When a loved one is injured, you naturally want to help.  Many spouses, parents, and other family members really step up to the plate to assist by providing caretaking, companionship, nursing, childcare, and transportation. Many also contribute financially by, for example, taking time off work or quitting their employment to take care of their injured loved one, refurbishing their homes to make them accessible and provide accommodation, or perhaps even purchasing adequate accommodation to meet the enhanced needs of their injured loved one. 

Giving up a job, expending money on home renovations or buying accessible housing each have a big financial impact. The question is whether people taking on additional responsibilities or incurring expenses or a loss of income for the benefit of the injured person can be compensated through the personal injury lawsuit brought on behalf of the injured loved one? 

Is love, care and attention compensable in a personal injury lawsuit? Not always.

The law seems clear that love, care, and attention that the spouse, parent or another family member would otherwise normally provide are not compensable in damages. This is illustrated by this 2008 Alberta case, Wozniak (Next Friend of) v. Alexander, (upheld on appeal). The teenage plaintiff and five other people rented a motorboat for a fun afternoon of tubing behind the boat. The boat went into a “doughnut,” and was on a collision course with the tube so the plaintiff and her friend jumped off the tube. The defendant tried to steer the boat away from the tube, but the plaintiff was hit by a propeller which nearly severed her foot in two. She had a compound fracture in her heel with nerve damage, laceration of tendons and other muscle and soft tissue damage.  She required an ankle fusion and screws to hold the fractures in place. She also had other fractures in her lower leg and ankle.  Her recovery was difficult, and she could not walk properly, nor stand or walk for long periods of time. Her parents had to assist her greatly in her recovery, and they sued for damages in an “in trust” claim as part of her lawsuit. They were not successful, however, as the court found that the plaintiff’s parents did no more than any loving parent would do. The parents were awarded only $1,500 for reimbursement for the transportation costs of taking the plaintiff to her doctor and physiotherapy appointments.

Are damages ever available to compensate a spouse or family member for helping the injured person?

The courts have been willing to award compensation in situations where the spouse or family member goes above and beyond to take care of and assist their loved one. Regarding compensation for services provided for the injured loved one, the law seems clear that these services will be compensable where:

• The services are necessary as a result of the plaintiff’s injury;
• The claim is made by the plaintiff, and not the provider of the services (that is, it is an “in trust” claim);
• What is compensable is the value of the services to the plaintiff;
• The maximum value of such services is the cost of obtaining the services outside the family, by an independent or third party provider; and
• Where the opportunity cost of the caregiving family member is lower than the cost of obtaining the services independently, the court will award the lower amount. 

This 2007 Alberta case, Labrecque v. Heimbeckner,  illustrates what type of care and assistance may be compensable. The plaintiff was a passenger in a vehicle involved in a high-speed collision with an RCMP vehicle. The plaintiff was thrown from the vehicle and suffered severe orthopedic and cosmetic injuries and a traumatic brain injury. Before the accident, the plaintiff suffered from a sleep disorder which she treated by taking too many prescription drugs. She suffered from untreated drug dependency and personality disorder, pre-existing conditions which were exacerbated by the accident. Her medical doctor phoned her father during her recovery stage and alerted him that the plaintiff was not coping well on her own and needed additional assistance with organizing her medical resources and various caretakers. The father and his wife, the plaintiff’s stepmother, took care of the plaintiff, helping her with housekeeping and other chores, as well as with transportation to various medical appointments, where they kept her company and where they were needed to ensure her care plan instructions were properly received and understood. 

The father and stepmother claimed for compensation for their assistance but were not allowed compensation for trips to visit the plaintiff or monitoring her progress and convalescence, as these actions would have been expected from any parent. They further claimed for their services in continuing to operate the plaintiff’s business while she was incapacitated, but this claim was also disallowed as it outside the scope of an in trust care claim.  Costs involved with the breakdown and repair of her vehicle were also disallowed for the same reason. The cost of transportation to her various appointments was allowed, as well as compensation for the significant amount of time the father spent in caring for his daughter, discounted by one third to account for the likelihood that not all of the hours claimed were actually compensable. In total $61,410.88 was allowed to the father and stepmother for their services under this head of damages. The father and stepmother had also arranged for the plaintiff and her teenage son to move to Alberta and live near them, to be closely supervised by the father. The father purchased a property and refurbished it to make it habitable. They were awarded compensatory damages for the costs of the property and refurbishment, in the total amount of $230,000.

Can the spouse or family member sue the defendant directly?

There seem to be limited circumstances in which a spouse or family member can sue the defendant directly for compensation. This is illustrated by the 2012 case of T.(A.)(Next Friend of) v. Mah, in which a child was born severely handicapped due to the medical negligence of the doctor. She would require ongoing, intensive care for the rest of her life. Her mother had a Masters degree and had intended to go on to achieve a Doctorate with the intention of pursuing a career as a psychologist. The child’s significant care requirements meant that the mother worked part-time and had been unable to achieve her planned graduate degree. The trial judge allowed a loss of income claim, past and future, by the mother.  

You can learn more about the sources of compensation available to you following a motor vehicle accident in the CAM LLP Injury Law Handbook. The facts of your case are always going to affect how the law applies, and what options are open to you, so it is always wise to take advantage of a free consultation to confirm your rights and obligations.

Whether you can be compensated for helping an injured loved one will depend on your specific situation. If you would like further information regarding your possible compensation, please CONTACT us for a free consultation.