Ali v Caton & Anor [2014] EWCA Civ 1313

Case No B3/2013/2586

[2014] EWCA Civ 1313

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT, QUEENS BENCH DIVISION

Mr Justice Stuart-Smith

HQ09X00376

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday 15 th October 2014

Before

LORD JUSTICE TOMLINSON

LORD JUSTICE McCOMBE

LORD JUSTICE BEATSON

JUBAIR ALI (A Protected Party, by JABID ALI his Father and Litigation Friend)

Claimant/

Respondent and Cross-Appellant

Between

DAVID GRAHAM CATON

MOTOR INSURERS’ BUREAU

(Transcript of the Handed Down Judgment of

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165 Fleet Street, London EC4A 2DY

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Defendants/Second Defendant Appellant and Respondent to Cross-Appeal

John Leighton-Williams QC and Andrew Wille (instructed by Neil Hudgell Solicitors) for Claimant/Respondent and Cross-Appellant

Stephen Worthington QC and William Audland (instructed by BLM Solicitors) for Second Defendant/Appellant and Respondent to Cross- Appeal

for The First Defendant did not appear and was not represented

Hearing Hearing dates: 22-23 July 2013

Judgment

Lord Justice McCombe:

[1]We have had before us an appeal and cross-appeal from the order of Stuart-Smith J (“the judge”) of 5 July 2013 whereby the judge made orders for payment of damages to the Claimant for personal injuries arising out of a road traffic accident which occurred on 30 January 2006 and in which the Claimant (then aged 17) was seriously injured. The issue of liability for the Claimant’s injuries was agreed between the parties and was approved by the High Court as being 80% / 20% in the Claimant’s favour, allowing for contributory negligence. The issues of quantification of damages were tried before the judge, over 12 days, between 3 and 18 December 2012. The judge delivered his careful 130 page and 345 paragraph judgment on 5 July 2013. The judge awarded the Claimant a net sum, after allowing for contributory negligence, CRU and interim payments of £998,902. By order of 23 July 2013 he awarded the Claimant a further sum of £24,340 in respect of past care and case management to 15 December 2013 and periodical payments (adjustable under ASHE 6115) of £14,529 p.a. for 20 years rising thereafter to £18,036 p.a. for the rest of the Claimant’s life. We are told that if these periodical payments had been lump sum awards the global award, on a 100% liability basis, would have been a little over £2.3 million.

[2]As will be understood from the short title of these proceedings, the First Defendant, whose driving was in issue in the action, was uninsured and has played no part in the proceedings either here or below. Accordingly, in the course of this judgment, I will call the present Appellant, the Motor Insurers’ Bureau, “the Defendant”.

[3]The judge refused the Defendant permission to appeal. However, by orders dated 18 November 2013 and 9 April 2014, I granted permission to the Defendant to appeal and to the Claimant to cross-appeal.

[4]In his judgment (at [2]),

the judge described the central issue which he had had to try in these terms:

“The central issue to be determined by this judgment is the extent to which Jubair suffers and will continue to suffer lasting consequences attributable to the accident.”

[5]The judge identified four strands to the Defendant’s case in support of a conclusion that the Claimant’s deficits were less severe than might otherwise have appeared. These were: first, his records of study at college in the post-accident period between September 2007 and July 2009 showed a level of cognitive performance and motivation inconsistent with the case advanced on his behalf; secondly, the assessment by the neuropsychologists indicated that the Claimant had consistently returned results suggesting that he was deliberately exaggerating his difficulties; third, his performance on a day-to-day basis had become worse than it was when he attended a residential rehabilitation programme at the Queen Elizabeth Foundation for Disabled People at Banstead (“Banstead”); and fourthly, and most significantly for this appeal, there was the evidence (which emerged very shortly before trial) that on 9 February 2012, the Claimant had taken the UK Citizenship Test (“UKCT”) and had passed it. It was effectively common ground between the experts that for the Claimant to have passed this test, whether fairly or by cheating, was surprising and appeared to be inconsistent with the level of cognitive disability which he had displayed to them in various examinations over the years since the accident. The Defendant argued, and maintains on its appeal, that this feature of the case ought to have led to a finding that the Claimant had been malingering. In response, it was argued for the Claimant that it would have been simply impossible for him to have maintained this sort of pretence so consistently and for so long so as to “pull the wool” over the eyes of so many witnesses both lay and expert.

[6]It is the judge’s findings on the fourth strand of the Defendant’s case at trial (the ramifications of the apparent pass of the UKCT) that form the principal issue on this appeal and on the cross-appeal and from which most of the other consequences in the case follow. The judge’s conclusion on the evidence of the Claimant having passed this test appears in his judgment at [247-8]. He rejected the idea that the Claimant had outside assistance while taking the test (assuming, of course, that it was he who took it). He then examined the Claimant’s motivation for taking the test and how he passed it. On this final question,

the judge concluded:

“….I consider it probable that, spurred on by the fact that Sadek’s wife Sadek is one of the claimant’s brothers. had taken and passed the test, he learned answers by rote and then struck very lucky indeed in the questions that came up. I accept the evidence from his family that they considered he was wasting his time. They did not think he was up to it, any more than anyone else who has dealt with him outside the medico-legal context (or, for that matter, a number of those involved in the medico-legal context) would have thought he was up to it.”

[7]It will be necessary in the course of this judgment to refer to various parts of the judge’s judgment, but I shall not do so comprehensively. The judgment produces a very full summary of the evidence and of the arguments at the trial. It is readily accessible “on line”. Its neutral citation is

[2013] EWHC 1730 (QB)

and is available on the BAILLI website. From the judgment one can find a chronology of the relevant family history, the salient features of the pre- and post-accident periods and a comprehensive summary of the factual and expert evidence. Taking that as read, I propose to concentrate upon the issues on the appeal and on the cross-appeal and my own conclusions on them.

(B) The Appeal and Cross-Appeal

[8]The short main ground of appeal by the Defendant is that, having found that the Claimant had passed the UKCT without outside assistance, the judge failed properly to consider the consequences of the finding and placed weight on evidence no longer reliable so as to conclude that the Claimant continued to suffer from significant cognitive deficits, leading to an award of £147,500 for pain, suffering and loss of amenity (“PSLA”) and a finding of lack of mental capacity and no residual earning capacity. It is submitted that the only logical conclusion was that the Claimant had either been malingering or consciously exaggerating or, even if he had not been doing this, that he did not suffer from significant cognitive deficits. The appropriate award for PSLA should have been, therefore, £75,000 and the residual earning capacity should have been assessed at £7,054 (net) p.a.

[9]The Defendant also contends that the judge was wrong to find that the Claimant lacked mental capacity to manage his affairs and in finding that he would always have significant needs for care and support.

[10]On the cross-appeal it is argued for the Claimant that the finding that he had passed the UKCT unaided was against the weight of the evidence. Further, it is contended that the finding of rote learning and that the Claimant “struck very lucky indeed in the questions that came up” was also against the weight of the evidence. As a consequence, it is submitted that the judge should have awarded £175,000 for PSLA and should have allowed for additional future care needs 30-35 hours per week in the first year and 20 hours per week thereafter (as opposed to the 17.5 and 10 hours allowed for in the judgment).

[11]It seems logical to address the cross-appeal first. Was the judge’s finding that the Claimant sat and passed the UKCT, in the fashion found by the judge, against the weight of the evidence? The Main Issue – the UKCT

[12]It is necessary to examine what evidence there was about the Claimant taking this test and passing it.

[13]The Claimant himself did not give evidence nor did any other witness give evidence of his movements on the day in question. There was no evidence in any witness statement or live evidence as to the Claimant’s attendance at the test centre or as to what happened either in the course of the verification processes or in the test room itself on that day.

