Carfra Lawton LLP | Victoria BC

In Trust Claim Allowed for Care Provided by Defendant

The BC Supreme Court recently awarded a plaintiff nearly $350,000 in trust for care provided to her by her husband, who was the at-fault defendant [James v. James, 2018 BCSC 603].

About 4 years before trial the plaintiff was a passenger in a vehicle driven by her husband, when he lost control of the vehicle due to heavy rains. Liability was admitted.

As a result of the accident, the plaintiff was rendered an “incomplete quadriplegic” and was dependent for all personal care activities. With few exceptions, Mr. James provided 24-hour care to the plaintiff from the time of her discharge from rehabilitative care until the time of trial. At trial, defence counsel argued that an in trust award for the care provided by Mr. James would allow the defendant to benefit from his own tortious conduct.

Relying on the decision in Knight v. Knight, 2014 BCSC 1478, the court held that a plaintiff is not barred from recovering for services provided by a family member merely because that family member is a party to the action. The court observed that, despite its name, an “in trust” award is more properly characterized as compensation to the plaintiff not to the caregiver. The award compensates the plaintiff’s reduction in ability to perform household tasks, even if those tasks are performed gratuitously by a family member. The court noted that an in trust award is not dependent on whether or not the defendant is insured.

In a pithy comment on the basis for its decision, the court noted:

[143]     …an in trust award in this context avoids a windfall to the insurer taking advantage of a family member’s gratuitous care, even if that family member is the tortfeasor. This may not be a perfect solution but surely it was a reasoned choice.

Case summary by Andrew Buckley