The Shocking Truth About Wrongful Death - Chapter 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 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.