Can Other Family Members Sue When a Family Member Is Injured In An Accident?

When a Family Member Is Injured In An Accident, Children May Face More Chores, Parents May Need to Do More Errands, and a Spouse May Experience Reduced Intimacy and Companionship. The Uninjured Family Members With Indirect Effects May Sue the Person That...


Understanding the Right to Sue When a Family Member is Injured By the Tortious Conduct of Another Person

Family Member Rights Involving Claim Rights For Consequences of Injury to Another Family Member There are often indirect consequences to other immediate family members within the household when a family member is injured. These consequences may be the need to pick up the slack in household chores, among other things, on behalf of the injured family member.  When family members are indirectly adversely affected with lifestyle changes due to the tortious injury of another family member, those suffering the indirect affects may bring litigation independently, or along with, the family member that was actually injured .

The Law
Are Family Members Able to Sue For Injuries to Another Family Member?

Generally, the law allows only the person who was injured to sue the person who caused the injury. In most circumstances, this makes sense whereas, if otherwise, any person inconvenienced by the injury would be able to sue - for example, a neighbour who was depending on the injured person for babysitting assistance or an employer who was needed overtime help, among others, who may be put out in some way due to the injuries caused to the injured person.

However, if the injured person is a certain family member as defined within the Family Law Act, R.S.O. 1990, c. F.3, other family members may have a right to take legal action.  In many respects this seems obvious, especially when the injured family member was injured in some type of severe accident that has a significant impact and affects upon others within the household or family unit.

Although this right to sue would seem obvious where severe accidents cause serious injury to a person with consequential affect upon family members, section 61 of the Family Law Act provides such rights even when somewhat mild injuries, and mild consequential inconveniences, affect family members; and accordingly, the right for family members to sue can, and does, arise within Small Claims Court cases.  Specifically, section 61(1) of the Family Law Act provides such rights to immediate family members and some extended family members whereas it is stated:


If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.

Damages As May Be Claimed

The damages (reward for losses) that a dependent person may claim are very broad ranging from actual damages (specifically measurable expenses) to general damages (immeasurable losses such as inconvenience, stress, loss of or lesser marital consortium, etc.).  The breadth of the claimable damages is prescribed by section 61(2) of the Family Law Act as including:


The damages recoverable in a claim under subsection (1) may include:

(a) actual expenses reasonably incurred for the benefit of the person injured or killed;

(b) actual funeral expenses reasonably incurred;

(c) a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;

(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.

Defined Injuries

Interestingly, the Family Act Law lacks a definition of "injuries"; and thus, the nature of possible injuries appear unlimited and may involve more than just physical harm.  As such, if the injured person experiences psychological harm, a right of action in favour of dependent family members may arise if negative consequences affect the dependent family members.  This might even be arise where a wrongdoer engages in conduct that inflicts purely psychological injuries upon the injured person and the resulting stress cascades to other family members throughout the household.

Small Claims Court, monetary jurisdiction

In some circumstances, the combination of the sum of claims brought by the injured person as well as the sum of the claims brought by the dependent family members may appear to exceed the Small Claims Court monetary jurisdiction, which is $35,000 as of January 2020; however, as each Plaintiff is a separate claimant, each has an independent right of action to bring claims for compensation up to the limit of the court.  Accordingly, where the injured person as well dependent family members each claim $35,000 or less, the collective total may exceed $35,000 so long as the individual claims are $35,000 or less.

Summary Comment

When a fellow member of the family is injured, and others within the family unit need to pick up the slack for various chores, among other things, the family members who suffer harm via consequent inconvenience and disruption to regular life, while without any direct injuries, may bring litigation against the person who harmed the injured family member.

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