$60,000 Damages Awarded For Diminished Housekeeping Capacity

Reasons for judgement were published this month assessing damages for diminished housekeeping capacity at $60,000 following chronic collision related injuries.

In the recent case (Ploskon-Ciesla v. Brophy) the Plaintiff was involved in a 2017 collison that the Defendant admitted  fault for.  The collision caused a constellation of physical injuries which negatively impacted the Plaintiff recreationally,, vocationally and domestically.  In assessing $60,000 in damages for diminished housekeeping capacity over and above non-pecuniary damages Mr. Justice Ball provided the following reasons:

[85]         In the case at bar, there is evidence that, because of the incapacity of the plaintiff caused by the first accident, her ability to perform housekeeping tasks has been reduced and that incapacity has resulted in the payment of actual expenditures.  The plaintiff has made claims for both past and future losses of housekeeping capacity.

[86]         After the first accident, the plaintiff was immediately unable to perform housekeeping duties which she had ably performed pre-accident in partnership with her husband.  For a period of time post-accident, she was suffering acute back and shoulder pain, particularly on her right side, which prevented her from lifting her children.  Her husband took some time away from work to look after the household and children.

[87]         The plaintiff could not cope with the childcare and housekeeping duties while her husband was working full time, so she travelled to Poland for seven or eight weeks to obtain the assistance of relatives with childcare and to have an opportunity to heal, while obtaining physiotherapy treatments.

[88]         As noted above, recreational activities ceased for the plaintiff.  Upon return from Poland, she pursued physiotherapy and active rehabilitation, but was still unable to perform housekeeping duties due to pain caused by myofascial or soft tissue injuries.

[89]         The defendant submits that the plaintiff is able to perform housekeeping duties with the assistance of her husband and relatives and therefore she has not demonstrated a loss.  There is no positive obligation for the plaintiff to rely on the free assistance from relatives.  She has faced a substantial loss in her ability to perform housekeeping duties.  She is entitled to be compensated for that loss.

[90]         The defendant has acknowledged that the plaintiff properly required the services of a housekeeper from January 26, 2018 until October 17, 2018 after the first accident.  These services were paid or agreed to be paid by the insurer.  The cost per week was $143.33.  I am satisfied that the plaintiff has needed to similarly rely on housekeeping assistance for the remaining time until the trial date but could not afford the expense. If extrapolated, the time from the first accident to the trial date is approximately 142 weeks and that amount totals $20,352.86 with a reduction for housekeeping costs in the amount of $2,579.94, equalling $17,772.92 for past loss. 

[91]         The damages for future loss of housekeeping capacity, which I find persists with the chronic pain suffered by the plaintiff, is explained in Broomfield v. Lof, 2019 BCSC 1155 at paras. 114 and 115.  The plaintiff submits that this loss, calculated for approximately 29 years applying multipliers provided in the Law and Equity Act, R.S.B.C. 1996, c. 253, s. 56(2)(b) and Reg. 352/81, amounts to approximately $162,740.  The plaintiff, in keeping with expectations set out by Dr. Helper of improvement following treatment and the common sense likelihood that her children will become of more assistance as they mature, the plaintiff submits that the past and future loss of housekeeping capacity would be reasonably assessed at $75,000. The plaintiff seeks that award for future loss of housekeeping capacity.

[92]         The allocation of loss of housekeeping capacity has been discussed in the case of Riley v. Ritsco, 2018 BCCA 366.  In that case, the Court of Appeal discussed the treatment of a claim for loss of housekeeping capacity as follows:

[98]         There was no evidence that any incapacity on the part of Mr. Riley would result in actual expenditures, or of family members or friends routinely undertaking functions that would otherwise have to be paid for. If it existed, such evidence could have supported a segregated award of pecuniary damages on the basis of Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652; (1995) 4 B.C.L.R. (3d) 178 (C.A.).

[99]         In Kroeker the Court briefly considered the question of whether a segregated award of non-pecuniary damages could have been made. Justice Gibbs said:

[27]      Having found no error in classification it is not necessary to decide whether it is open to a trial judge to segregate non-pecuniary awards into separate heads, although there would appear to be no reason why that should not be done if the special facts of a case warrant it.

[100]     In Liu v. Bains, 2016 BCCA 374, the Court again upheld a claim for pecuniary damages for loss of housekeeping capacity. It said:

[25]          Since the decision in Kroeker, it has been well-established in this province that domestic services have value and an injured party may justifiably claim for loss of housekeeping capacity, even if these services are provided gratuitously by family members: McTavish v. MacGillivray, 2000 BCCA 164 at para. 63.

[26]      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. In McTavish at paras. 68-69, the Court suggested that treating loss of housekeeping capacity as non-pecuniary loss may be best suited to cases in which the plaintiff is still able to perform household tasks with difficulty or decides they need not be done, while remuneration in pecuniary terms is preferable where family members gratuitously perform the lost services, thereby avoiding necessary replacement costs.

[101]     It is now well-established that where a plaintiff’s injuries lead to a requirement that they pay for housekeeping services, or where the services are routinely performed for them gratuitously by family members or friends, a pecuniary award is appropriate. Where the situation does not meet the requirements for a pecuniary award, a judge may take the incapacity into account in assessing the award for non‑pecuniary damages.

[102]     I acknowledge what was said in Kroeker about segregated non-pecuniary awards “where the special facts of a case” warrant them. In my view, however, segregated non-pecuniary awards should be avoided in the absence of special circumstances. There is no reason to slice up a general damages award into individual components addressed to particular aspects of a plaintiff’s lifestyle. While such an award might give an illusion of precision, or suggest that the court has been fastidious in searching out heads of damages, it serves no real purpose. An assessment of non-pecuniary damages involves a global assessment of the pain and suffering, loss of amenities, and loss of enjoyment of life suffered by a plaintiff. By its nature, it is a rough assessment and not a mathematical exercise.

[103]     The $85,000 figure that I have proposed for non-pecuniary loss takes into account all of the general damages the plaintiff has suffered and will suffer. It should not be augmented by a segregated award for loss of housekeeping capacity.

[93]         In the case at bar, having reviewed the cited authorities and the applicable evidence, the past and future loss of housekeeping capacity which required the payment of expenses for housekeeping services is assessed at $60,000 (taking into account the amounts paid by the insurer).

bc injury law, diminished housekeeping capacity, Mr. Justice Ball, Ploskon-Ciesla v. Brophy

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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