[14]There was a record in the support workers’ daily log for that day, over the printed name of one “Rupert Alexander” (who was not a witness) in these terms:

“Jubair stated that he planned to take a cab to an office building in Romford Rd E7 to sit the Life in the UK test. We arrived at the building; Jubair sat the test and stated he had passed. Jubair suggested lunch at a local café. During the lunch Jubair rang his OT and arranged to meet Paul-OT at the Westfield Shopping Centre. We caught the bus to Stratford meeting up with Paul. Paul handed over a new mobile phone which was for Jubair. Paul relayed to Jubair that he would be supported to do shopping training at Sainsburys. Paul outlined that Jubair was to find certain items in the shop that Paul had relayed to him. Paul outlined strategies to enable Jubair to remember the items required. Paul took the lead in this session. After the shopping training Jubair decided that he wanted to set up his new phone at the Apple store at Westfield. Jubair and I visited the Apple store; Jubair conversed with the staff and explained his requirements. We returned to Jubair’s home by bus afterwards.”

A further entry (under the heading “Mood/Fatigue”) for the same day was to this effect:

“During the day Jubair was positive and pleased that he had passed the Life in the UK test; the acquisition of his new phone and in particular the setting up of it and the shopping training experience at Sainsburys.”

There was no argument as to the evidential status of this document or of its contents, even absent a witness statement or Civil Evidence Act Notice in respect of it. No such argument has been advanced here either. It has been common ground that the document not only is authentic but provides some evidence of the truth of its contents. I proceed on that basis.

[15]The defence called as a witness Mr Terry Coldham, the manager at the centre at Stratford in east London where the test appeared to have been taken. He produced first, generic documents relating to the testing procedures, verification of candidates’ identities, invigilation, test conditions and pass requirements and so forth, and secondly, such records as there were of someone calling himself “Jubair Ali” booking, sitting and passing the test. Evidence of the test procedures also showed that an identity document (with photograph) had to be specified on booking the test and that that document had to be produced at the centre when the candidate attended. Other information was checked at that stage, such as address and date of birth. If doubts arose in the mind of an invigilator as to the identity of the person presenting himself, the second invigilator would be summoned and, if the doubts persisted, the person concerned would not be permitted to take the test. On the occasion in question, there was only one person who took the test, namely the person claiming to be the Claimant.

[16]When the potential significance of the apparent passing of the UKCT became apparent, the Claimant’s father made a further witness statement reporting that the Claimant had told him that he had passed the test by cheating, having been given an additional mobile telephone by a friend which he then “used…to help him to pass”. The father said that he had not been given precise information as to how this had been achieved, but he said he believed that there must have been some unknown friend of the Claimant who lay behind his apparent success. The father also gave evidence that his son had taken the test on two previous occasions but had failed each time. This evidence was challenged by the Defendant, but on further enquiries of the UK Border Agency the two previous unsuccessful attempts (both in May 2010) were confirmed. There was limited evidence from the Claimant’s brothers of the Claimant using online test papers and failing them, in particular at the time of the earlier attempts at the test, but there was no family evidence of substance indicating any study or revision at the time of the apparently successful test: [125-6] of the judgment.

[17]The Claimant’s case was opened before the judge on the basis that the Claimant had told his solicitors that he had passed the test with “improper assistance” (the nature of which was unidentified): see paragraph 7(iv) of the skeleton argument for the Claimant at the trial. As Mr Leighton-Williams QC for the Claimant pointed out, he was at pains before the judge at trial not to present any positive case that the Claimant’s reported explanations to his father and to his solicitors were accurate. By the time of closing submissions, Mr Leighton-Williams was more inclined to the submission that the evidence might point to someone having sat the test for the Claimant, rather than that there was some sort of positive cheating by the Claimant (by telephone or otherwise) while physically present in the examination room.

[18]The main submission on the cross-appeal is that all the extraneous evidence from lay people and medical experts indicated that the Claimant did not have the cognitive ability to pass the test at all. It is argued that this evidence should have weighed against the slender evidence Described by the judge as being “in short supply”: [247]. of the Claimant having seemingly passed the test without assistance.

[19]We were provided by Mr Leighton-Williams and Mr Wille, in the course of their submissions in reply, with a most helpful note of the factors to which they drew attention in urging this conclusion upon us. It is there argued again that the evidence that it was the Claimant who passed the test is indeed of a minimal character. There was evidence of the Claimant having arrived at the test centre and having come out and saying he had passed (i.e. the support worker’s note). There was no direct evidence of him even going into the exam. room, let alone sitting the test, completing it and passing it. It is argued that the judge placed excessive reliance on the evidence of Mr Coldham as to the effectiveness of the various precautions taken to prevent cheating and fraud, without taking into account his acceptance in oral evidence that these matters were a real problem and that one possible means of cheating was getting an insider to take the test and that another possibility was to have someone come in and take the test for you. It is submitted that the judge did not take sufficient account of the Claimant’s reported reaction to his father when asked about his apparent pass, namely “I didn’t” (emphasis to be added perhaps). It is also argued that the judge did not weigh in this balance the fact that the Claimant had expressed a wish to travel to Mexico with friends (against his father’s wishes) and needed British citizenship to ease visa requirements, suggesting that these “friends” may have been willing to assist him dishonestly in the process. His statement to his father, it is said, was likely to have been in an attempt to protect these people who had helped him. Again, the judge made no reference to the Claimant being unwilling to talk about the test success, even to his family or to the support worker (Mr Brown) with whom he got on well. It is submitted that the judge failed to take account of Mr Brown’s evidence that the Claimant had difficulties in everyday circumstances in following information on a computer.

[20]Mr Leighton-Williams criticises the judge’s finding of the mechanics of passing the test by “rote learning”. He argues that this fails to give proper account to the random nature of the questions posed and the absence of evidence of what the questions asked were in this specific instance and what answers were given by the supposed claimant on the day in question. It is said that the judge placed too much reliance upon the evidence of one expert, Dr Powell hypothesising on the possibility of the Claimant learning answers, whereas Dr Powell in the end rejected that possibility.

[21]It is submitted that the judge’s conclusion was inconsistent with his own comment (at [257]):

“Precisely how he managed to pass is unclear…”

. Thus, it is said for the Claimant that the judge’s finding of a genuine pass was more a speculation than a true finding of fact in the ordinarily understood sense.

[22]This line of argument for the Claimant was much criticised by Mr Worthington QC for the Defendant on the basis that it was not open to Mr Leighton-Williams as it contradicted the instructions given by the Claimant himself, through his father (recorded in the father’s statement) and to his solicitors (as recorded in the trial skeleton argument).

[23]For my part, I do not accept that criticism, I consider that it was open to counsel for the Claimant, at the time a protected party, to approach the Claimant’s own assertions with scepticism and to urge upon the judge that he should consider those assertions in the context of all the evidence, if necessary rejecting the Claimant’s own version of events. In my judgment, the right course was indeed to examine all the evidence on the question of the apparent passing of the test, including the Claimant’s reported remarks, and to draw a conclusion from it. The judge did that and the question is whether his conclusion was flawed for the reasons advanced.

[24]Having considered the rival contentions on this issue, I conclude that the judge was entitled to make the finding that he did on the evidence before him.

[25]There was concrete evidence that a person of the Claimant’s name had booked the test, nominating an acceptable form of photographic identification in the process. There was evidence Assuming the evidential status of the support worker’s note to be that to which I have already referred as being common ground. that the Claimant had arrived at the test centre with his support worker. That worker positively asserts that the Claimant “sat the test”, although obviously not going into greater detail. He then reports that the Claimant stated that he had passed. There was evidence from Mr Coldham of the rigorous checks carried out on a candidate’s identity against the document identified at the time of booking and checked on attendance. There was evidence as to the integrity of the two experienced invigilators on duty at this test, whose honesty could not be sensibly challenged. There is nothing to show how, having arrived at the centre, the Claimant enabled a third person to sit the test for him, without apparently being noticed by either staff or the support worker. In the alternative, it seems well-nigh impossible for cheating to have been done by a mobile ‘phone: first, because this would have added to the stress upon the Claimant himself and would have been beyond his capabilities, and secondly, it would almost inevitably have been detected.

