Guidance, Care and Companionship in Newfoundland and the Thinking Behind Amendment to the Fatal Accidents Act

In a speech in the House of Assembly this month, the Minister of Justice clarified the government's thinking behind the amendment to the Fatal Accidents Act.  The amendment would allow the court to make an award of damages for the loss of care, guidance and companionship suffered by a loved one upon the death of a family member.

In an earlier blog, I suggested that the use of the word "non-pecuniary" would clarify that the legislature intends this amendment to permit courts to make awards of non-pecuniary damages for intangible, emotional losses suffered by family members.  Otherwise, the intention to create an award of damages for non-pecuniary loss to family members might be left in doubt and open to defence arguments which seek to undermine it.

Now I understand the government's logic.  The Minister of Justice, Mr. Collins, cited the case of McLean v. Carr decided in 1994, in which a judge in this jurisdiction distinguished between an award for loss of guidance and care, which is pecuniary in nature, and an award for loss of companionship, which is non-pecuniary in nature.  Our government has relied on the analysis in this case and Mr. Collins takes the position that by inserting the words "guidance, care and companionship" in the Fatal Accidents Act, but particularly the word "companionship", the legislature has directed the courts to make non-pecuniary awards, because companionship is an inherently non-pecuniary concept.

I certainly hope that when the first case to rely on this amendment and claim a non-pecuniary award of damages for wrongful death comes before our courts, the plaintiff lawyers who argue it will recognize the significance of the presence of the word "companionship" in the legislation, and will be able to link it back to the decision in McLean v. Carr.  Otherwise, the judge-make law may get off on the wrong foot.  The Minister's remarks to the House should be obligatory reading for any injury lawyer who represents victims of wrongful death.

Class Action Causes Reform of Wrongful Death Laws

The Government of Newfoundland and Labrador has introduced a bill to implement much needed reform in the wrongful death laws of the province.  The need for reform became obvious to all in the course of the Breast Cancer Testing class action which reached a mediated settlement in October last year. 

The amendment to the Fatal Accidents Act is aimed at allowing a court to make an award of damages which "may include an amount to compensate for the loss of care, guidance and companionship that a person for whose benefit the action is brought might reasonably have expected to receive from the deceased if the death had not occurred."  In other words, the intent is to reform the common law or judge-made law, to allow courts to make awards for intangible losses of an emotional, pain and suffering nature to close family members of a person who becomes deceased through the fault of another. 

These intangible losses are known as non-pecuniary losses, as distinct from pecuniary losses such as lost wages, which can be measured in money terms.

I call this the Donna Howell amendment.  Donna Howell will be remembered by many as a courageous breast cancer survivor who succumbed to her disease a month before the mediated settlement in the Breast Cancer Testing class action.  She was a compelling public spokesperson for many in the class.  Her husband Darryl Howell served on the negotiating committee at the mediation.  We were able to negotiate a settlement which treated all class members, whether living or deceased, on an equal footing in terms of damages awards, but this might not have been the outcome had we gone to court on the existing law.  With this new bill, the unjust laws of wrongful death will be brought into step with modern conceptions of justice and loss. 

But will the courts actually make non-pecuniary awards to the family members of the deceased?  I am sure it is what the legislature intends.  However courts are conservative, and I predict as a certainty that defence lawyers will argue that if the legislature had intended the new awards for loss of care, guidance and companionship to be non-pecuniary awards rather than awards for pecuniary losses, then the legislature would have said so.  To remove any uncertainty, it would be a simple precaution for the government to add the words "non-pecuniary" before the word "loss".  Surely the Donna Howell amendment deserves this much extra care.

The Shocking Truth About Wrongful Death Claims: An Open Letter to the Premier

Last weekend I attended sad visitation with the family of Donna Howell, perished at the age of 53 from generalized breast cancer.  Donna was one of those many patients of Eastern Health whose hormone receptor testing was bungled.  She didn’t get Tamoxifen.

It was not the time to tell Donna Howell’s husband Darryl the shocking truth:  Yes Premier, in your province it is cheaper to kill than to main.

But you already know this.  You were once a personal injury lawyer, and a very good one.  Once, you too revolted against the shocking truth that dead people are worth less in money damages than the living.  Your educated lawyer’s conscience still revolts at this truth.

