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FATAL ACCIDENTS ACTS - Dependant’s claim

Wednesday, June 10, 2020 @ 6:25 AM  

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Appeal by the plaintiff from a decision striking out her action brought under the Fatal Accidents Act. The appellant’s husband commenced an action against the respondent optometrist alleging that the respondent was negligent in failing to properly diagnose and treat a problem with his left eye. The problem turned out to be a cancerous tumour which ultimately killed him. The husband’s claim alleged the respondent’s negligence caused him pain and suffering, increased his susceptibility to adverse medical conditions such as cancer and shortened his life expectancy. The husband died before his claim could be resolved and his widow and the executor of his estate sought to continue the action against the respondent under the Fatal Accidents Act. The chambers judge concluded that s.3(1) of the Act only permitted claims to be brought against a person who caused the death of the plaintiff and, since it was cancer that caused the husband’s death, the claim could not proceed against the respondent. The chambers judge determined that the Act did not support a claim for materially reduced life expectancy. The appellant argued the chambers judge erred by interpreting the words “caused by” in s. 3(1) of the Act too narrowly.

HELD: Appeal allowed. The chambers judge made an error in his interpretation of the causation requirement in s. 3(1) of the Act by holding that, because the husband died from a disease, his death could not be said to have been caused by a wrongful act, neglect or default on the part of the respondent. The chambers judge erred by adopting an interpretation of the words “caused by” in s. 3(1) of the Act that was neither harmonious with the purpose and scheme of the Act, nor consistent with the governing tort law principles relating to causation. Because this legal error was the underpinning of his decision to strike the appellant’s claim, it was appropriate and necessary for this court to intervene. It was not necessary that the conduct of the respondent be the sole cause of death, or even that it caused an injury which led directly to death with no other intervening events. In finding that s. 3(1) of the Act could not apply to a defendant who contributed to or facilitated or hastened death, the chambers judge misstated and misapplied the governing tort law principles of causation. He imported a standard of scientific causation rather than one of factual causation for legal purposes.

Stacey Estate v. Lukenchuk, [2020] S.J. No. 169, Saskatchewan Court of Appeal, R.K. Ottenbreit, L.M. Schwann and J.D. Kalmakoff JJ.A., May 1, 2020. Digest No. TLD-June82020005