I can carry my paddleboard, but I can’t do my housework – what will the court make of that?
In personal injury practice, we often encounter injured people whose injuries restrict them in some ways, but not others. We encounter labourers who can no longer play football with their kids, mountain bikers who can no longer renovate their homes, and crossfitters who struggle to spend a day sitting at their desk. Pain affects people in unique ways that often seem contradictory at first brush. While these seeming contradictions can often be explained by occupational therapists or other experts who explain why one motion triggers a reaction when a similar motion doesn’t, there’s always a problem I call the “explaining ’til you’re blue in the face.”
The problem with explaining until you’re blue in the face is that no matter how much expert evidence you call, or how much you explain why your mountain-biker can jolt down mountains but not lift a hammer above his head, the trier of fact is going to raise their eyebrows in disbelief. It’s an optics problem, and it can be a hard one to get around (particularly in the course of negotiations, where the other party doesn’t have any obligation to try to see things your way).
There’s a small line in a case released this week that hammers home the importance of considering the optics problem (Lauriente v Schoonhoven 2017 BCSC 2246). The plaintiff in this case had advanced a claim for significant housekeeping services as endorsed by the occupational therapist who provided expert evidence. Justice Voith was confused about how someone who can carry a paddleboard or skis can’t carry a jug of milk, and awarded only a small fraction of the homemaking services claimed by the plaintiff:
[144] There was much evidence at trial about what Ms. Lauriente can do and can’t do in the home. She does not vacuum or clean the tub. Mr. Bonner does. She does not carry a filled laundry hamper up the stairs but will fold her laundry. She cooks less than she did. She has problems carrying some of her groceries.
[145] I accept aspects of this evidence. It is hard to imagine, however, that Ms. Lauriente can carry her paddleboard, however light that may be, or her skis, but that she struggles to carry a jug of milk or a box of laundry detergent as her counsel’s submission suggest.
[146] Furthermore, though this aspect of the plaintiff’s claim is for her loss of capacity the reality is that most households reasonably distribute various chores between household members. Ms. Lauriente has also been working close to fifty hours in a four-day span of time and works in a physically demanding job. It is not unreasonable that Mr. Bonner do some heavier aspects of the household chores and that the plaintiff’s daughter, increasing with time, contribute as well.
Another interesting note in this excerpt is Justice Voith’s reasonable expectation that some of the weight of the housework should be borne by the plaintiff’s husband and daughter. The takeaway? Next time you’re stressed about getting your housecleaning done, remember Justice Voith’s words, and tell your family that the law says that it’s not unreasonable to expect them to pitch in.
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