In your province, the law of compensation for intangible losses surrounding death has not changed since the days when the British Empire permitted slavery.  Our still-existing law stems from a time when life was not just cheap, it was worthless.  But as an educated lawyer, you know this.

In the rest of Canada, the wrongful loss of the society and comfort of a loved one is compensated and has been for decades.  As an educated lawyer, you know this.

In the rest of Canada, the pain and suffering of a victim of wrongdoing is compensated even though the victim dies.  As an educated lawyer, you know this.

Many times have courts, even the Supreme Court of Canada, condemned the wrongful death laws we still enforce.  Courts have condemned the laws we enforce as inhuman, barbaric, anachronistic, and out of step with modern conceptions of fairness and justice.  As an educated lawyer, you know this.

As an educated lawyer, you know that modern conceptions of fairness and justice demand that of our laws of wrongful death be reformed.  Better to reform these laws in the Legislature; but the time has come for court-driven law reform if government fails in the task.  Many more like Donna will perish while court process grinds toward reform.

Donna’s husband Darryl Howell still has faith in your commitment to fairness and justice.  Others will wait and see.

The Shocking Truth About Wrongful Death - Part 15

Conclusion

This book was written with the goal of providing useful information for people considering a wrongful death claim.  In our office, we believe knowledge is power, and we hope that our book gave you the power to make some informed decisions.

Wrongful death litigation can be long and complicated, which is why we've advised that you consult with a lawyer whose practice focuses on personal injury claims.  Ask if the lawyer's office has experience handling wrongful death claims because these cases often are more nuanced and complicated than normal personal injury claims.

If you think we can help you with your case, please call us at 709-579-4000 or toll free 800-579-3262.  A receptionist will gather some information and connect you with a lawyer.  Calls that come into our office after hours are forwarded to a lawyer.  You can learn more about our firm by visiting our popular website at www.ChesCrosbie.com.

We'll schedule a free meeting with you at our office in St. John's or at your home.  At the meeting, we'll give you our professional opinion about whether or not we can help you.  If we do accept your case, you can be assured that we'll work hard to get the best result for you and your family.

The Shocking Truth About Wrongful Death - Part 14

Your Lawyer Doesn't Get Paid Unless You Do

Most of us don't have to hire lawyers very many times in our lives, so there's an understandable apprehension.  One source of anxiety is the fear that hiring a lawyer will cost too much money.  In a wrongful death case though, that shouldn't be a concern.  The vast majority of lawyers handling cases like these will work on a contingent fee basis.  That means that the lawyer's fee is covered through the settlement proceeds or court judgment.

The benefit of this type of arrangement is that the client doesn't have to pay the lawyer a big retainer up front, and in cases of need, the lawyer will cover the numerous expenses involved in a wrongful death case.  Litigating cases is an expensive endeavor.  Most people would never be able to come up with enough money to pay a lawyer by the hour for these time-consuming cases, let alone cover the big-ticket items such as payments to medical experts and the creation of complicated exhibits.  Under a contingency fee agreement, family members who lost a loved one don't have to be rich to get their day in court.  The contingency agreement provides access to justice - the keys to the court house.

The lawyer takes on considerable risk with this arrangement.  If the case has flaws that cause it to get dismissed before trial or the claims can't be proven in court, the lawyer doesn't get paid.  That's why most lawyers will be careful about what cases they decide to take on.  That's good for everyone.  The lawyer doesn't want to waste time, energy, and money on a weak claim.  And prospective clients don't want to get their hopes up when there may not be a case.

In most situations, the lawyer's fee will be 25-33.3 percent of the gross settlement or court award.  In some situations, the lawyer may set the contingent fee at 40 percent if the case is difficult and may have to go to trial, to cover the additional time, expense and risk required to take a case that far.  The likely size of the money damages is also a factor in setting a fair contingency fee.  In the event of a settlement or court award, the case expenses are taken from the client's portion of the recovery.

If the client has a concern about the reasonableness of a fee agreement, she has the right to have it reviewed by a court officer.

When you meet with a lawyer, you will have to sign a contract that specifies how the lawyer will be compensated and how the expenses will be paid.  Make sure that the contingency fee arrangement is clearly spelled out.  If you don't feel comfortable with the contract, don't sign it.  If you have questions, make sure you get answers before you sign the document.

