Except in the most minor of accidents it is very rare for an injured person to not have some degree of incapacity afterwards. A simple sprained ankle might mean that you are unable to get around as easily as before, and that you have to rest your leg until it gets better. A slight injury to your hand or arm might make certain ordinary household chores, or aspects of personal care, more difficult to carry out. In such circumstances, it is likely that you may need some assistance from friends or family – or, in more serious cases, from professionals – to ensure that you are properly looked after and that ordinary day-to-day activities can be managed as you recover. Any such assistance that you receive will potentially be recoverable from the Defendant as part of a claim for care.
Ordinarily, a “third party” cannot claim against a Defendant for losses that they incur themselves arising out of a Claimant’s injury. For example, if you are absent from work as a result of a car accident, your employer would not have an automatic right of recovery against the other driver or lost profits that they lost out on as a result of your absence (although some contracts of employment may state that you have to pursue a claim on their behalf anyway!) However, there is an exception for nursing, care and general assistance that you receive from other people as a result of your injuries, which can be claimed by you effectively on their behalf. The reason for this is a matter of common sense – if the care provided was needed, but friends and family were not able to do this for you for free, you would have to employ somebody 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 damages for the cost of care provided, either by professionals (in which case should be straightforward to work out how much you have lost by simply referring back to the invoices raised by the care/nursing agency in question), or 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.
- 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, in such cases you would not be able to recover the cost of both the carers loss of earnings and the cost of the care provided – this would effectively be recovering money for the same loss twice over.
- There does not have to be any agreement between the claimant and the care provider for the care provider to be reimbursed for the cost of the care. A claim for the value of the services is made by the claimant, not the carer, and the award is made to the claimant, not the carer. However, when damages are paid for such ahead of claim, the money is held “on trust” for the carer to reimburse them after the event. In practical terms, this means that no claim for care can be brought where the care provider is also the defendant in the claim (e.g. where two partners are involved in a car accident, and the passenger brings a claim against the driver).
One important point to note is that an injured party can also claim for someone else (e.g. an elderly/invalid relative), when they have been prevented from being able to carry out their caring duties as a result of their injuries, they can claim for this loss of care provided to the third party as a separate head of claim (known as a Lowe vs Guise claim, after the case that established the principle). Such compensation could be claimed in addition to the cost of care provided on behalf of the Claimant themselves.
When working out how much a claim for care is worth, you will need to be able to accurately work out how much time has been spent providing the care, what sort of tasks have been carried out, and 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, although of course it is unlikely that anybody would be so well organised as to keep a timesheet from the word go. It could be possible to make a reasonable assessment of this 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 the claimant recovers from their injuries. 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. In claims for care, this would typically be the costs you have paid out to somebody to provide the care services for you (e.g. getting in a private nurse to look after you). When the care is provided by a friend or member of your family, it would be extremely unusual for that person to be sending you itemised invoices, or to be charging you at the same rate that a private care provider would demand. To work out what the claim would be worth, therefore, we have to take as a starting point the cost that would have been incurred had you employed professionals to provide the care, and then make a reduction to take account of 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 £6 per hour for a friend of relative providing the same level of care. Cost of providing care does vary from region to region, and we would need to 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 we have a reasonably accurate record of what has been done for you, and when, we 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) from the outset so that we can get a care regime put in place from the word go to give you the best chance of making a full recovery as possible. Down the line, when trying to work out what the total cost of care and future care may be, it will inevitably be necessary to obtain evidence from an expert so that we can put an accurate figure on this.
There are a number of steps you can take to help us accurately assess, and provide evidence in support, of a claim for care from the very start:
- Try to keep as accurate a record as possible as to who is providing care, how long they are providing it for, and what sort of tasks they are doing. We do not necessarily need full time sheets, but if you have any sort of account (e.g. calendar, diary) then this will certainly help.
- Make sure that we have contact details for all of the people who have provided any care to you, so that we 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 so that we can serve these 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 (e.g. 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/impossible to do and what you require assistance with, no matter how minor. A claim for care can vary from anywhere between 24 hour private nursing to assistance getting in and out of bed or putting on your socks, and all points in between. If we have a proper record, and proper evidence to support it, it will be very much easier to make sure you get the compensation to which you are entitled.
Remember, we are under a duty to make sure that your claim is properly pleaded and presented, and that you receive all of the compensation to which you are entitled. Care claims can be difficult, and we are of course happy to offer advise on any aspect of them throughout the course of your case. If in doubt, at any stage, please do not hesitate to contact us so that we can assist an advise, and help you get the right result.