England and Wales Court of Appeal (Civil Division) Decisions

Lowe v Guise [2002] EWCA Civ 197 (26th February, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
HHJ MacDuff QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th February 2002

Lord Justice Rix :

1. Richard Lowe, the appellant, was riding his bicycle on 2 August 1996 when he was injured in an accident involving a car driven by Doris Guise, the respondent. On 30 March 1998 he issued his claim against her. Liability in negligence is no longer in dispute. This appeal concerns two preliminary issues of law relating to quantum decided by HHJ MacDuff QC. The issues had to be decided on the assumption that the matters pleaded by the appellant were true. They would be in issue at any subsequent trial.
2. At the time of the accident the appellant was 31. He lived with his mother and brother, Gary. His brother is severely disabled. Prior to the accident the appellant provided gratuitous carer services for his brother, estimated at some 77 hours per week. For two months following the accident the appellant was unable to provide any care to his brother at all. Thereafter he resumed looking after his brother, but he has been limited by his injuries to providing only 35 hours per week. That is the minimum qualifying care for entitlement to invalid care allowance benefits and he maintains that minimum in order to earn his continued entitlement to invalid care allowance, which in 1996 brought him £38 per week. That allowance does not increase with the provision of further hours of care above the minimum of 35. The difference between the hours of care which the appellant used to provide to his brother before the accident and the 35 hours to which he is limited since the accident has been provided by his mother, Mrs Helen Lowe. The appellant pleads that the services which he had provided to his brother and can no longer provide

“benefited the Lowe household as a whole. They relieved the claimant’s mother of the need to render them herself; they benefited Gary Lowe personally; and they also discharged a moral obligation resting upon the claimant himself. The services should accordingly be categorised as discharging the obligations and needs of the family as a whole.”

3. He therefore claims, in an amount presently unparticularised, the value of 42 hours per week carer services, presumably as provided by his mother, up to 14 June 2000, the date of his reamended schedule of loss.
4. He also claims damages for loss of employment capacity, on the basis that now that his injuries prevent him from looking after his brother for more than 35 hours a week, his only reason for abstaining from paid employment, namely the pressing moral obligation to care for his brother, has also been removed by the accident: with the result that his injuries are now the sole cause of his inability to earn wages. He values his loss at the national minimum wage for 38 hours per week, less a discount for the possibility of unemployment.
5. Nothing further is known from the appellant’s pleadings. Thus the circumstances in which his mother has come to take over the major part of his role as his brother’s carer is unpleaded. It is not clear whether the claim for “Carer Services” is intended to extend beyond 14 June 2000.
6. On 20 July 1999 “The issue of whether the Claimant is entitled to recover damages [from] the Defendant for carer services as pleaded…” was ordered to be determined as a preliminary issue.
7. At the hearing of that preliminary issue before the judge an order for a second preliminary issue was made in the following terms:

“PREAMBLE

The claimant’s case is that, but for the accident, he would have continued to afford 77 hours of care each week to his brother. He would not have been paid for that work (save for a state allowance which he continues to receive) and would not have been available for any other form of remunerative employment.

The claimant’s case is that as a result of the accident he can now only afford some 35 hours of care per week to his brother. His case is that he is therefore no longer fully employed in caring for his brother and that he is disabled (alternatively disadvantaged) from obtaining remunerative work by reason of his injuries.

“ISSUE

The claimant says that, if the facts alleged in the Preamble are proved, his claim for lost earning capacity should be assessed without reference to the fact that, but for the accident, he would have continued to care for his brother and would therefore have been unavailable for remunerative work.

Is the claimant correct?”

8. The judge answered both these issues in the negative, that is to say against the appellant and in favour of the respondent.

Further matters in evidence

9. The wording of the issues strictly makes any further information of no consequence. However, the following may be stated as part of the background of this appeal.
10. The appellant’s evidence (his witness statement dated 14 August 1999) states that his brother, who was born in 1963 and is therefore some two years older than him, suffers inter alia from Downes’ syndrome, needs to be carried and lifted or otherwise transported by wheelchair, and is in need of constant care and attention. The appellant had been his brother’s main carer for about four years before the accident, since the appellant was 27.
11. In the witness statement of the appellant’s solicitor dated 14 April 1999 it is stated that any recovery under the carer services claim is to be held by the appellant on trust for his mother: clearly a reference to Hunt v. Severs [1994] 2 AC 350. That statement was repeated in the appellant’s amended schedule of special damages (attached to the solicitor’s witness statement). However, as of 14 June 2000 it has dropped out of his reamended schedule of loss (see paras 2/3 above) for which the appellant obtained permission from the judge at the hearing below.

The first issue: carer services.

12. To understand this issue it is first necessary to explain the statutory and jurisprudential background to it.
13. It has been established for some time in England that an injured claimant is entitled to claim in respect of the value of care provided gratuitously to him by voluntary carers. The history of the common law’s development can be found set out in McGregor on Damages, 16^th ed, 1997, at paras 1675ff and in the speech of Lord Bridge in Hunt v. Severs [1994] 2 AC 350. In Cunningham v. Harrison [1973] QB 942 at 952B Lord Denning MR had said –

“It seems to me that when a husband is grievously injured – and is entitled to damages – then it is only right and just that, if his wife renders services to him, instead of a nurse, he should recover compensation for the value of the services that his wife has rendered. It should not be necessary to draw up a legal agreement for them. On recovering such an amount, the husband should hold it on trust for her and pay it over to her. She cannot herself sue the wrongdoer…but she has rendered services necessitated by the wrong-doing, and should be compensated for it. If she had given up paid work to look after him, he would clearly have been entitled to recover on her behalf; because the family income would have dropped by so much…”

14. At almost exactly the same time in another division of this court in Donnelly v. Joyce [1974] QB 454 at 462A/C Megaw LJ analysed the problem of voluntary care in a different way, emphasising that the loss, consisting in the need for care, was the claimant’s loss. Megaw LJ continued:

“Hence it does not matter, so far as the defendant’s liability to the plaintiff is concerned, whether the needs have been supplied by the plaintiff out of his own pocket or by a charitable contribution to him from some other person whom we shall call the “provider”; it does not matter, for that purpose, whether the plaintiff has a legal liability, absolute or conditional, to repay to the provider what he has received, because of the general law or of some private agreement between himself and the provider; it does not matter whether he has a moral obligation, however ascertained or defined, so to do…”

15. In Hunt v. Severs, however, the House of Lords preferred the reasoning of Lord Denning. At 361/3 Lord Bridge of Harwich said this:

“With respect, I do not find this reasoning convincing. I accept that the basis of a plaintiff’s claim for damages may consist in his need for services but I cannot accept that the question from what source that need has been met is irrelevant. If an injured plaintiff is treated in hospital as a private patient he is entitled to recover the cost of that treatment. But if he receives free treatment under the National Health Service, his need has been met without cost to him and he cannot claim the cost of the treatment from the tortfeasor. So it cannot, I think, be right to say that in all cases the plaintiff’s loss is “for the purpose of damages...the proper and reasonable cost of supplying [his] needs.”

