Rowe v Dolman [2008] EWCA Civ 1040

Case No B3/2008/0003;Case No B3/2008/0059[2008] EWCA Civ 1040
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD DISTRICT REGISTRY
(MR JUSTICE SIMON)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 23 rd July 2008
Before
THE LORD CHIEF JUSTICE(LORD PHILLIPS OF WORTH MATRAVERS)LORD JUSTICE MAYLADY JUSTICE HALLETT
Between
DAVID ROWE (by his Litigation Friend, Angela Griffiths)AppellantDOLMANRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr T Horlock QC (instructed by Greenwoods) appeared for Appellant.Ms E Gumbel QC and Mr H Witcomb (instructed by Irwin Mitchell) appeared for Respondent.
Judgment
[1]David Rowe, the claimant, born on 5 September 1953 and now aged 55, was very badly injured in a road accident on 27 June 1999 when he was aged 46. He was a pedestrian and he was run over by a car driven by the defendant, Neville Dolman, as he was crossing the road in Greater Manchester. It was agreed and approved by the court that Mr Dolman was 80% to blame for the accident, and Mr Rowe obtained unopposed judgment in these proceedings for 80% of his damages to be assessed. An interim payment was awarded on 3 February 2005, which has happily enabled Mr Rowe to buy and move into private accommodation suitable for his long-term care upon which, by reason of his catastrophic injuries, he is entirely dependent.[2]As a result of the accident he sustained very serious head injuries, severe brain injury and a fracture of the spine, as well as severe chest injuries consisting of a fracture to the ribs, blunt chest trauma and lung contusions. He has also developed adult respiratory distress syndrome, which has been complicated by diffuse pulmonary fibrosis and bronchiectosis. The injuries suffered have resulted in very severe disability: the claimant has no use of his legs and limited use of his left arm. He is wheelchair-bound and is dependent on others for a majority of his care. He is incontinent and fed by way of gastric tube during the night and nutrition by mouth during the day. He breathes with the aid of oxygen, at the rate of four litres per hour, provided from oxygen cylinders.[3]He has some insight into his condition and is conscious of his environment. He is able to communicate coherently but his speech is at times difficult to follow. Having initially spent 54 days in the intensive care unit at Hope Hospital, Salford, with a further period of recuperation and rehabilitation at the hospital and Mangham Lodge Rehabilitation Unit. He was then transferred to Springfield Park Residential Home in Rochdale and he stayed there until he moved into private adapted accommodation in Rochdale on 20 February 2007.[4]The assessment of his damages took place between 13 and 16 November 2007 before Simon J, in the course of which an annual amount of £363,750 was agreed as the appropriate multiplicand on 100% liability and there was agreement as to capital items in the sum of £1,426,396. Those figures, reduced by 20% on account of the claimant’s contributory negligence, became an annual amount of £291,000 and a reduced capital sum of £1,141,116. Most of the capital amounts have been spent, leaving a small contingency fund of £72,809. It was further agreed that Mr Rowe’s continuing care needs alone required £295,000 a year, a rather greater amount than the £291,000, which is 80% of the agreed multiplicand and some £72,000 less than his full annual need.[5]After these entirely laudable agreements, two issues relevant to these appeals remained for Simon J to decide: firstly, what period of time should be taken as Mr Rowe’s life expectancy to form the basis of the multiplier to be applied to the agreed 80% multiplicand; and secondly, whether the court should order a lump sum payment in the resulting amount or should order periodical payments. The judge, having considered a body of written and oral expert medical opinion, assessed Mr Rowe’s life expectancy at 15 years and he decided that there should be a lump sum payment; thus, judgment was given for Mr Rowe on 18 December 2007 of £4,790,256, adjusted for interim payments and the like. The defendant appeals by permission of Sir Henry Brooke against the two contentious decisions to which I have just referred.[6]As to Mr Rowe’s life expectancy, the judge had evidence from four medical experts, Mr Gardner and Professor Woods for the claimant and Professor Barnes and Dr Hind for the defendant. The judge, whose judgment on the life expectancy issue may be found at [2007] EWHC 2799, described the experience and qualification of each of them in paragraph 18 of the judgment. Dr Hind, whose opinion is a main focus of the first appeal, has qualifications which include MD and FRCP and he is a consultant physician in general and respiratory medicine at the Cardiothoracic Centre at the University of Liverpool. The experts all agreed that Mr Rowe had a reduced life expectancy by reason of the accident. They conferred and reached a degree of agreement on 13 November 2007, the first day of the assessment of damages. The agreement included the following, and I take this from paragraph 20 of the judgment:
“We agree that the average 53.2 year old man can expect to live 30.5 more years. We agree that the life expectancy of the claimant is reduced. We agree that the particular combination of problems in the claimant makes arriving at a life expectancy figure for him difficult. We agree that the life expectancy of the claimant is influenced by his spinal cord injury, his head and related issues, his intrapulmonary problems and tracheostomy, bronchiectosis and pulmonary fibrosis complicated by respiratory failure requiring continuous oxygen therapy, 4 litres a minute, and age-related deterioration of pulmonary function. We agree that all spinal cord-injured persons, especially low tetraplegics, have respiratory compromise. We agree that the claimant has a worse respiratory state than the average tetraplegic. Professor Woods and Dr Hind agree that the factors that make his respiratory state worse than the average tetraplegic include respiratory failure predominantly due to his pulmonary fibrosis, bronchiectosis, requirement for nebulised bronchodilator therapy, tracheostomy and risk of aspiration.”
