[1] Typically, claims for personal injury rely upon a tort based cause of action - usually a breach of the defendant's common law duty of care owed to the claimant/injured person. In Hunt v Severs [1994] 2 AC 350; [1994] 2 WLR 602, Lord Bridge was considering a breach of a common law duty of care case. Lord Bridge said, at 358, said, (substituting the modern label 'claimant' for the old label 'plaintiff'):

'The starting point for any inquiry into the measure of damages which an injured [claimant] is entitled to recover is the recognition that damages in the tort of negligence are purely compensatory. He should recover from the tortfeasor no more and no less than he has lost'

Typically damages are 'compensatory' damages (sometimes called 'substantial' damages). Compensatory damages are to put the Injured Person, so far as money can, back into the position the Injured Person would have been in, had the wrongdoer not injured the Injured Person (in Daly v General Steam Navigation Co Ltd [1981] 1 WLR 120, Bridge LJ said, at 127 '...to put the plaintiff, so far as money could do so, in the position in which she would have been if she had never been injured...')

Though not relevant to this article, there are other types of damages, like: (a) aggravated damages; (b) exemplary damages; (c) nominal damages; (d) restitutionary damages.

[2] The labels 'general' and 'special' are not particularly illuminating/insightful as to what types of damage comes within which category. In other words, the description does not really assist the reader, in working out/remembering what types of damage comes within which.

[3] Things like, help or doing:

(1) washing and/or dressing the injured person;

(2) food purchasing/preparation/cooking for the injured person;

(3) domestic chores (cleaning, washing up, making the bed, vacuum cleaning, gardening etc) for the injured person;

(4) driving/taking the injured person to appointments (medical, therapeutic etc).

[4] Explaining the position, Cooke J in AD v East Kent Community NHS Trust [2002] EWHC 2256 (QB); [2002] 3 FCR 658 ('East Kent', after referring to: (1) Donnelly v Joyce [1973] 3 All ER 475; (2) Housecroft v Burnett [1986] 1 EA 332; (3) Cunningham v Harrison [1973] QB 942, and (4) Hunt, said paragraph 38:

'The key point which emerges from all these authorities...is that the loss is the claimant's need for services, for which the voluntary carer is to receive compensation if he or she supplies that need to the claimant. Although the objective is to compensate the voluntary carer for the services provided to the claimant, the important point to note is that the carer must be providing services to the claimant who suffered damage.'

[5] In Hunt v Severs [1994] 2 AC 350; [1994] 2 WLR 602, Lord Bridge said, at 357-358:

'The starting point for any inquiry into the measure of damages which an injured plaintiff is entitled to recover is the recognition that damages in the tort of negligence are purely compensatory. He should recover from the tortfeasor no more and no less than he has lost. Difficult questions may arise when the plaintiff's injuries attract benefits from third parties. According to their nature these may or may not be taken into account as reducing the tortfeasor's liability. The two well established categories of receipt which are to be ignored in assessing damages are the fruits of insurance which the plaintiff himself has provided against the contingency causing his injuries (which may or may not lead to a claim by the insurer as subrogated to the rights of the plaintiff) and the fruits of the benevolence of third parties motivated by sympathy for the plaintiff's misfortune. The policy considerations which underlie these two apparent exceptions to the rule against double recovery are, I think, well understood: see, for example, Parry v. Cleaver [1970] A.C. 1 , 14, and Hussain v. New Taplow Paper Mills Ltd. [1988] A.C. 514 , 528. But I find it difficult to see what considerations of public policy can justify a requirement that the tortfeasor himself should compensate the plaintiff twice over for the self- same loss. If the loss in question is a direct pecuniary loss (e.g. loss of wages), Hussain 's case is clear authority that the defendant employer, as the tortfeasor who makes good the loss either voluntarily or contractually, thereby mitigates his liability in damages pro tanto. The Court of Appeal, in the judgment appealed from, readily accepted a number of examples advanced in argument for the defendant as showing that a tortfeasor may mitigate his liability by making good in kind the physical damage which his tort has caused to the plaintiff's property. In a wide-ranging argument before your Lordships, where many hypothetical examples were examined of gratuitous services rendered by a tortfeasor to an injured plaintiff in satisfaction of a need occasioned by his tort, Mr. McGregor, for the plaintiff, was constrained to accept as a general rule that the tortfeasor, having provided those services, cannot also be held liable to the plaintiff in damages for their value. But he submitted that where the tortfeasor is a relative or close friend of the plaintiff and gratuitously provides services of an intimate personal or domestic character, he is required by law, as a narrow exception to the general rule, also to pay the plaintiff the value of those services.'

