Should Loss Of Housekeeping Capacity Be A Separate Head Of Damage?

British Columbia courts have recognized the principle that loss of housekeeping ability can have an economic value for which damages may be awarded. However, how that value should be assessed and whether a separate award should be made continues to be the subject of judicial discussion. As the Court of Appeal in the recent case of Kim v. Lin, 2018 BCCA 77 [Kim] said, valuing loss of housekeeping capacity continues to be a "somewhat vexing issue."

Two recent appellate decisions provide some useful analysis of this issue. In the aforementioned Kim decision as well as in the further decision of Riley v. Ritsco, 2018 BCCA 366 [Riley], the Court of Appeal considered (a) when damages should be awarded for loss of housekeeping capacity and (b) whether that loss should be assessed as a part of the non-pecuniary damages award or under a separate head of damages. With respect to the latter issue, the Court considered an important factor to be the plaintiff's need-to-date for external assistance to make up for the alleged diminished ability to perform housework.

The two cases were decided by different three-justice panels. At first glance it may seem that the two decisions are contradictory. However, a closer review indicates that the different outcomes can be explained by the facts of each case.

The Cases

Kim v. Lin, 2018 BCCA 77

Kim was decided first, with reasons issued on March 6, 2018. Of particular note, the trial judge had awarded a whopping $418,000 for loss of housekeeping capacity, which well exceeded the $70,000 award that had previously been stated to be the high end of the range (see Liu v Bains, 2016 BCCA 374 [Liu]). Of additional note is the fact that the trial judge awarded loss of housekeeping capacity in lieu of an "in trust" and future care award.

In that case, the 27 year old plaintiff suffered a profound loss of capacity to do housework. Her incapacity extended beyond mere difficulty or inefficiency in performing household tasks. The stress from the amount of work required negatively affected the plaintiff's health so much that she could not handle the demand. Although she did not hire any external help, her husband needed to quit his own job to assist with the housework and childcare. The plaintiff's mother-in-law provided financial and housekeeping assistance as well.

The Court of Appeal upheld the trial judge's decision to award loss of housekeeping capacity as a separate pecuniary head of damage. The Court found that the...