July 27, 2020

I get by with a little help from my friends (and family)


Author: Alex Wolfe, Associate Lawyer

Ensuring proper compensation for attendant care providers in personal injury and medical malpractice lawsuits.

What would you do if I sang out of tune?

People who suffer injuries in car accidents, falls, and medical mishaps often receive unsolicited or free help from family and friends to help them recover from their injuries and keep their lives from falling “out of key.” This help could come in the form of hospital visits, preparing meals, keeping a tidy home, running errands, assisting with personal care, hygiene, and therapies, or simply supervising them.

The time spent by family and friends to complete these tasks is compensable in a lawsuit. Whether the family member felt a moral or social obligation to provide services for free is irrelevant. People’s time has value, and the Supreme Court of Canada has stated that if care needs arise due to the defendant’s negligence, then reasonable costs should be paid to family members and friends who provide these services to the injured plaintiff. In Ontario, this is codified in S. 61 of the Family Law Act.

To stay in tune and ensure that claims for gratuitously provided care are properly compensated at trial, the family member should do their best to particularize the amount of time spent providing assistive services. When preparing for trial, these hours will be counted-up and assigned an hourly rate in-line with what it would cost to obtain these services in the plaintiff’s community. For example, rates for personal support workers typically range between $25-40 per hour. If a family member requires 24 hours of care per day, this can equate to over $300,000 per year in attendant care needs. If only a few hours of care per day are required, this can still equate to over $20-30,000 per year in attendant care costs.

Evidence of the family member’s services may be “out of key” if the hours are not properly particularized and quantified before trial. In Hummel v. Jantzi (2019), the plaintiff suffered a significant brain injury that required his parents and family members to provide him with 24 hour care and supervision for the six years leading up to trial. Instead of being compensated for all of the time and effort expended providing these services (50,000 + hours), the parents were awarded the lump sum of $100,000 to represent their non-particularized claim for past attendant care services. They were in-effect paid less than $3 per hour, and lost out on a possible $100-200,000 per year in damages had they kept reasonable records of their provided services.

In conclusion, it is important for lawyers, family members, and unpaid care providers to keep their evidence for attendant care damages “in tune” by accounting for all of the hours that they spent giving “a little help” to the plaintiff. At legate Personal Injury Lawyers, we have a great method of utilizing spreadsheets, charts, and technology to assist in quantifying these hours. Please feel free to reach out to me if you would like to discuss these particularization methods, or if you would to have a chat about attendant care damages in general.