This Court of Appeal personal injury case has only affirmed, and not changed, the law surrounding loss of capacity claims, including loss of renovation, landscaping , house-cleaning, and housekeeping Capacity ( Reynolds v. M. Sanghera & Sons Trucking Ltd.,2015 BCCA 232). We focus on loss of landscaping capacity as well as loss of renovation capacity claims in motor vehicle accident cases.
The claimant was involved in a multi-vehicle car accident on the highway between Naramata and Vancouver. The other driver admitted their negligence in causing the collision. The claimant suffered soft-tissue type injuries in the accident. He had not fully recovered from those injuries and was left with anxiety, particularly when driving a vehicle; headaches; neck pain; lower-back pain; sleep disorder; and severe vertigo.
It is important to understand that legal burdens required to prove past loss of capacity and future loss of capacity are different. The burden of proving a past loss of earning capacity is proof on a balance of probabilities. Some say that the past loss has to be “more likely than not”.
The burden of proof of future events requires a “real and substantial possibility” of a future event occurring that could result in the claimant’s loss of capacity. Once a real and substantial possibility of a future loss is shown, the second stage of the analysis for future loss is an assessment of the likelihood of that possibility. A money award for future loss of capacity therefore always requires a judge to find that the claimant’s medical condition limits the ability to perform the relevant tasks.
In today’s case review, the court allowed the appeal with respect to the award for past loss of earning capacity and substituted the award of $140,000 with an award of $75,000; allowed the appeal with respect to the award for future loss of earning capacity and substituted the award of $300,000 with an award of $125,000; dismissed the cross appeal with respect to the award for cost of future care and the claimed expenses for Pilates classes; allowed the cross appeal with respect to the award for past loss of renovations capacity and substituted the award of $11,304 with an award of $22,607.25 and; allowed the cross appeal with respect to the award for past loss of landscaping capacity and substituted the award of $6,000 for an award of $8,250.
The Court of Appeal considers loss of renovation capacity as a sub sect of loss of housekeeping capacity. Judge Garson for a unanimous 3 person panel of the Court of Appeal stated,
“ In my view, McTavish stands for the proposition that a plaintiff is to be compensated for the value of home and yard work they would have performed but for the accident. It is true that home and yard work can have a collateral effect on the capital value of a property, either positively or negatively. However, such maintenance and improvement work is often undertaken not as a capital investment, but as part of making and maintaining a home. Mr. Reynolds testified that he had a “vision” for the home, and he hoped to “improve” the home and yard in an effort to achieve this vision. The judge appeared to discount the award on the basis that any improvements to the home constituted a capital investment, of which Mr. Reynolds would have only received 50% of the benefit (as his spouse co-owned the property). In my opinion, this is not in accordance with the approach set out in McTavish. Lost capacity for house and yard work is compensable at reasonable rates because “housework always has to be done”: McTavish at para. 46. The value of this lost benefit should not be discounted just because it is possible that Mr. Reynolds’ spouse may also receive an increase in the value of her interest in the property.
 For those reasons, the judge should not have discounted the awards on account of Mr. Reynolds’ spouse’s interest in the property. I would allow the cross appeal of the judge’s valuation of the past loss of renovations capacity by increasing the award of $11,304 to the full $22,607.25 claimed by Mr. Reynolds.”(emphasis added)
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Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.