Tame v Professional Cycle Marketing Ltd. [2006] EWHC 3751 (QB)

Case No TLQ/06/0327

2006] EWHC 3751 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

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

Date Tuesday, 19 th December 2006

Before

HIS HONOUR JUDGE MICHAEL HARRIS

Between

TAMEClaimant

PROFESSIONAL CYCLE MARKETING LTDDefendant

Wordwave International, a Merrill Communications Company

PO Box 1336, Kingston-Upon-Thames KT1 1QT

Tel No: 020 8974 7305 Fax No: 020 8974 7301

Email Address: Tape@merrillcorp.com

(Official Shorthand Writers to the Court)

Mr Braithwaite Q.C. and Ms Howells (instructed by Ameer Meredith) appeared for Claimant

Mr David Melville Q.C. and Mr Rohan Pershaud (instructed by Housemans) appeared for Defendant

Judgment

[1]On 8th January 2002 Stephen Tame had a terrible accident at work. He fell from an overhead platform onto his head. He was just 24. He had been married barely eight months. His life and the life of his young wife were shattered.

[2]Liability in this case is admitted. The question I have to decide is what would be the appropriate figure to compensate him. He was in a coma for 53 days. He was expected to die. He had severe brain injury, but miraculously his life slowly returned. He was in hospital for nine months then he was transferred, to what has been described as the Camsley Unit in Northampton. It is by all accounts, a very good rehabilitation unit for people with the disabilities that Mr Tame then had.

[3]Towards the end of July 2004 -- the beginning of August 2004 -- he came home. By then a decision had been made to move from the original house that this couple had bought, which was a terraced house, to a house that was more convenient to someone with his disabilities. It was in East Bergholt, which was some way away from his family and friends -- and I shall return to that point later. He was looked after when he came home, by his wife and by a team of support workers under a case management package. As time went by the doctors were able to say of him that he had made a miraculous recovery.

[4]I have heard from Mrs Tame. She gave evidence before me over two days. It was emotional. I have heard from a plethora of experts, each of which has produced at least one report, and all of which have come together to produce their respective joint reports in their separate disciplines. So, I have heard from Mr Price and Dr Clark, the former a neuro-surgeon, the latter a neurologist. I have heard from Dr Scheepers, and Dr Jacobson, both of whom are neuro-psychiatrists, and I've heard from Dr Powell and Dr Murphy, who are both neuro-psychologists. I have also listened with care to the evidence provided by two case managers, Miss Jo Clark-Wilson, and Miss Gillian Conradie. I have also been referred to many volumes of case notes, prepared by the case workers and prepared by the case managers over the years, but their recent reports are, of course, the most relevant for my purpose. I have also, for completeness, seen an agreed statement from a solicitor on the claimant’s side.

