Two not-so-secret weapons for ensuring fair compensation for families of wrongful death victims and how one family received $925,000

by John McKiggan

After reading about the three recent fatal accidents on Nova Scotia highways in the last two weeks, I was talking with my law partner, Brian Hebert about the challenges of pursuing wrongful death claims in Nova Scotia. Brian had some interesting views on the issue so I asked him to write an article about wrongful death claims for this blog. So take it away Brian…

Wrongful death claims in Nova Scotia

As a wrongful death lawyer my philosophy is simple. When someone causes the death of another they should compensate the victim’s family for the loss. Most advanced civilizations adopted this moral position centuries ago. To me death is the ultimate loss and deserves the highest compensation. Unfortunately not everyone agrees with me. Law makers, judges and insurance lawyers have kept damage awards low or non-existent for years. You’ve probably heard it said, “It’s better to kill someone than to injure them”. I hate this saying. But the fact is that the families of victims have been under-compensated for years. To fight this trend the wrongful death lawyer has two powerful but oft forgotten weapons.

Power of belief

The first weapon is the lawyer’s belief in the right of every injured person to fair compensation. After 25 years as a lawyer, including many years in personal injury and wrongful death law, I am convinced that the amount of compensation a client receives is directly related to the lawyer’s belief in the case. Here’s an example. As a younger lawyer I negotiated a settlement offer in a sexual abuse case. My client’s friend, who was also abused, had hired a high profile lawyer and had already accepted a settlement for an undisclosed amount. My client didn’t want to find out later that his friend had received more because he had a better lawyer. I knew the friend’s lawyer couldn’t disclose the amount of the settlement for reasons of confidentiality, but I had an idea. I called the friend’s lawyer and asked him what he thought of the offer I had negotiated for my client. When he heard the amount he blurted out, “I didn’t even ask for that much”. Needless to say, my client was happy and took the offer.

That incident taught me a valuable lesson about the power of believing in your client’s right to fair compensation. Lawyers often underestimate the value of their clients’ claims because they focus too much on what judges have awarded in other cases and not enough on what is fair. I’ll suggest a way to get around that problem in a moment.

Actions speak louder than words

It is not enough to believe in fair compensation. This belief must translate into action. Believing in fair compensation means more than just saying so in an initial free consultation with a client. It means putting in the hundreds of hours required to prepare the case, long days in court and longer nights preparing witnesses and arguments for the next day. It means living in a motel during a lengthy out of town trial if that’s the best place for the trial to be heard. It also means advising a client not to accept a low offer from the insurance company even though the lawyer will spend hundreds of hours more on the case than he or she would with a quick settlement. Insurance company lawyers know when a lawyer is ready to “go all the way” and frankly offer more to settle with those lawyers.

Keeping it real – the power of the Jury

The second rarely used weapon in a lawyer’s arsenal is the jury. My belief in juries began as a child when reading that American classic, To Kill a Mockingbird. I felt intuitively then that juries were an essential part of a fair justice system. My first jury trial confirmed and strengthened this childhood belief. It was a wrongful dismissal case and the jury returned a verdict imposing the longest severance period in Canadian judicial history (53 months). While the award was reduced on appeal, it was empowering for me to know that seven ordinary Nova Scotians shared my sense of what fairness required in that case.

My faith in juries stems from my faith in people. I believe that most people are good and will do the right thing when presented with the facts of a case. Each of the seven jurors brings their own perspective to the process and together they bring a wisdom and humanity that can rarely be matched in one person alone. Jurors take their role seriously and understand what is required to do justice in the circumstances of each case. I find this usually coincides with my own gut feeling of right and wrong. The best part is that jurors bring a fresh perspective and are not bound by past decisions of judges. They keep the legal system in touch with reality.

How one family refused to settle for ordinary and received fairer compensation

In 2009 a talented artist was killed instantaneously in a head on collision on the notorious Highway 101 in King’s County, Nova Scotia leaving behind a wife and four adult children. The crash happened because the defendants had decided not to replace two older tires on their truck. The driver of the truck lost control and spun into the oncoming traffic. Two years earlier the victim and his wife had moved to Nova Scotia and he had started painting full time after being away from the commercial art gallery scene for nearly two decades. By the time of his death he hadn’t finished a single painting but had received an impressive $18,000 down payment on a commissioned piece.

I shared the family’s belief that they had suffered a tremendous loss and that compensation should be fixed accordingly. The problem was that in most wrongful death cases the deceased’s historical income is one of the most significant determinants of the amount of the award. Further, compensation for the intangible loss of care, guidance and companionship (non-monetary losses) had traditionally been limited by the courts to something just above “nominal damages”. In this case two of his children were step-children and the insurer would argue their loss was not as great.

Three weeks before trial, the insurer offered $575,000 as a “full and final settlement”. We countered with $1 million – the insurance policy limits. I ran it by a colleague. He had settled a wrongful death case recently for $475,000. In that case the deceased had a full time job and dependent children which would traditionally translate into a higher award. I expressed my belief that a jury would not find $575,000 to be fair compensation in this case once it was explained to them that their job was to balance harm done to the victim’s family with the compensation awarded. My colleague said he had no faith that a Nova Scotia jury would award as much as the insurer was offering. He also pointed out the additional amount of work it would take to try the case.

However, I was convinced that $575,000 was too low for the loss of a husband and father, even if he had had no income and the children were self-sufficient adults. The sense of unfairness was heightened in this case because the deceased was an artist and a rare talent had been lost for good. It just didn’t seem fair. I had faith in the jury and my own sense of justice. I advised my client not to accept the offer and explained the risks of going to trial. She instructed me to proceed.

As I prepared for and conducted the trial, I got to know the deceased very well though I had never met him in life. I gained a lot of respect for him as a person and came to appreciate the sacrifices he made for his art and his family. I felt that I owed it to him to protect his family now that he was unable to do so, through no fault of his own. The family had only this one chance at fair compensation.

925,000 reasons to trust your instincts

You probably guessed by now that my instincts were right (or I wouldn’t be writing this blog post). The jury awarded $800,000 and the trial judge added a further $125,000 in interest and costs for a total judgement of $925,000 – almost $1 million. The good news was that since legal fees were based on a fixed percentage of the judgement, the family wasn’t penalized financially for going through a lengthy trial. Emotionally my client was tired but satisfied that at the end of the day that a fairer result had been achieved. She was thankful she had not taken the settlement offer.

For me, it would have been much easier had the family settled out of court. I wouldn’t have had to put in the long days and nights it took to prepare and present the case over 19 days of trial. I could have spent Labour Day weekend relaxing with my family. Although I was exhausted by the end of trial but with the jury verdict I was very happy. The satisfaction of having helped a man provide for his family when he was not able to is one of the best feelings a lawyer can have.

New benchmarks for “Loss of Care, Guidance and Companionship”

The case has broader implications. The jury confirmed that compensation amounts for loss of care, guidance and companionship should be higher than they have traditionally been in Nova Scotia. They also confirmed that children and step children should get equal treatment. I am hopeful that other lawyers and their clients will see these awards as new bench marks in Nova Scotia and other Atlantic Provinces and that compensation for families of victims will increase accordingly. I have evidence that this is happening. I’ve heard recently that at least one lawyer who had viewed wrongful death cases as “low compensation” cases has read about this case and now sees that it is possible to achieve fairer compensation awards for their clients.

Faith in the jury and fair compensation

I hope that as a result of this case more lawyers believe in the humble jury as a means of ensuring fair compensation in wrongful death cases. For me that would be an added reward for the hard work involved in the case.

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