[6] In Hunt v Severs [1994] 2 AC 350; [1994] 2 WLR 602 ('Hunt'), Lord Bridge said, at 355, as a general statement (substituting the modern label 'claimant' for the old label 'plaintiff'):

'...a [claimant] who establishes a claim for damages for personal injury is entitled in English law to recover as part of those damages the reasonable value of services rendered to him gratuitously by a relative or friend in the provision of nursing care or domestic assistance of the kind rendered necessary by the injuries the [claimant] has suffered.'

There is an exception to this, as dealt with in footnote 6 below.

In Lowe v Guise [2002] EWCA Civ 197; [2002] QB 1369 ('Lowe') Rix LJ (with whom Morland J and Potter LJ agreed - Potter LJ adding his own observations): (1) summarised the initial divergence of analysis in this area, between: (a) Lord Denning MR at 952 in Cunningham v Harrison [1973] QB 942; and (b) Megaw LJ at 462 in Donnelly v Joyce [1974] QB 454, before (2) setting out how Lord Bridge in Hunt preferred the reasoning of Lord Denning MR in Cunningham.

Under the heading 'The first issue: carer services', Rix LJ said, from paragraphs 12 to 16:

'12. To understand this issue it is first necessary to explain the statutory and jurisprudential background to it.

13. It has been established for some time in England that an injured claimant is entitled to claim in respect of the value of care provided gratuitously to him by voluntary carers. The history of the common law's development can be found set out in McGregor on Damages, 16th ed (1997), paras 1675ff and in the speech of Lord Bridge of Harwich in Hunt v Severs [1994] 2 AC 350. In Cunningham v Harrison [1973] QB 942, 952 Lord Denning MR had said:

"It seems to me that when a husband is grievously injured - and is entitled to damages - then it is only right and just that, if his wife renders services to him, instead of a nurse, he should recover compensation for the value of the services that his wife has rendered. It should not be necessary to draw up a legal agreement for them. On recovering such an amount, the husband should hold it on trust for her and pay it over to her. She cannot herself sue the wrongdoer ... but she has rendered services necessitated by the wrongdoing, and should be compensated for it. If she had given up paid work to look after him, he would clearly have been entitled to recover on her behalf; because the family income would have dropped by so much ..."

14. At almost exactly the same time in another division of this court in Donnelly v Joyce [1974] QB 454, 462, Megaw LJ analysed the problem of voluntary care in a different way, emphasising that the loss, consisting in the need for care, was the plaintiff's loss. Megaw LJ continued:

"Hence it does not matter, so far as the defendant's liability to the plaintiff is concerned, whether the needs have been supplied by the plaintiff out of his own pocket or by a charitable contribution to him from some other person whom we shall call the 'provider'; it does not matter, for that purpose, whether the plaintiff has a legal liability, absolute or conditional, to repay to the provider what he has received, because of the general law or because of some private agreement between himself and the provider; it does not matter whether he has a moral obligation, however ascertained or defined, so to do."

15. In Hunt v Severs [1994] 2 AC 350, however, the House of Lords preferred the reasoning of Lord Denning MR. Lord Bridge said, at pp 361-363:

