How is the cost of non-professional care claimed in a case?

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Clinical Negligence Article

16 December, 2020

The idea of compensation is to put the injured person back in the position they would have been in, before their injury.

The purpose of an award for non-commercial care is 'to enable the voluntary carer to receive proper recompense for his or her services. (Hunt v Fevers 2004 AC).

When determining the level of award, the nature and extent of care required is looked at. A person cannot give up a well paid job to care for a relative and seek to recover their loss of earnings. The ceiling of such an award is limited to the cost of commercial care.

What constitutes care?

When we look at the extent of an injury that has been caused by the alleged negligence, we must take into consideration pre-existing medical history of the Claimant to determine the level of additional care required by the injury. The obvious headings are for physical care including help with dressing, washing, moving, cutting up food, feeding, cooking, shopping, cleaning and bathing.

What tends to be challenged is anything that goes beyond a physical act.

  • Attending at hospital.
  • Caring for others, for whom the injured party is no longer able to care for.
  • Case management tasks, such as organising carers and treatment in a serious case.
  • Prompting a brain injured person to organise their appointments and finances without removing their independence.
  • Offering emotional support as the person comes to terms with their disability.
  • Painting, decorating, DIY, gardening and looking after a vehicle.

A solicitor will normally explore these possibilities and seek to demonstrate the nature and extent of care provided, and the benefit of it. This is dealt with through witness evidence from the person providing the care, and from the Claimant receiving it.

The level of care required is largely dictated by the Claimant's injuries and that is why each case needs to be looked at individually.

The case of Giambrone v JMC Holidays Ltd (2004) is frequently relied on as evidence that compensation should be given for care which goes beyond that which is the part of ordinary regime of family life. Before that date, an earlier case of Mills had suggested that such awards were reserved for 'very serious cases'. In the case of Giambrone the carer was responsible for looking after a child with gastroenteritis. The care provided was beyond that which would ordinarily be expected for a child.

How is the rate assessed?

There is often an hourly rate applied based . Where a family member provides one to one care at nights, weekends and during the day, there is often an enhanced aggregate rate.

There is not however, a distinction between more skilled aspects of care. In more serious cases the provision of professional nursing care at a higher level is wise to consider.

Evidence to support care in larger claims

This tends to be provided by:

  • medical evidence on the claimant's needs;
  • assessments and records from local authorities and/or primary care trusts;
  • witness evidence from the claimant and/or the family, possibly supplemented by diary or video evidence; and
  • evidence from one or more care experts.

Care in a serious claim can form a large part of a past and future losses claim. It is essential to grasp this and the steps needed to achieve it to fit the individual.

For more information contact Leonie Millard in our Clinical Negligence department via email or phone on 01254 770517. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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