This article first appeared in the autumn 1997 issue of the Expert Witness.
This is the third in a series of articles on the loss of household services in personal injury or wrongful death actions. The previous two articles dealt with the approach to the calculation of household services (The Expert Witness, Winter 1996), and the method used to estimate the number of hours lost (The Expert Witness, Spring 1997). The purpose of this article is to provide a view of the law as revealed in a number of recent court decisions.
Establishing General Principles
Two cases in particular, Daly v. General Steam Navigation Co., (1980) 3 All E.R. 696, an English Court of Appeal decision, and Fobel v. Dean (1991), 6 W.W.R. 408, a Saskatchewan Court of Appeal decision, provided precedent-setting judgments involving a claim for household services. Two main principles which are set out in Daly deal with the pre-trial and future loss of household services. First, a future loss was allowed, regardless of the intent, or lack of it, on the part of the plaintiff to hire replacement household labour to compensate for the lost capacity to undertake household work (see Daly at 701),
It is really quite immaterial, in my judgment, whether having received those damages the plaintiff chooses to alleviate her own housekeeping burden … or whether she chooses to continue to struggle with the housekeeping on her own and to spend the damages which have been awarded to her on other luxuries…
This reasoning was later advocated by Justice Vancise in Fobel and subsequently in recent Alberta cases (for instance see, McLaren v. Schwalbe (1994) 16 Alta. L.R. 108 at 138).
In Daly, it was deemed appropriate, to utilise the cost of hiring replacement domestic help to measure the damages, at least in terms of the future loss. In reference to the pre-trial period, however, Bridge, L.J. stated that the cost of replacement services was not an appropriate measure of the loss of housekeeping ability, which in that case was the additional difficulty experienced by the plaintiff in carrying out household duties. The loss, rather, should have been assessed as a part of the plaintiff’s general damages, and the additional pain, suffering and loss of amenity experienced by the plaintiff should be the measure of that loss. Despite this finding, the appeal court concurred with the trial judge regarding the amount of compensation, although the compensation in the lower court was based on the cost of replacement help.
In Fobel, at 423, Vancise J.A. commends the approach to the impairment of housekeeping ability taken in Daly, which awards the plaintiff for her loss of ability rather than relying on the prior “antiquated if not sexist” approach which compensated a third party for the loss of services previously provided to them by the victim. Also recognised, at 424, is the need to consider and define the notion of housekeeping capacity. Vancise J.A. notes that Daly provides a basis for this type of consideration when two major roles are delineated: first, “ordinary housework”; and second, “proper supervision of children”. Vancise J.A. takes this concept further, classifying the former type of duty as “direct labour”, the loss of which can be replaced quite readily by employing household labour, and the latter as “management or indirect labour” which encompasses the duties of a homemaker which are less tangible, such as household management and those aspects of the care of children which extend beyond physical care. The point is made that the latter is much more difficult to replace, and that it is up to the trial judge to ascertain to what extent ability has been impaired, in the case of either component. Despite this clearly enunciated view, the award did not incorporate a separate amount for the loss of “management” as evidence had not been brought forward on which to base a loss for that component.
Substantiating the Loss
While there seems to be consensus that the loss of household services is compensable, there is less agreement concerning the evidence that should be brought forward to substantiate the extent of the loss. As aptly stated by the Court of Appeal in Mason v. Peters (1982), 139 D.L.R. (3d) 104 at 110, “Precise proof is manifestly impossible, but if a basis for reasonable ascertainment of the amount of damages has been established, the court will make the assessment as best it can with what it has.”
There are instances in which the court relies on the plaintiff and/or the plaintiff’s family as the primary source of information in the estimation of the loss of household services. In one such case, Gilchrist v. Oatway (1995), 168 A.R. 56, at 66, the court based the loss on information from family members who estimated the additional household work which they had undertaken due to the plaintiff’s injury, even though they were unable to provide a detailed record of that additional contribution. In that case the evidence was taken at face value but then discounted to reflect a possible decrease in required household services, based on projected changes in family circumstances. In many cases, however, additional evidence as well as documentation has been required.
