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Income Loss
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In personal injury cases involving the severely disabled, a claim can often be made for “loss of opportunity to form a permanent interdependent relationship”. Claims of this type, which are frequently classified as claims for “loss of marriageability”, primarily arise from a plaintiff’s inability to enjoy the economic benefits of a conjugal relationship. However, as noted by Lambert J. A. in Reekie v. Messervey (1), such claims should also address the failure to form an interdependent relationship with a close friend of either sex, regardless of whether a marriage is possible.
Three components of pecuniary loss are associated with cases involving the loss of ability to form a permanent interdependent relationship (2):
loss of the benefit of increased income;
loss of the benefit of shared expenses;
loss of the benefit of shared homemaking.
The first component of loss stems from an individual’s inability to enjoy a higher standard of living in a joint relationship. In two-person households, both members often contribute to the “family” disposable income. In such relationships, each party benefits financially from a percentage of the other party’s income that is allocated strictly for family (and not personal) use.
In general, it is less expensive to live with another individual than to live alone. Many expenses can be shared between two individual wage-earners in a single living arrangement, which lowers the cost of living for both parties. Since some disabled individuals may not have a chance to share living expenses, it is possible for them to seek compensation under this component of pecuniary loss.
In addition to the first two components, disabled individuals may also make a claim for losses resulting from their inability to reap the benefits of shared homemaking duties. Both members of a two-person household commonly perform duties that are required for living in the home. Some of the work has a benefit only to the individual performing it, while other types of work benefit both members of the household. For individuals that are unable to form a permanent interdependent relationship, compensation may be sought for household benefits that a partner may have provided them.
Apart from the financial benefits that may be lost due to an individual’s inability to form a permanent interdependent relationship, there are also potential non-pecuniary losses. For a number of years, the courts have recognized that there is a certain amount of enjoyment that one can attain in a shared living relationship, particularly a marriage. Recently, it has become increasingly important to distinguish between the pecuniary and non-pecuniary aspect of the claim for loss of permanent interdependent relationship. If no distinction is made, double-counting may result when determining an award for damages which can lead to overcompensation for the plaintiff.
When attempting to establish a claim for loss of permanent interdependent relationship, there are certain evidential requirements that must be fulfilled. In Reekie v. Messervey (3) and Cherry (Guardian ad litem of) v.
Borsman (4), guidelines regarding the necessary "quality and detail of expert testimony" (5) that may be required are provided.
The two most important components of pecuniary loss that should be quantified for claims of loss of interdependent permanent relationship are: (1) the joint disposable income that would have been accessible by the plaintiff, and (2) the reduced living expenses that the plaintiff could have expected. (6) Determining the value of the first component is especially important for women. In Canada, a significant wage differential exists between most men and women. By having access to a joint family income, women may attain a considerably higher standard of living than if they lived alone. With respect to the second component, it should be acknowledged that if the plaintiff lives in a shared accommodation after the accident, the rationale for a claim for loss of benefit of shared living expenses may not be valid. Although the plaintiff may not be part of a "permanent interdependent relationship" per se, the living expenses that are saved residing with parents, for example, may equal what could have been realized with a partner.
The importance of assessing the benefits as well as the costs attributable to one’s inability to form permanent interdependent relationship cannot be overstated. For instance, many disabled individuals are no longer able to receive the benefits associated with raising children. However, they also won’t face the "costs" of having to generate a higher income and to increase their homemaking expenses to support a child. In some cases, it may be reasonable to reduce the value of the plaintiff’s pecuniary award to account for these costs, as long as the non-pecuniary award fairly represents the losses that accompany an individual’s inability to care for children. In Cherry (Guardian ad litem of) v. Borsman, an award for loss of marriageability of $ 190,449 was adjusted downward to $ 100,000 to reflect the costs of bringing up children.
The following is a list of cases in which awards were provided for claims involving loss of permanent interdependent relationship or loss of marriageability:
Reekie v. Messervey [1989]
Cherry (Guardian ad litem of) v. Borsman [1990]
Mulholland (Guardian ad litem of) v. Riley Estate [1995]
Bates v. Nichol [1995]
Anderson v. Miner [1999]
Belyea v. Hammond [1999]
1. Reekie v. Messervey (1989), 59 D.L.R. (4th) at 494 (B.C.C.A.).
2. K. Cooper-Stephenson. Personal Injury Damages in Canada, 2nd ed. [1996]at 337.
3. (1986), 4 B.C.L.R. (2d) 194 at 222-23 (S.C.).
4. Cherry (Guardian ad litem of) v. Borsman (1990), 75 D.L.R. (4th) 668 at 713 (B.C.S.C.).
5. K. Cooper-Stephenson. Personal Injury Damages in Canada, 2nd ed. (1996) at 342.
6. Ibid., at 342.