3.87 As we have described,96 damages may be recovered for the claimant’s loss of the ability to do work in his or her home.97 According to the decision of the Court of Appeal in Daly v General Steam Navigation Co Ltd,98
such damages are recoverable as a past pecuniary loss where the claimant has in fact engaged paid help or has received unpaid help from someone who has had to forgo paid employment to provide it. If the claimant has continued to attempt the work despite the injury, the loss can be reflected in his or her damages for pain, suffering and loss of amenity. As regards the future, however, it seems damages are recoverable as a pecuniary loss regardless of whether the claimant will pay someone else to do the work, or do the work as best he or she can in the circumstances.
3.88 In our Consultation Paper we criticised the decision in Daly for this inconsistency between past and future loss. Although the decision recognises that it was artificial to assume that past loss was always pecuniary in nature, it applies that very artificiality to the assessment of future loss. We provisionally recommended that past and future loss should be treated consistently. That is, it should be compensated as a pecuniary loss to the claimant where he or she has paid or will pay for the work to be done, as a loss to the third party where that third party has carried out, and will carry out the work for free, and as an element of non- pecuniary loss where the claimant has struggled on with the work regardless and will continue to do so.
3.89 Our consultees welcomed the suggestion that the law should be consistent as between past and future loss, and there was widespread agreement with the statement of the law we had proposed.99 The greatest concern arose with respect to the idea of awarding damages for non-pecuniary loss where the work has been
95
See paras 3.57-3.60 above. 96
See para 2.34 above. 97
Throughout this section we refer to ‘work in the home’, but this would obviously include, for example, work in the garden and other ‘odd jobs’.
98
[1981] 1 WLR 120. See also Hoffman v Sofaer [1982] 1 WLR 1350, 1355-1356 (recovery in respect of ‘do-it-yourself’ work around the home).
99
See Damages for Personal Injury: Medical, Nursing and Other Expenses (1996) Consultation Paper No 144, para 3.78.
done and will be done by the claimant. Peter Andrews QC, for example, thought it “naive to suppose that the courts will make an appropriate award of damages for non-pecuniary loss where the plaintiff has struggled on.” But the Council of Circuit Judges strongly supported this suggestion, particularly on practical grounds, in preference to “having to make a series of small awards, which it may not be easy to assess individually.” We remain of the opinion that loss of the ability to do work around the home is better, and more realistically, seen as a non- pecuniary loss where the claimant continues to do the work.
3.90 Where the work is done by a third party, such as a friend or a member of the claimant’s family, consultees were unanimous in accepting that damages should be recovered. Consistently with our recommendations on gratuitously provided care,100 we think that where such damages are awarded in respect of past work the claimant should be under a personal obligation to account to the person who did that work. But once again we think that no legal obligation should be imposed on the claimant to pay third parties for the work they may do in the future.101
If a claimant shows that he or she will either pay for the work to be done or will arrange for it to be done for free by a third party, damages for the work should be recoverable, and the claimant should be free to do with them as he or she wishes. 3.91 In accordance with our provisional recommendation and supported by the
views of almost all of our consultees who responded on this issue, we therefore recommend that, where the claimant has suffered a loss of or reduction in his or her ability to do work in the home:
(1) this should be compensated as a past pecuniary loss where the claimant has reasonably paid someone to do the work, and as a future pecuniary loss where the claimant establishes that he or she will reasonably pay someone to do it.
(2) consistently with our recommendations on gratuitously rendered nursing services, the claimant should also be able to recover damages for the cost of the work where the work has been or will reasonably be done gratuitously by a relative or friend (including the tortfeasor) and should be under a personal liability to account for the damages awarded in respect of past work, to the person (including the tortfeasor) who performed the work; but no legal obligation should be imposed in respect of damages awarded for work to be done in the future.
(3) where, despite the impairment of his or her ability to do so, the claimant has carried out work in the home and/or will do so, damages for non-pecuniary loss (pain, suffering and loss of amenity) should include a sum in respect of past and/or future reduced ability to do work in the home.
100
See para 3.62 above. 101
We would also emphasise that (1), (2) and (3) are not intended to be mutually exclusive: that is where the claimant pays someone to do part of the work and/or receives gratuitous services for part of the work and/or carries out part of the work him/herself, damages under (1), (2) and (3) can be combined.
3.92 Should the recommendation in paragraph 3.91 be implemented by legislation? It appears from the responses we have received that litigation on these issues is rare, and that in practice the decision in Daly is often distinguished so that past and future loss can be treated consistently. Moreover, the impact of the House of Lords’ approach in Hunt v Severs on this area has not yet come before the courts. We therefore think it unlikely that the courts would consider themselves bound by the approach in Daly. In general, it follows that we consider that the common law can be expected to reach the position set out in paragraph 3.91; and that legislation is, by and large, unnecessary. On the other hand, we think that legislation is necessary, first, to reverse Hunt v Severs in so far as the decision in that case means that no damages can be recovered where the person who has gratuitously carried out domestic work is the tortfeasor; and secondly, to build on and clarify (and slightly to depart from) the application of the general reasoning in
Hunt v Severs to gratuitously provided domestic assistance.