In Simmie v. Parker and Unger (1994), 164 A.R. 178, Rawlins J., at 182, ruled that the court’s minimum requirements for household services claims included: statistical data on time spent on household services by the average individual with characteristics similar to the plaintiff; specific information regarding tasks previously undertaken by the plaintiff and her/his ability to complete those tasks, post-accident, in the time available for those tasks; and time spent by paid help or family members in replacement of the plaintiff’s duties.
Concern regarding a lack of evidence on a household services claim was also expressed in Acheson v. Dory (1993) 8 Alta. L.R. (3d), at 145, when Picard J. stated that additional evidence that could have been provided would have included “the length of time she was totally and then partially incapacitated and the quantum and nature of the assistance required.” Further, at 146, Justice Picard listed other information pertinent to the establishment of the loss:
…the specific tasks the plaintiff can no longer accomplish or only with assistance, the standard of housekeeping she has maintained and seeks to continue, the modifications she can make to allow her to achieve her standards, the number of hours she and her husband worked in her home prior to the accident and the number she now works, the number of hours she believes she will need assistance.
Experts’ Evidence as to Loss of Hours
Another important factor in the determination of damages for the loss of household services is the acceptance of evidence offered by experts. In Grimard v. Berry et al., (1992), 102 Sask. R. 137, Maurice J., at 152, states that it must be understood that, as expert witnesses are partisan witnesses, it is imperative that their conclusions be supported by the evidence. In this case, the court determined that the estimated requirement for household services according to the plaintiff’s experts ran contrary to medical evidence that the plaintiff was still able to undertake light housekeeping duties. As a result, damages were calculated only on the inability to complete heavier housework. In other cases, the loss of household services may be adjusted in light of other factors in the plaintiff’s life. In Mackie v. Wolfe (1994), 153 A.R. 81, at 146, the claim for a loss of household services was reduced by the court on the basis of the employment circumstances of the plaintiff, as well as her active social and family life.
Reference to average statistics to support the information solicited from the plaintiff or the plaintiff’s family, as to her/his household contribution, increases the validity of that information. This was the case in Brouwer v. Grewal, (1995) 168 A.R. 1 (Q.B.), at 354, when evidence as to the plaintiff’s weekly pre-trial contribution to household services was shown to be less than the average statistics for a woman with her socioeconomic statistics, with an accompanying explanation for this discrepancy.
Similarly, there have been instances in which average statistics have formed the basis of the evidence as to household contribution, supported by testimony from the deceased’s family. In O’Hara et al. v. Belanger (1989) 98 A.R. 86, at 87, counsel for the defence argued that the employment characteristics of the deceased (extensive job-related travel) would have made it difficult for him to actively participate in household duties. Berger, J. affirmed that average statistics were, nevertheless, an appropriate basis for the estimation of the loss of services as evidence had not been brought forward to show that the deceased had not made “average” contributions.
Other approaches have also been used to support the estimated weekly requirement of household assistance. In Fobel, at 432, an estimate of the plaintiff’s level of disability, expressed as a percentage, (in that case 70 percent) was applied to the number of hours spent at household activities by the plaintiff pre-accident.
Are Household Services Replaceable and at What Cost?
In some instances, the household services which were performed by a plaintiff or the deceased cannot be replicated by replacement labour. The extent to which household services are replaceable was an issue in Taguchi v. Stuparyk (1994) 16 Alta. L.R. (3d) 72, at 84-5, when the husband of the deceased testified that a replacement worker he had hired did not actually replace his wife’s household contribution, in terms of quality. Counsel for the defendant argued to have the loss of services valued at $7 per hour, the rate paid to the teenage worker, whereas, evidence from expert witnesses valued such services as high as $23 per hour. The defendant argued that the higher commercial rates were not applicable as they incorporate overhead, profit, and additional building costs. Matheson J., stated that while commercial rates were not determinative, they were, nevertheless, “important and relevant” in this type of valuation. On that basis, the award for the future loss of household services was calculated according to an hourly rate of $12 which was described as being representative of the middle ground.
