Cleaning Up on Housekeeping Claims

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Cleaning Up on Housekeeping Claims

Canadian Insurance's Legal panel Report

By Lauren Bloom and George Kanellakos on April 15, 2010

In Canada, housekeeping claims have long been considered general damages or out-of-pocket expenses. In the past, housekeeping claims and/or awards have been modest and often were not particularized through any detailed evidence. Yet, the recent Ontario Court of Appeal decision of McIntyre v. Docherty sets out the new categories of housekeeping claims available to plaintiffs–these changes will prompt more scrutiny of housekeeping claims as they could result in hefty awards at trial and should prompt brokers and adjusters to pay attention to the documentation they keep on specific clients and cases.

Case of McIntyre v. Docherty
In April 2000, McIntyre was involved in a motor vehicle accident resulting in chronic pain, fibromyalgia, depression and anxiety. McIntyre was described as a “neat freak,” and did the bulk of the housework. After the accident, she experienced pain but she was able to do most of her housekeeping responsibilities with gratuitous help provided by her family.

The evidence presented to the court through testimony of an economist and the plaintiff included the extent of McIntyre’s pain and suffering in performing housekeeping tasks, her high housekeeping standards, and the impact of her injuries on those standards, her loss of ability to do tasks she had previously enjoyed, and the impact of her pain on her relationships with others. Evidence regarding the plaintiff’s change in life circumstances (the birth of her children and a bigger home) was also presented to the jury.

In McIntyre, the trial judge instructed the jury to consider three separate categories of housekeeping claims (“inefficiency damages,” “past lost housekeeping,” and “future lost housekeeping”), but the Ontario Court of Appeal found that the trial judge’s instructions unnecessarily subdivided damages and injected undue complexity by requiring the jury to deduct a non-pecuniary award from a pecuniary award. Still the appeal court did support the total housekeeping award of $59,935 (CDN).

Now and in the Future
In the Court of Appeal’s support of the McIntyre housekeeping damage award it recognized that a non-pecuniary award may be required in recognition of the “loss of self-worth resulting from the inability to contribute personally to the well-being of the household.” The non-pecuniary loss results from recognition that the loss of the ability to perform the housekeeping could diminish one’s sense of identity that could be tied to the loss of the amenity of an orderly and functioning house. Penuciary damages will also continue to be awarded to “…achieve a measure of recognition for the economic value of unpaid housekeeping. The denial of such [could] perpetuate inequalities that society worked hard to overcome.”

As such, those involved in defending housekeeping claims need to ensure that adequate attention is paid to collecting evidence on discovery or through expert evidence. Relevant issues include: a) typical hours spent on housekeeping; b) the ability of the plaintiff to complete housework and “inefficiencies” in completing housekeeping tasks; c) the impact of these inefficiencies on the particular plaintiff’s self-worth. Also, past and future economic loss must be calculated based on evidence proving the work actually done in the home in the past and what could be spent on these tasks in the future.

Lauren Bloom and George Kanellakos‘s both practise insurance defence litigation at Blouin, Dunn LLP in Toronto, Ont.

Housekeeping Claims In Context

Housekeeping claims typically were viewed as a replacement value for substitute housework performed. This typically formed a pecuniary loss, and awards at trial or agreements upon settlement were usually quite modest. A study of housekeeping awards between 1990 and 2001 across Canada found that the damages awarded averaged $25,000.

In Ontario, family members are also able to claim for past housekeeping loss under the Family Law Act (FLA) which provides for compensation for family members, entitling them to recover their out-of-pocket loss resulting from the housekeeping services required as a result of injury or death.

To advance a claim in tort for housekeeping outside of the FLA, plaintiffs typically produced receipts or time sheets demonstrating the total hours per week spent by others on housekeeping tasks performed after an accident. These documents rarely particularized the details of the actual services completed.