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FATAL ACCIDENTS ACT - Effect of legislation

Friday, April 05, 2019 @ 8:32 AM  

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Application by the defendant doctor for a determination of whether the plaintiff was entitled to bring a claim for a less favourable life expectancy or decreased survival rate. Between 2010 and 2014, the plaintiff saw the defendant nine times with complaints about a foreign body sensation in his eye. In 2014, the defendant referred the plaintiff to a specialist, who diagnosed the plaintiff with melanoma. The plaintiff commenced his action in negligence against the defendant in 2015. He died in 2016 due to complications related to the melanoma. His wife, the executor of his estate, carried on the action.

HELD: Application allowed. If death had not ensued, the plaintiff could have continued his action against the defendant to recover damages, if negligence had been proven. It was an action to collect damages for negligence, not a loss of chance claim. It was the intention of the legislature that a defendant in an action based on s. 3 of the Fatal Accidents Act was someone who caused the death of the plaintiff. It was not enough to have contributed to or facilitated or hastened death. The fact the plaintiff’s death was caused by cancer could not sustain an action by the estate against the defendant under the Act. The claim was struck.

Stacey Estate v. Lukenchuk, [2019] S.J. No. 88, Saskatchewan Court of Queen's Bench, R.S. Smith J., February 7, 2019. Digest No. TLD-April12019011