Ms. Gabor was unable to avoid colliding with a pick-up truck that ran a red light. She incurred a brain injury with memory loss and chronic shoulder pain.
After the accident, her parents frequently flew from Lethbridge to Vancouver, rented an apartment or stayed at a hotel and provided her with assistance.
Two issues were whether her parents should be compensated for:
- their travel expenses and
- the services they provided their daughter.
On Sept 23, 2015 Madam Justice Ballance released her reasons for judgment. She found that:
- the parents’ primary purpose of taking their trips was to care for their daughter and
- they would not have taken those trips without the accident.
The law allows judges to compensate for reasonable expenses and wage loss for family members to provide a function that is useful for the claimant.
The judge awarded $14,000 for the parent’s flights from Lethbridge and for most of their accommodation in Vancouver (but not for their meals) while they provided assistance and comfort to their seriously injured daughter.
She also awarded the claimant $6,000 to be held “in trust” for her parents for the services they provided to her since her accident.
The judge applied another judge’s summary of the judge-made law respecting the factors to be considered in the assessment of “in trust” claims:
- “- the services provided must replace services necessary for the care of the plaintiff [claimant] as a result of [her] injuries;
- if the services are rendered by a family member, they must be over and above… the normal care of an uninjured child;
- the maximum value of such services is [what the cost would be] of obtaining the services outside the family;
- quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those services. In this regard, the damages should reflect the wage of a substitute caregiver.
- There should not be a discounting or undervaluation of such services because of the nature of the relationship;
- the family members providing the services need not forego other income and
- there need not be payment for the services rendered.”
This so called “in trust” part of the total award was made to the claimant “in trust” for her parents because the judge cannot make a direct award to friends or relatives of a claimant who are not actual plaintiffs (claimants) in her legal action (lawsuit).
See Gabor v Boilard, 2015 BCSC 1274