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When a person sustains injuries as a result of the fault of another, whether by way of a motor vehicle accident, a slip-and-fall, assault, faulty product, etc., there may be substantial limitations to that person’s ability to work and care for themselves for a period of time afterwards.
Family members of the injured person often end up helping their loved one, whether by way of taking on housekeeping duties, or assisting with tasks like childcare, grocery shopping, transportation, and more.
The law in British Columbia recognizes the effort and contributions of these friends and family members and in some cases may award damages to repay them for such efforts. These are called ‘in trust claims’ because the injured party makes a claim for repayment of such expenses and effort ‘in trust’ for their friends family members who have assisted them.
There are three important things to know about ‘in-trust’ claims. First, not every bit of assistance provided is worthy of being compensated under the law. The assistance provided has to go above and beyond what would normally be provided in the family context.
Secondly, British Columbia courts have confirmed that an ‘in trust claim’ can be pursued by any injured party regardless of the seriousness of the injury. In other words, the seriousness of the injury is not a consideration in whether a claim can be brought (so, one can bring an in trust claim for more moderate injuries, such as a broken arm or even soft-tissue injuries). Finally, ‘in trust’ claims are not necessarily restricted to the performance of household duties, but may also be made for the performance of commercial duties that go ‘above and beyond’ the normal care of a family.
For example, in a 2010 decision from the British Columbia Court of Appeal (Dykeman v. Porohowski, 2010 BCCA 36), the injured party was a 23 year old woman who was injured as a passenger in a motor vehicle accident. She ran an equestrian business with her parents and due to her injuries was unable to complete many of her job duties. Her parents assisted her by providing manual labour on the farm as well as babysitting her children when she had to attend medical and other appointments. The court found that this could be grounds for an ‘in trust’ award of damages.
An ‘in-trust’ claim may be a significant portion of the damages awarded in a personal injury lawsuit, depending on the nature of injuries sustained. These claims should be discussed with legal counsel with a view to determining the exact nature and extent of the claim.
Greg Pratch is a lawyer and partner with Pushor Mitchell LLP. He practices in civil litigation with a particular focus of personal injury matters and employment law. In his personal injury practice, he has helped individuals injured in both BC and Alberta recover compensation for all types of injuries including whiplash, soft tissue injuries, chronic pain, broken bones, spinal injuries and brain injuries. In his employment law practice, Greg advises both employers and employees on all matters relating to employment, including wrongful dismissal, human rights issues and employment standards legislation. Greg also advises clients on general commercial disputes and tax disputes with the Canada Revenue Agency. Be sure to connect with Greg Pratch on Twitter @OkanaganLawyer. You can contact Greg at (250) 869-1194, or at pratch@pushormitchell.com.
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