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What happens in a wrongful death case?

Nov 30, 2019 | Initial Consultation, Wrongful death lawyers

Christina Trotta

Personal Injury Lawyer

If you lost a loved one and the death was as a result of a person’s or entity’s negligence, you may be eligible to file a wrongful death claim to seek damages from the responsible person. In Ontario, wrongful death claims are a type of tort claim under the Family Law Act and family members bring them after losing a loved one. Experienced wrongful death claim lawyers work with family members to file the claim within two years after the death of their loved one to recover both pecuniary (monetary) and non-pecuniary damages.

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There are specific rules that govern wrongful death claims. First, it’s important to understand that wrongful death is a civil case, which unlike a criminal charge doesn’t involve a fine or imprisonment. Filing this claim is the only way to obtain monetary damages even if the responsible party has already been criminally charged.

Who is involved in a wrongful death claim?

The party filing the civil lawsuit is known as the plaintiff. This could be a close family member of the deceased such as the spouse, parents, grandparents or even siblings. The plaintiff could sue on behalf of all the heirs of the deceased. The plaintiff may also be the deceased executor of the will or personal representative of the estate. This applies if the person dies with a will and the court has appointed someone to bring the suit on behalf of the deceased heirs. The person or entity that is being sued is called the defendant.

What must the plaintiff prove?

Wrongful death lawyers Toronto must prove that the defendant acted negligently or intentionally and this resulted in the untimely death of the deceased. There are 3 elements of the case that the wrongful death lawyer must prove:

Duty of care: The defendant owed a duty of care to the deceased person.

Breach of duty of care: The defendant breached the duty of care to the plaintiff.

The defendant’s actions directly caused the wrongful death.

For instance, if an accident occurs and the defendant, in this case the driver, is said to have run a red light, first it is clear that the driver owed the deceased a duty of care. By getting into the car and driving, drivers are required to observe all the rules of the road. Running a red light is certainly a breach of road rules and regulations. However, even if the defendant run a red light he/she may not be found responsible for the death if there was something else that contributed to the accident such as a mechanical failure of the deceased vehicle.

Meeting the burden of proof

The law requires that the plaintiff must prove the elements of negligence by a “preponderance of the evidence.” This could mean that the plaintiff has to show whether it is more likely than not that the death was caused by the defendant’s negligent actions. Having an experienced legal team increases your chances of a successful outcome. Don’t wait too long to consult a wrongful death lawyer. Do it today.