Hunt v Severs
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Bridge of Harwich,Lord Jauncey of Tullichettle,Lord Browne-Wilkinson,Lord Nolan |
| Judgment Date | 28 April 1994 |
| Judgment citation (vLex) | [1994] UKHL J0428-1 |
| Date | 28 April 1994 |
| Court | House of Lords |
[1994] UKHL J0428-1
Lord Keith
Lord Bridge of Harwich
Lord Jauncey of Tullichettle
Lord Browne-Wilkinson
Lord Nolan
House of Lords
My Lords,
For the reasons given in the speech prepared by my noble and learned friend, Lord Bridge of Harwich, which I have read in draft and with which I agree, I would allow this appeal and make the order he proposes.
My Lords,
A plaintiff who establishes a claim for damages for personal injury is entitled in English law to recover as part of those damages the reasonable value of services rendered to him gratuitously by a relative or friend in the provision of nursing care or domestic assistance of the kind rendered necessary by the injuries the plaintiff has suffered. The major issue which arises for determination in this appeal is whether the law will sustain such a claim in respect of gratuitous services in the case where the voluntary carer is the tortfeasor himself.
The plaintiff was gravely injured on 14 September 1985 in a road accident in France when she was riding on the pillion of a motorcycle driven by the defendant. She was then 22 years of age. The defendant's liability in negligence has never been in dispute. The plaintiff's injuries caused paraplegia and unhappily she suffered many complications. The two doctors called by the plaintiff and the defendant at the trial agreed that, in terms of complications, she was the worst paraplegic case they had come across. She spent long periods in various hospitals, but whenever she was not in hospital she and the defendant were living together and in November 1990 they were married.
The action was tried in April 1992 by Mr. David Latham Q.C., sitting as a deputy judge of the Queen's Bench Division. He delivered judgment on 15 April 1992 awarding the plaintiff a total sum of £617.004 made up as follows:
| £ | |
| General damages for pain and suffering and loss of amenity | 90,000 |
| Special damages | 90,094 |
| Future loss | 412,104 |
| Interest on general damages | 6,588 |
| Interest on special damages | 18,218 |
| £617,004 |
Included in the award of special damages was a sum of £4,429 representing the defendant's travelling expenses incurred in visiting the plaintiff while she was in hospital and a sum of £17,000 representing the value of the past services rendered by the defendant in caring for the plaintiff when she was at home. Included in the award for future loss was a sum of £60,000 representing the estimated value of the services which would be rendered by the defendant in caring for the plaintiff in future. The basis on which the judge approached the assessment of the several elements which went to make up the plaintiff's estimated future loss, subject to a number of detailed adjustments which it is unnecessary for present purposes to examine, was to apply a multiplier of 14 to the estimated future annual losses.
The defendant appealed against the inclusion in the award of the sums in respect of the defendant's travelling expenses and care for the plaintiff. The plaintiff cross-appealed on various grounds. The Court of Appeal (Sir Thomas Bingham M.R., Staughton and Waite L.JJ.), in a reserved judgment delivered on 12 May 1993 [1993] Q.B. 815, dismissed the defendant's appeal and allowed the plaintiff's cross appeal to the extent of substituting 15 for 14 as the appropriate multiplier to be used in calculating future loss which, taking account of the detailed adjustments referred to, had the effect of increasing the total award of damages by £20,013.
The defendant now appeals by leave of the Court of Appeal to your Lordships' House. Three issues arise for decision. The first relates to the award in respect of the defendant's travelling expenses, the second to that in respect of his past and future care of the plaintiff, the third to the Court of Appeal's increase in the judge's award. The first two issues are theoretically distinct, but I propose to address them together. There is no dispute that the defendant's visits to the plaintiff in hospital made a valuable and important contribution to her general well-being and were calculated to assist her recovery from the devastating consequences of the accident. But for the fact that the defendant was himself the tortfeasor, the propriety of the award under this head would be no more open to question than the award for his services as a voluntary carer. Accordingly, it seems to me that both these issues must depend upon the same considerations of principle. The third issue is, of course, quite distinct and I will consider it later.
The trial judge said of the claims now in dispute:
"It is said that these sums are irrecoverable, that they represent in effect a benefit to the defendant himself, that in so far as they reflect a loss on the plaintiff's part it has been made good by the defendant so that there is in truth no loss, and that if the incidence of insurance is put on one side it can be seen that the claim is misconceived. However, in my judgment this ignores the basis upon which the claim is made. It is merely a notional monetary figure placed on the true nature of the loss for which she is entitled to compensation. This loss is the need she now has by reason of the accident for care and support which she did not have before. This follows from the analysis of the legal basis of such claims by Megaw L.J. in Donnelly v. Joyce [1974] 1 Q.B. 454 at p. 462. The valuation of this need remains a difficult exercise. In Housecroft v. Burnett [1986] 1 All E.R. 332, O'Connor L.J. made it clear that when provided by unpaid carers there remains a value to be placed on it. In my view that remains so whether provided by the tortfeasor or not. He may give his care and response to the need, but that does not make good the loss, otherwise there will be no sustainable claim in any case where the need has apparently been 'met' by unpaid carers."
In the Court of Appeal the judgment of Megaw L.J. in Donnelly v. Joyce [1974] Q.B. 454 again provided the main foundation for the court's reasoning. Having examined this and other authorities, Sir Thomas Bingham M.R., delivering the judgment of the court, expressed their conclusion, at [1993] Q.B. 831, as follows:
"Where services are voluntarily rendered by a tortfeasor in caring for the plaintiff from motives of affection or duty they should in our opinion be regarded as in the same category as services rendered voluntarily by a third party, or charitable gifts, or insurance payments. They are adventitious benefits, which for policy reasons are not to be regarded as diminishing the plaintiff's loss. On the facts of the present case the judge's decision was not in our view contrary to principle or authority and it was fortified by what we regard as compelling considerations of public policy. We consider that he reached the right conclusion and would accordingly dismiss the defendant's appeal."
The starting point for any inquiry into the measure of damages which an injured plaintiff is entitled to recover is the recognition that damages in the tort of negligence are purely compensatory. He should recover from the tortfeasor no more and no less than he has lost. Difficult questions may arise when the plaintiff's injuries attract benefits from third parties. According to their nature these may or may not be taken into account as reducing the tortfeasor's liability. The two well-established categories of receipt which are to be ignored in assessing damages are the fruits of insurance which the plaintiff himself has provided against the contingency causing his injuries (which may or may not lead to a claim by the insurer as subrogated to the rights of the plaintiff) and the fruits of the benevolence of third parties motivated by sympathy for the plaintiff's misfortune. The policy considerations which underlie these two apparent exceptions to the rule against double recovery are, I think, well understood: see, for example, Parry v. Cleaver [1970] A.C. 1, 14 and Hussain v. New Taplow Paper Mills Ltd. [1988] A.C. 514, 528. But I find it difficult to see what considerations of public policy can justify a requirement that the tortfeasor himself should compensate the plaintiff twice over for the self same loss. If the loss in question is a direct pecuniary loss (e.g. loss of wages), Hussain's case is clear authority that the defendant employer, as the tortfeasor who makes good the loss either voluntarily or contractually, thereby mitigates his liability in damages pro tanto. The Court of Appeal, in the judgment appealed from, readily accepted a number of examples advanced in argument for the appellant defendant as showing that a tortfeasor may mitigate his liability by making good in kind the physical damage which his tort has caused to the plaintiff's property. In a wide-ranging argument before your Lordships, where many hypothetical examples were examined of gratuitous services rendered by a tortfeasor to an injured plaintiff in satisfaction of a need occasioned by his tort, Mr. McGregor, for the respondent plaintiff, was constrained to accept as a general rule that the tortfeasor, having provided those services, cannot also be held liable to the plaintiff in damages for their value. But he submitted that where the tortfeasor is a relative or close friend of the plaintiff and gratuitously provides services of an intimate personal or domestic character, he is required by law, as a narrow exception to the general rule, also to pay the plaintiff the value of those services.
The law with respect to the services of a third party who provides voluntary care for a tortiously injured plaintiff has developed somewhat erratically in England. The voluntary carer has no cause of action of his own against the tortfeasor. The justice of...
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