Donnelly v Joyce

In assessing tort damages, the claimant’s loss is the reasonable need created by the wrong, valued by the cost of meeting it. A claimant may recover the fair and reasonable cost of necessary care or other provision supplied gratuitously by a parent or another provider. Recovery does not depend on a legal or moral obligation to reimburse the provider, or on a post-accident reimbursement agreement. Those matters concern the provider’s rights, not the wrongdoer’s liability. The provider ordinarily has no direct claim against the wrongdoer, subject to special rules such as consortium or loss of services. The value of necessary nursing care supplied by a mother was therefore recoverable by the injured child. The general damages award was also upheld.

A six-year-old boy was injured when his leg came into contact with a lorry driven by the defendant. A Deputy Judge of the High Court found negligence and awarded the child £4,689.39 in damages.

The defendant abandoned the challenge to liability on appeal. He challenged the £4,000 general damages award and £147.16 awarded for the mother’s lost wages while providing necessary care. The central issue was whether the child could recover the value of services supplied by his mother when she was not a party to the action and no legal or moral obligation, or reimbursement agreement, existed.

The Court of Appeal, in the judgment delivered by Lord Justice Megaw, dismissed the appeal.

1. General damages. The child suffered extensive skin loss, scarring, recurrent breakdown of the skin, continuing disability, psychological effects and a lifelong susceptibility to injury. The Court was not persuaded that £4,000 exceeded the proper maximum and declined to interfere with the award.
2. Necessary nursing care. There was ample evidence that the mother’s services were reasonably required for six months. The child’s loss was the need for nursing attention caused by the defendant’s wrongdoing, valued at its fair and reasonable cost. It was not properly characterised as the mother’s loss merely because she had surrendered employment and supplied the care herself. Any issue of mitigation would arise only if equivalent paid care would have cost less.
3. Source of the provision. It was irrelevant whether the needs were met by the child, a parent, a charity or another provider, and whether the child owed the provider a legal or moral obligation to repay. Those matters might affect the provider’s own rights, but not the child’s claim against the wrongdoer. The provider ordinarily had no direct cause of action against the wrongdoer, apart from special and inapplicable rules concerning consortium or loss of services.
4. Authorities. The Court followed and preferred Roach v Yates 1938 1 King's Bench 256 and applied Liffen v Watson 1940 1 King's Bench 556. It approved the consistent approach in Winkworth v Hubbard 1960 1 Lloyd's List Reports 150 and Wattson v Ports of London Authority 1969 1 Lloyd's List Reports 95. The reasoning in Haggar v De Placido 1972 1 Weekly Law Reports 716 and McDonnell v Stevens was rejected as erroneous. The sum of £147.16 was therefore recoverable by the child, and the appeal was dismissed with costs.

1. Court of Appeal (Civil Division): dismissed the defendant’s appeal, which was confined to the assessment and recoverability of damages: [1973] EWCA Civ 2.
2. High Court: Michael Eastham QC, sitting as a Deputy Judge, found negligence and awarded the child £4,689.39.