Friday, March 26, 1999

Transcription

1 THE CLE SOCIETY OF NOVA SCOTIA PERSONAL INJURY: FOCUS ON DAMAGES Friday, March 26, 1999 TOPIC: A DISCUSSION OF VALUABLE SERVICES Justice Walter R.E. Goodfellow Supreme Court of Nova Scotia

2 -2- INTRODUCTION Thank you for the kind invitation and opportunity to participate in this CLE Conference. The topic, "A Discussion of Valuable Services", is an intriguing and interesting topic. It is an area of damages, which in my view is still evolving. There is not, as yet, any universally accepted heading for this area of damages. My limited research discovered in the text on damages and the cases themselves, use a number of headings such as "Loss of Valuable Services", "Loss of Domestic Service", "Loss of Housekeeping", "Loss of Family Services, "Loss of Housekeeping Capacity", etc. etc. I think the heading LOSS OF HOUSEKEEPING CAPACITY is a more accurate and descriptive one. It focuses on the specialty of this area of damages and leaves the accompanying aspects like pain and suffering, brought on by attempts to cope, etc. within the general damage heading of pain and suffering, past, present and future, rather than create new sub headings, for pain and suffering related to sub topics such as housekeeping incapacity, recreational, personal and employment inherit in the nature of the injuries. They should all remain under the general damage claim. In my view, it is an economic loss of the homemaker, whose capacity to manage and attend to homemaking or housekeeping tasks, has been impaired. In my view, the loss, whether it is total or impaired for the period from the date of the accident to the date of trial should be viewed as a special damage loss, in the same way we treat

3 -3- any other economic loss for this time frame. Where a future loss relating to housekeeping capacity has been proved, such should be compensated for, whether or not actual expenditures for such, from the time of the accident to the time of trial, were incurred by an award of general damages, either global or a capital sum, over the life of its requirement that extinguishes, but covers the loss over the period capitalized. In assessing future damages, the court must make an estimate as to what is the likely cost to compensate the injured party and place her/him to the best money can, had the wrongdoer not caused such loss or impairment of such housekeeping capacity. This is the identical process we go through in determining, for example, the cost of future home care. Two words of caution: first the end product of these notes is a result of incomplete research, and secondly, any expressions of opinion are mine personally, by a member of the bench and do not necessarily represent the view of bench and do not necessarily represent for that matter, the view of any other member of the bench.. 2. BACKGROUND When I entered the practice of law in 1960, a wife when injured and unable wholly or partially, to fulfil her duties as a wife, mother and homemaker, the recovery in damages from the wrongdoer was by the husband in his claim for loss of consortium.

4 -4- In time, the wife was able to recover in her own right, for damages for loss of homemaking capacity, provided an actual loss had occurred. There had to be a legal obligation for the monetary loss sought to be recovered. This led to the practice of contracts being entered into by the wife with her husband, family members, friends or whomever, in order to meet this requirement. Voluntary gratuitous contributions, were for the longest time, not accepted as recoverable. This was overcome in time by determining that the wife would recover the estimated cost of replacement fulfilled by voluntary or gratuitous service and the wife would hold the recovery in trust for the member of the family or person who had provided voluntary services. Finally, it became recognized that voluntary, gratuitous service eliminated the cost of replacement to the extent of such service and entitlement to recovery became recognized. There is a tortuous history to the evolving case law and I am going to take, as my starting point, the Court of Appeal Decision of Daley v. General Steam Navigation Co. Ltd. [1980] 3 All ER 696: Facts Housewife, 34 years old, 2 young children, suffered severe injury to her right shoulder and wrist. She was right handed and had several periods of hospitalization with several

5 -5- surgical procedures, including bone graphs, tendon transplants, transfer of her flexor muscles to the back of her wrist. Her injuries were described quite correctly as grievous. Claimed damages, including a claim on her own behalf for partial loss of her ability to do her housework in respect of both the period between the accident and the trial and in the future. She did not, in fact, employ domestic help in the pre-trial period, since her husband and sister helped her in the house. The Trial Judge treated the whole of the plaintiff's claim for loss of housekeeping ability as a separate head of damage and not as an element of the general damages for pain, suffering and loss of amenities and measured that head of damage, according to the estimated cost of employing the necessary, domestic help. To the date of trial, a period of 299 weeks, he concluded she needed domestic help for ten hours a week and for the future loss, he concluded she would need domestic help for eight hours a week for the rest of her life. The defendants appealed against the awards for loss of housekeeping ability. Trial Justice made the following awards:

6 -6-1. Special damages 1, ,691 for what he described as the plaintiff's partial loss of housekeeping capacity up to the date of trial. 3. 8,736 in respect of the plaintiff's future partial loss of housekeeping capacity 4. Pain suffering loss of amenities 8,000. injuries: Trial Justice listed the consequences of her extremely serious 1. As a result of the injuries caused to her in the accident the plaintiff, who was before the accident right-handed, has been rendered unable to carry out activities requiring full use of her right arm including: a. Ordinary housework such as ironing and vacuumcleaning and making of beds; b. Gardening; c. Driving, bicycling; this has entailed giving up singing with a choral society since a car is essential to get to rehearsals; d. Washing her own hair; e. Playing tennis. 2. In addition because she is more prone to falling because she cannot hold on with her right hand and

