Taylor v Chesworth & Anor [2007] EWHC 1001 (QB)

[2007] EWHC 1001 (QB)

Case No MA21011

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue MANCHESTER DISTRICT REGISTRY, Royal Courts of Justice, Strand, London, WC2A 2LL

Date 30/04/2007

Before

THE HONOURABLE MR JUSTICE RAMSEY

Between

Mark Calvin TaylorClaimant

Craig Sephton QC and Jonathan Richards (instructed by Linder Myers) for Claimant

Richard Methuen QC and Harry Steinberg (instructed by Greenwoods) for Second Defendant

Hearing Hearing dates:

Judgment

[1]The Claimant, Mark Taylor was born on 29 August 1984. On 20 July 1998, when he was 13 years old, he was a passenger in the car driven by the First Defendant, Jack Chesworth who was uninsured. The car went out of control, mounted the pavement, skidded on grass and hit a lamp post. Mark Taylor was removed from the car by another passenger, Christopher Heap. He suffered a head injury and was knocked unconscious.

[2]Mark Taylor was conveyed by ambulance to Manchester Royal Infirmary from where he was transferred to Manchester Children’s Hospital. He was sedated, ventilated, intubated and treated in the Intensive Therapy Unit, the High Dependency Unit and on a ward. He was discharged home on 4 August 1998.

[3]On 30 April 2002 these proceedings were issued by Mark Taylor’s mother and litigation friend, Jane Vose. By a Consent Order dated 8 May 2003, judgment was entered for the Claimant with damages to be determined by the Court. The basis of the Consent Order was an apportionment of liability between the Claimant and the First Defendant as to 75%/25% in favour of the Claimant.

[4]The matter was transferred to the High Court and by Order dated 2 December 2004, the status of the Claimant was changed from that of a child to that of a patient and Mr Andrew Cushworth, a solicitor with Linder Myers was appointed as Mark Taylor’s litigation friend. The settlement was approved by Holland J. pursuant to CPR rule 21.10(1)(a).

[5]Directions were given for the trial of quantum. The hearing of quantum issues was listed for December 2006. Prior to and during that hearing the parties were able to agree, subject to the Court’s approval, many of the heads of claim. At the hearing the evidence and submissions were, in the end, therefore directed to the remaining issues of future care and care management costs, including any necessary accommodation costs. The main issue between the parties relates to the scope and extent of future care which will meet the reasonable needs of Mark Taylor.

[6]In this case the evidence of the effect of the injury on Mark Taylor and on his behaviour has developed with time. In particular on the weekend before the trial there was an incident which led to Mark Taylor being injured, as I shall explain below. That event and its consequences had a significant impact on much of the expert evidence which was called at the hearing. One of the major issues that I have to resolve, taking account of that expert evidence, is the proper impact of the recent event on the care and case management needed for Mark Taylor, who otherwise has a normal life expectancy.

Mark Taylor’s current condition

[7]The experts have been able to agree much about Mark Taylor’s condition. He suffered head and consequent brain injury. The head injury which he suffered is classified as severe, manifested as frontal lobe damage with an associated dysexecutive syndrome. There will be no further improvement in his clinical condition which will continue in the long term.

[8]In terms of functional ability, because of the brain injury he manifests a greater response to life events than someone of a comparable age. He presents as emotionally labile, irritable and having problems with temper control. He has exhibited periods of disturbed behaviour where he has been both verbally and physically aggressive. He displays a tendency towards obsessional traits, with an identified risk of florid morbid sexual jealousy. His daily functioning has improved with the rehabilitation he has received to date. He requires care and support, particularly to prevent him relapsing into a demotivated state. Without support there is an increase of episodes of volatile behaviour and loss of temper, with a risk of violence. There is a low risk of deterioration of his functional ability in that he previously had a right hemiparesis. He is not and never will be capable of remunerative employment but may be capable of undertaking some therapeutic employment.

Mark Taylor’s current support

[9]From February 2003 he lived in a house in Beswick which he shared with his mother, Jane Vose and with his sister, Stacey Taylor. Soon after that date he formed a relationship with Stacey Duncuft. In early December 2004 Mark moved to a house in Droylesden with his mother, sister and Stacey Duncuft. By the time of the hearing he was living in that house with Stacey Duncuft and his mother was staying overnight on some nights.

[10]In terms of care and support, Anne Riley was appointed as Mark’s Case Manager in April 2002. She arranged for him to undergo residential assessment at the Transitional Rehabilitation Unit (“TRU”) in Merseyside. He attended there from January to May 2004 when he discharged himself.

[11]In October 2004 Marian Hooson became Mark’s Case Manager. She recommended neuropsychological intervention. It was difficult to find an appropriate neuropsychologist and Holland J authorised Dr Aidan Jones, who gave expert evidence before me, to become involved in a therapeutic capacity from 12 November 2004 until April 2005. He has since then had neuropsychological intervention from Dr Jacki Bamborough (May 2005 to November 2005) and Dr Alan Perry-Small (January 2006 to August 2006).

[12]From April 2005 support workers have been employed for Mark. They have been working from 9:00am to 5:00pm each day. There have been a number of changes in support workers. The most constant support has been provided by Edwin or Eddie Bishop.

[13]Dr Chesterman, a consultant psychiatrist, has undertaken periodic reviews of Mark from April 2005 and he has had speech and language therapy and assistance from an occupational therapist.

[14]Since April 2005 Mark has been encouraged by his support workers to undertake some activities. He has attended a gym which has generally been a success. He has also been encouraged to carry out some cooking and housework. In Autumn 2005 he attempted a joinery course although that proved too demanding for him. He has undergone courses in Computing and English. His interests now appear to lie in the Gym and Computing, particularly using EBay.

The position by the time of the hearing

[15]By the time of the hearing Mark’s support position was suffering from a number of difficulties. First, his main support worker, Eddie Bishop, was unable to continue because he needed to go into hospital for surgery and to convalesce for a prolonged period. There were some problems with his other support work, Robert Wright, who no longer provided support. A new support worker, Bobby Bojovic, who gave evidence started work in September 2006. A further new support worker, Bethel, started in December 2006 and there were problems at that stage in the relationship with Mark.

[16]Secondly, there had been a gap in his neuropsychological therapy because no replacement could be found after Dr Perry-Small left in August 2006. In early December 2006 a new neuropsychologist, Dr Paul Priem, was appointed and he was starting to undertake some therapy by the time of the hearing.

[17]Thirdly, the relationship between Stacey Duncuft and Mark Taylor, which had been difficult at times, was going through problems and various opinions were given on whether the relationship would last. This is of importance because a level of support is currently provided by Stacey Duncuft. There was no additional support provided during the overnight period when Stacey was at home or at weekends. When there were such difficulties, Jane Vose would provide some additional support.

[18]In addition, these proceedings were evidently causing concern for Mark as was the general uncertainty of his position.

[19]As I have said, a major feature of the evidence was an event which occurred over the weekend prior to the hearing. On Friday 8 December, Mark had been to the gym with the new support worker, Bethel, and there had been some problems between them. Mark had then cancelled the support visit which Bobby Bojovic was due to give On the Friday evening Mark had gone to a friend’s cousin’s wedding with a friend. Marian Hooson, as his case manager, had arranged to phone Mark at 9:00pm to check that he had returned home by then.

[20]At 9:10pm Marian Hooson received a telephone call from Stacey Duncuft. She said that Mark had phoned her in an agitated manner wanting her to phone Marian Hooson to say that he would not be home until midnight and that he did not want “to be harassed by people because he was with his mates”. Stacey Duncuft said that the plan was for her to pick up Mark at about midnight, although she said that she had warned Mark that if he was not at the allocated place at the appointed time, she would not wait for him as she had to work on the Saturday morning. Marian Hooson asked Stacey to contact her if Mark was not at the pick-up point and she confirmed that she would do that.

[21]Stacey Duncuft did not contact Marian Hooson. She had not properly informed Marian Hooson of the position. She did not pick Mark up that evening and Mark was injured in an incident. He said that he had been hit by a passing taxi. He had suffered a black eye, superficial grazing to the knee and significant pain to his shoulder. Photographs were produced at the hearing to show the injuries. Dr Priem had a pre-arranged appointment with Mark at 11:00am on Saturday 9 December and had discovered the situation when he arrived. He contacted Marian Hooson and said he could not ascertain if the shoulder was dislocated. He said that Mark’s bedroom “stank of booze” and that the injuries were entirely consistent with a “scrap” or fight. A further appointment with Dr Priem had been arranged for Tuesday 12 December.