“In Scotland the law on this subject has developed differently. In Edgar v. Postmaster General, 1965 S.L.T. 158 it was held by a majority of the Inner House of the Court of Session that the injured pursuer’s averment that his accident had caused his wife to give up work to look after him and thereby lose wages was irrelevant. Having pointed out that the wife, not being a party to the action, could not recover the loss, the Lord President (Lord Clyde) continued, at p. 160:

“If, on the other hand, the averment is intended to form the basis for a claim for domestic assistance for which the pursuer would have had to pay if he had nor been able to secure it gratuitously the claim is, in my opinion, an irrelevant one. It would have been another matter altogether if the pursuer had actually paid some third party, or had entered into a contract to pay some third party for this domestic assistance. It could then have formed a relevant item in his claim for damages. But if the assistance which he got was given gratuitously and there is no undertaking or understanding by him to pay for it (and that is the situation in the present case) then I am quite unable to see how he can claim to be reimbursed for a payment he has not and cannot be compelled to make. In Scotland, damages necessarily involves a loss either actual or prospective, and the plain fact of the matter is that the pursuer has sustained no such loss at all in regard to this item.”

“The difference in this regard between Scottish and English law was examined by the Scottish Law Commission in their report in 1978, Damages for Personal Injuries, Report on (1) Admissibility of Claims For Services (2) Admissible Deductions (Scot. Law Com. No. 51). In paragraph 20 they adopted the view that “the value of the services of persons who have assisted the injured person should be recoverable by the latter in his action against the “wrongdoer” but considered that “the principle should apply only as between members of the injured person’s family group or circle.” In paragraph 22 they criticised the reasoning used in the judgment of Megaw L.J. in Donnelly v. Joyce in the following terms:

“In cases where services have been rendered gratuitously to an injured person, it is artificial to regard that person as having suffered a net loss in the events which happened. The loss is in fact sustained by the person rendering the services, a point vividly illustrated in cases where he has lost earnings in the course of rendering those services. We suggest, therefore, that it is wrong in principle, in cases where services have been rendered gratuitously by another to an injured person, to regard the latter as having in fact suffered a net loss.”

“They concluded, at paragraph 23:

“that it would be right to devise an approach which will enable the injured person to recover in his own action the value of services which have been rendered to him by relatives but which would, at the same time, enable the relative to recover, if he so wished, the value of these services from the injured person.”

“The Commission’s recommendations in this respect were implemented by Part II of the Administration of Justice Act 1982, which applies to damages for personal injuries in Scotland and which by section 8 provides:

“(1) Where necessary services have been rendered to the injured person by a relative in consequence of the injuries in question, then, unless the relative has expressly agreed in the knowledge that an action for damages has been raised or is in contemplation that no payment should be made in respect of those services, the responsible person shall be liable to pay to the injured person by way of damages such sum as represents reasonable remuneration for those services and repayment for reasonable expenses incurred in connection therewith. (2) The relative shall have no direct right of action in delict against the responsible person in respect of the services or expenses referred to in this section, but the injured person shall be under an obligation to account to the relative for any damages recovered from the responsible person under this section.”

“An elaborate definition of “relative” in section 13(1), which I need not here set out, implements the Commission’s recommendation that this provision should apply only if the person rendering the services and the injured person belong to the same “family group or circle.”

“Thus, in both England and Scotland the law now ensures than an injured plaintiff may recover the reasonable value of gratuitous services rendered to him by way of voluntary care by a member of his family. Differences between the English common law route and the Scottish statutory route to this conclusion are, I think, rarely likely to be of practical importance, since in most cases the sum recovered will simply go to swell the family income. But it is nevertheless important to recognise the underlying rationale of the English law, as all the cases before Donnelly v. Joyce [1974] QB 454 demonstrate, is to enable the voluntary carer to receive proper recompense for his or her services and I would think it appropriate for the House to take the opportunity so far as possible to bring the law of the two countries into accord by adopting the view of Lord Denning M.R. in Cunningham v. Harrison [1973] Q.B. 942 that in England the injured plaintiff who recovers damages under this head should hold them on trust for the voluntary carer.”

16. This account of the correct analytical basis of the claimant’s recovery for the value of her husband’s gratuitous care was of critical importance in Hunt v. Severs, for in that case the carer was the defendant himself. The House of Lords ruled that because the claimant would have to hand over to the defendant the recovery made on account of his gratuitous care, “there can be no ground in public policy or otherwise” for requiring the defendant to pay such sums to the claimant (at 363D). This result has been described as logical but unfortunate, and liable to lead to the more expensive use of professional carers (McGregor at para 1682). The Law Commission’s report on “Damages for Personal Injury: Medical, Nursing and Other Expenses; Collateral Benefits” (Report No 262, 1999) has recommended the legislative reversal of the actual decision in Hunt v. Severs while approving of its central reasoning, in particular that the loss is that of the provider of the care rather than the claimant’s.
17. Lord Bridge’s reference to section 8 of the Administration of Justice Act 1982 (the “Act”) and to its background in the recommendations of the Scottish Law Commission is important for present purposes, because the present claim, if it arose in Scotland, would have come directly within the immediately following section of the Act, section 9. Both sections fall, with some others, within Part II of the Act which applies only to Scotland. Section 8 deals with gratuitous services rendered by a relative to the injured person following his injury, and section 9 deals with services which, prior to his injury, the injured person had (or might have been expected to have) rendered gratuitously to a relative. Section 9 provides:

“(1) The responsible person shall be liable to pay to the injured person a reasonable sum by way of damages in respect of the inability of the injured person to render the personal services referred to in subsection (3) below. (2) Where the injured person has died, any relative of his entitled to damages in respect of loss of support under section 1(3) of the Damages (Scotland) Act 1976 shall be entitled to include as a head of damage under that section a reasonable sum in respect of the loss to him of the personal services mentioned in subsection (3) below. (3) The personal services referred to in subsections (1) and (2) above are personal services – (a) which were or might have been expected to have been rendered by the injured person before the occurrence of the act or omission giving rise to liability, (b) of a kind which, when rendered by a person other than by a relative, would ordinarily be obtainable on payment, and (c) which the injured person but for the injuries in question might have been expected to render gratuitously to a relative. (4) Subject to subsection (2) above, the relative shall have no direct right of action in delict against the responsible person in respect of the personal services mentioned in subsection (3) above.”

18. The essential question in this appeal is whether the appellant’s claim in respect of additional hours of care which he used to, but can no longer, give his brother, (a claim which, as is common ground, would, on the assumed facts, succeed under section 9 in Scotland) must fail in England because Parliament has not seen fit to enact a similar provision for England. The judge concluded that it must, on the basis of the decision of this court in Swain v. London Ambulance Service NHS Trust (unreported, 12 March 1999).
19. In Swain the claimant was injured in the course of his employment and had to retire early. The appeal was solely concerned with the extent of his damages. The principal issue concerned matters far removed from the present subject. However, Mr Swain’s cross-appeal raised a point on the cost of valeting his wife’s car. The judge had awarded him £140 in respect of his own car, but had given him nothing in respect of his wife’s car, for which Mr Swain sought a similar figure. He said that it was his practice to clean his wife’s car before the accident and that after it he had to pay someone else to do the work. His £140 appeal failed.
20. Beldam LJ appears to have put the matter broadly on the basis that claims by the injured person based on gratuitous services rendered to a member of his family could not be recovered. He said –

“The question whether an injured plaintiff can recover compensation for loss of his capacity to render services to others and, in particular, to members of his family has been a subject of discussion in the law of damages for personal injury for many years. Historically a husband was able to claim in respect of the loss of services performed for him by his wife but no similar cause of action was afforded a wife in respect of services performed for her by her husband. See Best v. Samuel Fox & Co. Ltd. [1952] AC 716. The reason given by Lord Goddard in his opinion at page 730-731 was:

“Negligence, if it is to give rise to legal liability, must result from a breach of duty owed to a person who thereby suffers damage. But what duty was owed here by the employers of the husband to the wife? If she has an action in this case so must the wife of any man run over in the street by a careless driver. The duty there which gives rise to the husband’s cause of action arises out of what may for convenience be called proximity; the driver owes a duty not to injure other persons who are using the road on which he is driving. He owes no duty to persons not present except to those whose property may be on or adjoining the road which it is his duty to avoid injuring. It may often happen that an injury to one person may affect another, a servant whose master is killed or permanently injured may lose his employment, it may be of long standing, and the misfortune may come when he is of an age when it would be very difficult for him to obtain other work, but no one would suggest that he thereby acquires a right of action against the wrongdoer. Damages for personal injury can seldom be a perfect compensation, but where injury has been caused to a husband or father it has never been the case that his wife or children whose style of living or education may have radically to be curtailed have on that account a right of action other than that which, in the case of death, the Fatal Accidents Act, 1846, has given.”

“Thus, on policy grounds, the law denied a wife whose husband was injured a cause of action where historically it allowed a claim to the husband. But can the injured husband include in his claim the value of the loss of his capacity to render services to his wife and family which, but for his performing them gratuitously, he would probably have paid for out of the family budget? This question was considered by the Royal Commission on Civil Liability and Compensation for Personal Injury (the Pearson Commission). In its report (Cmmd 7054-1 Ch. 12) the Pearson Commission considered the question of services rendered by a plaintiff to others. After stating that damages for the loss of gratuitously rendered services are not usually recoverable where the victim survives, the Pearson Commission thought that it would be right to regard the loss of the capacity to render services gratuitously as primarily the plaintiff’s loss, rather than the loss of those who used to benefit from the services. It therefore considered that the damages should be recoverable by the plaintiff in his own right (para. 354).

“The Law Commission had already recommended that such a claim should be confined to services rendered by the victim to a person within the class of dependants having a remedy under the Fatal Accidents Acts. The Pearson Commission agreed with that approach and said:

“The loss of the plaintiff’s capacity to render services to those dependant on him could bring about substantial pecuniary loss to the family in replacing them; but the loss suffered by those not dependant on the plaintiff seems to us to be altogether more remote. There are advantages in consistency with the right to recover damages for lost services in fatal cases. (Para 356).”

“The Administration of Justice Act 1982 implemented some of the recommendations of the Pearson Commission. Part I contained provisions relating to England and Wales, including the abolition of an action by a husband for being deprived of the services or society of his wife. However, it did not enact the recommendation that damages should be recoverable by an injured person for the loss of his capacity gratuitously to render services to his relatives. By way of contrast, Parliament did give effect to the recommendations of the Scottish Law Commission and in Part II of the Act included in s.9 a provision giving an injured party a right to claim a reasonable sum by way of damages in respect of his inability to render personal services to a relative which he might have been expected to render gratuitously. As far as I am aware, the changes to the law in Scotland have attracted no adverse comment. As the Law Commission, supported by the Pearson Commission, had recommended that the law in England and Wales should be similarly changed, it is perhaps surprising that the change was confined to Scotland; the objection founded on policy that a wrongdoer’s liability should be confined within reasonable bounds is met by confining the claim in respect of personal services to services which might reasonably be expected to be provided by the injured party to a dependant relative. However, Parliament having declined the opportunity to introduce such a provision into English law, I can see no basis for doing so in the present case.”