7 -7- because the consequences of falling on her right arm would be serious she cannot use easily public transport or go out on ice or snow or stand on chairs or ladders. 3. She is in continual pain which increases in winter. 4. The scars have affected her appearance and attractiveness. She and her husband have consequential problems in their marriage. There has been considerable stress and depression. 5. She is no longer able to enjoy the beach which she did before. 6. She has found it difficult to exercise a proper supervision of her children and the consequent family difficulties have distressed her. Her son is now at a boarding school. She has been precluded from increasing her family. 7. The opportunities of paid work have diminished because she use her right hand to write. These special damages of 1,689 included an amount of 633,

8 -8- which had been paid or which is due to be paid by her to her sister-inlaw, who came into the family household and who had undertaken the housekeeping work for the husband and the children during the very considerable period when she was in the hospital. In addition, it was originally pleaded, a claim for loss of earning suffered by the husband in giving up part time employment, which he would otherwise have been in a position to undertake and would have undertaken, but which he had been unable to do so because of the necessity, to assist his wife in running the home. At the trial, the claim for that loss of part-time earnings by the husband was abandoned, and there was substituted a claim on behalf of the wife to recover damages in respect of the impairment of her ability to undertake housekeeping duties, both in respect of the years between the accident and the trial, and in respect of future years, based on the estimated cost of employing the domestic held which would be necessary to make good the plaintiff's own inability to undertake all the work needed to be done in and about the household. It is essentially this claim which forms the subject matter of the dispute in this appeal. to him: The judge said this about the argument which had been addressed "I have considered first whether it is right to treat the

9 -9- plaintiff's partial loss of housekeeping capacity as a separate head of damage, or whether it should be regarded only as one element in the loss of the amenities of life for which general damages have to be awarded. That single sentence really summarizes the issue which has been canvassed before us in this court. He reached the conclusion that this disability should be treated as a separate head of damage and stated: Having considered the matter, I have reached the conclusion that this disability should be treated as a separate head of damage. When a person in paid employment suffers a total or partial loss of earnings by reason of disability, such loss is invariably treated as a separate head of damage, with separate assessments of past and future loss. Where the person concerned is a housewife, who is disabled wholly or partly from doing housekeeping in her own home, she does not suffer an actual loss of earnings, and unless a substitute is employed, she may not suffer any pecuniary loss at all. Nevertheless, she is just as much disabled from doing her unpaid job as an employed person is disabled from doing his paid one, and I think that she is, in principle, entitled to be compensated separately for her loss in a similar way.

10 -10- The second issue was how damages were to be assessed and the Trial Judge, acknowledging that there was more than one way, took the cost of employing someone else to do the work, which Mrs. Daley had done in the past and will in the future, be unable to do. Defendant argued that this method was only permissible if another person had, in fact been so employed in the past and would be in fact, so employed in the future. Trial Justice went on to state "the loss occurred and the cost of employing someone else is no more than a way of measuring it. The Trial Judge then went on to quantify the damages prior to trial, by excluding the amount paid or due to the sister, and the time period it represented. He concluded the evidence established, the cost of employing someone would be PSO per hour and that she would have needed help ten hours per week, exclusive of what her sister did and therefore, at 299 weeks at 9 a week, he arrived at 2,691. The cost of the sister was 633, which is included in the special damages award of 1,689. As to the future loss, he concluded the average number of hours for which assistance would be needed in the future, was eight hours a week, took the present rate, calculated the present capital cost, based on the necessity of continuing housekeeping for the remainder of her life and arrived at the figure of 8,736. BRIDGE, lj dismissed the appellant's contention. Mrs. Daly had to satisfy the court, she had a firm intention in any event, to employ someone in the future and he said:

11 -11- "For my part, I am unable to see why that should be so. Once the Judge had concluded that to put the plaintiff, so far as money could do so, in the position in which she would have been if she had never been injured, she was going to need, in the future, domestic assistance for eight hours a week, it seems to me that it was entirely reasonable and entirely in accordance with principle in assessing damages, to say that the estimated cost of employing labour for that time, for an appropriate number of years having regard to the plaintiff's expectation of life, was the proper measure of her damages under this heading. It is really quite immaterial, in my judgment, whether having received those damages the plaintiff chooses to alleviate her own housekeeping burden which is an excessively heavy one, having regard to her considerable disability to undertake housekeeping tasks, by employing the labour which has been taken as the basis of the estimate on which damages have been awarded, 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 which she would otherwise be unable to afford. The essence of the matter is that the eight hours domestic assistance, which is the basis of the estimate on which the damages are awarded, represents the court's view of what

