If I’m a passenger, and due to his own negligence, my husband crashes the vehicle – can I recover compensation from his insurance company for services he provides me in my injured state? Would this result in him being “paid” for his wrongdoing?
In a decision released earlier this week (James v. James 2018 BCSC 603), the plaintiff suffered devastating injuries in a 2014 crash. Her injuries rendered her an “incomplete quadriplegic”. The decision does not detail the circumstances of the crash, but liability was admitted on behalf of her husband. Mr. James was the defendant in the action – presumably he was driver and she passenger in the crash which was due to his negligence. The pair were in their early 70s, snowbirds, and married for 46 years.
Immediately after his wife was injured, Mr. James spent every waking moment by her side. He learned to care for her while she was in care facilities – and when she was able to resume life at home – he provided high quality care. She required help with personal hygiene, catheters, and nighttime adjustments to her position in bed to prevent bed sores. As one would expect, he spent many hours devoted to her care, and as a result, their expense for caregivers was significantly reduced leading up to the trial.
The plaintiff advanced a claim for over $500K to compensate for the hours of care provided to her by Mr. James. A major issue raised by the defence (ICBC-appointed counsel) was whether she could claim for services provided by the defendant. In awarding $350,000.00 to Mr. Justice Betton cited (at paragraph 134 of his decision) the recent case of Knight v. Knight 2014 BCSC 1478:
[135] … Once such damages are characterized as compensation to the plaintiff he or she is entitled to recovery regardless of who provides the services in the absence of legislation to the contrary.
…
[137] I therefore conclude that Ms. Knight is not disentitled from recovering for services provided by her husband made necessary by her injuries merely because he is the tortfeasor. The loss that is being compensated for is measured by Ms. Knight’s need for the care her husband provides…
ICBC’s lawyer also argued that an in trust award is dependent on whether the defendant is insured, and the issue of whether a defendant should benefit from his own negligent conduct (in causing the injury). Mr. Justice Betton addressed these arguments as follows:
[143] The defendant could not point to any subsequent decisions specifically dealing with the issue of whether a plaintiff can be compensated for gratuitous services provided by the tortfeasor. While Bradley suggests an in trust claim at least in the context of housekeeping capacity can only be with regard to a family member not a party to the litigation, there is also the Dykeman case that supports Justice Sewell’s characterization of the plaintiff being the recoveree of the in trust claim, rather than the person providing the services. Justice Sewell did not fail to consider binding authority, and it was clearly a considered decision. I do not think the issue of whether the defendant is insured or not is determinative; the parties in this case are insured and as noted in the Australian authorities, at least an in trust award in this context avoids a windfall to the insurer taking advantage of a family member’s gratuitous care, even if that family member is the tortfeasor….
On this decision, the answer to the query above is “yes”. The services rendered to the plaintiff are part of her claim, regardless of who provides those services – and whether or not they happen to be the individual responsible for her injuries. As noted above, practically, there is no obligation on the plaintiff to “repay” family members for the services they provide – the in trust claim is part of the plaintiff’s own recovery for their losses.
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