In a Wrongful Death action, the family must establish two key elements:

First, the defendant must have acted wrongly or carelessly.

At trial, we often refer to it as the defendants’ “bad act”. Legally speaking, it’s a breach of the duty of care. For example, it is the duty of a driver to drive safely and follow the rules of the road. For a doctor, they have the duty to properly diagnosis a patient. For a property owner, the approaches to the property must be safe.

Second, the “bad act” must have directly caused the injury.

This is the link or relationship between the bad act and the death. All claims must show that because of “X”, the death occurred.

As such, merely because someone did something bad, does not meant they caused another’s death.

For example, we see people driving too fast and recklessly all the time. However, each time some drives badly, does not mean that they have injured or killed someone. As plaintiff, we must show that the bad act, say speeding, caused the death.

This issue is greatly debated in medical malpractice cases. Often times, the doctor will be forced to concede an errors, but they typically argue that the error did not cause the death.

For more information, view Chapter 3 of our eBook