12 -12- she reasonably needs to compensate her for her own disabilities. With respect to the pre-trial, BRIDGE, LJ said: With the utmost respect to the judge, I cannot think, that as a matter of principle, it is a correct method of evaluating what is essentially an element in the plaintiff's pain and suffering and loss of amenity caused by the additional difficulties she has had in doing her housekeeping work, to take the figure which it would have cost her to employ someone whom she has not in fact employed in the past, to take that burden off her shoulders. What the judge certainly could have done, and I think should have done if the claim had been maintained, would have been to have added to the special damages the amount of the loss of part-time earning which the husband had sustained, which was a figure either proved or agreed as I have mentioned earlier in the sum of 930, which was necessitated by his obligation to spend his time assisting his wife in the home. But apart from that element of strictly special damage, I think the proper approach to this aspect of the case would have been for the judge to ask himself to what extent the

13 -13- difficulties which the plaintiff had had to contend with in performing her housekeeping duties in the face of the disabilities from which she suffered, ought to have increased the sum awarded to her for pain and suffering and loss of amenity. TEMPLEMAN L.J. agreed that the special damages of 1,689, including the cost of employing her sister, represented the actual loss suffered prior to trial, i.e. special damages. He went on to say that the sum lost by her husband for giving up his part time employment 930 was also an actual loss suffered prior to trial, to bring the total special damage figure to 2,619. In the end result, neither he or BRIDGE felt the final figure used by the trial judge, was in error. ORMROD L.J. said: "So far as the special damage is concerned, that, as I have always understood, represents actual loss, 'actual' as opposed to 'estimated' loss. So far as the general damage is concerned that loss necessarily has to be estimated." He went on to indicate that so far as the pre-trial loss is concerned, you have to look at the actual loss that has been sustained. He acknowledged that the plaintiff is entitled to some compensation for the loss of her ability to do housework prior to trial, but again, agreed with

14 -14- his fellow Justices, that this was properly included in the estimated general damage. He agreed that the method used by BRIDGE L.J. in assessing that part of general damage represented by the future cost, was appropriate and added lithe figure may be too high, in which case it can be scaled down, but it is as good a guide as one could think of." We now jump ahead to Western Canada. There have been, for almost two decades, a series of cases, particularly in Saskatchewan and Alberta, struggling with what is generally referred to in the Western cases as loss of housekeeping capacity. The Saskatchewan Court of Appeal dealt with the question in Fobel v. Dean [1991] 83 D.L.R.(4th) 385. This is the case that our Court of Appeal relied upon in Carter v. Anderson [1988] 168 N.S.R. (2d) 297. Fobel is the first detailed analysis of the loss of housekeeping services claimed, provided by a Canadian Court. Mrs. Fobel suffered from lower back spasms, which resulted in chronic pain, preventing her from performing some of her household duties. The evidence established that she was solely responsible for the care and management of the family home, including the cleaning, cooking, laundry, gardening, maintenance, looking after the children and doing all that is necessary to raise a family and look after a home. She worked in the family bakery six days a week from eight to five, as did her husband. Her husband did not help with the housekeeping. Mrs. Fobel

15 -15- worked approximately 40 hours a week at her housekeeping tasks. It is not necessary for me to detail the disabling injuries, which was set out in detail in the Court of Appeal Decision. She suffered chronic pain from an accident, which was aggravated by a second accident. VANCISE J.A. stated at page 392: To summarize the Trial Judge's finding, Mrs. Fobel developed post-traumatic stress disorder, characterized by depression, lack of energy, insomnia, irritability, cognitive distortion in the form of helplessness, lack of concentration, impairment of memory, nightmares and increased sensitivity to pain. VANCISE J.A. at page 396 set out concisely two issues needed to be addressed, where a loss of housekeeping capacity is advanced: This case requires us to define housekeeping capacity and determine the criteria to be used to calculate or quantify the loss of housekeeping capacity. He acknowledged the importance of Daly v. General Steam Navigation Co. Ltd. (Above), page 397 when he said:

16 -16- Daly is a convenient starting point in any consideration and definition of housekeeping capacity. The direction VANCISE J.A. was heading is clearly mapped out in his words at page 397, where after noting Mrs. Daly was compensated for her impaired housekeeping capacity, which included ordinary house working, such as ironing, vacuuming and making beds and that she had difficulty with the proper supervision of her children, stated: "It is not apparent that the award for loss of future housekeeping capacity which appears to be based only on future domestic assistance (a factor that I choose to identify as "direct labour") included compensation for those intangible elements of housekeeping capacity such as the care of the children and management of the household (the "management or indirect labour" factor). There is, however, recognition that the loss encompasses more than the simple replacement cost of domestic labour. VANCISE J.A. then went on to outline a number of approaches to quantify the loss of housekeeping capacity that had been suggested in cases and text, as follows: (1) Replacement of earning capacity The injured homemaker is compensated for earnings

17 -17- based on what she would have been able to earn had she worked outside the home. The difficulty with this approach is that compensation is determined by reference to outside activities. (2) Opportunity cost The value of the homemaking is calculated in terms of benefits that the victim gave up, that is, the alternate career, in order to be able to remain or to devote time to homemaking. The obvious difficulty with such a theory is that the value of homemaking is determined not by the homemaking activity itself but by some extraneous activity that could lead to widely disparate results. (3) Replacement cost The homemaker is compensated for the replacement cost of substituting the functions which the homemaker would have performed had she been able to do so. Such value is determined by the marketplace. (4) Substitute homemaker The homemaker is compensated for what it would cost to replace an injured homemaker to perform "all of the tasks", not just domestic labour, performed by a person of equal ability and qualifications.

