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| Mattis Bieg |
Having in mind these principles, set by universal human preferable standards and Canada’s highest laws, imagine the following situation:
A driver crashes into a group of teenagers. One is killed instantly. A few weeks later, medical negligence takes the life of another, who’d only suffered a broken leg in the melee. The grieving parents, devastated by the loss of their beloved children, seek to right these wrongs. They trust that accountability will occur through the legal system. They look to the applicable laws of Canada’s mostly westerly province — British Columbia.
However, the deceased left behind no financial dependents. As such, under British Columbia’s long outdated legislation, surviving family members cannot hold the wrongdoers accountable in a civil action. Its Family Compensation Act fails to recognize any losses other than those resulting in direct financial damage. In most cases this merely amounts to the costs associated with a funeral service.
For the family left behind to heal, the opportunity to hold someone accountable for the wrongful act that caused their suffering is fundamental. The pain, suffering and grief over the needless death of a loved one can never be measured monetarily, but surviving family members deserve every bit of support possible when their loved one is killed by wrongful act.
Death by an entirely preventable human act extends beyond grief. Rather, it goes on to burn surviving family members with a profound sense of injustice. The inability to access justice in a meaningful way leaves a permanent psychological wound.
In the absence of alternatives monetary compensation is essential, as it goes toward recognizing the dignity of the life that was lost. Monetary compensation acknowledges that the life had value in the eyes of the law, regardless of age, health or employment status.
The above example occurred in 1997 when a negligent driver struck a crowd of teens leaving a party in South Surrey, B.C. Seventeen people were injured and one girl died instantly. That night Heidi Klompas suffered a badly broken leg which required prompt surgical repair.
Although her injuries were originally non-life threatening, she died three weeks later in hospital as a result of medical malpractice.
Heidi’s mother, Catherine Adamson, along with other grieving families who also discovered that they did not have access to justice under B.C.’s law, formed the BC Wrongful Death Law Reform Society.
Currently, all of the other provinces, as well as the Yukon Territory, allow for non-economic (non-pecuniary) damages relating to such loss. British Columbia’s legal framework around wrongful death has not significantly changed since the adoption of Lord Campbell’s Act, a piece of British legislation originally drafted in 1846. Black humour in the barristers’ lounges has some local lawyers joking that “if you run over a child, back up and make sure he’s dead.”
This is deeply contrary to Canadian values — especially as the current law typically affects the most vulnerable of society; children, seniors and the disabled. In the event of a wrongful death, these are the people deemed worthless in the eyes of the B.C. law. Their deaths “only” cause emotional damage to surviving loved ones, instead of an immediate directly attributable financial loss.
The BC Wrongful Death Law Reform Society is comprised entirely of unpaid volunteers, including the writer of this article. Most members of the society have experienced first-hand the devastation of feeling completely helpless when confronted with the inadequacy of B.C.’s shameful legislative hole.
With only token damages available under the legislation in B.C., they usually have no way of covering litigation costs associated with uncovering truth and holding accountable wrongdoers. This is the case even for deaths caused by the most egregious carelessness and neglect.
If driven by concrete legislative modernization, real institutional policy change can be expected from public and private insurers. For some bizarre reason, insurance companies have come to think risk management means avoiding adequate payment of claims rather than heading off the claim altogether by preventing human loss in the first place.
I am a German citizen. I have spent the last several months away from my legal studies in Germany to volunteer and help the society. It is important that I share the tragedy which pushed German lawmakers finally to reform their wrongful death laws in 2017.
In March 2015 Germanwings Flight 9525 carrying over 150 passengers, among them a class of schoolchildren returning from a language exchange, crashed into the French Alps. No one survived.
The follow-up investigations determined that the crash was caused deliberately by the co-pilot Andreas Lubitz. Lubitz was previously treated for suicidal tendencies and had been declared unfit to work by his doctor. The families of the children received no compensation as Germany had no law supporting a claim for non-pecuniary damages.
In December 2016, the German federal government, under immense public scrutiny, was forced to introduce a new law allowing non-pecuniary damages to be awarded to the bereaved.
One might argue that legal reform should be undertaken as soon as the existing legislation is recognized as being antiquated and well beneath modern standards for decency and dignity of the individual. Reform should not come about only in response to public outrage on the back of a tragedy.
Families are not asking for much but accountability, fair compensation to cope with grief, and most importantly to provide deterrence to reduce incidents of wrongful death for other families. Making B.C.’s society safer and more dignified is a win-win for both the citizens and the province.
Should wrongful death continue to be such a windfall for tortfeasors?
Mattis Bieg is a third-year law student at Ludwig Maximilian University in Munich and he is completing an internship at the BC Wrongful Death Law Reform Society as campaign co-ordinator.
Photo credit / PeterHermesFurian ISTOCKPHOTO.COM
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