Care home briefing 92 – Hospice care: a recoverable cost?

It has long been established that a claimant suffering injuries or disease resulting from a defendant’s tortious acts may recover the costs of being cared for or nursed by a family member or friend, so long as such services were rendered reasonably necessary.[1] The court usually assesses and awards a reasonable sum in respect of the care given by family members in such cases. Although the injured party claims for the value of the services, the claimant holds the damages awarded in trust for the third party or carer.

However, where serious injury has occurred, the claimant’s care towards the end of his life may be provided by a hospice. It is well accepted that hospices are generally charitable organisations that rely largely upon donations to fund the care work they carry out. Hospice care is also often open and free to all.

Care provided to an injured person by friends and family and care provided by a hospice are both provided free of charge. A question therefore arises as to whether the value of services provided by a hospice can be recovered in a claim for damages. The recent case of Drake and another (executrices of estate of James Wilson (deceased)) v Foster Wheeler Ltd[2] establishes for the first time that they can be.

The injured person in this case, Mr Wilson, had worked for the defendant company in the 1950s, as a boiler erector at a power station. As a result of exposure to asbestos, he contracted lung cancer.

Between September 2006 and February 2007, Mr Wilson was cared for at home by his two daughters (the claimants in this action) and his granddaughter. However, Mr Wilson’s condition deteriorated rapidly and he was admitted to St Joseph’s hospice on 12 February 2007. He received 23 days of inpatient palliative care until he died on 7 March 2007.

It was not mandatory to make donations to St Joseph’s, but Mr Wilson’s family wanted to repay the hospice for the care they had provided. However, they could not afford to do so. The claimant daughters therefore commenced proceedings against the defendant company and sought damages for just over £10,000 in respect of the cost of Mr Wilson’s stay at St Joseph’s.

The Court held that the hospice care was a justified part of the damages claim. The Judge said, “The care [provided by the hospice] was charitable in nature, gratuitous and provided without St Joseph’s being under an obligation to provide it…There is no reasonable basis for distinguishing St Joseph’s, a charitable Foundation, from a private individual or from one of Mr Wilson’s family members or friends. The services provided were very similar to those provided by such members…It follows that a reasonable sum is recoverable from the Defendant.” [3] [4]

The decision in this case seems logical and fair. However, the Judge did not anticipate a large number of similar cases, as he stated at paragraph 42 that:

“Recovery of the costs of hospice care in such cases does not give rise to a fear that the so called floodgates will open or that a new head of recovery has suddenly been opened up. Rather, recovery is consistent with established principles and it is unlikely that there will be a significant number of claims in the future.”

Whether this will be the case remains to be seen. Many badly injured Claimants may need a period of hospice care and lawyers acting for them are likely to include this in the claim for compensation. For the hospice sector, this represents a potential flow of additional income, albetit limited in the number of cases where it will be relevant.


Footnotes
[1] Kirkham v Boughey [1958] 2 QB 338, Schneider v Eisovitch [1960] 2 QB 430
[2] [2010] EWHC 2004 (QB)
[3] Supra fn.2, at [41][ 42]
[4] A total sum of £10,021 was awarded.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.