18 -18- (5) Catalogue of services A homemaker's time is assigned to a number of occupations such as chef, nurse, counsellor, etc., and that time is then multiplied by the community's fair market salary of each occupation and totalled to arrive at a weekly salary. This is an attempt to quantify non-economic activities performed inside the home by reference to comparable activities in the marketplace. In VANCISE J.A.'s opinion, a combination of 4 and 5, substitute homemaker/catalogue service approach, would permit the courts to fairly value homemaking services and award realistic compensation for such loss. He went on then to separate the elements or components of homemaking, into: 1. Direct Labour. 2. Management 1. Direct Labour Included under this heading are those elements, which are traditionally known as ordinary housekeeping" matters, which are readily capable of replacement by paid domestic help and he listed such things as: 1. Food preparation.

19 Cleaning. 3. Clothing and Linen care. 4. Maintenance. 5. Gardening. 6. Physical Child Care. 2. Management VANCISE J.A. stated that this includes such intangible items as management and organization of the household: 1. Marketing (all shopping required for the operation of a home). 2. Food planning (including menus, quality, and amount of food). 3. Tutorial child care. 4. Activity coordination and organization. 5. Health care and counselling. He went on to note that in some cases, an injured party might be physically incapacitated and unable to fulfil the direct labour component, and yet perform certain managerial functions that do not require physical activity. That it would be up to the trial judge to determine, on the facts of each case, which elements have been impaired or lost. The second issue is the matter of how one compensates for such

20 loss. 1. Direct Labour Cost of replacement labour is relatively simple and straightforward Management This is not capable of precise calculations. VANCISE J.A. said at page 400 "What one needs to do is to provide meaningful evidence to the court, which enables it to evaluate the homemaking capacity in all its aspects, so as to fully compensate the victim for the loss suffered. He noted that economic models exist that would assist the court in arriving at a realistic value of homemaking capacity and that there is ample economic statistical evidence available of the amount of time spent by homemakers in the home and the economic benefit which they provide to a family. Specifics in this Case During the pre-trial period, Mrs. Fobel hired a cleaning service on one occasion only, at a cost of $ PRE-TRIAL VANCISE J.A. agreed that the trial Justice properly concluded an award for general damages for pre-trial loss or impairment of housekeeping ability must be awarded but noted that the trial judge did

21 -21- not quantify the amount of pecuniary loss and that the trial judge did not segregate the various components of pecuniary damages, so as to enable the Court of Appeal to assess the appropriateness of the global amount of general damages awarded for loss or impairment of housekeeping capacity. VANCISE J.A. confirmed it is not proper to evaluate the loss of housekeeping ability by reference to the replacement costs, when the disabled person is not in fact, employed at replacement labour. Stated at page 401, one must assess that loss as a loss of amenity, but in so doing, the replacement cost is a relevant component or element in arriving at the dollar value of the loss of amenity. Important, but only one element. There was evidence of the cost of domestic services, based on the cost of substituted services. She was also entitled to be compensated for the increased difficulty that she encountered in performing those tasks and in performing the managerial or indirect housekeeping tasks. Mrs. Fobel recovered $15, General Damages for pre-trial impairment of her housekeeping ability. LOSS OR IMPAIRMENT OF FUTURE HOUSEKEEPING CAPACITY VANCISE J.A. confirmed that the trial judge property noted, based on Daly, that is was not necessary for Mrs. Fobel to prove that someone will be employed to do the work in the future, in order to be entitled to an award for pecuniary loss of housekeeping capacity. Trial Judge

22 -22- erred however, in declining to make such an award. VANCISE J.A. suggests that the Trial Judge seems to have concluded, notwithstanding his finding that she would require future assistance that because she struggled through the pre-trial period and only expended $65.00, she would struggle through the future without any assistance. It should be noted that there was evidence of an expert in home economics. The evidence supported that Mrs. Fobel could do approximately 30% of the housekeeping she did prior to the accident. Court of Appeal noted that her youngest child would not normally remain in the house much longer and that this reduced the loss of future housekeeping capacity hours. VANCISE J.A. concluded at page 404, "there is no evidence of which I can base a calculation for management or indirect labour to fully compensate Mrs. Fobel. I am left with the position of being able, only to quantify the direct labour component. The court went on to do its calculations. It took into account Mrs. Fobel's life expectancy at the time of trial. The award was calculated at $79, It is rather curious that after Vancise J.A. labours to conclude accurately, there are two components to the economic loss, one labour and one management, then the court was unable to provide some limited recognition of the management component, bearing in mind the award is one of general damages. With respect to the inclusion of catalogue of services, this could add a serious time and expense factor to litigation. If strictly complied, would one have to bring evidence of