21. Potter LJ, however, the only other member of that court, appears to have put the matter on a narrow basis, thus:

“I agree. I would only add a few remarks of my own in relation to the claim by the plaintiff (“the husband”) for recovery of the costs of valeting his wife’s car. So far as that is concerned, my decision is a reluctant one and depends upon the particular way in which the claim appears to have been advanced and argued, namely the loss of the husband’s capacity to render services for others. Put in that way, the claim fell foul of what was, as it seems to me, the logically inexplicable refusal of Parliament to import into English law the recommendations of the Pearson Commission and the English and Scottish Law Commissions at the time it saw fit to do so in respect of Scottish law.

“It appears that the husband’s case was argued and decided below on the basis that the service of car valeting was one which he performed gratuitously for his wife, (who was herself a wage earner) in respect of “her” car, i.e. a vehicle regarded as her own separate property and used exclusively for her benefit. On that basis it was, I accept, correct to regard the service performed by the husband as one performed for the wife alone, so that his subsequent claim for car valeting was in essence a claim for loss of his capacity gratuitously to render a service to a relative.

“My decision would be different, if, assuming the facts warranted it, the claim had been advanced on the basis that, whether or not the property and principal benefit of the car lay with the wife, this was essentially a “two-car family” in which the use of both vehicles benefited a household in which the expenses and domestic tasks were shared and performed, whether by husband or wife, for the benefit of both. On that basis, it seems to me that the post-accident expense incurred by the husband at the car wash might properly have been regarded as a claim for loss caused to him as a result of his inability to discharge his usual functions and so to save himself expense in relation to his own usual household tasks. It does not seem to me that the mere fact that the claim is in respect of expenditure on something which benefited and/or belonged to the plaintiff’s wife need necessarily be determinative. If it were, it could be argued that when a husband claims in respect of his post-accident inability to do DIY decorations to a property owned by his wife, but the home of both, his claim should be disallowed as being work done for the benefit of the wife.

“In my view, where the post-accident expense may properly be regarded as a household or family expense incurred by a plaintiff spouse in discharging a function which he or she previously performed gratuitously for the benefit of the household at large, then it is recoverable.”

22. In the present case the judge put the claimant’s argument and his own solution as follows:

“Mr Anderson first of all concedes that the reality is that the claimant here was performing gratuitous services on one view exclusively for his brother, but he seeks to bring it within Potter LJ’s dictum in the following way. He says that it was a moral obligation upon the family which was in fact performed by the claimant, and that now that the claimant cannot do it – and I must assume these facts to be correct for the purpose of this submission – the mother does it, and therefore what the claimant was doing pre-accident was benefiting not just the brother but the whole family…

“This is an ingenious argument. It could have been applied equally to the car wash for the claimant’s wife in the case of Swain. It relieved the wife or the children in that case of the need to wash the mother’s car. It was not just a matter of pleading; it was a matter of looking at the realities of the circumstances, and within any family situation it would always be possible in any given family situation to say that gratuitous services provided for a third party within the family, be it wife, brother, cousin or anybody else, was for the benefit of the family as a whole because if the claimant did not do it somebody else would do it. But in my judgment, sadly and with regret because I share Potter LJ’s concerns as to the state of the law, the reality is that what the claimant was here doing was providing gratuitous services for the brother and the brother alone. It was the brother’s benefit, and in those circumstances I fear that in my judgment the claimant cannot claim the value of those services.

“If it were different it would mean that by a back door that which Parliament did not amend would be enacted by me. It would mean that the judgment in Swain lost its potency in absolutely every situation within the family situation…”

The parties’ submissions on the first issue

23. On behalf of the appellant Mr Mark Anderson puts his case on this issue in two ways. First, he repeats his submission that the claim falls within Potter LJ’s dicta in Swain. If the law will compensate a claimant for the cost of the work he can no longer perform in looking after his, or his family’s, car or home or garden, then it must be able to compensate him for the work he can no longer do in looking after other members of his own family. The law cannot be so mistaken as to give a remedy in respect of one’s garden but not one’s brother. This approach should be seen not so much as a back door approach to subvert the logic of Beldam LJ’s judgment, but rather as an exception or refinement to it, based on a recognised need to support family life. In this way it was still open for the English common law to develop its own section 9 type remedy.
24. Secondly, but possibly not so much of his own motion as in response to questions from the court, he broadened his submission to revisit the issues discussed by Beldam LJ in Swain. If the English common law could develop for itself the remedy which had to be rescued for Scotland by section 8 (see Hunt v. Severs), it could follow the logic of that remedy and give relief in a section 9 situation as well. Parliament, in enacting sections 8 and 9 was not rejecting such relief for England so much as leaving it to the common law to follow its own path. Where the basic facts had been pleaded, the appellant’s claim should not fail because of any particular way in which it had been advanced: the court could categorise it as it felt was just.
25. On behalf of the respondent Mr Simon King submitted that although he could not say that Swain foreclosed the argument as a matter of binding precedent, the judge’s view of that case as being determinative as a matter of reason represented good sense. The common law could not develop a remedy which Parliament had visited but not enacted outside Scotland. The consequences were potentially too large to be safely contemplated. In any event, whereas a section 8 type loss was foreseeable, a section 9 type loss was not: it was therefore simply too remote. Hunt v. Severs, the section 8 situation, began with an injury to and thus a loss on the part of a claimant; but the section 9 situation started, and ended, with the brother's loss not with the appellant’s. That was a fundamental difference. In that event, it did not help to look at the matter in terms of the value of the mother’s services or the needs of the family. And Lord Goddard’s dicta from Best v. Samuel Fox were a famous and salutary reminder that whereas proximity existed and thus a duty of care was owed in the case of an injured claimant, neither was true in the case of a claimant’s brother. In such circumstances, the gloss put by Potter LJ on the reasoning of Beldam LJ in Swain could not apply in the present case. In any event, the appellant’s moral obligation was only to do what he could. In doing that, he suffered no loss, for he continued to earn the maximum allowance for only 35 hours care.

