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Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

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Posts Tagged ‘Loss of Marriageability’

ICBC Ruined Our Marriage! “Lost Opportunity of Family Income” Claim Rejected

February 27th, 2014

While BC Courts do recognize that collision related injuries can lead to the demise of a financially interdependent relationship and lead to increased costs, the evidence to advance such a claim must be persuasive.  Reasons for judgement were released this week rejecting such a claim and discussing the requirements of advancing damages for “lost opportunity of family income“.

In this week’s case (Liu v. Bourget) the Plaintiffs were injured in a collision and sued for damages.  They alleged a variety of losses including that they separated, and thereby incurred greater expenses, as a direct result of the accident.  Mr. Justice Skolrood rejected this claim on the evidence and in doing so provided the following reasons:

[272]     Ms. Cheng and Mr. Liu submit that they have incurred increased expenses from the fact that they now live in separate residences which they say is a direct result of the accident. They say that an award of $50,000 is reasonable in the circumstances.

[273]     Ms. Cheng and Mr. Liu cite Grewal v. Brar et al, 2004 BCSC 1157, where the court awarded the plaintiff $30,000 for the possibility that her marriage might fail as a result of the consequences of the accident. The award was in effect a modified award for damages for loss of marriageability, a head of damages that the courts have long recognized.

[274]     This type of award was described by Mr. Justice Lambert of the Court of Appeal in Reekie v. Messervey (1989), 59 D.L.R. (4th) 481 at 494, 36 B.C.L.R. (2d) 316 (C.A.) at 330-331, as follows:

This aspect of the damage award was called “loss of opportunity to marry” by counsel and by the trial judge. But marriage is not the significant point. the significance lies in the loss of an opportunity to form a permanent interdependency relationship which may be expected to produce financial benefits in the form of shared family income. Such an interdependency might have been formed with a close friend of either sex or with a person with whom a plaintiff might have lived as husband and wife, but without any marriage having taken place. Permanent financial interdependency, not marriage, is the gist of the claim. For the sake of simplicity and consistency, I will now usually call this head of loss: “Lost opportunity of family income”.

[275]     Mr. Justice Lambert went on to describe categories of loss arising under this head of damages which are summarized by Mr. Justice Cole in Grewal as: (1) loss of the benefit of increased income, (2) loss of the benefit of shared expenses, and (3) loss of the benefit of shared homemaking (Grewal at para. 157).

[276]     In Grewal, Mr. Justice Cole rejected the defendant’s argument that this type of award was not available to persons who, at the time of the accident, were already involved in a marriage or inter-dependent relationship (paras. 158-159).

[277]     In the present case, Ms. Cheng and Mr. Liu’s claim is premised on their position that their marital separation is a result of the accident. I have found that the accident was one of many contributing factors to the breakdown and that there was a good likelihood that they would have separated in any event. I also note that unlike in Grewal, there is no evidence from an economist or other expert attempting to value the additional expenses resulting from the separation. Nor was there evidence from Ms. Cheng and Mr. Liu outlining their expenses pre and post-accident.

[278]     Taking all of these factors into account, Ms. Cheng and Mr. Liu have not satisfied me that an award under this head is warranted.