[22]It transpired that Mark had drunk about 7 pints of Foster’s lager and had not been at the pick-up point. Rather, Stacey Duncuft had gone to collect him later. She had not phoned Marian Hooson. Following his injury, Mark had made an attempt to have treatment at hospital but the staff would not see him as he was too aggressive. Stacey Duncuft had then taken Jane Vose to collect Mark from the hospital. Stacey Duncuft went to work and Jane Vose remained at the house to look after him and then stayed for the weekend. She took Mark to hospital where his shoulder was x-rayed and it was found that he had suffered a strained muscle injury. It was arranged for Bobby Bojovic to provide support on Sunday 10 December.

[23]It is evident that this incident demonstrated that Mark needed further support and that the support provided by Stacey Duncuft, particularly in her reporting to Marian Hooson, was inadequate. Naturally the impact of this incident, which I shall refer to as the December Incident, featured heavily in the evidence before me.

The hearing

[24]At the hearing, Craig Sephton QC and Jonathan Richards appeared for the Claimant and Richard Methuen QC and Harry Steinberg appeared for the MIB. The Defendant took no part in the proceedings. During the course of the hearing the parties were able to agree many of the issues and I have before me a settlement which I am asked to approve under CPR Part 21 in respect of a large number of quantum issues.

[25]However, the central issue of the future care of Mark Taylor remained to be resolved. A large volume of evidence was put before me and I was provided with much of it scanned into a CD. I was invited to and did read much of the history of this matter because it is relevant to the current position. It provides context to the December Incident and provides assistance in identifying the nature of the underlying problems.

The Remaining Issues

[26]Counsel helpfully drew up a list of issues to indicate the scope of the remaining disputes. Those issues were:(1) What approach is the court required to take in determining the issues of future care?

(2) Does the claimant require in-patient care? What will it cost to provide the claimant with in-patient care? For what period(s) will the claimant require in-patient care?

(3) Does the claimant require 24h care? What will it cost to provide the claimant with 24h care? For what period(s) will the claimant require 24h care?

(4) Will the claimant’s care needs reduce below 24h a day? If so, to what extent will his care needs reduce? What will it cost to provide each level of care the claimant requires?

(5) What case management support does the claimant require? Will the claimant’s case management requirements change? If so, in what manner and when? What will it cost to satisfy the claimant’s case management requirements?

(6) What professional support does the claimant require? What will it cost? What changes, if any, will there be to the claimant’s need for professional support?

(7) Is the claimant entitled to claim in respect of alternative accommodation? Cost?

(8) Is it appropriate to make a PPO in respect of any care and case management costs? If so, which?

(9) Is it appropriate to make a PPO in respect of annual receivership costs?

The Factual Evidence

[27]At the hearing, I heard evidence from Mark Taylor’s mother, Jane Vose; from Marian Hooson who, as I have said, has been responsible for Mark Taylor’s case management since October 2004 and from Bobby Bojovic, Mark Taylor’s current support worker, all of whom had prepared witness statements. Eddie Bishop also provided witness statements but, as I indicated, was unable to attend the hearing because of needing surgery. Whilst his evidence was not the subject of examination at the hearing and I bear this in mind, I have however found his evidence of assistance as he had been providing support for Mark Taylor over the period from April 2005 until the need for his recent hospital treatment.

The Expert Evidence

[28]At the hearing I heard evidence from consultant neurologists, consultant psychiatrists, clinical neuropsychologists and care experts. All had produced helpful joint statements which reduced the scope of the issues. It is necessary to summarise the views of the experts both in terms of what they set out in their reports and what they said in evidence. The two accounts were not always consistent, particularly when they had now taken account of recent events, including the December Incident. Consultant Neurologists

[29]Dr. Brian Moffat was instructed by the Claimant and Dr Cumming was instructed by the Defendant. Dr Moffat has been the Clinical Director of the Kemsley Unit since 1996. Dr Cumming is a consultant at the Neuroscience Unit at the Alexandra Hospital in Cheadle.

[30]These expert consultant neurologists produced a joint statement dated 24 October 2006, following discussions on 29 August 2006. As I have said, they agree that the brain injury caused by the accident should be classified as severe, manifested as a frontal lobe syndrome. There would be no further improvement in Mark Taylor’s condition or level of functioning.

[31]In relation to care, the views of Dr Moffat and Dr Cumming, like the views of the other experts, have developed over time.

[32]Dr Moffat examined Mark Taylor on 15 September 2003 and produced a report dated 30 September 2003. He considered that a period of residential care should be provided to provide an opportunity for good observational study. He said: “It is clear that the various defects sustained by Mark Taylor have rendered it very difficult for him to organise and plan his life on a day-to-day basis and certainly with any view to planning for future events. In my view, it would be beneficial to him if a Case Manager could be appointed and if support could be made available to him on a medium and probably long-term basis. In my view the extent of this need will be further clarified during a period of residential care, which I understand is available to him.” [CB 12.21]

[33]In a letter dated 1 October 2003 Dr. Moffat said: “I am told by his mother that it has been extremely difficult for him to obtain the type of concentrated and dedicated support that is necessary through statutory service provision and I have no hesitation in giving my view that he is an entirely appropriate candidate for more intensive efforts of rehabilitation. I agree that the Transitional Rehabilitation Unit under Dr. Jackson’s supervision would be one appropriate service which could identify his needs on an on-gong basis and have in place appropriate plans to meet his needs.” [CB 13.1] and “Mark told me that he recognised he needed help. I agree with others that his ability to maintain his commitment to rehabilitation will present challenges, but I do not believe that this is sufficient to make it necessary to deviate from the view that he should have exposure to residential rehabilitation. In my view, his difficulties will not easily be addressed by his remaining in his home situation and attending a range of un-connected services, each addressing individual needs.” [CB 13.2 ]

and

[34]Dr. Moffat again examined Mark Taylor on 19 July 2004 and produced a further report dated 2 August 2004. In that report he stated: “At least in the first instance he would require twenty-four hour support. Unless there is a substantial change in his mental state, it is difficult to see this need reducing. His mental state may however be amenable to treatment sufficient to allow some reduction in care hours in the future.” [CB 14.13]

[35]In relation to Mark Taylor’s relationship with Stacey Duncuft he said: “Unfortunately it has to be recognised that this relationship, often under strain, may not endure. This will have an adverse effect on Mark Taylor’s mental state and an increase in the level of support that he requires from outside.” [CB 14.13]

[36]He said that: “In my view planning for Mark Taylor’s future needs to recognise the likelihood of occasional crises, the loss of significant relationships or care workers, and the birth of a child being immediately obvious.” [CB 14.13]

[37]Dr Moffat next examined Mark Taylor in March 2006 and produced a report dated May 2006. In that report he commented on in-patient rehabilitation and stated: “Mark Taylor’s brief stay in a residential facility was compromised by his concerns about his relationship which were current at the time. It appears that this, more than any other single factor, adversely affected the benefit that he obtained from the period in residential rehabilitation but it seems likely that this has caused him to have long-term doubt about the potential usefulness of any further in-patient rehabilitation (this should not be taken as suggesting a view that in-patient rehabilitation is required at the present time)” [CB 14.13]

[38]He then concluded: “ There appears to be a residual conflict in the views as to how his rehabilitation should be taken forward. My view is that he is as likely to make progress with long-term support and occasional rehabilitation inputs as he is by a more intensive period of simultaneous multi-disciplinary inputs which his level of fatigue would, in my view be likely to limit.” [CB 14.13]

[39]In summary, Dr Moffat had doubts about in-patient rehabilitation but appeared to favour 24 hour support with occasional rehabilitation inputs and that the number of care hours might reduce on further treatment. He emphasised the importance of planning for occasional future crises.

[40]Dr Cumming saw Mark Taylor on 11 August 2003 and produced a report dated 2 October 2003 setting out his opinion. In a letter of 18 July 2005 he commented on reports produced by others and said that, from his understanding of the situation he agreed with the Nursing Report provided by Ms. Maggie Sargent dated 25 May 2005 which recommended 24 hour care.

[41]In a supplemental report dated 27 April 2006 he noted that the provision of “buddies” had allowed a greater structure to be placed into Mark Taylor’s life and that it would appear that this was having a beneficial effect. On 1 June 2006 Dr. Cumming stated that he had now reviewed the current situation, in particular the fact that Mark Taylor was living independently with his girlfriend. He said that he wished to resile from the opinions expressed in his letter of 18 July 2005 and that he no longer supported the views expressed by Ms. Sargent in her report of 25 May 2005.

