Law Report: No award for care by tortfeasor: Hunt v Severs - House of Lords (Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson and Lord Nolan) - 28 April 1994.

A plaintiff could not recover as damages the cost of caring services voluntarily and gratuitously provided by a defendant tortfeasor from motives of affection or duty.

The House of Lords allowed the defendant's appeal from the Court of Appeal (the Independent, 13 May 1993; (1993) QB 815) which had upheld the inclusion, in an award of damages for personal injuries to the plaintiff, now his wife, of pounds 4,429 for travelling expenses incurred by him in visiting her in hospital, and pounds 77,000 for past and future services caring for her at home.

The plaintiff was gravely injured in an accident in 1985 when riding pillion on a motorcycle driven by the defendant, then her boyfriend, and was rendered paraplegic. The extent of her injuries was not in dispute; but the defendant appealed against the inclusion in the award of the sums representing his own care.

John Crowley QC, and Jonathan Woods (E Edwards Son & Noice, Ilford) for the defendant; Harvey McGregor QC, and Roderick Doggett (Wheelers, Ash Vale) for the plaintiff.

LORD BRIDGE said that a plaintiff who established a claim for damages for personal injury was entitled in English law to recover, as part of those damages, the reasonable value of services gratuitously rendered by a relative or friend in providing nursing care or domestic assistance of the kind necessitated by the plaintiff's injuries. The issue was whether the law would sustain such a claim where the voluntary carer was the tortfeasor himself.

The Court of Appeal, having referred to Donnelly v Joyce (1974) QB 454, concluded that 'where services are voluntarily rendered by a tortfeasor in caring for the plaintiff from motives of affection or duty they should, in our opinion, be regarded as in the same category as services rendered voluntarily by a third party, or charitable gifts, or insurance payments. They are adventitious benefits, which for policy reasons are not to be regarded as diminishing the plaintiff's loss.'

In Donnelly's case, the Court of Appeal said that the question from what source the plaintiff's nursing needs had been met, who paid the money or gave the services, or whether the plaintiff was under a legal or moral obligation to repay the provider, were, so far as the defendant and his liability were concerned, all irrelevant. The plaintiff's loss was 'the proper and reasonable cost of supplying those needs'.

His Lordship was not convinced. The basis of the plaintiff's claim for damages might consist in his need for services but the question from what source that need had been met was not irrelevant. If he was treated in hospital as a private patient, he was entitled to recover the cost; but if he received free treatment under the National Health Service, his need had been met without cost to him and he could not claim the cost of the treatment from the tortfeasor.

By concentrating on the plaintiff's need and loss as the basis of an award in respect of voluntary care received by him, the reasoning in Donnelly diverted attention from the award's central objective of compensating the voluntary carer. Once that was recognised it became evident that there could be no ground in public policy or otherwise for requiring the tortfeasor to pay to the plaintiff, in respect of the services which he himself had rendered, a sum of money which the plaintiff must then repay to him.

Finally, the fact that the defendant's liability was covered by insurance was irrelevant: at common law, the circumstance that a defendant was contractually indemnified by a third party against a particular legal liability could have no relevance whatever to the measure of that liability.

Accordingly, the appeal should be allowed and the award to the plaintiff reduced by pounds 81,429.

LORD KEITH, LORD JAUNCEY, LORD BROWNE-WILKINSON and LORD NOLAN agreed.