"With respect, I do not find this reasoning convincing. I accept that the basis of a plaintiff's claim for damages may consist in his need for services but I cannot accept that the question from what source that need has been met is irrelevant. If an injured plaintiff is treated in hospital as a private patient he is entitled to recover the cost of that treatment. But if he receives free treatment under the National Health Service, his need has been met without cost to him and he cannot claim the cost of the treatment from the tortfeasor. So it cannot, I think, be right to say that in all cases the plaintiff's loss is 'for the purpose of damages ... the proper and reasonable cost of supplying [his] needs'. In Scotland the law on this subject has developed differently. In Edgar v Postmaster General 1965 SLT 158 it was held by a majority of the Inner House of the Court of Session that the injured pursuer's averment that his accident had caused his wife to give up work to look after him and thereby lose wages was irrelevant. Having pointed out that the wife, not being a party to the action, could not recover the loss, the Lord President (Lord Clyde) continued, at p 160: 'If, on the other hand, the averment is intended to form the basis for a claim for domestic assistance for which the pursuer would have had to pay if he had not been able to secure it gratuitously the claim is, in my opinion, an irrelevant one. It would have been another matter altogether if the pursuer had actually paid some third party, or had entered into a contract to pay some third party for this domestic assistance. It could then have formed a relevant item in his claim for damages. But if the assistance which he got was given gratuitously and there is no undertaking or understanding by him to pay for it (and that is the situation in the present case) then I am quite unable to see how he can claim to be reimbursed for a payment he has not and cannot be compelled to make. In Scotland, damages necessarily involves a loss either actual or prospective, and the plain fact of the matter is that the pursuer has sustained no such loss at all in regard to this item.'The difference in this regard between Scottish and English law was examined by the Scottish Law Commission in their report in 1978, Damages for Personal Injuries, Report on (1) Admissibility of Claims For Services (2) Admissible Deductions (Scot Law Com No 51). In paragraph 20 they adopted the view that 'the value of the services of persons who have assisted the injured person should be recoverable by the latter in his action against the wrongdoer' but considered that 'the principle should apply only as between members of the injured person's family group or circle'. In paragraph 22 they criticised the reasoning used in the judgment of Megaw LJ in Donnelly v Joyce in the following terms: 'In cases where services have been rendered gratuitously to an injured person, it is artificial to regard that person as having suffered a net loss in the events which happened. The loss is in fact sustained by the person rendering the services, a point vividly illustrated in cases where he has lost earnings in the course of rendering those services. We suggest, therefore, that it is wrong in principle, in cases where services have been rendered gratuitously by another to an injured person, to regard the latter as having in fact suffered a net loss.' They concluded, at paragraph 23: 'that it would be right to devise an approach which will enable the injured person to recover in his own action the value of services which have been rendered to him by relatives but which would, at the same time, enable the relative to recover, if he so wished, the value of these services from the injured person.' The Commission's recommendations in this respect were implemented by Part II of the Administration of Justice Act 1982 , which applies to damages for personal injuries in Scotland and which by section 8 provides: '(1) Where necessary services have been rendered to the injured person by a relative in consequence of the injuries in question, then, unless the relative has expressly agreed in the knowledge that an action for damages has been raised or is in contemplation that no payment should be made in respect of those services, the responsible person shall be liable to pay to the injured person by way of damages such sum as represents reasonable remuneration for those services and repayment for reasonable expenses incurred in connection therewith. (2) The relative shall have no direct right of action in delict against the responsible person in respect of the services or expenses referred to in this section, but the injured person shall be under an obligation to account to the relative for any damages recovered from the responsible person under this section.' An elaborate definition of 'relative' in section 13(1), which I need not here set out, implements the Commission's recommendation that this provision should apply only if the person rendering the services and the injured person belong to the same 'family group or circle'. Thus, in both England and Scotland the law now ensures than an injured plaintiff may recover the reasonable value of gratuitous services rendered to him by way of voluntary care by a member of his family. Differences between the English common law route and the Scottish statutory route to this conclusion are, I think, rarely likely to be of practical importance, since in most cases the sum recovered will simply go to swell the family income. But it is nevertheless important to recognise that the underlying rationale of the English law, as all the cases before Donnelly v Joyce [1974] QB 454 demonstrate, is to enable the voluntary carer to receive proper recompense for his or her services and I would think it appropriate for the House to take the opportunity so far as possible to bring the law of the two countries into accord by adopting the view of Lord Denning MR in Cunningham v Harrison [1973] QB 942 that in England the injured plaintiff who recovers damages under this head should hold them on trust for the voluntary carer."

'16. This account of the correct analytical basis of the plaintiff's recovery for the value of her husband's gratuitous care was of critical importance in Hunt v Severs [1994] 2 AC 350 for in that case the carer was the defendant himself. The House of Lords ruled, at p 363d, that, because the plaintiff would have to hand over to the defendant the recovery made on account of his gratuitous care, "there can be no ground in public policy or otherwise" for requiring the defendant to pay such sums to the plaintiff. This result has been described as logical but unfortunate, and liable to lead to the more expensive use of professional carers: see McGregor on Damages, para 1682. The Law Commission's report on Damages for Personal Injury: Medical, Nursing and Other Expenses; Collateral Benefits (1999) (Law Com No 262) has recommended the legislative reversal of the actual decision in Hunt v Severs while approving of its central reasoning, in particular that the loss is that of the provider of the care rather than the plaintiff's.'

