Wilcox v. The Miss Megan

In Personal Injury and Maritime Law on (Updated )

This was a case in which the Defendant admitted liability for a fatal injury when a fishing vessel capsized. The deceased drowned. Claims were made under the provisions of the Marine Liability Act by the deceased’s widow, three adult children and brothers and sisters. The first issue was whether the brothers and sisters could make a claim under the MLA. The Prothonotary held that they were clearly entitled by s. 4(c) of the Act. The Prothonotary next considered the pecuniary damages. The Prothonotary rejected the Defendant’s argument that a deduction should be made for successful mitigation by the widow holding that a widow had no obligation to mitigate. The Prothonotary also said that the appropriate means of accounting for personal expenditures by the deceased in a two income household was to use the “cross-dependency method” (which applies a dependency rate to family income as opposed to personal income). The Prothonotary next considered whether two of the dependents were entitled to damages for loss of valuable services provided by the deceased and held that they were. Finally, the Prothonotary considered damages for loss of care, guidance and companionship. The Prothonotary noted that the MLA provided no guidance as to how these damages should be calculated and further noted that the provinces seemed to have taken two distinct approaches; a conventional award or an award based on assessment of the evidence on a case by cases basis. The Prothonotary held that legislation in Ontario bore the closest resemblance to the MLA and adopted the Ontario case by case approach. In assessing actual damages the Prothonotary consulted the Ontario cases for guidance. The Prothonotary awarded the widow and a disabled daughter $75,000 each for loss of care, guidance and companionship. The other two children were awarded $25,000 each. The siblings were each awarded $15,000. The Defendant appealed the order of the Prothonotary but the Appeal Judge upheld the decision in its entirety.