23 -23- the remuneration paid to a chef? A nurse? A counsellor? A financial manager? Bear in mind that in many, if not most cases, the management component is probably done while the labour is being performed, i.e. dishwasher, washer and dryer, mapping out meals, drafting grocery list, etc. etc. are very much overlapped. In my view, it would be sufficient to acknowledge that there is such a component for a Justice to consciously add it to the mix that produces general damages. To be specific, as suggested, is not likely to be warranted. How, for example do you define.27 hours to financial counselling in management.13 to nursing and to what end? Would it not suffice to simply acknowledge it is a component and as we do on all general damages, take it into account. Its quantification, other than marginally or generally, seem to me to be sufficient. Gross Up for Impact of Taxation It is necessary to adjust an award for future care, taking into account the impact of taxation. Similarly, with respect to an award for the future impairment/loss of housekeeping capacity, in order to take into account the amount of income tax payable on the income generating portion of the award. Mrs. Fobel recovered $79,698.2 for the loss or impairment of her future housekeeping capacity, and the matter was referred back to the Trial Judge to apply a gross up for income tax.

24 -24- NOVA SCOTIA SINCE FOBEl Our Court of Appeal, so far as I have been able to ascertain, has only touched upon the issue of loss of household capacity on three occasions since Fobel. The first is Woods v. Hubley. In Woods v. Hubley [1995] 140 N.S.R.(2d) 180. The Trial Judge stated, page 208/9: [107] I note here that the plaintiff has not claimed for the expense of domestic assistance between the date of the accident and the date of trial. In such case, it is not appropriate to make an award covering expenses of that kind. The Trial Judge set out portions of the Actuarial Report, which relied on Statistics Canada Publications, including: 1. Indicating the average separated or divorced female, time spend on domestic activities and then look into account Ms. Wood's marital status might change in the future and did calculation, including an additional time for shopping and services to age 75. The actuary incorporated in the Actuarial Report, information on the cost of Molly Maid. The trial judge accepted the actuarial assumptions, based on Statistics

25 -25- Canada and the assumption that Ms. Wood would require assistance until the age 75. The trial justice noted that the evidence indicated she was unable to perform many, but not all domestic tasks, by discounting.., they claim from $112, (which included a gross up of 47% for tax consequences), $40,971 and then applied the gross up of 47% to yield $60, The Court of Appeal, in 1995, 146 N.S.R.(2d) 97, reduced this award to $10, CHIPMAN J.A. concluded the Trial Judge's reasoning for this award was flawed, in that he assumed money would be spent for Molly Maid or some other paid housekeeping service, and there was no evidence in the five years from the date of the accident that she ever spent one penny on such services and therefore, little likelihood she would make any such expenditure in the future. CHIPMAN, J.A.'s thoughts on this first point directly clash with Fobel and Daley, which held a past history of payments, is not a prerequisite to the estimating of future cost, but remember there was no claim advanced for a pre-trial loss under this heading. Had there been, I venture to speculate, Chipman, J.A. would have labelled it primarily a financial economic loss, that had to be incurred in order for there to be a recovery and in that regard, I would have been in complete agreement with him.

26 -26- The estimated cost of future care or expenses are not founded on any absolute prerequisite of historical payments pre-trial. The second that the Trial Judge overlooked serious deficiencies in her mental and physical capacity, they would have, in all probability, impacted on her housekeeping capacity. In my view, several of the cases appear to have this weakness and almost every one of them seem to ignore the diminished requirements, i.e. family, home, apartment, condominiums, widowhood, senior citizen accommodations, etc. that normally come into play with the passage of time. CHIPMAN J.A. went on to indicate that given these two factors, a global award was the appropriate approach and fixed the sum at $10, JONES J.A. simply stated "I also accept the amount of $10, as reasonable for domestic assistance. The panel was Chipman, Jones and Flinn and there is no reference to either Daly or Fobel. The second is Landry v. McCormick Estate [1997] 161 N.S.R.(2d) 197. In this case, a 24 year old mother of two suffered continuing chronic pain which severely limited her enjoyment life and precluded full-time employment. She worked 16 hours a week as a cashier and her husband was forced to do most of the housework and child care. Mr. Landry was joined as a Plaintiff in the action. Claim for lost wages or

27 -27- income he otherwise would have earned had he not had to leave this employment to look after the children. He also claimed on a quantum meruit basis. Edwards, J. on p. 111 stated: [81] "It is probably a technical distinction but strictly speaking Mr. Landry has no claim against the defendant in his own right. I prefer to assess damages to Ms. Landry in trust to Mr. Landry" Edwards, J. found that Mr. Landry was doing about 35 pr cent more of the housework than would have been the case, if Mrs. Landry had not been injured and awarded Mrs. Landry the sum of $5,000. on a quantum meruit basis in trust for Mr. Landry. This covered the pre-trial and "Mr. Landry has at least several more years of the same ahead of him". This case went on to appeal and the Court of Appeal comprised of Clarke, C.J.N.S., Hart, and Pugsley, J.J.A.(1997) 161 N.S.R. (2d) 197 concluded the trial justice had made no error and dismissed the appeal. Interestingly, neither the Trial decision nor the Court of Appeal decision, rendered the 11th of September, 1997 made any reference whatsoever to Daly or Fobel. The Court of Appeal decision simply dismissed the appeal of all damage awards, including the one for quantum..., in the amount of

