Gratuitous care can you claim?
It has been a long established principle that care provided by a family member or friend can be included as a cost in a claim, notwithstanding the care is not paid for. It only need be shown that the care is over and above that which would normally be provided and the person who is providing the care is not the person whose negligence caused the injury. This type of claim was first seen in Cunningham v Harrison [1973] 1QB 942 and was established as a principle in the House of Lords decision of Hunt v Severs [1994] 2 AC 350. However how far has the law come and what can now be claimed?
Generally speaking there are not usually arguments over the principle of recoverability. The disputes between the parties are more often over the level of care claimed and the hourly rates at which the care is claimed. However, more recent case law has pushed the boundaries of care claims further where the interests of justice allow.
I recently represented a single mum who sustained a significant whiplash injury in a road traffic accident. In most aspects the claim was straightforward. She only needed a small amount of support with day to day chores and therefore had a modest gratuitous care claim in her own right. Nothing unusual in that. However she could no longer provide all the care her significantly disabled son required. She was therefore now heavily reliant upon her parents for assistance with her son, but he was not the claimant and the support was directly for him. Did she have a care claim? Yes, as the court was prepared to extend the gratuitous care principle further in Lowe v Guise [2002] EWCA Civ 197.
In Lowe v Guise, the claimant had looked after his disabled brother for many years, but due to injuries sustained in an accident was unable to do so. His brother had to be cared for by another family member. The claimant had no gratuitous claim as the accident did not prevent him looking after himself. The issue was whether he could claim for the fact he was unable to care for his brother. The court said yes. An injured party could claim for the care he was no longer able to give to a relative living in the same household, where the care went beyond the ordinary interaction of household members. Was this the right decision? Prior to Lowe, I would have had to advise my client that there was no claim to bring despite how distressing it was for her in no longer being able to care for her son. Lowe was the right decision.
The court was prepared to go even further in Drake and Starkey (executrixes of the estate of James Wilson Deceased) v Foster Wheeler Limited [2010] EWHC 2004 QB. Mr Wilson was diagnosed with mesothelioma caused by the defendant negligently exposing him to asbestos. He required palliative care, provided by his two daughters. In his final weeks he needed hospice care provided by a charity for which no charge was made. His daughters pursued a claim for the costs incurred by the hospice in providing the care. Both the parties and the court recognised this was a novel claim but the claimants’ arguments were accepted. The path to success in such claims is to show that the hospice care is both reasonable and necessary for the deceased to have received as a direct result of the mesothelioma for which the defendant was responsible and that it fell within the head of damage for medical, nursing and other care costs. The court held it fell within the latter and relied heavily upon the fact that it the deceased needed predominantly palliative care, which allowed parallels to be drawn with gratuitous family care.
This is a brave decision. It is also a welcome extension to the established gratuitous care principle, particularly given the charitable nature and limited funding of such hospices. Many defendants hope that this will be a rarely used extension, but it is likely to have increased application as more mesothelioma claims come to the fore. It may go towards hospices securing the levels of funding needed to continue to support local authorities. This case and Lowe highlight how far the courts are prepared to go where the interests of justice dictate.