Damages is the legal buzz word for what a person is entitled to recover from a lawsuit. A lot of people are familiar with things like pain and suffering and pain and suffering is a form of damages. If a person is unable to work, that is a loss of income or future medical need. Damages in Toronto wrongful death actions are all losses that a person suffered from the negligence of another.
Either a spouse, by marriage or by common law, can receive damages. Common law is typically defined as cohabiting continuously for at least a period of three years. Experienced wrongful death attorneys will turn to immediate family, grandparents, parents, siblings, or children, whether by marriage, adoption, biological or otherwise to recover damages if the spouse is unavailable.
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Common Types of Damages Sought
Most forms of damages in Toronto wrongful death actions are found under the Family Law Act. It says people are entitled to pursue a claim for loss of guidance, care, and companionship. That is the most common claim, but there are other potential damages that can be recovered, like the loss of interdependent relationship. Loss of interdependent relationship cases occur if a person is married to somebody and that individual relied on them to contribute to the family bills in some way and they now have to replace their contributions to the household.
In some cases people do not die immediately. Sometimes people pass months or a year after the incident itself and if there is a out-of-pocket claim for nursing care that a person gave the person who passed away or there are other bills that the surviving person incurred. Those payments can also be sought in wrongful death claims.
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Recoverable Damages
An individual does not get specifically awarded for the fact that a person is sad that a person lost somebody. What a person is getting compensated for is the loss of that person’s role in a person’s life and what the courts will do is they will look at the closeness of the relationship between the deceased and their relatives. If a person is looking at a parent-child relationship and that person had a particularly close family, they factor that into the type of award that a person is going to get.
If a person is trying to recover for a loss of a sibling but that person has not seen them in 10 years. There is a different award when looking at the nature of the particular relationship and how that loss of that relationship is going to affect the individual or person regardless of the immediate grief that may be experienced after the loss.
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Punitive Damages
In a Toronto wrongful death case, punitive damages refer to an act that leads to the death intentionally. A person can say that they deserve punitive damages, over and above the economic and non-economic damages, and they need to send the message to the community that this behavior will not be tolerated and a special award should be made over and above that.
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Aggravated Damages
Aggravated damages are different in the sense that one is not looking at the event itself, one is looking at the ongoing conduct and the result of the loss in the weeks afterwards. If somebody continues to act out—for example after an event, somebody is posting on social media, they are giving interviews, or they are doing intentional things to try to inflame one’s loss. Those are things that we call aggravated damages, a person continues to aggravate this loss by provoking the claimant.
Role of the Family Law Act
Under the Family Law Act, damages in Toronto wrongful death actions can get the actual expenses that someone incurred on behalf of the person killed. These expenses include funeral expenses, travel expenses, recovery, as well as any certain nursing or housekeeping services that a person has performed. This recovery can account for the loss of income that that person sustained as a result of the time away, in addition to a loss of guidance, care, and companionship. In Toronto, there is also a no-fault system in place that most people get confused with.
In Toronto, there is a no-fault system and when people hear that they are somewhat confused that there are potentially two claims in any loss. For example, if somebody is killed in a car accident and the surviving family members can make accident benefits claim to the insurance company of the deceased and they can recover things like funeral expenses, that is called a death benefit.
That would be a death benefit payable to either a spouse in the amount of $25,000 or for any dependents of the deceased in the amount of $10,000. Under the accident benefit system, the typical funeral expense is recoverable to $6,000 and this is all regardless of whether the deceased was at fault or the other party was at fault. These are benefits for everybody after an accident. When you talk about the tort claim, an individual only gets compensated if somebody is at fault, and an individual can pursue some of the same expenses differently against the at-fault party.
Evidence
The sort of evidence that is gathered to calculate the damages depends on the damage that a person is pursuing. If a person looks at the loss of guidance, care, and companionship, they are looking at the family dynamic and the evidence of friends, family, and those that can speak to the nature and the closeness of the relationship.
If it is an income loss type of damage, a person is going to be looking at tax returns, employment files, speaking to co-workers about the upper mobility of somebody at work, or getting evidence about somebody’s potential income mark. If a person is looking for the evidence that speaks to what the out of pocket revenues were for personal support workers and medical care, then that person would be looking for invoices relating to treatment, payments, and all these incurred costs that have happened along the way.
Help From an Attorney
To understand the non-economic damages in Toronto wrongful death actions, a person needs to understand the particulars of the relationship between a person’s client and the deceased. An experienced attorney is going to be able to ask questions that help draw out those types of examples so that the defendant is better able to understand the closeness of the relationship.
Counsel will ask questions about your living arrangements and what sort of activities you would do with the deceased. They will also help identify other people that have knowledge of your relationship, so they can try to get other witnesses that could speak to the closeness of the bond.
An experienced attorney will be able to get that information from their client and then chase down all potential evidence that help support and prove to the other side why this was a significant relationship and the impact of the passing.
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