This article was originally published in the spring 1997 issue of the Expert Witness.
Quantification of an individual’s, or an estate’s, loss of household services in such a way as to return the plaintiff to their pre-injury status involves the estimation of hours contributed prior to the accident, currently, and in the future. Determination of this loss would appear to be a clearcut matter of identifying the individual’s contribution prior to the accident, and reducing this pre-accident contribution, in the case of an injured party, to the extent that s/he is still able to perform those duties. In reality, however, the process of estimating, after the fact, the extent to which an individual has contributed to the myriad duties required to keep a household functioning, from meal preparation to maintenance of the physical structure itself, is a matter that is neither straightforward nor obvious. Routes to procuring this type of information include undertaking individualised data collection, and accessing general statistical information. This article discusses various sources of information concerning household services including a review of the factors which influence household labour activities. In addition, pitfalls inherent in each method will be analysed and suggestions made as to the steps that may be taken to maximise the accuracy of the data.
Individualised Data Collection
When there is reliable information available detailing the extent of the individual’s past and current (in the case of an injured plaintiff) household labour contribution, the preferred source of data is that which is specific to the particular individual. Incorporation of factors unique to that individual should increase the accuracy of the quantification of the loss. With this method, the plaintiff, or family members of the deceased, are asked to provide a breakdown of the household activities which were undertaken prior to the accident, by completing a Household Services form. An injured plaintiff is also asked to detail the extent to which s/he is able to participate in household activities currently, as well as information about her/his contribution immediately after the accident and in the interim period if that information differs from that in the other two periods.
Family members or replacement help may assume some of the household responsibilities for which the injured person or deceased was previously responsible. A tally of the hours of household services performed in either case is not necessarily an accurate estimate of the number of hours requiring replacement. There is no assurance that replacement help, due to the expense of that service, or family members, due to lack of time, can assume all of the duties which the individual is now unable to complete. This type of information would, therefore, only be used to quantify the loss if other individual-specific information was unavailable.
There are potential hazards inherent in this type of information gathering One commonly noted quandary is the tendency to overestimate the individual’s contribution. It is important to recognise the difficulty of estimating the time devoted to the functioning of the household in a prior period It is useful to remember, as well, that an individual’s view of this type of contribution is based on their personal perspective, making this type of estimate very subjective in nature. Also, time may inadvertently be allocated more than once, as more than one household activity may be performed concurrently. For example, an individual may prepare a meal while attending to a child.
Various steps can be taken to ensure that the information elicited is as accurate as possible. First, to circumvent the possibility of double-counting, we advise the individual who is completing the form to list the activity that they consider to be their primary activity at that time, and to disregard any secondary activities which they may also be involved in. Also the respondent is asked to consider the hours devoted to household activities in the context of the entire day. It is readily apparent, should the total exceed 24 hours, that there is a need for adjustment. It may well be that the individual made a contribution which exceeds that of the average individual. If there are sound reasons for this assumption, however, the factors which create that unusual situation must be stated to support that claim. If, on the other hand, aspects unique to that individual do not justify an above-average claim an investigation of this anomaly is necessitated.
Data Analysis Based on National Statistics
Statistical averages detailing the number of hours contributed by adult Canadians to household services is available from surveys conducted by Statistics Canada on the time usage of Canadians. The most recent of these, the General Social Survey of 1992, relies on the diary approach to measure the use of time. The diary approach, which requires that survey participants complete a chronological log of their activities, is generally considered to be more accurate than the direct approach, which simply asks those surveyed to recount the amount of time which they spent at various activities over a particular reference period (Households’ Unpaid Work: Measurement and Valuation, Statistics Canada Publication 13-603E, No. 3, 22-23). Nearly 9,000 survey participants, who were required to be 15 years of age or older and living in private households, responded to the 1992 survey, which was conducted over a twelve month period on different days of the week, to ensure representative results. The unpaid work reported by those surveyed is classified into five broad areas. The first four: domestic work; help and care; management and shopping; and transportation and travel are said to comprise household work.
The breakdown provided by Statistics Canada on this survey information provides an analysis of household activities according to gender, labour force status, family and child status, and age (with those 15 years of age and older separated into five different age groups). We are, therefore, able to use average estimates across those individuals with characteristics most similar to those of the plaintiff or deceased over various stages of their life.
