Success in wrongful death claims hinges on evidence

The sudden, unexpected loss of a loved one can cause family members shock, grief and sometimes financial hardship. liHowever, if it can be established that a death was due to negligence, a wrongful death lawsuit can help a family recover, at least financially.

“When a life is lost, money can’t bring the person back, but it will hopefully make the family’s journey a little more comfortable,” says Toronto personal injury lawyer Rohan Haté.

A death that occurs due to someone else’s negligence or recklessness can be grounds for a wrongful death action, whether it’s the result of a car accident, workplace incident or medical malpractice.

Understanding the duty of care

Recent multi-million-dollar class-action lawsuits filed in Canada against long-term care homes on behalf of family members who died of COVID-19 are a case in point, Haté says.

“To prove negligence in an institutional care case, you would have to show that the facility failed to keep its residents safe through a lack of protocols or a failure to actively follow the protocols. If that can be established, the next step is to determine the damages for wrongful death,” he says.

Haté currently represents the family of a 20-year-old man with epilepsy and autism who died during a 10-day stay at a respite home. While in the institution’s care, the man had a seizure and the staff later found him face-first on the floor. He had vomited and suffocated to death.

“This case deals with a lack of supervision and protocols that are meant to ensure that residents are properly supervised and cared for,” he says.

Building evidence in a wrongful death case

The cause of the person’s death can be the most significant piece of evidence in a wrongful death case, Haté says.

“From an evidence perspective, we want to know the person’s location at the time of their death, what the medical records state as to cause of death, and what the coroner’s opinion is,” he says.

A personal injury lawyer will help the family obtain records from the facility, including detailed care logs for the victim as well copies of all relevant policies and manuals that outline procedures and protocols.

“First we need to understand if the protocols were followed in terms of supervising and monitoring of the victim,” he says. “If those protocols were followed and someone still passes away, it’s unfortunate but not necessarily a cause for legal recourse. But if there are protocols and procedures in place, and they weren’t properly followed, there may be a claim for negligence.”

Plaintiffs in wrongful death claims must prove that they’re entitled to compensation under Ontario’s Family Law Act. Lawsuits can be filed by immediate family members of the deceased person, including:

• spouse
• children
• grandchildren
• parents
• grandparents
• siblings.

Types of damages in wrongful death suits

In a wrongful death action, the deceased person’s family is entitled to damages under the Family Law Act. Common claims include:

• The loss of income that would have been provided had the death not occurred
• The loss of guidance, care and companionship that dependents might reasonably have expected to receive from the person’s death had not occurred
• The loss of income sustained by the claimant as a result of the death (e.g. not being able to work for a period of time due to emotional pain and suffering)
• Travel expenses of dependents when visiting the person during treatment prior to death
• A loss of household or childcare services that would have been provided by the deceased
• Expenses such as medications, treatments or hospital bills prior to death
• Funeral and burial expenses.

Haté points to another case he is currently working on involving the wrongful death of a 56-year-old mother of three teenagers who was killed when an out-of-control vehicle struck her while walking on a sidewalk.

“This woman was providing care and income to her family to help support them. As a result of her death, her family’s lives have been forever changed. In this case, we are filing a dependency claim for the loss of income she would have provided to her family.

“Again, nothing can ever replace the loss of a loved one, but under the law, victims’ families are entitled to receive compensation when a death occurs as the result of negligence,” he explains.