Lowe v Guise

An injured claimant may recover damages for losing the ability to perform unpaid services for a relative, spouse or partner who forms part of the same household, where the services go beyond ordinary household interaction. The loss is the claimant’s loss of the value of the contribution, even where another family member takes over the work gratuitously. The absence of an English statutory equivalent to section 9 of the Administration of Justice Act 1982 does not prevent the common law developing in this way. The assessment remains fact-sensitive and must avoid over-compensation. A loss-of-earnings claim cannot be determined on the artificial assumption that pre-accident caring arrangements are irrelevant.

The appellant was injured while cycling in an accident for which liability was admitted. Before the accident he provided about 77 hours a week of unpaid care for his severely disabled brother. After the accident he could provide only about 35 hours, with his mother supplying the balance, while he retained invalid care allowance.

HHJ MacDuff QC decided two preliminary issues against him: whether he could recover the value of the lost carer services, and whether his loss of earning capacity should be assessed without regard to his pre-accident decision to care for his brother rather than take paid employment. The Court of Appeal considered the common-law treatment of gratuitous family services and the effect of Part II of the Administration of Justice Act 1982. The central questions were whether the first claim was legally recoverable in England and whether the caring arrangement was irrelevant to the earnings claim.

1. Carer services. Rix LJ, with whom Morland J and Potter LJ agreed on the essential issue, held that the appellant had suffered a real loss in being unable to contribute his unpaid caring services to the welfare of his family. Damages could therefore be recovered where the care was provided to a relative living in the same household, went beyond ordinary household interaction, and was taken over gratuitously by another family member. The loss was the claimant’s loss of the value of his contribution, although any recovery attributable to the mother’s additional care might be held on trust for her.
2. The absence of an English equivalent to section 9 of the Administration of Justice Act 1982 did not bar the development of the common law. The Scottish statutory provisions and the English common-law route concerning gratuitous care could operate alongside one another. Hunt v Severs [1994] 2 AC 350 supported the analysis that gratuitous care could be valued in money, while Daly v General Steam Navigation Co [1981] 1 WLR 120 established that loss of unpaid domestic capacity could be a separate head of damage.
3. The court was not bound by Swain v London Ambulance Service NHS Trust (unreported, 12 March 1999), since the judgments did not yield a clear ratio. Its narrow treatment of a service performed for a spouse’s separate property did not govern a family-household claim of the present kind.
4. Loss of earnings. The answer to the second preliminary issue was no. The trial judge was not required to treat the pre-accident caring arrangement as irrelevant. The assessment had to consider appropriate pre- and post-accident realities, including the relevant prospects of the appellant and his brother, so as to avoid over-compensation and identify the position that money could restore.
5. Potter LJ added that, at the eventual assessment, Daly required different bases for pre-trial special damages and future loss. He treated that as a reservation concerning quantum. The appeal was allowed in part. Costs and any application for permission to appeal were left for written submissions.

1. Court of Appeal (Civil Division): In Lowe v Guise [2002] EWCA Civ 197, the appeal was allowed in part. The first preliminary issue was answered affirmatively; the answer to the second issue remained no.
2. Birmingham County Court: HHJ MacDuff QC answered both preliminary issues against the appellant.