SPECIAL DAMAGES: DISCOUNT FOR GRATUITOUS CARE; DOG WALKING; CARERS’ “PERKS”; AND CARE REQUIREMENTS ON AGEING – MEHMETEMIN V FARRELL

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By Mark Henley

 

On 27.1.17 Sir Robert Nelson, in the High Court, gave judgment in Sandra Mehmetemin v Craig Farrell [2017] EWCH 103 QB, after the four-day hearing of a claim for damages for serious personal injuries arising out of a serious road traffic accident on 14.12.09, including a substantial care claim.

The Judge (a former personal injury barrister) provides a useful “set piece” judgment dealing with many of the issues of special damages for personal care which arise in substantial personal injury claims, which is best appreciated by reading in full: but I would highlight the following 4 findings as particularly helpful.

25% discount for gratuitous care applicable even for a carer who gives up work

The Judge rejected the argument that damages for the value of personal care provided by the Clamant’s husband should not be subject of 25% discount because he had given up paid work to provide the care.

The Judge found that there was no authority for this proposition, and that, “it would be artificial to inflate the amount recoverable by reference to a sum which could never be paid to a relative, i.e. tax and national insurance” (see paragraph 33 of the judgment).

Damages for (voluntary) dog walking are recoverable

The claim included damages for the value of the 3 ½ hours per week spent by the Clamant’s husband in walking her dogs.

The Judge rejected the argument that dog walking is an amenity for a family member, rather than a service attracting compensation: “There is, in my judgment, no reason in principle why such services should not be provided by relative in the same way as DIY is provided by a relative, and claimable. If there is a need to get someone else to provide a service which the injured person can no longer perform, and which has to be and is performed, the cost is recoverable whether it is commercial or gratuitous. That Mr Mehmetemin may enjoy walking the dogs (in the same way as a relative might enjoy gardening when forced to garden because of an injury to his wife) so that it might therefore be regarded as an amenity, does not prevent recovery, if he is carrying out the service for and instead of his wife when he would not otherwise have been doing so. In such circumstances it is a service he is performing, the need for which has been brought about by the accident” (see paragraph 59 of the judgment).

The Judge did, however, deduct the times when both the Clamant, in a scooter, and her husband, walked the dogs together: reducing the number of hours for which damages were awarded from 3 ½ hours to 2 hours per week.

Further, the multiplier applied by the Judge to damages for future dog walking services was calculated with reference to the life expectancy of the dogs, and not awarded on the basis of the 15 year period before the Clamant reached the age of 75, as claimed: giving a reduction from 12.11 to 10.

Damages not recoverable for the additional cost of feeding a carer, who previously received free food as a “perk” at work

The claim included an estimated £300 per month for the additional cost of feeding the Clamant’s husband, who, before the accident had forced him to give up work to become a carer, had been given “free” meals 5 days a week while working as a chef in a takeaway.

The Judge dismissed this claim, on the basis that, first, it was not proven (there being no evidence, for example from Inland Revenue records, of the food actually having been received, and there being no evidence of how the general estimate of £300 a month been arrived at), and, second, it was too remote: “Even if the cost of extra food… at home is incurred as a result of his enforced retirement to look after his wife, the loss remains his loss rather than his wife’s loss. If it were to be argued that the cost of his food is increased household expenditure and therefore affects the Clamant as well as him, the claim would still relate to the loss of his perk. He is not a private carer and not entitled to subsistence allowance” (see paragraph 69 of the judgment).

Damages recoverable for additional care requirements on ageing

The Judge accepted expert evidence from the Claimant’s care expert that the Claimant’s care needs, resulting from the accident, would increase as she aged, as pain from joints damaged by the accident would increase with use over time, and further reduce her mobility: awarding a higher number of hours of care per week (from 24 ½ hours to 31 ½ hours per week) from the Clamant’s 75th birthday for the remainder of her life.

Comment

As regards the issue of damages for dog walking:

(a) this clear statement of the principle, that damages for voluntary dog walking are recoverable, is useful for claimants’ lawyers, particularly as in my experience insurers’ lawyers often refuse to make any offers at all for this head of loss; but,

(b) note that the number of hours claimed in this case was relatively modest, and the number of hours awarded even smaller (and so, as always, for claimants’ lawyers, “don’t over egg the pudding”); and,

(c) note that the appropriate multiplier is the life-expectancy of the particular dog(s), and not the “active” life-expectancy of the Claimant.

As regards the issue of increased care requirements with ageing:

(a) this is an interesting reversal of the position often taken by insurers, that future care requirements referable to an accident decline with ageing, as care in old age would have been required in any event; and,

(b) this case highlights a potential additional element of claim, where an accident causes a progressive problem which will worsen with age, which in my experience is rarely addressed at all by claimants’ lawyers; but,

(c) this requires expert evidence, and the issue will usually have to be highlighted to the Claimant’s orthopaedic and care experts.

 

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