Donnelly v Joyce

An injured person's loss includes the need for care or other provision caused by the wrongdoing. That loss is valued at the proper and reasonable cost of meeting the need. Recovery remains available where relatives or other benefactors supply services or money gratuitously. It does not depend on a legal or moral obligation to reimburse them, or on a subsequent reimbursement agreement. Such arrangements concern the relationship between the injured person and the provider. Ordinarily, the provider has no direct claim against the wrongdoer. The reasonable cost of necessary care may be measured by a relative's earnings forgone, subject to the ordinary principles of mitigation.

The plaintiff, a six-year-old boy acting through his father as next friend, suffered a serious leg injury when struck by a lorry driven by the defendant. Michael Eastham QC, sitting as a Deputy Judge of the High Court, found the defendant negligent and awarded damages of £4,689.39. The injury required skin grafting and left permanent scarring, recurrent skin breakdown and restrictions on activity.

The defendant appealed but abandoned his challenge to liability. He challenged the £4,000 general damages award and £147.16 included in special damages. The latter represented six months' earnings forgone by the plaintiff's mother, who left her part-time employment to provide necessary nursing care. She was neither a plaintiff nor entitled to reimbursement under any identified agreement. The issues were whether six months' care was reasonably necessary and whether the plaintiff could recover its value despite receiving it gratuitously.

The appeal was dismissed unanimously. Megaw LJ delivered the judgment of the court, constituted by Davies LJ, Megaw LJ and Walton J.

1. The general damages award warranted no interference. Although the plaintiff had suffered no fracture or serious loss of leg function, the injury caused extensive scarring, lifelong susceptibility to skin breakdown and substantial restrictions on activity. Its distressing appearance and psychological consequences also mattered. Taking those consequences together, £4,000 exceeded no appropriate maximum.
2. The evidence supported the finding that the mother's services were reasonably required for six months. The plaintiff needed special bathing and dressing at midday and every evening. His mother had received instruction in that treatment. Without her care, daily attendance by a qualified person would have been necessary. There was no suggestion that purchased care would have cost less than her lost earnings. Had it done so, mitigation would have required consideration.
3. The recoverable loss belonged to the plaintiff. It consisted of his need for nursing services, rather than his mother's loss of wages or an expenditure he had personally incurred. Its measure was the fair and reasonable cost of supplying those services. The source of the services and any legal or moral obligation to reimburse their provider were irrelevant to the defendant's liability. Roach v Yates supplied binding authority for recovery of voluntarily provided nursing services. Liffen v Watson likewise established that gratuitous replacement provision did not eliminate the injured person's loss.
4. The court approved the rejection of moral obligation as a material consideration in Schneider v Eisovitch. It disapproved the doctrine in Haggar v De Placido and McDonnell v Stevens that a subsequent reimbursement agreement could create the plaintiff's entitlement against the wrongdoer. Such an agreement could affect rights between provider and recipient, but could not determine the liability of a defendant who was no party to it. If Allen v Waters conflicted with the later Court of Appeal authorities, the court preferred those later decisions.
5. As a corollary, the provider ordinarily had no direct cause of action against the wrongdoer. The court reserved very special circumstances, including potentially the exceptional rules concerning loss of consortium or services, which were irrelevant here. The defendant's concession that the mother could have recovered in her own action was rejected.

The £147.16 award represented the fair and reasonable cost of the necessary care and was upheld. The respondent was awarded the costs of the appeal.

• Court of Appeal: Dismissed the defendant's appeal against the damages award. The challenge to liability was abandoned. The respondent was awarded appeal costs.
• High Court: Michael Eastham QC, sitting as a Deputy Judge, found the defendant negligent and awarded the plaintiff £4,689.39. The challenged damages included £4,000 in general damages and £147.16 for the mother's necessary nursing services.