[26]While the experts all expressed surprise at the result achieved in the light of their own experience, none said that the result was an impossibility.

[27]For these reasons, I would reject ground 1 of the cross-appeal. Consequences of the finding that the Claimant passed the UKCT

[28]As summarised above, both sides criticise the judge’s findings as to the true extent of the Claimant’s disabilities and, therefore, the findings as to the extent of the Claimant’s future needs. The Defendant also challenges the finding that the Claimant lacks mental capacity.

[29]Mr Worthington argues that the judge was wrong to regard the Claimant’s test result as having been achieved because he “struck lucky”. He not only passed the substantive test, but apparently succeeded on three out of four of the practice questions in a “mock” test immediately before the “live” one. He must, therefore, have studied for a long time, without assistance from family or from support workers. Mr Worthington argues that success in the test demonstrates ability to learn a large amount of material (demonstrating cognitive and executive function), an ability to concentrate without distraction, and an ability to process information. He argues that these were very significant pointers to the nature and extent of the Claimant’s abilities to which the judge did not attach significant weight.

[30]Mr Worthington argued that [255] in the judgment in which the judge made some “core findings” as to the extent of the Claimant’s disability was inconsistent with [257] in which the judge recorded the Defendant’s submissions consequent on the passing of the test, but said that “they can be overstated…”. It is worth setting out [255] in full. The judge said:

“One of the effects on Jubair has been that, although on a day to day basis he tends to lack motivation and initiation, he has tended from the outset to become fixed on certain objectives even though those objectives are not realistically obtainable. Over the years, these fixed objectives have included going to university, joining the police, going to Mexico and taking the citizenship test. A second effect has been patchy memory in everyday situations. This is not inconsistent with his having fixed "grand" objectives such as I have just described, and it accounts for his difficulties in memorising routes, road safety, and incidents such as the shower in Torquay. A third pervasive feature of his presentation has been unreliability. I find that this is a consequence of the injury he suffered in the accident and that it will continue, such that strategies will always need to be in place to cope with the resulting problems that will arise. A fourth feature has been memory impairment which, while not as severe as a number of the test results would indicate, is significant. This memory impairment is associated with poor concentration and distractability, slowed information processing, problems with word-finding and dysarthria. A fifth feature is his tendency to exaggerate his abilities and achievements, of which there are many examples. A sixth feature has been his lack of motivation and initiation on a day to day basis. This is largely a consequence of his brain injury, but it is exacerbated by three other factors that are established beyond argument by the evidence. The first factor is that, until relatively recently, he suffered significant and debilitating pain from his back injury: this is now reduced but by no means absent. The second factor is that, for all the efforts of the professionals who have worked on his rehabilitation, he has for the majority of the time been in the hands and home of his family who have been overprotective and have not pushed him as hard as they could to achieve greater levels of independence. Their motives have been of the best, but the effect has not assisted Jubair to develop and maintain consistent levels of motivation and initiation. This is likely to continue unless and until Jubair leaves home, which I consider later. The third exacerbating factor is that, since the accident, he has been conscious of what he has lost and has been limited to a restricted lifestyle by his (real) disabilities. This has contributed to a self-perpetuating cycle of boredom and frustration which, unsurprisingly, has contributed to a lack of motivation and performance. His resulting loss of confidence has contributed to a seventh feature which has manifested itself as an anxiety about how he is presenting himself, typified by Dr O'Brien's observation to Ms Makda that he wanted to be appropriate and be seen as a good person: this characteristic is reflected in a number of his responses in the medico-legal context, to which different experts have had different reactions. He is also prone to anxiety leading to reduced performance in unfamiliar circumstances. An eighth feature has been a failure to read social circumstances properly with mild disinhibition and some impulsivity, such as his misreading of how he should react when at Clusters. A ninth feature is that he suffers from debilitating levels of fatigue. In addition, he is left with slurred speech, which is variable but which means that he sometimes cannot be understood. He is psychiatrically vulnerable and prone to low mood. He has epilepsy and is incapable of driving. His life expectancy is slightly reduced. In addition, he has suffered the physical injuries and consequences outlined earlier in this judgment.”

[31]Mr Worthington argues that it is impossible, contrary to the judge’s view, to overstate the fact that the passing of the test demonstrates that the Claimant possessed the skills which he identified which are simply inconsistent with what the judge said in this important paragraph.

[32]Mr Worthington was able to point to the fact that, in examination by the neuropsychologists, the Claimant had consistently and repeatedly failed symptom validity tests (“SVTs”) which are designed to bring out whether a subject has been applying proper effort to psychological testing. Dr Powell, the Claimant’s expert in this field, said that he thought that the Claimant knew that he was exaggerating his disabilities. SVTs had not been carried out by treating clinicians (for example, at Banstead) who would be inclined to accept a patient’s presenting conditions as genuine. This is particularly important, Mr Worthington argues, in respect of the final results recorded by those concerned for the Claimant’s care and treatment at Banstead, where the Claimant had been in residential care for 9 months, upon which the judge placed significant reliance: see [250] and [266]. It is argued that Banstead took the Claimant at face value and failed to take into account properly the Claimant’s achievements at Newham College before his admission. Mr Andrew Savage, the Educational Co-Ordinator at Banstead had expressed surprise at the Claimant’s prior College achievements as some of the work set for the Claimant at Banstead had been at a lower standard than that and the Claimant had not reached it.

[33]Mr Worthington pointed to expert evidence (from Dr Powell and Dr Gill, the Defendant’s psychiatric expert) acknowledging that the level of the Claimant’s disability had to be judged against his motivation. It appeared that the Claimant’s motivation had declined over time and that the apparent inhibitions were not a product of cognitive disability but because of lack of desire to do that of which he was capable. However, when motive stirred him, as with the UKCT, he was capable of achieving more.

[34]Undoubtedly, all the witnesses were baffled by the contrast of two factors: first, the fact that the Claimant could have passed the test at all (whether genuinely or by cheating), having regard to the previous assessments that they had made of him, and secondly, their conviction that the Claimant would not have been able to maintain a feigned disability that would fool so many people for so long.

[35]In the course of argument counsel for both parties took us to a number of passages in the evidence where witnesses gave their reactions to these contrasting features. Several of these are collected together in footnotes 4 to 10 in the skeleton argument for the Claimant, pp.8-9 (1/7/64(h) and (i)). I will not quote them all, but the comments, there recorded, of Laura Slader (occupational therapist), Aron Brown (support worker), Dr. Powell (neuropsychologist) and Dr. Williams (neuro-rehabilitation) are illustrative:

“Slader: “The person who presented to me when I assessed him is somebody who is very disabled by his cognitive disabilities and yes, I am very surprised that he was able to get through that test. I have no idea how he would have done that.” (Tr 2 705 lines 22-25) “On hearing that he had passed the test, the first is of disbelief, because it is so inconsistent with everything through his treatment that he has been presenting and how he has been presenting.” (Tr 2 724 lines 17-20) “…the thought of him trying to bamboozle so many people and whether it be experts, whether it be treating professionals, support workers, his family, his friends, I just do not know how he would be able to keep that up consistently.” (Tr 2 725 lines 6-10) …… Brown: “It is totally inconsistent with the presentation that he is giving you week in, week out? A: Given the situation that you put, I suppose so, yes.” (Tr 1 362 lines 6-10) “I have appraised my opinion of him wondering whether he is capable of pulling the wool over your eyes as to his abilities and attempted to look back at situations where could he possibly have been feigning some helplessness. I do not honestly feel that he is capable of doing that.” (Tr 1 362 line 23 to 363 line 5) Dr Powell: “…I would not say I would never have anticipated he would pass the test. I would have probably said it would be extremely unlikely.” (Tr 3 1033 lines 10-12) Dr Williams: “I certainly cannot believe that the Jubair Ali that I have met on five or six occasions sat, raced through and passed this exam alone.” (Tr 4 1238 lines 5-7)”

[36]Mr Worthington relied in particular on the evidence of Dr Williams who, he said, had effectively accepted that her own assessments of the Claimant pre-trial could be “torn up” My note of Mr Worthington’s submission is:

“She was saying, “You can tear up my reports”.” in the light of the UKCT pass. The passages in her oral evidence upon which he particularly relied were in the transcript bundles (“TB”), TB4/1237, 1239-1246 and 1264-5). Two of these illustrate the point. First, recorded at TB4/1244, there is this: “If I were presented with the evidence that a person had taken this test and passed with this degree of success and were I to be given the details of the test I would certainly not conclude that the person had significant deficits. A person who took and passed this test did not have significant cognitive disabilities.”