Discussion

26. As a matter of principle, I would have thought that an injured claimant who has been prevented by his injuries from working should be entitled to say that prima facie he has suffered loss. The most obvious form of that loss is of course loss of earnings or loss of earning capacity where the claimant has been employed or might be expected to be employed. It was common ground that, contrary to that prima facie situation, a claimant who chooses not to work, either through wealth or idleness, will in this respect have no claim, subject to any argument that he would have altered his way of life at some point in the future. But the appellant in the present case had worked, in caring for his brother, even though his financial compensation for doing so was limited to the invalid care allowance. What then has he lost, if he cannot work for more than 35 hours but still retains the whole of that allowance? Mr King says nothing, and submits that non-pecuniary loss, such as the self-fulfilment of useful work or the gratification of helping his disabled brother, has to be and is totally compensated by his award of general damages for pain, suffering and loss of amenity.
27. I would not dispute that last submission: but in my judgment an injured claimant who works albeit gratuitously for his family, a fortiori or at any rate within the nucleus of a family home, does suffer loss, the loss of being able to contribute the value of his service to the needs of his family. Just as the wife’s care of her injured husband, or the husband’s care of his injured wife, can be and is to be valued in pecuniary terms, even though gratuitously provided, and is to be compensated, through the injured person’s claim, as the provider’s loss: so it seems to me that the injured claimant’s loss of the ability to contribute his or her service to the needs of the family is a real loss suffered by the claimant, or transferred by the claimant by reason of his or her injuries on to another member of the family household who is in turn obliged to contribute his or her service. If public policy and the law’s transparent recognition of the special ties of family life can find, as it has done (see Hunt v. Severs and the cases leading up to it), a mechanism which enables it to value in pecuniary terms the gratuitous care thus provided, then there is, in my judgment, no difficulty in valuing in pecuniary terms the gratuitous service provided by a claimant to his or her family household. Of course the carer does not expect or at any rate is willing to forego compensation for the service, for he contributes it willingly to the family: but if he is deprived by another’s fault of the ability to make that contribution or that financial sacrifice, the value of that can still be assessed as his loss.
28. In truth this situation, what may be called the section 9 situation even if it has not been strictly recognised as such, has for at least some twenty years been more or less acknowledged in a series of cases which have compensated a claimant for the cost of providing by other means the gratuitous services which in the absence of his injury he would have wanted to contribute to the family. Thus in Daly v. General Steam Navigation Co [1981] 1 WLR 120 the claimant was a housewife whose housekeeping duties following her injury were in part performed by her husband and daughter. This court rejected the argument that the employment of outside paid domestic help was a necessary condition for recovery for the future. Bridge LJ said (at 127C/E):

“Once the learned judge had concluded, as this learned Judge did, that to put the plaintiff, so far as money could do so, in the position in which she would have been if she had never been injured, she was going to need, in the future, domestic assistance for 8 hours a week, it seems to me that it was entirely reasonable and entirely in accordance with principle in assessing damages to say that the estimated cost of employing labour for that time…was the proper measure of damages under this head. It is really quite immaterial, in my judgment, whether having received those damages, the plaintiff chooses to alleviate her own housekeeping burden…by employing labour which has been taken as the basis of the estimate on which damages have been awarded, or whether she chooses to continue to struggle with the housekeeping on her own and to spend the damages which have been awarded to her on other luxuries which she would otherwise be unable to afford.”

29. It is to be observed that, with respect to the period between injury and trial, when no paid help had been employed, this court said that there could be no recovery on the same basis, only an increment in general damages to compensate the claimant for the extra suffering of attempting the work by herself, and, if the claim had been maintained, compensation for the husband’s assistance. The distinction between the pre-trial and post-trial period has been criticised as being illogical (a criticism of which Bridge LJ himself seems to have been sensible, for he commented that he looked at the matter “as one not so much of logic as of practical reality”); and the English Law Commission (“Damages for Personal Injury: Medical, Nursing and Other Expenses”, Consultation Paper No 144, 1996 and Law Com No 262, 1999) has proposed that both pre-trial and post-trial periods should be compensated in the same way. For present purposes, however, I would emphasise a different aspect of the case. In awarding Mrs Daly damages for the housekeeping duties which she could no longer perform, the court was not deterred from compensating her in the future by the thought that the work had been conferred on her family gratuitously. In reality, it needed to be done, not so much for her own sake, as for her family’s.
30. In Swain Beldam LJ referred to the Pearson Report (Royal Commission on Civil Liability, and Compensation for Personal Injury, Cmnd 7054-1 at Ch 12). At paras 352/4 the report commented on the case of gratuitous services provided by the injured claimant as follows:

“352 Another result of an injury may be that the plaintiff loses his capacity to render services to others. The most important example is the loss suffered by an injured housewife, who is deprived of her capacity to look after her family. Damages for the loss of gratuitously rendered services are not usually recoverable where the victim survives.

“353 It seems to us that a person who loses the capacity to render services to others suffers a real loss. The housewife who can no longer care for her family has not lost money, but she has lost money’s worth. If her services are replaced by hired help, the family as a whole may suffer substantial pecuniary loss. But we do not think her claim should be determined by the way in which her services are replaced. Even if they are replaced free of charge by a friend or relative, we consider that damages should be recoverable…

“354 Again, we think that it is right to regard the loss of the capacity to render services gratuitously as primarily the plaintiff’s loss, rather than the loss of those who used to benefit from the services. We consider therefore that damages should be recoverable by the plaintiff in his own right.”

