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.