Tag: in trust claims

Court Holds Diminished Capacity To Care For Loved Ones Not Forseeable Unless Care "taking place or contemplated" at the time of the tort

It is a well recognized principle that if a spouse needs to provide extraordinary services in caring for an injured loved one harmed by the negligence of others that this time can be compensated as an ‘in trust claim’ in the Plaintiff’s personal injury action.
What if the tables are turned, however, and the Plaintiff cares for a loved one but due to injuries to the Plaintiff he/she becomes unable to provide the care they otherwise would for their spouse?  The BC Court of Appeal released reasons for judgement, in a two one split, finding that such damages for such a loss are not ‘foreseeable’ unless they are taking place or contemplated at the time of the tort.
In this week’s case (Milliken v. Rowe) the Plaintiff was injured in a 2007 collision.   These had long term limiting consequences.  Subsequent to the collision the Plaintiff’s husband became ill.  The evidence proved that but for the injuries the Plaintiff would have cared for her husband.  The Court compensated the Plaintiff $30,000 for this loss.  In overturning this award, the BC Court of Appeal held it was not a foreseeable loss as this care was not “taking place or contemplated” at the time of the crash.  The majority provided the following reasons:
[31]         With respect, I disagree that the loss in this case reasonably could be foreseeable even under that standard. At its core, the award here is based merely on the fact that, at the time of the tort, the respondent and her husband were married with a possibility that at some future date the husband might require care of some kind. This did not make such care reasonably foreseeable at law. It might never occur: the respondent could die before care was required; the need for care might never arise; her surgery could eliminate the problem or diminish it significantly; or, her full-time employment may have eliminated or diminished her ability to provide care regardless of the accident. While plainly foreseeable as a theoretical, factual outcome in hindsight, this possibility was not a “real risk” in “the mind of a reasonable man in the position of the defendan[t]”.
[32]         In my view, the costs associated with caring for the respondent’s husband are too remote to be recoverable. As aptly stated by the Chief Justice in Mustapha, recoverability is based on reasonable foresight, not insurance.
[33]         The appellant also argued that even if damages were recoverable for the respondent’s diminished ability to care for her husband, as not too remote, as they were in Lynn, they would be recoverable under the heading of non-pecuniary damages and not as damages for loss of future care. I need not address this issue and leave it for a case in which it is engaged.
[34]         In my view, costs arising from the diminished ability to care for a disabled spouse of a plaintiff where no such care is required or contemplated at the time of the tort are not foreseeable at law; they are too remote.
[35]         I would allow this appeal and reduce the award of damages for the costs of future care by $30,000.
The decision also includes a well reasoned dissenting decision by Mr. Justice Donald which can be found starting at paragraph 36.
 

Recognizing the Real Financial Toll of Catastrophic Injuries


(UPDATE: February 3, 2012The below cost of care award was reduced somewhat in reasons for judgement released by the BC Court of Appeal)
Important reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, recognizing the real financial toll that catastrophic injuries can cause.
In today’s case (O’Connell v. Yung) the Plaintiff was seriously injured in a 2007 motor vehicle collision.   Her car was struck by a tractor-trailer pinning her vehicle against the Massey Tunnel.  The injuries were extensive and these included traumatic brain injury, a cervical spine fracture, fractures to her right femur, ankle, tibia, fibula, toes, ribs, nose and sternum.  The Plaintiff also sustained injury to her spleen and liver. These left the Plaintiff with chronic pain and serious dysfunction requiring a high level of daily supervision and care.
The Plaintiff initially received such care from a ‘personal care worker’, however she was uncomfortable having strangers tend to her for prolonged periods and eventually her husband of many years took over the role as primary caregiver.  This amounted to full time work.
The biggest issue at trial was the Plaintiff’s accident related future care needs.  The Plaintiff sought compensation for the fair value of hiring individuals to provide her with the care she needed.  The Defendant argued that “any award for the future cost of personal care must be reduced to take into account the fact that Mr. O’Connell is present in the household to provide supervision and guidance and a contingency can be factored in to address the possibility that he will at some point be unable or unwilling to continue to provide this care“.
Madam Justice Fisher rejected this argument and went on to award the Plaintiff $2.25 million dollars to compensate her for her  future care needs.  In doing so the Court provided the following useful reasons:

[124]     I do not accept the defendants’ submission that an award for the cost of future personal care must be reduced to take into account the role Mr. O’Connell plays in providing supervision and guidance to Ms. O’Connell.  Ms. O’Connell is entitled to be compensated for the cost of care that is medically required. As Groves J. held in Cojocaru, the law does not permit the defendants to pass off their responsibility to provide appropriate future care by suggesting that Ms. O’Connell can and should rely on her husband to take care of her.  A husband is not expected to care for his injured wife on a gratuitous basis: see Andrews at p. 243.