31. The significance of that “Again” at the beginning of para 354 is that at paras 343/349 the report had preferred the reasoning of Megaw LJ in Donnelly v. Joyce to the alternative approach in Cunningham v. Harrison. That was just before the Scottish Law Commission published its 1978 report (Scot Law Com No 51) in which it criticised the reasoning of Megaw LJ (at para 22, referred to in Hunt v. Severs at 362D). In the event the House of Lords in Hunt v. Severs followed the Scottish Law Commission and has preferred the analysis of Lord Denning in Cunningham v. Harrison to that of Megaw LJ in Donnelly v. Joyce. I do not for myself, however, think that that undermines the reasoning of the Pearson Report at paras 352/4 in any way.
32. That report was published in March 1978. Daly was decided in between then and the enactment of the 1982 Act. Daly, if not completely in line with the reasoning of the Pearson Report, goes a long way towards embracing it.
33. The question arises as to why Part II of the Act applies only to Scotland. The judge came to his conclusion “sadly and with regret” and with concern as to the state of the law. In Swain Beldam LJ said that it was “perhaps surprising” that the change was confined to Scotland; my Lord, Potter LJ said that the failure (his word was in fact “refusal”, but I wonder whether he might agree that that word overstates the position) of Parliament to import into English law the recommendations of the Pearson Commission and of the English and Scottish Law Commissions was “logically inexplicable”. There was a discussion before us as to whether it might be appropriate, pursuant to Pepper v. Hart [1993] AC 593, to consult Hansard: but it was hard to say that there was any ambiguity or absurdity in construction of the Act.
34. The question posed nevertheless needs answering. In my judgment the answer is most unlikely to have been that Parliament intended the law in Scotland to differ in this major respect from that of England, and the explanation to which I am therefore driven is that Parliament believed that in England the common law had developed or was capable of developing along the lines recommended by the Commissions. After all, by 1982 the common law in the section 8 type situation had already been well developed in England and, albeit more recently, Daly had largely answered the need for reform in the section 9 type situation. In Scotland, however, as explained in Hunt v. Severs, “the law on this subject has developed differently” (per Lord Bridge at 361F) because the Inner House of the Court of Session had held in Edgar v. Postmaster General 1965 SLT 158 that gratuitous services (even in the family context, there a wife who had given up work to care for her injured husband) had no value in the eye of the law. Nevertheless, following the Act, Lord Bridge was able to say that in the section 8 situation “Differences between the English common law route and the Scottish statutory route to this conclusion are, I think, rarely likely to be of practical importance, since in most cases the sum recovered will simply go to swell the family income” (at 363B). It is clear therefore that, at any rate in the section 8 situation, Parliament intended that the English common law should continue to develop alongside the newly enacted Scottish statutory law. It may or may not be a matter for intriguing enquiry as to why Parliament thought that the section 8 situation should be covered in these competing ways above and below the border, but it remains clear enough that that was its intention. If that was so in the section 8 situation, I do not see why a similar explanation is not to be given for the section 9 situation. The two types of situation, although of course not identical, are different strands of a knotted problem generated at least in large part by the law’s difficulty in giving pecuniary form to gratuitous service.
35. It is interesting to note in this connection that in its 1999 report on Damages for Personal Injury (Law Com No 262) it had not occurred to the English Law Commission that the enactment of Part II of the 1982 Act had put a halt to the development of the English common law. It reviews the “Loss of the claimant’s ability to do work in the home” in the contemporary law at para 2.34 by reference to Daly. It comes to its own recommendation on this topic at paras 3.87/3.93. Thus it reasons as follows:

“3.88 In our Consultation Paper we criticised the decision in Daly for this inconsistency between past and future loss. Although the decision recognises that it was artificial to assume that past loss was always pecuniary in nature, it applies that very artificiality to the assessment of future loss. We provisionally recommended that past and future loss should be treated consistently. That is, it should be compensated as a pecuniary loss to the claimant where he or she has paid or will pay for the work to be done, as a loss to the third party where that third party has carried out, and will carry out the work for free, and as an element of non-pecuniary loss where the claimant has struggled on with the work regardless and will continue to do so.

“3.89 Our consultees welcomed the suggestion that the law should be consistent as between past and future loss, and there was widespread agreement with the statement of the law we had proposed...

“3.90 Where the work is done by a third party, such as a friend or a member of the claimant’s family, consultees were unanimous in accepting that damages should be recovered...”

While recognising that legislation would be necessary to alter the actual decision in Hunt v. Severs that an injured person could not recover in respect of the tortfeasor’s gratuitous care, and also somewhat to amend the trust concept adopted there, the Commission nevertheless said this

“3.92 Should the recommendation in paragraph 3.91 be implemented by legislators? It appears from the responses we have received that litigation on these issues is rare, and that in practice the decision in Daly is often distinguished so that past and future loss can be treated consistently. Moreover, the impact of the House of Lords’ approach in Hunt v. Severs on this area has not yet come before the courts. We therefore think it unlikely that the courts would consider themselves bound by the approach in Daly. In general, it follows that we consider that the common law can be expected to reach the position set out in paragraph 3.91; and that legislation is, by and large, unnecessary.”

For the reasons set out in this judgment above I had independently come to a similar view.

