By Glenn Godfrey and Barbara E. Cotton

What happens in situations where your client is injured, and lives for some time before he or she succumbs to their injuries? Can his or her estate sue for their injuries if a bereavement claim is also commenced under the Fatal Accidents Act?

It appears that the answer is yes, but the damages available in the Survival of Actions proceeding are statutorily restricted, and exclude general damages for pain and suffering.

Statutes such as Alberta’s Survival of Actions Act, R.S.A. 2000, c. S-27, were enacted to undo the effects of a general common law rule holding that personal actions in tort did not survive for or against a deceased person. The statute’s general purpose, therefore, is to put the deceased’s estate, with very minor exceptions, in the same position – as regards causes of action by or against the deceased – as the deceased would have been if she had not died.

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