3.93 We therefore consider that the recommendation in paragraph 3.91 should be implemented by legislation only to the extent that we have recommended analogous legislation in relation to gratuitous nursing care (in paragraphs 3.66 and 3.76 above). (Draft Bill clauses 1, 2, 3(2)(c), and 3(3))
5. HOSPITAL VISITS
(1) Generally
3.94 Under the present law, a claimant is entitled to recover the reasonable costs incurred by third parties in visiting him or her in hospital102 and, following Hunt v
Severs,103
damages awarded for these costs are to be held on trust for the person who incurred them.104
Our provisional recommendation, having considered this issue in our Consultation Paper, was that such damages should continue to be available. We thought this an extension of the basis on which damages are recovered for gratuitous care. There was no real disagreement with our provisional view among consultees.
3.95 Two issues arose in particular. First, should there be a limit on the class of people whose visiting costs are recoverable by the claimant? Several consultees suggested limiting entitlement to the claimant’s immediate family, or dependants. Secondly, what costs should be recoverable? George Pulman QC said that although damages for such visits are regularly claimed and paid in practice, “the argument is usually
102
In principle, there seems no reason why loss of earnings should not be recoverable, but such damages were reluctantly denied as being too remote by Comyn J in Walker v Mullen, The Times 19 January 1984; cf Kirkham v Boughey [1958] 2 QB 338.
103
[1994] 2 AC 350. 104
on the rate of expense.” As an example, “judges are reluctant to award more than the extra petrol cost for a vehicle, rather than the AA running costs of a car.” Daniel Brennan QC said that awards were rarely made for the care element of visits to a claimant in hospital, even though, as one claims assessor put it, “in practice relatives often provide valuable backup and support services to over- pressed nursing staff.”
3.96 In our view, these concerns are adequately dealt with by the standard requirement that the claim be reasonable, and for a reasonable amount. Our draft Bill is also confined to “gratuitous” services, which are defined to mean those provided without a contractual right of repayment and which are not performed n the course of a business, profession or vocation (thereby excluding, for example visits by a vicar or charity worker). As regards the amount of the damages, we see no reason to prescribe by statute what should or should not be included. In particular, we do not think any specific provision is necessary to allow recovery of lost earnings.
3.97 A majority of consultees again favoured placing the claimant under a personal obligation to account for damages awarded under this head, in preference to the trust approach adopted in Hunt v Severs.We have already considered the respective merits of these devices in the context of gratuitously-rendered nursing care,105
and many of the same arguments apply in this context. Even more clearly in this case, the loss is suffered by the visitor and not by the claimant, and claimants awarded damages for past losses of this kind should have to pay them over to their visitors. It must be rare for a court to award damages in respect of continuing future hospital visits, but if and when such an award is made, we are once again of the opinion that claimants should not be under any legal duty to pay the money over. 3.98 In accordance with our provisional recommendation and the views of
almost all our consultees who responded on this issue, and consistently with our recommendation on gratuitous care, we recommend that where someone reasonably and gratuitously has visited or will visit an injured claimant in hospital, the claimant should be able to recover damages for the cost of the visits; further that the claimant should be under a personal obligation to account for the damages awarded in respect of past visits to the visitor. But there should be no legal duty on the claimant to pay over to anyone the damages awarded for future hospital visits. Again, we think that legislation to implement this recommendation is required only to the extent that we have recommended analogous legislation in relation to gratuitous nursing care (in paragraph 3.66 above). (Draft Bill, clauses 2, 3(2)(b), and 3(3))
(2) Visits by the defendant
3.99 We also expressed the view in our Consultation Paper106
that a claimant ought to be able to recover damages in respect of hospital visits by the defendant, just as
105
See para 3.55 above. 106
Damages for Personal Injury: Medical, Nursing and Other Expenses (1996) Consultation Paper No 144, para 3.80.
damages should be available for gratuitous care provided by the defendant.107
Once again, almost all of our consultees supported this suggestion, and we see no reason why visits made by the defendant should be excluded from the general rule we have outlined.108 Of course, as Piers Ashworth QC said, “tortfeasors (even if unrelated) not infrequently visit their victims, and care must be taken to ensure that legislation does not inadvertently confer upon tortfeasors a right to recompense for saying sorry to their victims.” But even if claimants were for some reason motivated to claim for the expenses of unrelated tortfeasors, we think that the requirement of reasonableness would be adequate to enable a court to deny recovery of such expenses where necessary. That is, just as damages would be unlikely to be recoverable in respect of a non-tortfeasor whose visits were of no real help to the victim, but were motivated by a desire to express sympathy, the same would apply to such visits by the tortfeasor.
3.100 In accordance with our provisional recommendation and the views of the vast majority of our consultees, we therefore recommend that, as in relation to gratuitous care, and by the same sort of legislative provision as recommended in paragraph 3.76 above, Hunt v Severs should be legislatively reversed in respect of its denial of a claim on behalf of the defendant for the costs of hospital visits. (Draft Bill, clauses 1, 3(2)(b), and 3(3))
107
See the discussion at paras 3.67-3.76 above. 108