Burton v Kingsbury [2007] EWHC 2091 (QB)

[2007] EWHC 2091 (QB)Case No HQ06X03415
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/09/2007
Before
THE HONOURABLE MR JUSTICE FLAUX
Between
ANTHONY BURTONClaimantGUY FRANCIS KINGSBURYDefendant
Mr W. Stevenson QC and Mr Andrew Davis (instructed by Eric Robinson Solicitors) for ClaimantMr Edward Faulks QC and Mr John Bate-Williams (instructed by E. L. Murphy & Co) for DefendantHearing Hearing dates: 16 – 25 July 2007
Judgment

I. Introduction

[1]This case concerns a claim for personal injuries arising out of a road traffic accident which occurred on 15 August 2001. The Claimant, who was 18 at the time, was the front seat passenger in a car being driven by his friend Guy Kingsbury, near Waterlooville, Hampshire. His girlfriend, Jennifer Haynes, who is now his wife, was in the rear of the car. They were all wearing seatbelts. The car crossed four lanes of traffic and rolled down a bank some 20 feet. The Claimant was trapped in the car and sustained very serious injuries. He was rendered a C4 quadriplegic. He is wheelchair dependent and is unable to use any part of his body below his shoulders. Fortunately he survived the accident with his mental capacity intact. He is clearly a strong-willed young man who has faced his disability with courage and a determination to live as full a life as possible.[2]Liability was eventually admitted by the Defendant immediately before the trial of the issue of liability on 11 April 2005. The trial before me has concerned issues of quantum. Although certain aspects of the claim are accepted the main areas of quantum as regards general damages, special damages and future loss have remained in dispute throughout.

II Factual background

[3]At the time of the accident, the Claimant had been working for slightly less than five months as a self-employed window fitter with another man, Lee Thomas, on various sites in London and then the Portsmouth area. This was a job in which he was intending to continue for the foreseeable future.[4]In the immediate aftermath of the accident, he was at the Queen Alexandra Hospital at Cosham. He developed a chest infection and a tracheostomy was performed on 17 August 2001 to assist his breathing. On 21 August 2001, he was transferred to the intensive care department of the specialist spinal unit at Salisbury District Hospital (sometimes known as Odstock).[5]He remained at Odstock for almost two years until June 2003, although the treatment which the unit was able to provide had been provided within the first year. The problem was that suitable accommodation had not been provided by the local authority to enable him to be discharged into the community. His mother, assisted by Miss Hampshire of his solicitors, wrote letters to the local councillor and to the local MP, Mr David Willetts, who in turn corresponded with Hampshire County Council. In due course, through the efforts of his mother and of a lady called Barbara Humphries of Hampshire Social Services, accommodation at 11 Matthews Place, a property owned by a Housing Association which was just round the corner from his mother’s house, was located and a care package was put in place, provided by a reputable agency called Active Assistance. This care package is funded by a contribution from the Independent Living Fund (ILF) but otherwise by contributions in a 60:40 ratio from Hampshire County Council and the local Primary Healthcare Trust respectively.[6]The Claimant was discharged into the community in June 2003 and lived at 11 Matthews Place with Miss Haynes. The care package provided involves a permanent resident carer who stays for five weeks or so at a time and then has two weeks off. During those periods of leave, the agency supplies temporary replacement carers, although rarely, if ever, is it the same temporary carer. This regime is the one which has remained in place until now and which the Claimant hopes to change with the damages award from this case.[7]Somewhat to the surprise of the medical experts who gave evidence in the case, he and Miss Haynes were able to conceive a child naturally. Their son Cameron was born on 6 June 2004. They hope to have more children although the doctors consider this unlikely without some form of fertility treatment.[8]The property at Matthews Place was never really suitable, given that it was relatively small, but the problems with it became all the more acute with the arrival of a baby. As already referred to above, in April 2005, the Defendant admitted liability and a substantial interim payment of £350,000 was paid to the Claimant (two earlier interim payments had been made in May 2003 and February 2005 of £25,000 on each occasion). It was not until the substantial interim payment in April 2005 that he and Miss Haynes could begin looking for a new home. They began a long and somewhat dispiriting search for a suitable house to buy in the area. At first, estate agents would not take them seriously given their relative youth and it took letters from Miss Hampshire of the Claimant’s solicitors explaining the circumstances, for them to receive any sort of sensible response from estate agents.[9]Perhaps unsurprisingly, they were then deluged with particulars of properties on the books of all the agents they had contacted, whether those properties were suitable or not. Miss Haynes viewed, sometimes with the Claimant, a large number of properties but none was suitable. Ideally they wanted a bungalow but there were very few on the market. If possible, they also wanted separate accommodation for the carer or at least sufficient flexibility to ensure that the carer was not living in the midst of their family. Eventually, in August 2005, they found a bungalow on the market for £595,000, which seemed suitable. Their offer of £585,000 was accepted, but after complications with planning permission, they were gazumped and the purchase fell through.[10]After further searching they found the property in which they now live. They paid £600,000 for the property, which is a bungalow and has three advantages so far as the Claimant’s physical condition is concerned: a garden on the level, an indoor swimming pool and an existing separate annex for the carer. They moved there in February 2006 and have lived there since. The Claimant and Miss Haynes were married on 8 July 2007, shortly before the trial commenced.