[125]     The same principle was expressed in Vana v. Tosta, [1968] S.C.R. 71, where one of the issues involved an award for the cost of future housekeeping services.  The majority of the court stated at p. 75:

It is trite law that a wrongdoer cannot claim the benefit of services donated to the injured party. In the present case it amounts in my judgment to conscripting the mother and mother-in-law to the services of the appellant and his children for the benefit of the tortfeasor and any reduction of the award on this basis is and was an error in principle.

[126]     In McTavish v. MacGillivray, 2000 BCCA 164, the court was also dealing with an award for the loss of housekeeping capacity, both past and future, and interpreting and applying the principles set out in Kroeker v. Jansen.  At para. 43, Huddart J.A. stated:

.. the majority in Kroeker quite clearly decided that a reasonable award for the loss of the capacity to do housework was appropriate whether that loss occurred before or after trial. It was, in my view, equally clear that it mattered not whether replacement services had been or would be hired.

[127]     While Kroeker was restricted to housekeeping services and, as Huddart J.A. noted, the court did not adopt the analogy with future care as a general rule, it is my opinion that the same principle can be applied in the circumstances of this case with respect to personal care services that may or may not be hired in the future.

$30,000 Awarded for Moderate, Lingering Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages as a result of injuries and losses from a motor vehicle collision.
In today’s case (Rothenbusch v. Van Boeyen) the Plaintiff was involved in a 2 vehicle intersection collision in Mission, BC in 2007.  The Plaintiff was making a left hand turn when his vehicle collided with the on-coming defendant.  The Court found the Plaintiff 30% at fault for failing to yield to the Defendant’s right of way and the Defendant 70% at fault for speeding, failing to keep a proper lookout and failing to take proper evasive maneuvers when he had the opportunity to do so.
The Plaintiff claimed compensation for various injuries although the Court found the Plaintiff failed to prove that some of his more serious injuries were caused by the crash.  Ultimately Madam Justice Ker found the collision caused various soft tissue injuries which did not fully recovery.  The Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $30,000.  In arriving at this amount Madam Justice Ker provided the following reasons:
[180] Mr. Rothenbusch was almost 81 years of age at the time of the accident.  Although retired from hog farming, Mr. Rothenbusch remained active in the community, curling two or three times a week and engaging in volunteer pastoral work at a senior’s lodge and visiting people in the hospital. He also helped a friend at a berry farm by planting and pruning throughout the year and in picking berries during the summer season. In addition to being a hog farmer, Mr. Rothenbusch worked in construction and as a plumber and continued to do his own home repairs and helped others in this area….

242] In the end, the totality of the evidence supports the conclusion Mr. Rothenbusch sustained moderate soft tissue injuries to his neck, lumbar spine, left scapula and left ribs as well as cuts to his face as a result of the accident. The evidence further supports the conclusion that the major disabilities from the injuries were largely resolved by the end of December 2007. However, Mr. Rothenbusch continues to experience intermittent neck and shoulder pain as a result of the injuries from the accident, and he is still restricted in his range of motion for his neck and shoulder. These continuing symptoms have, in part, impacted on his ability to return to all his pre-accident activities….

[255] Mr. Rothenbusch continues to experience intermittent pain in his neck and continues to have difficulties with his shoulder. He is not able to engage in some of the home repair, plumbing activities or berry picking activities he enjoyed prior to the accident.

[256] Although Mr. Rothenbusch may not be as active as a younger plaintiff, it is important to bear in mind that as one advances in life, activities and pleasures sometimes become more limited. In that respect, impairment of the limited activities and pleasures which an individual can engage in becomes more serious: Williams at para. 17.

[257] Having regard to all the circumstances and taking what guidance I can from the authorities provided by counsel, I assess Mr. Rothenbusch’s non-pecuniary damages at $30,000.

In addition to the above, the decision is worth reviewing for the Court’s thorough discussion of “in-trust” claims (claims where plaintiff’s seek compensation on behalf of others who have provided them assistance with their accident related disabilities) which are set out in paragraphs 260-290 of the judgement.

