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Tag: BC Family Compensation Act

Why Global Settlement Offers Are OK in BC Wrongful Death Lawsuits

Written by admin on . Posted in Settlement Law.

Interesting reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing the propriety of a global settlement in a wrongful death lawsuit involving children as beneficiaries.
In the recent case (Gaida v. McLeod) the Plaintiff Brenda Leah died “as a result of methotrexate toxicity and that the medication was mistakenly given to her daily, rather than weekly“.  The Defendants admitted liability in causing the wrongful death.   In the course of the lawsuit the Defendants and the estate of the Plaintiff reached a global settlement.   A disagreement arose and leading to a Defendant application to declare that a binding settlement took place.
The Plaintiff opposed this arguing that “ the failure to allocate specific amounts of the settlement money to the two minor children renders the proposed settlement too uncertain and vague to be enforceable.”  Mr. Justice Pearlman rejected this argument and provided the following reasons explaining why a global settlement can survive scrutiny:
[60]         In British Columbia, the court must approve the amount to be paid in settlement of an infant’s claim before the settlement of a claim under the FCA may be implemented.  The court may approve payment to an infant in an amount different from that proposed by the parties or recommended by the Public Trustee and Guardian.  The court may increase the amount to be paid in settlement of an infant’s claim beyond that proposed by the parties, and may do so at the expense of an adult claimant…
[67]         Any amounts which the parties propose to allocate to the heads of damages applicable to minor claimants, including loss of care, guidance and companionship, and loss of inheritance, are proposals only, subject to the court’s approval.  Ultimately, the court must determine the amount to be allocated to each minor claimant, which may require the reapportionment of allocations proposed by the parties within the global settlement amount.  While the global amount of settlement will not change, there can be no certainty respecting the parties’ allocation of specific amounts to each of the claimants, because the court has the exclusive jurisdiction to determine the allocation of settlement monies to the minor claimants.
[68]         Under s. 3(6) of the FCA, a defendant may make a single payment into court, in satisfaction of all claims, without specifying how that amount is to be allocated among the claimants.  There is no requirement under the FCA that a defendant making a payment into court must specify the amounts to be paid out to minor claimants.  In cases where the payment into court is accepted by the plaintiff, if the claim involves infant claimants the court must still approve the distribution of settlement monies to the minor claimants.
[69]         I conclude that the allocation of specific amounts to minor claimants, which is always subject to the court’s approval, and may vary from the amount proposed by the parties, is not an essential term for the formation of an enforceable settlement agreement.

The Death of Georgia Luge Competitor Nodar Kumaritashvili, A Preventable Tragedy?

Written by admin on . Posted in Uncategorized. 60 Comments on The Death of Georgia Luge Competitor Nodar Kumaritashvili, A Preventable Tragedy?

In what can only be described as a tragedy, the Vancouver Olympic Games have gotten off to a saddening start with the reported death of Georgian Luge competitor Nodar Kumaritashvili.
Video showed the athlete lose control while attempting to navigate one of the corners on the track and then fly into a steel beam.  Reports indicate that he died shortly after this.  The video was difficult to watch and has apparently been removed from many websites showing it due to a copywrite claim by the International Olympic Committee.  More to the point the video should have never been circulated out of respect to this athlete and his family.
Viewing the photos it struck me as odd to have exposed steel beams so close to what I assume is a difficult turn on the Luge track.   I won’t profess to be an expert in the safe design of luge courses but it seems that this type of an incident was foreseeable and perhaps preventable.
Luger’s travel at high speed.  Sometimes they lose control.  It seems that having exposed steel beams by the side of a luge track is every bit as dangerous as having exposed trees next to a dangerous turn on a downhill ski course.    Protective measures are taken to minimize collision risks for the latter (such as safety netting and padding).  If it is really necessary to have these exposed beams where they are I hope steps can be taken to minimize the hazard they pose to the other athletes of the world before the games get underway.
Assuming that this was a preventable death, the World’s media will shine a perhaps unwanted spotlight on the woeful British Columbia Family Compensation Act which places severe restrictions on compensation claims where a loved one is lost due to the carelessness of others.