A personal injury claimant often seeks financial compensation under several heads of damages to adequately address their losses. In many cases, a plaintiff’s injuries can substantially impact their ability to perform their typical pre-accident chores, such as cleaning, yard work, and cooking. Depending on the severity and prognosis of their symptoms, this impact may be temporary or persist for an undetermined amount of time.
In a recent decision from the British Columbia Court of Appeal, the Court was asked to consider whether a trial judge’s award of $80,000 for future loss of housekeeping capacity was appropriate, as the expert evidence presented at trial suggested that the plaintiff’s symptoms would likely improve.
Motor vehicle accident results in soft tissue injury and malalignment of hip
In Howes v. Liu, the plaintiff/respondent was injured in a motor vehicle accident on December 18, 2014. She was a front seat passenger in a vehicle which her husband was driving when it was rear-ended by the defendants’ vehicle at a highway speed. Their vehicle spun, crossing two lanes of traffic, and struck the center median before it came to a rest facing oncoming traffic. As a result, she commenced a lawsuit against the defendants, who accepted liability for the accident.
As a result of the accident, the respondent sustained soft tissue injuries to her lower back and a hip malalignment. She was 49 years old at the time of the accident and was employed as a corporate controller. Following the accident, the respondent missed one day of work and did not suffer a loss of income. Before the accident, she was active, social, and participated in occasional sporting events. She and her husband divided the household chores, and it was estimated that she spent 12 to 15 hours per week on housekeeping activities.
Three physicians provide evidence of injury at trial, with possibility of 85% improvement in symptoms
Toward the end of 2015, the respondent began struggling with her physical health and experienced pain in her lower back, hip, and legs. She continued to attend rehabilitative treatments and engaged in at-home exercises. She experienced anxiety, particularly while driving, and did not participate in her pre-accident recreational activities.
At trial, the respondent was 55 years old and continued to experience daily pain in her lower back, testifying that her pain had worsened over the years. Three of her physicians were present at the trial to present evidence.
One doctor, Dr. Garcia, indicated that the respondent sustained “a traumatic myofascial injury to her low back” which would be “intermittently symptomatic for the foreseeable future with periods of increased symptoms followed by periods of relative comfort.” Evidence provided by Dr. Calvert, an orthopedic surgeon, found that the respondent had sustained “soft tissue injury and mechanical back pain” and as she was unlikely to ever fully recover, a “course of active rehabilitation was recommended, as was an ergonomic assessment of her workspace.” Finally, a report by a third doctor, Dr. Helper, indicated that the respondent should undergo a “prolonged course of rehabilitation” and stated that under the “right guidance,” she was expected to experience over 85% improvement in her symptoms with “minimal functional limitations, long term.”
Non-pecuniary and housekeeping damages appealed as “inordinately high”
The defendants appealed the trial judge’s decision on the following grounds, claiming that the trial judge:
- Misapprehended the evidence in finding that the respondent was left with constant pain which would not improve and, therefore, awarded high non-pecuniary damages and loss of housekeeping capacity;
- Made an “inordinately high” award for non-pecuniary damages of $95,000; and
- Made an “inordinately high” award for loss of housekeeping capacity of $110,000 ($80,000 for past and $30,000 for future).
The Court of Appeal began by noting that the standard of review in damage assessments is highly deferential to the trial judge’s decision, referring to the decision of Woelk v. Halvorson. In the Woelk decision, the Supreme Court of Canada stated that “…a Court of Appeal should not alter a damage award made at trial merely because, on its view of the evidence, it would have come to a different conclusion.” Instead, an appellate court may only intervene when it:
“… comes to the conclusion that there was no evidence upon which a trial judge could have reached this conclusion, or where he proceeded upon a mistaken or wrong principle, or where the result reached at the trial was wholly erroneous.”
At trial, the respondent (plaintiff) provided considerable evidence concerning the extent of assistance she now required to perform her pre-accident housekeeping duties, which factored into the trial judge’s decision and corresponding awards. On appeal, the Court found that the evidence sufficiently demonstrated that she could not perform her usual pre-accident household chores. Therefore, it was open to the trial judge to make a pecuniary award based on the evidence.
However, the appellants objected to the amount of the award and alleged that the trial judge failed to address various medical evidence that suggested the respondent’s symptoms would improve with appropriate medical and rehabilitative treatment. The Court of Appeal noted that the trial judge did not provide his findings on the issue of prognosis and whether he accepted the expert’s opinion and found it challenging to review the award amount without the benefit of the judge’s findings.
The Court of Appeal acknowledged that the “judge seemingly chose a number at random without explanation, again leaving this court to speculate on its basis”. However, the Court upheld the award of $30,000 for past loss of housekeeping. However, concerning future loss of housekeeping, the Court indicated that this award would depend on whether the respondent’s symptoms would likely improve over time. The Court was then faced with the question of whether the matter should be remitted to the trial court or resolved at the Court of Appeal.
Since the evidence provided at trial consistently suggested that her condition would likely improve somewhat, the Court determined that an award of $80,000 could not be sustained. As a result, the Court set aside the trial judge’s award for future loss of housekeeping and substituted an award of $55,000.
Contact the Personal Injury Lawyers at Meridian Law Group in Vancouver for Skilled Representation in Motor Vehicle Accident Injury Claims
The experienced personal injury lawyers at Meridian Law Group regularly advise clients throughout the lower mainland and across British Columbia on their options moving forward following an accident. If you have sustained serious injuries due to someone else’s negligence, our lawyers will help you navigate the claims process so that you can focus on your recovery. Whether your injury results from a car accident, slip-and-fall accident, or assault, we work to ensure that our clients are positioned to recover maximum compensation. Contact us at 604-687-2277 or reach out online to schedule a consultation with a member of our personal injury team.