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.

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.

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 evidence into account, in this case I am satisfied that as a result of Ms. Yick’s injuries, Mr. Li has provided her an average of at least three hours per day of assistance to Ms. Yick over and above that which would be expected from the normal spousal relationship. The assistance can reasonably be valued at $20 per hour. Given the length of time that has transpired since the accident this amounts to in excess of $100,000.

 

[177]     I award $100,000 for this category of damages.

It is quite often the case when you are injured that family and friends will help you throughout your recovery period.  When such people help you beyond what would reasonably be expected of them, even if provided for no charge, then they are entitled to be compensated if it can be proven that they suffered a direct economic loss due to the time and effort that went into performing duties for you, or their help resulted in replacing expenses which would otherwise have been incurred, such as for a housekeeper.

 

In Dykeman v Porohowski, the British Columbia Court of Appeal commented on the law of “in trust” claims.

 

[27] On appeal, counsel for the plaintiff contends that the trial judge was wrong to suggest that an in-trust award may be made only where the plaintiff’s injuries are particularly “grievous”.  He relies on this court’s more recent judgment in Ellis v. Star, 2008 BCCA 164 (CanLII), 2008 BCCA 164, in which the plaintiff was a police officer whose wrist had been injured. At trial, he received an in-trust award of $3,500 as compensation for household services (which he would otherwise have performed) carried out by his wife.  Mackenzie J.A. noted the defendant’s submission that the cases in which awards for gratuitous personal services have been made had involved “seriously injured plaintiffs or other support services beyond those normally expected in a marital relationship for minimal debilitating injuries.”  (Para. 18; my emphasis.)  The Court found that yard maintenance services undertaken by Ms. Starr were not “sufficiently extensive or related to the injury” to support an in-trust award.  The appeal was allowed to the extent of deleting the in-trust award.

 

[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.