The Shocking Truth About Wrongful Death - Part 12

Seek Legal Help

In a routine personal injury claim, sometimes it's possible to proceed without a lawyer, even though it's usually unwise.  People shouldn't even think about trying to handle a wrongful death claim on their own.  These cases generally are far too complicated and technical for most people to tackle by themselves.

For instance, wrongful death claims need to be made through the administrator or executor of an estate.  That means an estate has to be opened through the probate court, which requires an understanding of that legal process.  The lawyer handling your wrongful death claim will do that for you or will consult with a probate lawyer to get it done.  The estate will remain open until the claim resolves.

Sometimes these already complicated cases get trickier because the person who caused the decedent's death also dies in the incident.  In that case, the claim is made against the wrongdoer's estate.  If no one opens that estate, your lawyer will have to open it if you plan to go after estate assets.  Again, that's a technical process that a layperson shouldn't try to handle.

As we discussed earlier, your lawyer has to show the decedent's death was caused by negligent or other wrongful conduct.  On top of that, the lawyer must prove the various elements of the beneficiaries' claims for damages.  The issues involved are complicated even for lawyers who operate in this world every day.

Seek a lawyer who focuses his or her practice on personal injury claims and who has experience working on wrongful death cases.  Lawyers in this field understand the issues the insurance industry and defence lawyers will raise to defeat your claim, and will have the knowledge and experience to fight for your rights.

Your lawyer will have a few options when trying to resolve your case.  Some lawyers file a lawsuit immediately, which has the benefit of putting you quickly on a trial track.  The other path the lawyer might take is negotiating with the insurance adjuster to resolve the case without having to file a lawsuit.  It all depends on the circumstances.

Lawsuits are time-consuming, expensive, and unpredictable.  The benefit of settling a claim with the adjuster is that the client gets compensated sooner and has a certain outcome.  We file suits quickly if the adjuster makes an unfair offer that we know isn't going to get any better or if the two-year statute of limitations is about to expire.

Sometimes going to trial becomes the only option.  When you're looking for a lawyer, make sure you hire someone who is willing to try cases if necessary.  It can take a long time to get to trial, but it may offer your best chance of getting fair compensation for your wrongful death claim.  If you have to go to trial, be prepared for a long wait.  It's not unusual for a trial date to be set years after the claim is filed in court, and trial dates often get postponed.

The Shocking Truth About Wrongful Death - Part 11

Wrongful Death Standards

As mentioned earlier in this book, wrongful death cases are brought because of another party's negligence or wrongful conduct.  It might be helpful to understand a little bit about those concepts.

Just because someone dies doesn't mean a wrongful death case can be justified.  For example, if Bill trips in a grocery store over cans stacked in an aisle, causing him to hit his head and die, there won't be a case.  Under Newfoundland and Labrador law, those cans would be deemed an open and obvious hazard that Bill should have seen, so the store wouldn't be negligent.

If, however, a grocery store employee spilled some clear, liquid soap on an aisle and left it there for hours without cleaning it up or posting a warning sign, and Bill took the same fateful tumble, the store would be negligent.

The point is that a person or entity who causes the death has to be deemed negligent, or at fault, under the law.  Someone is at fault when it is his responsibility to act or behave in a certain way, but fails to, which causes injury or death.  There's a lot of nuance to negligence law, but that's a boiled down version of the concept.  Negligence law essentially asks, what would be reasonable behavior for someone in the shoes of the defendant in all the circumstances, including the risk to the safety of others.

So, one basis for a wrongful death claim is to prove negligence.  The other way is to prove wrongful conduct such as an intentional act that resulted in a death.  For example, if Frank punched Jack without provocation, causing Jack to fall down, hit his head and die, Frank could be sued for causing Jack's death.  In that case, Jack's estate would have to prove that Frank's intentional and wrongful conduct caused Jack's death.

Bringing a civil suit for wrongful death would be appropriate in both of the above examples, assuming there are assets such as insurance which can pay damages.  Winning a lawsuit probably would seem like a hollow victory compared to the loss suffered, but the court system is purposely set up to allow us to work out our differences with other parties in a civil, organized way.

