Caring responsibilities in personal injury claims: The courts’ approach

Women are consistently overrepresented among those with caring responsibilities, whether looking after children, elderly relatives, or disabled family members. The 2021 census identified approximately 5.8 million unpaid carers across the UK, with around three million female carers and two million male carers in England and Wales alone; in other words, 59% of unpaid carers in England and Wales are female. Around 10% of women within this jurisdiction are care providers, rendering it almost inevitable that personal injury practitioners will come across claimants in that position sooner or later in their careers.  

The recognition of caring responsibilities within the framework of personal injury and clinical negligence litigation has developed considerably over the past four decades. Courts in England and Wales now routinely acknowledge that the consequences of tortious injury extend well beyond the claimant’s own physical and psychological suffering. Where a claimant has been providing care to dependants, whether children, elderly parents, or disabled family members, the inability to continue doing so represents a distinct and compensable head of loss. 

This article examines the legal framework governing the loss represented by inability to care; and offers practical guidance for practitioners seeking to maximise recovery for their clients. 

At the outset, practitioners must appreciate the fundamental distinction between the two categories of care claim. The first concerns care received by the claimant as a consequence of his or her injuries. The second concerns care that the claimant can no longer provide to others. Both are well-established heads of damage, but they engage different principles and require different approaches to evidence and quantification. 

All practitioners will be familiar with the principles to be applied to claims for gratuitously and commercially provided care required and received by the claimant, and they are beyond the scope of this article. The second class of claim relates to the loss of the ability to provide care to others, a category of claim frequently overlooked or undervalued in practice.  

The principle is straightforward: where the claimant was, prior to injury, providing care or domestic services to others (typically but not necessarily children, elderly relatives, or disabled family members), and can no longer do so, the cost of replacing those services is recoverable. 

Early recognition of this head of loss can be found in Mehmet v Perry [1977] 2 All ER 529, where the court accepted the cost of replacing domestic services as a legitimate element of the claim. The Court of Appeal in Daly v General Steam Navigation Co Ltd [1981] 1 WLR 120 further affirmed that loss of the ability to perform housework and caring tasks constitutes a valid head of claim, assessable by reference to the reasonable cost of commercial replacement. This may be quantified by reference to local authority care rates, agency rates for childcare or domestic assistance, or, where the care need has been met gratuitously by another family member stepping in, by the same discounted commercial rate applicable under the familiar Housecroft v Burnett formulation. The key is that the loss must be real and evidenced: the claimant must demonstrate both the pre-injury provision of care and the post-injury inability to continue. 

In Lowe v Guise [2002] QB 1369 the Court of Appeal considered the claim of a claimant who was unable to look after his disabled brother for 77 hours each week as he had done previously, but continued to provide care for 35 hours each week; his entitlement to invalid care allowance was unaffected. The care the claimant was no longer able to give was rendered by his mother, with whom he and his brother lived. The claimant sought damages for the value of the 42 hours care he was no longer able to provide on the basis that that was a service which had benefited the family as a whole. At first instance the judge held that an injured person could not recover damages for the loss of his capacity gratuitously to render services to a relative; this finding was overturned on appeal. The Court of Appeal determined that a claimant who had established a claim for damages for personal injury was entitled to recover as part of those damages a claim for the loss of his ability to contribute to the care of a relative living in the same household; that the care which the claimant provided was not a mere gratuitous favour bestowed on a third party, but was a responsibility of his own, adopted by him and owed to his brother and mother with whom he shared a household; that, when he lost his ability to care for his brother for more than 35 hours per week, he lost something of real value to himself, which was his contribution to his family’s welfare, a loss which imposed a corresponding obligation on his mother to make good by her own care what he was no longer able to provide; he was entitled to damages accordingly. 

More recently, in Rogers v Wills [2025] EWHC 1367 (Ch) the claimant made a claim against her mother’s estate for the cost of caring for her for the last two and a half years of her life. The claim was advanced against her brother, the executor of the estate, in breach of contract and in unjust enrichment, in the sum of £135,000. His Honour Judge Paul Matthews, sitting as a High Court Judge, found that the claimant and her mother had entered into a binding contract for care at the mother’s home ‘for a reasonable price’. The mother had capacity, intended to create legal relations, and had insisted the claimant be ‘paid properly’. In the alternative, the judge held the estate would be liable in unjust enrichment. At the quantum trial, Rogers v Wills [2026] EWHC 2231 (Ch), District Judge Wales awarded the sum of £150 per day for 850 days, plus interest. It should be emphasised that this case did not concern gratuitous care, but it is perhaps indicative of a growing acceptance that care has a value, whether it be familial or commercial. 

Success in all care claims depends upon meticulous evidence gathering. Medical evidence must clearly link the claimant’s injuries to the inability to provide caring services. Witness statements from family members should detail the nature, extent, and frequency of care previously provided by the claimant and how those needs are now being met. Where the care needs of the recipient of the claimant’s care are complex, a care expert should be retained in the usual way to prepare a statement of care needs. 

The courts have shown an increasing willingness to recognise the full spectrum of caring responsibilities. It is now well established that “care” is not limited to hands-on physical tasks such as washing, dressing, and feeding. The courts accept that caring encompasses emotional support, supervision, the coordination of care arrangements, and the management of a household. In cases involving children, the loss of a parent’s ability to provide “ordinarily available” parenting such as attending school events, supervising homework or transporting children to activities has been recognised as compensable. 

The court applies a reasonableness test at every stage. It asks whether the care claimed is reasonable in nature and extent, whether it was reasonable for the claimant to provide it, whether it is reasonable for the claimant’s services to be replaced, and whether the rate claimed is reasonable by reference to the local market.  

There is also a discernible trend towards greater judicial scrutiny of the discount applied to gratuitous care. Some first-instance decisions have applied a more modest discount in recent times, particularly where the care provided is of a specialised nature or where it is difficult to replace. Practitioners should be alive to the possibility of arguing for a reduced discount where the facts support it.

Care claims represent a significant component of damages in personal injury and clinical negligence litigation, and practitioners who fail to explore and properly plead their client’s caring responsibilities, both as a recipient and as a provider of care, risk leaving substantial sums unrecovered. This is of particular concern when representing female claimants, whose loss of earnings and pension awards are already, on average, lower than those of male claimants due to the gender imbalance in average earnings.  

The legal principles are well established; what distinguishes successful claims from unsuccessful ones is the quality of the evidence and the care with which the claim is particularised. Practitioners should routinely explore the claimant’s pre-injury domestic arrangements: who they cared for, what tasks they performed, how frequently, and what has changed since the index event. The Schedule of Loss should reflect these matters with precision, supported by medical evidence, lay witness evidence, and, where appropriate, expert care evidence.