[7]In short, it was the opinion of three of the four experts that Mr Rowe’s life expectancy at the date of the hearing was in a range of 15-18 years, Mr Gardner and Professor Woods espousing 18 years. As they had agreed, the life expectancy of a healthy 53-year-old male is in the order of 30-32 years. Dr Hind, however, was of the opinion that Mr Rowe’s life expectancy was in the range 3-5 years. Each of the three experts who had examined Mr Rowe before he moved to his own accommodation had by the date of the hearing revised earlier estimates upwards because of the improvement that had happily resulted from the move. Dr Hind had not seen him before the move, having examined him once only in July 2007. The judge quoted a passage from Professor Barnes’ report on this improvement in paragraph 22 of his judgment. In paragraph 3 he quoted a passage from Mr Gardner about the use of published statistics, the interplay of various factors, the need to avoid in this instance double-counting of the respiratory risk and the risk from tetraplegia, which is itself respiratory. The judge quoted Mr Gardner’s opinion that:
“In a situation such as Mr Rowe a clinical assessment based on experience but guided by the available published evidence must be a key facet.”
The judge noted that among a considerable amount of published material on research into life expectancy there did not appear to be any research on the extent to which expert views in this field had been proved to be accurate.[8]The judge’s summary of the expert evidence, acknowledged by the appellant’s counsel to be accurate, was as follows, and here I give paragraph 25 of the judgment:
“At a relatively late stage in proceedings Dr Hind produced reports of research in new material which appeared to show that in the sample to which it related there was a starkly reduced life expectancy. One of the main issues between the experts was the extent to which the new material was relevant. Mr Gardner had seen the claimant on three occasions: in December 2003, August 2006 and June 2007. He described what in his view were positive features, for example good housing and medical care, and negative features, for example the respiratory risks. He had experience in these features from patients with spinal cord injuries who also had severe respiratory difficulties. Although he could not treat the respiratory disease, his experience enabled him to assess the extent to which it contributed to reduced life expectancy. He acknowledged that he had few patients who were receiving oxygen therapy of 4 litres per hour. Like the other experts he also accepted that the claimant had suffered from at least one chest infection since moving to Broad Lane although he described it as well-handled. Professor Woods had seen the claimant on two occasions in January 2004 and May 2007. He had also seen chest X-rays and CT scans. When he had first seen him the claimant was suffering from repeated life-threatening chest infections. When he saw him in 2007 these had decreased. His respiratory problems were the consequence of trauma caused by the accident and were not progressive conditions, as could be seen by comparing the CT scans of 2000 and 2002. It was for this reason that he doubted the utility of the new material which related to patients with degenerative disease. Like the other experts he was unable to say what the claimant’s need for oxygen was because it could not be measured. He agreed that there would be deterioration in lung function and that the effect of aging would be added to this. Dr Hind had seen the claimant on one occasion in July 2007. He has wide clinical experience of patients with pulmonary fibrosis and bronchiectosis and patients on long-term oxygen treatment, including at rates of 4 litres per hour. The claimant had lost a huge amount of lung function and was now dependent on oxygen. He had assessed the claimant’s life expectancy on the basis of what he considered to be the natural history of the lung condition and on his experience of patients with long-term oxygen therapy and on the new material, including the Fletcher curves. In his view the Fletcher curves which predicted the life span of patients illustrated the starkly reduced life expectancy of those with severely reduced lung function. These were patients who, like the claimant, were not smoking but were nevertheless subject to the accelerated aging process of those who had reduced lung capacity. No amount of nursing care could make up for the loss of lung function which the claimant had suffered -- such patients lived for years and not decades. He was totally dependent on others for his care. Dr Hind acknowledged that he was viewing the matter from the point of a respiratory specialist that said that a claimant’s problems were respiratory not neuro-respiratory. He accepted that the prognosis was better since the move to Broad Lane but said that he would have predicted a shorter life expectancy than three to five years before the move. He also accepted that the claimant had outlived his expectations. Professor Barnes had seen the claimant on two occasions in July 2005 and July 2007. He has no specific experience of treating lung disease of the type but approached the issue on the basis that there was an overlap between neuro-respiratory and respiratory disease.”

