Compensation in wrongful death cases remains inadequate
Anger: It’s not so much the money, but that no one is held responsible
Nearly 20 years after her 17- year- old daughter died after questionable medical care, Catherine Adamson still erupts in anger that no one was held accountable.
“Heidi died in 1997 and lawyers told me at that time there’s nothing the family can do, the compensation available under the law was so little,” Adamson recalled.
“She had two broken shins and died from horrendous medical errors yet there were no repercussions for the people who caused her death. Nothing. The Family Compensation Act prevents justice from happening.”
Her daughter was among a group of teens hit by a drunk driver. While being treated in hospital for her broken legs, she suffered a seizure and fell into a coma from which she never awoke. Three weeks later, she died when a tracheotomy tube inserted into her throat to help her breathe severed an artery.
As the result of an archaic law imported from Britain, Adamson and other B. C. families are left with little legal recourse in the face of a loved one’s wrongful death.
For a generation, they have lobbied for change fruitlessly.
“I think it is shameful they would keep a law on the books that impedes justice,” Adamson fumed. “That’s what’s so frustrating. They’re sitting on their hands. They don’t want to touch this one.”
In 2005 Adamson was one of the key proponents in the formation of the Wrongful Death Law Reform Group. Burnaby lawyer Don Renaud, a linchpin in the formation of the group, blames the slow pace of change on the near impossibility of generating public pressure on lawmakers.
“If there’s a situation where there’s an embarrassment to the government, such as the Robert Pickton case, the government just makes a payment and shuts the discussion down,” he said. “It’s not justice for all.” Faced with litigation by children of women murdered by the serial killer, a $ 5- million fund was created by Victoria, Ottawa and the City of Vancouver to provide $ 50,000 payouts for them — and coincidentally forestall debate the trial would have triggered around the law’s inadequacies.
The settlement is a pittance for the loss of a parent, but not out of line with compensation available elsewhere, and probably more than a lawsuit would have generated.
“You have a right with no remedy,” Renaud quipped. “You can sue, but you have no right to damages. At the end of the day you walk away with a hollow victory.”
The focus on damages, however, ignores the stinging concern for families who have suffered wrongful loss — accountability.
“It’s not about the money I would get,” stressed Adamson, who wrote a book about her experience, Heidi Dawn Klompas: Missed Opportunities.
“That’s why we call our proposed legislation the Wrongful Death Accountability Act. If you read it, it’s not really about greed or wanting money. It’s about justice: You killed someone, now you must pay.”
Renaud explained the law’s flaws can be traced to its precursor — Lord Campbell’s Fatal Accidents Act — passed in the 19th century to provide support for widows and orphans left behind by workers killed as a result of the new and rapid development of railroads.
“The 1846 law is really dependency relief legislation,” Renaud said.
“Financial dependants can bring an action for loss of income, loss of support, but there is a big legal hole if a child, an elderly person, or someone without dependants is killed. We’ve made it worse by removing any claim for nonpecuniary damages. It’s offensive when you have to explain this to the public.”
In 2007, then- attorney general Wally Oppal issued a Green Paper and seemed prepared to tackle the issue, given changes in other common- law provinces: Alberta allowed claims for damages for loss of a family member including grief and loss of guidance, care and companionship capped at $ 75,000; Manitoba provided up to $ 30,000 for loss of companionship; and Saskatchewan allowed claims up to $ 60,000.
“No one in Canada has it right,” Renaud insisted. Ontario law, he said, is the best providing for loss of companionship, pain and suffering and loss of enjoyment of life.
“You can have a jury verdict and recover between $ 100,000 and $ 200,000 in Ontario,” Renaud said. “Still, the Supreme Court of Canada has set limits on non- pecuniary damages and the Ontario Court of Appeal has controlled the size of the awards.”
The public isn’t aware of the cap courts have imposed on non- pecuniary damages, he continued. A jury can give a paraplegic a million dollars for pain and suffering but the most they’ll get these days is about $ 350,000.
Renaud said the U. S. has a variety of legislative schemes and though large awards garner headlines, they are usually rolled back. “Most of the time American juries are not handing out buckets of money,” he said.
Regardless, it’s not only about the size of awards, he emphasized; there are societal concerns raised by the lack of accountability litigation provides.
“Governments and institutions don’t need to take safety initiatives for seniors, for example, because they don’t have the financial imperative if something goes wrong,” Renaud said.
Or, as in Adamson’s case, bad doctors continue to practise.
Victoria responds that the group is advocating a “far- reaching approach to reform that is not found in any Canadian jurisdiction … there are many stakeholders with opposing and strongly held positions.”
But Renaud and Adamson are skeptical and would like to hear those objections detailed. “When I started this project I knew it was going to be a long slog,” Renaud sighed. “If the public was aware the state of the law is as bad as it is, there would be a change.”