If you are a housewife or homemaker chances are that you are not living the extravagant lifestyle of the “Real Housewives” as depicted in the new television series, the Real Housewives of Vancouver (debuts on April 4, 2012). More than likely your family depends on you for tasks, such as cooking, cleaning, laundry, shopping, home repair etc. and therefore if you are injured in an accident your ability to provide those services for yourself and others is affected. In this column, I talk about ICBC benefits available for the loss of your ability to do household tasks and additional damages available (if someone else is at fault for your accident) for the loss of those services. I will leave discussion on the value of the “Real Housewives“ to the gossip columnists.
ICBC is required to provide some disability coverage for homemakers (defined as the member of a household who, without payment, does the majority of the housekeeping for the household), under the legislation. Unfortunately, the coverage they are required to provide is minimal and therefore you are not likely going to see much, if any, money or assistance from ICBC when you need it most.
In essence, if you are a homemaker and you are injured in a motor vehicle accident, the legislation requires ICBC to reimburse you for expenses incurred to hire a person to perform your household tasks to a maximum of $145 per week (less a 7 day waiting period) provided that:
you are “substantially and continuously” disabled from regularly performing most of your household tasks within 20 days of the accident;
you are disabled for a period of more than 7 days; and
the household tasks are not performed by a member of your family.
Added up, the most ICBC is required to pay (as legislated by the government) is $7,395 per year. Statistics Canada says that the average hourly rate for housekeeping in British Columbia is $15.46 per hour (as reported by Brown Economic Consulting Inc.). This works out to 9.38 hours per week or 1.34 hours per day. While the amount provided by ICBC is somewhat inadequate for those who work full-time and do not have children (according to Statistics Canada, men average 2 hours per day and women 3 hours per day, not including time for shopping and services), they are grossly inadequate for someone who has children or stays home full-time. Further, the fact that the section requires ICBC to reimburse the homemaker, instead of paying the money like wage loss benefits is problematic as many personal injury clients are not in a position to pay for those costs up front.
If you are not at fault for the accident there is the potential to claim damages for the loss of your ability to perform household tasks (in whole or in part) beyond the legislated amounts. This loss is referred to in the case law as loss of homemaking capacity or loss of housekeeping capacity. In 1995, after a decision of the BC Court of Appeal called Kroeker v. Jansen, it became settled law that “housekeeping and other spousal services have economic value for which a claim by an injured party will lie even where those services are replaced gratuitously from within the family.”
So, what is the value of a loss of homemaking capacity claim? It depends on the facts of the case but it can be generally summarized as follows:
Where you hire someone to provide replacement services you will recover your reasonable out of pocket expenses for those replacement services. In this case, they are often categorized as “Special Damages”;
Where family and friends provide replacement services, you will recover the cost you would have incurred if you had hired someone to provide those services. In these cases, the damages may be framed as damages for “Loss of Homemaking Capacity” or an “In-Trust” claim for those who provided the services;
Where you do not hire anyone, no one volunteers to help and you simply suffer through it, you will generally recover your loss of homemaking capacity claim in the form of increased damages for pain and suffering, called “Non-Pecuniary Damages”;
You can also have a combination of the above.
In conclusion, if you are not at fault for your accident and you are unable to perform your regular homemaking duties, such as: meal preparation, cleaning, laundry, outdoor cleaning, sewing, household maintenance or repair, gardening, pet care, plant care, household paperwork, grocery shopping and unpacking, other shopping, parenting, driving children or family members to activities or services, than you are entitled to claim damages for this loss.
If you think you have a loss of homemaking capacity claim that is not being recognized, consider seeking legal advice. Damages for loss of homemaking capacity can be significant; particularly where injuries are permanent and therefore they should not be overlooked.
*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.