The judge’s view of Dr Hind’s opinion was as follows, and this is from paragraph 30 in the judgment:

“It seems to me that Dr Hind’s view is over-pessimistic. It places too much emphasis on his experience of patients with degenerative respiratory disease and on the new material which relates to degenerative disease. The claimant does not suffer from such a disease. It also gives insufficient weight to the nature of the claimant’s spinal injuries and the overlap with the neuro-respiratory experience of Mr Gardner and Professor Barnes. I am also troubled by the way in which Dr Hind reached his figure of three to five years. His inability in the witness box to explain how he had reached this figure by reference to the Fletcher curves undermined my confidence in his method.”
And proceeding to deal with the other experts

the judge said:

“It also seems to me that the other experts had not paid sufficient regard to the fact that the claimant has, in the words of the joint statement, ‘a worse respiratory state than the average tetraplegic’. Although each of Mr Gardner, Professor Wood and Professor Barnes had considerable experience of treating respiratory conditions associated with spinal injury they had not, in my judgment, taken fully into account the particularly serious and specific problems in relation to his respiratory system and the problems that this was likely to cause to him in the future, in particular with chest infection.”
[10]The Fletcher curves are on a single sheet of paper, not entirely legible as originally presented to the court, but we now have a better copy. There are four downward curving lines, one of them representing the respiratory decline of an average non-smoker, a second for a smoker who has given up, a third for a susceptible smoker who has not given up and a fourth for a severely susceptible smoker. They give a general picture that the second is worse than the first and so on but I have not seen any statistical or research material which enables the graphs to come up with a numerical answer. Dr Hind’s thesis was that at the age of 44 Mr Rowe had been catastrophically taken from the average non-smoker blue curve to below the red curve and below a dotted horizontal line representing severe disability. His curve would then continue in parallel with the blue line because his reduced respiratory functioning was not degenerative, nor affected by smoking. The curve does not show when Mr Rowe’s line would reach a point where he was breathing so poorly that he would die but Dr Hind’s oral evidence was that this would occur when his forced expiratory volume after one second intake, the vertical axis, reached 0.4 litres.[11]Miss Gumbel’s cross-examination of Dr Hind, in particular on page 30 of the transcript of 14 November 2007, in my view justifies the judge’s comment that Dr Hind had not been able to explain in the witness box how he had reached his figure of three to five years by reference to the Fletcher curves. The passage goes as follows:
“Q[Miss Gumbel]: Can I ask you, Dr Hind, what we are simply having difficulty with, because this is not something attached to your report or explained in your report, is your working calculations. You have not produced those. You have produced these curves and we can look at it and see how you might have done it but we cannot see your working documents. Have you got your working documents? A: How do you mean? The scrap of paper? No I haven’t, I’m sorry, no. Q: It was a scrap paper,was it? It was not a computer programme or mathematically? A: No. I am afraid on paper. Q: It was simply done by drawing the curves by eye? A: Well we also know roughly how the line declines with age. Yes. Q: But what we are having great difficulty with is seeing how you get the 3 to 4 simply by drawing the line from… A: 3 to 5. Q: 3 to 5, I am sorry. From the sparse information on this chart I simply cannot see how we can accept that that is what that result is without seeing it. I am sorry to be difficult about it but this is the first time we have seen it. A: Yes.”
And then