[42]He commented on the report of Ms. Conradie dated 2 June 2006 and an updated report of Maggie Sargent of 18 July 2006. He stated:

“I note Maggie Sargent’s report, page 5 paragraph 4, where she says ‘...but an allowance for a full 24 hour care regime would be necessary if Mark’s partner were to leave him or not be able to look after him’. With that I could not agree. He currently spends Saturday on his own when Stacey is at work, and does not appear to require any form of extra care at that time. Although he sleeps poorly, waking up to three times a night, I do not believe that he requires 24 hour care Further on page 5 of Maggie Sargent’s report, at the end of the first paragraph she notes “He cannot go out on his own because of the risk he will get lost”

. This does not rest well with the fact that he attends Central Manchester to see Dr. Perry-Small and will go to see his mother and his friends. I would agree with Gillian Conradie that with time the level of support will decrease, but he will probably always require a degree of support.” [W CB 53.2]

[43]Dr Cumming’s view changed from a 24 hour care regime to a smaller level of care, decreasing with time but always requiring some level of support.

[44]In the Joint Statement, Dr Moffat and Dr Cumming agreed that the present home based rehabilitation and case management should continue and its duration would depend on the success of his continued rehabilitation. The present support worker regime provided for 8 hours per day for 5 days per week, a total of 40 hours a week, together with input from Stacey Duncuft and Jane Vose. The experts stated that Mark Taylor required support workers experienced in dealing with brain injured patients. On the question of changes necessary if the relationship with Stacey Duncuft ceased, they agreed that the need for case management would increase but there was disagreement on the care regime. Dr Moffat thought that 24 hour care might be needed whilst Dr Cumming did not. He thought that easy access to case management in a crisis would be appropriate.

[45]At the hearing Dr Moffat stated that he had seen Mark Taylor on 7 December 2006. He identified two particular aspects of behaviour which derived from the frontal lobe injury: impulsivity and aggression. He said that Mark was unable to read other people’s expressions and emotion and that Mark had no safety measures to make him back-off from trouble. He added that a structure of support and rehabilitation provided the keystone to success in improving Mark’s position in the community.

[46]He said that he had changed his view in the light of the recent experience of Mark Taylor’s behaviour. He thought that a care regime was required which provided for a support worker to be present in Mark Taylor’s company during the evenings which he regarded as a period when Mark Taylor was likely to fall into mischief. He said that the need for admission to in-patient care was still an open question. The December Incident in isolation would be a drunken escapade but Dr Moffat considered that it was such episodes of behavioural disturbance that had to guide his view.

[47]Dr Cumming agreed that given the present circumstances, some increase in the support was necessary to cover into the evenings but he did not think that it had to be 24 hour cover. He accepted that at times of crisis, such as Stacey Duncuft leaving, there would need to be an increase. However, he considered that with appropriate support after the crisis had passed Mark would be able to reduce the amount of care to 8 plus hours/day and might manage with 2 hours/day of support in a few years time. Consultant Psychiatrists

[48]Dr Alun Jones (as I shall refer to him, to differentiate from Dr Aidan Jones) was instructed by the Claimant and Dr Hay was instructed by the Defendant. Dr Alun Jones is a consultant with forty years of experience, particularly in psychological trauma and in young people with behavioural and personality problems. Dr Hay is currently an honorary consultant psychiatrist at the University Hospital of South Manchester.

[49]Dr Alun Jones examined Mark Taylor on 9 October 2003. In his reports dated 4 April 2004 he referred to comments by Dr. Aidan Jones and Dr. Moffat and says that he agrees that long-term residence at TRU is imperative. He said that in his own experience in dealing with patients who have suffered head injury and consequential behavioural change, he had seen the benefit of long-term structured consistent care.

[50]When Mark Taylor left the TRU, Dr. Alun Jones wrote to say that: “Now that he has left TRU there must be immediate provision of alternative and constant care in the home. The risk to those around him is very great. There must also be urgent provision of specialist services such as Neuropsychologist and Occupational Therapy. There must be support worker cover on a 24 hour basis. He sleeps badly and could be restless and a hazard at night.” [CB 17.2, para (9)]

[51]On 24 August 2004 Dr. Alun Jones wrote a further report after an examination on 21 July 2004. He said in relation to future care needs: “Mark must have twenty-four hour care. His volatility is at present fluctuating and unpredictable. If an incident occurs where he is truly violent to his girlfriend Stacey, there could be serious hazard and this is not a risk which could be tolerated in any degree. Mark requires a full-time twenty-four residential care package for him in his home. Stacey is the biggest asset in Mark’s life now and extremely important to him. If he were to lose her his management would be even more difficult and his mental state and his behaviour would very likely deteriorate. On the other hand it has been recognised that he tries her to the extreme and may well lose her and this is a contingency which must be recognised and anticipated.” [CB 18.9 para (49)]

[52]He again examined Mark Taylor on 19 January 2004 and reported on 23 February 2005. He concluded that: “Overall the move to the new interim accommodation and the therapeutic input by Dr Aidan Jones and the O.T. support have all contributed to better containment of Mark’s damaged state and to lessening his volatility and violence. The space available, although clearly far better, still does not enable the input of care and the practical activities which I think would further enhance his quality of life and lessen disturbed behaviour. Overall the additional reports, and the response to the house move and the therapeutic input by Dr. Aidan Jones, confirm my previous opinions and recommendations” [CB 20.5]

[53]On 4 June 2006 Dr Alun Jones again reported on Mark Taylor, having examined him on 24 April 2006. He said that : “The treatment which he is currently receiving is providing a stable structure and is inculcating better habits and patterns. In the intervals when that support has been absent, however, the basic handicaps have become very evident and it is clear that there is no question of his being able to survive unsupported. If the present situation did not continue and if he lost the environment and support which he presently experiences, then I believe that the behavioural problems would escalate to such a degree that there would be crisis events which would inevitably lead to institutionalisation. It is imperative that his current management should continue.” [CB 21.3] and “If his girlfriend Stacey leaves it would become immediately imperative that Mr Taylor had 24 hour domestic care. It would be totally impossible to leave him on his own.” [CB 21.8]

and

[54]Dr Hay first examined Mark Taylor and reported on 30 July 2003. In a letter of 29 September 2003 he said that considering all the available evidence, he would support the suggestion of an initial period 16 weeks at TRU. He said “I do not think there would be any need for a residential stay of longer than 16 weeks and if [Mark Taylor] did not agree to be admitted then I would recommend arrangements for a structured rehabilitation to be organised for him from home.”

[55]Dr. Hay again examined Mark Taylor on 22 September 2004 and in a report dated 24 September 2004 noted that Mark only attended TRU from January to May 2004. He said :

“I cannot emphasise too strongly that further rehabilitation should now be arranged for him from home.”

[56]He said that decisions as to whether Mark Taylor should have 24 hour support were premature but even so he said that he did not see the need for night time care as long as there was an on-call facility.

[57]Dr. Hay commented on further information in letters of 23 May 2005 and 4 July 2005. In the latter letter he commented on suggestions that Mark Taylor should have twenty-four hour support. He said:

“It would I think be reasonable to commence any package with 24 hour supervision if for any reason Mr. Taylor’s girlfriend or mother was not available but I continue to query whether there will be a long-term need for night-time care as there was an on-call facility.”

[58]In a report dated 5 April 2006 Dr. Hay commented on a further examination on 4 April 2006. In that report he said : “He will need a long term support programme to maintain and consolidate the gains that have been made because without constant prompting he will relapse once again in to an apathetic and demotivated state. However, on clinical grounds I do not see the need for 24 hour care and remain of the view that night care is unnecessary.”[CB36.3]

[59]At the hearing, Dr Alun Jones emphasised his view on the need for 24 hour care. He was concerned at the risk that Mark would offend and be involved in serious trouble. He regarded it as essential to have 24 hour care so that there was a reliable sentinel in respect of Mark’s behaviour. In the long term the manifestations would change and the needs would change but he was concerned at the resort to alcohol which, with a head injury, gave a risk of violent behaviour.

[60]In his evidence before me, Dr Hay accepted that his views had developed and that he viewed Mark’s position as more serious over time. He thought that in the short term Mark would need 24 hour care for as long as it took to resolve the current crisis and that this would be needed for probable future crises in the future. He thought that a residential unit would be a retrograde step. He thought that in the long term the support would be 8 hours/day for 5 days if the relationship with Stacey Duncuft continued and for 7 days if it did not. He did not think that the present accommodation was suitable.

Clinical Neuropsychologists

[61]Dr. Aidan Jones was instructed by the Claimant. Dr Huddy was instructed by the Defendant. Dr Aidan Jones is the lead clinician for the Traumatic Brain Injury Service for the Northamptonshire Health Care NHS Trust. Dr Huddy is a consultant with the Cheshire & Wirral Partnership.