Secondly, at TB4/1264-5, one finds:

“If I am asked to postulate or to accept that he has passed the [UKCT], much of my evidence and all of my examinations of him and much of my input into the joint reports appears to be false and unhelpful to the court. So I find it very difficult to know how to respond to that…I just said that it throws my evidence into a very different light and therefore the court must take that into account.” “If I am asked to postulate or to accept that he has passed the [UKCT], much of my evidence and all of my examinations of him and much of my input into the joint reports appears to be false and unhelpful to the court. So I find it very difficult to know how to respond to that…I just said that it throws my evidence into a very different light and therefore the court must take that into account.”

[37]The judge found Dr Williams’ evidence overall “conspicuously thoughtful and helpful” and summarised its overall effect at [209]. Given the stress laid upon this evidence, both by the judge and by Mr Worthington in his submissions to us, it is perhaps worth quoting in full the judge’s summary of it:

“209. Dr Williams gave evidence which I found conspicuously thoughtful and helpful. It addressed five main areas: i) Dr Williams was deeply perplexed by the evidence about the citizenship test. She could not believe that the Jubair who she had met on five or six occasions had sat, raced through and passed the exam. She herself found the questions quite challenging and, under the stressed conditions of the examination room she could not think that the Jubair she knew could have passed the test. Equally if he had planned it with no social worker support and without his fathers knowledge her view was any person that makes secret plans which are quite complex is showing motivation and planning. Once again she felt constrained to say that she found it very difficult to accept that Jubair had the necessary skills. That said, if she were presented with the evidence that a person had taken the test and passed with that degree of success she would have to conclude that the person did not have a significant cognitive deficit though he might have some relatively mild deficit. Even when giving that answer she was not prepared to accept that the logical conclusion from her state of disbelief was that Jubair must have been grossly exaggerating: she proposed that he may have been lying about what he did. On any view she found the episode confusing; ii) When asked about whether Jubair was a malingerer she observed first that the word itself closes the mind to other possibilities. She accepted that he may exaggerate in some areas but underestimate in others; iii) On the issue of mental capacity it remained her view that he lacked mental capacity. Returning to the citizenship test, she said that on her examinations and reading the reports of others she would maintain that he does not have capacity; but if he passed then much of her input would appear to be false and she would not know how to respond; iv) On his capacity for work, her view was that with enough support he should be capable of some work but it may not be appropriate to his perceived hopes and fears and status: thus he could take a useful part in a supermarket if he wanted to; v) She maintained her view that ten hours a week of support to be used flexibly was appropriate. She did not accept that her current understanding of the citizenship test meant that considerably less than 10 hours was appropriate on the balance of probabilities, explaining that one of the difficulties is that there appear to have been different cognitive features in Jubair's make up. One of the features is disorientation in unfamiliar places, which is not necessarily affected by the ability to pass the test. When taxed with the evidence that Jubair was capable of learning some routes her response was that life is not always familiar routes and that there is a need to negotiate new environments which was not covered by the passing of the citizenship test.”

This summary is useful in demonstrating that, even allowing for her puzzlement about the UKCT pass, the witness was not writing off entirely her findings as to mental capacity, capacity for work or support needs.

[38]Mr Worthington’s core submission was that the judge simply failed to “grasp the nettle” posed by the Claimant’s passing of the UKCT and to take that factor into account in assessing his cognitive deficit as caused by the accident.

[39]For my part, while acknowledging the skill with which this submission was advanced, I do not accept it. It seems to me that the judge was acutely aware of the need to “factor in” the success in the test into the rest of the evidence. Two passages in the judgment are important in this respect. At [249] the judge said, “249. The Court must confront the inconsistency between Jubair’s test results over the years since the accident, on the one hand, and the passing of the citizenship test on the other. Equally, it must confront the evidence, which on this point was unanimous, that for Jubair to have passed the citizenship test implies a level of cognitive ability which is inconsistent with his presentation over the years that the various witnesses had known him.” He then went on to make the finding that he did as to the significance of the Banstead conclusions. At [250], he said this:

“250. On this evidence a finding that his cognitive deficit attributable to the accident is not accurately reflected in the various test results that have been recorded over the years is inevitable. Equally, since I have found that Jubair passed the citizenship test, the evidence compels the conclusion that his retained cognitive function should have allowed him to function at a better level than he has on a day to day basis over years. However, it does not follow that Jubair has knowingly been feigning an exaggerated level of disability over the period since the accident. Having reviewed the history in detail for the purposes of writing this judgment I accept the evidence of those witnesses who rejected the possibility that Jubair could have deceived all those responsible for his care since the time of the accident. Without exception, I found those witnesses to be thoughtful, careful and impressive. I accept that treating clinicians and support workers do not set out with the same level of forensic scepticism as may be appropriate in a medico-legal context, but I also accept the evidence that clinicians will be alert to inconsistencies in behaviour that may indicate a lack of genuine presentation. I am particularly influenced by the evidence from Jubair's time at Banstead, both documentary and as provided by the Banstead witnesses: I consider it supremely unlikely that Jubair could have fooled all of those who gave him close and detailed care and attention during the 9½ months that he was resident there for five days a week. I therefore find as a fact that the Banstead reports and, in particular, the Banstead final report and Support Needs Guide provide a reliable picture of Jubair's genuine levels of functional ability to perform on a day to day level and of his support needs going forward as at that time.”

[40]The judge concluded in the next paragraph that, on a day to day level, the Claimant had been performing less than optimally, despite having engaged constructively with the rehabilitation provided, but that the root cause for the underperformance was the accident and not fraud. At [252], the judge continued:

“252. In my judgment, the explanations for his presentation since the accident are multi-factorial, complex and subtle. Jubair suffered what was without doubt a very severe brain injury. The medical profession has a very imperfect understanding of the effect of such traumatic brain injuries. That is shown by its inability to predict the outcome after such injuries and the fact that outcomes may vary widely. It is well known that functional recovery in such cases is not determined solely by the nature and extent of the physical injury to the brain. Dr Foster gave evidence, which I accept, that patients may adopt a sick role for a number of different reasons and that, amongst other consequences, adoption of a sick role may result in overdependence on others. While the outcomes from such injuries may vary, the majority fail to flourish and some lasting cognitive deficit is to be expected. On all of the evidence I have no hesitation in finding that Jubair has suffered some lasting cognitive deficit as a result of the accident and that he is one of the majority who fail to flourish. The scope and extent of the deficit cannot be quantified with precision. It is not as severe as a number of the test results have indicated; if it had been, he would not have been able to pass the citizenship test. But the effects have been significant and profoundly damaging in their impact on Jubair's everyday life, being imposed as they were on a person who was originally of low average IQ.”

