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Personal Injury

Wrongful death claims part 1: overview

Bereaved family members need guidance to obtain legal redress following the wrongful death of a loved one, Toronto critical injury lawyer Alison Burrison tells AdvocateDaily.com.

Burrison, a partner with McLeish Orlando, says the emotional devastation of an unanticipated death can be all-encompassing, particularly in the immediate aftermath.

“No one is prepared to lose someone unexpectedly and the prospect of moving forward in life without them is overwhelming,” she says. “While no amount of compensation will ever in any way replace a late family member, survivors are entitled to financial compensation when the death was caused by the negligence or careless conduct of another party.”

However, Burrison warns compensation for a wrongful death is not automatic.

“A lawsuit must be filed with the courts and evidence and support of the claim is necessary,” she says, noting provincial law imposes a two-year statute of limitations for claims from the date of death.

“Any delays beyond two years may result in the loss of the right to sue,” Burrison adds.

To successfully prove a wrongful death, she explains plaintiffs must prove the defendant owed the victim a duty of care and that they failed in this duty through their negligent, reckless or careless conduct. Their actions must also have caused the victim’s death, directly or indirectly.

She says common law in Ontario does not provide for a person’s right to bring an action for the wrongful death of another.  

“That is a surprise to many people,” Burrison says.

Instead, the province has legislated the right of family members — including the spouse, children, grandchildren, parents, grandparents, brothers or sisters — of the deceased to sue under the Family Law Act.

During her time in practice, Burrison has seen many types of accidents resulting in a wrongful death claim. However, she says there are four common scenarios involving negligent actions that account for most cases:

  • Motor Vehicle Accidents: “This is the most common source of wrongful death claims,” she says. “They can occur when the driver is fatigued, distracted or inexperienced. In particular, driving under the influence of drugs or alcohol significantly contributes to careless and reckless behaviour behind the wheel."
  • Medical Malpractice: “There is an expectation that when you visit the hospital or your doctor they will provide competent care,” Burrison says. “Failing to provide the standard of care reasonably expected of medical professionals in a similar field creates potential health risks and puts your life in danger. Common grounds for filing a lawsuit include misdiagnosis, surgical errors and improper treatment.”
  • Pedestrian Accidents: “Pedestrians are unprotected and vulnerable road users when riding a bicycle or crossing the street,” she says. “Specifically, children and the elderly are at the highest risk of injury or death.”
  • Product Liability: New products pose significant health risks if they have not been properly tested before being offered to consumers, Burrison says. “Often, defects will not be known and recalls issued until it is too late and individuals have been injured or killed” she adds.

Stay tuned for part 2 in the series, when Burrison offers an in-depth analysis of the three main types of claims available to surviving family members.

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