[62]Dr Aidan Jones had first seen Mark Taylor on 28 June 2003. In his first report of July 2003, he stated: “Mr. Taylor is a vulnerable individual at great risk due to the cognitive and emotional legacy of his accident. He has great difficulty regulating his own behaviour and presents as uncomfortable in social situations. His condition is likely to deteriorate if he is not offered immediate residential assessment and treatment. Although, I do not believe that his neuropsychological condition will now substantially improve, his ability to develop coping strategies for his cognitive complaints could improve if his mood state was more stable. He needs urgent neuro-psychiatric review and structured daily activity to give him purpose.” [CB4.11]

[63]Dr. Aidan Jones next saw Mark Taylor on 9 July 2004 after he had “disengaged” from the residential rehabilitation at TRU. Among the recommendations in that report, he concurred with the view of Dr. Alun Jones that Mark currently required 24 hour support. He said that “He suffers sleep disturbance and would, in my opinion, be vulnerable during the night.”

[64]By October 2004 a specialist treating clinician had not yet been found for the intensive psychological input which Dr. Aidan Jones had recommended, given Mark Taylor’s cognitive deficits and mood disturbance. As a result, as stated above, Dr. Aidan Jones commenced treatment of Mark on 12 November 2004. At that stage there were two concerns: first, accommodation for Mark and his family and, secondly, his morbid jealousy and somewhat obsessive behaviour regarding Stacey Duncuft. Dr. Aidan Jones reported on positive progress in a report dated 1 March 2005 but stated that he believed the progress was unsustainable without meaningful occupation of Mark Taylor’s time, set up and co-ordinated through his case management. In the absence of highly skilled and experienced support work, he recommended more case management input. He envisaged that “4 hours contact over a six week period be allocated to set up daily and weekly schedules of domestic, educational, supported vocational and leisure activity”. Dr. Aidan Jones also concluded that accommodation should be found for Mark Taylor and his girlfriend to have privacy.

[65]Dr. Aidan Jones then conducted a follow-up examination and produced a report dated 1 June 2006. He considered that Eddie Bishop’s involvement as a support worker had significantly reduced the risk that Mark posed to himself and others. He regarded this as a “considerable achievement” for a person with Mark Taylor’s condition.

[66]In relation to support he said: “Whereas his current care support appears to largely meet his needs he is likely to need increased support if his personal/interpersonal circumstances change. If the relationship with his partner ended it would likely induce a catastrophic reaction. Under these circumstances he would require a considerable increase in his psychological and care support.” [CB11.7]

[67]He added: “I would strongly recommend that Mr Taylor’s current level of rehabilitative care continue for the foreseeable future. Any suggestion of a reduction needs to be tailored specifically to an ongoing risk assessment process and formal assessment from an appropriately qualified specialist. I would recommend quarterly neuropsychiatric review.” [CB11.7]

[68]Dr. Aidan Jones prepared a further report dated 29 November 2006 to review Mark Taylor’s psychological status on the basis that the relationship with Stacey Duncuft was breaking down. He saw Mark on 25 November 2006. Dr. Aidan Jones said that: “Whilst Mr. Taylor has improved in terms of his self confidence there is an emerging machismo and negative emotional attitude towards women as evidenced by his attitude towards sex, fidelity and gender roles in the domestic environment. This needs addressing though his treatment plan.” [CB 74.5]

[69]He said that if the relationship with Stacey Duncuft were to fail “I do not believe that his emotional state could be managed in the community (in the first instance)… I would suggest a period of in-treatment residential rehabilitation at an appropriately resourced and specialist facility.” [CB 74.5]

[70]Dr Huddy saw Mark Taylor on 23 September 2003 and reported on his condition on 16 October 2003. She saw him again on 25 January 2005 and produced a report dated 18 February 2005. Dr Huddy provided further comments by letters dated 3 March 2005, 17 June 2005 and 19 July 2005. She provided a supplemental report dated 30 August 2005 in which she commented on the report of Miss Conradie and said that she agreed that Mark Taylor did not need overnight supervision.

[71]Dr Huddy provided further comments in a letter dated 17 October 2005. She repeated what she had stated in earlier reports that the Community Mental Health Team should deal with a care plan for Mark Taylor. She stated: “My overall impression of the rehabilitation programme here, is that it is inconsistent with accepted rehabilitation care plans. There is no evidence of multi-disciplinary evaluation here, no objective evidence of progress, and weakness intrinsic in the care plan itself” [CB 43.3]

[72]In a report dated 15 May 2006 Dr. Huddy commented on a further reassessment made by her on 2 May 2006. In that report she agreed that Mark Taylor: “is a vulnerable individual and that future neurobehavioral therapy would be essential, i.e. if his girlfriend left him or his mother became challenging” [CB 44.5] and said: “At the moment Mr Taylor could be regarded as a Vulnerable Adult requiring Advocacy within the Community Provider Services. I feel it is necessary to point this out, as Mr Taylor has undergone acceptable rehabilitation at the TRU and thereafter had some many changes of provider and support workers, that part of the difficulty in assessment at the moment is due to the latter. This inconsistency has continued over the last year with some stability under Dr Bamborough, and the helpful report from her. There is now no continuing rehabilitation. I gleaned from the notes that Dr David Manchester is being requested to help, but even so it is very late in the day to assume that he will be able to put forward a convincing package.” [CB 44.6] and said:

[73]Dr Huddy made some further comments in a letter dated 20 July 2006 but added nothing of importance on the care issue.

[74]By the time of the hearing and the events of the incident Dr. Aidan Jones had further developed his opinion. He considered that the primary problem was the difficulty with Mark’s impulse control in all aspects of his behaviour. He thought that the current position was one of crisis and that Mark should go into residential rehabilitation care for a minimum of 3 to 6 months because his difficulties required a complex package of care. He might need to be re-admitted as crises would come intermittently. He said he now thought that otherwise Mark required support for 24 hours/day the next 35 years. So far as accommodation was concerned he did not consider that the current accommodation was appropriate. There was a need for an older style property with larger rooms and solid walls so that he could move away from other people.

[75]Dr Huddy thought that Mark would require support 24 hours/day in the short term but that after the crisis had passed then he could revert to 8 hours/day as before for 9 months to 1 year. After that the support could perhaps drop to 20 hours a week with 4 or 5 hours at weekends, if the support package were successful. In 10 years time she saw him needing, say, 10 to 14 hours/week.

Care Experts

[76]Ms Maggie Sargent, an expert on needs for care and general support, was instructed on behalf of the Claimant and Ms Gillian Conradie, an expert in priority hospital and community based care, was instructed on behalf of the Defendant.

[77]Ms Sargent saw Mark Taylor on 27 July 2004. In her report dated August 2004 she stated in relation to future care needs: “I should like to see input from an experienced support worker before I comment on Mark’s long-term care needs. He needs a period of rehabilitation in his own property and to have 24 hour care at first to motivate him, and then a monitor should be available of his needs. Clearly, there is some potential for improvement but I note in particular the report of Dr Jones, which states that Mark needs 24-hour support, and I recommend that he should be reviewed after six months in his property. I have provided a preliminary costing for 24-hour care…. I have also allowed for a case manager to recruit and train carers to set up and oversee the regime.” [CB 28.7]

[78]She provided an updated report dated July 2006 and stated: “The current arrangement will continue for the foreseeable future, but an allowance for full 24 hours care regime would be necessary if Mark’s partner were to leave him or not be able to look after him. I reiterate that I am concerned that he may need help sooner rather than later. When I visited Mark, he was planning a holiday in the country, and I understand that his sister may act as his carer, but he certainly cannot go on his own and in future he will need more help for holidays.” [CB 30.5]

[79]Ms Conradie provided a report dated March 2005 after assessing Mark Taylor on 28 February 2005. She set out a proposal for care and support for 12 months but considered that further information was necessary before further recommendations could be made.

[80]In her report of May 2006 Ms. Conradie looked at a proposal for care and support for 30 months. She concluded that if Mark Taylor were living with his partner a continuing input from a support worker of 2 hours/day for 5 days a week could be necessary. If he were living alone, she concluded that he would need 56 hours/week, an average of 8 hours a day. She allowed for 60 hours/year of case management.

[81]At the hearing Ms Sargent helpfully provided costings on a number of bases and accepted that there was a large division between the medical opinions in this case. Ms Conradie said that Ms Sargent’s figures were broadly within the same costings she would use. She accepted that there was a need for more support with 24 hours/day support in the short term because of the crisis. She thought that the support could revert to 14 hours/day with proper support.

The proper approach to future care needs

[82]The proper approach to be adopted in assessing the needs of a claimant in these cases has recently been considered by the Court of Appeal in Sowden v Lodge

[2004] EWCA Civ 1370

. In that case there was a question of the extent to which the claimant’s needs could be provided by the local authority, which is not an issue here. However, in relation to the general approach Pill LJ, at para 38, adopted the test referred to in the previous decision of the Court of Appeal in Rialas v. Mitchell (1984) 128 SJ 704. In that case, Stephenson LJ stated that “what has to be first considered by the court is not whether other treatment is reasonable but whether the treatment chosen and claimed for is reasonable”. O'Connor LJ stated:

“There may well be cases in which it would be right to conclude that it is unreasonable for a plaintiff to insist on being cared for at home, but I am quite satisfied that this is not such a case, and once it is concluded that it is reasonable for the infant plaintiff to remain at home then I can find no acceptable ground for saying that the defendant should not pay the reasonable cost of caring for him at home, but pay only a lesser sum which would be appropriate only if it was unreasonable for him to live at home and reasonable for him to be in an institution.”

