Law Report: Cost of care by husband recoverable: Hunt v Severs - Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Staughton and Lord Justice Waite), 12 May 1993.

A plaintiff can recover the cost of services voluntarily rendered by the defendant tortfeasor in caring for the plaintiff from motives of affection or duty.

The Court of Appeal dismissed the defendant's appeal against an award to the plaintiff of pounds 4,429 damages for travelling expenses incurred by the defendant and an award of pounds 77,000 for past and future services rendered by the defendant in caring for the plaintiff.

The plaintiff, now aged 30, was catastrophically injured in 1985 in a motor cycle accident when she was a pillion passenger. The defendant was the driver of the motorcycle and is now her husband. She was awarded pounds 617,000 damages.

The defendant appealed against the award for the services rendered by the defendant in caring for the plaintiff on the ground that no claim lay for the value of services voluntarily rendered by a defendant tortfeasor.

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

SIR THOMAS BINGHAM MR, giving the court's judgment, said that in Donnelly v Joyce (1974) QB 454, an infant plaintiff was awarded damages for wages which his mother had lost by giving up her job to look after him. The Court of Appeal held that it was immaterial whether the plaintiff had a legal or a moral obligation to pay his mother. Most importantly, the plaintiff was not suing to make good his mother's loss but his loss.

In Donnelly the present issue was not before the court since the services had not been rendered by the tortfeasor. The court had no hesitation in following the rule that the plaintiff's need for services represented a loss for which she was to be compensated by the tortfeasor. The damages recoverable from the tortfeasor should, subject to exceptions such as charitable and insurance payments, be compensatory.

Applying those principles, if the tortfeasor gratuitously made a wheelchair available to the plaintiff, or replaced, or re- erected without charge, a fence which the tortfeasor had tortiously demolished, or a panelbeater tortfeasor made good the bodywork of the plaintiff's car personally without charge, the plaintiff could not in addition claim the value of those goods and services.

In a case such as the present it did not seem realistic to regard the defendant as paying twice, once in kind and once in damages, nor the plaintiff as making double recovery. There was no analogy here with the wheelchair, the fence and the panelbeater.

In human terms, it would be anomalous if the mother's services in Donnelly founded a claim for damages and the defendant's here did not: but for the voluntary services of the mother in that case and the husband in this, paid help or more paid help would have been needed, and a claim for the reasonable cost of such held would in each case have been irresistible.

It would be unfortunate if the law gave plaintiffs an incentive, which their advisers would quickly recognise, to rely on the paid help or the voluntary services of third parties rather than the voluntary services of those in the position of the defendant. It would be no less regrettable if the law were to encourage making contracts between plaintiffs and those in the position of the defendant.

Where services were voluntarily rendered by a tortfeasor in caring for the plaintiff from motives of affection or duty they should be regarded as in the same category as services rendered voluntarily by a third party, or charitable gifts, or insurance payments. They were adventitious benefits, which for policy reasons were not to be regarded as diminishing the plaintiff's loss.