36. What then of Lord Goddard’s famous dictum in Best v. Samuel Fox? I would not wish to suggest that it does not have continued vibrancy today. But it has to be understood in its context, and it is in any event clear that it has not prevented the development of the English common law in its journey towards Hunt v. Severs. The context of course was a wife’s attempt to sue in her own name in respect of her own loss arising out of her husband’s accident. That is what gave force to his statement, in effect, that loss without legal injury, without breach of a duty of care owed to the particular claimant, could not give rise to a liability or a separate right of action. That is true; but it tells you little, at any rate from the hindsight of 2001, about whether an injured person can claim as part of his loss the value of gratuitous care given to him by his wife. Moreover, the analysis of Hunt v. Severs, that the loss is in truth that of the wife which the husband can claim in trust for the wife, is all the more remarkable if Lord Goddard’s dictum is thought of as determinative throughout all such areas of quantum.
37. And what of Swain? Mr King did not submit that it was binding on this court. I think that is correct, not so much, as he suggested, because it only concerned a claim for £140, but because (as he also submitted) it is not possible to derive from the judgments of that two-judge court a clear ratio. Potter LJ clearly thought that if the claim had been pleaded differently, or perhaps I should say, if the facts had been different, a different result would have been obtained (“My decision would be different if…”). In such a case the absence of section 9 in England would not have prevented a result in favour of Mr Swain. That suggests that what was critical about Swain was, as explained by Potter LJ, that the car in question was not in any sense a family car, but rather one that was not only owned by the wife (that was not regarded as determinative) but used for her exclusive benefit and at her exclusive cost.
38. The present case, however, is one where, as must at present be assumed to be correct, the disabled brother is part of the household and one whose care had, prior to the accident, been the appellant’s prime responsibility. That care was not a mere gratuitous favour bestowed on a third party, but was a responsibility of his own, adopted by him and owed to his brother, but also to his mother with whom he shared the household. When he lost the ability to care for his brother for more than 35 hours per week, he lost something of real value to himself (as well as to his brother) which was his contribution to his family’s welfare, and his loss imposed a corresponding obligation on his mother to make good by her own care what he was no longer able to provide. In my judgment the appellant is entitled to claim in respect of the loss of his ability to look after his brother. Since he will maintain his state allowance, he has suffered no loss so far as that allowance is itself concerned. But he has suffered a loss nevertheless because, even though his care was provided gratuitously, it can and ought as a matter of policy to be measured in money’s worth. To the extent that his mother has by her own additional care mitigated the appellant’s loss, it may be that the appellant would hold that recovery in trust for his mother.
39. Were it otherwise, then as Mr Anderson has submitted, the loss of an injured person’s ability to look after the family garden would be compensated, but the loss of his ability to look after his brother would not be (otherwise than as might be reflected in the award of general damages). That would bring no credit on the law. In my judgment the result which I favour would be within the logic and policy of the existing state of the English common law.
40. In these circumstances, what is to be said against such a result? That Parliament has willed it otherwise? I have suggested that that is a misreading of the situation: Parliament has left the common law in England to take its course. That the loss is unforeseeable and thus too remote, as Mr King has submitted? But a defendant must take the injured claimant as he finds him: and there is nothing unforeseeable about a claimant having family responsibilities. That the loss is the brother’s loss and not the injured person’s, as Mr King has also submitted? In my view the loss is that of the appellant, which was also the view of the Pearson Commission. That the availability of this head of damage opens the floodgates? But section 9 has operated in Scotland for nearly twenty years without, as Beldam LJ put it and as far as is known, attracting adverse comment.
41. Of course, the facts of the appellant’s claim have yet to be investigated. I would for the present confine myself to the assumed facts of this case: where the care is to a relative (to which I would add, a spouse or partner) living as part of the same household and goes beyond the ordinary interaction of members of a household.
42. The solution which I have proposed in this judgment differs somewhat from the recommendation of the Law Commission in its 1999 report, where it suggests inter alia that there should be recovery (a) for past loss where the claimant has necessarily paid someone else to do the work; (b) for future loss where the claimant establishes that he will reasonably pay someone to do it; and (c) for past or future work gratuitously and reasonably rendered by a relative or friend (para 3.91). In the present case, where the allegation is that the mother has been providing the additional hours of care that Mr Lowe cannot now provide, that difference may not be significant. It may, however, be significant if the mother has ceased or will be likely to cease being able to provide that care. The question may then arise whether that care will have to be paid for; or will have to be provided in some other way, which may further mitigate the loss. Those questions, however, as it seems to me, are matters of the assessment of quantum which lie outside the issues before this court and have not been touched on in argument.

The second issue: loss of earnings

43. Mr Anderson submitted that although, if the accident had not occurred, the appellant would have continued to look after his brother and would not have earned an employed living, nevertheless, since his injuries had taken away both his ability to look after his brother (for more than 35 hours per week) and his capacity to earn a living, he should be compensated for the latter. The fact that he had chosen, for compelling moral reasons, not to exploit his earning capacity did not mean that he had not had the capacity to earn, nor that it was valueless. His injuries were now the sole cause of his unemployment. Unlike the man who had chosen not to work because he was rich or idle and who would remain rich or idle after his accident, the appellant had lost, and lost by reason of his accident, the only reason which had kept him from earning.
44. The judge said that this was an attractive argument, and that he would have decided it in favour of the appellant “if the facts had been that the claimant could not at all in any circumstance now provide care for his brother”. As it was, he was only prevented from performing the additional 42 hours of care per week, he continued to earn the state allowance (save for the first two months following the accident when he could do no work at all, a period for which he should be entitled to claim special damage), and the fact that he would have continued to devote those extra hours to his brother without further compensation if he had not been injured could not be ignored. However, it would in due course be a matter for the judge of the facts to determine whether the appellant might have changed his mind at some stage of the future and “decided to exploit his undoubted earning capacity which he no longer has”.
45. For my part, I would look at this issue somewhat differently. I do not myself think that the fact that the appellant has not been totally incapacitated from looking after his brother is critical. The issue has rather been formulated in such a way (see para 7 above) as to ask the court to sanction the conclusion that the (stipulated) fact that, but for his injuries he would have continued to care for his brother, is irrelevant. As Mr King submits, the trial court of fact should not be fettered in this way, which would require an artificial approach carrying with it the risk of over-compensation. That court should rather be entitled to consider the issue of loss of earnings with the aid of such reference to the pre- and post-accident realities as may be appropriate. At that trial it would be open to the appellant to formulate his loss of earnings claim by reference to his own (and his brother’s) prospects. After all, the essential factual question is, what is necessary to put the appellant in the same position, so far as money can do it, as he would have been in but for the accident?
46. In my judgment therefore the answer to the second issue is simply “No”. But the trial judge can take all appropriate matters into account.
47. Having said that, I would merely comment that it seems to me that what the judge viewed as attractive and very nearly compelling in the appellant’s argument on this second issue is in truth the underlying force of the fact that a person in his position has suffered a real loss when he is forced by his injuries to give up the value of work which he has previously donated to his brother’s care, work which although carrying no income because gratuitously given nevertheless in principle has and as a matter of policy should have a real value attached to it. The common law should not, and need not, leave the question “Am I my brother’s keeper?” with the wrong answer.

Mr Justice Morland:

48. I agree on both issues.

Lord Justice Potter:

49. I also agree and have nothing to add in respect of the second issue. In relation to the first issue, I am grateful to Rix LJ for his careful exposition of the law and his illuminating approach to the question raised, with which I also agree, subject to a reservation in respect of the claimant’s pre-trial loss. I also wish to add a few observations of my own, not least because I was a member of the court in the case of Swain –v- London Ambulance Service NHS Trust, by reason of which decision HH Judge MacDuff QC felt himself bound (with regret) to reach the conclusion which he did.
50. Upon re-consideration of what I said in that case, I do not think that the judge was so bound in respect of the instant claim which, framed as it is, raises the question of the right of an injured person to recover in respect of his consequent inability to perform ‘carer’ services which prior to the accident were rendered by him gratuitously to a member of his family, but which he was subsequently unable to render, those services being taken over gratuitously by another member of the family. In the case of Swain, I put my decision upon the narrow ground that in that case the claim had been argued and decided on the basis that, in valeting his wife’s car, the claimant was performing a gratuitous service for his wife in respect of her own property used exclusively for her own benefit, rather than performing a task which benefited a household in which the expenses and domestic tasks were shared out and performed for the benefit of the family as a whole. I stated in conclusion that:

“In my view, where the post-accident expense may properly be regarded as a household or family expense incurred by a plaintiff spouse in discharging a function which he or she previously performed gratuitously for the benefit of the household at large, then it is recoverable.”