The insurance industry would like to paint everyone who files a lawsuit as a money grubber.  That's ridiculous and it's shameful.  People shouldn't be made to feel guilty for pursuing legitimate claims, especially when a person was killed as the result of negligent conduct.  Family members deserve to be compensated for the mental anguish and loss of financial support they experience due to the wrongful death of a loved one.  You have nothing to be ashamed of when you look out for the best interests of yourself and your family.

The Shocking Truth About Wrongful Death - Part 10

Changes to the Wrongful Death Laws: Amount of Awards

Our legislature changed the wrongful death laws in 2010 to provide for compensation for loss of care, guidance and companionship.  A case decided in New Brunswick by the Federal Court of Canada illustrates the benefit of the new law.

Federal legislation, like Newfoundland and Labrador legislation now, permits family member claims for loss of care, guidance and companionship in wrongful death cases.  The case of Wilcox v. Miss Megan (The), decided in 2008, helps to understand these awards.  The decedent had been working on board a fishing vessel when it foundered and he was drowned.  He was 63 years old at the date of death, and was a husband, father, and brother of two siblings.  The awards for loss of guidance, care and companionship made by the Federal Court were:

- wife............................................................. $75,000

- disabled daughter......................................... 75,000

- adult daughter.............................................. 25,000

- adult son....................................................... 25,000

- brother.......................................................... 15,000

- sister.............................................................. 15,000

Total............................................................ $230,000

So you see that these new awards can be substantial.  But remember that courts assess intangible, non-pecuniary losses such as loss of care, guidance and companionship, by looking at the nature of the relationships involved in the case, on a customized basis.  No two cases are exactly the same.  And remember as well, that courts in our province are conservative.

Although court assessments are customized to the case, conventional awards and guidelines do emerge.  For example, in an Ontario case involving immigrant family members who were very close, the Court of Appeal assessed the value of a deceased 14-year-old's close relationship with his sister at $25,000.  The loss of relationship suffered by the boy's parents was assessed by a jury at trial at $100,000 to each parent.  Although the Court of Appeal felt this to be on the high side, it was not so high as to justify interference.  But remember that an award of $100,000 to a relationship claimant is thought by many to be the rough upper limit to awards of this kind.  It is the exceptional case. 

In 2002, the Alberta legislature set the amount payable for grief and loss of guidance, care and companionship at $45,000 for each child on wrongful death of a parent, and $75,000 on wrongful death of a spouse.  These are legislated, defined amounts and the awards are automatic and without any court assessment needed.   Perhaps these amounts represent a rough consensus of amounts which Canadian society considers to be reasonable compensation for intangible, non-pecuniary losses which cannot be measured in money terms.  The spousal compensation under the Alberta legislation happens to be the same as was awarded on a case-by-case approach in the Wilcox case in New Brunswick I discussed above.  Saskatchewan and Manitoba have legislated awards for amounts payable for loss of guidance, care and companionship which are lower and, as I said before, our courts are conservative and the cases I have just discussed involve best case scenarios.  But the important point is there is potential for significant awards - no longer must lawyers tell grieving loved ones that a legal claim makes no sense because their child or their elderly parent was "worth nothing" in the eyes of the law.

The Shocking Truth About Wrongful Death - Part 9

Damages Available to Beneficiaries

Though it is little consolation to people who have lost a loved one, the way our court system compensates the beneficiaries of a decedent is by awarding money.  Damages - the term used to refer to the various reasons for which financial compensation can be awarded - are available to the estate for the losses of the decedent and to the beneficiaries.

The estate of the decedent can be compensated for the funeral expenses of the deceased, and for pecuniary losses such as loss of earning capacity.  Pecuniary losses can be accurately measured in money terms; non-pecuniary losses such as pain and suffering are intangible and cannot be measured in money terms.  Under our laws, the estate cannot claim for the pain and suffering the deceased experienced as a result of the accident or wrongdoing.  But with the recent amendment to the Fatal Accidents Act, close family members of the deceased can now claim for loss of care, guidance and companionship they have suffered.  As I explained already, the legislature has reformed the law as a result of the Breast Cancer Testing case in which I was involved.

Under Newfoundland and Labrador law, the following damages are available to the beneficiaries:

Out-of-pocket expenses - These are expenses caused by the injury and death and include the reasonable costs of funeral and burial.