A related subject, regarding the adequacy of compensation, refers back to the discussion in Fobel with regards to the two components of the loss of household services: direct labour, including most general housekeeping duties; and management or indirect labour. Various judgments have considered a loss in either one or of both components in an award for a loss of household services. Marshall J. noted, in Brouwer v. Grewal and Edmonton (City), (1995), 168 A.R. 342, at 353-4, that the assessment of the plaintiff’s loss must consider not only her loss of ability to perform manual tasks but her ability to perform the management function of homemaking, remarking particularly on her difficulty with decision-making on basic decisions such as meal-planning. A rate of $13.31 per hour was relied on to calculate the award for the loss based on a survey of companies and individuals who provide housekeeping services.
The difficulty posed by the assessment of loss in regards to the management component of housekeeping services is made apparent by Matheson J., referring to Fobel, in Taguchi, at 86, “commercial rates in evidence here still only compensate the plaintiffs for the ‘direct labour’ aspect of housekeeping loss while the ‘management’ aspect discussed by Vancise J.A. … remains as a loss which is difficult to quantify and therefore compensate.”
There have been judgments, in which household services awards have reflected various assumptions about family circumstances, the division of labour in the family, or the assigning of responsibility. In Mayes v. Ferguson and Stettner (1992) 102 Sask. R. 250, at 258, Barclay J., decreased the potential award by 50 percent on the assumption that as the plaintiff and her husband were both working full-time and had no children they would have hired a part-time housekeeper even had the accident not occurred. Alternatively, in the case of DeMarco v. Toronto Transit Commission, (1978) 19 O.R. (2d) 691, at 694, the reduction of the award was based on the assumption that the plaintiff’s husband and sons should have assisted her when injury from the accident prevented her from fulfilling her household duties, thereby reducing the burden that was left to the plaintiff’s daughter.
There is danger inherent in basing an award on an assumption about what “should be” rather than what “is”, as pointed out in McLaren, at 136, when various non-traditional household arrangements are noted. Picard J. makes two points in regard to the use of potentially erroneous assumptions: first, that there is need for caution when relying on such assumptions; and second, that this issue once again highlights the importance of bringing forth sufficient evidence in these types of claims.
The Dependency Argument
In a fatal accident claim for loss of household services, the claim may or not be adjusted to reflect that the loss of services is offset to the extent that family members no longer have to provide household services solely for the benefit of the deceased. In Labee v. Peters and Thompson (1997) Action No. 9404-00110, at 23, the defendant’s expert argued that the household services provided to the deceased exceeded the contributions which the deceased made in this regard, so that until the deceased would have retired, there was not a loss of household services. While the loss being claimed by the defendant’s experts was reduced somewhat, the court ruled that the deceased’s spouse did suffer a loss of household services as she would have to pay for particular specialised work which her husband would have done.
The various judgments noted above suggest that the determination of the award for the loss of household services is not a straightforward matter. Thorough documentation, specific to the plaintiff or deceased in question, which details the loss of household services is essential. In the case of an injured plaintiff, the level of disability may differ according to different time periods. If such is the case, the number of hours requiring replacement and the type of replacement required must be clearly stated for the respective periods. Average statistical evidence can provide further support to the claim. In terms of the replacement cost for the loss of household services, it is prudent to rely on the cost of employing household labour in the locale where the plaintiff resides. As the loss of household services may be comprised of a “management” as well as a “direct labour” component, the loss of both aspects of household services should be considered. Since the loss of household services is not straightforward, the extent of the loss may be difficult to prove. It is crucial, therefore, to ensure that a claim for this loss is supported by thorough documentation and statistical evidence.