Rix LJ in Lowe v Guise [2002] EWCA Civ 197; [2002] QB 1369 ('Lowe') Rix LJ (with whom Morland J and Potter LJ agreed made the same point as appears above at paragraph 13, when he said, at paragraph 27:

'...the wife's care of her injured husband, or the husband's care of his injured wife, can be and is to be valued in pecuniary terms, even though gratuitously provided, and is to be compensated, through the injured person's claim, as the provider's loss...'

On putting a figure on the reasonable value of the Gratuitous Care, see Evans v Pontypridd Roofing Ltd [2001] EWCA Civ 1657; [2002] P.I.Q.R. Q5 ('Evans'), where May LJ (with whom Rix LJ and Ward LJ agreed), said at paragraphs 25 - 26 (Mrs Evans was the wife/Carer of the Injured Person):

'In my judgment, this court should avoid putting first instance judges into too restrictive a strait-jacket, such as might happen if it was said that the means of assessing a proper recompense for services provided gratuitously by a family carer had to be assessed in a particular way or ways. Circumstances vary enormously and what is appropriate and just in one case may not be so in another. If a caring relation has given up remunerative employment to care for the claimant gratuitously, it may well be appropriate to assess the proper recompense for the services provided by reference to the carer's lost earnings. If the carer has not given up gainful employment, the task remains to assess proper recompense for the services provided. As O'Connor L.J. said in Housecroft v. Burnett, regard may be had to what it would cost to provide the services on the open market. But the services are not in fact being bought in the open market, so that adjustments will probably need to be made. Since, however, any such adjustments are no more than an element in a single assessment, it would not in my view be appropriate to bind first instance judges to a conventional formalised calculation. The assessment is of an amount as a whole. The means of reaching the assessment must depend on what is appropriate to the individual case. If it is appropriate, as I think it is in the present case, to have regard to what it would cost to buy the services which Mrs Evans provides in the open market, it may well also be appropriate to scale them down. But I do not think that this can be done by means of a conventional percentage, since the appropriate extent of the scaling down and the reasons for it may vary from case to case.

The first task is to determine the extent of services provided by Mrs Evans gratuitously as a result of her husband's injuries. In Hogg v. Doyle , Kemp & Kemp A2-005, the plaintiff's wife was herself a nurse. She had provided such extensive nursing care that Turner J., the trial judge, stated she had probably been doing the work of two full time nurses. On that basis, he assessed the damages payable in respect of her unpaid services at one and a half times the net earnings which she would have earned in employment as a nurse. On appeal, the defendant contended that damages should have been limited to her net loss of earnings. The Court of Appeal rejected the contention, holding that the sum actually awarded would not have been sufficient to cover the cost of employing two full time nurses, which cost would have been justified, if it had been incurred. The award in that case was accordingly based, not on the wife's actual loss of earnings, but on the commercial cost of the services which she actually provided discounted in accordance with Housecroft v. Burnett . Mathematically the discount in that case was 25 per cent, although no emphasis is placed on this in the summary report in Kemp & Kemp. What this case, however, illustrates is that it is appropriate to make an assessment on the basis of the caring services provided by the gratuitous carer as a result of the claimant's injury, and it will depend on the circumstances of the case what the extent of those services are. In many cases, it will be appropriate to assess them at a relatively small number of hours per day or week. In other cases the services may amount to those which would be provided by a full time professional carer or even, exceptionally, exceed the full time services of a single carer.'

At paragraph 30, May LJ said:

'Any determination of the services for which the court has to assess proper recompense will obviously depend on the circumstances of each case. There will be many cases in which the care services provided will be limited to a few hours each day. The services should not exceed those which are properly determined to be care services consequent upon the claimant's injuries, but they do not, in my view, have to be limited in every case to a stop-watch calculation of actual nursing or physical assistance. Nor...must they be limited in every case to care which is the subject of medical prescription. Persons, who need physical assistance for everything they do, do not literally receive that assistance during every minute of the day. But their condition may be so severe that the presence of a full time carer really is necessary to provide whatever assistance is necessary at whatever time unpredictably it is required. It is obviously necessary for judges to ensure that awards on this basis are properly justified on the facts, and not to be misled into findings that a gratuitous carer is undertaking full time care simply because they are for other reasons there all or most of the time.'

Readers should consider reading Evans, from paragraph 27 onwards.

