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The Fatal Accidents Act
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This version is current as of June 27, 2017.
It has been in effect since July 1, 2014.

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C.C.S.M. c. F50

The Fatal Accidents Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1           In this Act, unless otherwise specified,

"child" includes a son, daughter, grandson, granddaughter, step-son, step-daughter, and a person to whom the deceased stood in loco parentis; (« enfant »)

"common-law partner" of a deceased means

(a) a person who, with the deceased, registered a common-law relationship under section 13.1 of The Vital Statistics Act, and who was cohabiting with the deceased immediately preceding the death of the deceased, or

(b) a person who, not being married to the deceased, cohabited with him or her in a conjugal relationship

(i) for a period of at least three years immediately preceding the death of the deceased, or

(ii)  for a period of at least one year immediately preceding the death of the deceased and they are together the parents of a child; (« conjoint de fait »)

"deceased" means a person whose death has been caused as mentioned in subsection 2(1); (« victime »)

"parent" includes a father, mother, grandfather, grandmother, step-father, step-mother, and a person who stood in loco parentis to the deceased; (« parent »)

"support recipient" means a person to whom the deceased was, at the time of his or her death, required to pay support pursuant to a valid and subsisting written agreement or court order; (« bénéficiaire des aliments »)

"tortfeasor" means a person whose wrongful act, neglect, or default has caused the death, or contributed to the cause of the death, of the deceased and who, if death had not ensued, would have been liable to him for damages, and includes a person who would have been liable vicariously or otherwise for such damages. (« auteur du délit »)

S.M. 2001, c. 37, s. 5; S.M. 2002, c. 13, s. 2; S.M. 2002, c. 48, s. 8.

Liability for damages caused by death

2(1)        Where the death of a person is caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the deceased to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, is liable for damages, notwithstanding the death of the deceased, even if the death was caused in circumstances amounting in law to culpable homicide.

When cause of action arises

2(2)         Subject to subsection (5), the liability for damages under this section arises upon the death of the deceased.

Effect of settlements made by deceased

2(3)        No settlement made, release given, or judgment recovered in an action brought, by the deceased within a period three months after the commission or occurrence of the wrongful act, neglect, or default causing his death is a bar to a claim made under this Act or is a discharge of liability arising under this Act, but any payment made thereunder shall be taken into account in assessing damages in any action brought under this Act.

Effect of settlement made by deceased

2(4)        Unless it is set aside, a settlement made or release given, or a judgment recovered in an action brought, by the deceased after the expiration of the period mentioned in subsection (3), is a discharge of liability under this Act.

Prior death of tortfeasor

2(5)        If, at the time of the death of the deceased, the tortfeasor is himself dead, the liability arising under this Act shall be conclusively deemed to have been subsisting against the tortfeasor before his death.

Subsequent death of tortfeasor

2(6)        Where the tortfeasor dies at the same time as the deceased, or in circumstances rendering it uncertain which of them survived the other, or after the death of the deceased, the liability and cause of action arising under this Act shall be conclusively deemed to lie upon, and continue against, the executor or administrator of the tortfeasor as if the executor or administrator of the tortfeasor were the tortfeasor in life.

Person entitled to benefit

3(1)        Every action under this Act shall be for the benefit of the spouse, common-law partner, support recipient, parent, child, brother, and sister, or any of them, of the deceased; and, except as hereinafter provided, shall be brought by, and in the name of, the executor or administrator.

Amount of damages

3(2)        Subject to subsection (3), in every such action such damages as are proportional to the pecuniary loss resulting from the death shall be awarded to the persons respectively for whose benefit the action is brought.

Funeral expenses

3(3)        Where an action has been brought under this Act there may be included in the damages awarded an amount sufficient to cover the reasonable expenses of the funeral and the disposal of the body of the deceased if those expenses were incurred by any of the persons by whom or for whose benefit the action is brought; but nothing is recoverable, under this subsection, for funeral expenses if the amount of those expenses has been recovered, or is claimed, in an action brought under The Trustee Act.

3(4)        [Repealed] S.M. 2002, c. 13, s. 3.

3(5) and (6) [Repealed] S.M. 2001, c. 37, s. 5.

S.M. 2001, c. 37, s. 5; S.M. 2002, c. 13, s. 3; S.M. 2008, c. 42, s. 38.

Definitions re loss of companionship

3.1(1)      In this section,

"child" means a son or daughter of the deceased who, at the time of the death of the deceased, was under the age of 18 years; (« enfant »)

"family member" means

(a) a son or daughter of the deceased who, at the time of the death of the deceased, was 18 years of age or over,

(b) a step-son or step-daughter of the deceased, or a person to whom the deceased stood in loco parentis,

(c) a step-mother or step-father of the deceased, or a person who stood in loco parentis to the deceased, and

(d) a brother, sister, grandson, granddaughter, grandfather or grandmother of the deceased; (« membre de la famille »)

"parent" means a mother or father of the deceased. (« parent »)

Damages for loss of companionship

3.1(2)      Subject to section 4, the court shall award damages for the loss of guidance, care and companionship of the deceased in the following amounts:

(a) $30,000. to each of the spouse of the deceased, the common-law partner of the deceased and the support recipient of the deceased and to each parent and child of the deceased;

(b) $10,000. to each family member of the deceased.

No application of Equality of Status Act

3.1(3)      An award may be made under this section notwithstanding The Equality of Status Act.