Factors Affecting the Amount of Unpaid Work
The principle determinants of an individual’s daily activities have been found to be their main activity (ie. full- or part-time employment, student, not employed), sex, marital status, the presence of children (the age of the youngest if there are children), and, for seniors, living arrangements. Factors such as labour force status and the presence of children influence the time spent on unpaid work, particularly for women (Households’ Unpaid Work: Measurement and Valuation, Statistics Canada Publication 13-603E, No. 3, 48). David Ciscel and David Sharp (Journal of Forensic Economics, 8(2), 1995, 120-21) also note the importance of residency and consumption status as factors that affect time use. They note that for some families home ownership may induce an increased commitment to household labour of 10 percent. The authors make an inference about a family’s consumption pattern by assuming that those families who eat together more than four days a week tend to substitute household production of domestic services for the purchase of those services in the market. Not surprisingly, those families who substitute household for market production devote more hours to household activities, especially in households where only the husband participates in the paid labour force. In families of that type, the number of hours which the wife commits to household work is almost double that of other families.
Remaining Problematic Issues
Another issue which may be problematic is the determination of the proportion of household activities that is compensable, in the instance of household activities which contribute to the functioning of the family home but may also be classified as a hobby for the individual. The example of an individual who has participated in gardening as part of her/his contribution to the household illustrates this well. It may be argued that a portion of the time spent on this activity constitutes a loss of enjoyment rather than a loss of household services, implying a non-pecuniary loss. Following through with this approach necessitates the determination of what portion of the loss of gardening ability can be claimed under the head of damages of the loss of household services.
A different approach is suggested by Janet Yale, in her article “The Valuation of Household Services in Wrongful Death Actions” (University of Toronto Law Journal, 1984, 296). She contends that the enjoyment derived by an individual as they execute a particular activity has no impact on the loss experienced by her/his family when s/he is no longer able to undertake that activity. This implies that the lack of fresh garden produce results in the same loss whether the individual considered gardening to be an onerous task or an enjoyable activity.
The potential for complexity becomes apparent if we extend this illustration of the avid gardener. It may be argued that the value of the fresh produce provided to the family is significantly less than the value of the time that the gardener invested in her/his production. This begs the question of whether compensation is required for the full extent of the time spent at this activity. While this may be an interesting point, in theory, it would be unusual for the estimated value of an individual’s time to vastly exceed the value of her/his production, thus, impacting the total claim. This situation would have to be dealt with, on a case by case basis, when it does arise. In this example, for instance, support for the claim which would include all hours spent gardening could be found by considering the value placed by that particular family on the loss of the individual’s ability to garden. This may be achieved by estimating the cost of buying produce that meets the standard of quality that the individual and their family had been accustomed to, for example pesticide-free, fresh produce which has not been damaged in transport. In the instance that support could not be found to support the claim, in an extreme case, then a downward adjustment of time spent on this activity may be warranted, referring to average statistical information.
When First-Best Is Not Possible
When quantifying the loss of household services, at Economica, we prefer, to the extent that such information is available, to rely on individual-specific information. Even when this information is available its usefulness may be limited to a certain period. We may, for instance, base our quantification of the plaintiff’s loss on the response to our Household Services form, as it applies to the current period. This information, however, may not be relevant for future periods. For instance, if the individual had young children at the time of the accident, the household labour required for that period would be greater than that required for subsequent periods but it would be almost impossible for the individual to project the exact magnitude of the difference. In that case, the percentage decrease which the average individual, with characteristics similar to the plaintiff, experiences when undergoing a similar change in family status would be applied to the base number of hours that the plaintiff currently spends on household services. This allows us to project future requirements based on information specific to that particular plaintiff.
Lifestyle changes aside, there are other instances when average statistics must be relied on to project the future requirement of a plaintiff. If for instance, it had been the plaintiff’s intention to change her/his employment status from full-time to part-time work their contribution to the household would have changed in a way that would be difficult to estimate. The percentage difference on the time spent on household activities by a full-time compared to a part-time employee could then by applied to the information specific to the plaintiff.
To summarise, the preferred method in estimating the extent of an individual’s contribution to household services is to rely on data that is specific to the plaintiff, or the deceased in the case of fatal accident actions. While there are potential weaknesses in this method, as previously discussed, steps can be taken to minimise the potential for inaccurate estimates. To this end, based on past experience and current research, we have revised our Household Services form to make it a more useful tool in eliciting pertinent information. There are instances when this information is unavailable, or when it will not be relevant at some future point, for example, due to lifestyle changes. In these cases, average statistics form the basis for quantification of the loss or adjustment of individual-specific information. In situations where average statistics must be used exclusively, we suggest that this generic information can be used as a reasonable substitute with confidence. This generic information should, however, be viewed primarily as a tool to support or adjust individual-specific data, which remains the data source of choice.