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.