No need to establish damages

3.1(4)      An award of damages under this section shall be made without reference to any other damages that may be awarded and without evidence of damage.

Adjustment for inflation

3.1(5)      In making an award under this section, the court shall adjust the amounts set out in subsection (2) to take into account inflation after 2002.

S.M. 2002, c. 13, s. 4; S.M. 2008, c. 42, s. 38.

Contributory negligence of beneficiary reduces his damage

4(1)        Where a person for whose benefit, alone or with others, an action may be brought under this Act is a tortfeasor, the damages that would otherwise be awarded for his benefit shall be reduced in proportion to the degree in which the court finds that his wrongful act, neglect, or default contributed to the cause of the death of the deceased.

Contributory negligence of deceased

4(2)        Where the wrongful act, neglect, or default of the deceased contributed to the cause of his death, the damages that would otherwise be awarded under this Act shall be reduced in proportion to the degree in which the court finds that his wrongful act, neglect, or default contributed to the cause of his death.

Bringing of action where no executor or administrator

5(1)        Where there is no executor or administrator of the estate of the deceased, or there being an executor or administrator no action is brought by him within six months after the death of the deceased, an action may be brought by, and in the name or names of, any one or more of the persons for whose benefit the action would have been brought if it had been brought by the executor or administrator.

Persons who benefit

5(2)        Every action so brought shall be for the benefit of the same persons as if it were brought by the executor or administrator.

Amended statement of claim

5(3)        Where an action is brought under this Act but has not been set down for trial within six months after it was begun, the statement of claim in the action and all subsequent proceedings therein may, on application, be amended by substituting or adding as plaintiff, all or any of the persons for whose benefit the action was or should have been brought.

Considerations in assessing damages

6           In assessing damages in an action brought under this Act there shall not be taken into account,

(a) any sum paid or payable on the death of the deceased under any contract of insurance or assurance, whether made before or after the coming into force of this Act;

(b) any premium that would have been payable in future under any contract of insurance or assurance if the deceased had survived;

(c) any benefit or right to benefits, resulting from the death of the deceased, under The Workers Compensation Act, The Manitoba Assistance Act, or The Child and Family Services Act or under any other Act that is enacted by any Legislature, Parliament, or other legislative authority and that is of similar import or effect;

(d) any pension, annuity or other periodical allowance accruing payable by reason of the death of the deceased; and

(e) any amount that may be recovered under any statutory provision creating a special right to bring an action for the benefit of persons for whose benefit an action may be brought under this Act.

S.M. 2014, c. 35, s. 24.

One action only

7(1)        Only one action lies under this Act in respect of the death of the deceased.

Procedure in bringing of action

7(2)        Except where it is expressly declared in another Act that it operates notwithstanding this Act, it is not necessary that any notice of claim or intended claim, or notice of action or intended action or any other notice, or any other document, be given or served, as provided in any such other Act, or otherwise, before bringing an action under this Act.

Limitations not binding on claimant

7(3)        If the deceased, at the time of his death, could not have brought an action against the tortfeasor by reason of lapse of time or failure to comply with any statutory or contractual condition, a person entitled to bring action under this Act is not, solely by reason of that fact, barred from so doing.

Limitation on bringing of action

7(4)        Except where it is expressly declared in another Act that it operates notwithstanding this Act, an action, including an action to which subsection 2(5) or (6) applies, may be brought under this Act within two years after the death of the deceased but no such action shall be brought thereafter.

Effect of contract

7(5)        This section has effect notwithstanding any contract.

Payment into court

8           The defendant may pay into court one sum of money as compensation for his wrongful act, neglect, or default to all persons entitled to damages under this Act, without specifying the shares into which, or the parties among whom, it is to be divided under this Act.

Particulars required in bringing action

9(1)        In every action brought under this Act,

(a) the statement of claim shall contain, or the plaintiff shall deliver therewith, full particulars of the names, addresses, and occupations of the persons for whose benefit the action is brought; and

(b) the plaintiff shall file with the statement of claim an affidavit in which he shall state that to the best of his knowledge, information, and belief, the persons on whose behalf the action is brought, as set forth in the statement of claim or in the particulars delivered therewith, are the only persons entitled, or who claim to be entitled, to the benefit of the action.

Order for particulars and effect of failure to give particulars

9(2)        Where the plaintiff fails to comply with subsection (1), the court, on application, may order the plaintiff to give such particulars or so much thereof as he is able to give; and the action shall not be tried until he complies with the order; but the failure of the plaintiff to comply with subsection (1) or with an order made under this subsection is not a ground of defence to the action, or a ground for its dismissal.

Order dispensing with affidavit

9(3)        A judge of the court in which the action is brought may dispense with the filing of an affidavit, as required in subsection (1), if he is satisfied that there is sufficient reason for doing so.

Apportionment by judge

10(1)       Where the amount recovered has not been otherwise apportioned, a judge in chambers may apportion it among the persons entitled thereto.

When payments may be postponed

10(2)       The judge may, in his discretion, postpone the distribution of money to which infants are entitled, and may direct payment from the undivided fund.

Determination of questions between persons entitled

11          Where an action is brought under this Act, a judge of the court in which the action is pending may make such order as he may deem just for the determination of all questions as to the person entitled under this Act to share in the amount, if any, that may be recovered.

Crown bound

12          Her majesty in right of Manitoba is bound by this Act.