Loss of opportunity to form an interdependent relationship

If my injuries deprive me of the opportunity to form an interdependent relationship, will I be compensated?  How can I prove this? How is the loss quantified?

In a decision released earlier this week (Wilhelmson v Dumma, 2017 BCSC 616), the plaintiff (Ms. Wilhelmson) was a young woman. She was the sole survivor of a horrific head-on crash. The defendant had driven the wrong direction on the road at 150 km/hr before crashing into the Pathfinder in which she rode. The Pathfinder was crushed such that the back seat where she had sat was pushed almost to the dash.  Ms. Wilhelmson suffered catastrophic injuries, and had to be resuscitated at the hospital. The two other occupants in the vehicle were killed – one of whom was the plaintiff’s boyfriend of several months. While their romantic relationship had been relatively short, they were previously long-time friends and their friends and families expected they would marry.

Ms. Wilhelmson showed incredible spirit in her recovery from her injuries. She had to re-learned to eat, breathe, and ultimately walk. She suffered a significant change in her abdominal anatomy and underwent 20 surgeries on her abdomen and back. As one might expect, she suffered from PTSD and anxiety as a result of her experience. She was awarded the upper limit for pain and suffering damages.

Justice Sharma considered whether she should be entitled to damages for loss of interdependency. She summarized the law, noting that the award is for the “loss of opportunity to marry” (para 330), setting out the test:

[331]     The test is now stated as follows: has the plaintiff established that there is a real and substantial possibility that the plaintiff has been impaired in her ability to enter into a permanent relationship (Hodgins v. Street, 2009 BCSC 673)? In Grewal v. Brar, 2004 BCSC 1157 at para. 159, the Court said loss of interdependency recognizes the loss of the benefit of increased income, shared expenses and shared homemaking.

[332]     In terms of what evidence is relevant, no definitive standard has been established in the case law. Courts have found that a person’s demeanour, together with medical evidence, is insufficient to find someone was “completely incapable” of forming an interdependent relationship: Afonin v. Jansson, 2015 BCSC 10. It is also clear that disfigurement such as scarring can be a factor tending to prove this loss: Anderson v. Lancaster, 1999 BCCA 1. I agree with the defendant that the award is not meant to compensate for the loss of a particular relationship: Campbell v. Swetland, 2012 BCSC 423.

Importantly, Ms. Wilhelmson had two long-term relationships after the crash, both of which ultimately ended. Justice Sharma concluded that these relationships were tied to the grieving process, and concluded that her disfigurement and negative self-image were significant considerations. Further, her psychiatric prognosis was guarded:

[340]     Given that her psychiatric prognosis is guarded, I find the evidence does prove on a balance of probabilities that her ability to form a permanent interdependent relationship has been impaired. The test is only that she establish that there is a real and substantial possibility she will be impaired; she does not have to prove she will not enter an interdependent relationship, but only that her capacity and ability to do so has been impaired. The evidence easily and clearly meets that test. She is entitled to an award to compensate for that loss.

Justice Sharma then considered how to quantify the loss. She relied upon the evidence of the economist to assist in determining the economic benefit of a relationship for a female with Ms. Wilhelmson’s plans, ultimately accepting that a lifetime economic benefit of a spouse would be in the range of $758,000.00 – $800,000.00. In concluding that an award of $325,000.00 – $350,000.00 was appropriate to compensate for the impairment suffered, she explained her decision:

[347]     I find Ms. Wilhelmson’s capacity to enter and sustain an interdependent relationship has been impaired. But I also find some portion of that impairment is tempered by what I have already found to be her fundamental character traits: remarkable resilience, determination and a generally speaking, positive outlook.

[348]     In my view, the impairment is most likely to manifest as a real and substantial possibility it will take her much longer to find a partner with whom she is likely to have a sustained relationship. This is solely because of the grief she suffers and the physical and psychological injuries she will have to continue to endure.

[349]     Taking all these factors into account, I find an award between $325,000 and $350,000 is appropriate to represent compensation for her loss of interdependency.