Introduction
Overview of Housekeeping Claims, The Pre-McIntyre Approach
The right of an injured plaintiff to advance a claim for loss of housekeeping capacity is well established in Canadian law. In the Supreme Court of Canada decision of Peter v. Beblow1, the Court affirmed that there is no logical reason to distinguish domestic services from other contributions. The Supreme Court recognized that household services are of significant value to the family of the injured party.
Although Peter v. Beblow is a trusts case, the decision is judicial recognition of the fact that unpaid work is a valuable commodity that can be quantified. This principle has extended into the realm of personal injury law where loss of housekeeping capacity is a head of damage routinely claimed by plaintiffs.
However, evaluating housekeeping losses in personal injury cases has not always been straightforward.
In the seminal 1991 decision of Fobel v. Dean 2, the Saskatechwan Court of Appeal examined the issue of quantification of housekeeping damages.
In Fobel, the Plaintiff was able to perform approximately 30% of her housekeeping responsibilities in the period before trial with “diminished efficiency, pain and discomfort.” The balance of her housekeeping tasks remained undone. The trial judge awarded non-pecuniary damages, which included damages for past loss of housekeeping.
The Court of Appeal in Fobel held that in the absence of replacement labour, it was incorrect to evaluate a plaintiff’s past loss of housekeeping capacity by reference to replacement value. Where there was no replacement labour, the loss was properly compensated as a component of general non-pecuniary damages. Furthermore, the pecuniary damage claim for future lost housekeeping was based on a replacement cost approach using a combination of the “substitute homemaker” and “catalogue of services” approach, which catalogues the plaintiff’s housekeeping functions and then allocates those functions between direct labour (such as cooking and cleaning) and household management. Each category was then quantified based on the fair market salary of each occupation and totalled to arrive at a weekly salary.
Since 1991, the Fobel case has been considered and applied in numerous cases in different provinces and has remained one of the leading cases in the area of loss of housekeeping capacity. However, the Fobel approach has been criticized as being “unnecessarily complex”.
Notes:
1 (1993), 101 D.L.R. (4th) 621 at pp. 647-8 [1993] 1 S.C.R. 980
2 (1991), 83 D.L.R. (4th) 385
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