If you are a child or retired person, your life has no value in the eyes of the law.
Sound right to you? Me neither.
In other words, if someone you love is killed by someone else’s intentional actions or negligence, then the law will not award you anything for the pain and suffering associated with losing a husband, wife, child, parent, sister, brother, or other loved one. The only thing you can sue for is the lost income that person might have earned during his or her lifetime that might have benefitted you.
However, if you hurt your hand and have to give up a passion—for example, a sport or a game you love—then the law will compensate you for not being able to do that anymore.
Sound irrational and arbitrary to you? Me too.
Who can change this? Unfortunately, it is not lawyers or judges. Most, if not all, agree that this inconsistency in the law is outdated and just plain wrong.
Traditionally, the common law will not compensate you for mental or emotional suffering unless it arises from a physical injury (e.g. the loss of enjoyment of life arising from a disability or injury) or is a diagnosed mental illness (e.g. depression or post-traumatic stress disorder).
Because of this, we need to rely on legislation passed by our elected officials.
In B.C., we have the Family Compensation Act. This law is based on a 166-year-old law called Lord Campbell’s Act of 1846.
Yes, we still rely on a law that is 166 years old. This isn’t like the old Toronto bylaw requiring you to keep a bale of hay in your trunk: this law has a real impact on peoples’ lives every day.
This law only recognizes the loss of financial benefits that family members might have received from the deceased. So, if your husband or wife is killed by someone else’s wrongful acts, then you can only get compensation for any lost income that your family might have enjoyed from the deceased.
However, if your child, brother, or retired parent is killed, then you get nothing.
Those who have suddenly lost a loved one know that the loss of guidance and companionship, coupled with the stress, anxiety, and emotional suffering, can be tremendous. Of course, money will not replace that person, but most people would agree that the bereaved deserve some compensation and that wrongdoers must be held accountable for the consequences of their actions.
The way we look at life has changed a lot since 1846. Not only do we not encounter death in the same way (e.g. families do not expect to lose several children to tuberculosis or complications during childbirth), but we generally live in a safer world, where death and suffering from industrial accidents and infectious diseases are much less common.
Politicians talk about putting families and regular people first and holding wrongdoers responsible for what they do. All they have to do to fill this gap is pass legislation. Politicians have been encouraged to do something about this for years, but have done nothing. The Wrongful Death Law Reform Group has even prepared draft legislation with the input of legal experts from around B.C. The proposed legislation, called the Wrongful Death Accountability Act is available online.
This is about more than money. It is about recognizing the value of peoples’ lives and holding wrongdoers accountable. Of course, money is a poor means of doing either, but it is (sadly) the closest thing that can be given to a mourning family member short of bringing back the deceased.
Knowing that the justice system values our lives is important to many people. Believe me, it is not that a judge thinks a life is worthless, but judges have a duty to apply the law to the facts of each case before them. Of course, they are often flexible to remedy unfairness, but a drastic change cannot come from the judiciary: it must come from the legislature.
Michael McCubbin operates a busy litigation practice in downtown Vancouver, focusing on criminal, constitutional, and administrative law. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at email@example.com.
A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.