Category: In Trust Claims

Court Awards $55,000.00 “In-Trust” Claim To Seriously Injured Elderly Plaintiff On Behalf Of Wife

In Sangra (Guardian ad litem of) v. Lima, the Plaintiff was an elderly man who was seriously injured as a pedestrian when he was struck by the Defendant’s vehicle. The Plaintiff suffered a variety of injuries, including a brain injury, cervical spine fractures, skull fractures, facial fractures, pelvic fractures, rib fractures, a torn rotator cuff, and trauma and injury to his liver and spleen. The Court would award the Plaintiff $315,000.00 in non-pecuniary damages, almost the maximum permissible for this type of damage under Canadian law.

 

The Plaintiff, despite his age at the time of the collision, had led a very active lifestyle. The effects of his injuries had a devastating impact on the Plaintiff’s life, and were life-altering.

 

Of the many types of damages sought by the Plaintiff, one was an “in-trust” claim on behalf of his wife, for services she provided to the Plaintiff from the time of the accident, until the date of trial. The Court noted that that “in-trust” claims are normally awarded for support services that are provided over and above what would normally be expected in a marital or familial relationship.

 

The Plaintiff’s wife missed work for over six months after the accident occurred. She spent anywhere from 12 – 15 hours per day, and often more, with the Plaintiff while he was at several different hospitals. She also actively assisted the Plaintiff’s recovery efforts by helping the nursing and rehabilitation staff with her husband’s cognitive, speech, and physical, and emotional recovery. The Court was cognizant of the fact that the Plaintiff’s wife’s time was essentially spent providing services that would otherwise have been required of occupational therapists and rehabilitation assistants.

 

The Court was satisfied that the test for “in-trust” awards was successfully met, and awarded the Plaintiff an “in-trust” claim in the amount of $55,000.00.

 

[242] Much, but not all, of the time spent, and services provided by Ms. Sangra while Mr. Sangra was at Royal Columbian, were in the nature of love and support reasonably expected of a family member. Her compensable services and her contribution to her husband’s recovery did, however, increase substantially once he was transferred to Mt. St. Joseph’s hospital, and carried on from there.

 

[243] I find that Ms. Sangra’s significant efforts to help her husband with his recovery while he was hospitalized, particularly at Mt. St. Joseph’s and Holy Family hospitals, augmented the rehabilitation care provided by the medical staff to Mr. Sangra’s recovery. With the encouragement of hospital and rehabilitation staff, and in addition to helping her husband with his communication, Ms. Sangra was continuously at his side assisting him to become flexible and mobile. She also fed and cleaned him, changed his soiled bedding and clothing and helped him with his toileting. The evidence establishes that hospital staff encouraged Ms. Sangra to do as much as she could to assist because of their heavy workloads. Her relentless efforts to promote her husband’s recovery have continued since his release from Holy Family Hospital. I am satisfied that her efforts are directly linked to the qualitative nature and speed of Mr. Sangra’s recovery.

 

[246] I have no hesitation in finding that the $27,000 proposed for Ms. Sangra’s time with her husband while at their home, is reasonable and appropriate. Her time was effectively spent providing services that would have been otherwise required of OTs and RAs, which as I have noted, helped promote his recovery to the point where she could return to work and Mr. Sangra was able to be cared for by health care providers in fewer hours.

$46,800.00 In-Trust Award For Son Who Took Over Role Of Mother In Caring For His Father, And In Performing Mother’s Housekeeping Chores

In Wong v. Towns, the Plaintiff was 80 years old when she was involved in a rear end motor vehicle accident. Liability was admitted by ICBC’S lawyer. The Plaintiff advanced an ICBC claim, seeking damages for many types of claims, including pain and suffering, future care, past and future loss of housekeeping capacity, as well an in-trust claim on behalf of her son, who took over the role from his mother for caring for his father, as well as doing housekeeping chores that the Plaintiff had performed before the accident. ICBC’S lawyer argued that the hours spent by the son in looking after the father should be deducted from the claim. The Court, considering all the circumstances, awarded the Plaintiff $46,800.00 in-trust claim for her son for both components of the in-trust claim.

 

[129] Mrs. Wong makes a claim in trust with respect to the time Todd Wong has devoted to caring for his father and doing housekeeping chores that Mrs. Wong performed before the accident. While Ms. Towns does not dispute that Todd Wong performed these functions up to the date of trial, she argues that the hours spent looking after Bill Wong should be deducted from the claim. Further, Ms. Towns argues that because Todd Wong lived with his parents at the time of the accident, and continues to live there by choice, there should be no allowance for the fact that he stays overnight in part to supervise his parents’ care.

 

[130] The parties agree that the factors to be considered when assessing an in-trust claim are those described in Bystedt v. Hay, 2001 BCSC 1735 (CanLII) at para. 180, aff’d 2004 BCCA 124 (CanLII). First, I find the services Todd Wong provided for both his mother and father in the three years since the accident are directly related to the injuries suffered therein. Todd Wong’s care of his father was only necessitated by the inability of Mrs. Wong to continue caring for her husband due to the injuries she sustained in the collision. Second, the services provided by Todd Wong are clearly more than what could be expected of a son, particularly a son who had a full-time job outside of the home. Eventually he took over all of Mrs. Wong’s household duties pre-accident and, in addition, her duties in regard to Bill Wong’s care. Further, the stress on Todd Wong from performing these services for his parents while working at the library resulted in two medical leaves of absence for a total of six months.

 

[131] … I find that a reasonable estimate of the value of Todd Wong’s services should be based on an average of 20 hours per week since the accident at $15 per hour. The total in-trust claim is therefore (20 hours per week x $15 per hour x 52 weeks x 3 years since the accident) $46,800.

Court Awards $100,000 For “In Trust” Claim

In Yik v. Johnson et al., the Plaintiff was a passenger who was seriously injured in a motor vehicle accident at an intersection when struck on the passenger side, and consequently brought an ICBC claim for damages, including pain and suffering, loss of income, loss of housekeeping capacity, cost of future care, and an in-trust claim. In addition to suing the owner and driver of the other vehicle, the Plaintiff also commenced litigation against her husband, who was the driver of the vehicle she was a passenger in. The Court awarded substantial damages to the Plaintiff, including $100,000 for an in-trust claim, ruling that her husband had spent a great deal of time with her since the accident to assist her, over and above what would normally be expected from a spousal relationship.

 

[175]     I have already found that Mr. Li has provided Ms. Yick with assistance and care that went far beyond that which would be expected from a normal marriage relationship. I note that Mr. Li has provided services for almost six years after the accident up to the date of trial. I am satisfied that Mr. Li’s assistance was necessary to permit Ms. Yick to function in the family home without outside assistance. The principles applying to an in trust award were not in dispute before me. All counsel agreed that some award was appropriate.

 

[176]     Taking all the