[7] In Hunt v Severs [1994] 2 AC 350; [1994] 2 WLR 602 ('Hunt'), the House of Lords addressed the question whether the general rule (quoted in footnote 5 above) applied, or whether there was an exception to the general rule, '...where the voluntary carer is the tortfeasor himself.' (Lord Bridge in Hunt, at 355; tortfeasor being the wrongdoer, where the cause of action relied upon is a tort). Lord Bridge, with whom the rest of the House of Lords agreed (Lord Keith, Lord Jauncey, Lord Browne-Wilkinson and Lord Nolan) concluded in Hunt that there was such an exception to the general rule. Lord Bridge found (substituting the modern label 'claimant' for the old label 'plaintiff')'...there can be no ground in public policy or otherwise for requiring the tortfeasor to pay to the [claimant], in respect of the services which he himself has rendered, a sum of money which the [claimant] must then repay to him.' (at 363)

In Lowe v Guise [2002] EWCA Civ 197; [2002] QB 1369, Potter LJ, while to the Law Commission's 1999 report - Damages for Personal Injury: Medical Nursing and Other Expenses; Collateral Benefits, said, at paragraph 55:

'The Law Commission considered that legislation would be necessary to reverse Hunt v Severs [1994] 2 AC 350 in so far as it held that no damages can be recovered where the person who has gratuitously carried out domestic work is the active tortfeasor; also to modify the trust concept endorsed in Hunt v Severs. However, the Commission expressed the view that the common law could otherwise be expected to develop so as to reach the position recommended by the Law Commission. I agree that it should so develop and that this case represents a welcome opportunity to push it in that direction.'

[8a] A good summary of what was decided in Hunt v Severs [1994] 2 AC 350; [1994] 2 WLR 602 was given by Sir Richard Scott VC in the Court of Appeal in Dimond v Lovell [2000] Q.B. 216 [1999] 3 WLR 561, with whom Thorpe LJ and Judge LJ (on relevant points - see paragraph 98) agreed. At paragraph 86, Sir Richard Scott VC said:

'Lord Bridge accepted, at p. 363, that it was established in English law that "an injured plaintiff may recover the reasonable value of gratuitous services rendered to him by way of voluntary care by a member of his family." He held, however, that the rationale behind this principle was "to enable the voluntary carer to receive proper recompense for his or her services." So he adopted the view expressed by Lord Denning M.R. in Cunningham v. Harrison [1973] Q.B. 942 that "in England the injured plaintiff who recovers damages under this head should hold them on trust for the voluntary carer." But this could not be done where the voluntary carer was the defendant who had to pay the damages.'

[8b] In Hunt v Severs [1994] 2 AC 350; [1994] 2 WLR 602 ('Hunt'), Lord Bridge said (substituting the modern label 'claimant' for the old label 'plaintiff'):

(1) 'The law with respect to the services of a third party who provides voluntary care for a tortiously injured [claimant] has developed somewhat erratically in England.' (at 358) and that 'The justice of allowing the injured [claimant] to recover the value of the services so that he may recompense the voluntary carer has been generally recognised, but there has been difficulty in articulating a consistent juridical principle to justify this result.' (at 358). He noted also that 'The voluntary carer has no cause of action of his own against the tortfeasor.' (at 358); and

(2) that the rationale was demonstrated by '...all the cases before Donnelly v. Joyce [1974] Q.B. 454...' (at 363).

Earlier in his speech/judgment, one case Lord Bridge quoted from, the earlier case of Cunningham v Harrison [1973] QB 942 ('Cunningham'). At 359-360 of Hunt, Lord Bridge said:

'In Cunningham the wife of a severely disabled [claimant], who had initially looked after him, had died before the trial. Lord Denning M.R. said, at pp. 951-952:

