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Diminished Homemaking Capacity Damages Awarded Despite Pre-Existing Disability

If a Plaintiff is vocationally disabled due to a pre-existing condition this does not preclude a court from assessing damages for diminished housekeeping capacity.  This was demonstrated in reasons for judgement released last week.

In last week’s case (Chow v. Nolan) the Plaintiff was largely disabled from a  pre-existing traumatic injury.  The Plaintiff was involved in a 2008 collision which worsened his pre-existing condition.  Although the Plaintiff’s claims for diminished earning capacity were dismissed the Court accepted the aggravations further diminished his abilities to take care of his household and assessed damages for this loss.  In doing so Madam Justice Kloegman provided the following reasons:

[76]         There were two reports from occupational therapists recommending the provision of homemaking services to the plaintiff. The biggest difference between them is that the plaintiff’s expert witness, Ms. Gibson, assumed that the plaintiff would be in need of these services until age 70, 75 or 80. This is not a reasonable assumption in light of the evidence of prognosis. Dr. Chu reported that the plaintiff will return to pre-2008 accident status at some point. Dr. Gill testified that two years is probably too soon to expect recovery to his pre-2008 accident status, but perhaps five years is reasonable.

[77]         In my view, on the totality of the evidence, it would not be reasonable to award the plaintiff for future losses that extend past five years from trial. I accept Ms. Gibson’s list of items which were submitted by the plaintiff as being reasonably expected to incur as a result of the plaintiff’s decrease in function, but they must be restricted to a period of five years. When each of these items is paid for separately, it is much more expensive (almost double), than hiring one person to perform these jobs. Ms. Gibson’s suggestion of using an agency person at a rate of $24 per hour at an annual cost of $22,276.80 ($21,216 plus 5% GST) is the most reasonable course of action.

[78]         This figure should be reduced by 20% to $17,821.40 to reflect reasonable positive contingencies such as not requiring as much assistance with meal preparation, transporting daughter, etc., on those days when the plaintiff feels capable of handling such things himself.

[79]         The present value of $17,821.00 over five years is $14,756.00 per year, for a total of $89,108. I award the plaintiff $89,108.00 for loss of homemaking capacity in the future.

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