BC Court of Appeal Discusses In Trust Claims and Document Disclosure Requirements


Reasons for judgement were released today by the BC Court of Appeal discussing two important legal principles in the context of personal injury claims, “In Trust” Claims and Document Disclosure requirements.
By way of brief background, in today’s case (Dykeman v. Porohowski) the Plaintiff was injured in two motor vehicle accidents.  Her matter went to trial and a Jury awarded $44,000 in total damages.  The Plaintiff was seeking substantially greater damages and she appealed alleging the trial judge made multiple errors.
The BCCA granted the appeal and ordered a new trial.  In doing so the Court made some useful comments about the above areas of law.
1.  In Trust Claims
Generally speaking when a person is injured through the fault of another and has limits they can be compensated for hiring others to help them with their limits.  If the help is provided free of charge by family members a claim can still be made and this is called an ‘in trust’ claim.
In today’s case the trial judge refused to put the “in trust” claim to the jury reasoning that injuries were not “grievous” enough for an in trust claim.   The Court of Appeal agreed that this was incorrect and that “grievousness” is not required to advance an in-trust claim.  The Court provided the following useful summary of the law:

[28] Since Kroeker, it has been settled law in this province that “housekeeping and other spousal services have economic value for which a claim by an injured party will lie even where those services are replaced gratuitously from within the family.”  In Kroeker, such recovery was allowed under the heading of ‘loss of future ability to perform household tasks’, but obviously, damages for loss of such ability prior to trial may also be properly claimed and recovered: see, e.g., McTavish v. MacGillivray, 2000 BCCA 164 at paras, 43, 51-7, perHuddart J.A.; West v. Cotton (1995) 10 B.C.L.R. (3d) 73 (C.A.) at para. 25; and Campbell v. Banman 2009 BCCA 484.  The reasoning in Kroeker has been extended beyond “spousal” services to services rendered by other members of a family: see Boren v. Vancouver Resource Society, Dufault, McTavish v. MacGillivray; Bystedt v. Hay, all supra.  Such awards are colloquially referred to as “in trust” even though it is the plaintiff who recovers them, and British Columbia courts do not generally impose trust terms in their orders, regarding the loss as that of the plaintiff: see Feng v. Graham (1988) 25 B.C.L.R. (2d) 116 (C.A.) at 9-10; McTavish, supra.

[29] The majority in Kroeker was alive to the possibility that awards for gratuitous services by family members of plaintiffs could “unleash a flood of excessive claims” (supra, at para. 29) and for that reason, urged courts to be cautious in making such awards.  In the words of Gibbs, J.A.:

… as the law has developed it would not be appropriate to deny to plaintiffs in this province a common law remedy available to plaintiffs in other provinces and in other common law jurisdictions. It will be the duty of trial judges and this Court to restrain awards for this type of claim to an amount of compensation commensurate with the loss. With respect to other heads of loss which are predicated upon the uncertain happening of future events measures have been devised to prevent the awards from being excessive. It would be reasonable to expect that a similar regime of reasonableness will develop in respect of the kind of claim at issue in this case.  [At para. 19; emphasis added.]

I do not read Kroeker or Ellis, however, as establishing a threshold of “grievousness” in terms of the injuries which may necessitate such services.  A plaintiff who has a broken arm, for example – presumably not a “grievous” injury – and who is obliged to seek assistance in performing various household tasks should not be foreclosed from recovery on this basis.  This was recognized in Ellis in the quotation reproduced above.  Thus I disagree with the trial judge’s reference to grievous injury as a threshold that the plaintiff was required to surmount if her claim was to go to the jury.  Instead, claims for gratuitous services must be carefully scrutinized, both with respect to the nature of the services – were they simply part of the usual ‘give and take’ between family members, or did they go ‘above and beyond’ that level? – and with respect to causation – were the services necessitated by the plaintiff’s injuries or would they have been provided in any event?  Finally, if these questions – which I would have thought are appropriate for determination by a jury – are answered affirmatively, the amount of compensation must be commensurate with the plaintiff’s loss.  The assessment of such loss has been the subject of several considered judgments in this province, most notably McTavish and Bystedt, both supra.

