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Usually, there is no amount of damages that could be recovered to adequately compensate for the results of medical malpractice or product liability, particularly when the patient is severely or fatally injured. The amount of damages recovered by a judgment is limited by principles of the common law; and in some cases, by legislation. The actual amounts of damages awarded at trial are based on agreements between the parties or are determined by the trial judge on the basis of evidence adduced at trial.
The amount of damages recovered by settlement is usually based on the assessments of counsel for the plaintiff and counsel for the defendant on the probability of the plaintiff obtaining judgment and the amount of damages that would likely be awarded by the judgment. In many actions, counsel for the plaintiff and counsel for the defendant negotiate a settlement. In other actions, the settlement is reached by mediation conducted by a mediator or by judicial dispute resolution conducted by a judge.
Pecuniary and Non-Pecuniary Damages
There are two broad categories of damages that can be recovered: pecuniary damages and non-pecuniary damages. Pecuniary damages are awarded to compensate for monetary loss (for example, expenses that are incurred or income that is lost). Non-pecuniary damages are awarded to compensate for damages that are not monetary.
Damages for Physical Injury
Damages that can be awarded for a physical injury include:
- non-pecuniary damages for pain, suffering and loss of enjoyment of life
- non-pecuniary damages for loss of consortium (care and comfort of a spouse)
- non-pecuniary or pecuniary damages for loss of household services in the past and capacity to perform household services in the future
- pecuniary damages for loss of income in the past and capacity to earn income in the future
- pecuniary damages for expenses that have been, or will be, incurred for medical treatment and care
Damages for Fatal Injury
Where the injury is fatal, pecuniary damages can be awarded for:
- travel and accommodation expenses incurred in visiting the patient between the time of the injury and death
- fees for grief counseling provided for the benefit of the patient’s spouse, adult interdependent partner, parent, child, brother or sister
- expenses of the funeral and disposal of the patient’s body
- loss of financial support and household services to the patient’s dependents (or, for deaths that occurred before November 1, 2002, loss of income to the patient's estate)
The Alberta Fatal Accidents Act provides that damages can be awarded for grief, and loss of guidance, care and companionship of the deceased (without evidence of damage) as follows:
- $75,000.00 (if the death occurred after October 31, 2002) or $43,000.00 (if the death occurred on or after March 1, 2000 but before November 1, 2002) or $40,000.00 (if the death occurred after August 31, 1994 but before March 1, 2000), to the spouse or adult interdependent partner of the deceased; or to the parents of the deceased, if the deceased was under 18 years old, or was 18 to 25 years old and not married or living with an adult interdependent partner, at the time of death of the deceased
- $45,000.00 (if the death occurred after October 31, 2002) or $27,000.00 (if the death occurred on or after March 1, 2000 but before November 1, 2002) or
$25,000.00 (if the death occurred after August 31, 1994 but before March 1, 2000) to each son or daughter of the patient who was under 18 years old, or was 18 to 25 years old and not married or living with an adult interdependent partner, at the time of the death of the deceased
The Alberta Adult Interdependent Relationships Act provides that a person is the adult interdependent partner of another person if the person has lived with the other person in a relationship of interdependence for a continuous period of not less than three years, or of some permanence; if there is a child of the relationship by birth or adoption; or the person has entered into an adult interdependent partner agreement with the other person
The Court of Appeal of Alberta has severed (removed) the restrictions of the Fatal Accidents Act that bar the children of the deceased from claiming damages for grief, and loss of guidance, care and companionship unless they are under 18 years old, or are 18 to 25 years old and not married or living with an adult interdependent, at the time of the deceased’s death. In doing so, the Court of Appeal found that those restrictions constituted an unjustified breach of the rights of married or older children to equality under section 15 of the Canadian Charter of Rights and Freedom.
It seems likely that judges of the Court of Queen’s Bench of Alberta (or the Court of Appeal of Alberta) would find that the rights of parents of married or older children to equality under section 15 of the Charter are unjustifiably breached by the restrictions of the Fatal Accidents Act that bar the parents of the deceased from claiming damages for grief, and loss of guidance, care and companionship unless the deceased is under 18 years old, or is 18 to 25 years old and not married or living with an adult interdependent, at the time of the deceased’s death; and therefore, sever (remove) those restrictions from the Fatal Accidents Act.
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