Loss of support - This refers to the lost earning capacity of the decedent had he or she not died.  The factors taken into consideration for loss of support would be the salary at the time of the decedent's death as well as the amount of money the decedent reasonably could have been expected to earn in the future had the death not occurred.  Charts called "life tables" are used to calculate how long the decedent would have been expected to live based on such factors as age at the time of death, gender, and race.

Loss of services - Damages for loss of services are available to beneficiaries.  It's a sort of vague claim, but essentially the law allows beneficiaries to collect compensation for services the decedent provided the beneficiaries.  For example, assume Betty was killed as the result of someone's negligence.  If Betty provided daycare for her daughter Leslie's children, Leslie could seek compensation for the money it cost her to secure daycare.  That's not to say that the estate must show all the claimed lost services are attached to a specific dollar amount.  The judge can determine a dollar figure for each lost service.

Loss of society and mental anguish - Under this category, beneficiaries can seek financial compensation for such things as grief and the loss of companionship, care, assistance, protection, advice, guidance, and education provided by the decedent.  Obviously, it is difficult to put a dollar figure on these types of damages because they're not easily quantifiable.  For instance, you can't look in a book to find a figure that would fairly compensate a wife deprived of decades of a future with her deceased husband.  That's the job of your lawyer - to place a dollar amount on the loss of a decedent's society and to justify that amount with a reasoned argument to a judge.  Though it's not readily quantifiable, it's certainly a huge and legitimate loss to the beneficiaries - a loss for which modern systems of justice agree they ought to be compensated.  The problem was that no court in Newfoundland and Labrador had said the law requires that these types of losses be compensated.  Now the legislature has reformed the law.  In the meantime, there is room to make these claims in wrongful death cases before 2010, even though not recognized by our statute law, and settle them on a compromise basis.

The changes to the law of wrongful death made by the legislature in 2010 deserve more explanation.  That's what we'll look at in the next section.

The Shocking Truth About Wrongful Death - Part 8

Relatives Are Beneficiaries

Under the law, wrongful death suits are brought in the name of the executor of the decedent's estate in the name of various beneficiaries.  A beneficiary is someone who is entitled to financial compensation should the case be proven.

In Newfoundland and Labrador, the beneficiaries are relatives of the decedents, such as the decedent's surviving spouse, children, parents, and siblings. 

The court determines how a settlement or award is to be distributed among the potential beneficiaries based on the relationship to the decedent and the degree of loss to the beneficiary.  For instance, if the decedent was the breadwinner in the family, the surviving spouse and children would be given more money than a sibling of the decedent.

If all the beneficiaries are at the same level in the law's eyes - for instance a group of siblings - they can decide among themselves how to divide up the money and ask the court for approval.

Beneficiaries under 19 years old are treated differently by the court in order to protect their interests.  The court typically orders that the money be held in trust by the Public Trustee until the beneficiary turns 19.

The Shocking Truth About Wrongful Death - Part 6

Wrongful Death Claims Controlled by Statute

Wrongful death claims are mostly controlled by the Fatal Accidents Act, RSNL 1990, c. F-6.  The law allows the executor or administrator of the deceased person's estate to bring a claim against the person or entity whose negligent conduct or wrongful act caused the decedent's death.  This law was brought in during the 19^th century and was aimed at allowing widows and orphans to seek financial redress for the loss of a family breadwinner.

A case can be brought if the decedent could have maintained a claim for negligence or wrongful conduct had the death not occurred.  That means the executor would need to show that the other party acted in a negligent or wrongful way, and the wrongful conduct caused the death.  Wrongful death cases can be brought for negligent acts resulting in motor vehicle accidents and medical malpractice, or for criminal acts like murder and manslaughter.  Of course it is necessary for there to be assets available - such as insurance - to pay a settlement or judgment, in order for a lawsuit to be worthwhile.

To prove these cases in a negligence context, the executor must show that the defendant owed a duty of care to the decedent; that the duty of care was breached; that the breach caused the decedent's injuries and death; and that the decedent's estate and beneficiaries suffered damages.