[5]Despite a miraculous recovery, Stephen Tame is still severely disabled. The best account of his disabilities is to be found in the joint report of the case managers under the heading of needs, and at pages 6, 7 and 8 in the supplementary bundle. I was going to incorporate that into my judgment without reading it, but I see that there are people here listening to what I am saying, so I will read it out. It is a balanced account given from the perspective of each of the case managers. Miss Clark-Wilson says, that having reviewed the recent medical and psychology reports, and highlighting the underlying needs as described in those reports that impact on his need for care: “Mr Tame has tunnel vision and difficulty tolerating noise. He has a flexion deformity of the left elbow, with discomfort and a residual left-sided weakness; mild gait abnormality and a tendency to unsteadiness when tired or under stress. He has slurring of speech and occasional word-finding difficulties. Frequently asks questions, or introduces unrelated or obscure subjects in conversations. He was reported to be a poor listener and to suffer from fatigue. His concentration and dual-tasking markedly deteriorates with fatigue after two to three hours. He finds it difficult to concentrate, is distractible, jumps from one task to another and gets bored quickly. He is easily overwhelmed and he loses interest and motivation in tasks very easily. His memory and ability to learn are very poor, and if tired, his memory deteriorates and he forgets to do things. He was reported to confabulate when attempting memory tasks, and to have an impaired learning curve. He has reduced speed of information processing, and he was reported to be impaired when switching his attention in tasks and coping with high loads of cognitive processing. He has poor executive skills, and reduced visual perceptual skills. He has difficulty performing day-to-day planning, organising and, problem solving tasks, and trouble in making decisions, or deciding what to do. He is poor in tackling novel problems, not able to weigh up opinions, vulnerable to the influences of others, and to influences in his environment. He has difficulty thinking ahead or planning for the future, and impulsively changes his plans. He was reported to have (inaudible) errors, particularly when rushing on simple executive tasks. Mr Tame is dis-inhibited; he says embarrassing things in the company of others. Misbehaves in the presence of females and winds people up, for instance, by butting into other people’s conversations with irrelevant talk. He watches pornographic videos and sites on the computer, and rings specific numbers on his mobile telephone. He is impatient and impulsive and acts without thinking, without regard to the consequences, and finds it difficult to stop himself from doing something even though he knows he should not. He changes his mind suddenly, and rushes actions without completing them. He is reported to be stubborn, self-centred, and has a reduced awareness of others. He has difficulty realising the extent of his problems and is unrealistic about his future. He was reported to veer between denial of his disability, and good insight into his problems. He wants to do something one minute, and cannot care less about it the next, and can be unconcerned about how to behave in certain situations. He is easily frustrated and agitated, and he is reported to become over-excited and a bit over-the-top, to lose his temper over the slightest things. He becomes irritable and depressive when there are unexpected changes in his routine. It has been reported that Mr Tame had good and bad days. He had hypo-manic-type mood swings. He can be euphoric, jocular, and excessively cheerful and talk too fast, or go quiet. He is reported to have had moderate depressive symptoms in September 2006, and significant social anxiety. He has reduced self-esteem, and has emotional responses to his wife leaving the family home.” [Quote unchecked]

[6]Miss Clark-Wilson accepts that Mr Tame has the ability, physically and cognitively, to achieve many activities of daily living if his structure and routine are maintained and accepts, that on the basis of his performance in everyday activities, that he could be maintained in the community with a high level of support. She recognises that he needs prompting to use external strategies like a wall chart and diary, and help to plan a weekly timetable to ensure that he has structure in his life. He requires assistance with fatigue management and prompting to slow down on activities, and to stay on task, or return to an abandoned task. Provision of the assurance of assistance and support is essential, in her view, with consistent feedback regarding his behaviour and appropriateness. He needs guidance and support to monitoring of his behaviour, especially with respect to impulsive actions, in order to rectify issues that arise. He requires structure in his environment to ensure maximum performance and behavioural control.

[7]Miss Clark-Wilson accepts that if Mr Tame maintains his performance in structured activities without the need for a support worker, this input could reduce, but understands from reading the support worker notes, that the times and structure of the activities he undertakes and the length of time he spends doing them, vary considerably. These activities, like the college courses, voluntary work activities and household activities provide him with occupation and interest during the day. The length of time Mr Tame spends in any activities is very limited, up to three hours depending on the activity before he fatigues, loses his concentration and becomes irritable. His participation in all activities fluctuates from one week to another, because of Mr Tame’s unpredictable behaviour. Miss Clark-Wilson recognises that Mr Tame develops particular interests, for instance, in drumming, where he is keen and enthusiastic initially, and wants to buy all the necessary kit, but then loses his interest after a short period of time. 8. The other case manager, Miss Conradie said this: on reviewing the reports of others and the case management support records, she notes that Mr Tame is considered to have made significant gains from his rehabilitation program at the Camsley and at home, and to have increased his level of understanding of his remaining problems, and improved his physical, cognitive and behavioural skills, and his functional independence. From a functional perspective she notes that he is able to rise independently, go to the local shop, returning before the arrival of the support worker at 10am. He can go supermarket shopping alone. He can deal with routine maintenance, gardening. Then she quotes: “Did well with decorating, he did 30 per cent. He fixed the lawnmower cable, cut the grass and washed the car, usually without prompting, and can walk into the town and pay bills on his own. He cooks meals independently, and is able to clean the house,” and she cites an example. “He has been highly motivated to continue his woodwork course at Colchester College, even though he has moved out of the area, and now has a significant journey to college. He has developed a regular routine of activities outside the home, including voluntary work at the PDSA shop and church, and in recognition of his reduced stamina he usually takes a rest in the mid-afternoon, although there are occasions where he can spend long periods engaged in activities.” [Quote unchecked]

[9]She notes that he has been able to learn strategies to reduce the impact of his remaining cognitive problems. He usually writes things down so that he can self-prompt, and can successfully relay messages to others. He uses his support workers to assist with complex planning and organisation.

