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Report on Assessment of Damages |
This project was referred to the Commission by the Minister of Justice. Section 3(4) of The Fatal Accidents Act of Manitoba empowers a judge in a wrongful death case to award damages to compensate specified family members for the loss of guidance, care and companionship that the deceased would have provided but for his or her untimely death. The Act provides no guidance as to the amount of damages that may be awarded under this section. It was left to the courts to determine an appropriate amount. The Commission was asked to consider the current judicial practice in this regard and to make recommendations in respect thereof.
In 1980, the Manitoba Legislature passed An Act to Amend the Fatal Accidents Act and the Trustee Act which abolished the action of the estate for the loss of expectation of life and provided that "...where an action has been brought under this Act, there may be included in the damages awarded an amount to compensate for the loss of guidance, care and companionship that the deceased, if he had lived, might reasonably have been expected to give to any person for whose benefit the action is brought and in making an apportionment, ... the judge shall apportion those damages among the persons who might reasonably have been expected to receive the guidance, care or companionship if the deceased had lived." The Act also declared that a claim for loss of guidance, care and companionship does not survive, in case of death, to the benefit of the claimant’s estate. The most important aspect of the Act, in terms of this Report, is that it does not address in any way the process of assessment or quantum of damages available to the claimants. That issue was left to the discretion of the courts.
In a series of cases in the 1980s, the Court of Appeal held that claimants under section 3(4) of The Fatal Accidents Act should each receive a moderate, conventional (standardized) lump sum award. The lump sums were set at $10,000 for parents, children and spouses of the deceased and $2,500 for siblings of the deceased. Those lump sums have not been increased during the last twenty years. In its recent decision of Braun Estate v. Vaughan, the Court upheld this practice and declined either to increase the lump sums or to index them to inflation.
In this Report, consideration is given in turn to the various provincial legislative provisions, if any, which authorizes the award; the range of claimants; the judicial approach to assessment; the quantum of damages awarded; and miscellaneous comments and observations.
In Canada, many jurisdictions have amended their fatal accidents legislation to include a discrete legislative provision directing that damages be awarded for the non-pecuniary loss of the family of the deceased. Although there is no uniformity in terms of wording of the provisions throughout Canada, damages for loss of guidance, care and companionship are normally covered. In those jurisdictions that have not amended their legislation (British Columbia, Saskatchewan, Newfoundland, Northwest Territories and the Yukon Territory), some protection is given to family members by characterizing claims for the loss of care and guidance as claims for pecuniary damage which fall comfortably within the conventional interpretation of fatal accidents legislation.
The method of assessment of damages and the quantum of the award are not uniform among those provinces but the amount awarded to claimants is generally much higher than in Manitoba.
The Commission considered five main options to assessing the award of damages for the loss of guidance, care and companionship:
the use of modest conventional sums without indexing for inflation (the current position in Manitoba);
the use of modest conventional sums indexed to inflation;
the use of an increased conventional sum indexed to inflation or subject to periodic review;
the use of personal assessment of loss tailored to individual claimants; and
conventional sums combined with a power to increase an award in special circumstances.
In reaching its final recommendations in respect of the appropriate quantum of compensation for the loss of guidance, care and companionship of a loved one, the Commission has been acutely aware of the limitations of legal remedies in this area. There are some objectives that the law cannot attain. No amount of money can compensate family members for what they have lost. The guidance, care and companionship of our loved ones are priceless gifts for which there is no monetary measure. An award of money cannot evaluate the worth of a person’s life. Such an attempt is futile and profoundly distasteful. No amount of money is likely to appease the understandable anger and bitterness of family members. There is little room for punishment and deterrence when most defendants are insured.
In our view, however, there are two objectives that an award of damages for the loss of guidance, care and companionship can attain. First, we agree with the Court of Appeal that this award is, to some extent, appropriately conceived as a compassionate allowance providing, in an official manner, a public recognition of the loss suffered by the claimants. Secondly, in our view, the award of damages provides some degree of solace for the incalculable loss that has been suffered. Although full reparation is impossible, money may provide some balm for the loss suffered. It may allow the family members to put the money to some useful purpose in memory of the deceased; it may allow them to be involved in activities which strengthen the care and companionship of those who are left behind; it may allow them to purchase goods or services which make life more enjoyable and dull the sharp edge of incalculable sorrow.
We are also strongly of the opinion that claimants should not be subjected to the indignity of establishing the quality and intensity of their relationships with the deceased and the courts should not be required to make invidious and distasteful assessment of the same. Therefore, the Commission recommends the continued use of conventional sums to compensate for the loss of guidance, care and companionship under section 3(4) of The Fatal Accidents Act. Additional advantages to the use of conventional awards include efficiency, certainty and administrative ease.
The Commission further recommends that the conventional sums currently used by the courts be increased and that the awards be set by amendment to the Act. We recommend that the increased awards be set at $30,000 each for parents, spouses and children and $7,500 each for siblings. Finally, the Commission recommends that the Act be amended to provide that the new conventional awards be adjusted by the courts according to the prevailing rate of inflation.
Report #105,
October 2000
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