The goal of “fair financial compensation for loss” is simple when you can point your finger at specific dollars and cents losses such as receipts for chiropractic sessions or time missed from an hourly wage job.
The goal is not so simple when there is nothing specific you can point your finger at. How, for example, do you come up with fair compensation for injuries that reduce the ability to perform domestic, household tasks? If a housekeeper was hired, you can easily add up the invoices, but what if family and extended family picked up the slack without pay?
A couple months ago, I described a recent court decision that affirms that this type of loss must be compensated just like any other. In that decision, $70,000.00 was awarded for the injury victim’s past as well as future loss of ability to do domestic work in her own home, even though family and extended family members had picked up the slack and she had not spent any money to hire replacement services.
A more recent case, this time coming from the highest level of court in this province (Court of Appeal), provides another example of complexity when considering compensation for loss. In this case, Reynolds v. M. Sanghera & Sons Trucking Ltd., 2015 BCCA 232, Mr. Reynolds had lost the capacity to perform home renovations and landscaping work.
This loss is a little bit different from a loss of housekeeping capacity because domestic tasks do not result in any change, over time, in the property itself. By comparison, home renovations and landscaping work result in an improved property.
The defending insurance company pointed to that difference when coming up with an argument that was successful at the trial level, but failed at the Court of Appeal. They argued that, since his wife was an equal owner of the home and the renovations and installation of an irrigation system in the yard would improve the value of home, compensation for this loss should be reduced by fifty percent. The Court of Appeal agreed that home and yard work can improve the value of a property but disagreed that this improvement should result in a reduction of compensation. The Court noted the reality that all home owners would agree with: “…such maintenance and improvement work is often undertaking not as a capital investment, but as part of making and maintaining a home…”. In conclusion, the Court of Appeal decided: “The value of this lost benefit should not be discounted just because it is possible that Mr. Reynolds’ spouse may also receive an increase in the value of her interest in the property”.
These are examples of where complex issues of injury compensation have been resolved by court decisions that will assist other injury victims to achieve fair compensation without the need for a trial. The reality is that the vast majority of injury claims settle with the “writing being on the wall” of what the court is likely to do available with case law research.
Paul Hergott is a personal injury lawyer at Hergott Law in West Kelowna. paul@hlaw.ca