[10]She also notes he has improved his awareness of inappropriate behaviour. She notes that Dr Scheepers states that although he continues to have problems with social judgments, (and then she quotes from him): “Over the last year he has learned to emphasise, and developed further insight. At times, when he has lost his temper he has apologised after, and he has asked for the assistance of his support workers at times when he has felt vulnerable to sexual behaviour.” [Quote unchecked] And she gave some example of that. Then she refers to Dr Murphy, who considers that he has reasonable insight into his difficulties and has the potential to make further improvements in his level of independence.

[11]It is necessary for me to have referred to that, because it gives a very good and fair overall picture of Mr Tame’s disabilities on the one hand, and the outstanding progress that he has made to manage, to an extent by himself, on the other. That background is crucial in the decision that I must make in this case, in particular, as to the extent of future care that he needs. The main issue in this case indeed, has been about that, and it is agreed on all sides that he needs continued care in the form of support workers who will be present, and a case manager who will be able to structure his life so as to deal with the difficulty he has with making what is called, executive decisions.

[12]The two principal issues which arise on the question of future care are these: I have already indicated in my summary of events that his wife is at home with him, and she obviously provides a good deal of care. The question has been raised in this case as to whether she will remain in the home, in short, whether their marriage will survive. If the marriage does not survive, then of course, the care which she is currently providing will have to be replaced by professional care, and that costs more. So regrettably, I have to tackle the question of whether or not their marriage will survive. It is an invidious task, but as I hope one can see, a necessary one if I am to arrive at a fair answer on the question of care needs.

[13]Before I embark upon this issue it is important for me to say this, and it is important, certainly, for Mr and Mrs Tame to know this. My view and judgment on their marriage should not in any sense influence them in their life. They and they alone will decide what will happen to their marriage. I am not a soothsayer. I am not Mystic Meg. I do not know what the future holds, nor should my decision be taken by them as advice to them as to what they should do. As I said, they should be totally uninfluenced by the decision that I reach on this point. My task is a much narrower one. My task is to look at the evidence as it stands today, and which has been canvassed before me over the last week, and I have to ask myself the question, standing back and looking at it, and saying, “Will this marriage survive?” I have reached the conclusion that this marriage will not survive. I even doubt whether it will last another year. But it will not survive beyond a year.

[14]Why do I reach such a conclusion? What are the main ingredients? Let us go back in time. This was a terribly short marriage before the accident happened. Barely time for any married couple to settle down, and in those eight months or so it was not all plain sailing for Mr and Mrs Tame. There is evidence before me that he did show aggression towards her, particularly when he had been drinking too much. So before the accident we have a very short marriage that is showing some signs of trouble, but maybe, trouble which, over a longer term they would have easily solved. They have not had that chance. There was then a very long separation of about two and a half years when Mr Tame was in hospital, and at the rehabilitation centre, the Camsley Unit. True, he used to come home from time to time to be with his wife, but the majority of his time was spent away. It must have been very distressing for her.

[15]As I said, he came home finally in the autumn of 2004. It is fair to say that it has been, for both of them, a very difficult period since. So difficult has it been for Mrs Tame, that she has had to go home to her parents. There was a separation in January of 2006 for about three weeks, and then, at the end of August she left again for a fortnight. At the end of September she leaves again for about three weeks, and at the end of November she left yet again, and is still away from her husband.

[16]All of this is taking its toll on Mrs Tame. No one who had been here to see her give evidence could fail to recognise how fragile she is. She is clinically depressed, and is receiving treatment. There is no doubt that both of them have derived huge comfort from their membership of their church, and a reinforcement if you like, of the duty which they feel towards each other as husband and wife. I have been referred to a vast volume of notes and records over the last year prepared by support workers and case managers, and the picture increasingly is emerging, of the possibility of separation and divorce. It is not all one way, because there are plenty of examples of love and affection being displaced between them at the same time. So there is considerable ambiguity.

[17]It would appear that the first thought of divorce was December last year. There is a note to that effect. That was a thought that Mr Tame had, and those thoughts have been growing apace over the last few weeks. He made an appointment to see a divorce lawyer, but was persuaded not to go ahead until he was sure about what he really wanted to do. There is evidence also from him that he is thinking of a different life, of moving, thinking of a life without her.

