“In-Trust” Claim for Parents and Grandparents Over Tragedy During Child Birth

The goodfirm ICBC personal injury lawyers want to draw the public’s attention to a recent personal injury case in the Supreme Court of British Columbia involving the birth of a child and litigation over €œin-trust” claims of the child’s parents and grandparents.

personal injury law

In the recent case of Crossman v. Boiley 2016 BCSC 1437, a couple’s son was left tragically injured due to complications during his birth leaving the infant with catastrophic injuries, including severe cerebral palsy, profound intellectual impairment, cortical visual impairment, gastroesophageal reflux disease, respiratory difficulties, failure to thrive, severe spasticity and sleep challenges. The parents filed suit against the Vancouver Island Health Authority as the employer of the two nurses assisting in the birth and against the midwife that was retained for the birth.

As part of the suit, the parents alleged that the care of the mother and child during labour and delivery failed to meet the expected standard of care. Once the defendant’s received the expert medical reports from the plaintiffs, they admitted liability for the infant’s injuries.

Prior to trial, the parties had attempted to settle but could not agree on the infant’s life expectancy and consequently could reach an agreement with respect to future income loss, future care and management fees. Eventually, the parties reached a tentative agreement in which the defendant’s agreed to pay an initial payment of $3,000,000 and annual payments of $400,000 to the injured infant for each year of his life.

Under section 40 of the Infants Act the plaintiffs were required to obtain written comments from the Public Guardian and Trustee’s office with respect to the proposed agreement. The plaintiffs brought an application seeking approval of the settlement as well as approval to pay a portion of settlement money to the parents and grandparents for housework, nursing, and domestic assistance to the injured infant. In personal injury cases, the claim of third party family members who have assisted an injured person with household duties, nursing and other care is referred to as an “in-trust” claim. The plaintiff’s also sought court approval to pay the legal fees associated with the claim from the settlement proceeds.

While the Public Guardian and Trustee’s Office approved the proposed settlement, they did not approve the amount sought by the plaintiff for the “in-trust” claim on behalf of the parents and grandparents. Madam Justice church was tasked with deciding whether or not the settlement should be approved and the value of the “in trust” claims to be paid from the settlement.

The Public Guardian and Trustee’s Office took issue with certain expenses that were claimed as part of the “in-trust” claim, specifically, extensive travel costs, various non-traditional medical treatments, the purchase of a vehicle for the grandparents and rental apartment for the grandparents. Additionally, many of the special expenses claimed were not accompanied by receipts or supporting documentation. In assessing these claims, the Court had to rely on the affidavit evidence of the parents.

The largest issue was that the plaintiff sought to approve and distribute almost $500,000 from the settlement funds to the parents and grandparents for the care they provided. The Public Guardian and Trustee’s office took the position that a distribution of $250,000 for the past care for the parents and the grandparents was appropriate.

In assessing in trust claims, the Madam Justice Church referred to the factors set out in the case of Bystedt v. Hay, 2001 BCSC 1735, in assessing “in-trust” claims:

  1. The services provided must replace services necessary for the care of the plaintiff as a result of the plaintiff’s injuries;
  2. if the services are rendered by family member, they must be over and above what would be expected from the family relationship;
  3. maximum value of such services is a cost of obtaining the services outside the family;
  4. where the opportunity cost of the caregiving family is lower than the cost of obtaining the services independently the court will award lower amount;
  5. quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of the services. In this regard, the damages should reflect the wage of a substitute caregiver. There should not be a discounting or undervaluation of such services because of the nature of the relationship; and
  6. the family members providing the services need not forgo other income and there need not be payment for the services rendered.

In applying the Bystedt factors, Madam Justice Church found that the grandparents and parents had provided the injured infant an additional 8 hours of care per day for the 1480 days of their son’s life so far, above what would be expected from the family relationship. Madam Justice Church found that the $500,000 award sought by the plaintiff translated to roughly $45/hr and although the hourly rate is similar to the cost of a licenced practical nurse, Madam Justice Church found that the $45/hr sought by the plaintiff did not represent that true and reasonable value of the services provided. She was of the opinion that the $250,000 sought by the Public Guardian Trustee translated to a more reasonable $22.35/hr for the services provided, referring to the 5th factor in Bystedt. Ultimately, Madam Justice Church sided with the Public Guardian Trustee’s office in approving payment of $250,000 to the parents and grandparents for their “in-trust” claim.

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