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.