Victims of personal injury claims often struggle to perform many of their daily tasks in the wake of an accident. For example, depending on the victim’s condition, they may need a housekeeper to help with their daily tasks.
Still, others may rely on the help of friends and family members who step in to care for them during their recovery. But if a friend or family member is performing the work of a housekeeper, should they be compensated accordingly? That’s where “in trust” claims can come in.
Below, we’ll explain what personal injury claimants should know about in trust claims and what recovery options are available for housekeeping following a personal injury claim.
Claiming Damages for Loss of Housekeeping Capacity
Before discussing trust claims, it’s important to establish personal injury claimants’ entitlement to damages for loss of housekeeping capacity in personal injury claims.
Generally, a personal injury claimant is entitled to compensation for “loss of housekeeping capacity” or their inability (or limited ability) to perform their typical pre-accident housekeeping tasks. A personal injury claimant can claim both past and prospective loss of housekeeping capacity costs (i.e., if there is evidence that the plaintiff will struggle to perform their regular housekeeping tasks in the future, they can be compensated for that loss of capacity in addition to compensation for past loss).
Justifying a Loss of Housekeeping Capacity Claim
To establish that a personal injury claimant is entitled to damages for loss of housekeeping capacity, they must prove (a) that a loss occurred and (b) that the loss had value. In simple terms, the claimant needs to establish that they were unable to complete (and/or will be unable to complete) housekeeping tasks that they would have otherwise done, such as regular cleaning
Loss of Housekeeping Capacity in Motor Vehicle Accidents
Under Ontario’s Insurance Act, R.S.O. 1990, c. I.8, people who sustain injuries in a motor vehicle accident and require medical or rehabilitative treatment are entitled to benefits pending the resolution of the case. This means that motor vehicle accident claimants can receive benefits without waiting for their case to settle or go to court.
Among other benefits, motor vehicle accident claimants may be entitled to housekeeping and home maintenance benefits. Under the Statutory Accident Benefits Schedule, motor vehicle accident claimants who have suffered a “catastrophic impairment” that prevents them from performing housekeeping and home maintenance services are entitled to up to $100 per week for reasonable and necessary housekeeping and home maintenance services.
Loss of Housekeeping Capacity and In Trust Claims
So, where do trust claims come in in the context of loss of housekeeping capacity?
Often, a personal injury claimant simply claims loss of housekeeping capacity to compensate them for services rendered. For example, they might have to hire a cleaner to help them with their household tasks.
In other cases, a personal injury claimant’s friends and family members may have stepped in to help them with these household tasks. For example, the claimant’s spouse, children, or a close friend may have helped them keep the house tidy while recovering from their injuries and may need to continue helping the claimant.
In these cases—where a person helped with housekeeping tasks which would not traditionally be paid for their services—trust claims usually come in.
However, there is nuance to trust claims, and successfully claiming compensation for an in trust claim isn’t always guaranteed. Usually, the court will look for a reasonable expectation that the person for whom an in trust award is claimed would be paid for their services. This might involve the claimant having agreed to pay their friend or family member for their services or the friend or family member having lost out on work or other opportunities because of their duties to the claimant (this often comes up when a family member has to quit their job or scale back their work duties to help the claimant with their household tasks).
How Do Personal Injury Claimants Make an In Trust Claim?
Personal injury claimants may make an in trust claim on behalf of a friend or family member in one of two ways.
The Family Law Act and In Trust Claims
Under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3, the spouse, children, grandchildren, parents, grandparents, and siblings of a personal injury claimant who was injured or killed are entitled to recover pecuniary loss resulting from the injury or death of the claimant and may be named as plaintiffs in relation to the action.
The types of damages that can be recovered in these circumstances include, among other things, any actual expenses they reasonably incurred for the benefit of the personal injury claimant, travel expenses incurred while visiting the personal injury claimant during their treatment or recovery, and a reasonable allowance for loss of income or the value of services rendered for nursing, housekeeping, or other personal services for the personal injury claimant.
Personal Injury Claims and In Trust Claims
Despite the above, personal injury claimants do not necessarily need to follow the process under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3 to successfully advance an in trust claim for a friend or family member. If the personal injury claimant advances an in trust claim on behalf of friends or family members, the court may award loss of housekeeping capacity but direct that the compensation for that award be held in trust for the friends or family members who provided the care.
Final Thoughts on In Trust Claims
Establishing loss of housekeeping capacity and advancing trust claims on behalf of friends or family members can be a challenging area of the law, filled with nuance. That’s why it’s essential to work with an experienced personal injury lawyer to ensure you understand your rights and advance a claim that seeks the appropriate compensation for yourself—and, when appropriate, others—for losses suffered in the wake of an accident.
Trusted Ottawa Personal Injury Lawyers Serving Eastern Ontario & North Bay
Tierney Stauffer LLP’s experienced personal injury lawyers have over 35 years of experience advocating for personal injury claimants, regardless of how the accident happened. If you have suffered an injury due to another party’s negligence, our lawyers will help you obtain the compensation you are owed.
Our team works hard to cultivate a cohesive, client-centred approach to personal injury claims. To discuss your matter with an experienced personal injury lawyer, call us at 1-888-799-8057 or online.