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Wrongful Death General Damages: Does Culture Count?

Published:

17 mai 2024

Author(s):

• Brian Perry
• Graham Manderville

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Do cultural practices play a role in the assessment of damages for wrongful death claims? There is British Columbia precedent for awarding damages to parents on the basis of the cultural practice of filial piety going back to the British Columbia Supreme Court’s 1978 decision in Lai v. Gill (reversed by the B.C. Court of Appeal as to the amount only) and as recently as its 2023 decision in Kim v. Murdoch. To date, no Atlantic Canadian court has considered wrongful death general damages based on the concept of filial piety under the applicable fatal accident legislation. But the increase in Atlantic Canadian immigration and the growing cultural diversity of the population raises the spectre of plaintiff parents advancing claims for damages partly based on filial piety customs and traditions.  Here’s a look at the decision in Kim v. Murdoch and how the relevance of cultural practices in wrongful death damages assessments could play out in Atlantic Canada.

The Kim Framework

Jaehoen Shim was a 17-year-old Korean-Canadian male who was struck and killed by a motor vehicle. Mr. Shim’s parents commenced an action against the defendant driver and vehicle owner under the British Columbia Family Compensation Act. Part of their damages claim was based on the traditional Korean practice of hyodo: a practice of filial piety where children provide economic and other support to their parents. The Court noted including the practice of hyodo or filial piety presents challenges when assessing damages. The Court accepted and relied on expert evidence on hyodo and its role in the lives of first- and second-generation Korean-Canadians, accepting Mr. Shim demonstrated early and consistent adherence to hyodo:

• He worked for free in his parents’ sushi restaurant where he was integral to its day-to-day operations, including assisting in translating legal communications, communicating with non-Korean speaking staff and establishing an online delivery and point of sale systems.

• He assisted his parents with any of their personal translation needs and housework and generally helped with all aspects of their interaction with Canadian society.

The Court did take into account the possibility that in the future, Mr. Shim could hypothetically move away from his parents, feel a diminished sense of hyodo, or lessen the economic contributions he made to his parents – but awarded a total of $327,634.88 in damages based in part on Mr. Shim’s commitment to hyodo and filial piety in general:

• Loss of future financial services: $109,714.60.
• Loss of housekeeping services: $100,000.00.
• Loss of translation services: $30,000.00.
• Loss of driving services: $20,000.00.
• Loss of guidance: $36,000.00 ($18,000.00 per parent).

The Atlantic Canadian Application

Each Atlantic Canadian province has fatal accidents legislation generally equivalent to the British Columbia Family Compensation Act under which a deceased’s parent, child, sibling or other person in an analogous relationship can bring an action for compensation against any tortfeasor(s). While there are some nuances between them, the fatal accidents legislation in each Atlantic Canadian province allows for two types of claims: 

Pecuniary Damages. Damages are recoverable for the monetary loss resulting from the deceased’s death, limited to certain losses that directly relate to the death of the deceased, including funeral expenses, loss of support and services or loss of financial contributions.

Non-pecuniary General Damages. A court may award general damages to compensate an entitled party for loss of companionship and grief. However, any claim seeking general damages based on filial piety in a similar amount to that awarded in Kim would likely have substantial difficulty overcoming the established damage ranges in New Brunswick and Nova Scotia:

• In New Brunswick, section 10 of the Fatal Accidents Act allows for the apportionment of general damages among parents of a deceased child in proportion to the loss of companionship and grief suffered by each parent as a result of the death of their child. The N.B. Court of Appeal established the range of general damages as between $30,000 and $35,000 in its 1991 decision in Mazerall v. Nightingale. Loss of guidance damages in New Brunswick are only available under Section 10 of the Act and are only available to parents following the loss of a child. The $36,000 awarded for loss of guidance in Kim falls within the normal range of damages awarded under Section 10 in New Brunswick to parents who have lost a child.

• In Nova Scotia, the N.S. Supreme Court set the top range of such an award under the Fatal Injuries Act at $65,000 in its 2001 decision in Murray v. Advocate Contracting Limited and Wilbert Stewart Clark. As in New Brunswick, loss of guidance damages in Nova Scotia are only available under the Act and are only available to parents following the loss of a child and the $36,000 Kim award falls within the normal range.

Prince Edward Island and Newfoundland and Labrador courts haven’t yet set a similar range or “cap” on general damages in these circumstances.

Please contact your McInnes Cooper lawyer or any member of our Insurance Defence  Team @ McInnes Cooper to discuss how culture could impact your claims.

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