III General damages

[11]In relation to quadriplegia, the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injuries 8th edition gives a range of awards which (updated somewhat for inflation) is from £190,000 to £237,250. The Guidelines state:
“The level of the award within the bracket will be affected by the following considerations: (i) the extent of any residual movement; (ii) the presence and extent of any pain; (iii) depression; (iv) age and life expectancy. The top of the bracket will be appropriate only where there is significant effect on senses or ability to communicate.

(a) ”

[12]Both sides called evidence on the medical issues including the issue of life expectancy (to which I return below) from medical experts who are eminent in the field of spinal cord injuries: Mr Brian Gardner, consultant surgeon at Stoke Mandeville Hospital for the Claimant and Mr Anthony Tromans, Spinal Injury Consultant at the Duke of Cornwall Spinal Treatment Centre at Salisbury District Hospital (Odstock) for the Defendant.[13]Of relevance to the assessment of general damages are their views as to where the Claimant fits within the cohort of victims of accidents which have caused quadriplegia. Mr Gardner’s view was that whilst there were quadriplegics who were substantially worse than the Claimant, there were equally C5-C8 quadriplegics who were better than the Claimant, in that they had residual movement in their arms and were able to propel themselves in their wheelchairs. Mr Gardner placed the Claimant at the worse end of the spectrum, certainly in the worse half of quadriplegics generally. Mr Tromans accepted that the Claimant fitted in to the higher range at the C4 level and did not disagree with Mr Gardner as to where the Claimant was on the overall scale.[14]Mr Stevenson QC for the Claimant accepted that the Claimant was not at the top of the range of possible awards for general damages, since he is not ventilated and his senses are unimpaired. However, relying on the fact that there are C5-C8 quadriplegics who are in better physical condition than the Claimant, he submitted that the Claimant was about one third of the way down from the top of the range. With the impact of inflation on the range of awards, he urged upon me an award for pain and suffering and loss of amenity caused by the quadriplegia of £230,000. As a separate point, he invited me to award £10,000 for the unsightly scar in the Claimant’s neck from the tracheostomy, something which understandably causes him embarrassment, so that he always wears high necked shirts.[15]Mr Faulks QC for the Defendant fairly accepted that the Claimant is at the worse end of the scale in terms of disability, but pointed out that there was no evidence that he was suffering from depression, that his senses and ability to communicate were unimpaired and that he has no brain damage, so that, as the Guidelines say, the top of the bracket would not be appropriate here. The figure for which he contends is some £196,000. He did not address me on the question of a separate award for the scar.[16]As with a number of other areas in this case, I consider that the correct figure for general damages lies somewhere between the extremes advocated by the parties. The Claimant has no residual movement below his shoulders and does have some pain for which he takes painkillers. His life expectancy has also been reduced, a matter to which I return below. On the other hand, there is no brain damage and he can speak, see and hear normally. I consider he is somewhere slightly above the middle of the range set out in the Guidelines, adjusted for inflation. The appropriate figure for pain and suffering and loss of amenity caused by the quadriplegia is £217,000, to which I add £10,000 for the scar, making a total figure of £227,000. Interest is agreed at the rate of 2% per annum from the date of service of the proceedings, 18 August 2004, to the date of assessment, which I propose to take as 14 September 2007, the likely date of hand down of this judgment. This gives a figure for interest on the general damages of £14,755.07.[17]At this point of the judgment, it would be logical to deal with special damages up to the trial. However, in relation to a number of items claimed, such as accommodation and loss of earnings, the determination of what is recoverable depends upon points of principle which are better dealt with in the context of future loss. Accordingly I will deal with each of the areas of dispute in relation to future loss in turn, before returning to the question of special damages towards the end of this judgment.

