In Carmichael v. Kwon, the Plaintiff was injured in two motor vehicle accidents, and consequently advanced ICBC claims for both. The actions were consolidated at trial, and liability was admitted by ICBC’S lawyer on behalf of both Defendants.

 

In the first accident, which was the more serious of the two, the Plaintiff suffered a variety of soft tissue injuries, including to her neck, back, and shoulders. As well, she suffered a serious hip injury, which was later diagnosed as a torn labrum, chronic synovitis (inflammation of the lining of the hip joint), and early degeneration (loss of the cartilage covering the joint surfaces). The Court also accepted the Plaintiff’s expert medical evidence that the Plaintiff’s hip would continue to deteriorate until such time that she had a hip replacement. The Court further noted that the Plaintiff would likely require three hip replacements in total throughout the rest of her life.

 

Based on the report of an occupational therapist, counsel for the Plaintiff advanced a large claim in regards to the Plaintiff’s impaired capacity to perform homemaking duties in the future, mainly due to the physical limitations and restrictions she would have to endure prior to and after the hip replacement surgeries. Further, a nanny would be required as well at certain times.

 

The Court awarded $112,000.00 to the Plaintiff for impaired capacity to perform homemaking duties in the future.

 

[149]     The plaintiff claims that for the first twenty years, the plaintiff will require part time homemaker support for 17 years and a full time nanny who would provide homemaking and child care support for 2 years. She also seeks child care support for 7 years after her return to work; for 1 year after the first hip surgery; and for the next 20 years ongoing homemaker support and support following the second and third surgery. The plaintiff relies on the report of the occupational therapist who recommends extensive child care support for the plaintiff based on the reports of Dr. Duncan and Dr. Jaworski. The total homemaking and childcare support claimed is $249,513.

 

[152]     In my view, this is a proper case for an award for the plaintiff’s future costs related to her impaired capacity to perform homemaking duties. It is not disputed that her capacity to perform such duties will become increasingly and substantially restricted until after her first surgery and then again prior to her subsequent surgeries. I accept the opinion of Dr. Duncan that she will become more and more immobile to the point that she will require walking aids prior to the hip replacement surgeries.

 

[153]     The defendants’ estimate of her future homemaking costs is reasonable, although it does not account for the assistance required for her third hip replacement.

In Camilleri v. Bergen, the Plaintiff was injured when rear ended by a vehicle, which had also been rear ended. An ICBC claim was brought against both Defendants for non-pecuniary damages, loss of income, loss of housekeeping capacity, diminished earning capacity, future care costs, and out of pocket expenses. The action against one of the Defendants was eventually discontinued. The Court ruled that, at the time of trial, the Plaintiff suffered from chronic myofascial pain, and awarded $90,000.00 for pain and suffering. The Court also awarded $45,000.00 for loss of housekeeping capacity and loss of yard work capacity. The Plaintiff had testified that she was unable to do any heavy housework, such as vacuuming, cleaning, and taking out the garbage, and was unable to do any yard work either.

 

[109] The law relating to loss of housekeeping and yard work capacity is summarized by Madam Justice Gray in Gallina v. Honda Canada Finance Inc., 2014 BCSC 974 at paras. 135-138. As explained in O’Connell (Litigation guardian of) v. Yung, 2012 BCCA 57 and recently affirmed in Westbroek v. Brizuela, 2014 BCCA 48 at para. 74:

 

In O’Connell v. Yung, 2012 BCCA 57 at paras. 59-68, this Court clarified that homemaking costs, properly considered, are awarded for loss of capacity and are distinct from possible future cost of care claims. An award ordered for homemaking is for the value of the work that would have been done by the plaintiff but which he or she is incapable of performing because of the injuries at issue. The plaintiff has lost an asset: his or her ability to perform household tasks that would have been of value to him or herself as well as others in the family unit but for the accident. This is different from future care costs where what is being compensated is the value of services that are reasonably expected to be rendered to the plaintiff rather than by the plaintiff.