the judge said:

“Well, I think the answer is if you don’t have the scrap of paper, however you describe it, I am not sure that the matter can be taken very much further. I think it’s probably a matter for submission.”
Q: It was a scrap paper,was it? It was not a computer programme or mathematically? Q: It was simply done by drawing the curves by eye? A: Yes.”

Q: It was simply done by drawing the curves by eye?

[12]Dr Hind had agreed in cross-examination that if he had assessed Mr Rowe in 2000 he would have been more pessimistic and that he would then have predicted his death in 2002 or something like that, a putative prediction which events have happily proved to be wrong. He also agreed at page 29C that the Fletcher curves were not used for Mr Rowe’s condition.[13]A curious passage in Dr Hind’ evidence is at pages 27 to 28 of the transcript where, in answer to questions from the judge, he expressed the approximate view that Mr Rowe’s life expectancy from the date of the accident or soon after it in 1999 would have been 11 to 13 years. This is curious because it apparently conflicts with Dr Hind’s view expressed elsewhere that his opinion in 2000 would have predicted his death in 2002 or 2003, and because speculating in 2007 for a patient whom Dr Hind had not seen before 2007 as to his life expectancy in 1999 is not an obviously useful way of giving an opinion as to his life expectancy in 2007 (but, to be fair, it was the judge who was asking the questions), and because 11-13 years, less the intervening eight years, is a possible explanation for Dr Hind’s 3-5 years at 2007, but this was not the explanation that he gave when he struggled over his scrap of paper.[14]To my mind the critical part of Dr Hind’s opinion with reference to the Fletcher curves was that he postulated the extent to which Mr Rowe’s respiratory functioning had been damaged by the accident. He illustrated this by sketching a downward line on the graph to below the severe disability dotted line. Extending a curve parallel with the blue curve for the average non-smoker but starting at a much lower level at the age of 44 would produce a point at which the FEB1 value became less than 0.4, which was the level at which Dr Hind would expect a sufferer to die. He accepted however that there was no accurate way of knowing if his postulated extent of respiratory damage was correct because of interference by the tracheostomy. As Mr Horlock accepted, Dr Woods had disagreed that it was as poor as Dr Hind had postulated; thus the Fletcher curves themselves in this case proved very little. They illustrate a rather obvious general trend. The thesis depended, as I understand it, entirely on Dr Hind’s postulation, which other evidence did not accept.[15]The grounds of appeal are that the judge misunderstood Dr Hind’s evidence. On this basis a new trial is sought. The argument is expressed thus in Mr Horlock’s written skeleton:(1) The judge misunderstood the evidence of Dr Hind. Dr Hind produced some new material which related to the life expectancy of patients suffering from degenerative respiratory disease. Dr Hind sought to illuminate his conclusions on life expectancy by referring to such material. However, the central proposition in Dr Hind’s evidence was based upon the effect on the respondent on the process of aging. Dr Hind’s evidence was that the aging process, when considered in the case of a patient such as the respondent whose respiratory function was significantly compromised, would result in premature death. The effect of that aging process was illustrated by the Fletcher curve, which formed part of the so-called new material but which did not relate to patients suffering from degenerative respiratory disease. Dr Hind, in his evidence, sought to place the respondent in an appropriate position from which a curve could be drawn so as to represent the age at which the ageing process would result in death. When properly understood it can be seen that the learned judge misunderstood the evidence of Dr Hind and concluded that it was overpessimistic on an incorrect basis. The new material, insofar as it consisted of the Fletcher curves, did not relate to patients with degenerative disease, and the learned judge was wrong in his finding at paragraph 30 which caused him to regard Dr Hind’s evidence as overpessimistic.