IV Future Loss

[18]The necessary starting point for consideration of the various claims for future loss is the determination of the life expectancy of the Claimant and the appropriate multiplier to be applied, both of which are in dispute between the parties. Before dealing with those matters, I should record that, in considering these claims for future loss (as indeed the other claims for damages), I have borne in mind Mr Faulks’ words of warning in his closing submissions that, in effect, I should not allow my judgment to be clouded by inevitable sympathy for the Claimant and his predicament as a consequence of the accident and thus should not be lured into “doing the best I can” for the Claimant. My task is to assess objectively what is “that sum of money which will put the party who has been injured… 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”, the statement of general principle enunciated by Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39, of which Mr Stevenson for the Claimant also reminded me.

V Life expectancy

[19]The medical experts were agreed as to the methodology to be used in assessing the life expectancy of the Claimant. The starting point is to look at the epidemiological research and literature in relation to quadriplegics and then at the medical history and prognosis for the Claimant, assessing positive and negative factors, to see where he fits in the cohort of quadriplegics, in order to form an appropriate clinical judgment as to reduction in his life expectancy as a consequence of the accident. That reduction is then applied to the average life expectancy for a male of the Claimant’s age derived from Table 1 of the Ogden Tables 6th edition. Since the Claimant’s 25th birthday is imminent, I have taken his current age for these purposes as 25. The average remaining life expectancy for a man of that age derived from Table 1 is 59.47 years.[20]Where the experts differ is that(i) Mr Tromans questions the reliability of certain recent studies emanating from the United States upon which Mr Gardner relies and(ii) Mr Tromans also assesses the Claimant’s likely health for the remainder of his life somewhat more pessimistically than Mr Gardner. The effect of these differences is that, whereas Mr Gardner assesses the reduction in the Claimant’s life expectancy from what it would have been but for the accident as 25% or 15-16 years, giving a total life expectancy of 69 years, Mr Tromans assesses the likely reduction in life expectancy from what it would have been but for the accident as 36%, which would give him a total life expectancy of around 62-63 years.[21]Before dealing with the detail of the differences between Mr Gardner and Mr Tromans, I should deal with the expert evidence of Dr Bryan Walker who was also called on behalf of the Defendant. Until his retirement from the NHS some four years ago, he was Consultant Physician at the Royal Liverpool University Hospital. For over thirty years, he was Consulting Medical Officer to Royal Insurance and, following amalgamation, Royal & Sun Alliance. He remains Consulting Medical Officer to the Royal Liver Assurance Company. In these capacities, he has extensive experience of medical underwriting and of the assessment of life expectancy for insurance purposes.[22]He adopted a somewhat different methodology in calculating the life expectancy of the Claimant to that adopted by both Mr Gardner and Mr Tromans. This was the actuarial method of assessing the life expectancy of the relevant individual by reference to the average life expectancy of a large group of individuals similar to that individual in terms of sex, age and habits and sharing the same illnesses (co-morbidities). It did not involve any actual examination of the Claimant in this case. Using this method, Dr Walker assessed the Claimant’s life expectancy as 62.6 years. This is an appropriate means of assessing life expectancy for someone with a number of illnesses or medical conditions, where it is impossible to say that any one illness or condition is more likely than another to reduce life expectancy.[23]In his oral evidence, Dr Walker very fairly and candidly stated that he thought he had been instructed to provide a report because the Claimant was suffering from a number of co-morbidities in addition to the quadriplegia, specifically low body mass index and Osgood-Schlatter’s disease (a painful swelling of the knees usually suffered by people in their early teens who are sportsmen, as the Claimant had been at school). This would necessitate utilising his approach to the assessment of life expectancy. However, he accepted that during the course of the evidence of the other medical experts, those other supposed co-morbidities had “evaporated away”. In those circumstances, he also accepted that if, as is the case, the court is simply looking at the effects of quadriplegia on the Claimant’s life expectancy, then the methodology adopted by Mr Gardner and Mr Tromans is more appropriate. In the circumstances, it is not necessary to consider Dr Walker’s evidence further and I turn to examine in more detail the differences between Mr Gardner and Mr Tromans.[24]Mr Gardner’s evidence in his report is that probably the most important determinant of life expectancy for a spinal cord injured person was the quality of care. He cites a paper by de Vivo and others in the United States in 1995 which stated:
“Undoubtedly the long-term quality of care received by persons with SCI as well as many psychosocial factors are also important determinants of survival, but these have received relatively little attention.”
