McKee v. Hicks, 2023 BCCA 109 Part 2

Full Decision

In Part I of my reporting on this case, which can be found here, I looked at the court’s decision regarding the award of damages for loss of future earning capacity. The same decision also addressed the circumstances of when an award of damages for loss of housekeeping capacity should be awarded and how.

By way of background, the plaintiff/appellant broke his arm when he was five years old and the defendant/respondent was an orthopaedic surgeon whose negligence in the treatment of the plaintiff’s arm resulted in permanent deformity. The plaintiff was 19 at the time of trial. One of the issues at trial was whether an award for future housekeeping would be appropriate where the plaintiff has not paid for such services in the past, and might not do so in the future.

Specific to this case, while the plaintiff had experienced some symptoms and limitations over the years due to his deformed arm, the evidence suggested that such limitations were short-lived and that he was fully functional. The trial judge awarded the plaintiff $110,000 for general damages and loss of housekeeping capacity and refused to order a separate amount for the latter. The plaintiff appealed. The defendant took the position that there should be no such award at all since the plaintiff never paid for housekeeping services and as such did not experience a financial loss.

The Court of Appeal started its analysis by referring to Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178 which stands for the proposition that “pecuniary damages can be awarded to plaintiffs for loss of housekeeping capacity where relatives or friends provide services without payment,” as the loss of the housekeeping capacity is the plaintiff’s, not the family’s. As the Court noted in McTavish v. MacGillivray, 2000 BCCA 164 at paragraph 63:

“It is equally well established that the loss of housekeeping capacity is the plaintiff’s and not that of her family. When family members have gratuitously done work the plaintiff can no longer do and the tasks they perform have a market value, that value provides a tangible indication of the loss the plaintiff has suffered and enables the court to assign a specific economic value in monetary terms to the loss.”

The court noted that a loss of housekeeping capacity award can be part of the general damages award, as the trial judge had done in this case, or can be a separate head of damages. The court quoted with approval the cases of McTavish v. MacGillivray 2000 BCCA 164, Liu v. Bains, 2016 BCCA 374 and Kim v. Lin, 2018 BCCA 77, all of whom held that while the trial judge has discretion on how to characterize the loss, generally speaking (as noted in Liu v. Bains (supra), at paragraph 26):

“treating loss of housekeeping capacity as non-pecuniary loss may be best suited to cases in which the plaintiff is still able perform household tasks with difficulty or decides they need not be done, while remuneration in pecuniary terms is preferrable where family members gratuitously perform the lost services, thereby avoiding necessary replacement costs.”

Ali v. Stacey, 2020 BCSC 465 considered all 3 decisions and laid out the steps for the Court to follow when considering an award for loss of housekeeping capacity:

  1. Should the loss be considered as pecuniary or non-pecuniary?
  2. If the plaintiff is paying for services provided by a housekeeper, or family members or friends are providing equivalent services gratuitously, a pecuniary award is generally more appropriate.
  3. A pecuniary award for loss of housekeeping capacity is an award for the loss of a capital asset, and a holistic valuation may be entirely appropriate, versus a mathematical calculation.
  4. Where the loss is considered as non-pecuniary, in the absence of special circumstances, it is compensated as part of a general award of non-pecuniary damages.

This reasoning was endorsed by the BC Court of Appeal and as it stands, this case should be very helpful and persuasive to all of us when we advance a claim for loss of housekeeping capacity.

Written by

Corina Bachmann is the principal of Bachmann Personal Injury Law. With offices in Simcoe, Lindsey and Toronto, Corina and her staff provide representation for Ontarians injured through the negligence of others.