 

[Emphasis in the original].

In Savoie v. Williams, the Plaintiff was injured in a motor vehicle collision when the Defendant ran a stop sign. The Plaintiff brought an ICBC claim for non-pecuniary damages, loss of income, out of pocket expenses, and loss of housekeeping capacity. The Plaintiff suffered from soft tissue injuries, with the accident also causing pre-existing degenerative changes in the Plaintiff‘s neck and back to be symptomatic. ICBC’S lawyer argued that the Plaintiff should not receive any award for loss of housekeeping capacity, as there was no evidence that the Plaintiff was disabled from performing her household duties. The Court dismissed this argument, and awarded the Plaintiff $20,000 for loss of housekeeping capacity.

 

[51] It seems to me that this argument misses the point: as unusual as it may seem to many, before the accident Ms. Savoie was someone who could properly be described as “house-proud”, in the sense that term was employed in Prednichuk v. Spencer, 2009 BCSC 1396 at para. 113 (perhaps without the elements of construction encompassed in that case). In this case, Ms. Savoie expended considerable energy, and took great pride, in maintaining her home and yard, in cooking, and in keeping vehicles clean (with the exception of her husband’s dump truck).

[56] I note that in Rezaei v. Piedade, 2012 BCSC 1782, the court accepted $15 per hour as a value of lost housekeeping capacity, partly because it had been used as a measure in earlier decisions, but also because it accorded with evidence in that case of what a witness paid for similar services. In Smusz v. Wolfe Chevrolet Ltd., 2010 BCSC 82, the court had some evidence based on the plaintiff’s previous work as a housekeeper on which to value housekeeping or cleaning services. I do not have such evidence in this case.

[57] I find that Ms. Savoie was initially unable to perform some household tasks. I find that she has recovered some of her ability to do household tasks but with some difficulty and some adjustments to accommodate her changed physical abilities.

[58] I do not read either Kroeker or McTavish as preventing me from assessing damages for this aspect of Ms. Savoie’s loss as though it were a loss of amenity. Indeed, I interpret para. 69 of McTavish, quoted above, as inviting that approach.

[59] I do not accept the Third Party’s invitation to incorporate an award for loss under this head into non-pecuniary damages. Such an approach would leave the parties with no understanding of the reasoning or result of my findings.

[60] Largely because Ms. Savoie’s pre-accident approach to housekeeping was such that it was more a pleasure than a task to her, and her loss in this regard is more acute than many others might have experienced, I award $20,000 for loss of housekeeping capacity.

In Ladret v. Stephens, the Plaintiff was injured in a t-bone motor vehicle collision, and consequently brought an ICBC claim for damages for pain and suffering, past wage loss, diminished earning capacity, loss of housekeeping capacity, cost of future care, and out of pocket expenses. Liability was admitted by the Defendant. ICBC’S lawyer argued that the Plaintiff had failed to mitigate her damages by not heeding the advice of her medical practitioners, however the Plaintiff argued that the Defendant failed to show that she acted unreasonably in this regard, or that any possible treatment would have reduced her losses. Counsel for the Plaintiff, with respect to the Plaintiff‘s claim for loss of housekeeping capacity, relied on the British Columbia Court of Appeal decision in Kroeker for the proposition that an award for loss of housekeeping capacity can be made even when housekeeping services are provided gratuitously by family member. The Court awarded a modest sum of $2,5oo for loss of housekeeping capacity, primarily due to the Court’s ruling that the evidence provided with respect to this component of her ICBC claim was not that extensive.

 

[107] More recently, in Midgley v. Nguyen, 2013 BCSC 693, Dardi J. reviewed the governing principles with respect to awarding damages for loss of housekeeping capacity at paras. 344-345:

… [S]ince the award recognizes the impairment of housekeeping capacity, whether a plaintiff is likely to hire such assistance in the future, does not inform the analysis; X. v. Y. at para. 256; O’Connell at para. 67. Recovery may be allowed for both the future loss of the ability to perform household tasks as well as for the loss of such abilities prior to trial. The amount of compensation awarded must be commensurate with the plaintiff’s loss: Dykeman at para. 29; X. v. Y. at para. 246.

