Care Award Claims
In many personal injury claims, a claimant would have sustained injuries that prevent them from carrying out activities that they were able to undertake before they were injured. A claimant may not be able to do the cooking, shopping, housework and may have difficulty with other basic activities such as toileting and bathing. Where a claimant pays a professional carer to provide care services which are required as a result of their injuries, then the care costs can be included within the claim and invoices can be obtained from the carer to confirm the exact cost of the care provided. A care award claim can be made in respect of care that has been provided in the past and care which will be required in the future as a consequence of the claimant’s injuries. Where a future care award claim is made, the claim can be based on the amount of care that is reasonably required as a result of the injuries sustained and the actual cost of that care is projected into the future by using what is known as a multiplier which takes into account the claimant’s age, sex and projected life expectancy when the claim is calculated. In the case of Daley re General Steam Navigation Company Ltd  1 WLR 120 CA the court stated that it was important to distinguish care help and assistance that the claimant would normally receive from family members from the additional care received as a result of the injures sustained. It was only the additional element of care that is recoverable. In the case of Rialas v Mitchell  Court of Appeal 128 SOL Journal 704 the court held that the claimant was entitled to what was reasonably necessary to alleviate his injury and diminish his disability, though not to the best possible facilities. The Court of Appeal rejected an argument that it was unreasonable for the claimant to be cared for at home when private provision could be provided at a cheaper cost. In the vast majority of cases, the cost of caring for a claimant at home would be substantially cheaper than the cost of caring for the claimant in an institution.
In care claims, claimants are entitled to recover the cost of private care provision even though some or all of the care services required could have been provided free of charge on the NHS. The Law Reform Personal Injuries Act 1948 Section 2(4) states “In an action for damages for personal injuries there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities under the National Health Service.’’ The position was further emphasised in the case of Peters v East Midlands Health Authority  3 WLR 737 which concluded that a claimant who wishes to opt for self-funding and damages in preference to reliance on the statutory obligations of a public authority should not be prevented from doing so. Where the loss has been caused by the wrong doing of the defendant, the claimant is entitled to have that loss made good so far as is possible by the provision of accommodation and care.
In serious personal injury claims, it will be necessary to obtain a care report from a suitably qualified expert such as a qualified nurse, the care report will provide an estimate of the appropriate numbers of hours of care that are required by the claimant as a result of the injuries sustained and the nature of the care required. The care report will confirm the costs of that care on an annualised basis, how much care has been provided in the past and how much will be provided in the future. The care report will also confirm, whether the claimant’s property needs to be adapted to make it suitable for the claimants use, for example, the provision of a ramp to provide access to the front door and the provision of a stairlift so that the claimant can obtain easy access to bedrooms and bathrooms on the second floor.
Where the claimant has suffered serious injuries, it may be necessary to make further adaptions to the property, for example, the construction of an extension to the house on the ground floor to allow ground floor access to a bedroom/bathroom. In those complex cases, it can often be necessary to obtain a separate report from a disability accommodation expert such as a chartered architect to confirm the cost of the alterations to make a property suitable for disabled use. It is also possible to claim for the cost of disability aids such as electrically powered wheelchairs, electrically reclining chairs, an electrically operated mobile hoist for a patient to be lifted out of bed and into a wheelchair, orthopaedic mattresses, adjustable mobility aids, long handled brushes, long handed extendable clasp reachers, adaptions to the claimant’s vehicle to allow for disability use and routine items such as incontinence pads and waterproof mattress protectors. The additional costs of disability equipment can continue to be claimed on a lifelong basis where required. In the case of Whiten v St Georges Health Care NHS Trust  EWHC 2066 QB a judge allowed the claimant to claim for the following items, a lycra hand splint and lycra bodysuit, a tricycle up to the age of 18, specialist orthotic equipment ie specially designed shoes, a specialised terrain buggy up to the age of 12, a specialised bath and bathseat, a changing table and various electrically powered wheelchairs. A claim for an environmental control unit to allow the claimant to control lights and curtains was refused on the grounds that the claimant would never have sufficient cognitive ability to control those items as a result of the infant claimant’s brain injuries. When assessing the future cost of disability equipment, in addition to considering the capital cost of the equipment, the annual cost of maintenance, how long the equipment will last before requiring replacement and the future period that the equipment will be required for will all have to be considered so an appropriate multiplier can be applied to future equipment costs.
Where a claimant has suffered less serious injuries, it will not be necessary to obtain a professional care report or accommodation expert’s report but a claim for gratuitous care can still be put forward on the basis that a relative or friend has provided an injured claimant with assistance to enable them to carry out tasks which they would have carried out themselves before they were injured. In the case of Giambrone v. JMC Holidays Ltd (Sun World Holidays Ltd) [No 2 2004] EWCA Civ 158 Court of Appeal the court concluded that a relative could be granted a care award where they provided care that went beyond that normally provided, i.e. washing, dressing, changing bandages, administering medication, assisting with mobility, toileting and helping an injured person in and out of cars, etc. In that case, the parents were able to claim additional care provided for their children because their children were ill with gastroenteritis. The judge made an award of £50 per week in respect of the gratuitous care provided by the parents. In other case authorities, courts have confirmed that a care award can also be made where a relative provides assistance with housework, shopping and other activities which would normally be carried out by the injured person.
The appropriate care award rate is often based on the ASHE tables which are the Annual Survey of Hours and Earnings Tables which cover care assistants and home carers. The Tables are published by the Office of National Statistics using invariably 75 to 85 per centile rates. The rate for gratuitous care is often taken as the commercial rate for a home carer in the area where the claimant lives less a discount to allow for the fact that the care has been provided gratuitously so the carer will not have to pay tax or National Insurance. The discount applied by the court is often in the range from a minimum of 20% up to a maximum of around 33%. The number of hours of care which can be claimed will depend on medical evidence that the care is reasonably required for the injuries sustained by the claimant so is recoverable. The carer who provided the claimant with care can provide an estimate of the number of hours of care provided so that the claim can then be calculated on the basis that it is consistent with the effect of the injuries sustained as set out in a medical report obtained in relation to the claim.
A claim can also be made for future gratuitous care for a period of time into the future and in some cases, gratuitous care could be claimed on a lifelong basis.
I have dealt with a large number of claims over the years where an award has been made for gratuitous care, in some cases an award has been made for only a few weeks care, for example where a claimant has suffered a fractured ankle and the leg is in a plaster cast for a month and the claimant requires assistance with washing, dressing, cooking and is unable to shop or drive during that period. In far more serious injury cases claimants have required gratuitous care on a long term basis. I have also dealt with more serious cases where care and accommodation reports have been obtained where the cost of past and future care provision can be the largest component of a claim.