Can I be awarded for loss of housekeeping capacity even where I haven’t actually had to hire anyone? How conservative will the court be in assessing my loss?
The Court of Appeal recently weighed in on a $70,000.00 award made at trial for past and future loss of housekeeping capacity where the plaintiff hadn’t actually hired any help since the collision (Liu v Bains, 2016 BCCA 374). Indeed, her family members had taken over her substantial household duties and were expected to continue to do so into the future.
The trial judge had made the award with consideration to British Columbian case law, which permits an award for loss of housekeeping capacity even if the plaintiff has not had to hire household services. The defendants conceded this point, but argued that the law required a significant reduction in the award (by as much as two thirds) to account for the fact that the plaintiff had not and likely would not actually hire household services. The defendants argued that this was the ‘conservative’ or cautious approach, as mandated by case law.
For a unanimous court, Justice Neilson wrote that a failure to make a reduction to the award was not a failure to use the required caution:
[29] I appreciate that Kroeker and, more recently, Westbroek, urge caution in assessing awards for loss of housekeeping capacity. I do not, however, understand these decisions to endorse an award that provides less than full compensation for a proven loss. Nor do they mandate a routine reduction of two thirds if a trial award is successfully challenged. Any reduction will be dictated by the facts of the individual case.
[30] I am not persuaded the trial judge was unaware of the need for a cautionary approach. She referred to Kroeker and, in my view, took what can reasonably be interpreted as a conservative approach in calculating the award. Although Ms. Liu’s unchallenged testimony was that she had spent 21 hours weekly on household duties, the judge used a figure of 12 hours per week. She declined to accept the hourly rate of $15 proposed by Ms. Liu, and used the lower rate of $11.15. The award for future loss of capacity was limited to five years, although Ms. Liu was expected to live well into her eighties with no real hope of improvement in her chronic pain.
[31] Moreover, there was clear evidentiary support for the trial judge’s award. Prior to the accidents, Ms. Liu was a diminutive woman with tremendous energy and industry. In addition to full-time, and sometimes overtime, work, she performed virtually all the household chores required to care for her family and home. These were extensive but she willingly undertook them because it was important to her to leave her children free to pursue their studies and employment, in the hope they would have a better life than hers. The medical evidence supported the judge’s finding that her energy and capacity to perform these chores have been significantly and permanently depleted by chronic pain. The functional capacity evaluation performed by Mr. McNeil summarized her limitations as follows:
Overall, Ms. Liu demonstrated the capacity to perform activity that requires sedentary to modified light level strength for short periods of time. She demonstrated restrictions in her capacity for activity requiring static vertical reaching and static horizontal reaching as well as restrictions in her capacity to perform below waist work requiring bending and stooping. There were restrictions in her tolerance to perform sustained neck flexion (looking down). There were measured restrictions in her upper extremity strength as well as restrictions in her capacity to perform, pushing/pulling, two handed carrying, and two handed lifting. There were also restrictions in her tolerance for sitting, standing, and walking. Overall there were restrictions in her mobility and restrictions in her activity tolerance.
[32] It is clear Ms. Liu is unable to routinely undertake and perform many of the activities routinely required to do household chores. The trial judge recognized these chores may be reduced as the children mature and leave home, but their departure will also leave Ms. Liu without assistance in performing heavier household tasks.
[33] While I agree the trial judge’s award is at the high end of the usual range, I note that this Court in McTavish approved an award of $63,970. While the awards in Kroeker and Westbroek were significantly lower, the plaintiff in Kroeker was not permanently disabled and was expected to recover in three years, and the evidence as to the allocation of household tasks between the spouses in Westbroek was lacking.
[34] The appellants have failed to demonstrate a reviewable error in the trial judge’s award for loss of housekeeping capacity. I would accordingly dismiss this ground of appeal.
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