[18]When Mrs Tame gave evidence it was apparent to me that she was struggling; a strong sense of duty to keep the marriage alive on the one hand, but a growing realisation that it was impossible. In one of her most telling observations she said, “My love for him is slowly going. It’s turning into friendship. I'm no longer in love with him.”

[19]The experts are divided on this issue. Those called by the claimant believe that this marriage will not survive. The expert evidence called on behalf of the defendant does not accept, does not support that view. But I have to say that in my judgment, they struggled to maintain their optimism, particularly in the light of the most recent evidence.

[20]I have left, almost to the end, what I suspect is a very important factor, and that is Mr Tame’s recent infidelities. He was unfaithful to his wife at the end of August, and that was certainly one of the reasons why she left him at that point. Much more recently he has been unfaithful again. Although Mrs Tame was not questioned about that, it is accepted that she knows about it. That lack of faithfulness must be particularly hard for Mrs Tame to accept. She and her husband have not slept together for four years. It is suggested that his infidelity is an example of his dis-inhibited behaviour, but it may also be an indication of how he now feels towards his wife. So far as we know he has not been unfaithful on any earlier occasion than the two that I have indicated most recently.

[21]I have also been referred to some statistics, and it will surprise no one to learn that where one of the partners suffers frontal lobe injury, as Mr Tame has, the partnership break down. And typically, they break down in the period between four and eight years of the accident, and we are, of course, precisely at that point here.

[22]I have said Mrs Tame left at the end of November. She has not come back. We cannot rule out the possibility that she will not. But I accept the formulation of the case that has been placed before me by the claimant, that in assessing future care I should only consider this marriage surviving for another year, and that from then on Mr Tame will not have his wife with him.

[23]I will deal with the question of how much care is needed when I go through the various items of claim. This is a curious case in many ways, because very little is agreed between the parties. They are about as far apart as anybody can be on most of the issues, and so they have given me the unenviable task of deciding what the right answers are, so I need to go through each of the items that is contested, and I am afraid, it is not going to be very exciting listening to me.

[24]The first section of the claim relates to past loss. That is the loss that has already been suffered by way of damages, what has already been expended and what ought to be compensated. Loss of earnings. Clearly he has not worked. That is agreed, I am happy to say in the sum of £65,000. Past family care falls into three periods. I have averaged out the first period between the two case management experts, which I think comes to the figure of £7,475.50. The claimants agree the defendant’s figure for the second period at £10,247.36, and I have averaged out the third period, which I hope comes to £21,246.92, making a total of £38,969.78. Usually a deduction is made from that figure, but counsel for the claimant has argued that in this case no deduction should be made, or alternatively, he says, 20 per cent should be deducted. The defence say that it should be 25 per cent. There has been some learning on this subject. It is accepted on all sides that the usual formula in these cases where care is provided by a family member, is to deduct 25 per cent. I confess that I have seen nothing in this case which would cause me to do anything other than to make what has become, as I understand it, the usual or conventional deduction of 25 per cent. So that, I think, is the sum of £9,742.44, which if you take it off comes to £29,227.34, which is what I will give for this head.

[25]There is then the question of past professional care. Care provided by Quantico is agreed at £77,162.86, and I accept the defendant’s figure of £31,000 for the Abacus, which I think comes to £108,162.86. If you add those two together, which is the way in which the schedule of loss is set out; if you add those two together it comes to £137,390.20.

[26]Case management -- past case management -- has been agreed in the sum of £74,881.45.

[27]There is then a section called, “Aids, equipment and activities.” I have accepted all of those items, except the items indicated by counsel for the claimant in his closing address. It seems to me that the costs, for example, in indulging in various sporting activities, which is done because he has needed to do it as part of his care and case management program, are not costs that he would otherwise have necessarily incurred had the accident not happened. I am reminded that Mr Tame was a low earner, very modest wages, and there would have been very little scope for much additional expenditure once they had paid the mortgage and so on; their outgoings. I calculate this item as amounting to £3,777.

[28]Replacement of damaged items, £775.92 is agreed.

[29]Hospital expenses agreed at £1,542.19.

[30]Clothing agreed at £599.85.