[30] The trial judge’s second reason for not putting the claim to the jury in this case was that the services which were the subject of the in-trust claim were not personal or household services but were related to the business operated by the plaintiff’s family.  As mentioned above, counsel evidently agreed that the plaintiff’s parents’ claim for ‘business losses’ had not properly been made.  It is not correct to say, however, that the plaintiff herself could not claim for assistance provided by family members in a family enterprise (see Johnson v. Miller, supra) or that there was no evidence of personal or household services having been provided by Ms. Dykeman’s parents to her.  The mother testified that she was “supposed to spend” a third of her time on the farm – in accordance with the partnership agreement in evidence – and had planned on going back to practice on a part-time basis.  Instead, she found herself spending at least 10 to 12 hours per week assisting in the business and babysitting her grandchildren when her daughter had medical appointments or migraine headaches.  At the time of trial, she testified, she was caring for her grandchildren “pretty well every day” plus assisting in the equestrian business.  The plaintiff’s migraines had become less frequent, but the medication she took for them essentially ‘knocked her out’ for 12-14 hours – during which Ms. Dykeman’s mother slept in the same room with her granddaughter.  The thrust of her evidence was that at least until her grandchildren were in school, she would not be able to return to practice even on a part-time basis.  Mr. Dykeman’s services, on the other hand, related almost entirely to “physical work” in the Freedom Fields Farm operation.

[31] In all the circumstances, it seems to me that there was evidence of household and other assistance provided by Ms. Dykeman’s parents that could have been the basis of an award and that the trial judge erred in effectively granting a ‘no evidence’ motion in respect thereof.  I would allow the appeal on this ground.

2. Document Disclosure Obligations

The second area highlighted in this case relates to document disclosure.  In pre-trial investigation the Defendants gathered a number of Internet postings apparently written by the Plaintiff.  They listed these documents as ‘privileged‘ and did not reveal them until shortly before trial.  In describing the privileged documents they labelled them as a “diskette containing an index to the Plaintiff’s web postings“.

The Plaintiff objected to these documents being used in cross examination but the trial judge allowed the cross examination.  On appeal the BCCA found that this was an error finding that the documetns were not properly described and this may have pejudieced the Plaintiff.  Specifically the BCCA said as follows:

[41] Applying these observations to the case at bar, can it be said that the descriptions reproduced above were such as to enable the plaintiff and her counsel, or a judge in chambers, to assess the validity of the claim of privilege?  In my opinion, none of the items was sufficiently described for this purpose.  Item 77, an index to the plaintiff’s “web postings”, could contain any number of “writings” posted on any number of websites, relevant or irrelevant to the case.  With respect to item 78, one does not know who wrote the “articles” regarding the plaintiff’s equestrian business or the date of such articles; with respect to item 79, there is no description of the “pictures printed out from the Internet regarding horse riding”, where they are from or what connection, if any, the plaintiff had with them; and with respect to item 80, there is again no description of the “articles”, who wrote them or when.  Counsel told the court below that the postings had all been written by the plaintiff, but even that was not apparent from the disclosure document.  Thus I disagree with the trial judge’s ruling that the postings had been adequately “listed” for purposes of R. 26.  (For a discussion of ‘e-discovery’ generally, see The Sedona Conference Working Group 7, The Sedona Canada Principle: Addressing Electronic Discovery (2008).)  If the defence had been more forthcoming, counsel for Ms. Dykeman might well have challenged the claim of privilege asserted by Mr. Harris – via the Form 93 filed by Mr. Gibb.

[42] Assuming, then, that the defence failed to make proper discovery of the Internet documents, the next question is whether it can be said the trial judge nevertheless properly exercised his discretion under the opening words of R. 26(14) to permit Ms. Dykeman to be cross-examined on some of those documents.  In Stone v. Ellerman, the majority stated that the factors relevant to the exercise of such discretion include the question of prejudice to the party being cross-examined, whether there was a reasonable explanation for the other party’s failure to disclose, whether excluding the document would prevent the determination of the issue on its merits, and whether in the circumstances of the case, the ends of justice require that the document be admitted.  In this case, counsel did not provide any “explanation” for the non-descriptiveness of Mr. Gibb’s list and argued only that disclosure hadbeen sufficient.  The trial judge therefore had no explanation to consider, even if he had been of the view that the listing was deficient.

[43] It is difficult to square the trial judge’s ruling on this second question with his prior ruling that the documents had been properly disclosed or ‘listed’.  If the latter was correct, there was no need to ‘balance’ the interests of justice in avoiding trial by ambush against the interests of justice in assessing Ms. Dykeman’s credibility by cross-examining her on the Internet postings.  Given that her lawyer had only half an hour to discuss the 124 pages with her, it cannot be said with any certainty that she was not prejudiced by what transpired.  At the end of the day, I am not confident that the apparent exercise of the trial judge’s discretion was fair to the plaintiff or rested on a correct understanding of the Rule.  I would therefore allow the appeal on this basis as well.

This case contains some other interesting comments which are worth reviewing, particularly with defence statements to the jury regarding adverse inference.  I urge all personal injury lawyers in BC to read this case in full as it thoroughly canvasses many areas that routinely arise in injury prosecution in this Province.

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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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