.
1978,
c.
F-ll;
Fatal
Accidents Act,
R.S.N.B.
1973,
c.
F-7;
Fatal
Injuries
Act,
R.S.N.S.
1989,
c.
163;
Fatal
Accidents Act,
R.S.P.E.l.
1988,
c.
F-5;
Fatal
Accidents
Act,
R.S.N.
1990,
c.
F-6; Family
Law
Act, R.S.O. 1990,
c. F3
[Ont.
FLA}.
167
168
REMEDIES:
THE LAW OF
DAMAGES
rights survive
the
deceased
and may be
pursued
by his or her
estate.3
This chapter deals primarily with compensation
of
dependants under
fatal
accident legislation. Survival actions
are
also
briefly
explained.
B.
FAMILY
COMPENSATION ACTIONS
1)
Basis
of the
Claim
Under
the
various
fatal
accident
and
family
compensation statutes,
the
spouse, parent,
or
child (and,
in
some cases,
siblings
and
grandpar-
ents)
of a
deceased
may
bring
an
action
in
tort
for
damages.
The
B.C.
Family Compensation
Act4
is
typical. Section
2
provides:
2
If the
death
of a
person
is
caused
by
wrongful
act,
neglect
or
default,
and the
act,
neglect
or
default
is
such
as
would,
if
death
had
not
resulted, have entitled
the
party injured
to
maintain
an
action
and
recover
damages
for it, any
person, partnership
or
corporation which
would have been liable
if
death
had not
resulted
is
liable
in an
action
for
damages, despite
the
death
of the
person injured,
and
although
the
death
has
been caused under circumstances that amount
in law to
an
indictable
offence.
Section
3
provides:
3(1)
The
action must
be for the
benefit
of the
spouse, parent
or
child
of
the
person whose death
has
been caused,
and
must
be
brought
by
and in the
name
of the
personal representative
of the
deceased.
(2)
The
court
or
jury
may
give damages proportioned
to the
injury
resulting
from
the
death
to the
parties respectively
for
whose benefit
the
action
has
been brought.
(3) The
amount recovered,
after
deducting
any
costs
not
recovered
from
the
defendant, must
be
divided among
the
parties
in
shares
as
the
court
or
jury
by
their judgment
or
verdict directs.
3
Survival
of
Actions
Act:
R.S.A.
1980,
c.
S-30
[Aha.
SAA],
s. 2;
R.S.N.S.
1989,
c.
453
[N.S.
SAA],
s.
2(1);
R.S.P.E.I.
1988,
c.
S-ll
[P.E.l.
SAA],s.
4(1);
R.S.N.
1990,
c.
S-32
[Nfld.
SAA],
s. 2;
R.S.N.B.
1973,
c.
S-18
[N.B.
SAA],
s.
2(1); S.S.
1990-91,
c.
S-66.1
[Sasfe.
SAA],
s. 3;
R.S.Y.
1986,
c. 166
[Yukon
SAA],
s.
2(1);
Estate
Administration
Act,
R.S.B.C.
1996,
c. 122
[B.C.
EAA],
s. 59;
Trustee
Act:
R.S.M.
1987,
c.
T160
[Man.
TA],
s.
53(1);
R.S.O.
1990,
c.
T.23
[Ont.
TA],
s.
38(1);
R.S.N.W.T.
1988,
c. T-8
[N.W.T.
TA],
s. 31.
4
R.S.B.C.
1996,
c.
126,
s. 2.
To continue reading
Request your trial