Gratuitous care and assistance refer to the support and care provided by family members, friends or acquaintances to an injured person following a personal injury. That injury may be as a result of an accident or a negligent act. Such care and assistance can come in many forms, such as help with daily activities, emotional support, help around the house, cooking, gardening, transportation. This help can be invaluable to an injured party, as their ability to care for themselves may have been significantly affected because of the injury, especially in cases involving serious or catastrophic injuries. The injured party may be entitled to compensation for the time and effort their loved ones invested in assisting them with their recovery.
1. The Legal Framework for gratuitous care & assistance
In order to make a successful claim for gratuitous care and assistance, it is essential to understand the legal framework surrounding personal injury claims which is grounded in the principle of restitutio in integrum, ie “restoration to the original condition.” This principle seeks to ensure that injured party is returned (as closely as possible), to the condition they were in before the injury occurred. As such, the following elements needs to be established:
- Negligence: The foundation of any personal injury claim is establishing negligence on the part of the perpetrator. In other words, it is essential to prove that the injury occurred due to someone else’s fault or negligence.
- Causation: It is not sufficient to show that negligence occurred; you must also establish a direct link between the perpetrator’s negligent act and the injuries. This is usually established by medical evidence, ie there must be medical evidence to show the link between the injury and the need for the care and assistance being provided.
- Quantification of Damages: In order to receive compensation for gratuitous care and assistance, the injured person will need to quantify the value of the care and assistance provided.
2. Calculating Gratuitous Care and Assistance
Calculating the value of gratuitous care and assistance can be a complex task. Various factors are taken into account when making the calculation including:
- The number of or hours per day or week that the care and assistance was provided.
- The nature and type of care provided, ie whether it involved physical assistance, emotional support or both.
- The rate at which the care provider would be compensated if they were a professional carer. It is essential to note that the starting point for calculating the hourly rate that can be claimed, is to use the commercial care rate and then apply between a third and a quarter reduction to reflect the absence of tax, national insurance contributions and travel costs. NJC Spinal Point 8 rates is usually the starting point for this calculation.
- The length of time the care was provided which may vary depending on the severity of the injuries.
Other factors to be taken into account includes:
- Mitigation: has the injured party made reasonable efforts to mitigate their losses? A claimant is expected make reasonable efforts to minimise their dependence on gratuitous care and assistance. Failure to do so can lead to a reduction in the amount of damages awarded.
- Future projections: In circumstances where care and assistance are required in the future, the courts may make future projections based on expert evidence.
- Record Keeping: An injured party should ensure that they keep detailed records of all care and assistance provided, as this is essential in calculating the claim accurately.
- Level of care: gratuitous care must be over and above any existing care that a family member or friend already provides.
Common Challenges
- A claim for gratuitous care is largely predicated on the injured party’s own evidence and that of their closest family member/friend. There is therefore a potential for dishonesty. With the advancement of technology and use of social media, it is not inconceivable that a suspicious Defendant insurance company, could utilise social media/surveillance evidence raise an issue of fundamental dishonesty.
- BEWARE: There are numerous cases where the injured party and the carer have been subject to committal proceedings and received custodial sentences for dishonest care claims
- A claimant is required to ensure that they account to the carer for money recovered.
- BEWARE: Injured party seeking to make a claim for a care giver who happens to be the Defendant.
- BEWARE: ‘round the clock care claims’, generally only likely where injured party completely incapacitated.
- There is no entitlement to pursue damages on behalf of a deceased’s carer’s estate if the person providing the care has since died.
- If the injured party and carer are no longer in contact, essential to ensure injured party still planning to account to the carer for the monies recovered.
Future Considerations
This area of personal injury law requires careful consideration, as it is one aspect that often gets overlooked, thus causing the claimant to miss out on, potentially, significant damages. As such it is essential that legal advice is sought from an experienced personal injury lawyer as soon as possible when contemplating a claim for gratuitous care and assistance, as they can help gather the evidence required and ensure that your claim is correctly calculated.
For more information contact Lyn Edwards in the Fast Track team on [email protected]