[83]In Sowden the judge at first instance had applied an objective test based on the best interests of the claimant. At para 38 Pill LJ said “there is a difference between what a claimant can establish as reasonable in the circumstances and what a judge objectively concludes is in the best interests of the claimant. In this context paternalism does not replace the right of a claimant, or those with responsibility for the claimant, making a reasonable choice. It was when dealing with a somewhat different argument but the objective approach was rejected in the Rialas case, per Sir Denys Buckley.” At para 94 Longmore LJ said:

“I agree with Pill LJ that the correct question to be addressed in relation to the care element is ‘what is required to meet the claimant’s reasonable needs?’ ”

[84]I accept that the test therefore, as submitted by Mr Sephton, is to consider what course the claimant proposes to adopt and to consider whether it is reasonable having regard to the nature and extent of the claimant’s needs, not to consider objectively what approach is reasonable. However, the logical way of approaching the issue must, in my judgement, be to make findings as to the nature and extent of the claimant’s needs and then to consider whether what is proposed by the claimant is reasonable having regard to those needs.

The nature and extent of the Mark’s needs

[85]Mark suffered his brain injury when he was 14. He is now 22. He has a normal life expectancy.

[86]Some guidance as to Mark’s needs can therefore be gained from considering the past experience. I am conscious that the record of the past experiences depends upon the complete picture being reported and the December Incident indicated that the reporting could be unsatisfactory. The main features of the past experience which are relevant to his needs are as follows:(1) There has been a frequent resort to violence as between Mark and Stacey Duncuft.

(2) Mark regularly consumes alcohol. There was evidence that he often drank at his friends’ houses and there is the December Incident.

(3) Mark cannot properly interpret or react to other people. There was an incident when someone accidentally bumped into him in a shopping centre and it was only the intervention of the support worker which prevented an escalation to violence.

(4) Mark makes inappropriate sexual comments or actions. He has shouted inappropriate comments at passers-by and touched the bottom of a girl he did not know.

(5) Mark acts inappropriately in situations making it more likely that others will become aggressive towards him.

(6) Mark overreacts and becomes unnecessarily aggressive. There was an incident when he could not wait in a queue in a petrol station causing an incident when he left, possibly without paying.

[87]In context, I consider that the December Incident was a manifestation of one or more of these features in combination. It indicates that there is a real risk of harm being caused by offending behaviour unless appropriate support is given. There were also various factors which, I consider, also led to the December Incident. First, there was the absence of Eddie Bishop who had provided an excellent level of support and there was the change in support workers. Secondly, there was a period during which he did not have any proper neuropsychological support when Dr Perry-Small had left and Dr Priem had not yet commenced. Thirdly, there were problems with Stacey Duncuft and finally there was the general pressure of the litigation.

[88]It is evident that with proper support Mark’s position can be improved. There was reference by Mr Methuen to what has been described as a golden period from about mid 2005 to about mid 2006. I consider that the period does evidence the positive effect of proper support in Mark’s case. The records show that Mark was making real progress, could carry out many tasks independently and make progress. That progress was, I consider, only achieved by the level and type of support which was being provided. Equally, however, even with such support, Mark’s underlying behaviour was frequently unacceptable. There were consistently over a long period incidents or violence or aggression particularly towards Stacey Duncuft.

[89]As to future care needs I consider that, on the evidence, the following matters emerge as factors which should be borne in mind:(1) Mark’s underlying clinical condition will not improve but with proper support he has shown himself able to cope with and, to a limited extent control, the inherent difficulties in his condition.

(2) Mark’s alcohol consumption is currently a problem and is likely to remain so. The combination of alcohol and his brain injury makes his behaviour even more unpredictable and the December Incident clearly evidences the risks which arise in such circumstances.

(3) There are concerns with Mark’s relationship with Stacey Duncuft. Even if they remain together, this will not prevent there being crises such as the December Incident. Equally, past evidence shows that there will be crises within that relationship from time to time, if it continues. If the relationship ends, that will itself cause a crisis. However, it seems likely that in such circumstances he would form other relationships which themselves are likely to be difficult. I consider that Mark is likely to have a number of crises during his life which will arise either out of the existing relationship with Stacey Duncuft or out of other relationships.

(4) The crises are likely to require a greater intervention and to last for significant periods. I see no possibility in providing the support in those periods except generally on the basis of 24 hour/day support.

(5) On the basis of the experience with TRU, Mark is unlikely to accept residential rehabilitation willingly. However, I consider that in certain times of major crisis, which are likely to occur, residential rehabilitation is likely to provide the only way of dealing with the situation.

(6) To provide 24 hour/day support will mean that the support worker will have to be present in the same house as Mark, overnight. For that to happen and yet to give Mark and Stacey Duncuft, or any other person with whom he has formed a relationship, the necessary privacy and space, I consider that larger and more solidly built accommodation will be needed.

(7) I do not consider that Mark will be able to exist without support of at least 8 hours/day in the long term and this will have to be on the basis of either 5 days/week if he is in a relationship or 7 days/week if he is on his own. He will not be in employment and whilst he may take on therapeutic employment or be involved in other activities such as the gym, I consider that he will need significant support during the day or in the evening. Whilst various predictions were put forward which indicated that he might only need 2 hours/week, I consider that this does not provide a sufficient allowance to overcome the risk which can be seen at present.

(8) Mark will need support in the form of therapy by intervention from neuropsychologists, psychiatrists and physiotherapists.

The reasonableness of the course proposed on behalf of Mark

[90]In summary, what is proposed on behalf of Mark is as follows:(1) The implementation of support on a 24 hour/day basis.

(2) Arrangements for in-patient treatment in times of crisis, such as the possible breakdown in the relationship with Stacey Duncuft.

(3) Continuing case management by Marian Hooson.

(4) Support from Professional Therapists.

(5) Accommodation in the form of a larger property. 24 hour/day care

[91]The main element on which views differed was the need for 24 hour/day care. In assessing the reasonableness of the need for 24 hour/day care, there are two aspects which have to be considered:(1) Is it reasonable for 24 hour/day care to be required now?

(2) Is it reasonable for 24 hour/day care to be provided into the future?

[92]On the first aspect, the evidence of the experts became more consistent during the course of the hearing, with all experts except Dr Cumming concluding that 24 hour/day support was currently necessary. I did not feel that Dr Cumming’s views were formed on a proper assessment of the situation and I was concerned that he had, in the past, readily accepted 24 hour/day care without proper consideration and was now unable to concede that it applied despite the evidence. In times of crisis, such as the December Incident, even if Jane Vose or Stacey Duncuft could, by default, provide a level of gratuitous care, it was imperative that Mark had independent support workers who could be present, act effectively and properly monitor Mark’s behaviour. It is clear that, at present, 24hour/day support should be provided for Mark. I also note that this was the conclusion of the telephone conference call by Mark’s care team held on 1 December 2006, even before the December Incident and that view is, in my judgement, reinforced by subsequent events.

[93]On the second aspect, I have heard much and varying evidence on what the future support should be. At one end of the scale Dr Aidan’s Jones gave evidence that his current view was that the 24 hour/day support should last for 35 years. Dr Cumming, on the other hand, saw the support dropping to 2 hours/day in a few years time.

[94]Mr Methuen submits that, in determining the issue of the Mark’s reasonable requirement for support, I should arrive at a balance between providing a reasonable level of support to manage the risks whilst not imposing so much support that it stifles his freedom and independence and so prevents further improvement in his daily functioning. He points out that, short of permanent incarceration in a secure residential unit, the risks cannot be completely eliminated and too much intervention could be counter-productive.

[95]Mr Methuen accepted that the evidence ranged from 24 hour/day care indefinitely down to care of 2 hours/day being achieved in the relatively near future. He submits that I should adopt a position somewhere between those two extremes.

[96]Mr Sephton submits that, as most of the experts now agree that Mark requires 24hour/day support for some period, those experts must acknowledge that the risks can only be safely managed by constant support and supervision. He accepts that the risks cannot be wholly eliminated. He questions what would change to make the risks manageable by less support and supervision.

[97]At the centre of the problem is the management of risk and, in particular the risk that Mark, or someone else, will be seriously injured by Mark’s behaviour unless he is provided with the necessary level of support. In my judgement, currently that risk reasonably requires 24 hour/day support for a period until that level of risk has been reduced. In addition, 24 hour/day support is likely to be required again at various intervals throughout Mark’s life when crises will inevitably occur. The risk will not be reduced by any change in Mark’s clinical condition but will be reduced by receiving a level of support and intervention which controls that behaviour.

