What Is the Fatal Accidents Act

The Fatal Accidents Act is a piece of legislation that came into law in New Brunswick in 2012. The Fatal Accidents Act provides statutory remedies for some third parties to recover damages for a tort resulting in death.

The Survival of Actions Act is another New Brunswick Act and allows an individual’s right of action to survive beyond their death for the benefit of their estate. Therefore, in some cases, the estate of a deceased individual may also have a claim under this Act. Damages for this type of claim can include past losses that the deceased incurred before the time of death. These types of claims often occur where there is a period of time between the negligence that caused the death and the death itself.

Prior to the creation of the Fatal Accidents Act, there were limited remedies available under common law for third parties to recover damages for a fatal accident. As Lord Ellenborough stated in the 1808 case of Baker v Bolton 1 Comp. 493, “In a civil action, the death of a human being could not be complained of as an injury.”

Although the Fatal Accidents Act does not provide remedies for fatal accidents or wrongful deaths, the remedy is restricted to certain people and specific damages, based on the relationship between the deceased and the third party claiming damages.

Who Can Be Sued Under the Fatal Accidents Act

An action under the Fatal Accidents Act requires that the death be caused, “By wrongful act, neglect or default as such as would if death had not ensued, have entitled the deceased to maintain an action and recover damages.” In other words, the death for which the action is being brought must be as a result of some negligence or wrongdoing. An individual or a corporation can be sued under the Fatal Accidents Act. The Crown can also be sued under the Act. For example, if a highway is in disrepair and the disrepair causes a car accident where someone dies, a claim may be brought against the Crown under the Act.

Who Can Sue Under the Fatal Accidents Act

Although there may be many individuals who have suffered a loss as the result of a fatal accident, only certain individuals can bring an action under the Fatal Accidents Act. The list of these individuals is found in section 7 of the Fatal Accidents Act and includes: A spouse, a cohabitant to whom the deceased owed an obligation or would have owed an obligation to provide support under subsection 112(3) of the Family Service Act, a former spouse to whom the deceased was providing support or was obliged to provide support, a parent, a grandparent, a stepparent, an adoptive parent, a person who stood in the role of parent to the deceased, a child, a grandchild, an adopted child, a stepchild, or a person to whom the deceased stood in the role of parent, brother or sister.        

There also can only be one action brought on behalf of all individuals, regardless of the number of individuals seeking a remedy.  Individuals can have separate legal representation, however, only one action may be brought or filed. Ideally, the named Plaintiff in the action is the executor or the administrator of the estate who brings the action for the benefit of the third-party individuals. However, if an administrator will not or does not bring an action, the third-party individuals may bring an action themselves.

What Must Be Proven To Successfully Bring a Claim Under the Fatal Accidents Act

The individuals bringing a claim under the Fatal Accidents Act must prove, on a balance of probabilities, that there was a wrongful act, negligence, or default. This also includes acts “amounting in law to culpable homicide.” This means that a claim can be brought for the death caused by: An unlawful act, criminal negligence, causing someone by threats or fear of violence or by deception to do anything that causes death; or by willfully frightening a child or sick person and causing death.

The individuals bringing the claim must also prove that the damages are losses incurred by themselves and prove the amount of the damages or losses sustained.

Limitation Periods Under the Fatal Accidents Act

As with other tort claims, an action under the Fatal Accidents Act must be brought within a certain time limit. The limitation period for these actions runs from the earlier of either: Two years from the day on which the person bringing the action knew or ought to have known that the wrongful act of the tortfeasor caused the death of the deceased; or, five years from the date of the death of the deceased.

Once the limitation date has passed, if the appropriate documents are not filed with the Court, the right to bring a claim and recover any compensation is lost. It is very important to consult a lawyer as soon as possible after a wrongful death or fatal accident to avoid missing a limitation date.

Types of Damages That Can Be Claimed Under the Fatal Accidents Act

Individuals who have the right to bring an action under the Fatal Accidents Act are entitled to damages based on losses resulting from the death. These can be broadly separated into pecuniary damages and general damages. General damages are extremely limited by the Fatal Accidents Act and individuals can only claim this type of compensation if they meet the requirements based on relationship and dependency. The types of pecuniary damages available also differ somewhat by relationship and must relate to a quantifiable monetary loss. 

