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by Chris Hough, Dought Street Chambers
In assessing claims for care provided to an injured Claimant, the courts have a long-established record of applying a discount to any assessment of gratuitous care provided by members of the family.
Despite continued efforts by some Defendants to claim 33%, the "normal" discount is 25% (see the review in A & Others v National Blood Authority 2001 Ll Med 187 (at 274 per Burton J and Lord Justice May's observation in Evans v Pontypridd Roofing:
"I am not persuaded that the reasons for making a discount which may be regarded as normal should result in a deduction greater than 25%."
There are occasional exceptions: where the devoted parent has provided such high-quality care, that there should be no discount. That argument was accepted in Parry v NW Surrey HA (Penry-Davey J. unreported) and Lamey v Wirral HA (Morland J Kemp A4-106.
In Massey v Tameside and Glossop Acute Services NHS Trust  All ER (D) 301 (Feb), a severe cerebral palsy case, Evans v Pontypridd Roofing was considered and the court applied a 20% discount for a mother's gratuitous care.
Past care where paid for
What is the position where the Claimant has paid for past care and case management? It might be thought that such expenses would be recoverable in full.
This is not necessarily the case. In the recent decision of Loughlin, the trial judge applied a 20% deduction to actual expenditure on past care and case management because, although the Claimant had in fact very substantial benefit from such services there were such shortcomings in the care provided that the judge held the regime fell:
'significantly below the standard which could reasonably have been expected'
and that the
'objective value of what the Claimant received was less than the amount of the charges made for the relevant services'
The main failing identified related to implementing a disciplined sleep regime in a young Claimant with a severe brain injury. The judge thought that the young man went to bed far too late and didn't get out of bed until most of the morning had passed. He held that this had a significant detrimental effect on his rehabilitation, which should have been known to the carers.
The trial judge applied a discount of 20% in assessing the objective value of paid care. Not surprisingly, the discount was imprecise, representing an impression of what was fair and proportionate.
It is not clear from the judgement how the 25% shortfall should be made up: one might hope that the care provider would be embarrassed into refunding the costs. More likely, the shortfall would be met by inroads into damage provided for other heads of claim. It is a worrying position.
In relation to future care, which would be provided by the family, the judge in Loughlin applied a discount of 25% to reflect that the care would be provided gratuitously.
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