[25]In this context, he also relies upon a more recent paper by Krause and others (including de Vivo) published in November 2004, which indicates the importance of favourable economics in ensuring longevity in persons with SCI. As Mr Gardner pointed out, favourable economics as assessed by Krause did not mean being rich, but rather having a level of income after meeting health care needs of about 50% above the poverty level and the level of care afforded by workers compensation insurance, a fairly comprehensive scheme which employers in the United States are required to take out to protect employees in respect of accidents at work. It is clear from the Krause paper that the authors considered that significant factors which contributed to increasing life expectancy in those with SCI were(i) economic sufficiency, defined as being 150% or more above the poverty level in US terms and(ii) whether the funder of health care was a workers compensation insurer.[26]Mr Tromans is critical of this reliance on the Krause study. He relies upon two documents containing a critique of Krause. The first in point of time seems to be an undated document entitled “Letter to the editor” by Strauss and others (including ironically Dr de Vivo) in which the authors question whether the shorter life expectancy for those in the lowest economic group solely reflects inadequate funding of health care as opposed to other factors, such as being less likely to comply with medical advice or having adverse health habits such as smoking or drug abuse. They conclude:
“..it appears that the positive effect of favourable economics on life expectancy of persons with spinal cord injury is somewhat less than previously estimated”
. The precise provenance of this document remains unclear and there does not seem to have been any peer review of it.[27]The second document is a paper by David Strauss dated September 2005 entitled “Comments on Paper by Krause”. Strauss accepts that whilst part of the explanation for the lower mortality in cases of those covered by workers compensation insurance is the comprehensive nature of the coverage, another factor is that those persons were by definition workers at the time their injuries were sustained and that workers generally are part of a healthier group than others. Although fewer than 10% of the subjects of the Krause study were beneficiaries of workers compensation insurance, Strauss considers that the workers compensation aspect had a tremendous effect on the Krause analysis. It is contended that the combined effect of workers compensation and favourable economics is to improve life expectancy by 9 years, whereas when the workers compensation aspect is removed from the equation, the improvement in life expectancy drops to some 2.2 years.[28]I accept that the different social conditions and health care arrangements in the United States (particularly the complete absence of a state run health service corresponding to the NHS) should make one cautious of placing too much reliance on the Krause study. Furthermore, there seems to me to be some force in the argument that workers compensation cases should be discounted because in an American context they represent a generally healthier segment of the population. Having said that, in my judgment, the overall point made by Mr Gardner, which he adhered to, irrespective of the workers compensation argument, that favourable economics improve life expectancy in persons with SCI is a valid point, which I accept.[29]In the Joint Statement prepared by Mr Gardner and Mr Tromans, Mr Gardner expressed the opinion that, notwithstanding the doubts expressed about the workers compensation element of the Krause study, there is robust evidence apart from the Krause study that economics impact on longevity. I agree and consider that any suggestion to the contrary in the Strauss materials is flawed. The question remains whether I should discount some of Mr Gardner’s assessment of the Claimant’s life expectancy because he relies upon the Krause study, which is open to criticism as being somewhat skewed because of the inclusion of the workers compensation element. I take into account Mr Stevenson’s submission that despite the criticisms levelled by Mr Tromans, when it came to it, he was somewhat vague as to the precise impact of this area of disagreement with Mr Gardner on overall life expectancy. Nevertheless, when I asked Mr Tromans about this during the course of his evidence, he said that he would attribute half the overall difference between himself and Mr Gardner to this issue. Translating that into years, on the basis that the difference between them in terms of overall life expectancy was of the order of 6-7 years, Mr Tromans would attribute something in the region of 3- 3 ½ years to this issue.[30]Whilst I am prepared to accept that some discount from Mr Gardner’s assessment of life expectancy should be made to reflect the socio-economic differences between the United Kingdom and the United States and the atypical nature of workers compensation cases, I do not consider that the discount should be as great as that for which Mr Tromans appears to be contending. It seems to me that at most, the discount should be 2 years.[31]Although in reaching that conclusion I have formed my own judgment on the evidence before me as to the impact of this dispute concerning the merits and demerits of the Krause study, I am fortified in the conclusion that I have reached by the fact that this Krause versus Strauss dispute has already been ventilated earlier this year in the case of Sarwar v Ali and the Motor Insurers Bureau before Lloyd Jones J, a case in which Mr Tromans also gave expert evidence along the same lines as his evidence in the present case. It seems to me that my own conclusion in relation to this dispute is supported by what