Pecuniary Damages

Section 8 of the Fatal Accidents Act states that, “Such damages as are proportional to the pecuniary loss resulting from the death shall be awarded to the persons respectively for whose benefit the action is brought.” The categories or heads of damages available to an individual are determined by their relationship to the deceased.

Special Damages

Out-of-pocket expenses flowing from the death can be recovered. These can include funeral and burial expenses, travel expenses, food expenses, clothing expenses, and loss of income from attending the funeral.

• Loss of Support or Services

Where the deceased person was providing support, services, or contributions, and the death resulted in a loss of the above, there may be a claim for compensation for this loss. The value is measured by the replacement cost of the support, services, or contributions. For example, if the deceased was providing cooking and cleaning services, there may be compensation for the loss of these services. The Court will also consider factors such as earning power, life expectancy, capacity, character, habits and health of the deceased, past contributions, and future prospects of the claimant when assessing this type of compensation. It is often necessary to involve experts to help fully quantify this type of compensation.

Adult children are only entitled to this type of compensation where they are still dependent on the deceased. Parents, grandparents, stepparents, adoptive parents, and people who stood in the role of parent to a deceased child are also entitled to these damages if they received support from the deceased child.

• Loss of Monetary Support for Spouses, Cohabitants, Former Spouses, and Children

Spouses, cohabitants (who meet the criteria), or former spouses to the deceased may have a claim for loss of monetary support they would have received if not for the fatal accident. Dependent children may also have this type of claim, regardless of whether another parent can or will support them going forward. Parents may also have a claim if the contributions of a deceased child exceed the cost of the child’s support.

The Court of Appeal of New Brunswick has ruled that the estate cannot recover post-death loss of income under the Survival of Actions Act.  This means that individuals looking to pursue damages for loss of monetary support must do so under the Fatal Accidents Act.

The support that was provided before the death of the deceased can derive from income received for labour, benefits from a structured settlement, pension benefits or any other monetary benefit. This type of compensation is calculated by determining the monthly amount the individual expected to receive. Negative or positive contingencies are then applied to determine the duration of the support and any increase or decrease of the support over time.

Some examples of these contingencies are: Benefits accruing from the deceased’s death, the likelihood of the deceased losing his or her employment, age of retirement, life expectancy of the deceased, life expectancy of the claimant, likelihood of remarriage of the claimant, likely future earning potential of the claimant and future contribution from any children.

• Loss of Moral Care and Training

Children may be entitled to compensation for the loss of moral care and training from a deceased parent. There is no mathematical computation for this type of damage and it is calculated by assessing past case law, looking at the benefit lost by the child, and considering the age of the child.

General Damages

 

• Loss of Companionship and Grief

Where a deceased child is under the age of 19, or where the child is over 19, but dependent on one or both parents for support, the parents are entitled to compensation for loss of companionship and grief. This amount is assessed by comparing amounts awarded in past cases in New Brunswick and considering the age of the child, the child’s health, and the general living circumstances of the child.

Punitive Damages

The Fatal Accidents Act allows claims for general damages in some limited circumstances. The estate of the deceased holds any claim for punitive damages. Punitive damages may be awarded in cases where the conduct of the person who caused the fatal accident was particularly blameworthy or egregious.

Conclusion

If a family member or a loved one has been killed in a fatal accident, you may be entitled to compensation through a fatal accident claim or a wrongful death claim. Tragically, some accidents can result in death, either at the time of the accident or after. In New Brunswick, the Fatal Accidents Act provides for special statutory claims for wrongful deaths or fatal accidents that can be brought on behalf of the relatives or loved ones of the deceased.

Our personal injury law firm has over 35 years of experience in fatal accident or wrongful death claims. Our lawyers exclusively practice personal injury law, and we only ever represent the side of the injured or deceased party. We have represented many family members in their fatal accident and wrongful death claims in Fredericton and throughout New Brunswick, and we have helped them recover the compensation they deserve.

Melanson Law offers free consultations for fatal accident claims. Please feel free to contact us for more information on the process for fatal accident or wrongful death claims and the types of compensation you may be entitled to.