News

No compensation for grief: Courts rarely offer financial awards to families who lose a child or grandparent to negligence

As seen in the Vancouver Sun by Rick Ouston, November 13, 2000.

Under B.C.’s Family Compensation Act, their families can sue the negligent party, but likely will be unable to recover the costs of those lawsuits out of potential damage awards.

The Vancouver Sun has learned the Trial Lawyers Association will ask the provincial government to change the Family Compensation Act so families can sue for punitive and aggravated damages, and awards for grief and loss of companionship. Changes in B.C.’s law would give lawyers the opportunity to prove negligence in court, [Nathan Smith] said.

Children who die as a result of negligence have no value in B.C. courts.

Neither do older people who are no longer working.

Under B.C.’s Family Compensation Act, their families can sue the negligent party, but likely will be unable to recover the costs of those lawsuits out of potential damage awards.

“This is an area of law that cries out for reform,” says Nathan Smith, a full-time medical malpractice lawyer.
“It’s sad, because people we’re dealing with, obviously it’s a very important event in their life, a very tragic event, and to sit there and have to reduce it to money and tell them that it’s not worth it, is a very difficult thing to do. But I have to tell them I don’t make the law, my job is to tell them what it is.”

Smith says that, on average, he gets a call every week or so from someone who has reason to believe a loved one died through negligence. But because he relies on contingency fees to pay for his time and costs, he can’t afford to take on the cases, he said.

“If it’s the death of a child or the death of an elderly patient, then there’s often no economically viable claim,” said Smith, a past- president of the Trial Lawyers Association of B.C.

Whether they were killed in car accidents in which someone else was at fault, or through acts of medical malpractice, as the law stands now, the courts cannot award their survivors significant compensation solely for grief or loss.

Large financial awards are granted only when it can be proven that people killed through a negligent act suffered a loss of income upon which their families depend. Hence, children who have not yet started work, and elderly people who no longer work, are deemed to have no “pecuniary” value, and there is little or nothing for which to compensate their families.

The result is that some cases of negligence are never proved.

The Vancouver Sun has learned the trial lawyers association will ask the provincial government to change the Family Compensation Act so families can sue for punitive and aggravated damages, and awards for grief and loss of companionship.

The association has asked for a meeting with the government in December to push a proposal that B.C. follow the example of several other provinces that already have laws allowing such suits.

The issue of family compensation and medical negligence was featured Saturday in a Vancouver Sun story on the death of Heidi Klompas, a 17-year-old girl who suffered two broken legs after being hit by a car.

A coroner’s investigator determined she died after globules of fat from the marrow of her bones infiltrated her bloodstream and her brain.

Heidi’s mother, Catherine Adamson, said lawyers have told her she has grounds for a lawsuit over the death of her daughter, but the cost would be prohibitive.

Smith said it’s a simple matter of economics that he cannot take on a case unless the end result is going to be an award “well into the six figures.”

Figures supplied by the Law Society of B.C. show lawyers routinely charge contingency fees of up to 40 per cent of the final award in a medical malpractice case.

It has to be that high, said Smith, “because of the costs involved and the time involved and the risk involved, both to the client and to the lawyer, if the lawyer’s doing the case on a contingency basis.”

Statistics released by the Canadian Medical Protective Association, the self-insurance company for doctors that is funded mostly by Canadian taxpayers, show that during the past few years, doctors have won three times as many cases as they have lost. When doctors win, lawyers working for the plaintiff on a contingency basis get paid nothing.

“You’ve done a lot of work that you haven’t been paid for, plus you may have had to front disbursements [payments for documents and other fees] which your client can’t repay,” Smith said.

A B.C. Supreme Court judge has called the fight between the CMPA and aggrieved parties “an uneven one between a well-funded professional organization on the one hand and the injured party … on the other.”

In a 1996 judgment that centred on whether a 35-per-cent contingency fee should be permitted, Justice H.A.D. Oliver noted that “were it not for the existence of the contingency fee system … only the very rich would have the opportunity of pursuing a medical malpractice claim through trial.”

He added: “Contingency fee agreements, sometimes described as the poor person’s key to the courthouse door, are currently the only way by which many a deserving injured individual may procure legal representation in a medical negligence case.”

The trial lawyers association — in a proposal drafted last year by Nanaimo lawyer Chuck Blanaru, chairman of the association’s legislative committee — says people should be able to sue for punitive and aggravated damages.

“Despite being non-pecuniary, these damages should be awarded in appropriate circumstances and, in the case of punitive damages, notwithstanding a criminal conviction arising from the same conduct,” it says.

The proposal has been circulated to advocacy groups during the past year and will be given to government in December, association executive director Carla Terzariol said.

The proposal notes that laws in New Brunswick provide for damages to parents for loss of companionship of a child killed in a negligent act. And Alberta’s Fatal Accidents Act awards $40,000 for the loss of a spouse or a child, and $25,000 for the loss of a parent, without survivors having to prove they are out of pocket.

Changes in B.C.’s law would give lawyers the opportunity to prove negligence in court, Smith said.
“I think it is well past time that the law in British Columbia recognize that the death of a loved one is not purely an economic matter, and that it recognize both the loss potential of the individual, and the effect that loss has on members of the family,” he said.

PDF – No Compensation for Grief (retrieved from ProQuest archives)



About the BC Wrongful Death Law Reform Society

‘In Their Name’ is the campaign of ‘The BC Wrongful Death Law Reform Society’ – a BC registered non-profit organization comprised of volunteer families who have lost a loved one to wrongful death in BC and were denied access to justice. In response to the biggest human rights issue facing the province today, our goal is to modernize British Columbia’s antiquated wrongful death legislation, which predates confederation (1846). Under current legislation, the value of a human life is measured only by the deceased’s future lost income, so long as they had dependents.

As a result of the province’s antiquated law, access to justice has been denied to the families of the wrongfully killed who do not meet this discriminatory criteria. This has affected especially vulnerable groups, namely children, seniors, the disabled, and anyone without dependents when they are killed by the negligent or intentional acts of another.

BC is presently the last of all the provinces, yet to have undertaken this critical legislative modernization to allow for dignity, value, and protections for all its citizens under the law.

When it’s ‘free’ to kill in BC, wrongdoers are not held accountable. This lack of general deterrence holds the province back in terms of incentivizing innovation of safety measures and protocols to prevent wrongful deaths in the first place.


Here’s How You Can Get Involved…

The Attorney General of British Columbia, Murray Rankin, is the Minister responsible for the ‘Family Compensation Act’ – the guiding piece of legislation that the civil courts must follow in cases of wrongful death. Minister Rankin receives feedback from the regional ‘Members of the Legislative Assembly’ (MLAs) and follows orders from the Premier, David Eby (the former Attorney General who is also very familiar with this issue).

Reform is presently at a standstill, as the BC NDP government does not presently view access to justice for the surviving family members of the wrongfully killed as a priority in this province. This is despite the fact that the families behind our Society have been fighting for modernization for over two decades. And despite the fact that all other provinces, including the Yukon, have already modernized in most cases long ago.

The only way to move this forward is by creating massive public awareness and outcry for legislative modernization. Only under the scrutiny of the public and the media will our politicians be forced to take this necessary, and long overdue action.

How many more people will need to die from the same preventable wrongful actions before our politicians will do their job?

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