[41]In my judgment, the judge was entitled, and indeed bound, to take into account all the features of the evidence in the context of his finding that the Claimant had somehow passed the UKCT. The Defendant would have us focus upon the UKCT almost to the exclusion of anything else. I do not think that is the correct approach. There can be no doubt, as the judge found, that the Claimant had suffered a very severe brain injury. He had failed SVTs and had passed the test. However, all were agreed that he was not a person who could have kept up a mere pretence of incapacity, capable of fooling so many people, for so long.

[42]The judge rejected the all-out attack mounted by the Defendant upon the credibility of the Claimant’s father. He accepted the overall impact of the Claimant’s brother, Sadek, and some of the evidence of the other brother Salek, which all went to the Claimant’s day-to-day performance capabilities in his normal environment. The judge’s conclusions as to the impact upon him of the factual witnesses were these:

“224. The other witnesses of fact called by the Claimant provided a powerful body of evidence in support of the claim that Jubair has been and remains significantly disabled by the consequences of the accident. Those whose evidence addressed the pre-accident period gave evidence which was measured and which I accept. Those who have known Jubair since the accident were unanimous in their belief that Jubair was not a malingerer – even when taxed with the evidence of his passing the citizenship test. I have reviewed their evidence about the possibility of malingering at [128-134]. They were, without exception, dedicated and thoughtful witnesses whose evidence demands respect and carries considerable weight. It is regrettable that the evidence from his period at Newham College was necessarily provided by written statements and documentary evidence, but the general thrust of the evidence was consistent: Jubair struggled while at college and presented as a complex individual who was doing his best under the influence of multiple and complex disadvantages. That evidence is consistent with and supported by the evidence from Banstead, both live and documentary. Without exception the witnesses who knew Jubair at Banstead were impressive under challenge and unshaken in their evidence that, despite engaging well with the rehabilitation process, Jubair was subject to real and complex disabilities.”

[43]Included in this evidence was that of Mr Brown, the support worker to whom I have previously referred and with whom the Claimant has got on well. He had been a regular part of the Claimant’s life from September 2011 (post-Banstead and after the Claimant’s holiday in Bangladesh with his family in the summer of that year). He had accompanied the Claimant on short journeys near his home in east London and further afield to the city centre. He had also been with the Claimant on a five day holiday to Torquay in May 2012. In his three statements and in his oral evidence, Mr Brown gave straightforward examples of the Claimant’s difficulties in finding his way to unfamiliar but simple destinations, in handling journeys on the London Underground, in packing clothes at the end of the holiday and finding a few simple items on supermarket shelves. Further, he had been trying to teach the Claimant to play simple tunes on the guitar – how simple is demonstrated by two brief passages in his oral evidence at TB1/290, lines 3-8 and line 22 to 291, line 4:

“He has learned and retained one simple song. He is unable to tune the guitar and to remember chords which are more complex. The melody that he remembers is a single line melody. He has not recalled the rhythm of it. He plays it irregularly although remembers the gist of the melody, which is two bars on a single string. ….. He also plays at Headway, they run a musicians’ club and he learnt two chords whilst there which we have continued to use to consolidate what he knows, and he cannot recall them without prompting but he is able to technically arrange his fingers to play the chords; although every time we revisit a song using those chords he needs about half an hour to relearn the movements between the two chords.”

[44]There was also evidence from Ms Karen Jeffreys, the Claimant’s case manager, as to the Claimant’s presentation as a matter of first impression to a non-medical person.

The judge posed this question to her (TB1/86):

“Can I just ask you something right at the outset because I do not have a very clear picture? If I, as a non-medical person, were to meet him how soon would I think to myself there is something wrong with this person, he has got a brain injury or something like that?”

Ms Jeffreys’ answer was:

“Visually maybe not so much. He has a scar on his head, but when I first met him I actually met Jubair at a train station with support so I did not know who he was. I had a clue. So, visually, not so much. Quickly within him talking to you, you would know. Because of his communication skills, how he interprets questions, how he presents himself you would know quite quickly.”

[45]I give these examples simply to illustrate the sort of material the judge had in mind in assessing the factual witnesses and putting their evidence into the equation in making his findings as to the cognitive deficits suffered by the Claimant as a result of this accident, resulting in the important conclusion in the last two sentences of [252] quoted above.

[46]Mr Leighton-Williams submits that it was clear that the judge had taken into account all the materials and had trimmed the award of damages to a level that was not large in the context of a case of this type See further below as to the impact on the heads of damage claimed and the judge’s award. . The judge had heard from 24 witnesses and had studied a vast amount of documentary material. He had, says Mr Leighton-Williams, a far greater opportunity for insight into this Claimant’s true problems than many judges have in comparable cases. The witnesses, except for Dr Walton (the Defendant’s neuropsychologist), had rejected the suggestion of malingering in its common sense of that term, although they accepted there had been exaggeration by the Claimant. The judge accepted, it was argued, that the Claimant had adopted a “sick role”, “which was not initially motivated by a desire for financial compensation but by a deep seated realisation that he was not going to be able to function as a normal young man. Once he had slipped into the role, it became intractable and pervasive. It provides much of the explanation for his sometimes bizarre overacting and underperformance in the medico-legal context” This “sick role”, submitted Mr Leighton-Williams, was just as much caused by the accident as any other more concrete symptom.

[47]I agree with Mr Leighton-Williams that once the factor of the UKCT pass is put into context with all the other evidence, and in its proper place, then the principal submission on the Defendant’s appeal falls away. In my judgment, the Defendant’s argument over-emphasises the impact of the factor of this test success in the context of the evidence as a whole. It focuses upon the puzzlement of the experts as to their earlier assessments of the Claimant’s state, without due regard to the important reality of how the Claimant functions day-to-day and his clear inability to sustain some invented, imagined or exaggerated cognitive defect. As the judge said at [257] the Defendant’s submissions can be “overstated”.

[48]Mr Leighton-Williams also drew our attention to the judge’s concluding paragraph [320], buried as it was between his detailed examination of the individual heads of damage and the lengthy appendices to the judgment, where the judge characterises his award as “substantial” but “far from being excessive” and expresses his residual concern that the award might not provide for the care required in the future.

[49]For these reasons, I reject the thrust of the Defendant’s first ground of appeal and must turn to the appeal against the judge’s finding that the Claimant lacks mental capacity and the appeal and cross-appeal against the assessment of damages for PSLA and for future care: appeal grounds 1 e. and j, 2 and 3, and cross-appeal ground 4.

[50]I turn to ground 2 of the appeal: mental capacity. Mental Capacity

[51]On this point, it is argued for the Defendant that the judge did not properly apply the provisions of the Mental Capacity Act 2005; that he failed to cross-check his conclusions with the finding that the Claimant had passed the UKCT; and that the judge could not properly find a lack of capacity without impeaching the material expert evidence.

[52]For our purposes, the relevant provisions of the 2005 Act are sections 1(1) to (4), section 2(1) to (3) and section 3. These provide as follows:

“1 The principles (1) The following principles apply for the purposes of this Act. (2) A person must be assumed to have capacity unless it is established that he lacks capacity. (3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. …… 2 People who lack capacity (1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. (2) It does not matter whether the impairment or disturbance is permanent or temporary. (3) A lack of capacity cannot be established merely by reference to— (a) a person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. …… 3 Inability to make decisions (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable— (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means). (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of— (a) deciding one way or another, or (b) failing to make the decision. ” (a) a person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means). (a) deciding one way or another, or (b) failing to make the decision. ”

[53]We have been referred to one decided case: Masterman-Lister v Brutton & Co.

