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Compensation for Relational Harm

The Law Commission of Canada suggests an analytical framework for assessing law and legislation that is helpful in clarifying conclusions and desirable directions with respect to wrongful injury and death. It is obvious that there exist legitimate policy objectives for legislation aimed at compensation for people in close personal relationships with the immediate victims of fatal or serious wrongdoing. Relationships clearly matter; the entire thrust of the law in this area is to define appropriately the scope of the wrongdoer's responsibility, given that we understand individual victims to live within a web of significant relationships. Individuals do not self designate as beneficiaries in this context, although individuals may indeed name beneficiaries in their life or disability insurance policies. On the other hand, individuals, influenced by the society to which they belong, may well make (implicit) assumptions as to who would be affected (and would deserve to be compensated) in a situation of wrongful death or injury. Finally, the way in which relationships are currently included deserves careful analysis, in-depth understanding, and appropriate modification along the following lines.

Four guiding principles are articulated here in order to ground and justify recommendations regarding compensation for people closely affected by the wrongful death or injury of someone with whom they had a relationship.

First, the law should respect close personal relationships in our lives. Different kinds of relationships should receive different treatment by the law of civil liability. That is, the nature of the relationship between the immediate victim of wrongdoing and others affected by that victim's plight should matter in the private law's perspective on the nature of the harm suffered and the appropriateness and assessment of any claim for losses. In keeping with this principle, there should be increased recognition for the emotional and psychological losses that result from the wrongful death (and, by extension, injury) of a loved one. Emotional interdependency has not been fully acknowledged by the common law as shown by its extremely narrow acceptance of claims for psychiatric harm and its general reluctance to recognize moral injuries. Legislation has therefore become the principal source of this kind of recognition for family members and those close to the deceased. Beyond filling a gap left by the common law, responsiveness to emotional/psychological links and loss means that, even in a situation of financial independence of a claimant, compensation might be possible. Indeed, emphasizing compensation for this kind of damage in the wake of wrongful death or injury means that claimants are similarly compensated regardless of the wealth of the immediate victim.

Second, we should think as broadly and creatively as possible about private law's acknowledgement and support of personal relationships. Traditionally based on assumptions about family format, structure and economic arrangements, the common law legislative insistence on precisely and exclusively naming potential beneficiaries in a situation of wrongful death (and more rarely wrongful injury) requires reworking. It is already the case that legislators are aware of the need to revisit the lists of potential beneficiaries in order to be more generous, realistic and responsive. But expanding the lists is not enough nor is it the ideal approach. Instead, the relationships - characterized by family and spousal ties - that are typically included could be captured more effectively in order to meet the legislative aim of acknowledging the many people who could or should be close to us both in life and in death. That is, in giving guidance and meaning to "relational loss", common law legislation might define it as loss, either pecuniary or non-pecuniary (loss of companionship, care, guidance and support), arising in the context of a "close personal relationship". The legislation might even specify examples (non-exclusionary) of such relationships (i.e. parent-child, spousal, and sibling relationships) and that analogous relationships characterized by emotional and economic interdependency are included. Assumptions regarding what kinds of relations give rise to real loss for individuals who lose a loved one can thus be retained in the law but the emphasis is reversed. Rather than saying no relationships count other than the ones specified, the law could start from the premise that loss based on damage to a significant relationship will be recognized. Any relationships specified would be meant to give guidance as to what law and society mean by significant relationships (i.e. usually not the bystander or an employer or a student) in the context of compensation for losses arising from wrongful death or injury.

