An in-trust claim is a claim for services provided free of charge by a family member that you otherwise would have had to pay someone to provide. An award can be made for the services provided and paid to the plaintiff in a personal injury action in-trust for the person who provided the services.
While the concept of an in-trust claim is relatively straightforward, the law surrounding it and how it is applied by the courts is more complex and inconsistent, leading to a lack of certainty as to how to approach such claims approaching trial.
The Legal Test for In-Trust Claims
The legal test for an in-trust claim was laid out in Bystedt v. Hay,2001 BCSC 1735 at para. 180, aff’d 2004 BCCA 124, and in order to seek an award for damages under an in-trust claim you have to prove that:
- (a) the services provided must replace services necessary for the care of the plaintiff as a result of a plaintiff’s injuries;
- (b) if the services are rendered by a family member, they must be over and above what would be expected from the family relationship (here, the normal care of an uninjured child);
- (c) the maximum value of such services is the cost of obtaining the services outside the family;
- (d) where the opportunity cost to the care-giving family member is lower than the cost of obtaining the services independently, the court will award the lower amount;
- (e) quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those 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
- (f) the family members providing the services need not forego other income and there need not be payment for the services
Importantly, for the court to make an in-trust award they must find that the services rendered were above and beyond that which could be expected of a loving spouse or child. This is the part of the test which has rendered very unpredictable decisions from the court due to it’s subjective nature
Real World Application of In-Trust Claims
While the legal test for an in-trust claim may seem clear, it’s application has been anything but due to how the court has applied this head of damage, often with the decision to make an award being based on whether or not the presiding judge feels that the family in a particular case went above and beyond that which could have even expected by a loving family member. This leads to the question, what standard is to be applied when the criteria is that of a loving family member?
What may be expected of a loving relation in one family may differ vastly from another family. Cultural considerations, as well as other socio-economic considerations may factor into the equation as well. Is it equitable that someone on one rung of the socio-economic ladder should get less of an award than someone on another rung?
There have been cases where a grandmother who provided childcare assistance while a Plaintiff was unable to care for her child while injured received an in-trust award, despite continuing to provide such service after the Plaintiff’s injuries healed, arguably showing the services provided were not above and beyond what one could reasonably have expected. Alternatively, there have been catastrophic injuries involving brain injuries and spinal cord injuries, where parents have had to give almost 24-hour care to their injured children and in-trust awards were denied due to that care being reasonably expected in the circumstance.
Each case requires careful evaluation by an experienced personal injury lawyer on the specific facts to determine the strength of an in-trust claim, however how the courts might interpret that claim remains unpredictable.
In-Trust Claims & Timelines
If you’re not sure if you have an in-trust claim with your personal injury claim, get in touch with one of our experienced personal injury lawyers today for a free case evaluation.
Our personal injury lawyers are experienced in evaluating in-trust claims and will assess your claim for free. As with all claims there are strict time limits that apply to an in-trust claim. Contact the lawyers at Taylor & Blair LLP today.