Hergott: Support while recovering from serious injury

Lawyer Paul Hergott’s latest column

A close circle of friends and family can be a critically important support system in the early stages of recovering from a serious injury.

Patient care in our hospitals is second to none, but cannot reasonably provide the constant bedside care that a parent, spouse or friend can provide.

On release from the hospital, home care nursing and housekeeping services go a long way, but family and friends can make a huge difference in between those scheduled visits.

And those lucky enough to have such a circle of support might prefer that as many services as possible be provided by loved ones rather than strangers.

Loved ones step up, asking nothing in return.

Each of us grew up with that culture, to varying degrees. Perhaps more so in more rural settings of small towns and farming communities but it seems to be an integral part of the fabric of our society as a whole.

The services cost the injured victim nothing, but that doesn’t mean they come without a cost.

The friend or family member is doing work. The fact that it’s care-giving and “domestic” type work that our society has historically undervalued does not take away from that.

And they often incur travel expenses and give up paid work to be able to provide the care and assistance.

These services most certainly come at an “expense” to those who step up to provide them.

When the need for these services arises from a heart attack, disabling disease or an unavoidable injury, there is no concept of re-allocating that expense.

But what about when that “expense” is completely avoidable, caused because an inattentive, negligent driver?

Should ICBC, the negligent driver’s insurance company, receive the benefit of those services without compensation?

Our laws have developed to require a negligent driver to fully and fairly compensate their victim for all losses, including the “expense” of friends and family members providing unpaid services. It’s called an “In-trust claim”.

A recent statement of the law regarding these claims can be found in Huang v. Canadian National Railway, 2018 BCSC 1235: where the court at paragraph 527 lists the factors relevant to assessing this aspect of a claim:

  • the services provided must replace services necessary for the care of the plaintiff as a result of a plaintiff’s injuries;
  • if the services are rendered by a family member, they must be over and above what would be expected from the family relationship (here, the normal care of an uninjured child);
  • the maximum value of such services is the cost of obtaining the services outside the family;
  • where the opportunity cost to the care-giving family member is lower than the cost of obtaining the services independently, the court will award the lower amount
  • quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those services. In this regard, the damages should reflect the wage of a substitute caregiver. There should not be a discounting or undervaluation of such services because of the nature of the relationship; and,
  • the family members providing the services need not forego other income and there need not be payment for the services rendered.

As with all other aspects of an ICBC claim, the “in-trust” aspect must be proven. Care must be taken to “preserve the evidence” of what services were provided by whom, the amount of time spent providing each service and the reasonable necessity of the services.

An example of where this aspect of a claim was pursued, but the court concluded that the evidentiary burden was not discharged, can be found in paragraphs 234 through 241 in Lensu v. Victorio, 2019 BCSC 59 .

Giving of yourself to help another, expecting nothing in return, is a beautiful thing that should be encouraged. When, in effect, your gift is to ICBC or another liability insurance company, it is fair and reasonable to ensure the “expense” of those gifts is fairly allocated.

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Hergott: Cones of silence removed

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