[98]I have carefully considered the views of Dr Aidan Jones and Dr Alun Jones on the need for 24 hour/day care in the longer term and I am aware of their experience in this field. However, I consider that the December Incident must be seen in the context of Mark’s previous behaviour and that the risk can be brought to acceptable levels by prolonged periods of 24 hour/day care so that at times and in the longer term the level of care can be reduced. Whilst I consider that it is reasonable to allow for 24 hour/day support for a substantial period of the time in the next few years, I have come to the conclusion that the provision of 24 hour/day care constantly until Mark is in his late 50s is not reasonable on the evidence. However, neither do I think that 24 hour/day care for a comparatively short period, as suggested by Dr Hay and Dr Huddy, would provide a reasonable level of support to meet Mark’s needs.

[99]I consider that there will be times where the support and intervention will have sufficiently reduced the risk so that, for periods, Stacey Duncuft or another person with whom he has a relationship, will be able to provide some necessary support or further in the future it is likely to be possible for him to have no support during parts of the day or night. However on the basis of the risks identified above and dealt with in the evidence of Dr Moffat, Dr Aidan Jones, Dr Alun Jones and Dr Hay, I consider that there will be substantial periods of support on a 24 hour/day basis. In particular, Mark will need to learn to control his increasing dependence on alcohol which is a very substantial problem with the underlying effects of his brain injury. He has also shown himself to have sexual urges which, given his lack of control mechanisms and his sleeplessness pose real risks, particularly if he is not in a relationship and at nights. There is also great concern at his violent and aggressive behaviour. All of these risks can, in my judgement, only be properly dealt with by proper support on a 24 hour/day basis, both initially and for prolonged times in the future during periods of crisis. There will, though, be periods, particularly in the medium to long term when the appropriate support will be 16 hours/day or 8 hours/day. Thus, whilst I do not consider that it is reasonable for support to be provided permanently for 24 hours/day, I consider that a substantial provision for 24 hour/day support is necessary and that a provision for less than 8 hours/day would reduce the support to less than what is reasonable.

[100]I therefore propose that the sensible way to structure the allowance is to base it on the use of periods using the overall multiplier which is agreed at 30.79. The appropriate allowance for the substantial provision of care on a 24 hour/day is to use a multiplier of 15, with a multiplier of 10 for care at 16 hours/day and the balance of 5.79 at 8 hours/day. This reflects my view that the claimant’s proposal for 24 hour/day care is reasonable as the general level of care for a substantial period in the future but that the support which he will be given will enable the general level of support to reduce to 16 hours/day and to 8 hours/day for significant periods. I think that it is more likely that 7 day support will be necessary throughout and that this is a reasonable basis for the claim. In-patient care

[101]The other element on which views differ is the need for in-patient treatment. Dr Aidan Jones considers that Mark needs such in-patient care for a period of 3 to 6 months. Dr Alun Jones was supportive of the need for such care.

[102]Mr Methuen submits that in-patient care would be a retrograde step and that, rather, the 24 hours/day package should be put in place now. He relies on this being the view of the majority of experts. He submits that Mark’s previous in-patient stay at TRU was unhappy and that no local institution at which in-patient care could be provided has been identified.

[103]In addition, though, Mr Methuen accepts that it is conceivable that Mark may require in-patient care at some time during his lifetime and that the Court may wish to award a contingent sum for that risk.

[104]Mr Sephton submits that the reasons given by Dr Aidan Jones for recommending in patient treatment are compelling: Mark requires time out from his present predicament; he needs a period of intensive therapy and occupation; his support team requires time to regroup and time is required to obtain appropriate accommodation. Mr Sephton submits that the previous unsuccessful admission to TRU failed because TRU did not take proper account of Mark’s needs, particularly the needs for immediate treatment and Mark’s need to be reassured about Stacey Duncuft. He points out that Dr Alun Jones, having heard Dr Aidan Jones, supported in-patient treatment.

[105]Mr Sephton submitted that were no sustainable objections to in patient treatment based on the suggestion that Mark’s re-integration into the community might cause problems. He relied on the evidence of Ms Sargent, who explained that residential units were well used to accommodating and involving community-based support workers prior to the patient’s discharge.

[106]I consider that Mark’s needs are more reasonably met by home-based care for 24 hours/day. His experience of attendance at TRU, whilst successful to some extent in anger management, demonstrated that in-patient care must be treated more as a treatment of last resort rather than the preferred method. When the problems surrounding Mark’s behaviour in December 2006 are analysed, I consider that the major problems were related to lack of support or lack of continuity of support.

[107]I am also concerned that, whilst it is possible to arrange a degree of continuity of support, if places are available at certain in-patient facilities, this is most probably the exception rather than the rule. I see the reasonable way of meeting Mark’s needs being met by provision of sufficient support which was lacking in December 2006.

[108]However, having said that, I consider that the proposal that some allowance should be made for in-patient care is a reasonable one. If the problems in December 2006 or other problems were to occur in the future then I consider that a period of in-patient care is likely to be needed at some time. Equally, certain problems in Mark’s life may be better treated in that way. I do not however believe that a 20 week period every 5 years is a reasonable reflection of those needs. Rather, I consider that a reasonable allowance for those needs would be a period of 2 weeks every year, equivalent either to 10 weeks every 5 years or 20 weeks every 10 years. Case Management.

[109]There is no issue about the principle of case management and the real difference between the parties relates to the amount and therefore the cost of case management.

[110]Mr Methuen accepts that the requirement for case management is unlikely to fall below the figures given by Ms Sargent and that this would be generous provision for the cost of case management in the light of Dr Moffat’s evidence that the requisite case management will decrease in proportion with the decline of the necessary support work as the Mark grows older.

[111]Mr Sephton submits that it is common ground that Mark’s case management needs will increase, at least, in the short term and that the lower figure proposed by Ms Sargent is based on a view as an expert without the hands-on experience of dealing with this difficult case which Marian Hooson has. He points out that no criticism has been addressed to Marian Hooson’s case management and no suggestion was put to her that the work she did was excessive.

[112]Mr Sephton also points out that, whilst Dr Moffat thought that the requirement for case management might decline in Mark’s old age, Ms Sargent expressed the view that if support worker input decreases, the need for case management frequently increases as the case manager is on duty 24hours/day and must deal with any problem that arises in the absence of support workers.

[113]I consider that the input of Marian Hooson over the past year is a useful guide to the future but that with more support and more continuity of support there should be a reduction in the requirement. I do not believe that the allowance can be built up from scratch without taking account of that past experience. Professional Therapists

[114]The claim includes various sums for professional therapists.

[115]The MIB agrees the claim in respect of physiotherapy and psychiatric reviews. In relation to neuropsychological treatment, the MIB suggests that a reasonable provision would be 20 sessions a year. In relation to Occupational Therapy and Speech and Language Therapy, Mr Methuen submits that the claim was not dealt with in the evidence and was not in the revised schedule.

[116]Mr Sephton submits that in terms of neuropsychological treatment, Dr Aidan Jones gave unchallenged and uncontradicted evidence that 2hour/week was required. He submits that the need for other experts in Occupational Therapy and Speech and Language Therapy was endorsed by Dr Aidan Jones and that Ms Conradie supported the need for Occupational Therapy.

[117]I consider that sufficient neuropsychological input is essential to meet Mark’s needs and I believe that a reasonable allowance for those needs will be met by an allowance of 60 hours per year, equivalent to 2 hours/week for a period of 30 weeks a year. There will inevitably be weeks which will be missed or where input is thought unnecessary.

[118]I cannot, for the reasons given by Mr Methuen, make any assessment of the needs for Occupational Therapy and Speech and Language Therapy. Accommodation

[119]The claim for increased accommodation arises on the basis that Mark requires a larger and more substantial property to meet his needs. The claim is made assuming that he would have owned a smaller house, had this accident not occurred. Mr Sephton submits that Mark is entitled to recover the interest on the additional capital tied up in the house on the basis of the decision in Roberts v Johnstone

[1989] QB 878

, together with the costs ancillary to moving into and living in an appropriate property.

[120]He submits that Mark would have earned modest sums, as shown in the claim for loss of earnings and would probably have a lived in a modest property compared to that which he now needs. The claim is therefore based on interest at 2.5% per year on the difference in the two values, together with additional running costs, moving expenses and stamp duty etc.

[121]Mr Methuen accepts that Mark’s present accommodation is unsuitable in those periods of his life when his reasonable requirements dictate that a support worker lives in. He also accepts that Mark is sensitive to noise, that the walls of the present accommodation are too thin and that the proximity and size of the rooms would not allow him sufficient privacy if a support worker were present. It is accepted that it would therefore be more appropriate if he lived somewhere with thicker walls, with perhaps an extra room and an extra bathroom.

