It is very common for someone injured in an accident to have some degree of incapacity afterwards. A simple sprained ankle might mean that you are unable to get around as easily as before, perhaps forcing you to rest your leg until it gets better. A slight injury to your hand or arm, or even a whiplash injury, may make ordinary household chores, or aspects of personal care, more difficult to carry out.
In such circumstances, you may need some assistance from friends or family – or, in more serious cases, from professionals. This ensures that you are properly looked after and that ordinary day-to-day activities are managed as you recover. Employing a professional carer is a straightforward loss to include in your claim – provided the nature of your injuries justifies the expense. What may not be so immediately apparent is whether you can claim for the ‘costs’ or ‘value’ of care provided by friends and family in your personal injury claim.
Claiming for care and assistance
In general legal terms, a ‘third party’ cannot claim against a Defendant for losses they have incurred as a result of a Claimant’s injury. Your carers would be ‘a third party’ in relation to your injury claim against the Defendant. However, there is an exception which allows nursing, care, and general assistance to be claimed by you on your carers’ behalf. The reason for this is a matter of common sense – if the care provided was needed, but friends and family were unable to do this for you for free, you would have to employ someone to do it for you instead, inevitably at a considerable cost.
As a result, it is well established that courts can make an award direct to a Claimant for compensation for the cost of care provided by friends and family for no financial gain (known as ‘gratuitous care’).
There are some important points to note when working out what can and cannot be claimed for in a claim for care:
You can only claim for additional services which are provided as a result of the injuries sustained in the accident. If you are being looked after by your partner, but your partner used to carry out domestic tasks or provide personal care to you before the accident, these tasks cannot be claimed for – it is only the cost of care needs arising directly as a result of the accident that are recoverable.
The cost of providing the care can be claimed regardless of whether the person providing the care as actually suffered a financial loss by providing the care (for example, by taking time off work). However, if your carer has incurred a loss of earnings in caring for you, you will be unable to recover the cost of both the lost earnings and the cost of the care provided – this would effectively be recovering money for the same loss twice.
There does not have to be any agreement between you and your carer for them to be reimbursed for the cost of the care. A claim for the value of the services is made as part of your claim, and you will receive anything awarded in respect of the care. However, any compensation you receive for care is actually held ‘on trust’ by you for your carer. Essentially, your carer will be entitled to the money for care and you should reimburse them after your claim. Also, in practical terms, it means that you cannot claim for care where your carer is also the Defendant (for example, where you were a passenger in a vehicle being driven by your partner and you make a claim against them following a road traffic accident which was their fault).
There is another type of care claim. If you normally provide care for someone else (e.g. an elderly/invalid relative), and you have been prevented from doing so because of your injuries, you can claim for the loss of the care you would have provided as an additional head of claim. This is known as a Lowe v Guise claim, after the case that established the principle. Such compensation can be claimed in addition to the cost of any care which you receive yourself after your accident.
Accurately working out how much a claim for care is worth requires various bits of information. You must be able to establish:
How much time has been spent providing the care
What sort of tasks have been carried out
What the proper rate of remuneration for those tasks would be.
Working out the time spent and the tasks carried out should be reasonably straightforward. It is unlikely for anyone to be so well organised as to keep detailed records from the outset. This link will take you to a form in our Legal Library which helps you to record your care and assistance.
It should be possible to make a reasonable assessment of the care received, and to provide evidence (by way of witness statements) from the people who actually provided the care. You would normally expect the amount of time provided and the amount of care provided to decrease over time, as you recover from your injuries, though it often increases after an operation. Once you have worked out the amount of time spent providing care, we can start working out what the financial cost of it would be.
A basic principle of compensation for personal injury is that you are reimbursed the costs incurred as a result of your accident – to be put back in the position as if the accident hadn’t happened. In claims for care, this would typically be the costs you have paid out to somebody who provided the care services for you (e.g. a private nurse). When the care is provided by a friend or family member, it would be extremely unusual for that person to be sending you itemised invoices, or to be charging the same rate as a private care provider would demand. To work out what the claim would be worth, therefore, a professional care rate is only taken as a starting point, and then reductions are made to account for the fact that the care was being provided on a non-commercial basis. Typically, we would knock off one third of the costs so that a local hourly rate of £9 per hour for a carer would be reduced to around £6 per hour for a friend of relative providing the same level of care. The cost of providing care does vary from region to region, and your solicitor should check against the relevant costs in your local area to work out precisely how much the claim would be worth.
To complicate things further, the rates may vary depending on whether the care has been provided through the day, on a night, or on weekends/bank holidays. Whilst this makes the sums a bit more complex, as long as there is a reasonably accurate record of what has been done for you, and when, your solicitor should be able to rate the value of your claim with reasonable accuracy.
In more serious cases, an injured party might require specialist care from the outset, and may also have long-term ongoing care needs which may increase or decrease over time. In dealing with such serious injuries, it would usually be sensible to reach an agreement with the Defendant (or their insurers) as soon as possible so that a care regime may be put in place to give you the best chance of making a full recovery. Down the line, when trying to work out what the total cost of care and future care may be, it might be necessary to obtain evidence from an expert so that an accurate figure can be placed on this. This usually happens in serious injury cases.
There are a number of steps you can take to help your solicitor to accurately assess and establish your claim for care:
Try to keep as accurate a record as possible of who is providing care, how long they are providing it for, and what sort of tasks they are doing. Your solicitor will not necessarily need full time sheets, but if you have any sort of account (such as a calendar or diary) then this will certainly help.
Make sure that your solicitor has contact details for all of the people who have provided any care to you, so that they can take formal witness statements from them to support the claim for care.
Keep a record of any additional monies that you have to pay out whilst being looked after, and keep receipts/bank statements as evidence. You may find that you have to get in tradesmen to deal with ordinary DIY, gardening, or cleaning tasks, or purchase items to help with your injuries or assist you in getting around the house or getting things done. These can all form part of your claim for care.
Make sure you keep a record of any assistance that you are provided with by other third parties (such as local authority carers or similar) and keep any correspondence or documents relating to this, as such items will need to be factored into your care claim.
Keep a record of what you find difficult, or impossible, to do and what you require assistance with – no matter how minor. A claim for care can be anything from 24-hour private nursing to assistance getting in and out of bed or putting on your socks, and all points in between. If your solicitors have a proper record, and proper evidence to support it, it will be much easier to make sure you get the compensation to which you are entitled.
Remember, your solicitors are under a duty to ensure your claim is properly pleaded and presented, and that you receive all of the compensation to which you are entitled. If you do not feel as though your current solicitors are meeting these duties, or not providing you with the service you deserve, consider switching your claim to Truth Legal.
If you have settled a personal injury claim but your solicitors missed out a care claim or did not properly advise you about care and assistance, you may have a potential professional negligence claim against them.
Care claims can be difficult, and at Truth Legal we are of course happy to offer advice on any aspect of them throughout your claim. If in doubt, at any stage, please do not hesitate to contact us so that we can help you get the right result.
For more information on losses which can be included in a personal injury compensation claim, including more information on care claims, download our free ebook.
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