(2) The judge also erred in concluding that his confidence in Dr Hind’s evidence was undermined by his inability to explain how he had reached his figure by reference to the Fletcher curves. The appellant submits that the judge misunderstood the significance of the Fletcher curves and that the judge failed to understand the explanation given by Dr Hind as to the relevance of the ageing process and how the application of the Fletcher curves produced a reasoned estimate of the remaining life expectancy. Put simply, Dr Hind’s evidence was that the respondent’s disability placed him at a certain point on a graph from which a curve parallel to the appropriate Fletcher curve then had to be drawn and the point at which the curve crossed a horizontal measure of respiratory disability equated to the estimated end of life. The appellant submits that the evidence was straightforward and easily comprehensible and represented Dr Hind’s reasoning process. There was no, or no sufficient, basis upon which the judge could have concluded that his confidence in Dr Hind’s method, as opposed to his application, was undermined.(3) The judge failed to recognise or draw a distinction between the method of reasoning described by Dr Hind and its application to the respondent’s case. The judge rejected Dr Hind’s method without, it appears, understanding it and accordingly made no attempt to embark upon the simple task of conducting his own application of that method to the respondent’s case, a task that was, in the appellant’s submission, entirely straightforward.(4) It is also said that the judge’s choice of 15 years was unreasoned; it might just as well have been five, ten or 12 years. Mr Horlock took us systematically through each of the sentences of paragraph 30 of the judge’s judgment, which I have read, the paragraph in which he said that Dr Hind’s view is overpessimistic. The first two sentences were a misunderstanding because Dr Hind did not place emphasis on patients with degenerative respiratory disease, he only used the blue average non-smoker curve on the Fletcher curves to illustrate his opinion of where Mr Rowe stood in relation to it. He did not base his opinion on the nature of the claimant’s spinal injuries. There was I thought some force in these two points; Mr Horlock did not, however, succeed in persuading me that the judge was wrong to be troubled by the way in which Dr Hind reached his figure of 3-5 years.[16]Miss Gumbel submits in writing that the judge’s decision on life expectancy was a finding of fact which he was clearly entitled to make on the evidence. I agree. This may be illustrated by the fact that the Grounds of Appeal criticise the judge’s assessment of Dr Hind’s evidence but make no attempt to say that his treatment of the other three experts was wrong. Miss Gumbel says that Dr Hind’s evidence was unsatisfactory in a number of respects and that the judge was entitled to regard it as overpessimistic. The judge made no error of law nor erroneous exercise of discretion. She points out that the new material was produced only at the end of the second day of the trial with literature which did concern the prognosis of those who had degenerative lung disease, which Mr Rowe does not have. The Fletcher curves concerned the decline in lung condition of non-smokers and former cigarette smokers; the judge did not, she suggests, make the mistake of supposing that the curves related to those with degenerative lung disease. Dr Hind’s opinion had what is at best the anomaly that in his opinion Mr Rowe should have died well before the hearing. The appeal, she suggests, is misconceived because the judge made no error of fact or law. She tells us that Dr Hind’s opinion was obtained very late to replace another respiratory expert, Dr Bernstein, who had prepared two reports which were disclosed. Dr Hind was unable to make a comparison which took account of the improvement in Mr Rowe’s condition following the move to his own home because Dr Hind had not seen him before that took place. Dr Hind’s report was based on a single examination on 12 July 2007. He had not seen any of Mr Rowe’s chest X-rays or CT scans; he had not seen the records from Springfield Park Nursing Home, where Mr Rowe had been from 2003 to 2007. According to Miss Gumbel, Dr Hind referred to no relevant medical literature and the Fletcher curves did not feature in a textbook to which he did refer. He was unable to produce the scrap of paper on which he had worked out his 3-5 years. The Fletcher curves document had to be downloaded from the internet by the appellant’s junior counsel. Miss Gumbel says that the judge was entirely justified in the view that he took of Dr Hind’s opinion. She says that the judge did not base his view solely on the matter of the Fletcher curves and Dr Hind’s explanation of them. He also took account of the inappropriate parallel with a patient with degenerative lung disease, which Mr Rowe does not have, and of the view that Dr Hind placed too much emphasis on Mr Rowe’s respiratory condition alone. She submits that the judge fully understood Dr Hind’s evidence and did not find it persuasive: Dr Hind did not explain how he reached his 3-5 years; the Fletcher curves had not appeared in his report.