England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM DISTRICT REGISTRY
HH Judge MacDuff QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th February 2004

Lord Justice Brooke :

1. This is an appeal by the defendants against an order made by Judge MacDuff QC sitting as a High Court judge in the Birmingham District Registry on 1^st May 2003. The judge was concerned with the assessment of damages in six "lead cases" arising out of the defendants' breaches of contract which led to personal injury being sustained by the claimants while on holiday at the Club Aquamar in Majorca. Unhappily many of the defendants' customers at that resort developed gastro-enteritis or other similar illnesses during their holiday. 652 of them brought claims against the defendants, and the judge had been concerned with the case management of these claims under the umbrella of a group action. Judgment was entered against the defendants by consent on 5^th April 2000 for damages to be determined by a judge.

2. 32 lead cases were selected, and in due course 401 of these claims were settled, including 26 of the lead cases. At the trial on 3^rd March 2003 the judge was concerned with the assessment of damages in the remaining six lead cases. At the centre of the dispute at the trial was the question whether an award should be made for the "value of care" given to the claimants after they returned home. There was a similar dispute about the viability of a "loss of services" claim by an adult claimant, but we are not concerned with that on this appeal. All the other heads of damage were agreed, subject to the court's approval in the cases involving claimants under the age of 18. The judge decided the "value of care" issue in favour of the claimants.

3. This, then, is the subject-matter of the defendants' appeal. Although the amounts at issue in these six cases are comparatively small, there are many group claims of this kind making their way through the courts, so that this judgment will be of much wider importance than might be indicated by the amounts at issue in these appeals. The defendants made it clear in paragraph 7 of their Grounds of Appeal that if we were to uphold the judge's judgment in principle, there would be no challenge to the amount of the awards he made in these six cases.

4. The lead cases all represented cases in which the claimant had been ill for more than 14 days. Cases involving an illness of shorter duration were dealt with separately. The lead cases were divided into 11 groups, depending on the length of the claimant's illness. I will refer to the six claimants by the letters A to F, and they can be categorised (with an indication of their age at the time of the holiday) as follows:

   Claimant	Group	Duration of Illness	Age	Care Claim
   A	2	22-28 days	3 years 10 months	2 weeks
   B	3	29-42 days	7 years	2 weeks
   C	5	3-4 months	8 years 9 months	111 days
   D	8	6-8 months	18 months	77 days
   E	9	8-10 months	7 years	2 weeks
   F	11	Over 12 months	29 years	3 weeks

5. The principal issue the judge had to decide was whether these claimants could recover damages for gratuitous care after they returned home from their holiday. The judge held that they could, and he awarded them sums ranging between £120 and £275. In the first five of these cases it was only the value of parental care that was in issue. In the sixth case the adult claimant claimed the value of extra care provided by his wife.

6. The judge summarised the general nature of the first five of these claims in these terms:

   "In all these claims, the care (be it 'nursing' care and attendance, or child minding) was provided by a parent, and not by some third party for payment. In all these claims, the claim is for the value of that which the parent provided. I do not think there is any distinction to be drawn between these different categories (nursing care and childminding). They are part and parcel of the same need – to look after the child during his/her illness. The 'care' may attract different labels. It may be childminding; attending the child when, but for the illness, it would not be necessary. It may be nursing care in the narrow sense: helping to the lavatory, administering medicine, changing the bedding, or cleaning up after an accident. It may be care (or attendance) in the wider sense; being at the bedside, to provide comfort and support to an ill child. These different roles all fall within the generic term 'care and attendance' or (where the provision is by a parent and not a professionally engaged carer) 'gratuitous care'."

7. The claim advanced in the case of each child was a claim based on the hourly rates set out in the Home Cover (Home Help) National Joint Council for Local Authority Services, New Spinal Point 8, with no allowance being made for enhanced rates paid to local authority workers for unsocial hours. The duties involved in this work tended to mirror those of a family providing care in their own homes. In four of the cases an hourly rate of £4.98 was adopted, and in the fifth case a rate of £4.84 an hour. The sums claimed, and the judge's award, were as follows:

   Claimant	Days	Hours per Day	Claim	Total Award
   A	7	4	£139.44
   	7	2	£ 69.72	£150
   B	4	5.5	£103.88	£209.16
   	5	6	£145.20
   			£249.08	£175
   C	14	4	£278.88	£175
   D	5	4	£ 99.60
   	2	14	£139.44
   	2	10	£ 99.60
   	27 weeks	4 per 3 weeks	£179.28
   			£517.92	£275
   E	1	6	£ 29.88
   	14	2	£139.44
   			£169.32	£150

8. After considering the authorities, to which I will turn, the judge concluded that the governing principle was that an award for the value of gratuitous care might be allowed if the claimant's illness or injury was sufficiently serious to give rise to a need for care and attendance significantly over and above that which would be given anyway in the ordinary course of family life. He said that he knew from his own experience of trying and case managing these cases, both in the High Court and in the county court, that these claims were regularly made and regularly allowed.

