In this precedent changing personal injury Court of Appeal decision, the injury claimant, struck by another vehicle on the passenger side where she was seated, was awarded $1,782,068, including $418,000 for loss of housekeeping capacity at trial. We focus on this exciting new statement from the court of appeal embracing this claim for loss of housekeeping capacity both as a pecuniary and non-pecuniary loss (Kim v. Lin,2018 BCCA 77).
The Court of Appeal has now updated the law related to loss of housekeeping capacity, both to perform household tasks and carry out childcare responsibilities. Judge Bauman writing for the three judge panel in a unanimous decision:
[33] Therefore, where a plaintiff suffers an injury which would make a reasonable person in the plaintiff’s circumstances unable to perform usual and necessary household work — i.e., where the plaintiff has suffered a true loss of capacity — that loss may be compensated by a pecuniary damages award. Where the plaintiff suffers a loss that is more in keeping with a loss of amenities, or increased pain and suffering, that loss may instead be compensated by a non-pecuniary damages award. However, I do not wish to create an inflexible rule for courts addressing these awards, and as this Court said in Liu, “it lies in the trial judge’s discretion whether to address such a claim as part of the non-pecuniary loss or as a segregated pecuniary head of damage”: at para. 26.
[34] Whichever option a court chooses, when valuing these different types of awards, courts should pay heed to the differing rationales behind them. In particular, when valuing the pecuniary damages for the loss of capacity suffered by a plaintiff, courts may look to the cost of hiring replacement services, but they should ensure that any award for that loss, and any deduction to that award, is tied to the actual loss of capacity which justifies the award in the first place.
This case involved a 27 years old claimant with two small children. She had no pre-existing conditions that would have had an adverse effect on her health or capacity. After the car accident she was left with severe and likely permanent physical and psychological injuries.
The injury claimant suffered profound loss of capacity to perform housework. The trial judge found that she needed between two and three hours of housekeeping services per day until age 70. Given the plaintiff’s age, the cost of two to three hours of services per day at $15 per hour until age 70 would undoubtedly be substantial, even deducting for contingences.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.