By Donald J. Renaud, Campbell, Renaud Trial Lawyers
1607 …because we need to start somewhere, we start with primitive English legal history: Higgins v Butcher, Yelv 90;
In this case Mr. Higgins brought action against Mr. Butcher for the beating death of Mrs. Higgins, his wife. However, this was also an offence to the Crown. As felonious death was punishable by death and all property of a convicted felon would be forfeited to the Crown, there would be nothing left to compensate those who had been damaged by the victim’s death. Thus what became known as the Felony Merger Doctrine worked to subsume the civil tort action and it was dismissed.
1808 Flash forward 200 years to Lord Ellenborough’s instruction to the civil jury in Baker v Bolton, 1 Campb 493 (Baker). Mr. Baker brought action against the proprietors of a stagecoach which overturned injuring his wife. She succumbed to her injuries a month later. He claimed he “had wholly lost and been deprived of the comfort, fellowship, and assistance of his said wife, and had from thence hitherto suffered and undergone great grief, vexation, and anguish of mind.” (Baker at 493).
Lord Ellenborough instructed the jury they were to take into consideration only the loss of the wife’s society and Mr. Baker’s distress of mind from the time of the accident until the moment of her death. He then famously set out that “in a civil court, the death of a human being could not be complained of as an injury.” (ibid).
Lord Ellenborough cited no authority and stated no reason. However, this statement of the law has been accepted as the definitive statement of the common law respecting wrongful death. Scholars have posited he was misapplying the Felony Merger Rule and others that this was an application of Roman law which emphasized the difference between a freeman and a slave (Francis B. Tiffany, Death by Wrongful Act (Washington, DC: Beard Books, 2000). A slave could be bought and sold at a value determined by the marketplace, but no price could be placed on the life of a freeman upon his death. The debate mattered little as we moved into modern times with the advent of common rail transportation.
1846 Expansion in rail travel led to increases in railway injuries and deaths in a way that called for legislation to correct the common law. The U.K. parliament passed the Fatal Accidents Act, 1846 (UK), 9 & 10 Vict, c 93 (the “Act”), more commonly referred to as Lord Campbell’s Act. The Act could have simply abrogated the rule in Baker. Instead it restricted the class of eligible plaintiffs to the deceased’s parents, spouse and children. Though not originally restricted by the statutory wording, it was soon that courts in England began restricting recovery to economic or pecuniary damages resulting from the death. Soon after passage, Lord Blackburn, in Seward v Vera Cruz (1884), 10 AC 59 at 70-71, said:
“A totally new action is given against the person who would have been responsible to the deceased if the deceased had lived, — an action which….is new in its species, new in its quality, new in its principles, in every way new, and which can only be brought if there is any person answering the description of the widow, parent, or child, who, under such circumstances, suffers pecuniary loss.”
British law imported by North America: the Americans move forward
Lord Campbell’s Act became the model for legislation throughout Canada, but also the United States, beginning with New York in 1847 (Tiffany, Death by Wrongful Act, at 21). Suffice it to say that it did not take the Americans over 150 years to address legislative inadequacies. Today in the U.S. states closest to British Columbia, for example, the rights and remedies of those seeking to bring action are much broader:
Washington: RCW 4.20.020 (Wrongful Death – Beneficiaries of Action)
Every such action shall be for the benefit of the wife, husband, state registered domestic partner, child or children, including stepchildren, of the person whose death shall have been so caused. If there be no wife, husband, state registered domestic partner, or such child or children, such action may be maintained for the benefit of the parents, sisters, or brothers, who may be dependent upon the deceased person for support, and who are resident within the United States at the time of his or her death.
In every such action the jury may give such damages as, under all circumstances of the case, may to them seem just.
Alaska: Alaska Stat § 09.55.580 (Action for Wrongful Death)
(a) Except as provided under (f) of this section and AS 09.65.145, when the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had the person lived, against the latter for an injury done by the same act or omission. The action shall be commenced within two years after the death, and the damages therein shall be the damages the court or jury may consider fair and just. The amount recovered, if any, shall be exclusively for the benefit of the decedent’s spouse and children when the decedent is survived by a spouse or children, or other dependents. When the decedent is survived by no spouse or children or other dependents, the amount recovered shall be administered as other personal property of the decedent but shall be limited to pecuniary loss. When the plaintiff prevails, the trial court shall determine the allowable costs and expenses of the action and may, in its discretion, require notice and hearing thereon. The amount recovered shall be distributed only after payment of all costs and expenses of suit and debts and expenses of administration.
(b) The damages recoverable under this section shall be limited to those which are the natural and proximate consequence of the negligent or wrongful act or omission of another.
(c) In fixing the amount of damages to be awarded under this section, the court or jury shall consider all the facts and circumstances and from them fix the award at a sum which will fairly compensate for the injury resulting from the death. In determining the amount of the award, the court or jury shall consider but is not limited to the following:
(1) deprivation of the expectation of pecuniary benefits to the beneficiary or beneficiaries, without regard to age thereof, that would have resulted from the continued life of the deceased and without regard to probable accumulations or what the deceased may have saved during the lifetime of the deceased;
(2) loss of contributions for support;
(3) loss of assistance or services irrespective of age or relationship of decedent to the beneficiary or beneficiaries;
(4) loss of consortium;
(5) loss of prospective training and education;
(6) medical and funeral expenses.
(d) The death of a beneficiary or beneficiaries before judgment does not affect the amount of damages recoverable under this section.
(e) The right of action granted by this section is not abated by the death of a person named or to be named the defendant.
(f) A person whose act or omission constitutes the felonious killing of another person may not recover damages for the death of that person either directly or as a personal representative of that person’s estate. In this subsection, a “felonious killing” means a crime defined by AS 11.41.100 – 11.41.140.
Hawaii: Haw Rev Stat § 663-3 (Death by Wrongful Act)
663-3 Death by wrongful act.
(a) When the death of a person is caused by the wrongful act, neglect, or default of any person, the deceased’s legal representative, or any of the persons enumerated in subsection (b), may maintain an action against the person causing the death or against the person responsible for the death. The action shall be maintained on behalf of the persons enumerated in subsection (b), except that the legal representative may recover on behalf of the estate the reasonable expenses of the deceased’s last illness and burial.
(b) In any action under this section, such damages may be given as under the circumstances shall be deemed fair and just compensation, with reference to the pecuniary injury and loss of love and affection, including:
(1) Loss of society, companionship, comfort, consortium, or protection;
(2) Loss of marital care, attention, advice, or counsel;
(3) Loss of care, attention, advice, or counsel of a reciprocal beneficiary as defined in chapter 572C;
(4) Loss of filial care or attention; or
(5) Loss of parental care, training, guidance, or education, suffered as a result of the death of the person;
by the surviving spouse, reciprocal beneficiary, children, father, mother, and by any person wholly or partly dependent upon the deceased person. The jury or court sitting without jury shall allocate the damages to the persons entitled thereto in its verdict or judgment, and any damages recovered under this section, except for reasonable expenses of last illness and burial, shall not constitute a part of the estate of the deceased. Any action brought under this section shall be commenced within two years from the date of death of the injured person, except as otherwise provided. [L 1923, c 245, §1; RL 1925, §2681; am L 1931, c 16, §1; am L 1933, c 139, §1; RL 1935, §4052; RL 1945, §10486; am L 1955, c 205, §1; RL 1955, §246-2; HRS §663-3; am L 1972, c 144, §2(c); am L 1997, c 383, §20]
Canada pokes along…starting in the East
Twenty-six years ago, Ontario added s 61 to its Family Law Act, RSO 1990, c F.3. The class of claimants is broadened to add grandparents and siblings. The section still restricts damages to pecuniary loss. However, it broadly defines pecuniary damages to include loss of companionship. This has empowered Ontario courts to award damages akin to non-pecuniary damages. In so doing it had added to categories of pecuniary loss such as we have—loss of financial support, loss of inheritance, loss of services, loss of care and guidance.
The Ontario Court of Appeal set an upper limit on loss of companionship damages in To et al v Toronto Board of Education et al, 2001 CanLII 11304 (ONCA). A jury had awarded $100,000 to each parent of a deceased child. This was considered to be a high but not reversible number. In Fiddler v Chiavetti, 2010 ONCA 210, the OntCA fixed a new upper limit at $125,000 taking into account inflationary factors.
McIntyre v Grigg, 2006 CanLII 37326 (ONCA), specified that “companionship” is the “loss of the rewards of association which flow from the family relationship”. For example, in MacDonald v Duncan, 2015 ONSC 7135 Bernadette MacDonald was killed by a negligent driver at about age 58. She had had a very close relationship with her two sisters Mary and Martina MacDonald who were both in their 60s by the time of trial. None of the 3 sisters ever married, lived with another companion or had children. Mary and Martina were each awarded $35,000 for loss of companionship in an Ontario wrongful death action brought pursuant to the Family Law Act, RSO 1990, c F.3.
