This child care costs case (Tsalamandris v. McLeod, 2012 BCCA 239) was an appeal of a $740,000 award for loss of future earning capacity and a $135,050 award for cost of future care made at trial for injuries sustained in two motor vehicle accidents. The appellants admitted fault for the two car accidents accidents and the trial judge concluded that the injuries were indivisible and assessed them on that basis.
The British Columbia Court of Appeal allowed the appeal to the extent of reducing the cost of future care by applying a contingency of 10% in respect of the cost of a Pilates programme and the respondent’s share of the cost of a membership in a community centre. However, the Court found that the cost of child care was a cost incurred in order to undertake a rehabilitation programmes and were caused by the accident and are compensable.
In the first car accident the injury claimant was driving south on Granville Street towards the Vancouver airport and a car behind then drove into the back of the claimant’s car. The car was driven by the defendant Ms. MacDonald. The claimant said that the accident felt like a considerable amount of force. Her body hit the back of her seat and she remembers having a sore head and back. She went to UBC Hospital right away and subsequently went to massage therapy, before seeing her family physician.
The second accident happened almost two years later when the claimant was parked next to the curb, and sitting in the driver’s seat. The claimant’s young daughter was in her car seat in the back seat, and the claimant twisted sideways from the front seat to strap the daughter into the car seat. While in this twisted position, the claimant suffered the second accident. The claimant’s first thought was for her unborn baby, as she was then approximately seven months’ pregnant. She was taken to St. Paul’s Hospital and initially the fetus was moving quite rapidly and eventually the movements calmed down. The claimant was told that it was safe to leave the hospital.
The trial judge awarded $18,000 as damages representing 18 months’ child care costs. In upholding this award the Court of Appeal stated at paragraph 77:
…I cannot conclude that the trial judge erred in making this award. She properly recognized that the respondent’s residual earning capacity required rehabilitation which in turn involved incurring child care costs. These costs would not have been incurred for this reason, if the accidents had not occurred. In these circumstances, the award made by the judge was sensitive to the practical realities confronting the respondent and was fair in the circumstances.
Posted by Personal Injury Lawyer Mr. Renn A. Holness B.A., LL.B.