[31]Travelling expenses, this is how it is described in the claim:

“The claimant and his wife are unable to drive. Various travelling expenses have been incurred since his accident. Costs were incurred in hospital visits over a prolonged period. Since his discharge the claimant has required transport to assist his rehabilitation. Mrs Tame has unsuccessfully attempted to pass her driving test. The car has been purchased -- which would not have been done otherwise -- to enable the carers to transport the claimant to his various therapies and activities.”

The cost of the vehicle that was purchased, counsel for the claimant suggests, should be significantly reduced, because he now has a car worth £7,500 that ought to be taken into account. I am also not persuaded that it is an additional cost for Mrs Tame to have tried for her driving test. I would have anticipated that that may be something that she would have wanted to have done anyhow. So, making those various deductions, the car and the driving lessons, produces a figure £17,190.31.

[32]Therapy is agreed at £19,004.01.

[33]Accommodation. I have already said that before Mr Tame came out of hospital a decision was made to buy a bungalow in East Bergholt, and indeed when he did come out that is where they lived. But as events turned out it proved to be not very satisfactory. It was too far away from the other support mechanisms which are important in Mr Tame’s life; his family and his friends. They felt too isolated where they were, and so they moved. They moved in December 2005 to Wickford, which is much, much closer to their friends and family. The costs of making both the first move and the second move would have been considerable, and the claimant seeks to set out what the costs of both moves were. Looking at them a large part of it, £11,000 of it was stamp duty, and then a conveyancing fee, which is accepted is attributable to the first move. But looking at them in broad terms these costs do not seem out of the way for two moves if I were to reach the conclusion that the second move was reasonable.

[34]I do not think that any court should judge too precisely what claimants have to do if they are the victims of negligence or a wrong. As it turned out the move to East Bergholt was not a good one, but until they went there they were not to know how bad a move it was. It seems to me that it was not unreasonable of them, bearing in mind the injuries and the disabilities that Mr Tame had, it was not unreasonable of them to move to a place that was closer. And it seems to me that it is appropriate that these sums should be recoverable. It is true that not all the invoices match, or indeed some of these items are not covered by invoices, but they are expenses that I would have expected to have been incurred in these circumstances, and I therefore accept the figure which has now been placed before me of £36,870.89.

[35]Finally, there is the question of receivership, and that is agreed in the sum of £35,816.76. Now I did know what all those amounted to so as to give a final figure for past losses, but now, I am afraid, somebody else is going to have to use their calculator to find out what the answer is. Incidentally, I am very grateful to the individual in court whose calculator I purloined earlier this morning in order to make some calculations myself.

[36]Now, future loss. The claimant’s counsel says that, but for the accident the claimant would have been on £13,033 per annum. He arrives, does counsel, at that figure, by taking a three per cent per annum increase since the date of the accident to-date. The claimants argue that, but for the accident he would have kept that job until the age of 65, or at least a job that paid something similar, and that he is unlikely to get any paid work which should be set off against it.

[37]The defence argue, first of all that he would not have kept the job, but would have been not very good in the labour market, and they support that by drawing attention to the fact that before he got the job in the middle of 2000 with the defendants, (or the defendant’s predecessors I think, it was another company) he had had a rather varied career as a young man, being in and out of jobs, and over-indulging himself in drink. They also draw attention to the fact that there was an incident recorded by his employers, admittedly some time before the accident, where they had to reprimand him because he failed, I think, to put the right wheel in the order. He put the wrong wheel in the order. It is said that because of that the multiplier should be adjusted to take the possibility of him, or perhaps even the probability of him being out of work from time to time, into account. It is also suggested that there should be some reflection for the fact that he may get a paid job even now, and we spent a good deal of time looking at the possibility of him training in a place called, Rehab UK, which is based in London, with a view to him getting some part-time, probably very lowly paid, work.

[38]In my judgment, there would be huge hurdles in his way in obtaining paid work. Huge hurdles even to get on the Rehab UK course, hurdles in getting there, hurdles in passing the course, hurdles in then getting a job. It seems to me that the odds are so stacked against him that it is not realistic to expect him to obtain paid work. He might, at some stage in the future, but that would be a bonus. Insofar as I can judge from this moment it seems to me extremely unlikely.

[39]The claimants suggest that the appropriate multiplier is 22.52, having taken into account the various figures set out in the facts and figures book produced by the Professional Negligence Bar Association, and I thin he is right to do so. Once again, my arithmetic leads to the figure of £293,503.16.