In assessing damages under this head, the authorities mandate that the court must carefully scrutinize the gratuitous services provided by the family member. A relatively minor adjustment of duties within a family will not justify a discrete assessment of damages: Campbell v. Banman, 2009 BCCA 484 at para. 19. In Dykeman at para. 29, Newbury J.A. cautioned that:

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? [Emphasis in original.]

[108] The evidence in support of the plaintiff’s claim for loss of housekeeping capacity was not extensive. The plaintiff’s father and mother live on Vancouver Island and come over and help her with her housekeeping and childcare. Her father pointed to her difficulty vacuuming, washing the floor, and doing chores involving lifting over her head. The plaintiff’s babysitter, Ms. Mandrusiak has helped her with vacuuming and doing the laundry. Ms. Mandrusiak was paid $500 for the time that she worked. I accept the evidence of the plaintiff and her mother that Ms. Ladret is unable to maintain her home as cleanly as she likes and that is because she is unable to vacuum, sweep, and lift as she has habitually done in the past. I find that her parents help out more than they would but their ability to help is limited by their commitments where they live. I also recognize that part of the messiness in the plaintiff’s home is simply the process of living in tight quarters with three growing, active children and that there is a possibility that as the children grow older they will contribute by doing household chores.

[109] I find that on the evidence, the plaintiff has proven a modest claim under this head of damage. I find her back pain and difficulty stooping and lifting reduces her ability to do the repetitive tasks of housekeeping.

[110] I reject the defendant’s suggestion of a one-time award of $450, and while I appreciate that a relatively minor adjustment within a family does not justify an assessment under this head, I find that a compensable loss that will continue has been established and I award the plaintiff $2,500 for loss of housekeeping capacity.

 

In Chow v. Nolan, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for many heads of damages, including pain and suffering, diminished earning capacity, and loss of housekeeping capacity. The Plaintiff was already quite disabled from a pre-existing injury at the time of the motor vehicle accident in question. The Court did not accept the Plaintiff‘s claims for diminished earning capacity, however did award a substantial sum of money for diminished housekeeping capacity.

 

[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.

 

In Rezaei v. Piedade, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages arising therein. In addition to awarding damages for pain and suffering, the Court also awarded two years’ worth of income for diminished earning capacity to reflect the Plaintiff’s delayed graduation. Another head of damage that was awarded was loss of housekeeping capacity. Using an hourly rate of $15, the Court awarded $7,500.00 to the Plaintiff for loss of housekeeping capacity.

 

[96]        Ms. Rezaei and her mother both testified that the plaintiff was unable to assist with various household activities after the Accident. While I have said that aspects of the evidence which addressed the plaintiff’s pre-Accident household activities seemed exaggerated, the present calculation advanced on behalf of the plaintiff for this head of loss is reasonable.

 

[97]        It assumes, in real terms, that the plaintiff would have helped with various household chores that she was no longer able to perform for a total of 500 hours from the time of the Accident until she moved into her apartment in September 2011. This timeframe aligns with the report of Dr. Crossman in November 2011 and his assessment that the plaintiff was, at that time, capable of performing most household tasks. This 500 hour figure translates to about a half hour per day of household activity which, again, I consider reasonable.

 

[98]        I agree with the plaintiff that a figure of $15 per hour represents a reasonable market value for such services. That figure is consistent with the figure used in Deo v. Deo, 2005 BCSC 1788 (CanLII), 2005 BCSC 1788 at para. 15 and in Chamberlain v. Giles, 2008 BCSC 171 (CanLII), 2008 BCSC 171 at para. 127. The $15 figure is also generally consistent with what the plaintiff’s mother now pays her housekeeper.

 

[99]        Accordingly, I award the plaintiff $7,500 for her loss of housekeeping capacity.

