Ms. Lacayo was in a car accident in 2008. She suffered multiple soft tissue injuries and her depression worsened. She sought compensation on behalf of her husband at her trial for $43— $45,000. He claimed he drove her to many doctors’ appointments, that this sometimes resulted in his missing work and that this will continue.
This is called in law an “in trust” claim. Ms. L. would hold in trust any such award for her husband.
The judge concluded that what Ms. L’s husband did for her was not over and above the normal “give and take” between spouses. He therefore rejected this part of her claim. See below for what one needs to do and to prove if one wishes to pursue such a claim.
People who help out an injured claimant have no standing (right) to be a “plaintiff” (claimant) in the legal action of the injured person since they were not directly harmed by the wrongdoer. So judges created law which allows a court to award damages to the claimant in trust for the person who assisted the claimant.
At trial, Ms. L claimed that her husband:
- drove her at least 10 appointments per year at two hours each,
- had to take time off work, and
- took on additional housekeeping tasks.
She sought an “in trust” award of:
- $18,000 for the past 6 years before trial and
- $25,000-$30,000 for additional work he may have to take on in the future
This is over and above her own claim for damages.
Some principles respecting “in trust” awards are:
- it is compensation that is paid to family members for housework or assistance that they needed to provide to the claimant after the accident.
- Proving the person suffered economic loss, such as taking time off work, can be helpful to such a claim.
- However it is not essential.
- The additional work the person takes on must be more than the simple “give and take” between family members that they would have provided in any event to each other absent the accident.
On March 4, 2016 in New Westminster, Mr. Justice Armstrong released his reasons for judgment. He rejected the claimant’s claim for an “in trust” award for the following reasons:
- her husband did not provide any documentary evidence proving his loss of income;
- in any event, he made up later the hours he missed work;
- he had periods of unemployment after the accident;
- during those periods he would not have suffered income loss when he drove his wife to appointments, and
- he already did many of the household chores before the accident.
The judge stated that although he accepted that her husband may have driven her to several appointments, the purpose of an “in trust” award is to compensate family members for taking on additional household and other tasks. The judge was not satisfied that the minor increase in duties he undertook was beyond the “give and take” necessary to ground an “in trust” award for a family member.
If family members or close friends of a claimant wish to eventually claim compensation for some of the additional help they give to an injured claimant over time they should:
- keep meticulous notes of all the services they provide the claimant;
- this should preferably be in a Word table kept on their computer with the following columns:
- date, time spent in 1/10th hour (6 minute) increments, wages lost, services provided, comments;
- complete the table the same day or the next day after he or she provides each of the services & not amend anything later.
- (ones notes must be made “contemporaneous with the event” in law to help prove they are reliable);
- obtain strong and clear supporting proof of their loss of income during each period they were helping the claimant;
- be ready to establish that their services were well above what they would have done for the family member as part of the normal give and take of their particular relationship with the claimant.
- husbands are expected to volunteer to help more than 2nd cousins, for example.