The trial division in Prince Edward Island added loss of companionship to the long defined pecuniary damages category of care and guidance. The Court of Appeal of Newfoundland and PEI were sympathetic and called for overdue legislative reform to PEI’s legislation, but adhered to precedent and over ruled the modest $25,0000 award made for loss of an 11-year-old child, Reeves Estate v Croken, 1990 CarswellPEI 66 at para 8:
“Many believe that dependents should be able to recover damages from a wrongdoer for the non-pecuniary, but nevertheless real, loss of care, guidance and companionship they would have received from a deceased parent, child or spouse. However, if that is to become the law in this Province, there must be an amendment to the Fatal Accidents Act to allow for it. That is a matter for the legislature, not the courts. A number of other Provinces have already made such an amendment to their legislation. Perhaps this Province should consider doing likewise.”
It took the PEI legislature only two years to amend its Fatal Accidents Act, RSPEI 1988, c F-5, enabling courts to award additional damages—most notably for loss of companionship. Other provinces with similar legislation were New Brunswick, Nova Scotia, Newfoundland and Labrador, Quebec, and Ontario.
Quebec is very interesting as they have Solatium doloris. Solatium doloris is a compensable head of moral prejudice in Quebec civil law under articles 1053 and 1056 CCLC. In civil law, any prejudice, whether moral or material, even if it is difficult to assess, is compensable if proven. Accordingly, compensation is given, not just for grief, but also for distress. This distress is the sense of profound injustice felt when someone close dies as a result of a wrongful act. The civil law recognizes moral damages. French law has always recognized that compensation is available for the moral prejudice resulting from the death of a close relative or friend, and this is also the case in Quebec civil law. (Augustus v. Gosset,  3 SCR 268 (CanLII).)
The rodeos and the goat rodeo
A word about the rodeo provinces: Alberta, Saskatchewan, Manitoba and their ‘meat chart’ legislation. Just as the loss of an arm or a leg would fetch a specified amount on a payment table, the loss of a life has a precise value set out in statute. There is no process by which regard is had to the individuality of the life wrongfully ended. There is no regard to the dignity of the individual. A machine can be programmed to spit out a cheque in the statutorily set amount. (Alberta: Fatal Accidents Act, RSA 2000, c F-8, Saskatchewan: The Fatal Accidents Act, RSS 2000, c F-11, and Manitoba: The Fatal Accidents Act, RSM 1987, c-F50.)
Reference has been made to the rodeo provinces and now it is time to turn full attention to the goat rodeo province of British Columbia.
In British Columbia, being the former colonial backwater that we are, with the Union Jack still proudly flying outside the courthouse at Hornby and Nelson, we have exceedingly outdated wrongful death laws—even by Canadian standards.
The state of the law in BC is well set out in two excellent CLE publications: The British Columbia Motor Vehicle Accident Claims Practice Manual, 3d ed (Vancouver: The Continuing Legal Education Society of British Columbia, 2012), chapter 13 and Civil Jury Instructions, loose-leaf (2016 update), 2d ed (Vancouver: The Continuing Legal Education Society of British Columbia, 2009), chapter 14. Anyone handling a claim of this nature should consult these publications as a first step.
Section 150 of the Wills, Estates and Succession Act, SBC 2009, c 13 (WESA) is essential reading as it provides for the survival of actions following death.
Proceedings by and against estate
150 (1) Subject to this section, a cause of action or a proceeding is not annulled by reason only of the death of
(a) a person who had the cause of action, or
(b) a person who is or may be named as a party to the proceeding.
(2) Subject to this section, the personal representative of a deceased person may commence or continue a proceeding the deceased person could have commenced or continued, with the same rights and remedies to which the deceased person would have been entitled, if living.
(3) Subsections (1) and (2) do not apply to a proceeding for libel or slander or a proceeding under section 1 [violation of privacy actionable] or 3 [unauthorized use of name or portrait of another] of the Privacy Act.
(4) Recovery in a proceeding under subsection (2) does not extend to
(a) damages in respect of non-pecuniary loss, or
(b) damages for loss of future income for a period following death.
(5) A person may commence or continue a proceeding against a deceased person that could have been commenced or continued against the deceased person if living, whether or not a personal representative has been appointed for the deceased person.
(6) A proceeding under subsection (5) may be commenced naming as defendant or respondent
(a) the personal representative, if any, or
(b) the deceased person.
(7) A proceeding under subsection (5) in which the deceased person is named as defendant or respondent is valid despite the fact that the deceased person is not living when the action or proceeding is commenced.
(8) All proceedings under this section bind the estate of the deceased person, despite any previous or subsequent appointment of a personal representative.
