Canadian Underwriter

Judge denies separate housework award in auto injury lawsuit

November 15, 2017   by Canadian Underwriter

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A claim for interference with homemaking capability “must be scrutinized carefully” in an auto personal injury lawsuit, a British Columbia judge suggested in a recent ruling that cites an earlier Court of Appeal for Ontario ruling.

In a ruling released Nov. 10, Justice Warren Milman of the B.C. Supreme Court awarded damages to Mary Ann Wolford, who was in a motor vehicle accident in 2014 while her vehicle was “stationary in a drive through lane at a fast food restaurant.”

The defendants admitted liability and Justice awarded Wolford $65,000 in non-pecuniary damages, among other things. But Justice Milman agreed with the defendants’ argument that “any lingering impairments” do not justify a “discrete award” of $20,000 for interference with homemaking capability. This, he added, should be considered in the assessment of non-pecuniary damages.

“A relatively minor adjustment of duties within a household will not justify a discrete award under this head of damages,” Justice Milman added. “The court should ask whether the services went above and beyond the ordinary give and take to be expected in a home and were required by the plaintiff’s injuries or would have been performed in any event,” Justice Milman found, citing the 2013 B.C. Supreme court ruling in Tabet v. Hatzis.

Nabil Tabet had sued Olympia Hatzis after being struck by a car in 2007 in Vancouver.

“If housework has been rendered more difficult and time consuming due to accident-related injuries the loss may be appropriately addressed in a non-pecuniary damages award,” Justice Gail Dickson, then of the B.C. Supreme Court, wrote in the Tabet ruling.

In Wolford v. Shlakoff, Justice Milman also cited the Court of Appeal for Ontario ruling in McIntyre v. Docherty, released in 2009.

“It is generally inappropriate to create a separate heading for one particular component of a global award for non-pecuniary damages,” Justice Susan Lang wrote in McIntyre in 2009, adding that “non-pecuniary damages should be assessed globally due to the overlapping nature of the various components.”

Justice Lang added it is “unnecessary to divide non-pecuniary losses into sub-categories” and that juries in Canadian lawsuits “have long demonstrated their ability to incorporate a variety of losses into a global award for non-pecuniary damages.”

In a separate report released this past July, Ernst and Young suggested B.C. could consider implementing a cap on pain and suffering for minor injury claims.

“The province of B.C. has a litigation-based insurance model, which allows not-at-fault drivers and passengers to sue at-fault drivers for both economic loss and pain and suffering,” EY said in the report, Affordable and Effective Auto Insurance – a New Road Forward for British Columbia. “The care-based model, as in place in Manitoba and Saskatchewan, provides comprehensive benefits for those injured in accidents, and the right to sue for excess economic loss and pain and suffering is allowed only in limited circumstances.”