[122]However Mr Methuen submits that, on the available evidence it is not simple to translate that reasonable requirement into a hard figure. He refers to a lack of evidence on the rent currently paid at the moment and therefore the likely difference between that and what he will have to pay. As a result, he submits that the court should award a figure based on, say, £1000 per annum.

[123]I accept that, for Mark to be able to receive 24 hour/day support and have the necessary space and noise reduction for people with brain injury, a larger and more substantial property is needed. The premise of Roberts v Johnstone is that, where a claimant requires more expensive accommodation than would otherwise have been the case and that this is reflected by an allowance of interest on the difference in capital value. In principle whether a person buys or rents property should be a matter of choice. Given the generally low rate of interest adopted in these types of calculation, I do not consider that the calculation favours a case of purchase over rental or the other way round.

[124]I therefore consider that the way in which the claim is calculated is in principle correct. I have considered whether the fact that I have allowed for 24 hour/day care for a more limited period should affect the position. I do not think it should. Whilst I have structured the financial provision in that way, there are likely to be periods even when 16 hours/day or 8 hours/day applies when 24 hours/day is necessary. In such circumstances, I consider that the allowance should be permanent.

The award of damages to reflect those care needs

[125]The general basis upon which I have to act is set out in the well-known passage from the speech of Lord Blackburn in Livingstone v Rawyards Coal Co

(1880) 5 App Cas 25

at 39 being:

"that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation"

[126]I must also bear in mind that the award will be final and cannot be altered with the benefit of hindsight as Lord Scarman said in Lim Poh Choo v Camden AHA

[1980] AC 174

at 183 :

"The award [in any personal injury case], which covers past, present, and future injury and loss, must, under our law, be of a lump sum assessed at the conclusion of the legal process. The award is final; it is not susceptible of review as the future unfolds, substituting fact for estimate. Knowledge of the future being denied to mankind, so much of the award as is to be attributed to future loss and separate, in many cases the major part of the award, will almost surely be wrong."

[127]As I set out in more detail below, it is now possible to make a Periodic Payment Order (“PPO”), but neither the lump sum nor the PPO is susceptible of general review. The court must therefore do its best to assess now what costs the claimant will incur. Mr Sephton submits that I should be very cautious, bearing in mind that had this case been tried six months before it was, the evidence given and the views expressed by Dr Hay and Ms Conradie would have been very different.

[128]With those points in mind, I now set out the sums which represent the appropriate damages for the various heads of claim. I consider later to what extent the award should be in the form of a lump sum of PPO. The level of care

[129]I have held that the appropriate level of care should be 24 hours/day based on a multiplier of 15, with 16 hours/day for a multiplier of 10 and 8 hours/day for the balance of the multiplier.

[130]The relevant figures would therefore be, expressed as a lump sum:(1) 15 x £93,727 = £ 1,405,905

(2) 10 x £77,117 = £ 771,170

(3) 5.79 x £39,087 = £ 226,314 Total = £ 2,403,389 In-patient care

[131]The claim is based on an annual cost of 4 weeks per year at £1600 per week, being £6400 per year, making allowance for 24 hour/day care. The MIB provides a figure of 4 weeks at £2500 or £10,000 as a contingency.

[132]I consider that a figure of £3500 per year based on 2 weeks/year is appropriate, making allowance for the care regime which I have provided for. On that basis the overall figure would be equivalent to a lump sum of £107,765. Case management

[133]The claim is based on a figure of £30,000 per year which compares to the expenditure in the last year of £28,034.07.

[134]The MIB proposes that the cost of case management should be based on 150 hours or £13,000 in the first year and then 110 hours or £9,600 in subsequent years.

[135]I consider that the first year is likely to require input at the same level as in the past but that the provision can be reduced subsequently. Given the substantial provision of 24 hour/day care, I consider that the continuing figure should be £20,000 which would provide for about 230 hours on the figures provided. Professional Therapists

[136]The following costs are agreed:(1) One-off payment for physiotherapy at the age of 45: £599.00

(2) A periodical payment of £435 per year for physiotherapy (or £13,394 as an equivalent lump sum).

(3) A psychiatric review every quarter at a cost of £1,400 per year.

[137]In relation to neuropsychology, the claim is for Dr Priem at 2 hours/week which at £150 per hour gives £15,600 per year. The MIB proposes 20 sessions at £150 per session, being £3,000 per year. As set out above, I consider that 60 hours or £9,000 per year is reasonable.

[138]In relation to Operational Therapy and Speech and Language Therapy, I make no award, on the basis of the evidence before me. Accommodation

[139]The claim is based on the difference in the value of the houses being the difference between £87,000 and £275,000. I have reviewed the evidence and accept those values. At 2.5% this gives £4700 per year to which additional running costs of £23,093 (£750 per year) are added, together with £10,000 for stamp duty etc.

[140]The MIB made an allowance of £1,000 per year.

[141]As stated above, I consider that the claim is, in principle, correct and that, on the evidence, an allowance of £4700 plus £750 per year, together with £10,000 for stamp duty is reasonable.

The settlement of the remaining claims

[142]The following heads of claim were agreed between the Claimant and MIB on a full liability basis. Head of claim Amount General damages £125,000.00 Interest on general damages £11,388.00 Past earnings £50,000.00 Past care £280,000.00 Past transport £4,000.00 Past Miscellaneous £14,000.00 Past Court of Protection £36,000.00 Interest on special damages, less agreed interim payment credit of £33,000 £72,485.00 Future earnings £325,000.00 Future transport £37,500.00 Items lost or damaged £10,000.00 Prescriptions £2,305.00 Exceptional receivership items (see paragraph 39 of schedule of loss) £8,000.00 Total £975,678.00

[143]The parties also agree that the remaining receivership costs set out in paragraph 38 of the schedule of loss will be £13,634 a year on a full liability basis. There is an issue as the Claimant wishes to receive the award as a lump sum and not a Periodical Payment Order (“PPO”).

[144]On the basis of the evidence and the explanation provided by Mr Sephton at the hearing, I am happy to approve the settlement under CPR Part 21 in the figures set out above.

Lump sum or periodical payment?

[145]As I have stated, the court now has a discretion whether to award periodical payments. The claimant initially expressed a desire for a PPO but now requests a lump sum award for the following reasons:(1) Financial advice has been received from Mr Richard Cropper who has advised: (a) “Periodical payments are generally more suited to losses which are capable of being predicted with a high degree of accuracy, not only as to the annual sums, but also to the timing of any changes.” (b) That the only head of claim suitable for a PPO was care and case management. (c) That care and case management would only be suitable for a PPO if an appropriate index were applied.

(2) In relation to receiver’s costs, the claimant agrees with Mr Cropper that it is not suitable for a PPO. Furthermore, the evidence would have been that the costs are likely to be “lumpy” - heavy initially and tailing off; but subject to heavy involvement if the receiver/deputy must deal with some crisis.

(3) Mark’s history demonstrates that care is “lumpy” – the amounts and timing of the losses are not predictable and therefore there is a real possibility that Mark may need significant resources to deal with a crisis. As a result, if the award were not in the form of a lump sum, he would not have access to the necessary funds.

(4) There is present uncertainty about what index will be applied. If the outcome of this case were delayed until the issue of indexation is resolved, probably by a decision of the House of Lords, the litigation would be hanging over Mark’s head for years, which would not be satisfactory. If the outcome is that, on policy grounds the index to be applied is RPI, the claimant would, based on Mr Cropper’s views, not wish to have a PPO in any event.

[146]Mr Sephton also points out that there is a deduction of 25% on account of contributory negligence and submits that it is desirable to have the ability to spend the reduced funds where they are most needed, rather than have that ability constrained by a PPO.

[147]Finally, he submits that there is no proper evidence about the MIB’s reasons for desiring a PPO and, in any event, the MIB’s preference is not determinative and he relies on A v B Hospitals NHS Trust

[2006] EWHC 2833

[148]Mr Methuen submits that the MIB’s preference for a PPO is based on two reasons. First, a periodical payment is payable for as long as the Claimant lives he is therefore neither under nor over compensated.

[149]Secondly, the MIB refers to its status in relation to the United Kingdom’s obligations in relation to motor insurance under European law. Under the Second Directive (84/5/EEC) member states are required to make motor insurance compulsory and to “set up or authorise a body with the task of providing compensation… for personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation… has not been satisfied.” The United Kingdom performs its obligations under that directive by means of its agreements with the MIB.

[150]The members of the MIB are those insurers who underwrite motor insurance with the annual income of the MIB being based on a levy. Each year a report is obtained which estimates the MIB’s financial requirements in order for it to be able to pay claims in the following year. The members of the MIB contribute to the levy in proportion to the amount of motor insurance that each underwrites. Mr Methuen submits that, if the court were to award periodical payments, the cost of meeting the claim would be spread over a longer period and therefore the immediate cost to the insurer members and through them the insurance paying members of the public would be less.

