PERSONAL INJURY POINTS 1: WHAT DISCOUNT SHOULD BE GIVEN WHEN CARE IS PROVIDED GRATUIOUSLY ? THE COURT REVIEWS THE “STANDARD APPROACH”
For a while now I have planned a series that gives a focal point to the many cases and examples that arise, and are sent to me, in relation to personal injury matters. Many people offer help but the procedural cases often mean these issues are overlooked. In the first of the series we look at a case where the court considered what the appropriate discount is when care is provided gratuitously. (There is a lot of catching up to do on this series)
“Mr Buch argues that it is time to revisit the convention that a 25% deduction is made. He points out in his skeleton argument that when that deduction started to be used it properly reflected an appropriate deduction 25% at the higher rates used. However, at lower rates the marginal tax rate is significantly lower. I accept that submission. It seems to me that it is time for an adjustment to be made in cases where the NJC, particularly at the basic rate, is being awarded. I propose to make a deduction of 20% in this case rather than 25%.”
KEY PRACTICE POINT
Both claimants and defendants may have to reconsider the basis upon which a percentage discount is given in relation to gratuitous care, particularly in relation to lower value cases. This case is not a binding precedent, however it is indicative of the point that the courts are willing to reconsider the “standard” discount.
THE CASE
James Fitzpatrick v Ministry of Justice [2024] EWHC 3609 (KB) HHJ Glen, sitting as a Deputy High Court Judge.
The claimant brought an action against a number of defendants alleging he had been exposed to asbestos when at work. The Second Defendant, the Home Office, never filed a defence and the matter proceeded to assessment of damages. Neither defendant was represented at the hearing. The judge remarked that “One finds it extraordinary that out of two government departments one is represented and the other has never filed an acknowledgement of service or indeed has made any form of appearance in these proceedings in any way.”
THE JUDGMENT AS TO CARE
25. It is right that I should observe that the Claimant has chosen not to obtain expert evidence on the question of care. That is not to say that one cannot recover for care without such evidence but it is merely an observation. It is also an observation that I do not have any evidence from Mrs Fitzpatrick. Again, that would be considered to be slightly unusual in a case of this kind.
26. Insofar as the rate to be allowed for gratuitous care is concerned, Mr Buch argues that this is a case where what one might regard as an unusual course should be taken so far as rates of care are concerned. It is a convention if no more than that, or perhaps just common experience, that gratuitous care is allowed at NJC rates with a deduction of 25% to reflect the cost of tax and national insurance and also of course the costs of providing that care. Mr Buch argues that in this case I should take what he describes as the actual cost of providing professional care in the Watford area. He describes that as ‘localising’ this particular claim.
27. The evidence which I have been offered on the subject of what it costs to provide for care in the Watford area appears at page 152 of the bundle and consists of a screenshot from someone’s phone of a visit to a website called Jooble. This tells me that a carer in Watford Hertfordshire could expect to earn £29,918 a year and a domiciliary carer £36,415. Mr Buch tells me from the bar that those screenshots were taken in 2024 but there is no evidence about it, nor is there any evidence to support what the rates might or might not have been for any other period. Mr Buch argues that the extent and nature of the care offered by Mrs Fitzpatrick takes this case outside of the norm. She is beyond the so called ‘unskilled home carer’ contemplated by the NJC rates.
28. I agree with Mr Buch as a matter of law that the Court should award a rate which most closely represents the loss in each individual case provided of course that is evidenced. However there are two, as it seems to me, insuperable problems with the submission that he makes. First, however valuable at a personal level Mrs Fitzpatrick’s care may have been, there is no feature of it other than perhaps the injections which she had to perform immediately following discharge from hospital which takes this case outside the general run of the kind of domestic care that is offered in cases of this kind. There is also I may say no evidence other than in a very broad and inferential way of care being offered out of normal waking hours. Secondly, in my judgment the evidence that has been offered goes nowhere near enabling me to be satisfied that the so-called Watford rates can be safely extrapolated over the period that we are talking about.
29. In these circumstances I propose to award care at a rate which represents the usual NJC spinal 2 rate. That rate should be the basic rate for periods A to C and E to (although it is not labelled as such) H, and the aggregated rate for the period immediately following discharge from hospital; period D.
30. That leaves on the question of rate the question of the deduction. Mr Buch argues that it is time to revisit the convention that a 25% deduction is made. He points out in his skeleton argument that when that deduction started to be used it properly reflected an appropriate deduction 25% at the higher rates used. However, at lower rates the marginal tax rate is significantly lower. I accept that submission. It seems to me that it is time for an adjustment to be made in cases where the NJC, particularly at the basic rate, is being awarded. I propose to make a deduction of 20% in this case rather than 25%.