When it comes to wrongful death cases, it’s important to point out that the people who are capable of collecting damages as well as the overall claimants are specifically listed out in the Family Law Act of Ontario. The court is going to assess the damages which stem from the wrongful death claim when the deceased had been actually entitled to personal injury damages in the event he or she had survived the injuries that were incurred. Read More
Unfortunately, wrongful death cases are rather common. They are regarded from two different prospective – from the criminal and personal injury standpoints. There are dramatic differences which need to be carefully laid out. For instance, the only intention of the plaintiff in the civil lawsuit of filing for wrongful death is to get compensation for damages that he had incurred. On the other hand, when the topic at hand is a criminal suit, the intention of the prosecution is to legally punish the victim and put him into a rehabilitation facility which is supposedly going to enable him to do better.
The historical standpoint
Wrongful death claims have undergone a considerable change for the past two centuries. Prior to the 19th century the only one who could claim personal injury damages was the victim himself. Therefore, when the victim, or the potential plaintiff, had died, his relatives weren’t able to claim damages on his behalf. This is obviously inappropriate and it has been therefore changed.
Now, in order to spread the light over the potential confusion – this doesn’t necessarily mean that the person isn’t going to go to jail. In fact, the criminal charges would still be absolutely intact and the person would face the full force of the law. The only thing that was different lies within the fact that the relatives weren’t entitled to compensation.
The modernistic approach
Currently, there isn’t a trace of this particular approach in the legislation of Canada. What is more, the Family Act of Ontario provides clear and legal regulations as to who is capable of filing a wrongful death lawsuit and the damages which are claimable. With this in mind, those who are able to file a claim for wrongful death are:
· The spouse
· Immediate family members
· Distant members of the family (grandparents and siblings)
· Parents of a fetus that’s deceased
· Domestic partners
· People who were directly dependent financially on the decedent
As you can see, the circle of people who are entitled to file a lawsuit is rather wide. This is only logical and legislatively defined. However, it is best to let the lawyer guide you through the process.
The truth is that filing a wrongful death claim is particularly challenging and overwhelming. Not only are your decisions clouded by the emotion that you have to go through because of the loss of a loved one, but there are numerous procedures that have to be dealt with. This is why you need to make sure that you have a reliable personal injury lawyer who is going to handle the entire thing as quickly as possible. The last thing you’d want is to drag this through time and be reminded of the loss on a regular basis. That is why it is better to hire the legal services of an experienced and let them handle the case and claim to put a closure for your loss.
Now, the truth is that the institute of wrongful death has undergone through some changes over the decades. Just to provide you with an idea of what it used to be – prior to the creation of the survivor statutes as well as the entire legislation surrounding wrongful death, claim of the kind couldn’t be filed. The reason is quite surprising – the claim died with the plaintiff as he was the only one entitled to sue for damages.
Of course, the current Canadian legislation can’t afford it any longer and it has managed to take care of it conveniently. Now, under the Family Act of Ontario, the direct relatives as well as the spouse of the deceased are capable of claiming damages on behalf of the deceased. Of course, they aren’t all the damages that one would be able to claim as personal injury as this would be highly unethical. For instance, damages for pain and suffering on behalf of the deceased are absolutely off the table as this would suggest that someone else was able to actually understand the feelings, pain and suffering of another person which is wildly inappropriate.
Proving Fault In The Wrongful Death Case
There are a few things which need to be said when discussing responsibility for wrongful death. First off, the death might have been caused by negligent behavior but it also might have been caused entirely on purpose. This needs to be accounted for. As we are regarding personal injury, let’s lay the attention towards negligence as it’s a primary factor in all cases.
Proving The Duty Of Care
As it is with every personal injury case, the plaintiff has to prove that the defendant has had some sort of duty of care. This is an individual state from the entire process of proving.
Breach of the duty of care
Consequentially, in order for the defendant to be liable, he must have breached said duty of care and thus unleashing the consequential sequence which followed.
This is the necessary proximal cause – the link between the breach of the duty of care and the death of the deceased. Anything in between is going to make matters more complicated so if there is a direct link the task of proving is going to be easier.
There are a number of claimable damages which could be sought after in a wrongful death case on behalf of the deceased. Damages for medical bills, loss of income, loss of companionship, pain and suffering on behalf of his inheritors and many more are all claimable.
Of course, you need to make sure that you have a good personal injury lawyer in order to ensure that your rights have been properly protected. They understand all aspects of wrongful death and how to go about the case so that the next of the kin are compensated adequately for the loss of a loved one due to negligence or carelessness.