This is a heart wrenching case of a 21 year old involved in a horrific car crash. The Case is Wilhelmson v. Dumma, 2017 BCSC 616 (CanLii). A claim for damages is made for loss of interdependency, which is the topic of this post. The test for loss of interdependency is stated “has the plaintiff established that there is a real and substantial possibility that the plaintiff has been impaired in her ability to enter into a permanent relationship (Hodgins v. Street, 2009 BCSC 673 (CanLII))? In Grewal v. Brar, 2004 BCSC 1157 (CanLII) at para. 159, the Court said loss of interdependency recognizes the loss of the benefit of increased income, shared expenses and shared homemaking.”
I am quoting directly from this decision on the loss off interdependency:
[330] While an award for loss of interdependency has its genesis in damages for the “loss of opportunity to marry”, the focus is not on the relationship. Damages are awarded for the loss of forming an interdependent relationship that would be expected to produce financial benefits: Reekie v. Messervey (1989), 1989 CanLII 253 (BC CA), 36 B.C.L.R. (2d) 316 (BCCA). The Court of Appeal also stated that it was artificial to differentiate between loss of earning capacity and loss of interdependency; an award can be made for all aspects of loss income, including loss of interdependency (para. 63-65).
[331] The test is now stated as follows: has the plaintiff established that there is a real and substantial possibility that the plaintiff has been impaired in her ability to enter into a permanent relationship (Hodgins v. Street, 2009 BCSC 673 (CanLII))? In Grewal v. Brar, 2004 BCSC 1157 (CanLII) at para. 159, the Court said loss of interdependency recognizes the loss of the benefit of increased income, shared expenses and shared homemaking.
[332] In terms of what evidence is relevant, no definitive standard has been established in the case law. Courts have found that a person’s demeanour, together with medical evidence, is insufficient to find someone was “completely incapable” of forming an interdependent relationship: Afonin v. Jansson, 2015 BCSC 10 (CanLII). It is also clear that disfigurement such as scarring can be a factor tending to prove this loss: Anderson v. Lancaster, 1999 BCCA 1 (CanLII). I agree with the defendant that the award is not meant to compensate for the loss of a particular relationship: Campbell v. Swetland, 2012 BCSC 423 (CanLII).
[333] The defendant submits the evidence does not establish the plaintiff is entitled to an award under this head of damage. The defendant submits the injuries she sustained are not the type that predict the loss of her ability to form an interdependent relationship, and that specific evidence was needed to establish that. He also points out that the plaintiff has had two “long-term” relationships since the accident. She dated Rylee Docherty for about a year and they became engaged, although they ultimately broke up. She has also been in an off-and-on relationship with Corbin Jentsch.
[334] The defendant refers to expert evidence commentary about the nature of these relationships to support his position. However, I prefer to rely on direct evidence from the plaintiff, Kellie Hardy, Robert Hardy, Jake Hardy and Anne Stacey, together with the overall assessment of Ms. Wilhelmson’s position. All but one of the experts’ statements about those relationships were merely a recitation of how the plaintiff described the relationship at a particular point in time. Those statements are not as reliable as the evidence from witnesses who have had a chance to observe the plaintiff in these relationships over time. Assessing that evidence, I find those relationships are not indicative of a normal, healthy capacity to enter romantic relationships.
[335] Mr. Docherty was a close friend of Jarrett’s. Ms. Wilhelmson explains that it became clear to them both that entering the relationship was driven primarily by their shared grief and upon realizing that, they called off their engagement. As Ms. Stacey testified, Ms. Wilhelmson seemed to be searching for a substitute for Mr. Swackhamer. Ms. Stacey testified about being very worried for Ms. Wilhelmson’s future because in her view, she had not gotten over Ms. Swackhamer; Ms. Wilhelmson still has pictures of him on her phone and in her room.
[336] I infer from all the evidence about the relationship that Ms. Wilhelmson was looking for any way to find any joy in her life during the aftermath of the accident. Her physical struggles with her injuries and the inability to work were extremely upsetting for her. I infer she believed a relationship, had it succeeded, would have brought joy and improved her mood. I also infer that because of her physical condition and being unable to work, she was too quick to find solace in a relationship. I find that was the primary motivation to her accepting the marriage proposal from Mr. Docherty in the first place rather than the two of them forming a true bond. Ms. Wilhelmson’s testimony and the evidence from her family supports this conclusion.
[337] I also find Ms. Wilhelmson has not completed her grieving for Mr. Swackhamer. She still has pictures of him around, she is very close to his family, and as Ms. Stacey said, she’s still looking for him in any potential mate. In my view, that is evidence that despite having entered two relationships, their prospect for becoming interdependent relationships was not a realistic possibility.
[338] The defendant’s psychiatric expert confirms this inference. Dr. O’Shaughnessy testified that one of the most difficult aspects of Ms. Wilhelmson’s PTSD is that she lost her loved one in the same traumatic event that injured her. In his opinion, the relationships she had entered were still focussed on Mr. Swackhamer, and were not healthy.
[339] I also find Ms. Wilhelmson’s evocative testimony describing how her hair loss and her abdominal disfigurement have negatively impacted her self-image and confidence to be extremely relevant to this issue. She testified with emotion how difficult it has been for her to accept her body since the accident. The testimony and pictures confirm that she was an extremely fit, healthy and strong young woman before the accident. To have such a dramatic change to her physique on the cusp of adulthood has obviously been devastating to her. The psychiatric and psychological expert medical evidence is consistent with this conclusion. That change has quite reasonably diminished her self-esteem and one’s body image is tied to confidence in intimate relationships. Mr. Jentsch commented on the intimacy problems the two of them had, which I find were a direct result of her injuries and the impact they have had on her self-image and sexuality. She reported having pain during sex which would further erode her confidence that she could find joy and comfort in an intimate relationship.