[151]The relevant statutory provisions which give the court a discretion to award periodical payments are contained in Sections 2 and 2A of the Damages Act 1996. In summary:(1) Under s.2(1)(a) a court awarding damages for future pecuniary loss in respect of personal injury may order that the damages are wholly or partly to take the form of periodical payments.

(2) Under s.2(1)(b) a court must consider whether to make such an order when awarding damages for future pecuniary loss in respect of personal injury.

(3) By s.2A(1) the Civil Procedure Rules may require a court to take specified matters into account in considering whether to order periodical payments.

(4) Under s.2(3) a court may not make an order for periodical payments unless satisfied that the continuity of payment under the order is reasonably secure.

(5) Under s.2(8) an order for periodical payments shall be treated as providing for the amount of payments to vary by awarding damages for future pecuniary loss in respect of personal injury reference to the retail prices index (“RPI”) at such times, and in such a manner, as may be determined in accordance with Civil Procedure Rules.

(6) Under s.2(9) an order may include provision disapplying or modifying the effect of s.2(8).

[152]The relevant provisions in the Civil Procedure Rules are set out in Part 41.

(a) of the 1996 Act,

[153]The Practice Direction to CPR Part 41 provides at para. 1:

“The factors which the court shall have regard to under rule 41.7 include— (1) the scale of the annual payments taking into account any deduction for contributory negligence; (2) the form of award preferred by the claimant including— (a) the reasons for the claimant's preference; and (b) the nature of any financial advice received by the claimant when considering the form of award; and (3) the form of award preferred by the defendant including the reasons for the defendant's preference.”

[154]On of the main issues is the question of the appropriate index. This is an issue which was considered by the Court of Appeal in Flora v. Wakom (Heathrow) Ltd

[2006] EWCA Civ 1103

and by Swift J in Thompstone v. Thamside & Glossop Acute Services NHS Trust

[2006] EWHC 2904

[155]In Flora the Court of Appeal held that under s.2(9) of the 1996 Act there did not have to be exceptional circumstances before the court could modify or disapply s.2(8) of that Act.

[156]In Thompstone Swift J held that the RPI under s.2(8) of the 1996 Act should be modified under s.2(9) so as to provide that the payments were to vary “by reference to the 75thpercentile of ASHE occupational group 6115, published by the ONS, or to any equivalent or comparable occupational group which from time to time may replace the ASHE occupational group 6115 as the appropriate occupational group for home carers.”

[157]In A v. B at para 33 Lloyd-Jones J held that the form of award which best meets the claimant’s needs in respect of the provision of future care was a lump sum award. Having reviewed the evidence presented he decided that it was most unlikely that periodical payments linked to RPI would meet the future care costs.

[158]Mr Methuen submits that the method of overcoming the uncertainty as to the index is to make an order in the interim on the basis of the RPI and then provide that the index should be “Such index as is agreed by the parties or as is determined by the court at a future date”. He submits that in A v. B the only offer was on the basis of the RPI and that this provision would overcome that difficulty. On this basis, he submits, Mark would not lose out on the basis of any later decision of the House of Lords on this aspect.

[159]Mr Sephton submits that the question of the appropriate index is critical because any PPO could only be on the basis of an acceptable index. Until that is resolved there would be uncertainty over Mark’s claim and this factor should weigh against such an order.

[160]I have come to the conclusion that this is not a case where the cost of future care can be dealt with simply by either a lump sum or a PPO. In considering the form of the award which best meets the Mark’s needs, there are the following factors:(1) The sum awarded will be reduced by 25% for contributory negligence. Therefore a simple PPO would not provide the 24 hours/day care which I have found is necessary to meet his needs. Rather, a lump sum provision would provide a fund from which the PPO can be topped-up as necessary.

(2) The preference expressed on Mark’s behalf for a lump sum award is based essentially on the fluctuating care needs for Mark and on the current uncertainty of the index with the possibility that the RPI might be applied.

(3) I consider that the main factor is the need to deal with the requirement for fluctuating care. There is a need for Mark to have an underlying level of support throughout his life of at least 8 hours/day. There will, though, as I have found, be times when he will require 16 hour/day care and longer periods, particularly initially, where he will require 24 hour/day care. I consider that the underlying provision is appropriately dealt with by way of a PPO whilst the fluctuating requirement is best dealt with by a fund which can be used for that element.

(4) So far as the indexation is concerned, I have considered Mr Cropper’s report and come to the conclusion that Mr Methuen’s proposal provides a workable and pragmatic solution. That is, the RPI should be applied in the interim with provision for agreement or later determination of the appropriate index when the Flora/Thompstone issues have been resolved. If the outcome were to be that the RPI has to be applied then, it seems, the current objections would carry less weight and if there were to be a discretion then that would allow scope for agreement or for determination by the court. Further, I doubt whether Mark would be unduly concerned about continuing uncertainty of the index which would have more effect in later life and where an award on the basis of a part lump sum, part PPO would, in any event, reduce the impact of the indexation issue.

(5) From CPR rule 41.7 and para 1 of the Practice Direction the MIB’s preference and the reason’s for its preference are expressly a factor to be taken into account. They are, however, only one factor and I do not consider that in this case that factor is determinative of the form of order. However, I do consider that the fact that the MIB is acting under agreements with the Government to fulfil an important part of the Government’s obligations in relation to motor insurance under European law, gives the MIB’s preference added weight. The reason for the preference relates to the manner in which the MIB is funded on an annual basis by a levy on insurers who underwrite motor insurance. I accept that by spreading payments over a longer period, there will be a more equitable impact in any one year on the insurer members and those members of the public who pay premiums. This, again, I consider is a valid reason based on policy and not affordability and it has weight.

[161]In those circumstances, I consider that I should allow certain parts of the care and case management costs as lump sums and certain parts as a PPO. For receivership costs there is an initial sum and I consider that the remaining sum is more appropriately dealt with as a PPO. In my judgement, the PPO together with the funds generally available will provide sufficient funds to cover any fluctuations due to crises.

Reasonable security

[162]I must also have regard to the provision in s.2(3) of the 1996 Act that a court may not make an order for periodical payments unless satisfied that the continuity of payment under the order is reasonably secure. Under s.2(4) of the 1996 Act certain means of payment are reasonably secure but payment by the MIB is not included within that sub-section. Rather section 2(5)(b) of the 1996 Act provides that the PPO has to include provisions “about how the payments are to be made, if not by a method under which the continuity of payment is reasonably secure by virtue of subsection(4).” Under CPR rule 41.9(2), before ordering an alternative method of funding to one under s.2(4), the Court must be satisfied that the continuity of payment under the order is reasonably secure and the criteria set out in the Practice Direction are met. Para. 3 of the Practice Direction provides that the court must be satisfied that the method of funding can be maintained for the duration of the award and will meet the level of payment ordered by the court.

[163]A number of previous decisions have considered the status of the MIB and evidence from the MIB, in particular the decision of Cox J. in the case of Daniel Thacker. The position of the MIB has been dealt with above and I am satisfied that the MIB has the necessary financial, statutory and organisational status to provide assurance that continuity of periodical payments is reasonably secure both in terms of duration and level of payment.

Quantum of the Award

[164]In relation to the cost of future support, I have considered whether a PPO providing for, say, the cost for a 16 hour/day might be appropriate for some period but in the light of the factors I have identified above, I consider that the PPO should be limited to the 8 hour/day provision. The elements which I consider should be ordered as a PPO are therefore:(1) The cost of care for 8 hours/day at £39,087.

(2) The cost of case management of £20,000 per year.

(3) The annual cost of psychiatric reviews (£1400) and of neuropsychology (£9000) and £435 per year for physiotherapy, totalling £10,835 per year.

(4) The cost of the remaining receivership costs of £13,634 per year.

[165]Those sums are, of course, to be reduced to 75% to take account of the contributory negligence. Accordingly, the remaining items are to be awarded as a lump sum on the same basis:(1) Agreed and approved award £975,678.00

(2) The cost of the additional care for 16 hours/day at £54,640 (to make 24 hours/day total) using a multiplier of 15 £819,600.00

(3) The cost of the additional care for 8 hours/day of £38,030 (to make 16 hours/day total) using a multiplier of 10 £380,300.00

(4) The cost of in-patient care £107,765.00

(5) The accommodation costs of £4700 plus £750 per year, totalling £167,806 together with £10,000 for stamp duty etc. £177,806.00

(6) One-off payment for physiotherapy of £599 £ 599.00 Total £2,461,748.00

[166]On this basis I hope that the parties are able to draw up the necessary appropriate order and schedule.