[17]In my judgment this ground of appeal, upon examination, is unpersuasive. The judge made a finding of fact which in the positive sense was based upon, and justified by, his acceptance in the round of the evidence of three of the four experts. No attack as such is made on their evidence and opinions. In the round, the judge’s criticism of Dr Hind’s evidence was justifiably open to him. Dr Hind was unable to show how his scrap of paper calculation arrived at 3-5 years. These figures were not, and could not be, extrapolated from the Fletcher curves, at least without the assumption of a premise which one or more of the other experts did not accept, and which Dr Hind himself accepted could not in Mr Rowe’s case be quantified because of the tracheostomy. Dr Hind appears in part to have undertaken an intrinsically inappropriate thought process of postulating Mr Rowe’s life expectation in 1999 and then deducting the intervening time to reach a life expectancy in 2007; what was needed was an assessment of his life expectancy in 2007. Further his approach was shown to have been historically suspect because Mr Rowe had by the time of the hearing already outlived by five years and now six years the life expectancy which Dr Hind’s opinion would have given him in 2000. Dr Hind had been instructed late in the day, apparently to replace an expert whose opinion was much closer to that of the claimant’s experts. He had not seen him at a time to enable him to judge the improvement that had resulted from his moving to his own home. If there are, as I think perhaps there are, rough edges to the judge’s assessment of Dr Hind’s evidence taken alone I do not consider that this undermines his conclusion as to Mr Rowe’s life expectancy because, firstly, his conclusion was firmly grounded in the opinion of the other experts, of whose opinion taken alone no criticism was made and, secondly, there were, as I have indicated, significant problems with Dr Hind’s evidence.[18]For these reasons I would dismiss the first appeal.[19]The second appeal says that the judge should have ordered periodical payments, not a lump sum. Here the point is a short one. The judge’s short judgment of 11 December 2007 may be found at [2007] EWHC 2799. The judge correctly directed himself as to Section 2(1) of the Damages Act 2003 and Rule 41.7 of the Civil Procedure Rules. The latter provides that one of the factors to which the court is to have regard is the scale of the annual payments, taking into account any deduction for contributory negligence. Other factors are the respective preferences of the claimant and the defendant, their reasons and, in the case of the claimant, any financial advice received.[20]Mr Rowe’s main reason for preferring a lump sum which was supported as to calculation by financial advice was that since he was to receive only 80% of his damages a periodical payments order reduced on that account would not fully cover his annual continuing care and other needs. The judge gave as the defendant’s main reason for wanting a periodical payments order uncertainty about Mr Rowe’s life expectancy. An independent financial advisor, Miss Ellis, supported the view that this might result in over- or undercompensation, but the life expectancy question was one which the judge had already determined and should not of itself necessarily suggest periodical payments.[21]The judge considered the scale of the annual payments to be the first consideration and he said in paragraph 9 of his short judgment:
“It seems to me that if this were a case where the claimant were to receive 100% of his damages the decision might be more finely balanced but he will not. If there is an order for periodical payments he will never be able to live his life as he wishes to live it and with the significant improvements noted by the experts, whereas if a conventional lump sum is ordered he will be able to do so for a substantial part of his life.”