[340] Given that her psychiatric prognosis is guarded, I find the evidence does prove on a balance of probabilities that her ability to form a permanent interdependent relationship has been impaired. The test is only that she establish that there is a real and substantial possibility she will be impaired; she does not have to prove she will not enter an interdependent relationship, but only that her capacity and ability to do so has been impaired. The evidence easily and clearly meets that test. She is entitled to an award to compensate for that loss.
[341] In terms of calculating that loss, Mr. Carson provided helpful evidence and analysis. I summarize his approach: he created a table to analyze different family incomes depending upon the possible future career of each spouse in the marriage. He added those amounts to come up with total wages for the couple. He then took into account income taxes, employment insurance and Canadian Pension Plan benefits, and the fact that about 40% to 45% of family income is spent on “exclusive use” goods (food, clothing, transportation, recreation, personal and health care), and 30% to 35% on shared goods (family home care, furniture, etc.). He commented on the impact of children on his calculations:
…most couples have children and the costs of raising children tend to reduce the level of consumption exclusively benefitting parents. However, to subtract child raising costs from the estimate of financial gain from interdependency implies that people do not value child rearing. From an economist’s point of view, child raising is one way people may choose to spend their money. Children increase, rather than diminish the extent to which adult family members are interdependent.
[342] In terms of how he calculated the value of interdependency, he opined:
Because certain goods are shared and because the quality of shared goods is often largely determined by the husband’s income, the wife in a two person family derives a benefit from the shared family income. That is, her level of economic well-being achieved exceeds that which can be financed by her income alone. As an approximation, a woman living on her own has to earn a before-tax income equal to about 66% of the total family income in a two person household to achieve the same level of economic well-being as that achieved by living with a spouse.
Based on the outcomes of Tables 1 and 7, I calculate, living on her own, a woman would have to have an income of about $2,166,700 x 0.66 = $1,430,022 to equal the level of economic well-being achieved by sharing with a husband or spouse. This exceeds the expected future earnings value in Table 1 by $1,430,022 – $875,329 = $554,693.
[343] It is important to keep in mind that Mr. Carson’s final figures does include the female’s future earning potential, but it identifies what amount needs to be added to that for her to achieve the income she would have enjoyed had she been in an interdependent relationship.
[344] He also took into account that about 80% of women aged 25 to 64 are married, living common-law or living with others, and therefore he incorporated a 20% chance of her not being in a relationship (or a relationship not being sustained) into his calculations.
[345] With those, and other, guidelines in mind, Mr. Carson estimated the economic value of participation in interdependent relationships which is not the estimate of the loss.
For a loss to occur there must be a decrease in the probability of involvement in interdependent relationships and/or a decrease in the quality of such relationships. This in turn implies that there may be partial losses, arising from higher risks Ms. Wilhelmson’s relationship(s) will not be sustained, …
[346] Mr. Carson applied his analysis to figures from the tables he composed for the future income loss projections. He estimated the value of an interdependent relationship where the male had strong labour force attachment and earned income as a contractor/supervisor, and the female was also a contractor/supervisor to be just over $800,000. Where both spouses are heavy equipment operators, the value was $758,000. The value for a couple of truck drivers was about $381,000 to $490,000, but I do not rely on these figures because the evidence does not support a conclusion that the couple would both have worked as truck drivers.
[347] I find Ms. Wilhelmson’s capacity to enter and sustain an interdependent relationship has been impaired. But I also find some portion of that impairment is tempered by what I have already found to be her fundamental character traits: remarkable resilience, determination and a generally speaking, positive outlook.
[348] In my view, the impairment is most likely to manifest as a real and substantial possibility it will take her much longer to find a partner with whom she is likely to have a sustained relationship. This is solely because of the grief she suffers and the physical and psychological injuries she will have to continue to endure.
[349] Taking all these factors into account, I find an award between $325,000 and $350,000 is appropriate to represent compensation for her loss of interdependency.
[350] I have concluded the evidence does establish Ms. Wilhelmson would have started and operated a successful family-owned heavy equipment or excavator business with Mr. Swackhamer. In terms of assessing that loss, I find it appropriate to place more weight on the projections supplied by Mr. Carson for contractors or supervisors of heavy equipment businesses than on the weight of the lay witness evidence.
[351] Looking at the preceding discussion of loss of future earning capacity and interdependency, I must recognize the duplication inherent in awards under both heads of damage even though, as I have noted above, Mr. Carson has specifically approached his calculation on what additional income would be needed to match the income generated by a couple. The plaintiff submitted if I award an amount of loss of interdependency, it is appropriate for the award for loss of future earning capacity to be at the lower end (and vice-versa).
[352] I emphasize that I am not “calculating” these awards. The mathematical explanation and figures provided by Mr. Carson in his opinion provides very helpful guidance, but I must consider those together with all the other evidence. Having done that, I conclude an award of $2,450,000 is fair and reasonable and supported by the evidence. That amount is comprised of $325,000 for loss of past earning capacity, $1,800,000 for loss of future earning capacity and $325,000 for loss of interdependency.
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