[2003] 1 WLR 1511

, per Chadwick LJ at 1540 paragraph 78 where he said:

“78. Wright J held that he should follow that approach in the present case. He rejected the submission, advanced on behalf of the claimant, that a finding of incapacity was required "if the effect of the injury to his brain renders [the plaintiff] vulnerable to exploitation or at the risk of the making of rash or irresponsible decisions". I think that he was right to do so. The courts have ample powers to protect those who are vulnerable to exploitation from being exploited; it is unnecessary to deny them the opportunity to take their own decisions if they are not being exploited. It is not the task of the courts to prevent those who have the mental capacity to make rational decisions from making decisions which others may regard as rash or irresponsible.”

[54]We have also considered Re M

[2014] 3 WLR 409

, drawn to our attention by Tomlinson LJ in the course of argument.

[55]The first case was decided before the 2003 Act was in force and the second concerned capacity to have sexual relations. Obviously, the question whether a person has mental capacity depends upon the answer to the question, “capacity to do what?”. It is, as Mr Leighton-Williams submits, fact specific. Here we are concerned with the Claimant’s capacity to manage his property and financial affairs. The touchstone, in my view, may often be found in what Hedley J considered to be the intention behind the Act in NHS Trust v P

[2013] EWHC 50 (Fam)

at paragraph 10 (cited in Re M at paragraph 81), where Hedley J said:

“the intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do.”

[56]The judge summarised the evidence on capacity at [287] to [295]. He had said at [286] that the issue was finely balanced. It is clear that expert opinion shifted back and forth on the question during the course of the proceedings.

The judge’s conclusion on capacity is to be found at [296] and [297] as follows:

“296. While it is correct that other experts tended to defer to the neuropsychologists, I do not accept that the other experts were unable to provide assistance on this issue. This is particularly true in circumstances where Dr Walton felt unable to express a view, which in my judgment was a reflection of his ambivalent attitude to the role of clinical observation and judgment in forming an overall assessment of the case. For my part, I have found the clinical observations and the assessments of the other experienced experts of assistance in reaching a conclusion on all of the evidence. Direct support for a conclusion that Jubair does not have capacity to manage his property and affairs comes from the evidence that I have just summarised. Dr Wade's observation that he could persuade Jubair to part with a substantial amount of money (which I am confident is correct) implies that Jubair would not be able to use or weigh information properly, as he would be unable to foresee the consequences of his decision. Dr Foster's concerns, expressed in October 2011, about Jubair's insight and judgment were well founded and are supported by Dr Bradley and Dr Gill's agreement in their earlier joint statement that he would have difficulty "using or weighing" information. Dr Bradley's evidence that Jubair lacks judgment has ample support in the history of this case, as does Dr Gill's expression of opinion in his October 2011 report. And, in the light of the findings I have made above about Jubair's condition, the views expressed by Dr Powell and Dr Williams in advance of trial to the effect that Jubair lacked capacity were, soundly based. This conclusion is not prevented by Dr Williams' concerns when giving evidence: her inability to respond during cross-examination was the result of her inability to resolve the conflict between his historical presentation and his passing of the citizenship test. The findings of this judgment have resolved the conflict as set out above. I am confident that if she had been asked for her views on capacity on the assumption that the Banstead assessments were reliable, she would have maintained her opinion that Jubair lacked capacity and, in my judgment, she would have been right to do so. 297. The conclusion that he does not have capacity to manage his property and affairs is also supported by the Banstead assessment that he is impulsive and very suggestible; and that, while his mental arithmetic was adequate for small numbers he became confused with larger numbers; and by the recommendation that he required support with managing all personal finances including large amounts of personal money, complex finances, bills and benefits.”

[58]It is submitted for the Defendant that there was a trap in simply asking whether a claimant would be able to handle a large sum of money obtained by way of damages, without examining that capacity in the light of the availability of support and advice. Capacity is still to be assumed until all practical steps to assist in decision making have been taken without success: section 1(3) of the Act. Such a claimant is, therefore, the same as a lottery winner who needs support and advice in taking financial decisions about how to handle his winnings. Mr Worthington submits that the judge equated an inability to manage large sums of money in this sense as the equivalent of lack of capacity.

[59]Mr Worthington stresses that all the experts deferred to the neuropsychologists on this question and argues that the judge had been wrong to place reliance on other evidence, in particular that of the psychiatrists. Before moving on, I do not accept this submission. The question of mental capacity is, in the end, a matter for the court. One hears oneself directing a jury in a criminal case and telling them that expert evidence is only one aspect of a case and must be considered in the light of all the evidence. In my judgment, the same is true here. The expert evidence, in particular that of the neuropsychologists in this case, was capable of providing a psychologist’s view of the question. It was an important facet in the equation, but the judge had to weigh that together with the evidence from other quarters as to how the Claimant presented and how in practice he functioned in day-to-day life. The opinion formed in the consulting room does not dictate what happens on the street or in the home.

[60]Mr Worthington points us to the division of opinion as to capacity on the part of the neuropsychologists in their joint report on the subject dated 23/10/12 (4/136/1840-1). As the judge had discounted the opinion of the defence expert in general as lacking objectivity, Mr Worthington concentrates on Dr Powell’s oral evidence, in the light of the UKCT test, where he expressed significant doubt as to capacity: TB3/994-5. In the circumstances, it is submitted that the presumption of capacity in the Act could not be overcome as the judge found it was.

[61]However, the “bottom line” of Dr Powell’s evidence was that there was significant doubt as to capacity. In my judgment, in the light of such doubt, it was especially important to have regard to the entirety of the evidence rather than to be “left up in the air” by the doubt of one expert.

[62]On the issue of capacity, Dr Williams (upon whom, as already noted, the judge placed considerable reliance) said in her part of the relevant final joint statement (10 October 2012) that she did not consider that the Claimant could manage his own finances independently: 4/135/1836. In oral evidence, Dr Williams was asked to consider the capacity question in the light of Dr Powell’s evidence on the previous day which it appears she had heard. She said this:

“No, I do not think I do, thank you. I mean, the confusing factor is the citizenship test, of which, as I say, one hears of at arm’s length and that is what I find so difficult to reconcile with my understanding of the situation. I do not think that – I think I have to continue to maintain that on my examination of this young man’s examinations and my reading of the reports of others, those treating therapists, I have to maintain that I do not think he has capacity. If I am asked to postulate or to accept that he passed the citizenship test, much of my evidence and all of my examinations of him and much of my input into the joint reports appears to be false and unhelpful to the court. So I find it very, very difficult to know how to respond to that.”

[63]I have already referred above to the final passage of this evidence in a different context. However, it seems that Dr Williams was still maintaining her view in oral evidence that the Claimant lacked capacity, while acknowledging that her input in to the earlier joint reports may by then have appeared to be false and unhelpful.

[64]Mr Worthington argues that the judge did not treat this evidence fairly at [296] when expressing the view that if the doctor had been asked for her view on capacity in the light of the Banstead assessments she would have still considered that the Claimant lacked capacity. It is said, in part correctly But see below, paragraphs 65 and 66. , that this was not put to Dr Williams, and secondly, that, if asked, it would have been likely she would have said she could not reply in the light of the UKCT result.

[65]Overall, says Mr Worthington, there was insufficient evidence before the judge to rebut the statutory presumption of capacity.