28 -28- $5, It is necessary to go to the trial decision, in order to appreciate that award. The decision of Justice Edwards is in [1997] 158 N.S.R.(2d) 97. In the trial decision, we see that Mrs. Landry's husband, Blair was a party to the action and he was claiming for wages he lost between December 3 and December 23, Mr. Landry was also claiming on a quantum merit basis for additional work he had to do in the household as a result of his wife's injuries. Mrs. Landry's evidence was that until November 1995, her husband had to do 90% of the housework, including cooking and child care. With respect to the time frame claimed in December, Mr. Landry left his employment because there was no babysitter available, and Mrs. Landry was unable to attend to housework or child care during this period. Justice Edwards went on to state that Mr. Landry was not entitled to receive both compensation on the quantum merit basis and reimbursement for the income he otherwise would have earned, had he not had to leave his employment in December 1993, and proceeded to deal with Mr. Landry's claim, strictly on a quantum merit basis. Edwards, J. stated page 111 "It is probably a technical distinction, but strictly speaking, Mr. Landry has no claim against the defendant in his own right. I prefer to assess damages to Mrs. Landry in trust for Mr. Landry. Justice Edwards reviewed the extent to which they shared housework, the additional work required in this area by Mr. Landry and awarded Ms. Landry the sum of $5, on a quantum merit basis, in trust for Mr. Landry. As already indicated, there is no reference at the Court of Appeal

29 -29- level of Daly or Fobel and Justice Edwards did his best to provide relief for such was clearly appropriate. The third is Carter v. Anderson [1988] 168 N.S.R. (2d) 297. Prior to Carter v. Anderson, there were some single Judge determinations. In Reid v. GooGoo (1993), 119 N.S.R. (2d) 207, Kelly, J. awarded $23,500., a figure which appears to have been in part, taking into account actuarial calculations, primarily assessing services provided by third parties. In Lawrence v. Bateman (1996),162 N.S.R. (2d) 257, MacAdam, J. awarded a global sum of $20,000. for her future loss of housekeeping capacity relying substantially on the P.E.I. Court of Appeal decision in Cairns v. Harris (1994), 117 Nfld. P.E.I.R. 216 which in turn relied upon Daly and Fobel. MacAdam, J., after noting he was not satisfied with the evidence with respect to loss in the pre-trial period, concluded for the past and future her ability to preform household tasks and management has been reduced by 75 per cent as a result of the injuries she suffered in the accident and he awarded a global amount of $20,000. loss of housekeeping capacity for the pre-trial period and a further global amount of $20,000, being the present value of the loss of housekeeping capacity for the future. In dealing with the future, he noted the actuarial

30 -30- calculation for the loss of future housekeeping was $39, and he did not accept some of the assumptions provided to the actuary. 3. WESTERN CANADA SINCE FOBEL In Alberta, Benstead v. Murphy [1992] 7 ALTA. L.R. (3 rd ) 38 (Q.B.). Plaintiff's expert argued pre-trial loss should be valued at $20, Defendant's expert at $17, Trial Judge awarded $5,000.00, lumped in with loss of amenities and loss of consortium. The plaintiff's expert recommended $70, for future housekeeping capacity. IriID Judge awarded $10, Trial Judge concluded that when the plaintiff completed a rehabilitation program, she would be able to perform future housekeeping activities at a much higher level than predicted by the plaintiff's expert. This case went on appeal and a decision rendered September 20 th, 1994 [1994] A.J.No The court, after referencing Fobel noted the Supreme Court of Canada, in decisions dealing with constructive trusts emphasized the importance and actual economic value of household services. Peter v. Beblow [1993] 1 S.C.R. 980 and specifically, McLaughlin J. at page Also mentioned was Sorochan v. Sorochan [1986] 2 S.C.R. 38 and Moge v. Moge [1992] 3 S.C.R The court acknowledged the importance of the Daly decision. Lieberman J.A. evaluated the evidence of housekeeping services rendered by family members as general, rather than special damages in arriving at the figure of $10,000.00, in addition to the award of $5, for loss of

31 -31- amenities, consortium and lost housekeeping work. In his view, the award should be all inclusive at $17, Interestingly, he makes the comment "In the case at Bar, any award to Wendy for her loss of capacity, to perform housekeeping work should include her claim for loss of consortium and for lost housekeeping work. In Acheson v. Dorey [1993] 138 A.R. 241 (QB). Plaintiffs economist advanced figures based on a loss of five hours per week for a pre-trial loss of $16, and post trial loss of $86, including the gross up. The trial judge accepted that she would require some assistance, but did not accept the five hours of assistance per week and awarded $8, in damages for pre-trial and $43, for future housekeeping services. The Alberta Court of Appeal, in a brief decision, rendered October 24,1994 [1994] A.J. No. 779 dismissed the appeal. This brings us to MCLAREN V. SCHWALBE [1994] 4 W.W.R Certainly, dramatically increased level of awards in this case bears very close examination. Accident January 22, year old mother. Three children. Severe injuries. Justice Ellen Pickard made the following awards: 1. Pain, suffering, loss of enjoyment and amenities of life 60, Past homemaking services 30, Future homemaking services 229,

