Principles Involved In Care Claims
CARE CLAIMS by Robert Horner, Barrister
The Principle of Care
- If a person requires care and assistance as a result of another’s negligence, a claim for the said care can be made whether or not the care was paid for, unless the person providing the care was the tortfeasor.
- Cunningham v Harrison [1973] 1 QB 942.
Lord Denning MR:
‘…It is only right and just that if the wife renders services to [the husband], instead of a nurse, he should recover compensation for the value of the services that his wife has rendered’.
The damages recovered were said to be held ‘on trust’ by the claimant for the provider.
- Hunt v Severs [1994] 2 AC 350.
The House of Lords was concerned to ensure that the voluntary carer received recompense for the services provided. However, on the facts, the husband carer to the injured wife was the tortfeasor. The wife was therefore prevented from obtaining damages on his behalf.
The Scope of Care
- Evans v Pontypridd Roofing Ltd [2002] PIQR Q5.
Claimant, male, 30s. Severe spinal injury. Required significant care. Wife the main carer.
- First instance: Claim for 24 hour care allowed.
- Defendant’s arguments on appeal:
1. The wife was not providing care to the claimant for literally 24 hours a day.
2. Some of the care that the wife provided was not necessitated by the accident.
3. Some of the care that the wife provided was not supported by the medical evidence.
- Court of Appeal:
May LJ at paragraph 31:
‘It is neither necessary nor to be expected that a full time carer should spend every hour of the day and night engaged in providing full time services’.
- Guidance:
1. Each assessment by the court of care services for which the claimant seeks recompense will depend on the circumstances of the case.
2. The services should not exceed those which are properly determined to be care services consequent on the claimant’s injuries.
3. The assessment of services provided does not have to be limited in every case to ‘a stopwatch calculation of actual nursing or physical assistance’.
4. In serious cases, whilst the services of a carer may not be required every minute of the day, full time care is required to provide whatever assistance is necessary at whatever time it is required.
5. It is necessary for judges to ensure that awards for full time care are properly justified and that the gratuitous carer is undertaking full time care for reasons connected with the accident.
A Minimum Threshold on Gratuitous Care?
- Giambrone v JMC Holidays Ltd [2003] All ER (D) 202.
- OED defines ‘to nurse’ as including ‘to attend to a sick person’.
- There is no inference that the nature of the injury giving rise to the care must be particularly serious. The relevant threshold is that the effects of the injury must be of sufficient gravity to require care over and above that which would be given in the ordinary course of family life.
Loss of Housekeeping and Related Services
- Assessment of the Loss:
1. Prior to the injury, the claimant undertook the task(s) for which the claim is made.
2. As a result of the injury, the claimant can no longer perform the said task(s) to the extent he/she was previously able.
3. The task(s) will now have to be carried out by another:
For past loss:
i) In the case where a professional has been engaged – the cost of that professional.
ii) In the case of an amateur helping out gratuitously – the cost of a professional, discounted.
For future loss:
iii) The cost of a professional whether or not the claimant intends to employ anyone or not. Daly v General Steamship Navigation Co Ltd [1981] 1 WLR 120.
- There is scope for argument against the discount in 3ii) above.
- No claim can be made for past loss if the work has not been carried out.
Quantifying the Amount of Care
- Ensure:
- Realistic.
- Consistent.
- Supported by evidence.
Quantifying the Cost of Care
- Loss of earnings of the carer:
- Housecroft v Burnett [1986] 1 All ER 332.
- Commercial Rates:
- Facts and Figures 2008: National Joint Council pay rates.
- The discount:
- Justification:
- Professional carers pay tax and national insurance.
- Professional carers have the expense of travel to the place of work.
- Percentage not fixed:
- Norm 25%.
- Range 0%-33%
- Hash v Southmead [1993] PIQR Q156.
- McCamely v Cammel Laird Shipbuilders [1990] 1 WLR 963.
- Lance v Newman [2002] EWCA Civ 291.
- The period: 58 weeks per annum.
- Iqbal v Whipps Cross University Hospital NHS Trust [2006] EWHC 3111.