"Before dealing with [the claim for future nursing expenses] I would like to consider what the position would have been if the wife had not died and had continued to look after her husband, as she had been doing. The [claimant's] advisers seem to have thought that a husband could not claim for the nursing services rendered by a wife unless the husband was legally bound to pay her for them. So, on their advice on 11 July 1972, an agreement was signed whereby the husband agreed to pay his wife £2,000 per annum in respect of her nursing services. We were told that such advice is often given by counsel in such cases as these when advising on evidence. I know the reason why such advice is given. It is because it has been said in some cases that a [claimant] can only recover for services rendered to him when he was legally liable to pay for them: see for instance Kirkham v. Boughey [1958] 2 Q.B. 338 , 342 and Janney v. Gentry (1966) 110 S.J. 408 . But, I think that view is much too narrow. It seems to me that when a husband is grievously injured - and is entitled to damages - then it is only right and just that, if his wife renders services to him, instead of a nurse, he should recover compensation for the value of the services that his wife has rendered. It should not be necessary to draw up a legal agreement for them. On recovering such an amount, the husband should hold it on trust for her and pay it over to her. She cannot herself sue the wrongdoer . . . but she has rendered services necessitated by the wrongdoing, and should be compensated for it. If she had given up paid work to look after him, he would clearly have been entitled to recover on her behalf; because the family income would have dropped by so much: see Wattson v. Port of London Authority [1969] 1 Lloyd's Rep. 95, 102, per Megaw J. Even though she had not been doing paid work but only domestic duties in the house, nevertheless all extra attendance on him certainly calls for compensation."' [Bold added]

[9a] In support of this conclusion in Hunt v Severs [1994] 2 AC 350; [1994] 2 WLR 602, Lord Bridge quoted, at 359-360, the following from the earlier case of Cunningham v Harrison [1973] QB 942 ('Cunningham') (substituting the modern label 'claimant' for the old label 'plaintiff'):

'In Cunningham the wife of a severely disabled [claimant], who had initially looked after him, had died before the trial. Lord Denning M.R. said, at pp. 951-952:

"Before dealing with [the claim for future nursing expenses] I would like to consider what the position would have been if the wife had not died and had continued to look after her husband, as she had been doing. The [claimant's] advisers seem to have thought that a husband could not claim for the nursing services rendered by a wife unless the husband was legally bound to pay her for them. So, on their advice on 11 July 1972, an agreement was signed whereby the husband agreed to pay his wife £2,000 per annum in respect of her nursing services. We were told that such advice is often given by counsel in such cases as these when advising on evidence. I know the reason why such advice is given. It is because it has been said in some cases that a [claimant] can only recover for services rendered to him when he was legally liable to pay for them: see for instance Kirkham v. Boughey [1958] 2 Q.B. 338 , 342 and Janney v. Gentry (1966) 110 S.J. 408 . But, I think that view is much too narrow. It seems to me that when a husband is grievously injured - and is entitled to damages - then it is only right and just that, if his wife renders services to him, instead of a nurse, he should recover compensation for the value of the services that his wife has rendered. It should not be necessary to draw up a legal agreement for them. On recovering such an amount, the husband should hold it on trust for her and pay it over to her. She cannot herself sue the wrongdoer . . . but she has rendered services necessitated by the wrongdoing, and should be compensated for it. If she had given up paid work to look after him, he would clearly have been entitled to recover on her behalf; because the family income would have dropped by so much: see Wattson v. Port of London Authority [1969] 1 Lloyd's Rep. 95, 102, per Megaw J. Even though she had not been doing paid work but only domestic duties in the house, nevertheless all extra attendance on him certainly calls for compensation."' [Bold added]

Further, Rix LJ in Lowe v Guise [2002] EWCA Civ 197; [2002] QB 1369 ('Lowe') considered the question 'whether an injured person can claim as part of his loss the value of gratuitous care given to him by his wife' (paragraph 36), and summarised, at paragraph 36, that the reasoning in Hunt was that '...the loss is in truth that of the wife which the husband can claim in trust for the wife' [bold added]

In Re British Coal Respiratory Disease Litigation [2000] Lexis Citation 4230 (later unsuccessfully appealed on this point in the Court of Appeal - Griffiths v British Coal Corpn [2001] EWCA Civ 336 [2001] 1 WLR 1493), at paragraph 17, Turner J said about Hunt:

'In Hunt v Severs [1994] 2 AC 350, [1994] 2 All ER 385 it was held by the House of Lords that damages recovered, in the circumstances under present consideration, were held by the claimant in trust for the person who had rendered those services.' [bold added]

At paragraph 19, Turner J said:

'...following the decision in Hunt v Severs (above), the injured party will have to pay to the person who rendered the services the amount of the damages awarded in respect of those services.'

And later in paragraph 19, Turner J referred to 'the underlying concept of a trustee relationship between the claimant and the provider of care services' [bold added].