32 Loss of future wages 5. Loss of Pension benefits 6. Special Damages, including loss of wages in the amount of $55, Medical expenses 8. Alberta Health Care Segregated Claim TOTAL 61, , , , , $ Mrs. McLaren convalesced for one year after surgery and at first, her new husband and three children did all ofthe house and ranch work, but she gradually resumed light housekeeping activities with some assistance from a neighbour. At trial, she indicated she was limited in her housekeeping abilities and had to reduce her standards and enlist the assistance of her husband and children, especially her 17 year old daughter who did most of the cleaning and helped with the cooking and laundry. She can no longer garden and the production offresh produce, she considered an important feature of life style and good health. She continues to handle the management of the home; however, the reorganization of the family workload, the lower level of food preparation and cleanliness have created problems for her children and her husband. Mr. McLaren, a mechanic, and they had dreamed of operating the ranch, but she was no longer available to assist. She cannot saddle a horse or mount without a block, but can ride bare back and does so about twice a week. She continues to do the books for the ranching operation, but has severe limitations. Continues to paint, raise

33 -33- rabbits, breed her dog. Before the accident, her greatest recreational pleasure was playing Polo, which was a family activity, skiing, skating, bicycling, curling and her swimming has been restricted. Pickard, J. followed Fobel. Her comments on the nature of the damage claim and the need for an evidentiary base, are worth siting. The need for an evidentiary basis is a common plea in the majority of cases that have attempted to address this loss. She said: [121] The claim for loss of capacity to perform homemaking services presents a challenge to some courts. There are a number of reasons for this: the services are provided outside of the marketplace; they are specialized to the situation and encompass a mind-boggling range offunctions; there is both a labour and management function; there is a "loss of enjoyment of life" aspect for some claimants; the claim requires that a proper evidentiary base be set out; expert evidence is usually necessary to assist the court; often there has been no payment out because there has been no true replacement of the services but a "making do" with lowered standards and assistance from family and friends; there is disagreement on how to categorize an award for pretrial loss. These potential problems in determining a just and fair compensation for the claim can no longer be used to deny it exists.

34 -34- [125] It is true that the characterization of the functions of the claimant in each case is not easy. There must be evidence by the claimant of lifestyle, duties and responsibilities, standards, the nature of the family unit and, in some cases, goals and aspirations. This evidence must be as precise as possible while recognizing that a "job description" analysis alone is inappropriate. Cooper-Stephenson and Saunders, in Personal Injuries in Canada (Toronto: Carswell, 1981), discuss a number of approaches and state at p. 223: Though it is true that care must be taken not to over-evaluate homemaking services by comparing tasks performed with others of specialized competence, it is also true that a homemaker's services to the family are unique in character. They are specialized in the sense that they are geared to the particular needs and desires of the family; and they have an almost unmatched quality which emanates from the personal interest and motivation of the provided. Indeed, they may often be compared to the managerial-executive functions of the owner of a personal, one-man company. She adopted the approach that the loss of housekeeping services

35 -35- prior to trial, must be assessed as a loss of an amenity when no replacement help was engaged, although the replacement cost is an element in arriving at the dollar value and expressly declined to follow the dissent in Fobel v. Dean. The evidence before Pickard, J. was that of the plaintiff, outlining the various functions in her role as a homemaker, mother and ranch wife. These estimates or guidelines were used by a chartered accountant called by her to calculate the loss. The defendant called a labour economist and a home economist and challenged the accountant's calculations. In particular, the accountant's assumptions, number of hours as being too high, failure to adjust for the fact that management and labour functions overlap and can even be performed simultaneously and that the hours should not include time for ranch work or for gardening, etc. There was an attempt in the evidence, to delineate and separate duties as labour or management functions and she indicated her total commitment on a daily basis, was hours, exclusive of her recreational life. She estimated 20 hours per week for ranch work, plus additional hours for doing books and special times, such as 70 hours working on haying. She claimed 11 hours a week from April to October, for gardening. Justice Pickard found the number of hours claimed as high and that given her recreational social life, she could not be working hours per day. On the other hand, she felt the defendant failed to

36 -36- take into account her work as a ranch wife. It is interesting that the Justice referred to the tradition in Western Canada of the farm wife cultivating the garden for the purpose of producing fresh produce and for preserving and that she viewed this as part of the loss of future homemaking capacity. Pickard, J. determined it was appropriate to assess the loss of ability to perform housekeeping services prior to trial, as the loss of an amenity. She said that this was a separate loss from the one that she assessed general damages for loss of pain and suffering, loss of enjoyment and amenities of life. What I am unable to ascertain is the description and boundary of this supposed loss of amenity. Everything I have read indicates that the loss of an amenity is a loss of some aspect of the enjoyment of life, of the pleasures of life. Did she include, in this specific loss of amenity, the interference with the pleasure Mrs. McLaren lost by the interference with her ability to play polo, horse back ride, swim, camp, work with the 4H Club, etc? It seems to me that the loss in relation to these types of activities, is the same loss that we subscribe to loss of amenities for all such pleasures, such as walking, playing sports, skiing, crafts making, or whatever pleasures were eliminated or diminished as a result of the injuries. Once again, in my personal opinion, we should not start a series of sub-categories of pain and suffering, loss of amenities, etc. These should all be reflected in the general damage award, not isolated