The case must be proven by a standard called "preponderance of the evidence", or "balance of probabilities", which roughly means that the evidence must tilt more in the favor of the executor than the defendant.  Lawyers often explain the standard by telling jurors they just need to prove their case by 50 percent or more, which is well short of the reasonable doubt standard that we've all seen in television dramas depicting criminal trials.

The Shocking Truth About Wrongful Death - Part 3

The Newfoundland and Labrador Wrongful Death Book

A family member's passing causes tremendous pain, but the emotional and financial fallout of a death caused by another's negligence can be devastating.  I hope you haven't picked up this book because you've lost a loved one through traumatic circumstances.  If that is the case, I'm terribly sorry for your loss.

This book provides an overview of wrongful death cases that allows people having to navigate these difficult waters to make informed and educated decisions before ever talking to a lawyer.

Wrongful death cases are inherently complicated, involving everything from probate matters to negligence issues.  These types of cases are often made more difficult because insurance companies representing the wrongdoer often try to avoid liability or offer unfair or inadequate compensation.  Most people have never been through this process and, understandably, don't understand what they're up against when they decide to pursue a wrongful death claim.

Those who haven't been involved in a wrongful death case usually expect that an insurance company will compensate them for the loss of their loved one.  But for many the nightmare is just beginning.  The pain caused by the accident can be compounded by the unfair treatment the victim receives from some insurance companies that have one objective - closing the file for as little money as possible without fair compensation for the injured.

Insurance companies have teams of adjusters and lawyers that they can put to work on defending such claims.  They're professionals - they handle claims involving death and serious injuries all day and every day.  Naturally, they have an advantage over most people who are encountering these issues for the first time.  In our office, we believe knowledge is power.  We think this book will be helpful in leveling the playing field between insurance companies and those who have lost loved ones as a result of someone's wrongful acts.  If you have questions, the lawyers in our office would be happy to answer them.  Just call 709-579-4000 or toll free 888-579-3262.  You can also visit our website at www.ChesCrosbie.com.

The Shocking Truth About Wrongful Death - Part 2

Why Should I Listen To You?

When someone dies because of the fault or negligence of another, it's called wrongful death.

I wrote this book so that you could have good, solid information about wrongful death lawsuits, hiring a lawyer or dealing with an insurance company.  Forget the hype.  This book is not about hype.  It's about the tough, hard fought world of wrongful death and what you can do to improve your odds of winning if you have a legitimate case. 

If the death of a loved one has occurred due to the fault of another, whether by motor vehicle accident, medical malpractice, or any other accident including injury on premises - I can help.

My name is Ches Crosbie and I have been representing individuals against insurance companies since 1983.  I limit my practice to accident and injury cases, and helping people wronged by big corporations and big government; so, if you want a divorce or a will, or have a traffic ticket, I can't help you.

You may know me from my involvement in the Breast Cancer Testing Class Action against Eastern Health, and the Cameron Inquiry.  I am one of the few plaintiff lawyers in Atlantic Canada recommended by peer review publications as having a recognized competence in wrongful death and personal injury.  I was selected by the peer review publication Best Lawyers as Personal Injury Lawyer of the Year for 2009.  I am frequently invited to speak to other lawyers on a variety of topics at continuing legal education programs around the country.  I have written numerous articles for lawyers and consumers.  My firm's popular website has a lot of useful consumer articles and links on a variety of subjects.  Visit www.ChesCrosbie.com if you want to continue your research on wrongful death claims, class actions, and accident and injury claims.

The personal injury lawyers at my office and I have amassed many years of collective skill and experience in accident and injury law.  Obviously, the longer you have been practicing a particular area of the law, the more you will know.  We think experience matters.

We realize that a lawsuit may be the most important event going on in your life right now.  Your case will be personally handled by one of our lawyers - not a non-lawyer paralegal.

We represent many people who have been injured by the fault or negligence of others.  We also represent families of deceased loved ones in wrongful death cases - cases where the fault or negligence of others has caused or contributed to the death.  While each case is different, and past results cannot be used to predict future success, we can tell you that we have been privileged to help our clients and their families recover tens of millions of dollars in settlements and judgments from the insurance companies.  We did this by providing consumers with useful information, and our clients made an informed choice to ask us to help.

With this new book, we take our commitment to providing useful information to the consumer to a whole new level.

