British Columbia courts have recognized the principle that loss of housekeeping ability can have an economic value for which damages may be awarded. However, how that value should be assessed and whether a separate award should be made continues to be the subject of judicial discussion. As the Court of Appeal in the recent case of Kim v. Lin, 2018 BCCA 77 [Kim] said, valuing loss of housekeeping capacity continues to be a “somewhat vexing issue.”
Two recent appellate decisions provide some useful analysis of this issue. In the aforementioned Kim decision as well as in the further decision of Riley v. Ritsco, 2018 BCCA 366 [Riley],the Court of Appeal considered (a) when damages should be awarded for loss of housekeeping capacity and (b) whether that loss should be assessed as a part of the non-pecuniary damages award or under a separate head of damages. With respect to the latter issue, the Court considered an important factor to be the plaintiff’s need-to-date for external assistance to make up for the alleged diminished ability to perform housework.
The two cases were decided by different three-justice panels. At first glance it may seem that the two decisions are contradictory. However, a closer review indicates that the different outcomes can be explained by the facts of each case.
Kim was decided first, with reasons issued on March 6, 2018. Of particular note, the trial judge had awarded a whopping $418,000 for loss of housekeeping capacity, which well exceeded the $70,000 award that had previously been stated to be the high end of the range (see Liu v Bains, 2016 BCCA 374 [Liu]). Of additional note is the fact that the trial judge awarded loss of housekeeping capacity in lieu of an “in trust” and future care award.
In that case, the 27 year old plaintiff suffered a profound loss of capacity to do housework. Her incapacity extended beyond mere difficulty or inefficiency in performing household tasks. The stress from the amount of work required negatively affected the plaintiff’s health so much that she could not handle the demand. Although she did not hire any external help, her husband needed to quit his own job to assist with the housework and childcare. The plaintiff’s mother-in-law provided financial and housekeeping assistance as well.
The Court of Appeal upheld the trial judge’s decision to award loss of housekeeping capacity as a separate pecuniary head of damage. The Court found that the plaintiff suffered an injury that would make a reasonable person in her circumstances unable to perform their usual and necessary household work. In doing so, the Court held it was not necessary for the plaintiff to have hired housekeeping services pre-trial for a separate award to be made. Instead, the fact that the plaintiff required significant assistance from her family members to make up for her incapacity was sufficient to ground a separate award for loss of housekeeping capacity.
The defendants argued that the gratuitous services provided by the plaintiff’s family, particularly from her husband, were expected and should not be compensable. The Court did not accept this argument and found that when family members gratuitously do work that the plaintiff can no longer do, these tasks have market value and provide an indication of the loss of capacity suffered by the plaintiff. The value of assistance from family members should be assessed where it is over and above what would be expected from the family relationship.
Riley was subsequently released on September 28, 2018. Riley involved a 62 year old plaintiff with injuries which were significantly less severe than those suffered by the plaintiff in Kim.
The Court found that apart from some difficulty completing home renovations with which he needed help from family and friends, the plaintiff did not otherwise need any housekeeping assistance. He was able to do routine housework such as cooking and cleaning on his own.
Unlike in Kim, the Court held that loss of housekeeping capacity was to be accounted for under his non-pecuniary damages of $85,000. There was no evidence that the plaintiff’s incapacity would result in actual expenditures, or that it would require family members or friends to routinely provide assistance for which the plaintiff would otherwise have to pay. As a result, a non-pecuniary damage award was appropriate and adequate compensation.
Kim and Riley demonstrate that an award for loss of housekeeping capacity may be made either as part of a non-pecuniary award, or as a separate head of damage. In either case, an award will be appropriate only when a plaintiff has suffered an injury which would make a reasonable person in the plaintiff’s circumstances unable to perform his or her usual and necessary household work.
The Court of Appeal arrived at different conclusions in these two cases based on the significant differences in how each plaintiff was affected by his and her injuries. Considered together, Kim and Riley provide guidance on how the Courts should approach a loss of housekeeping capacity claim.
A distinct award may be appropriate where a plaintiff’s incapacity to perform housekeeping functions would result in actual expenditures, or of family members or friends routinely undertaking functions that would otherwise have to be paid for. Despite being gratuitous, assistance from family members is relevant where it is over and above what would be expected from the family relationship. Despite Liu, the Court of Appeal in Kim determined that there is no set range or cap on damages for a segregated award since it is determined by the actual loss suffered by the plaintiff.
Conversely, an award under non-pecuniary damages may be more appropriate where (a) the plaintiff does not need hired services or routine gratuitous help for housekeeping; (b) the gratuitous help, if present, is not over and above what would be expected from the family relationship; (c) the plaintiff’s injuries can be best classified as a loss of amenities, or increased pain and suffering; and (d) the plaintiff is able to perform household tasks, albeit with difficulty, pain or inefficiency. When putting a number on the amount of money associated with loss of housekeeping capacity under non-pecuniary damages, the Court of Appeal in Riley said that it is a rough assessment and is not a mathematical exercise. This calculation involves consideration of the extent of housekeeping incapacity suffered, together with the plaintiff’s pain and suffering, loss of amenities, and loss of enjoyment of life. Ultimately, it is up to the trial judge to make this assessment on a reasonableness standard based on the facts.
While the Kim and Riley cases do not change the state of the law pertaining to loss of housekeeping capacity, they provide helpful clarification as well as examples of how the law is applied.