(9) This section is subject to section 10 [limitation of actions, election and subrogation] of the Workers Compensation Act.
(10) Nothing in this section affects any rights under
(a) the Family Compensation Act, or
(b) section 103 [liability of employer] of the Workers Compensation Act.
(11) In a proceeding under subsection (2), the court may award damages to the personal representative of the deceased person in respect of reasonable expenses of the funeral and disposal of the remains of the deceased person, in addition to the remedies to which the deceased person would have been entitled if living.
Two key subsections are worthy of note:
S 150 (4) of WESA prohibits recovery for non-pecuniary loss and damages for future loss of income following death.
S 150 (10) of WESA sets out that nothing in s 150 affects any rights under the Family Compensation Act, RSBC 1996, c 126.
The Family Compensation Act, RSBC 1996, c 126 (Family Compensation Act) is little more than a knock off of the old Lord Campbell’s Act. All that brings it forward to today’s reality is its name, rather than the usual “Fatal Accidents Act” and the addition of “stepparent” to the class of available claimants.
Section 2 of the Family Compensation Act entitles a child, parent, or stepparent to advance a claim against a tortfeasor, even though the “death has been caused under circumstances that amount in law to an indictable offence”. (This is reference to very primitive English law: the old Felony Merger Rule.)
Just as in the old 1846 legislation, s 3(2) of the Family Compensation Act empowers a “court or jury to give damages proportioned to the injury resulting from the death to the parties respectively for whose benefit the action has been brought.” In other words, how has the death injured the claimant?
Over the years the courts have recognized a few different pecuniary heads of damages: loss of support or maintenance for dependents, loss of inheritance, loss of care and guidance, loss of services and so forth. The Family Compensation Act itself does not prohibit non-pecuniary damages and WESA is explicitly subservient to the FCA. Interestingly, the Court Order Interest Act, RSBC 1996, c 79, s 2 (e) contemplates an award by the court of non-pecuniary damages in wrongful death cases, by prohibiting the award of prejudgment interest on such awards.
The failure to award non-pecuniary damages in wrongful death cases seems to be sanctioned by blind adherence to old English precedent in much the same fashion as the error of deference to the Felony Merger Rule found its way into the common law and then stuck around for no good reason for centuries.
In BC, those who wrongfully take the lives of others enjoy tort immunity in innumerable cases where there is little or no pecuniary loss. This is possible because children, the elderly, and often the seriously disabled are financial dependents. When they are wrongfully killed, it is usually a pecuniary benefit to those who may be financially responsible for their care. There are no damages available for loss of companionship or because of moral prejudice/distress due to injustice. As a consequence, many lives are worthless in the eyes of BC law.
In BC, this even extends to punitive damages. Allen Estate v Co-Operators Life Insurance Co, 1999 BCCA 35 followed by Glen v Seair Seaplanes Ltd, 2012 BCSC 1726 confirmed this. McDonald v. Queen of the North (Ship), 2008 BCSC 1777 demonstrated how the punitive costs regime in BC militates against plaintiffs who venture forth with litigation in the hopes of using the common law to find a crack in the legislative wall. In Alberta, on the other hand, punitive damages were successfully claimed in Steinkrauss v Afridi, 2013 ABCA 417.
As for wrongful death law reform in BC, we are approaching the 10th anniversary of the Green Paper on reform of the Family Compensation Act. In 2007 the Provincial Ministry of Attorney General issued a call for responses to its discussion paper, “Reforming British Columbia’s Family Compensation Act”. It received submissions from the Trial Lawyers Association of BC, the BC Coalition Against No-Fault, the Insurance Bureau of Canada, the Canadian Medical Protective Association, and the Insurance Corporation of British Columbia. Only ICBC was adverse to reform of any kind.
Doing nothing is a choice and since the Green Paper nearly 10 years ago the Government of BC has done nothing. Accordingly the decision has been made to maintain the existing law in BC.
This does not stop people from demanding reform. If the state of the law is widely known, Victoria may be obliged to respond. In the past 10 years a grassroots group has sprung up to attempt to educate the public and advocate change. An informal group for years, it now exists as the BC Wrongful Death Law Reform Society.
Responsibility for the sorry state of the law rests with Victoria. The BC government is fully aware of its own neglect. As practitioners we should not be apologizing to those who lose a child, an elderly parent or a relative with disabilities to wrongful death. It would be of great assistance if the Bar were to become alive to the issue.
- Legislation proposed by the BC Wrongful Death Law Reform Society: Wrongful Death Accountability Act (appended).