as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. F50
The Fatal Accidents Act
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"child" includes a son, daughter, grandson, granddaughter, step-son, step-daughter, and a person to whom the deceased stood in loco parentis; ("enfant")
"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")
"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")
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.
Subject to subsection (5), the liability for damages under this section arises upon the death of the deceased.
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.
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.
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.
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.
Every action under this Act shall be for the benefit of the wife, husband, 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.
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.
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.
Notwithstanding The Equality of Status Act, where an action has been brought under this Act, there may be included in the damages awarded an amount to compensate for the loss of guidance, care and companionship that the deceased, if he had lived, might reasonably have been expected to give to any person for whose benefit the action is brought and in making an apportionment under subsection 10(1) the judge shall apportion those damages among the persons who might reasonably have been expected to receive the guidance, care or companionship if the deceased had lived.
Where the deceased
(a) cohabited with a person continuously for a period of not less than five years immediately preceding death in a relationship in which that person was substantially dependent upon the deceased; or
(b) cohabited with a person continuously for a period of not less than one year immediately preceding death and there is a child of the union;
(c) was paying maintenance to a person pursuant to a written agreement or a court order;
that person has the same rights as a husband or wife under this Act and shall, subject to subsection (6), be included in the action under subsection (1).
Where the deceased and the person have agreed in writing that the person would have no right to maintenance from the deceased, the person shall not have the benefit of clause (5)(a).
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.
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.
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.
Every action so brought shall be for the benefit of the same persons as if it were brought by the executor or administrator.
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.
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, or The Social Allowances 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.
Only one action lies under this Act in respect of the death of the deceased.
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.
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.
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.
This section has effect notwithstanding any contract.
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.
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.
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.
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.
Where the amount recovered has not been otherwise apportioned, a judge in chambers may apportion it among the persons entitled thereto.
The judge may, in his discretion, postpone the distribution of money to which infants are entitled, and may direct payment from the undivided fund.
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.
Her majesty in right of Manitoba is bound by this Act.