Assessing Damages for the Costs of Care

Abstract

This article examines the compensating benefits which may be taken into account to reduce the amount which a plaintiff may claim for the costs of care in English law. The concern is not with payments of money to the plaintiff, but with savings resulting either from the plaintiff receiving care free of charge, or from paying for a comprehensive care package which saves on the living expenses which the plaintiff would otherwise have had to meet. These compensating benefits therefore include the gratuitous care and nursing provided by family and friends at home; and the care provided in a hospital, nursing home or other institution, when board and lodging is then also supplied.

Similar policy issues arise no matter whether the plaintiff is provided with money to purchase care (eg an attendance allowance) or is provided with that care directly and free of charge. There is no necessary distinction between, on the one hand, the provision of free medical and hospital treatment and, on the other, the reimbursement of medical expenses through the mechanism of insurance.¹ Although in its present review of damages the Law Commission treat gratuitous nursing services as distinct from “collateral benefits,” it accepts that if the plaintiff is seen as incurring a need for services and this constitutes an initial pecuniary loss, the question of whether to deduct the value of the services as a collateral benefit does then arise.² This article examines the basic rules relevant to such deduction, but it begins by considering the effect upon damages of the existence of free health care under the NHS.