The Shocking Truth About Wrongful Death - Part 1

Why Did I Write This Book?

I decided to write this book after sad visitation with the family of Donna Howell, perished at the age of 53 from generalized breast cancer.  Donna was one of those many patients of Eastern Health whose hormone receptor testing was bungled.  I was class counsel to the patients.  Donna didn't get the life-saving drug Tamoxifen.

It was not the time to tell Donna's husband Darryl Howell the shocking truth:  in our province it is cheaper to kill than to maim.  The first step I took was to write an open letter to Premier Danny Williams.  It was published in The Telegram.  The letter went like this.

Premier Williams, you were once a personal injury lawyer, and a very good one.  Once, you too revolted against the shocking truth that dead people are worth less in money damages than the living.  Your educated lawyer's conscience still revolts at this truth.

In your province, the law of compensation for intangible losses surrounding death has not changed since the days when the British Empire permitted slavery.  Our still-existing law stems from a time when life was not just cheap, it was worthless.  But as an educated lawyer, you know this.

In the rest of Canada, the wrongful loss of the society and comfort of a loved one is compensated and has been for decades.  As an educated lawyer, you know this.

In the rest of Canada, the pain and suffering of a victim of wrongdoing is compensated even though the victim dies.  As an educated lawyer, you know this.

Many times have courts, even the Supreme Court of Canada, condemned the wrongful death laws we still enforce.  Courts have condemned the laws we enforce as inhuman, barbaric, anachronistic, and out of step with modern conceptions of fairness and justice.  As an educated lawyer, you know this.

As an educated lawyer, you know that modern conceptions of fairness and justice demand that our laws of wrongful death be reformed.  Better to reform these laws in the Legislature; but the time has come for court-driven law reform if government fails in the task.  Many more like Donna will perish while court process grinds toward reform.

Donna's husband Darryl Howell still has faith in your commitment to fairness and justice.  Others will wait and see.

We settled the Breast Cancer Testing class action for $17.5 million, and for deceased class members and their families we negotiated the same compensation as living class members.  And I am particularly pleased that the government of Premier Williams announced in December 2009 that it would reform the law of wrongful death.  As one MHA stated in the House of Assembly during debate:

The Supreme Court of Canada has condemned the wrongful laws that we still enforce, and it seems, Mr. Speaker, that we are really out of touch with the modern conceptions of fairness and justice. 

Hear, hear!

Now finally, the laws have been reformed.  As of 2010, the legislature passed the following clause into law as an amendment to the Fatal Accidents Act:

6.(2)  The damages awarded under subsection (1) may include an amount to compensate for the loss of care, guidance and companionship that a person for whose benefit the action is brought might reasonably have expected to receive from the deceased if the death had not occurred.

The law of our province has finally been brought into step with modern conceptions of fairness and justice.  My hope is that families victimized by wrongful death can benefit from this law - and from this book, which is dedicated to them.

Wrongful Death: What Breast Cancer, Swine Flu, and Cougar Helicopter Have In Common

The shocking truth that unifies these topics is the antiquated state of Newfoundland and Labrador law of wrongful death and the welcome decision of the Danny Williams government to change it.

 In the Breast Cancer Testing class action, we came up against the defense position that they should pay nothing for patients already dead. 

The families of the Cougar Helicopter crash victims come up against the same problem.  Newfoundland law says that the dead are worth nothing.  This is a major reason for the families of the victims to seek a venue in the courts of the United States, where substantial damages to compensate for this loss, insofar as money can do so, are available.

My firm is investigating cases of injury and death from H1N1 swine flu.  These cases meet our test where death or injury is due to negligent failure to diagnose and treat, and where the failure - medical malpractice - caused the injury or death.  All too often, a missed opportunity to treat has led to death.

What these high profile cases - Breast Cancer Testing, H1N1 Swine Flu, and Cougar Helicopters - have in common is the awful consequence of death and the failure of our civil justice system to recognize it in money damages.

What the families of wrongful death victims need is civil justice laws with real teeth, teeth that make wrongdoers pay.  The Danny Williams government seems to be moving on wrongful death law reform - based on my prompting and the experience of the Breast Cancer Testing class action.  Godspeed the legislators on this needed law reform.

