The Fatal Accidents Act needs a second look

The Fatal Accidents Act addresses compensation received by individuals in the wake of the wrongful death of a family member.

The Fatal Accidents Act addresses compensation received by individuals in the wake of the wrongful death of a family member. The Yukon government has tabled amendments to the act this sitting, but you probably won’t hear much debate about it in the legislature or read much about it in the paper.

Such a sensitive topic is nearly impossible for politicians to discuss, as any debate is inevitably reduced to the following statement: “Mr. Speaker, why is the member opposite against compensation for grieving families?”

So I thought I would review the proposed legislation before it passes unnoticed and provide some thoughts. Before you read on, please be assured that I am in no way against grieving families receiving compensation for loss; rather, I am interested in discussing the balance between payment and bereavement in a way that politicians, due to the nature of their job, are unable to do.

It is important to note that the current Fatal Accidents Act already provides that children, spouses and parents may sue a wrongful party for out-of-pocket funeral expenses and any quantifiable losses (i.e. the ongoing loss of wages from a deceased bread-winner) stemming from the death of a loved one.

The proposed amendments open the door for those same parties to claim fixed damages as compensation for grief suffered and loss of companionship. These bereavement damages are in addition to, and do not replace, any out-of-pocket funeral expenses and any quantifiable damages already available to families.

Under the proposed amendment an individual who loses a spouse will receive $75,000, a child who loses a parent receives $45,000, and a parent who loses a child receives $75,000 (if there are two parents, each receives half).

It is somewhat an exercise in quantifying the unquantifiable, as putting a price on the grief associated with the loss of a loved one is impossible. Yet the purpose of the amendment is to quantify that grief and, as Yukoners pay for these damages in the form of insurance premiums, it bears reviewing the balance struck by the legislature.

When considering the appropriateness of damages we must first consider the purpose of awarding the damages in the first place. In our case the damages cannot simply be payment for the general grief of loss, as the human condition ensures that we all eventually lose the ones we love.

The damages must logically relate to premature loss of life, compensation for the grief associated with losing a close relation sooner than expected, and the repercussions flowing from same.

It is in delivering on this purpose that the proposed amendment falls down. The fixed nature of the bereavement damages have the effect of potentially granting large awards to individuals who perhaps do not warrant them, while depressing payments to individuals who do warrant them.

As an example, under the proposed amendments a 60-year-old estranged son losing an 80-year-old father would see the same award as a 20-year-old son who lost a father with whom he was close. This is not the most efficient of outcomes, as a person with no emotional connection losing an individual nearer the end of their life receives the same payment as someone suffering a severe emotional blow as his adult life begins.

Conversely, an 80-year-old father losing a 60-year-old son sees the same compensation as a 40-year-old father losing a 20-year-old son. It would be fairer and more efficient to have flexibility in the awards granted to adults who lose adult family members by granting the courts the authority to determine awards commensurate with loss.

Fixed amounts make more sense in cases we are sure that the loss is substantially premature and/or we are reasonably sure of the emotional toll. The losses of dependent children and spouses are examples of such cases. There is no doubt that the loss of a dependent child is premature, and that an emotional connection exists between spouses (or else they would presumably separate).

When the Alberta Law Reform commission investigated bereavement damages the main issue they identified was parents being unable to work for long periods after the loss of a child, and the need to ensure compensation for that loss of income. This is a strong economic rationale for introducing a fixed payment, as grieving parents currently have no avenue to address losses suffered from an inability to return to work.

Following the above, it is my opinion that we would achieve more appropriate bereavement damage awards by providing fixed payments to spouses and parents of dependent children while moving to a flexible award for other adults suffering losses.

Adults suffering losses of adult children or parents would apply to court for a determination of the losses based on a given situation. This does have the downside of forcing individuals to possibly attend court to argue over what a child or parent meant to them, but it will ensure that the damages are commensurate with a given loss.

Again, this is a difficult topic to discuss, as it is very easy to create a negative sound-bite out of a given position, but I would encourage the government to revisit the amendment to the act before final reading and bring in a hybrid award system that ensures appropriate bereavement damages to appropriate individuals.

Graham Lang is a Whitehorse lawyer and long-time Yukoner.

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