[22]This seems to me to be a solid reason justifying the judge’s discretionary decision, which did not proceed on any error of law. What is said in support of this appeal is that the judge ignored, or failed to have due regard to, financial evidence about equity release schemes. There are disadvantages in such schemes, which the appellant’s skeleton argument recognises: see paragraph 6(c) of the judgment -- but Mr Horlock says that none of these apply to Mr Rowe. It is said that if the judge had properly considered this, he would have ordered periodical payments. The point is made in a more cautious and measured way by Mr Horlock in his oral submissions, that the judge did not have sufficient regard to the possibility of an equity release scheme and that, in a finely balanced case, if he had, the decision may have gone the other way.[23]Miss Gumbel submits that the claimant’s preference, guided by the Court of Protection is, she would say, the precedent consideration. Certainly it is important. She says, secondly, that with an entirely solvent insured defendant, the question is mainly one for the claimant. She then says that an equity release scheme is fraught with uncertainty. The Ellis report outlines the concept of an equity release scheme but no more. It gives no details of how the capital would be released over 15 years.[24]In my judgment, the comparative figures here are illuminating. The base figures are that the claimant’s total annual need is £363,750. He is entitled to 80% of this, so that the initial annual periodical payment would be £291,000 if there were no model with a capital element in it. Of the £363,750, the component representing his care needs is £295,000, so a periodical payments order would not even cover the care costs, let alone his other living costs. Mathematically, £291,000 would be about £72,000 short of his full annual need. The 2007 purchase price of the house was £285,000. No figures were produced for the immediate capital value of the house upon a sale, with possession deferred for 15 years, but it would not, I suppose, and Mr Horlock broadly agreed, cover more than perhaps three years of an annual shortfall of £72,000.[25]Miss Ellis’s appendix 3 calculates that a lump sum payment would cover the care costs, initially £295,000 a year for about 14 years, but not the other living costs. Her appendices 7 and 8 calculate that each of two variants of a part-capital and part-periodical payments model would cover the care costs but, again, not the other expenses for about eleven-and-a-half and twelve-and-a-half years respectively, so with a lump sum payment the claimant is somewhat better off with periodical payments but without the benefit of equity release. What is plain is that, on all these figures, release of the equity in a house worth £285,000 in 2007 would only supplement annual shortfalls in Mr Rowe’s total needs for a small handful of years.[26]There is no calculation which I have seen showing how long a lump-sum-only payment would cover the full £363,750 annual costs, but a straight division of the available lump sum by the annual need produces a period of rather over ten years if you ignore both interest on the remaining capital and inflation in the costs. No doubt the interest after tax would be less than the inflation so the result would be something under ten years. No-one has considered ‘lump sum, plus equity release at some stage.’ The brutal fact is that by definition 80% of the total need will not cover the total need, and the shortfall is in the order of £72,000 a year. It is contended on behalf of Mr Rowe that if he receives only £291,000 a year he will have to leave his own home straight away because he will not afford the costs of staying there. Mr Horlock did not gainsay this. Supplementing the £291,000 by equity release could cover the shortfall but only for about three years. In these circumstances it is, in my view, entirely rational and understandable for those advising Mr Rowe and managing his affairs to opt for a lump sum payment which has the prospect of keeping him in his home for up to ten years and for them to judge that this is preferable to reduced periodical payments which will not keep him in his own home for more than about three years. There are no strong countervailing reasons suggesting that the judge should have reached a different discretionary conclusion.[27]In my judgment, for these reasons the judge’s conclusion is not shown to have been erroneous and I would dismiss this appeal too.[28]I agree.

Lord Phillips:

[29]I also agree.

Order

Appeals refused

Cited in 1 later judgment