Government Decides to Modernize Compensation for Wrongful Death

In my blog and letter to The Telegram in October 2009 "The Shocking Truth About Wrongful Death", I sought to bring the attention of the legislators to the backward state of the law of Newfoundland and Labrador.  Our law makes no provision for compensation of estates for pain and suffering, and no provision for compensation of close family members of victims of wrongful death.  Now in a move which has received less press than it deserves, the legislature has seen the introduction of a private members resolution aimed at much needed reform of this primitive area of our law, and yesterday December 16, the government adopted the initiative and will strike a select committee to make recommendations for amendment of the laws.  My name even got a mention in debates.

Anyone who takes a look at our law of wrongful death will agree that it is not in step with modern conceptions of justice and fairness.  In the interests of needed law reform, I propose Compensation Modernization Act.

The amendments to the Survival of Actions Act are necessary in order to permit estates to claim for pain and suffering experienced by a deceased prior to the death.  This is done in Ontario and elsewhere.

The amendments to the Fatal Accidents Act are necessary in order to permit persons in a close family relationship with a deceased to claim for loss of care, guidance and companionship on a non-pecuniary basis.

When the Supreme Court of Canada reformed the law in 1998 in the Ordon Estate case, it did so on behalf of persons in a close family relationship with deceased persons and with injured persons, in other words persons who had not died of their injuries.  Therefore the inclusion of provisions seeking to extend the right of compensation to close family members in relation to injured persons.

I have for the most part followed the language of the Marine Liability Act, 2001, c. 6, sections 4, 5 and 6, which was Parliament's response to Ordon Estate, inserting a legislative right to compensation in the relevant legislation.  Here are links to the Ordon Estate case and the Marine Liability Act.

 I wish our legislators good luck and God speed with this much needed piece of modern law reform.

A death that still leaves questions - seven years later (Part II)

Imagine our reaction when we were told that our sister’s/daughter’s life was essentially worthless in the eyes of the law; a pretty tough pill to swallow.  Of course had the outcome been different, had she been left in a coma for life or otherwise permanently incapacitated, the potential result would be different.  As Mr. Crosbie pointed out, “…the shocking truth:  it is cheaper to kill than to maim.”

So where has this left our family?  We have tried, with the help of some friends, to pursue the matter directly with Eastern Health.  We naively filed a Freedom of Information request seeking a variety of information surrounding the death.

Guess what?  We are being totally stonewalled by Eastern Health.

Of course, they can see we don’t have a lawyer so they figure we don’t have the resources to pursue this and will ultimately just go away.

Notwithstanding the Cameron inquiry, nothing has changed with regard to accountability and transparency at Eastern Health.  They’ve got one thing wrong though:  we aren’t going way.

A death that still leaves questions - seven years later (Part I)

The following letter to the editor appeared in The Telegram October 17, 2009 as a response to my piece “The Shocking Truth About Wrongful Death”.  It’s time for Premier Williams to do some needed law reform.  My condolences to the Browne family.

I am writing in response to the letter to the editor from Ches Crosbie, published in your Sept. 29 edition, which you headlined “The shocking truth about wrongful death claims.”

Our family is living with the horrible truth of Mr. Crosbie’s assertions.  Our sister/daughter passed away suddenly in the Emergency Department of the Health Sciences Centre on Jan. 13, 2002.  She was 36.  During 2008, we were provided with very credible information (the source of which would not be appropriate to disclose in this letter) to the effect that our sister had died as a result of medical mistreatment that evening. 

After the initial shock of receiving this type of information six years after her death subsided, we felt we had no alternative but to try to seek out the truth.

Suit useless
As our family did not and does not have the resources to pay for a costly discovery and legal proceeding against Eastern Health, we approached a number of local lawyers that deal with these types of cases on a contingency basis – i.e. they would only be paid from a portion of any settlement or judgment ultimately received.

It was then that we found out what Mr. Crosbie was referring to in his letter.  Our sister/daughter had a relatively low-paying job but had no dependents.  She was a source of constant love, assistance and support for our parents, with whom she lived, but they were not her dependents.

We were essentially advised that, even if we were successful in proving wrongful death, the courts would likely only award a relatively small amount of damages and that such an amount would not justify the time and expense (and risk) that a lawyer would incur in pursuing a matter of this nature.