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Giambrone v Sun World Holidays Limited, Court of Appeal, 18 February 2004

24 February 2004
The issues

Breach of contract – gastro-enteritis – gratuitous care – loss of services.

The facts

Six lead cases were heard by the Judge, arising out of the Defendant’s breaches of contract, which led to personal injuries being sustained by the Claimants whilst on holiday at Club Aquamar in Majorca. 652 customers who developed gastro-enteritis or similar illnesses at that resort, brought claims against the Defendant. Judgment had been entered by consent on the 5th April 2000 for damages to be determined. At the centre of the dispute as to valuation was the issue of whether an award should be made for the value of care given to the Claimants after they returned home and about the viability of a “loss of services” by an adult Claimant. The loss of services claim was not in issue before the Court of Appeal. Of the six cases, the Claimants ages ranged from 3 years and 10 months to 29 years, duration of illness from 28 days to over 12 months, and the care element from two weeks to 111 days. In five of the cases, it was only parental care that was in issue. In the sixth case involving the adult Claimant, the value of extra care provided by his wife was claimed. The claim advanced in the case of each child was based on hourly rates set out in the Home Cover (Home Help) National Joint Council for Local Authority Services, New Spinal Point 8 with no allowance made for enhanced rates for unsocial hours. In four of the five cases an hourly rate of £4.98 was adopted and in the fifth case a rate of £4.84. The number of hours were relatively small, the total awards arranging between £150.00 and £275.00.

The Defendants appealed.

The decision

1. The Defendant relied on Mills -v- British Rail Engineering Limited in support for the view that these awards should not be allowed and that allowances for care should be made only where the care goes beyond what a carer would anyhow have been doing.

2. Mills was not authority for the proposition that care awards were reserved for very serious cases. Such proposition would be very difficult to police. An arbitrary dividing line likely to differ from case to case would be likely to bring the law into disrepute.

3. In these cases, the children required care which went distinctly beyond that which was part of the already existing regime of family life. The Judge had relied on Evans -v- Pontypridd Roofing Limited, to support the proposition that a Judge at first instance should not be put into a straight jacket when assessing this head of damages. The awards that he had made were within the bracket of awards properly available to him.

4. For the future however, any award for gratuitous care in excess of £50.00 per week in present day values in a case in which a child suffering from gastro-enteritis receives care from family, should be reserved for cases more serious than these. This sum represented a fair and proportionate balance between the consideration that some payment ought to be made for the unpleasant additional burden placed on the family carer and the consideration that the care is being rendered in a family context and that the remuneration should be relatively modest. It might well be sensible for the Civil Justice Council to attempt to agree with Claimant and Defendant’s guideline tariff for gastro-enteritis cases generally depending on the severity of the illness.

Appeal dismissed.

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