Introduction
Personal injury plaintiffs are often concerned about the implications that starting a lawsuit will have on their loved ones. This concern should never prevent an injured party from pursuing their claim. Outlined below are the different roles friends and family members may play in a personal injury lawsuit.
Direct involvement
In some cases, family members of the injured claimant will be named directly in a personal injury lawsuit. The two circumstances in which this may occur are:
1. FLA claims
In Ontario, pursuant to the Family Law Act[1] (the “FLA”), certain immediate family members of the injured or deceased party can sue for damages.
Damages may include:
a) actual expenses reasonably incurred for the benefit of the injured family member;
b) funeral expenses, if the injured party died as a result of their injuries;
c) travel expenses reasonably incurred while visiting the injured family member during their treatment or recovery;
d) loss of income or the value of the services rendered if nursing, housekeeping, or other services were provided to the injured family member; and
e) compensation for the loss of care, guidance, and companionship that the claimant may have reasonably expected to receive from the family member if the injury or death had not occurred.
If their losses are substantial enough, the injured or deceased party’s spouse, children, grandchildren, parents, grandparents, brothers, and sisters are eligible to advance FLA claims in this manner.
In an FLA claim, the family members are named as plaintiffs, along with the injured party. As such, FLA claimants may be required to be examined for discovery and/or testify at trial. Further, if the injured party and any FLA claimants wish to be represented by the same counsel, they all must be named in the retainer agreement and any potential conflicts of interest would need to be addressed. Depending on the type of injuries and the damages, it is often not appropriate to include FLA claimants and the injured party in the same claim. See the article “Understanding How Damages Are Assessed in a Personal Injury Case”, which discusses damages in more detail.
2. Defendant is a family member
It is sometimes necessary to name a family member as a defendant in the action. This may occur, for example, when a motor vehicle passenger was injured while their family member was driving the car.
When such a circumstance arises, it is important to remember that you are, for all intents and purposes, suing the defendant’s insurance company when naming a defendant in a personal injury matter. To access the insurance policy, it is necessary to sue the policy holder. As a named defendant, the family member may be required to be interviewed by a lawyer under oath and/or testify at trial. However, so long as they have a valid insurance policy, their own personal finances will not be affected as you can limit the claim in that regard. The insurance company should step in to defend the claim and appoint a defence lawyer to represent the defendant – family member.
Indirect involvement
Outside of these two situations, the injured claimant’s family will be largely uninvolved in the lawsuit in any formal legal sense. So long as they were not involved in the accident and were not named directly in the lawsuit, family members will not be required to be interviewed under oath or to testify at trial. Sometimes, the injured party’s lawyer will ask family and friends for written statements or other evidence that speaks to their loved ones injuries, but providing such is voluntary. If the matter goes to trial, which is extremely rare in motor vehicle accident cases, the injured party’s lawyer may call family members as witnesses, again to speak to the extent of the claimant’s injuries and how they have affected their life. This would also, in all likelihood, be on a voluntary basis.
Conclusion
Injured plaintiffs should not hesitate to bring a lawsuit out of concern for their family and friends. As your counsel, we strive to ensure that there are no negative legal implications to your family and friends. Their only concern should be for the well-being of their injured loved one.
[1] R.S.O. 1990, c. F-3.