9. The judge then referred to the judgment of May LJ in Evans v Pontypridd Roofing Ltd [2001] EWCA Civ 1157; [2002] PIQR Q5 and went on to say:

   "… I do draw assistance from the case. The Court of Appeal took the opportunity to emphasise that a judge of first instance should not be put into a strait-jacket, when assessing this head of damage. In many cases, it might be inappropriate to adopt the traditional approach (assessing a number of hours input per day or week, applying a commercial hourly rate, and then discounting, in the way described earlier in this judgment). It is open to a judge to assess the value of the care, very much as he might assess general damages for pain and suffering, by having regard to what the carer has done, and fixing appropriate compensation. In this case it seems to me that such an approach is the correct one. It is artificial to adopt what I have called the conventional approach, where a parent of young children is providing a mixture of love, support, and care. It is just not possible to separate out the 'extra' hours or minutes superimposed on the normal daily round by the illness. It is possible to understand the general nature of the extra burden placed upon the parent, and to make a proportionate and proper award. That is how I propose to assess the damages in these cases."

10. The judge noted that it had been conceded that there should be some discount from the amounts claimed on full commercial care rates, but he commented:

    "That is of small significance, in view of the fact that I intend, as I have said, to adopt a more broad brush approach. I have read the evidence of the parents carefully. I have read the medical evidence, because it seems to me that the nature and severity of the child's illness is a relevant factor. I have noted the number of days or weeks over which care was said to be necessary. I have taken account of the fact that, for part of the time, the claimant was getting better and that the need for care would, at that time, reduce. I have taken account of whether or not the claim incorporates a claim for 'child minding' (where the claimant was unable to go to nursery or school and needed to be attended) and I have taken account, in each case, of the nature of the additional burden, as described by the parent."

11. He then proceeded, without any further explanation, to make the individual awards I have indicated in the right hand column of the table in paragraph 7 above. On this appeal Mr Haddon-Cave QC, who appeared for the defendants, made no attempt to challenge the reasonableness of the judge's awards on the basis on which he made them. His concern was to persuade us that no award ought to have been made at all under this head in any of these cases.

12. There was very little dispute on the hearing of the appeal about the general rules which govern the award of damages for gratuitous care rendered to an injured claimant. There is a useful summary of the law in Halsbury's Laws, 4^th Edition Reissue, Vol 12(1) at para 898:

    "Where the injured plaintiff is cared for, not by professional, paid carers, but by volunteers, whether members of his family or otherwise, the award of damages will reflect the value of the services provided. The value of such gratuitous services may be determined either by applying the cost of buying such care on the open market, or by assessing the loss of income suffered by a carer who has given up paid employment to care for the plaintiff, or a combination of the two. A plaintiff who receives damages for services rendered by another holds the relevant amount on trust for that other."

13. A footnote records that a common practice now is to award gratuitous family care at two-thirds of the market rate. Awards of this kind generally attract publicity when a claimant has been grievously injured. In the leading case of Housecroft v Burnett [1986] 1 All ER 332 O'Connor LJ set out the governing principles at pp 342g-343f. This passage was authoritatively reviewed by May LJ in Evans v Pontypridd Roofing Ltd [2001] EWCA 1657; [2002] PIQR Q5 in a judgment which clearly influenced Judge MacDuff's approach in the present case. It is sufficient for present purposes to cite a few short passages from May LJ's judgment

14. First, he cited (at para 23) Lord Bridge's speech in Hunt v Severs [1994] 2 AC 350 in which he said at p 363A:

    "Thus in both England and Scotland, the law now ensures that 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 … [T]he underlying rationale of the English law … is to enable the voluntary carer to receive proper recompense for his or her services."

    May LJ then went on to say (at para 25):

    "In my judgment, this court should avoid putting first instance judges into too restrictive a strait-jacket such as might happen if it was said that the means of assessing a proper recompense for services provided gratuitously by a family carer had to be assessed in a particular way or ways. Circumstances vary enormously and what is appropriate and just in one case may not be so in another."

15. After saying that the means of reaching the assessment must depend on what is appropriate to the individual case, and mentioning the judgment of Turner J in Hogg v Doyle, Kemp & Kemp A2-205, May LJ said (at para 26):

    "What this case … illustrates is that it is appropriate to make an assessment on the basis of the caring services provided by the gratuitous carer as a result of the claimant's injury, and it will depend on the circumstances of the case what the extent of those services are. In many cases, it will be appropriate to assess them at a relatively small number of hours per day or week."

16. As I have said, Mr Haddon-Cave did not attempt to shift the strongly established principles of law to which I have referred. His clients' concern was to establish a principle that awards of this kind should only be made in serious cases, or in cases where the claimant could point to a demonstrable financial expense in providing the necessary care, such as the cost of employing a carer during the day when a working mother was out at work and somebody had to be at home to look after a very sick child.

17. Mr Haddon-Cave supported his contention that these awards should be restricted to serious cases by reference to a single decision of this court in 1992, Mills v British Rail Engineering Ltd [1992] 1 PIQR Q130. In that case the court was concerned, among other things, with an appeal by defendants against an award of £8,000 to the widow of a man who died of lung cancer, the award being made as a recompense for her caring services to her husband during the last months of his life. Her claim had been based on two hours' services each day for the first two months of his illness. The claim increased to three hours, and then to four hours a day during the next two months up to the time his cancer was diagnosed. For the next six months the claim was elevated to what in essence represented ten hours' services each day. For the last three months a claim was made for 14 hours' services each day. Except for this final period, the claim was based on a rate of £3 per hour. For the last three months the rate was £3.25 per hour.

18. These were the charging rates for carers who were not qualified nurses with caring skills, and the award of £8,000 was based on two-thirds of the full commercial rate for such services, without any extra allowances for agency charges. The claimant's expert witness, Miss Sergeant, had prepared the necessary calculations.

19. Mr Haddon-Cave relies on passages in the judgments of Dillon and Staughton LJJ as establishing a point of principle in cases involving a claim for care services, which is said to be binding on this court. Dillon LJ said (at pp Q137 and Q138):

    "To my mind there can be no justification in principle for differentiating between full-time care needing really a trained nurse and full-time care needing a carer giving love and affection to the patient, the dying person, to a degree far more than would be expected in any ordinary way of life. In principle it must be, in my judgment, a matter for an award only in recompense for care by the relative well beyond the ordinary call of duty for the special needs of the sufferer. The basis, as explained by O'Connor LJ in his judgment in Housecroft v Burnett, is that the court will make an award to enable the sufferer or his estate to make reasonable recompense to the relative who has cared so devotedly. So it must indeed only be in a very serious case that an award is justified – where, as here, there is no question of the carer having lost wages of her or his own to look after the patient. (Emphasis added)

    To my mind, however, if one looks at Miss Sergeant's schedule for a wife's care beyond what she would anyhow have been doing for her husband in her part of the household tasks and cooking, it comes out too high. She had a lot of extra duties put upon her. Because of his illness she rightly thought that it would be wrong to leave her husband on his own. She took him out from the house either in a wheelchair that was obtained or for a drive in the car, but not otherwise; he did not walk outside the house; he could walk a little, but without ease, in the house or occasionally out to the back of the garden. He had been keen on do-it-yourself and on gardening and was an active man. Those are matters taken into account in other heads of special damage which were not in dispute. She was understandably afraid of what might happen if he pottered out in the garden on his own. The quality of his life had been reduced and that meant more care from her was needed. But I take the view that the figure that the judge awarded, having regard to the way Miss Sergeant's schedule is made up and the extent to which it goes back, was too high. I would accordingly reduce this award from £8,000 to £5,000. It is not possible to make a really precise calculation."

20. Staughton LJ said (at pp Q138-9):

    "It seems to me that a plaintiff would naturally wish to pay some reward or compensation, if he had the money to do so, for care and attendance by a relative which goes distinctly beyond that which is part of the ordinary regime of family life; and, where his disability has been caused by the fault of the defendant, it is right that he should be provided with the money to do so. It will often be difficult, or even impossible, to measure with complete accuracy what reward or compensation a reasonable plaintiff would pay to the relative in those circumstances, even though this is said to be a head of special damages. The sum should be modest and not extravagant. (Emphasis added)

    Here the care continued in all for a period of no more than a year, becoming increasingly demanding as time went by. I agree with Dillon LJ that an appropriate figure is £5,000."

    The third member of the court, Neill LJ, simply said that he agreed that the appeal should be allowed to the extent that Dillon LJ indicated.

21. It is suggested that two principles were established along the following lines:

    (1) There should be no award of this kind except in a very serious case;

    (2) In order to qualify for an award the relative must provide care well beyond the ordinary call of duty for the special needs of the sufferer, alternatively care which went distinctly beyond that which was part of the ordinary regime of family life.

22. Mr Haddon-Cave subjected both the facts of this case and the language of these ex tempore judgments to a scrutiny of an intensity which would have surprised the judges concerned. It was clearly a very serious case – the total award of damages exceeded £80,000 – so that the court did not have to determine whether no award for gratuitous care should be made at all on the grounds that the seriousness of the deceased's illness did not cross some unidentified threshold. This was a typical appeal against quantum in pre-CPR days, in which the defendants were contending not that no award should be made at all but that it should be restricted to the "last month or so" when Mrs Mills was providing care which amounted to full-time care of a nursing nature.

23. The full value of the claim in the Mills case, based on Miss Sergeant's calculations, was about £12,000, and the discount reduced this to the £8,000 awarded by the judge. The substituted award of £5,000 is equivalent to a full commercial claim of £7,500, so that it appears that the Court of Appeal decided to reduce Miss Sergeant's full claim by £4.500 (just over a third). The full claim amounted to £750 in total for the period between November 1989 and early March 1990 when cancer was first diagnosed; about £980 per month for the period between March and October when a claim was advanced on the basis of 11 hours of care each day; and a total of about £3,300 for the final two and a half months in which the cost of 14 hours care per day were being claimed.

24. We do not know the precise basis on which the Court of Appeal made its reduction. The report is not very illuminating in relation to the nature of the care involved in the first period, when Mr Mills had what appeared to be a cold which he had difficulty in shaking off, followed by a cough which would not go away. Perhaps they disallowed most (if not all) of it. For the remainder, they appear to have taken the broad brush view that the claim was over-valued by about 40%. They started from the proposition that no recompense was to be allowed for the tasks Mrs Mills would have been doing for her husband in any event, and went on to allow the claim for those elements of her care and attendance which went "distinctly beyond that which is part of the ordinary regime of family life". Whether they decided to reduce the number of hours claimed by 40% throughout the entire period after cancer was first diagnosed or, as is more likely, they adopted a graded approach, with step changes as Mr Mills became iller, the fact remains that they considered a claim for an average of seven hours services every day as a reasonable one, with a probable increase towards the end of his life. Although in this ex tempore judgment Dillon LJ used the words "well beyond the ordinary call of duty" on p Q137, he used the milder phrase "beyond what [a wife] would anyhow have been doing for her husband" at p Q138, and it is evident from the calculations Mr Haddon-Cave showed us that it was this second test which the Court of Appeal actually applied.

25. It is noteworthy that Mr Haddon-Cave was unable to show us any authoritative text-book or report which considered that Mills established any new point of principle. In its wide-ranging survey of the present law relating to the recovery of medical or nursing expenses and other costs of care, the Law Commission in Consultation Paper No 144 (1996) simply referred to it (in footnote 58 on page 12) as authority for the proposition that the care given must be over and above that which would have been given in the ordinary course of family life. It also mentioned Dillon LJ's dictum that an award would only be made for care "well beyond the ordinary call of duty for the special needs of the sufferer".

26. I reject the contention that Mills presents any binding authority for the proposition that such awards are reserved for "very serious cases". This was not a point which had to be decided in Mills, which was on any showing a very serious case, and a proposition like this would be very difficult to police. Where is the borderline between the case in which no award is made at all (unless, for example, a working mother incurs actual cost in hiring someone to look after her sick child when she was at work) and the case in which a full award of reasonable recompense is made? An arbitrary dividing line, which would be likely to differ from case to case, and from judge to judge, would be likely to bring the law into disrepute.

27. Mr Haddon-Cave's fall-back position was that the approach of Dillon LJ in Mills was based on sound reasoning and commonsense, and that it should be followed even if it is not binding. He suggested that the underlying rationale of this type of award was to enable the carer to receive the reasonable value of the gratuitous services. In determining "reasonable recompense" English law should have regard to the fact that the services are rendered in a family context. It is not reasonable, he said, to recompense family members for mutual care falling within the ordinary regime of family life, in which family members would not expect to give or receive recompense for the services they rendered. He said that it is only where the care goes well beyond the ordinary call of duty that recompense may be expected, reasonable and justified, and then only at a two-thirds rate to reflect the fact that the services are voluntary.

28. It is, I think, worthwhile to look in rather more detail at the facts of some of these cases. B, a 7-year old girl, returned from holiday with severe gastro-enteritis. She was so ill when she returned home that she had to be admitted to a children's hospital on the first day of her return. Her mother had also been taken ill, so that the child's grandmother had to look after the sandwich bar which her daughter ran in a self-employed capacity. In any event B was unable to go back to school for 14 days and she had to have an adult at home to look after her. B's stools were very loose, and she would cry when she had to go to the toilet. When she was given some soup after two days, she was sick all over the carpet. She was very weak, pale and withdrawn for two weeks. She had no energy, and suffered from stomach pains, and her mother had to spend a lot of time trying to reassure her. The judge reduced the claim of £258.96, whose breakdown is shown at paragraph 7 above and did not include any claim for the cost of care at weekends, to £175.

29. A, a three-year old boy, had had two or three episodes of gastric illness in the past, one of which was really quite severe. He, too, was extremely ill when he came home. He vomited frequently on the plane coming home, and was sick on the stairs coming off the plane. He, too, had to be taken to a children's hospital where he was placed in an isolation ward for one day. He was extremely clingy when he came home, and his mother had to spend eight hours with him on the first day. Thereafter she had to spend a lot of time with him, as is reflected in the hours claimed. A doctor expressed the view that a child of three could not cope with these symptoms on his own and would require a considerable degree of nursing support. In his case a claim for £209.16, based on a small number of hours of care for 14 days, was reduced to £150.

30. The cases of C and E call for no special mention. These were two other children of primary school age whose awards the judge reduced slightly (to £175 and £150 respectively) from the sums claimed for two weeks' care. D, however, fell into a slightly different category, because she was only 18 months old. She had remained on holiday with her family for 12 days after the onset of her acute gastro-enteritis. When she came home she was lethargic and very clingy, and her stools were very loose. He mother had to spend far more hours each day caring for her than would have been usual. Her nappies had to be changed more often, and her bedding needed to be washed frequently because she soiled it. On the sixth day after her return, her health took a turn for the worse. She had a very high temperature and stomach pains, which caused her to scream and hold her stomach. She also had acute diarrhoea, and her nappies had to be changed every two hours. These symptoms continued all that night and through the next day, and she had to be supervised constantly. On the eighth day after her return her acute symptoms seemed to ease, but she needed a lot more care than usual for the next two days. Her mother had to continue to wash and change her regularly and ensure that she drank plenty of water. In her case there was a continuing claim for an extra 4 hours care every three weeks for 27 weeks. The judge made an award of £275 as against a claim for £517.92.

31. In my judgment the judge was correct in principle to make an award for the cost of care in each of these cases. Anyone who has had responsibility for the care of a child with gastro-enteritis of the severity experienced by these children will know that they require care which goes distinctly beyond that which is part of the ordinary regime of family life. The fact that one of these mothers had a child who had suffered in this way in previous occasions provides no good reason or concluding that an award of some sort is not appropriate if there is an identifiable tortfeasor to blame.

32. I am therefore of the view that the judge's approach, as set out in paragraphs 9 and 10 of this judgment, was correct as a matter of law, and that this appeal, which posits that no award at all should have been made in any of these cases, must fail. Even if the awards in fact made by the judge had been the subject of challenge on this appeal, I do not consider that they exceeded the bracket of awards properly available to him such that this court should interfere.

33. In future, however, and echoing the words of Staughton LJ in the Mills case, I consider that any award for gratuitous care in excess of £50 a week at present day values in a case in which a child suffering from gastro-enteritis receives care from her family (so that there is no question of the cost of substitute care) should be reserved for cases more serious than these. This sum represents, in my judgment, a fair and proportionate balance, in cases of the type I have described in paragraphs 28 to 30 above, between the consideration that some payment ought to be made for the unpleasant additional burden placed on the family carer and the consideration that the care is being rendered in a family context and that the remuneration on this account should be relatively modest. This may well be a situation in which appropriate representatives of claimants and defendants, perhaps under the auspices of the Civil Justice Council, might usefully try to agree a guideline tariff for gastro-enteritis cases generally, depending on the severity of the illness (founded around this award of £50 per week at 2004 values for the cases described in this judgment), so that the disproportionate cost of proving these small heads of damage may be avoided.

34. The claim of F, the one adult claimant, calls for no special comment now that the "value of services" element no longer features in the appeal. It falls to be determined along the same lines.

35. For these reasons I would dismiss these appeals.

    Lord Justice Mance:

36. I agree.

    Mr Justice Park:

37. I also agree.