[66]At one stage, in the light of the neuropsychological reports from the SVTs, Dr Williams had taken the view that the Claimant had to be assumed to have capacity, but her view fluctuated again, as recorded in the following passage of cross-examination by Mr Audland at the trial (just before the passage quoted immediately above), by reference to a sentence in the report recording her changed view on capacity:

“Q. Now, the key experts in this area are the neuropsychologists, are they not? A With regard to this sentence? Q With regard to establishing the level of cognitive function and mental capacity? A Well, of course they are the experts in providing the test materials and interpreting the results. I would like just to say that I think that other clinicians of various disciplines can also have a view on capacity and neuropsychologists are not always asked for their opinion when capacity is being looked at. Q. But in this case, you changed your opinion to conclude that he must be assumed to have capacity, because of the results that the neuropsychologists had for the tests that they had performed and the results that they had obtained had you not? A. Yes, that was certainly what we were discussing with regard to this joint report. Q. That was because those results indicated a failure of effort or validity, was it not? A. Yes, in part, yes absolutely, although they also show cognitive damage and we know that the interpretation of all these tests is difficult. Q. Well, whatever cognitive damage those tests showed, that was not sufficient for you to be persuaded that he lacked capacity, was it? A. No, at that time, which was two years ago. Q. Yes. A. That is right. Q. But nothing has changed in the neuropsychology. He has repeatedly failed symptom validity testing, meaning that the test results are not an accurate indicator of his cognitive function. So, if at this stage you felt he did not lack capacity, why have you now changed your view again? A. Well, I have seen him at least twice more in the intervening period and I have had an opportunity to look at the reports from, for example, Banstead, for example, the therapists working with him. It is my understanding that one has a duty to the court to report as appears to be the case at the time, based on the information to hand. It is quite difficult to reconstruct one’s thought processes with hindsight, as it were, and I can only say that at the time both Dr. Foster and I were very concerned about these neuropsychological results and we were persuaded jointly to feel that we had to allow of capacity since it must be assumed to be present unless there are reasons to doubt it. Subsequently, there have been a number of reports from people who’s (sic) opinions I respect which have convinced me that it is not appropriate to regard this young man as having capacity and that is what has happened in the last two years.”

A With regard to this sentence?

Q With regard to establishing the level of cognitive function and mental capacity?

[67]Interestingly, in that passage Dr Williams did refer to the Banstead reports and recognised her duty to take into account “the information to hand”. She said that there had been a number of reports from people whose opinions she respected. In my judgment, that was a correct approach for that expert and was a correct approach for the judge. It would not have been right to be “blinkered” by the reports from one discipline alone or to ignore observations of those dealing with the Claimant day by day.

[68]Equally, this Claimant was not like Mr Worthington’s hypothetical lottery winner. The difference is that the lottery winner has basic understanding to recognise when advice and assistance might be desirable; he will usually also have the basic financial means of providing for himself already, without recourse to the lottery winnings. If he decides to behave irrationally in disposing of money that is one thing; it is, in my view, another to regard with such equanimity the position of this Claimant when in receipt of an award of damages, designed to provide for him throughout life.

[69]For my part, I think that the judge was entitled to conclude that the Claimant lacked capacity (notwithstanding the statutory presumption), having regard to the sum total of the evidence, including the factual evidence already referred to, and I do not think that his finding should be disturbed. I would, therefore reject ground 2 of the appeal. Care and Case Management

[70]Again, under this heading, Mr Worthington submits that the judge failed adequately to take into account the Claimant’s passing the UKCT. He argues that the judge should have confined the damages to providing for care on an “occasional” or “contingency” basis, for which a sum in the order of £50,000 to provide a contingency fund would have been adequate. It is said that the original assessments of the Claimant’s future support needs by the experts were confounded by the discovery of the UKCT result. He refers us to the joint report of the care experts of 29/31 October 2012 at paragraph 1.16 (5/ 154/2281) to the following effect:

“1.16 Both experts (GM and JP) state that it has been very difficult for them to assess Mr Ali’s true functional abilities and provide the Court with an accurate assessment of both his past and future care. In light of the above issues both experts state that the Court considers their recommendations in two scenarios. In scenario 1 if it is proven that Mr Ali has been exaggerating his symptoms then GM and JP feel it is impossible to recommend any future care or assistance because they really cannot assess his true needs in light of recent information such as Mr Ali passing the Life in the United Kingdom test without assistance and having 150 friends on Facebook who he corresponds actively with, as well as the inconsistencies in the reporting of his needs by both him and his family over the past four years.”

Mr Worthington submits that, in the light of the UKCT result (which the experts seem at that stage to have had in mind merely from the reports of others – Loc. Cit. paragraphs 1.6 and 1.7), the case is firmly within “scenario 1” for which the experts made no recommendations. Further, we are pointed to the evidence of Ms Phillips, the Claimant’s expert, that after a transition period a level of support care of between 8 to 10 hours per week would be appropriate: TB4/1447.

[71]The judge settled on a figure of 10 hours per week of support worker care and 5 weeks gratuitous care, after a transition year in 2013. Again, he placed reliance on Dr Williams’ evidence. Mr Worthington asks us to note that, prior to the evidence about the UKCT, Dr Williams had agreed with Dr Foster in December 2011 that the Claimant’s need was for flexible support and that over-provision would be counter-productive; they had agreed an initial provision for 10 hours of support a week, but reducing “as Mr Ali’s independence increases, he develops routines and he engages in rewarding activities outside the home”: 4/132/1818. By the time of the joint report with Dr Collin in October 2012, Dr Williams was expressing similar views: 4/135/1835. Dr Williams’ oral evidence, in the light of the UKCT pass, included this:

“A. One of the difficulties in this case is that there have appeared to be, and I believe there to be, cognitive – different cognitive disabilities and one of the features in this case, and in others, clearly, that one has come across, is the disorientation of being in unfamiliar territory etc. I think that the cognitive level required to take and pass the test does not actually – those cognitive abilities do not necessarily cover other disabling conditions such as a tendency to disorientation and so forth. I think I would like to just put in this proviso that the business of getting himself together, concentrating, coming up with the right answers, getting a high percentage pass rate, that does not necessarily mean that there would not be other issues which might come into play in a different environment, and with different demands upon him. I think, too, there has been quite an emphasis on Mr. Ali’s ability to cope alone outside, whether or not he could or he could not, and I do not think that on the evidence I heard yesterday that I could safely say that he would be able to negotiate any new place or get from A to B without some support. I am just giving that as an example.”

[72]So, Mr Worthington submits, even if the “contingency fund” argument were rejected , it seems that the judge failed to take into account this tapering need for support as time passed that Dr Williams envisaged.

[73]On the other side of the argument, Mr Leighton-Williams and Mr Wille in their skeleton argument (paragraphs 57-68, 1/7/64(z) to (ac)) and in oral submissions argue that the judge underestimated the need for future care. They say that the judge wrongly provided for 10 hours input as constituting what he saw as “the minimum provision that can safely cater for the needs I have summarised”: [280]. They contend that the requirement was to make reasonable provision, not minimum provision. They point to the evidence of Ms Phillips, the Claimant’s expert in this field, whom the judge described at the close of her evidence as having been “conspicuously thoughtful” (TB4/1475). She regarded the support needs as being dependent to a degree upon the extent to which the Claimant would be able to find suitable employment, voluntary or paid. At TB4/1470, Ms Phillips is recorded as saying this in answer to Mr Leighton-Williams:

“Q. If he does not find employment, what is the position then? A. My feeling would be, if he did not achieve that goal and if he were not in structured employment, whether it be voluntary or paid, then he would still likely need in the region of 20 hours and I think my Lord referred to that earlier, that in order actually to stimulate him to do anything he would need in that region.”

They point out that the judge did not find the prospects of even voluntary employment as strong, a fortiori paid employment [268]. The result is that the award providing for 10 hours only covers 2 hours support work per day, 5 days a week, with nothing at weekends and with no allowance for “the subtle variations of everyday life” This is my note of Mr Leighton-Williams’ oral submission. . This award, therefore, halved Ms. Phillips’ figure, which the judge did not criticise, in circumstances in which he found that the Defendant’s expert had underestimated the Claimant’s needs. The only explanation for doing so, says Mr Leighton-Williams, is the UKCT.

[74]Of course, the judge found that the Claimant had indeed passed the test but that he had the residual cognitive difficulties already considered. In the circumstances, I fully understand why it was that the judge reduced the care requirements envisaged by Ms Phillips, but was not prepared to go so low as the minimal award envisaged either by the Defendant’s expert or to go down the route of a small contingency fund.