51. That seems to me to be wholly in accord with the decision in Daly -v- General Steam Navigation Co, already referred to by Rix LJ, in which the court upheld the decision of Brandon J reported at [1979] 1 Lloyd’s Rep 257, by which he awarded to a claimant wife damages for deprivation of housekeeping capacity. In a passage at p.265, Brandon J set out the principles in a manner subsequently approved by the Court of Appeal:

“I have considered first whether it is right to treat the plaintiff’s partial loss of housekeeping capacity as a separate head of damage, or whether it should be regarded only as one element in the loss of the amenities of life for which general damages have to be awarded. Having considered the matter, I have reached the conclusion that this disability should be treated as a separate head of damage. When a person in paid employment suffers a total or partial loss of earnings by reason of disability, such loss is invariably treated as a separate head of damage with separate assessments of past and future loss. Where the person concerned is a housewife, who is disabled wholly or partly from doing housekeeping in her own home, she does not suffer an actual loss of earnings and, unless a substitute is employed, she may not suffer any pecuniary loss at all. Nevertheless, she is just as much disabled from doing her unpaid job as an employed person is disabled from doing his paid one, and I think that she is, in principle, entitled to be compensated for her loss in a similar way.”

52. The decision in Daly duly established that in an appropriate case loss of the claimant’s ability to do unpaid work in the home for the benefit of the family is a recoverable head of damage. It seems to me that the principle recognised is applicable to cover the position not only of a spouse, but also of a member of the family, such as the claimant in this case, who acknowledges and undertakes the obligation to carry out household and other tasks for the general benefit of the family of which he or she is a member and without which, following his or her disablement, it is necessary to obtain a substitute, whether that substitute is someone who is remunerated for such services or is another member of the family who has not previously performed the relevant tasks but gratuitously agrees to take them on, over and above the previous arrangements reasonably adopted by the family. If the task in question is the care of a disabled member of the family rather than some more humdrum family activity, it is not thereby removed from the category of recoverability on the grounds (as the judge put it) that the gratuitous services were for the benefit of the brother alone; nor is there any reason in logic or humanity why that should be so.
53. Within that head of damage, where the services have been supplied gratuitously and are thereafter performed by another, also gratuitously, a subsidiary problem arises as to the basis upon which the loss or value of the services is to be assessed. In particular, if the court adopts the yardstick of a reasonable rate of remuneration for the hours worked, does such yardstick fall to be applied both to special damage (i.e. pre-trial loss) and future loss? In Daly at first instance, Brandon J adopted a consistent approach as between the two, treating the award of special damages as a simple matter of calculation based on the appropriate notional cost of supplying the services and, similarly in respect of future loss, by use of an appropriate multiplier applied to a multiplicand based on the cost of providing the housekeeping services which the claimant would in future be unable to perform, regardless of whether an outsider would in fact have been employed to provide those services. Brandon J’s method in respect of future costs was approved by the Court of Appeal. The court (while acknowledging the lack of logic involved) took the view that the figure for special (i.e. pre-trial) damages had to be assessed on the basis of actual rather than notional loss, being limited to the amount actually expended on substitute services, any part-time earnings lost by the claimant’s husband in looking after her, and an augmented sum by way of general damages for pain, suffering and loss of amenity up to trial.
54. In its 1999 report ‘Damages for Personal Injury; Medical Nursing and Other Expenses; Collateral Benefits’ (Law Com No 262), already quoted by Rix LJ, the Law Commission recommended (inter alia) that where a claimant has suffered loss of, or reduction in, his or her ability to do work in the home

(1) This should be compensated as past pecuniary loss where the claimant has reasonably paid someone to do the work, and as a future pecuniary loss where the claimant establishes that he or she will reasonably pay somebody to do it.

(2) ... the claimant should also be able to recover damages for the cost of the work where the work has been or will reasonably be done gratuitously by a relative or friend .. and should be under the personal liability to account for the damages awarded in respect of past work, to the person .. who performed the work; but no legal obligation should be imposed in respect of damages awarded for work to be done in the future.

55. The Law Commission considered that legislation would be necessary to reverse Hunt –v- Severs insofar as it held that no damages can be recovered where the person who has gratuitously carried out domestic work is the active tortfeasor; also to modify the trust concept endorsed in Hunt –v- Severs. However, the Commission expressed the view that the common law could otherwise be expected to develop so as to reach the position recommended by the Law Commission. I agree that it should so develop and that this case represents a welcome opportunity to push it in that direction.
56. In Swain, I expressed the view that it was inexplicable that parliament had ‘refused’ to import into English law the recommendations of the Pearson Commission. As suggested by Rix LJ, it seems to me that I put the matter too strongly and that the failure of parliament in that respect does not constitute a barrier to a decision of the court in this case by way of expansion of the decision in Daly. I agree with Rix LJ that Daly, having been decided a year before the 1982 Act was passed, may well have been regarded by parliament as marking a development which rendered less pressing the need for any specific provision in English law along the lines provided by s.9 of the 1982 Act in respect of Scottish law.
57. Thus, I would give an affirmative answer to the first of the issues before the judge. At the same time, because this court is bound by its previous decision in Daly, I feel unable to follow so far as I would like in the direction in which logic and my own inclination would otherwise lead. It is therefore my reluctant conclusion that the judge who eventually has the task of assessing the claimant’s damage in respect of any impaired ability to perform carer services for his brother will be obliged to assess the special damages and the future loss on the differing bases prescribed in respect of each by the Court of Appeal in that case.
58. I would add one final note of reservation. The issues as drafted raised questions of broad principle for the consideration of the court on a factual basis which is assumed but not admitted. The underlying facts of the case are still wholly at large and will require careful examination in the course of the assessment of damages in the light of the various factual challenges briefly set out in the respondent’s skeleton argument but not explored before us.
Order: Appeal allowed in part; submissions to be made in writing by the Respondents’ on costs and application for permission to appeal to the House of Lords within 7 days; appellants’ submissions within 7 days thereafter. (Order does not form part of approved judgment).