The 3 year old claimant’s father was killed in a motor vehicle accident resulting in this Wrongful death award to daughter (Duncan v. Brown,2014 BCSC 153). Changes to the law now prevent ICBC and other insurance companies from avoiding a child’s claim for loss of dependency due to the existence of a step parent.
The car accident occurred when the vehicle which the claimant’s father was driving was struck by a highway truck and trailer on Highway No. 6 between Nakusp and Vernon, in British Columbia. The other driver admitted fault for the accident which caused the death of the claimant’s father. The daughter sued the at fault driver for, Loss of love, care and guidance, Loss of inheritance, out of pocket expenses, loss of financial support, and loss of household services and childcare.
There is a very interesting discussion of whether the obligation of a step parent to care for a child negates the need to compensate the child for loss of dependence. The law in British Columbia is that a step-parent has an obligation to support a child which the court says should be considered when looking at contingencies under the Act. However, as the Judge points out,
[119] The new provisions of the FLA may end the impact of Skelding tort cases pursuant to the Act. The presence of a step-parent should not reduce the heads of damages under the Act as the step-parents’ obligations are secondary to those of the parents. The purpose of the Act is not to make the step-parents liable for the tortious conduct of the defendants in this action.
[120] The reduction of the amounts under certain heads of damages in Skelding was to prevent double recovery where a loss did not occur, or a reduction in recovery where the loss was partial.
[121] As the step-parent’s obligation in British Columbia is secondary, it makes it all the more important that the loss Kayleigh suffered as a result of the death of Mr. Duncan be awarded on the basis that he had the primary obligation to support Kayleigh and that is what Kayleigh lost.
In applying the contingency to this wrongful death case the judge applied a 25 percent discount to the child’s claim for loss of her father’s future financial support. These contingencies are suppose to cover the possibility of a divorce and remarrying and its financial impact on the child and also the chance the father would have experienced periods of unemployment.
The total award under the Family Compensation Act, R.S.B.C. 1996, c. 126 was as follows:
| 1. | Loss of love, care and guidance |
$35,000.00 |
| 2. | Loss of inheritance |
$25,000.00 |
| 3. | Special expenses |
$9,537.51 |
| 4. | Past loss of financial support |
$72,300.00 |
| 5. | Future loss of financial support |
$261,000.00 |
| 6. | Past loss of household services and childcare |
$34,000.00 |
| 7. | Future loss of household services and childcare |
$124,208.40 |
| TOTAL: |
$561,045.91 |
Learn more and read about wrongful death claims in BC.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.