[75]In the end, therefore, in my judgment, the judge achieved a sensible balance of all the evidence as part of the “significant…but far from…excessive” award that he made overall. I would, therefore, also reject ground 3 of the appeal and ground 4(2) of the cross-appeal. Residual Earning Capacity

[76]One could deal shortly with the Defendant’s argument on this aspect of the appeal simply by saying that no ground of appeal on the point is to be found in the Appellant’s Notice. However, Mr Leighton-Williams did not take that approach and neither will I.

[77]The judge found that the Claimant had no residual earning capacity, but this is challenged by the Defendant: first in paragraph 13(iv) of the skeleton argument; secondly, in a note submitted at the hearing entitled “Outline Effect of D’s Appeal on Quantum”; and thirdly, in oral submissions.

[78]The short point for the Defendant is that the judge should have found a residual earning capacity of £7,054 p.a., based upon the minimum wage for 25 hours per week with a reduced multiplier of 50% at 10.94. Thus, it is argued, the award for loss of earnings should have been £542,547, instead of the £620,000 awarded by the judge – a reduction of £77,453.

[79]Mr Leighton-Williams submits that this is an artificial calculation, having as its only merit, from the Defendant’s point of view, that it reduces a head of damage. Mr Worthington argues, however, that the Claimant was thought capable of some profitable activity even before the successful UKCT was factored in; the position must, therefore, be better than that having regard to that success; the consensus is that it is in the Claimant’s best interests to fill his time; and although he will face difficulties in securing employment, it is wrong to “write off” the capabilities of a young man of only 24 years old.

[80]The judge referred to Professor Collin’s agreement in evidence that the Claimant would be “at a “monstrous disadvantage” in the open labour market”: [266]. He went on to find this:

“267. In my judgment, the pre-trial assessments by Banstead and the experts, to which I have referred above, were realistic and Professor Collin's view was correct. Even if the conclusion of the litigation provides a measure of incentive for Jubair to get out and about, I consider it exceptionally unlikely that Jubair will ever obtain or hold down remunerative employment. There are numerous factors which contribute to this conclusion. The first is the evidence to which I have referred, particularly that of Banstead and Professor Collin. Second, in the highly competitive labour market which is likely to continue for the foreseeable future, the prospects for a person who started out with low average IQ, has suffered the serious cognitive and behavioural effects of the accident to which I have referred elsewhere in this judgment, and who cannot undertake any heavy or repetitive manual occupation or any occupation which does not enable him to move around from time to time, are bleak, if not non-existent. Third, and superimposed on the first two reasons, is the fact that Jubair is now entrenched in the sick role.”

He went on to consider less orthodox possibilities for gainful employment, but concluded at [270], “Viewed overall, this evidence does not lead to the conclusion that [the Claimant] has any measurable residual earning capacity based upon his prospects of achieving a vocational placement.”

[81]In attack on the judge’s findings, Mr Worthington argues that when Professor Collin gave her answer (at the judge’s suggestion) that the Claimant was at a “monstrous disadvantage”, she was not being asked about the position in the light of the UKCT pass. When asked about the position in the light of the pass, she would have said the prejudice was less. It is argued that the judge was too pessimistic about the labour market in the long term and the “sick role” is belied by the test result itself.

[82]Turning to the individual strands of evidence on this subject, Mr Worthington refers to the Claimant’s father’s view that his son would be able to perform a useful role in a family business with somebody watching him: TB2/513; and to the view of Salek Ali that he might do basic jobs such as greeting people or in-putting data onto a computer, subject to allowance for his back injury: TB3/989-9. Ms Phillips thought that the Claimant would be capable of some part-time employment in due course: TB4/1445. Dr Williams thought that he might be capable of work in a supermarket, subject again to his back injury: TB4/1266. On the basis of the UKCT test having been passed, Professor Collin gave some tentative answers as to possible employment: TB4/1304Qqqq.

[83]In the face of this generally optimistic assessment of future possibilities, the Defendant argues that the judge’s finding was too pessimistic to be sustained. Thus, the modest residual earning capacity is proposed.

[84]For the Claimant, Mr Leighton-Williams says that the judge’s findings were fully justified. There was clear evidence of a struggle to cope with a modest vocational activity while at Banstead. Professor Collin’s acceptance of “monstrous disadvantage” was fully justified. There is the ongoing effect of the spinal injury, preventing any form of heavy or repetitive manual work. The Claimant had a low IQ before the accident. He had an entrenched “sick role” as a consequence of the accident. Paid employment prospects were in practice minimal and other employment opportunities were speculative. There was no feasibility of employment within the immediate family.

[85]These Mr Leighton-Williams notes were the findings of the judge to which one could add psychiatric vulnerability, epilepsy, fatigue, slurred speech and an inability to drive motor vehicles. The evidence also indicated that any employment would itself require supervision and support.

[86]For my part, faced with these varying features of the evidence, I do not believe that we can “second guess” the trial judge’s assessment of the true likelihood of gainful employment. The single observation of actual quasi-employment activity at Banstead was negative and the observations of Mr Brown and of others as to the difficulties the Claimant really faces in his day-to-day life only confirm the judge’s finding. Certainly, I can see nothing on this evidence to justify the sort of speculative calculation (even if modest) of potential future earnings encouraged by the Defendant, which seems to me to have no evidential foundation whatsoever.

[87]I would, therefore, uphold the judge’s findings as to future loss of earnings and would reject the Defendant’s argument to the contrary. PSLA

[88]Finally, I turn to the question of damages for PSLA. Mr Leighton-Williams on the cross-appeal says that the proper figure was £175,000. Mr Worthington says the figure should have been £75,000. The judge awarded £147,500. The rival contentions have as their starting point the Guidelines published by the Judicial College (11th Edition then applicable) for damages for “Moderate Brain Damage”.

(c) and the quantum brackets indicated are as follows:

“(i) Cases in which there is moderate to severe intellectual deficit, a personality change, and effect on sight, speech and senses with a significant risk of epilepsy and no prospect of employment. £107,250 to £156,750 (ii) Cases in which there is a moderate to modest intellectual deficit, the ability to work is greatly reduced if not removed and there is some risk of epilepsy (unless a provisional damages order provides for this risk). £64,750 to £107,250 (iii) Cases in which concentration and memory are affected, the ability to work is reduced, where there is a small risk of epilepsy and any dependence on others is very limited. £30,750 to £64,750”

The judge found this was a (c) (i) case [313]. Mr Leighton-Williams says he was right. Mr Worthington says it was a (c) (ii) or (iii) case.

[89]Again, Mr Worthington’s point is the same short one. If the judge had attributed the correct weight to the UKCT pass the award had to be lower and in the region of £75,000 to £100,000. It should have been at the lower end of that bracket, given the comparable cases referred to the judge by the Defendant and considered at [315].

[90]Mr Leighton-Williams argues that this was indeed a serious case well within category (c) (i), including epilepsy (in “grand mal” form with three attacks recorded by the time of trial), with speech impediment and no prospect of employment. To this one has to add an element for the back injury. He referred us in this context to Ms Jeffreys’ assessment of the Claimant’s immediate presentation on first acquaintance in which the Claimant’s disability becomes quickly obvious.

[91]I have considered these points and have re-read the judge’s careful review of them in paragraphs [312] to [317]. I cannot fault the judge’s assessment and certainly would not, on the review of his findings on appeal, be prepared to disturb them. I, therefore, reject ground 1 j. of the appeal grounds and ground 4(1) of the cross-appeal.

(C) Conclusion

[92]For these reasons, I would dismiss the appeal and the cross-appeal, notwithstanding the skill with which both have been argued.

Lord Justice Beatson:

[93]I agree.

Lord Justice Tomlinson:

[94]I also agree.