In Dimond v Lovell [2000] Q.B. 216 [1999] 3 WLR 561, Sir Richard Scott VC in the Court of Appeal (with whom Thorpe LJ and Judge LJ agreed (on relevant points - see paragraph 98)), said at paragraph 88:

'If a plaintiff has received a benefit from a third party that has, in the event, met his need with no cost to himself, be it a need for care services or a need for a replacement vehicle, the court may allow an award of damages in order to enable the plaintiff to recompense the third party. The plaintiff will then hold the amount of the award in trust for the third party. But, if the circumstances of the case do not permit a trust for the third party to be imposed on the damages, the plaintiff cannot recover the damages. He does not need to recover damages in order to meet his own loss for, in the event, he has suffered none. To allow him to recover in circumstances where the trust solution could not be applied would lead to a recovery by the plaintiff of more than he had lost.'

Sir Richard Scott VC went to on apply this principle, to case before him (paragraph 88). For those interested, Sir Richard Scott VC said, at paragraphs 89, 90 and 91:

'The plaintiff's need for a replacement vehicle was met by 1st Automotive. It supplied her with a vehicle under the terms of the hiring agreement that she signed. But that agreement is unenforceable for 1st Automotive's failure to comply with the requirements of the Act of 1974. 1st Automotive certainly did not provide the vehicle out of benevolence. It supplied the vehicle in the course of its business. Would the law in these circumstances impose a trust on the damages in favour of 1st Automotive? In my judgment, certainly not.

...

A trust in favour of the insurance company that had been carrying on an illegal insurance business created in order to remedy the consequences of the illegality would, in my view, have been wrong in principle. If a trust of the damages in favour of the supplier of the replacement vehicle cannot be created, Hunt v. Severs stands, in my judgment, as an authority that bars recovery of the damages from the defendant.

...the plaintiff, who has fortuitously obtained a replacement vehicle without having to pay for it, cannot recover as damages the amount she would have had to pay if her agreement with 1st Automotive had been enforceable.'

[9b] Scottish Law has Part II of the Administration of Justice Act 1982 ('1982 Act') governing the situation, which applies to damages for personal injuries in Scotland. Section 8 of the 1982 Act provides:

'(1) Where necessary services have been rendered to the injured person by a relative in consequence of the injuries in question, then, unless the relative has expressly agreed in the knowledge that an action for damages has been raised or is in contemplation that no payment should be made in respect of those services, the responsible person shall be liable to pay to the injured person by way of damages such sum as represents reasonable remuneration for those services and repayment of reasonable expenses incurred in connection therewith.

(2) The relative shall have no direct right of action in delict against the responsible person in respect of the services or expenses referred to in this section, but the injured person shall be under an obligation to account to the relative for any damages recovered from the responsible person under this section.'

In Scotland therefore, the Injured Person is under a statutory obligation to account, to the Carer, for the Gratuitous Care money received by the Injured Person, from the wrongdoer (responsible person). After quoting section 8 of 1982 Act, Lord Bridge in Hunt v Severs [1994] 2 AC 350, [1994] 2 All ER 385 said:

'Thus, in both England and Scotland the law now ensures that an injured plaintiff may recover the reasonable value of gratuitous services rendered to him by way of voluntary care by a member of his family. Differences between the English common law route and the Scottish statutory route to this conclusion are, I think, rarely likely to be of practical importance, since in most cases the sum recovered will simply go to swell the family income. But it is nevertheless important to recognise that the underlying rationale of the English law, as all the cases before Donnelly v. Joyce [1974] Q.B. 454 demonstrate, is to enable the voluntary carer to receive proper recompense for his or her services and I would think it appropriate for the House to take the opportunity so far as possible to bring the law of the two countries into accord by adopting the view of Lord Denning M.R. in Cunningham v. Harrison [1973] Q.B. 942 that in England the injured plaintiff who recovers damages under this head should hold them on trust for the voluntary carer.'

[10] Section 283 of the Insolvency Act 1986 is entitled 'Definition of bankrupt's estate' and section 283(1) provides:

'Subject as follows, a bankrupt’s estate for the purposes of any of this Group of Parts comprises

(a) all property belonging to or vested in the bankrupt at the commencement of the bankruptcy, and

(b) any property which by virtue of any of the following provisions of this Part is comprised in that estate or is treated as falling within the preceding paragraph.'

For completeness, the rest of section 283 provides:

'Subsection (1) does not apply to

(a) such tools, books, vehicles and other items of equipment as are necessary to the bankrupt for use personally by him in his employment, business or vocation;

(b) such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the bankrupt and his family.

This subsection is subject to section 308 in Chapter IV (certain excluded property reclaimable by trustee).