In Rollheiser v. Rollheiser, the Plaintiff was injured in a car accident, and brought an ICBC claim for several heads of damages, including pain and suffering, loss of income, diminished earning capacity, cost of future care, and loss of housekeeping capacity. She was unable to complete household chores since the accident, which necessitated her husband’s help on a daily basis. The Plaintiff also sought damages for future loss of housekeeping capacity. The Court would eventually award $28,00.00 for loss of housekeeping capacity.

 

[63]        Ms. Rollheiser says that she is no longer capable of doing housekeeping and that her husband has picked up the slack. He does approximately five hours a week of housekeeping, which she would have otherwise done before the accident. She calculates the cost of a housekeeper at $25 an hour for 45 minutes a day from the date of the accident to the date of her retirement. Her claim, adjusted for present value, is $68,400.

 

[64]        In Eccleston v. Dresen, 2009 BCSC 332 (CanLII), 2009 BCSC 332 (Eccleston), Justice Barrow awarded the plaintiff $28,000 based on housekeeping services of six hours per week at $15 per hour for six years following the motor vehicle accident.

 

[65]        I find Eccleston to be instructive. I award the plaintiff $28,000 for past and future loss of housekeeping capacity.

 

In Cartwright v. Cartwright, the Plaintiff was injured as a passenger in a single vehicle accident, and brought an ICBC claim for several heads of damages, including pain and suffering, loss of income, diminished earning capacity, cost of future care, and loss of housekeeping capacity. The Plaintiff failed to lead the proper and required evidence to establish a claim for loss of housekeeping capacity, and consequently the Court declined to make any award for loss of housekeeping capacity. The case illustrates the importance of adducing proper evidence at trial in order to succeed on a claim for loss of housekeeping capacity.

 

[86]        Ms. Cartwright seeks housekeeping services twice a month for 10 years, at $50 per session, for an annual cost of $1,200 at a present value of $10,503.

 

[87]        A claim for loss of housekeeping capacity is for the loss of the value of work which would have been done by a plaintiff but which can no longer be performed because of the injuries. It is a claim distinct from future care costs, as it is the loss of a capacity that is compensated and it is not dependent upon whether replacement housekeeping costs are actually incurred: O’Connell (Litigation guardian of) v Yung, 2012 BCCA 57 (CanLII), 2012 BCCA 57, at para 67. Care must be taken not to compensate for more than can reasonably be said to have been lost: McTavish v MacGillivray, 2000 BCCA 164 (CanLII), 2000 BCCA 164.

 

[88]        Ms. Cartwright testified that she does the best she can with housework but cannot always do all of it. Ryan Sharp, her fiancé, testified that he tries to do as much work around the house as he can when he is home – such as emptying the dishwasher and vacuuming – to keep Ms. Cartwright “off her hands and knees”.  

 

[89]        This evidence is extremely vague and does not establish what housework Ms. Cartwright is no longer able to do. No detail was provided that would give this Court an idea of what services she did before but can no longer do because of her injuries. There is simply no proper evidentiary base on which this Court is able to assess such a claim and in my view, the evidence is insufficient to prove a loss of housekeeping capacity.

 

In X. v. Y. and Z. Ltd., the Plaintiff was seriously injured on his motorcycle after colliding with the Defendant’s vehicle. The Plaintiff brought an ICBC claim for several heads of damages, including pain and suffering, loss of income, diminished earning capacity, cost of future care, and loss of housekeeping capacity. ICBC’S lawyer argued that the Plaintiff should also bear some of the blame for the accident, however this submission was rejected by the Court. Prior to the accident, the Plaintiff and his wife share equally in the housekeeping duties. However, after the accident, it was not possible to continue to contribute like he once did. The Plaintiff made improvements, but by the time of trial, had still not reached his pre-accident level of housekeeping duties. The Court would go on to award $12,000.00 for loss of housekeeping capacity, as well as $40,0000.00 for loss of future housekeeping capacity, after ruling that there was a real and substantial probability that in the future, the Plaintiff would continue to be unable to perform certain tasks.

