Ms William, 59, claimed that prior to her MVA she did the cooking & cleaning at home without her family’s help. 4 years after her MVA, Ms W still suffers from neck, back & chronic knee pain that limits her daily activity. As a result, her husband & adult son have done most of the cleaning & cooking in their home since her MVA.
The occupational therapist her lawyer sent her to for extensive work capacity testing concluded that:
- she is unable to do her housework by herself &
- she can only do basic meal prep & household chores.
Mr Justice Bowden accepted that:
- her husband & son provided a great deal of help to Ms W because of her injuries &
- their help went “to some extent” beyond what would normally be expected from a family member.
The judge awarded Ms W $10,000 in trust to her husband & adult child for the work they had done since her MVA that went beyond what would normally be expected from a family member. The award was in trust for them because Ms. W only sued the other driver. So the judge can’t make an award directly to her husband and child.
The principles of when a judge or jury can make an “in trust” award and in what amount are set out in the decision of the BC Supreme Court called the Farand case.
- “the overarching principle to apply in determining “in trust” claims is reasonableness.”
- “Such awards are generally limited to seriously injured plaintiffs for support services beyond those normally to be expected in a marital or familial relationship” (Farand case at para. 99)
- The principles to be applied in determining an “in trust” claim are:
- “a. The services provided must replace services necessary for the care of the plaintiff as a result of a plaintiff’s injuries;
- b. If the services are rendered by a family member, they must be over and above what would be expected from the family relationship;
- c. The maximum value of such services is the cost of obtaining the services outside the family;
- d. Where the opportunity cost to the care-giving family member is lower than the cost of obtaining the services independently, the court will award the lower amount;
- e. Quantification should reflect the true and reasonable value of the servicers performed, taking into account the time, quality and nature of those services; and
- f. The family members providing the services need not forego other income and there need not be payment for the services rendered.” (Farand case at para. 100)
The judge also awarded Ms William:
- an amount to be decided by him later for her future cost of care including an award for future housekeeping needs if the two lawyers cannot agree,
- $125,000 for her pain and suffering &
- a total of $210,116 for her past and future lost earning capacity.
- William v. Ross, 2017 BCSC 2200
- Farand v. Seidel, 2013 BCSC 323
- other blogs on help by family members at:
- “Compensation for family members of the injured person. Q & A’s” at: