Lowe v Guise
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Mr Justice Morland,Lord Justice Potter |
| Judgment Date | 26 February 2002 |
| Neutral Citation | [2002] EWCA Civ 197 |
| Docket Number | Case No: B3/2001/0536 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 February 2002 |
[2002] EWCA Civ 197
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
Lord Justice Potter
Lord Justice Rix and
Mr Justice Morland
Case No: B3/2001/0536
Mark Anderson (instructed by Messrs F A Greenwood & Co) for the Appellant
Simon King (instructed by Messrs Irwin Mitchell) for the Respondent
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.
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."
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.
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.
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.
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.
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?"
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
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.
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.
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.
To understand this issue it is first necessary to explain the statutory and jurisprudential background to it.
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…"
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…"
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)...
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