 

[253]      In my assessment for the loss to date of trial, I have considered the initial period of recovery when the plaintiff could not perform any household tasks. I have also considered the period to date of trial in which the plaintiff resumed some of his pre-accident household tasks but was unable to resume the more strenuous tasks. I conclude that the plaintiff is entitled to an award for his pre-trial loss of housekeeping capacity that will not be compensated for in his claim for special damages of $511.30. In quantifying his pre-trial loss, I have considered Ms. L.’s and Ms. Q.’s itemization of the estimate of replacement costs for gardening services, home maintenance, and janitorial services.

 

[254]      On the totality of the evidence, I assess the plaintiff’s pre-trial loss for impaired housekeeping capacity as $12,000.

 

[255]      Based on the medical evidence, I am satisfied that there is a real and substantial probability that in the future, the plaintiff will continue to be unable to perform heavier household cleaning, maintenance and repairs, and gardening. I have assessed, as best I can, the household services the plaintiff would have provided but for the accident and what services would be required to permit the plaintiff and his family to live and function in their usual manner.

 

[261]      Keeping in mind that an award for loss of housekeeping capacity is intended to compensate the plaintiff for a diminished loss of capacity and is not a mathematical calculation, I assess a fair award to be $40,000 for the future loss of housekeeping capacity.

 

In Poirier v. Aubrey, the Plaintiff was injured in a motor vehicle accident, and suffered soft tissue injuries which led to the development of chronic pain that affected all aspects of her life, including her ability to earn an income. The trial judge made an unspecified award for loss of housekeeping, preferring to incorporate the amount into an overall amount for pain and suffering. The Plaintiff appealed with respect to the overall amount awarded for her ICBC Claim. Specifically with respect to the loss of housekeeping issue, the British Columbia Court of Appeal substituted an award of $15,000 for loss of housekeeping capacity.

 

[30]         The ability to take care of her home and cook her meals in the same way as she once did is one aspect of Ms. Poirier’s life that has been altered.  The judge recognized this in considering her claim for her loss of housekeeping capacity.  Her evidence was that she and her husband had shared the tasks associated with maintaining a well-kept house equally, but since the accident she was unable to do much of her part.  Her husband did all of the cleaning and her daughter would come to the house to do the laundry.  After she and her husband separated, she moved to a small basement apartment.  There she was coping, although the move was made not long before the trial so she could not testify to any established pattern.  Her ability to clean her home and perform chores like regularly washing the dishes is problematic.  She is unable to clean the floors and must rely on a friend to help her.  Sometimes she needs help with food shopping and she is for the most part limited to making simple meals or eating pre-prepared meals. 

 

[31]         The judge did not suggest Ms. Poirier’s evidence was not to be accepted.  Indeed, as is evident from what I have quoted from his reasons, he found her to be an entirely credible witness.  But he found her “real loss” lay in her frustration at having to live with lower housekeeping standards than she did before the accident and, as indicated, he saw fit to include an unspecified award for this loss in his award for her non-pecuniary loss.

 

[32]         This is not a case where evidence was adduced to prove an actual pecuniary loss of housekeeping capacity.  There was no independent assessment of Ms. Poirier’s needs in this regard or what it might cost to address them.  But there can be no question she established a loss for which she is entitled to be compensated beyond the frustration for which the judge awarded her some compensation:  McTavish v. MacGillivray, 2000 BCCA 164, [2000] 5 W.W.R. 554, although care must be taken not to compensate for more than can reasonably be said to have been lost (para. 9).  Her loss is the loss of her ability to do what is necessary to take care of her home and prepare her meals as she was once able to do.  It contains a past component that is certain and a future component that is contingent on what, if any, improvement there may be in her condition over time.  It can only be compensated in this instance by an award of non-pecuniary loss. 

 

[33]         To do the best I can on the evidence, I would award her $15,000 for her loss of housekeeping capacity.