Caring for the Injured: When Family and Friends Provide Support

Unfortunately, victims of personal injuries are often unable to care for themselves, to complete housekeeping tasks or to do chores around the house the way they did before their accident.They may need help bathing, getting dressed, cleaning their wounds, doing the laundry, cooking, mowing the lawn or shoveling the snow, to name just a few examples.Few people can afford to pay somebody to help them with these tasks, especially when they are off work because of their injuries.As a result, family or friends of the injured individual often take on extra responsibility and devote themselves to caring for their loved ones on a voluntary basis.

An injured person is entitled to be compensated for personal care, housekeeping and home maintenance services needed due to injuries caused by another’s negligence.The law provides such compensation for services that have been incurred in the past, as well as for services that will be required in the future.

It is relatively easy to determine the amount of compensation the injured person is entitled to for services that they need due to their injuries and that they have paid for out-of-pocket.Of course, if the injured person pays for services such services out-of-pocket, the injured person is entitled to reimbursement for those services from the negligent party that caused the services to be required.

However, people often wonder if compensation is available when family or friends volunteer personal care or housekeeping services.If so, a question arises as to whether the Court awards the compensation to the injured individual or to the family or friends that provided the care.

Is compensation available when family and friends provide personal care and housekeeping services on a voluntary basis?

Yes.

The law also requires negligent parties to pay for personal support, housekeeping and home maintenance services they have caused the injured party to need, even if the injured party has not actually paid anything for those services out-of-pocket.In other words, negligent parties are not immune from claims for personal support, housekeeping, and home maintenance services just because they are provided by family and friends voluntarily.The law recognizes that these services have a value.Accordingly, personal support, housekeeping and home maintenance services necessitated by the negligence of another are indeed compensable, even when the services are provided on a voluntary basis by family members or friends.The law provides that, as far as the negligent party is concerned, the injured person’s loss is not whether they actually paid for the services they received but rather the fact that the injured party needs the services at all.

To be compensable, personal support, housekeeping and home maintenance services provided by family or friends must be of a kind over and above what would normally be expected in the family or friend relationship.In other words, the services need to be different from the care a family member or friend would provide to the injured person if they were not injured.The services need to replace a service that would otherwise have to be provided by a third party, though they do not need to be done at a professional level by that family member or friend. The law therefore sometimes allows for deductions to the value of the services provided based on the idea that the services are, at least partially, part of what one would ordinarily expect a family member or friend to do.

It is important to understand that when considering compensation for services provided for personal support, housekeeping and home maintenance services, the law does not make a scientific calculation.Instead, the law makes a reasonable assessment of the value of the services up to the date of the assessment, as well as the value of the services that will be required in the future as a result of the injury.

First, to assess how much compensation the negligent party must pay to their victim for these costs of care, the law takes into consideration the extent to which the victim is no longer able to perform the personal care tasks and chores that they used to perform before their accident.The law then considers what it costs to allow the injured person to care for themselves and their home they did before the injury.

From there the law considers how much the personal care and home maintenance services would cost the injured individual if they hired a third party, as well as how much the family member or friend that provided the services lost in other opportunities as a result of taking care of the injured individual.The law aims to assess the true value of the services provided regarding the time, quality and nature of the services provided.

To whom does the Court award Compensation?

The general rule is that the individuals named as plaintiffs in the lawsuit are the individuals that receive compensation from the negligent party.

The injured person is always named in the lawsuit.Further, in Ontario, under section 61 of the Family Law Act, direct family members of the injured person may also be personally named as plaintiffs in the lawsuit.If they are, the family members can be awarded directly for the personal care, housekeeping and home maintenance services they provided up to the date the award is made, as well as actual expenses that they need to incur for the benefit of the injured person, such as travel expenses.

However, family and friends who provided care to the injured person do not necessarily need to be named as plaintiffs in the lawsuit to be awarded compensation for services they provided in the past.If the family and friends that provided these services are not named as plaintiffs, the Court may award to the injured person compensation for personal care, housekeeping or home maintenance services that they required, and order that the compensation be held in trust by the injured person for the individuals that provided the care.

The Court makes these “in-trust” awards for past personal care, housekeeping and home maintenance services if there is a reasonable expectation that the person who provided the care would be paid for the services.For example, the injured person may specifically agree with their caregiver that they will pay for their services when they can.However, an explicit agreement is not necessary, so long as there is a moral sense that the services provided should be paid for, and that the interests of justice support it.For example, if a family member or friend quits their job and dedicates their lives to caring for an injured person, even if the injured person did not explicitly promise to repay their family member or friend, it would likely be accepted by the Court that compensation for the services is warranted.

In terms of care needed in the future, the Court will generally make an award based on what a “reasonably-minded person of ample means” would spend to obtain adequate services.In other words, the injured party is no longer expected to rely on the generosity of their family and friends to provide the services.The Court makes an award based on what it would cost to pay a third party to carry out the services.

Cost of care is a complex area of the law.To establish such a claim in Court, in addition to evidence from the injured person’s care giver, expert evidence from a nurse, life care planner or occupational therapist is often required.It is important that you speak with an experienced personal injury lawyer, like the ones at Preszler Injury Lawyers, to understand your rights.