Third, the law should aim to respond to actual relational loss. As already noted, this means avoiding an exclusionary list of those relationships which are deemed to have the potential for giving rise to real loss. Even if legislation broadens such a list as much as possible (the path taken by the Marine Liability Act), or adopts a less specific list with the explicit addition of anyone in "analogous relationships", the focus remains on the "whom", rather than on the relational loss itself. The emphasis in litigation would inevitably end up being on the existence of an included or analogous relationship. Instead, drawing on the civil law experience and approach, greater emphasis should be on compensating plaintiffs who have truly suffered relational harm as a result of the immediate victim's death or injury. Thus, while a legislative framework might incorporate the common law tradition by offering guidance as to the interpretation of "relational loss" (i.e. as noted above, by referring explicitly to certain kinds of relationships as analogous examples), it should be open to anyone to bring claims for such loss. For example, a roommate, or a great-aunt, might, in a particular case, be extremely close to the immediate victim. From the defendant's perspective, it is appropriate to assume that the victim had, in her life, people extremely close to her such as the roommate or particular family member or child. When meaningful relationships are damaged by the wrongdoing, the law in this area could better recognize that harm and the people suffering it. However, while it may be foreseeable to the defendant that many people might be very sad or shocked at the death of a friend/ colleague/ mentor/ employee, policy reasons (earlier canvassed) and this suggested focus on the relational nature of the harm dictate against placing the total burden of that grief and shock on the shoulders of the defendant.

The fourth principle, already alluded to above, is one of openness to both pecuniary and non-pecuniary claims. In the kinds of relationships giving rise to recognized relational harm, emotional connection and tangible economic ties often co-exist. Thus, in showing that the loss suffered is relational in nature - i.e. that it arises through the closeness of the claimant to the immediate victim - the claimant will often point to both financial and what might be termed psychological aspects of the loss and of the relationship. It makes sense, then, to insist on greater openness by the law to emotional and psychological damage in this context. On the other hand, willingness to make awards for loss of companionship or for grief does entail intensive inquiry into the relationship - an inquiry that will feel very different to the plaintiff than simply an inquiry into actual and projected financial damages. It may be that if we truly want to respect privacy and to transmit a normative message with respect to close relationships, it would be appropriate to set fixed amounts for grief or for emotional loss arising out of wrongful death (arguably the same aims don't exist in the wrongful injury context). This would be essentially an "insurance" approach with automatic compensation once the plaintiff showed a close "family-like"/ interdependent relationship. That is, status-based awards, meant simply to recognize certain relationships (e.g. parent-child) at a time of hardship (specifically death), might be appropriate, even in a generally "functional" scheme, as fixed sum awards for grief and emotional hardship experienced in the wake of wrongful death.

In conclusion, the law should be more open, generous and flexible both in the "who" and the "what" of compensation for relational losses in wrongful death and injury. Intangible damage incurred by those close to the immediate victims of someone's wrongdoing should be contemplated and provided by the law. And the "list" of people who may be affected by someone's death or injury and whose relational loss is recognized by the law should be enlarged. Rather than adding more categories to the legislative language, however, this goal should be accomplished by making eligibility for compensation hinge on the claimant's answer to the question, "What kind of relational loss have you suffered?".

The answer to this question properly includes some discussion of "who" the claimant is with respect to the immediate victim. That is, in addressing the notion of relational loss, the law cannot avoid giving greater weight to some relationships than to others. Indeed, it must do so in order to respond appropriately to claims for damages in this context. Assumptions, whether implicit or mentioned as guidelines in the legislative scheme, will mean, for example, that members of the victim's immediate family or the victim's emotional partner in life are seen as serious claimants. Regardless of the particular plaintiff's status, however, investigation into the relational nature of the loss will take place, meaning that interdependent emotional and economic relationships will be significantly recognized. If and when the quality of the affected relationship is such that substantial loss of a relational character has been sustained, then the claimant can succeed; in other words, the defendant's scope of responsibility extends to the real losses experienced by those close to the immediate victim and caused by the wrongdoing.

The Law Commission of Canada is urged to acknowledge the complexity of this area of law, the desirability for greater uniformity in the common law legislative schemes in Canada, and the potential lessons to be learned from Quebec civil law. It is also reminded that the limiting mechanisms in common and civil law civil liability are importantly different, and that it is not in the scope of this Report to suggest a complete overhaul to tort law and its insistence on foreseeability, proximity and common law "policy". This Report instead attempts to convey a complete and sensitive picture of this area of law in Canada, to capture the multiple aims and objectives of the law, and to suggest a way to respect relationships that are expected to be close and those that, while not necessarily traditionally recognized, are indeed close.