Giambrone & Ors v Sunworld Holidays Ltd.

Damages for gratuitous family care may be awarded where illness or injury creates a need for care distinctly beyond the ordinary regime of family life. A separate very serious case threshold, or proof of demonstrable financial expenditure, is not required.

The court may assess the value of care by a broad-brush method suited to the circumstances. It need not identify precise additional hours or apply a fixed commercial rate. For child gastro-enteritis cases involving family care without substitute-care costs, awards exceeding £50 per week at 2004 values should generally be reserved for more serious cases.

The appeal arose from a group action by holidaymakers who suffered gastro-enteritis or similar illness at a Majorcan resort. Judgment had been entered against the holiday company by consent, and the appeal concerned damages in six lead cases involving illness lasting more than 14 days.

HH Judge MacDuff QC awarded between £120 and £275 for gratuitous care provided after the claimants returned home. The defendants argued that such damages were unavailable unless the case was very serious or the family had incurred demonstrable financial expenditure. The central issue was whether the claimants could recover the value of parental or spousal care and whether the judge’s broad-brush assessment was permissible.

The appeal was dismissed. Lord Justice Brooke delivered the judgment, with Lord Justice Mance and Mr Justice Park agreeing.

1. Entitlement to damages. The established principles in Housecroft v Burnett [1986] 1 All ER 332, Hunt v Severs [1994] 2 AC 350 and Evans v Pontypridd Roofing Ltd [2001] EWCA Civ 1157; [2002] PIQR Q5 permit recovery of the reasonable value of gratuitous family care. The relevant question is whether the illness or injury caused care which went distinctly beyond the ordinary regime of family life. There is no additional requirement that the case reach an undefined very serious threshold or that the carer prove actual financial loss or expenditure.
2. Assessment. Evans required flexibility rather than a restrictive method. The judge could make a broad-brush assessment where it was artificial to separate the additional care from ordinary family life. Relevant matters included the nature and severity of the illness, its duration and improvement, the need for childminding, and the additional burden placed on the carer. The awards were within the proper range and did not justify appellate interference.
3. Mills. Mills v British Rail Engineering Ltd [1992] 1 PIQR Q130 did not decide that gratuitous-care awards were confined to very serious cases. The Court of Appeal rejected that proposed threshold, while treating the ordinary-family-life qualification as the test actually applied in Mills.
4. Guidance. For future child gastro-enteritis cases of the type considered, an award exceeding £50 per week at present-day values, where family care is provided and substitute-care costs are absent, should be reserved for more serious cases. The court suggested that a guideline tariff might avoid disproportionate costs in assessing small care claims. The adult claimant’s claim fell to be determined on the same principles.

• Court of Appeal (Civil Division) — [2004] EWCA Civ 158: dismissed the defendants’ appeal and upheld the awards in principle.
• High Court, Birmingham District Registry — HH Judge MacDuff QC, order dated 1 May 2003: awarded damages for gratuitous care in six lead cases.