When is a claim for gratuitous care justified?

Giambrone and Others v JMC Holidays Ltd: Birmingham District Registry (Judge McDuff QC): 1 May 2003

Defendants' representatives often cite the Court of Appeal decision in Mills v British Rail Engineering Ltd [1992] PIQR 130 as authority for the proposition that damages for gratuitous care should only be awarded in serious cases.

In the instant case, the deputy High Court judge considered the judgment of the Court of Appeal and the three-stage test which is cited to defeat a claim for this head of damages, namely:

- That the claimant 'would otherwise require nursing care' (per Lord Justice Dillon).

- That the care provided should go 'distinctly beyond that which is part of the ordinary regime of family life' (per Sir Christopher Staughton).

- That, taken in the round, 'it must only be in a very serious case that an award is justified' (per Sir Christopher).

In the instant case, several children had suffered from gastro-enteritis or similar illnesses, resulting from food they had eaten at a hotel while on holiday.

As a result of their illnesses, they had been cared for by their parents over a period of a matter of a few weeks to a couple of months.

The defendants argued that such a case did not satisfy the aforementioned Mills criteria.

In that case, Mrs Mills had cared for her husband before his death from an asbestos-induced lung cancer.

Therefore, the cases are starkly different.

Despite this, awards were made to the children with his Lordship answering the three tests as follows:

- The Oxford Dictionary defines 'to nurse' as 'to attend on a sick person'.

The parents of the children did exactly that.

There was no requirement for any technical expertise in respect of such attendance.

- The judge found that it is not part of the regime of ordinary life for parents to spend their time looking after sick children.

In 'ordinary life' children are not sick, they go to school.

- The judge found that the words 'must only be in a very serious case that an award is justified' do no more than to emphasise that the illness/injury must be sufficiently serious to give rise to a need for care and attendance significantly over and above that which would be given anyway in the ordinary course of family life.

In his view, there is no inference that the nature of the injury must be serious in itself.

This approach is logical and consistent.

In the Giambrone cases, if the defendant's negligence had not caused the children to be ill, then the parents would not have had to spend time attending on their children, sitting at their bedsides, providing comfort, company and support and extra childminding.

But for the illness, this would not have been necessary.

Therefore, it follows that such care and attendance should be compensated.

Jury awards of between 150 and 275 were made for the children.

This is an important judgment in cases of lower value.

It provides a deft analysis of Mills, and claimants will no doubt argue that it puts the decision into its proper context.

Asbestos-related claims

Barker v Saint Gobain Pipeplines Plc: QBD (Mr Justice Moses): 23 May 2003

It was inevitable that defendants would seek to pick away at the Fairchild judgment and weave a delicate argument for the reopening of the causation issue in asbestos-related mesothelioma cases.

A moratorium in the payment of damages was unhappily constructed, while the Fairchild case progressed to the House of Lords.

After the decision, the insurance industry's reserves are once more diminishing and the spectre of more liquidations is afoot.

The facts of the instant case provided the opportunity for several of the insurers' arguments to be conflated.

I suspect that they are setting out once more on the long and expensive path to the House of Lords.

Mr Barker had been negligently exposed to asbestos fibres during his employment with the defendants of eight years.

Additionally he had another exposure of six weeks with a second employer and, importantly, intermittent exposure while he was a self-employed plasterer in the 1970s.

The issues that arose were as follows:

- The causation issue.

Did the fact that he was exposed while he was self-employed mean that his claim does not fall within the Fairchild judgment?

- The apportionment issue.

Should the court apportion liability between the two employers and his period of self employment?

- The contributory negligence issue.

Should the damages be reduced because precautions to avoid exposure were not taken when he was self-employed?

In an eidetic approach to the judgment in Fairchild, a selection from Lord Hoffmann's analysis that liability is imposed because it is 'just and reasonable to impose it' established the basis for a finding on behalf of the claimant.

The exposure for which he was responsible increased the risk of injury but so did the exposures with the two employers including the defendant.

In respect of apportionment, the House of Lords was not asked to address this issue in Fairchild.

Apportionment is a damages not a causation issue.

If the injury is 'indivisible' - that is, the disability does not increase with each exposure (only the risk of injury) then apportionment cannot apply.

The judge rightly declined to apportion damages, identifying the two employers as concurrent tort feasors.

Each was jointly and severally responsible.

In terms of contributory negligence, the claimant's failure to take precautions to avoid exposure in the mid-1970s increased his risk of injury.

The court found him 20% to blame.

Leave has been granted to the Court of Appeal.

It was predictable that Fairchild would lead to new arguments.

The Court of Appeal, which got entangled in deciding against the claimant in Fairchild.

will have a chance to reconsider its view, but one suspects that it will be left to Lord Hoffmann to develop his fascinating approach to causation before this case is ultimately concluded.

By Simon Allen, Russell Jones & Walker, Sheffield