- Sarwar 2 [2007] EWHC 274.
False Assumptions about Care
1. The claimant must find the lowest rate of care available within the region.
- Iqbal v Whipps Cross, Sir Rodger Bell, paragraph 30:
‘…I do not believe that there is any obligation on parents in the position of [the parents]… to creep up pound by pound in the hope of saving the defendant a pound or so an hour. They are entitled to shorten the process by offering a good rate’.
2. The rates applied to relatives should always be reduced because they lack the experience of a professional carer.
- Hogg v Doyle [1986] 1 All ER 332.
- Fairhurst v St Helens and Knowsley HA [1995] PIQR Q1.
Query: If a carer has given up work, must the carer recover the lesser of the value of their loss of earnings as compared with the cost of employing a professional carer?
Indexation of Periodical Payments for Care
- Section 2(8) & (9) of the Damages Act 1996 (as amended):
‘(8) An order for periodical payments shall be treated as providing for the amount of payments to vary by reference to the retail prices index…at such times, and in such a manner, as may be determined by or in accordance with the Civil Procedure Rules.
‘(9) But an order for periodical payments may include provision –
(a) disapplying subsection (8), or
(b) modifying the effect of subsection (8).’
- Retail price index is not a reliable tool in this context.
- Average earnings index is the average of a large number of professions, the majority of which are non-relevant areas of employment.
- Thompstone [2008] EWCA Civ 5.
Court of Appeal endorsed the utilisation of the Annual Survey of Hours and Earnings (ASHE) 6115 published by the Office of National Statistics.
- RH v United Bristol Healthcare NHS Trust [2007]EWHC 1441, Mackay J:
‘I regard 6115 as the most accurate match to the target expenditure…it is statistically reliable…and is markedly superior to RPI’.
Alternative Care Packages
- Corbett v South Yorkshire Strategic HA 28.3.07.
A directly employed package was preferred over agency based one.
- See also:
- Burton v Kingsbury [2007] EWHC 2091 QB
- Iqbal (above).
Provision of Care by the Local Authority
- If care can be provided by the local authority, the claimant is not bound to rely on it. It is for the court to consider whether the claimant’s proposed provision of treatment is reasonable.
- If the local authority is to provide the care, damages cannot be recovered for the provision of such care to the extent that it does not incur cost to the claimant.
- If the claimant requires, in addition to the local authority care, further privately provided top up care, a claim for this additional care can be made.
- Factoring in the care provided by the local authority is complex:
- See:
- Sowden v Lodge [2004] EWCA Civ 1370
- Croften v NHS Litigation Authority [2007] EWCA Civ 71.
- Burton v Kingsbury [2007] EWHC 2091 QB.
Loss of Care of a Mother in Fatal Accident Claims
- Loss of a mother may give rise to a claim for financial dependency for ‘loss of the services of a mother’ in fatal accident claims. Regan v Williamson [1976] 1 WLR 305.
- Quantification:
- Not strictly arithmetical.
- Some awards based on the cost of a housekeeper:
- Hay v Hughes [1975] QB 790.
- Spittle v Bunny [1988] 1 WLR 847.
- The court in Spittle stated that, whilst for younger children, the value of the services provided by a mother might be properly calculated by reference to the cost of hiring a nanny, as the child became older, and went to school, this approach became less appropriate.
- Examples:
- Lewis v Oxborne Kemp O3-24, Bacon v White Kemp O3-26, Hayden v Hayden [1992] PIQR Q111, Martin v Grey (1999) 99(3) QR 8.
- In some cases the courts have made a separate award in addition to the award for the loss of the services of a wife or a mother. (At present, there is no authority for a similar additional award for the loss of a father).
- Examples:
- Regan v Williamson, Mehmet v Perry [1977] 2 All ER 529, Corbett v Barking Havering and Brentwood HA [1991] 2 QB 408, Bordin [2000] LLR 287, Ath v MS [2002] EWCA Civ 792.
- Johnson v British Midland Airways Ltd [1996] PIQR Q8 – Loss of a wife.
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