[40]Future care; the big issue in the case. The parties are miles apart. The claimant’s initial case was that he required 24 hour care. That, during the course of the case has come down to 16 hours, and indeed, perhaps down to 14 hours. The defendant’s expert says it is eight hours down to six hours, and perhaps even reducing further. Everybody agrees that this is a very, very difficult exercise to carry out. But there are some pointers. The preponderance of evidence before me is certainly that he will be able to manage on his own at night. He needs a good case management structure. He needs, effectively, to be supervised for 24 hours, but not necessarily to have a worker, a one-to-one worker with him for 24 hours. If he has a support worker for a sufficient period of time, to give him a good structure to his life to ensure that he participates in activities, that he is kept occupied, then the chances are that he will have a good quality of life. But the amount of one-to-one care must not take away his ability to feel that he is independent. That is a key objective for him, and indeed, for his well-being. It is important that so far as we can make it, he will indeed make his own decisions. What we hope is that if he is given sufficient structure he will make the right decisions. What we cannot do is to provide him with such supervision that he always has somebody there. That, in my view, would be defeating one of the main objectives that we are trying to achieve.

[41]The people in this case who have most experience of care arrangements are, of course, the two case managers, Miss Clark-Wilson and Miss Conradie, but unfortunately, their assessments are very, very wide apart, and I am left with the distinct impression on both their sides, that Miss Clark-Wilson is prone to be somewhat cautious and exaggerate the claim, whilst Miss Conradie, I fear, is a little too optimistic as to how well he could do.

[42]I have already indicated that future care will be divided into care for the first year, which will be upon the basis that Mrs Tame is with him, and then care for the remainder of the period. It is asserted that the multiplier, the appropriate multiplier in this case, is 29.09. Counsel for the defendant has sought to argue that that ought to be adjusted, to take into account the fact that Mr Tame smokes cigarettes, and we all know that cigarettes kill. The trouble with that is, that I have been presented with absolutely no evidence at all which would enable me to arrive at anything like a scientific answer to this question, and because the issue was not raised before, the claimant has not had the opportunity of indicating whether he is going to, whether he is trying to give up smoking, whether he will give up smoking and so on and so forth, so all the detailed evidence that a court would need in order to reach a conclusion on this issue is simply not before me. I do not doubt that if there were that evidence, there is no reason in principle why a court should not take that approach. But as I say, there is no evidence, so the multiplier that is appropriate in this case is 29.09.

[43]I have approached the question of future care in a fairly broad way. I have looked, in particular, at the way in which Miss Conradie has structured the calculations, because they seem to me to be significantly simpler than the way in which they have been constructed by Miss Clark-Wilson. And so, I have tended to adopt the Condradi approach to the calculations. In the first year it divides into two parts really, well three parts. The first is family care, that which would have been provided by Mrs Tame, and my view on that is in line with the view I took in respect of the claim for damage that has already, or claims for care that has already been incurred, that it would be fair to her to have three hours for week days, and for six hours each of the weekend days, and that I should use the same deduction of 25 per cent as I did earlier. And that that regime should be for 46 weeks in the year. I shall explain why in a moment. In addition to that there should be a support worker for eight hours each week day, once again, also for 46 weeks in a year. In addition there should be a six week, 24 hour contingency support. That will include periods, which I think Miss Clark-Wilson treats as respite for Mrs Tame, but would also act as a contingency fund in order to cope with those situations which are bound to arise when Mr Tame’s need for one-to-one care increases. So a six week, 24 hour contingency from support workers is required.

[44]I have followed the process of calculation that Miss Conradie set out, and I have added 27 per cent to the professional costs in order to cover all the things that she mentions that the 27 per cent covers, and a small additional sum to cover activity charges for the support workers, and the figure that I reach for the first year is £37,209, which I multiplied by .99, because it is one year of the 29.09, making a figure of £36,836.91.

