What if you can no longer do heavy or any house work after being hurt in a car accident? What if your spouse now has to do most of the cooking, cleaning and other house chores, or has to look after you? Can you get compensation for this?
An innocent car crash victim is usually entitled to compensation from the person at fault for the accident (or their insurance company). Damages are intended to compensate for various losses you may have suffered – like past wage loss, loss of future earning capacity, cost of future care and loss of life enjoyment.
And, yes, “loss of housekeeping capacity” is another type of loss for which you might receive compensation. Sometimes it’s called an “in trust” claim because even though it’s the injured victim who has lost the ability to do things around the house, their claim is really on behalf of family members who step up to assist.
In a leading case, our B.C. appeal court upheld a damage award of $150,000 for such a claim. The circumstances were unusually tragic. Mrs. Miller (names changed), 58, was badly hurt when her car was crushed by a tractor-trailer in a Lower Mainland tunnel. She suffered extensive injuries, including a severe brain injury which left her with cognitive deficits.
The court concluded that Mr. Miller, who was devoted to his wife, had (and chose) to give her a lot of personal care. She now needed almost constant supervision and guidance. For example, she couldn’t be left alone to cook on a gas stove and she’d get confused grocery shopping. Basically, she couldn’t be left alone for long without endangering herself. The Millers’ lives and the time they spent together changed completely – Mr. Miller’s role essentially changed from marriage partner to personal caregiver.
The court pointed out that you (or your caregiving family member) don’t actually have to hire a personal services person in order to win compensation for this type of claim. That’s because it’s your loss of capacity (i.e., your ability to look after yourself and others), an asset, that is being compensated for – even if you don’t actually hire a replacement housekeeper. In this case, what Mr. Miller took on went significantly above and beyond what could be expected from the fact of his being Mrs. Miller’s marriage partner.
How much to award for loss of housekeeping capacity isn’t always easy to figure out. Here, the defence wanted the appeal court to reduce the $150,000 award, which was based on “about six hours” of daily care from an outside care support worker. The court said no, however. It was unrealistic to expect Mr. Miller, in these trying circumstances, to have kept a precise calculation of his caregiving time. And without his help, Mrs. Miller would not have been able to live independently in her home.
Our courts approach claims for loss of housekeeping capacity quite cautiously. If family members only have to help a little more around the house because you were injured, the compensation for this will be small, if anything.
Janice Mucalov, LL.B. for Gertsoyg & Company. This column provides information only and must not be relied on for legal advice. Please call Gertsoyg & Company at (604) 602-3066 for a free legal consultation concerning your particular case.
Posted: July 6, 2017