Making a Wrongful Death Claim

Posted by Injury Lawyers of Ontario on June 22, 2016

When a person dies at the hand of someone else’s negligence, it has devastating rippling effects on all those involved.  If it is proven to be malicious and intentional, criminal charges may be laid against the alleged offender. Whether or not it was intentional or criminal charges were laid, civil damages can be sought by the accident victim’s family.

Of course a life cannot be measured monetarily; a quantitative amount can never replace or substitute the value of a human being to their family.  However, under civil law, financial damages are the only means to hold a person legally accountable and offer compensation for some of the loss suffered by loved ones.

Using the example of wrongful death from a car accident, there are four essential factors that must be proven in order to have a successful claim for damages against a negligent person.  

Firstly, a plaintiff must prove duty (which refers to the duty of care owed by the defendant to the plaintiff and other road users); secondly, prove breach of of duty (show that the defendant was derelict in their actions, for example, due to speeding); thirdly, show causation (prove that the defendant was directly responsible for the accident and plaintiff's injuries); and fourthly, prove damages (present evidence of any losses incurred due to the accident).

About four years ago, a fatal case made even more tragic by the actions of an insurance company, shocked many Toronto area residents and demonstrated that no case is easily assured success.  

Michelle Vokes, a mother of two daughters under five and also pregnant at the time of the accident, was struck by a vehicle driven by Randall Palmer, while exiting a plaza.  Mr. Palmer was driving while uninsured and at a speed of 120kph in a 50kph zone, and he was late for court date.  Michelle, the sole occupant in her vehicle at the time of the accident, suffered fatal injuries in the crash.

Michelle’s husband (and the father of her children) successfully sued Randall and was awarded ninety thousand dollars in damages for loss of companionship and care; and his two children were awarded slightly greater amounts of one hundred and seventeen thousand dollars and one hundred and thirty-five thousand dollars, respectively.

These amounts can evoke some emotional outage as they seem miserly and insufficient but at the time they were actually on the higher end of damages based on previous amounts awarded in similar cases.

At the time of the collision, Randall was an uninsured driver so Michelle’s insurer was left to make good on their policy (under the uninsured driver coverage).  Although a court found that Randall was solely responsible for the accident, the deceased’s insurer decided to appeal the decision, claiming that Mrs. Vokes was responsible for the crash and that the amounts awarded should be minimized.

The Ontario Court of Appeal dismissed the insurer’s claim citing that the amounts were not excessively high and that it was highly unlikely that Michelle could have estimated the true speed at which Randall was traveling at the time of the accident.

Proving personal injury is sometimes an uphill battle, whether the Crown is seeking criminal prosecution or civil damages are sought in a personal injury lawsuit.  Although accident victims may not be surprised when an alleged negligent driver seeks to deflect or avoid guilt; however, less expected, by injured persons, is the act of an insurance company who seeks to minimize a ruling by dragging the suffering and mournful family of the deceased through the court system for a second time, as occurred in the tragic Vokes case.  Yet, it is an unfortunate reality that insurance companies often challenge legitimate claims in the hopes of reducing their payouts.

One of the most effective ways in which you can protect yourself and your family from further anguish and unwarranted stress is by contacting a reputable and experienced personal injury law firm.  It is advisable to consult with an attorney as soon as possible in order to protect your legal rights and help ensure that you are well represented against insurance companies whose loyalty is first to themselves and their profits.

If you or a loved one suffered a tragic death believed to have resulted from another person’s negligence, call an experienced and respected ILO wrongful death lawyer.  Injury Lawyers of Ontario will provide frank advice on the strength of your claim and will use our considerable expertise to help guide you and your loved ones to a satisfactory resolution.

 


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