[45]In subsequent years I have proceeded upon the basis that Mrs Tame is not going to be there and that he would need support workers, and I have already indicated that it is necessary to perform this very, very difficult balance between 100 per cent support workers on the one hand, and the need for him to lead an independent life, and in so far as he can, a fulfilling life on the other. In my judgment, a sensible day-to-day and weekend care for him for 46 weeks in the year is ten hours every day. So that means in practice, and obviously it will depend, and it will be for the case manager to decide, but the way I have approached that, is to say four hours in the morning, four hours in the afternoon, and then make an allowance for two hours in the evening, which may be a support worker coming to his house, ensuring that he is fine and ready to go to bed, and safely tucked up in bed before leaving. Or -- and we explained this with the caseworkers -- the possibility that if things go well a support worker need not attend, but there may be a system of telephone callers. A telephone call to him, perhaps an obligation on his part to make a telephone call, but apparently that is something that is not an uncommon practice in cases of this kind. I am told that certainly initially, from a commercial point of view, the charge is likely to be the same as for two hours, even if it is a telephone call, although that may be adjusted in time.

[46]In addition to that, I have built in a six week contingency cover where 24 hour support worker presence would be necessary. I accept the arguments that Mr Tame is very unpredictable, and that he is likely to go through good periods and bad periods. When he is going through good periods he may well be able to survive and do really well, and have a good quality of life even on less than the ten hours that I have indicated. But there may well be occasions when he needs significantly and substantially more than that in order to ensure that he has the structure that he needs. As I say, this is not a precise science this exercise. This is doing one’s best to see how things are likely to be in the future, what will give him what he needs, what will ensure that he has a good quality of life. My calculation of that, making the same additional calculations as I indicated under for the first year, the sum comes to £54,735, which has to be multiplied by 28.1, which comes to £1,538,053.50.

[47]The next item is case management. There is a disagreement between the case managers as to how much that should be. On this aspect I prefer the evidence of Miss Clark-Wilson. She has very extensive experience in case management. It is also important for me to stress that this is a case of 100 per cent supervision. In other words, the case manager’s job is to make sure, so far as he or she can, that the regime is working. He is getting the structure, and because there will be volatility in the amount of support work necessary, there will be a lot of case management work, and so, I accept her figure of £340,736.76.

[48]Then there is a claim for future treatment. That has been adjusted by counsel for the claimant recently, since the schedule of loss was prepared. Now there is a claim for a neuro-psychologist amounting to £40,785.10 and for occupational therapy for £3,592.50. Counsel for the defendant says that there is really no basis for that, for either of those claims, and no support for it in the evidence. I do not agree. He is currently receiving treatment, and it is very likely that he will continue to need that treatment, and I do not find either of these claims unreasonable. So under that head I allow £44,377.60.

[49]Transport costs. There is a claim for £565, being the cost of a driving assessment. There is also a claim for taxis and so on, which I am not going to allow at all. But the claim for a driving assessment I am prepared to accept. It is important that Mr Tame should have the opportunity of seeing whether or not he will be able to drive. The evidence before me strongly suggests that he never will be able to drive, but it seems to me reasonable for him to have that opportunity. So I will allow £565 for that.

[50]Additional expenses, such as gym membership and college courses. I think the suggestion here is, that these are expenses which he would have incurred even if the accident had not happened. I do not agree. As I have indicated, the earnings that we have assumed that he would earn are very, very modest indeed, and it is doubtful whether he would have been able to find the money to have funded these expenses, and these expenses are likely to be necessary as part of his rehabilitation, so I accept £65,743.40.

[51]Additional services to help with decoration, handyman work, gardening. Very, very modest claims are being made here, and it seems to me entirely justified in the sum of £34,908.

[52]Holidays. It is suggested an annual cost of £1,000 by the claimant, £800 by the defendant. I am more than happy to accept the claimant’s view of that, so that comes to £29,090.

[53]The Receiver costs have been agreed, and that comes to £239,391.24.

[54]Now with all of that those with calculators will be able to tell me what the answer is. But there is one final issue that I must deal with and that is general damages. General damages to cover pain, suffering, loss of amenity. This young man has been transformed, and in a sense, the fact that he has some awareness makes it worse, because every moment he is reminded of what he might have been, but for the accident. On my conclusions, he has lost his marriage. He has probably lost the prospect of a family.

[55]I have been referred to the Judicial Studies Board publication, the various brackets. The claimant suggests that this case should attract an award of £160,000. The defendants suggest that it should attract an award of £120,000. I have read out at great length his present disabilities, what he can and what he cannot do. In my judgment, the claimant’s assessment is nearer to the mark, and in my view the sum for general damages should be £150,000. ____________________________