37 -37- and magnified. The pain is pain. Loss of life's pleasure is a loss and they are losses irrespective of the area they derive from whether personal, housekeeping, business, recreational or whatever. I have expressed in the past some concern for the use of Statistics Canada and other surveys and statistics that are taken from text books or publications and are not in any way tested by cross-examination and it is interesting to note that Pickard, J. did not take refuge in Statistics Canada figures because of her own personal view that Statistics Canada appeared to be heavily based upon urban communities. Pickard, J. did conclude that a woman with her recreational social life could not be working hours per day. Pickard, J. set general damages for loss of capacity to perform homemaking services pre-trial at $30, and for future housekeeping services, $190,350, grossed up at the rate of 20.4% for a total of $229,

38 SUMMARY A. The basic principle in assessing damages in claims arising out of personal injuries was stated by: Viscount Dunedin in Admiralty Com'rs v "Susquehanna", [1926] A.C. 655 (H.L.), adopted in Andrews v. Grand & Toy Alberta Ltd. The plaintiff ought to be put, in so far as money can do so, in the same position she would have been prior to the accident. In other words, full compensation for pecuniary loss. B. Loss or Impairment of Housekeeping Capacity 1. Pre-Trial It is clear from Daly and Fobel, the housekeeper victim is entitled to be compensated separately for her loss. In my view, the loss is both non-pecuniary and economic. That the more appropriate practice would be to segregate these two categories of losses and include in the one general damage award, compensation for any additional pain and suffering, loss of amenities, loss of enjoyment for such things as gardening, enjoying fully ones children, etc. etc.

39 -39- The Supreme Court of Canada in Andrews v. Grand Toy, disapproved of the itemization of damages. Dickson, J. said: It is customary to set only one figure for all nonpecuniary loss, including such factors as pain and suffering, loss of amenities, and loss of expectation of life. This is a sound practice. Although these elements are analytically distinct, they overlap and merge at the edges and in practice. To suffer pain is surely to lose an amenity of a happy life at that time. To lose years of one's expectation of life is to lose all amenities for the lost period, and to cause mental pain and suffering in the contemplation of this prospect. These problems, as well as the fact that these losses have the common trait of irreplaceability, favour a composite award for all non-pecuniary losses. ' This would leave the court with the task of quantifying, based on the evidence, the economic pecuniary loss. There is not likely to be any degree of a loss of amenity in most of the labour components of housekeeping capacity. Loss of amenities

40 -40- deal with the loss of enjoyment and quality of life and as Roscoe J.A. noted in Carter v. Anderson at page 305, "The award for lost capacity should not simply be part of the non-pecuniary damages as "an element of loss of amenities". Housekeeping capacity is ordinarily not an amenity. Its loss is not an intangible loss, compared to the appellant's loss of ability to dance, to skate or to ride horses. Roscoe, J.A. went on to note at page 306, "Managing ones home and keeping it clean and organized is important and necessary for the health and safety of the family. The partial or total loss of that ability has economic value, which should be recognized. In another case, it may be more appropriate to compensate most of the loss with a non-pecuniary award for loss of amenity, if for example, the plaintiff proved that he derives personal satisfaction from doing housework." Once you segregate the two headings of damages, then in my view, treating the economic loss requires evidence for the pre-trial stage of actual economic loss. (2) Future-Post Trial I agree that the situation is different with respect to the future economic loss, which is to be measured by the estimated economic cost of replacement. Future losses are not predicated necessarily on actual losses having been incurred in the past. The future loss has the two components, one labour and the second

41 -41- management and I express some concern as to how much reality exists or would result, following the direction in Fobel in this regard. With respect to the future loss of housekeeping capacity, there is a need in my view to assess carefully the myriad of contingencies. In Fobel, future loss was calculated with a starting point of 15 hours per week. Mrs. Fobel was 55.6 years of age at the time of trial, with a life expectancy of 27 years. This means the court projected the basis of 15 hours a week until she was 82.6 years old. This does not reflect, in my view, the realities that in most cases the housewife and mother has less responsibility when the children have left home (Carter v. Anderson). The family tends to change its lifestyle at or near retirement, often by spending periods of time away from home and at some point, usually disposing of the home and moving into either an apartment or condominium, which carries with it a considerable reduction in the time requirement. There is nothing in Fobel to indicate her husband's age and the prospects of her becoming a widow, which presumably would leave her only required to manage her own household, which by that time, might well be in a Senior's complex, inlaw apartment or Whatever, but quite probably, substantially reduced from what was required at the time of trial.