ICBC homemaking benefits versus loss of housekeeping capacity
ICBC, as a government auto monopoly, has special legal rights. These rights allow ICBC to deduct benefits they pay from any court award against a guilty driver. This means that car accident victims obtaining court awards against at fault drivers must deduct ICBC benefits from their money award. This includes benefits for physical therapy, homecare, homemaking and loss of income.
In a stunning decision, however, the Court of Appeal refused to deduct a $40,000 award for loss of housekeeping capacity. This despite ICBC agreeing to pay for homemaking benefits. (Blackburn v. Lattimore,2023 BCCA 224).
The Blackburn Case
The trial judge awarded damages for injuries resulting from an accident between a bus and another vehicle. The reasons for judgment are indexed at 2021 BCSC 1417. The award included $180,000 for pain and suffering, $570,000 for future loss of earning capacity, $40,000 for loss of housekeeping capacity, and $144,115 for future care.
The entire $40,000 award for loss of past and future housekeeping capacity was deducted by the trial Judge. This was done on the basis that ICBC had agreed to pay homemaking benefits until the entire award was utilized. The appellant made two arguments. First, she claimed that the arithmetic of the judge is incorrect, as ICBC had paid $9,275.58 in housekeeping benefits, and the remaining value of the Part 7 benefit was approximately $25,000. Second, she contended that the necessary correspondence between the award and the benefit available under the legislation was absent. The Court of Appeal agreed with her second argument and therefore did not address the first.
The Court of Appeal overturned the ICBC benefits deduction. In a unanimous decision, the distinction between awards for loss of housekeeping capacity and damages for the cost of future care was put this way:
[35] As can be seen in that passage, this damages award [ loss of housekeeping capacity] is not limited to reimbursement for specific services provided by hired persons. As contemplated in McTavish and O’Connell, it compensates for the value of the housekeeping work that would have been done by the appellant, even if no person was or will be hired for the task, and is expressly for loss of the ability to work. The recoverability cost method inherent in s. 84 of the Regulation, which reimburses for expenses actually incurred, lacks correspondence with the tort award in this case.
The appellant’s benefits for past housekeeping services ($9,275.58) were however properly deductible. There may be instances where a failure to deduct a future ICBC benefits for loss of housekeeping capacity would result in double compensation, but not in this case.
Key takeaways for loss of housekeeping capacity claims
Unlike cost of future care items, damages for loss of housekeeping capacity are not inherently damages that compensate for the expenditure of money. Instead, as explained in jurisprudence, they are a specific award to compensate for loss of the capacity to do housework.
Several key principles emerge from this case for loss of housekeeping capacity :
- A loss of housekeeping capacity relating to the ability to do work can be compensated by a pecuniary award;
- Such a pecuniary award can be assessed with reference to the cost of replacement services; and
- A plaintiff’s highly personal decision not to hire outside help does not affect entitlement to the award or reduce its amount, even if family members provide gratuitous assistance.
Key takeaways for ICBC accident benefit claims
Several key principles emerge from this case for ICBC deduction under s. 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231:
- Section 84 reimburses only expenses incurred from hiring others, who may not be family members – much like future care expenses, which inherently involve payments to others that are susceptible to reimbursement and are covered in cost of future care
- The purpose of the s. 83 deduction is two‑fold: to determine the amounts that will be paid to the plaintiff immediately, and to prevent double compensation
- s. 84 is not intended to compensate for the economic losses occasioned by the plaintiff in the work of housekeeping
- the rationale in s. 84 of covering a specific expense incurred by the plaintiff is contrary to the broader theory of a housekeeping capacity award discussed in the seminal authorities above, and, by its nature, increases the likelihood of under‑compensation, particularly for those, often women, who are not in a position to bring in outside help