(3) Subsection (1) does not apply to(a) property held by the bankrupt on trust for any other person, or

(b) the right of nomination to a vacant ecclesiastical benefice.

(3A) Subject to section 308A in Chapter IV, subsection (1) does not apply to

(a) a tenancy which is an assured tenancy or an assured agricultural occupancy, within the meaning of Part I of the Housing Act 1988, and the terms of which inhibit an assignment as mentioned in section 127(5) of the Rent Act 1977, or

(aa) a standard contract within the meaning of section 8 of the Renting Homes (Wales) Act 2016 (anaw 1) and the terms of which inhibit an assignment as mentioned in section 127(5) of the Rent Act 1977 (c. 42), or

(b) a protected tenancy, within the meaning of the Rent Act 1977, in respect of which, by virtue of any provision of Part IX of that Act, no premium can lawfully be required as a condition of assignment, or

(c) a tenancy of a dwelling-house by virtue of which the bankrupt is, within the meaning of the Rent (Agriculture) Act 1976, a protected occupier of the dwelling-house, and the terms of which inhibit an assignment as mentioned in section 127(5) of the Rent Act 1977, or

(d) a secure tenancy, within the meaning of Part IV of the Housing Act 1985, which is not capable of being assigned, except in the cases mentioned in section 91(3) of that Act; or

(e) a secure contract within the meaning of section 8 of the Renting Homes (Wales) Act 2016 (anaw 1) which is not capable of being assigned, except-

(i) in the cases mentioned in section 251 (family property order) of that Act,

(ii) in accordance with section 925 (assignment by way of exchange) of the Housing Act 1985 (c. 68), or

(iii) to a person who would be qualified to succeed the contract-holder if the contract-holder died immediately before the assignment.

4) References in any of this Group of Parts to property, in relation to a bankrupt, include references to any power exercisable by him over or in respect of property except in so far as the power is exercisable over or in respect of property not for the time being comprised in the bankrupt’s estate and(a) is so exercisable at a time after either the official receiver has had his release in respect of that estate under section 299(2) in Chapter III or the trustee of that estate has vacated office under section 298(8), or

(b) cannot be so exercised for the benefit of the bankrupt; and a power exercisable over or in respect of property is deemed for the purposes of any of this Group of Parts to vest in the person entitled to exercise it at the time of the transaction or event by virtue of which it is exercisable by that person (whether or not it becomes so exercisable at that time).

(5) For the purposes of any such provision in this Group of Parts, property comprised in a bankrupt’s estate is so comprised subject to the rights of any person other than the bankrupt (whether as a secured creditor of the bankrupt or otherwise) in relation thereto, but disregarding(a) any rights in relation to which a statement such as is required by section 269(1)(a) was made in the petition on which the bankrupt was made bankrupt, and

(b) any rights which have been otherwise given up in accordance with the rules.

(6) This section has effect subject to the provisions of any enactment not contained in this Act under which any property is to be excluded from a bankrupt’s estate.'

[11] For cases on the general proposition that property held on trust does not fall into the bankrupt estate, see Re Tout & Finch Ltd [1954] 1 WLR 178; Re McKeown [1974] NI 226, Abrahams v Trustee of Property of Abrahams [1999] BPR 637 and Abdulla v Whelan; Re Elsom [2017] EWHC 605 (Ch); [2017] BPIR 791.

[12] In Griffiths v British Coal Corp [2001] 1 WLR 1493, Lord Phillips MR (with whom Kennedy LJ and Dyson LJ agreed) gave judgment as to the 'natural meaning of the phrase “compensation for cost of care incurred during the relevant period”' in Social Security (Recovery of Benefits) Act 1997, Schedule 2, Column 2. Explaining the issue before the Court of Appeal, Lord Phillips said, at paragraphs 42 and 43:

'Column 2 of Schedule 2 itemises benefits paid to cover the cost of caring for a person incapacitated through injury or illness. Reimbursement of these benefits falls to be off-set against compensation for cost of care incurred during the relevant period (see column 1). Where a claimant has paid for care such payments will be recoverable as special damages. It is common ground that these will constitute compensation for cost of care within the definition in column 1.

Where care has been provided to a claimant gratuitously, the claimant is, nonetheless, entitled to recover as special damages an appropriate amount to enable payment to be made to the person or persons who provided the care. The issue is whether such damages are covered by the phrase “cost of care incurred”.'