the judge said in paragraph 23 of his first judgment in that case ([2007] EWHC 274 (QB)):

“These two further papers must be treated with a certain degree of caution because of their uncertain status. It does not appear that they have been subjected to peer review or published. However, they do suggest that the Krause study should not be taken as a definitive statement of the impact of such socio-economic considerations on life expectancy in tetraplegics and that further research is needed in this area. Moreover there may be difficulties in the direct application of the results of Krause’s research in the United States to the situation prevailing in the United Kingdom. Nevertheless, I consider that there is force in the submission that such socio-economic factors are likely to have a favourable impact on the life expectancy of the Claimant. I did not understand Mr. Tromans to deny them any effect. While I am unable to accept that their impact is likely to be as dramatic as the Krause paper contends, I nevertheless consider that these favourable factors should be given weight in assessing life expectancy in the present case. In this regard I attach particular importance to my finding that the claimant will use his award to purchase high quality care and medical services.”
[32]The other area of dispute between Mr Gardner and Mr Tromans concerns the state of health of the Claimant after the accident and the impact of that on life expectancy. The particular positive and negative features identified by Mr Gardner in his Report relative to the average are as follows:
“Positive features include Years since injury – 4 Blood pressure – 110/75 Past history – nil Medication history relative to average – less than average Alcohol history – moderate Abdominal surgery or condition – nil Respiratory tract history relative to average – non smoker: 3 mild chest infections Pressure sore history relative to average – fewer and less severe than average Housing – good throughout settlement Engagement in life – good through settlement Family support – strong Care – good through settlement Equipment – good through settlement Suicide risk – relatively less than average Smoking – nil Readmissions – 3 days compared with average of circa 12 for the first 2 years post discharge Neutral features include Age at injury – 18 Family history Physical history Cardiovascular history relative to average – if BMI excluded Negative features include BMI – 15 Neurological status – C4A – at the cusp of the C1-4/C5-8 groups Class status – manual worker Urinary tract history relative to average Septicaemia risk relative to average”
Years since injury – 4 Blood pressure – 110/75 Past history – nil Medication history relative to average – less than average Alcohol history – moderate Abdominal surgery or condition – nil Respiratory tract history relative to average – non smoker: 3 mild chest infections Pressure sore history relative to average – fewer and less severe than average Housing – good throughout settlement Engagement in life – good through settlement Family support – strong Care – good through settlement Equipment – good through settlement Suicide risk – relatively less than average Smoking – nil Neutral features include Age at injury – 18 Family history Physical history Cardiovascular history relative to average – if BMI excluded Negative features include BMI – 15 Neurological status – C4A – at the cusp of the C1-4/C5-8 groups Class status – manual worker Urinary tract history relative to average Septicaemia risk relative to average”

Urinary tract history relative to average

[33]From the Joint Statement of the experts and the oral evidence given, it appears that the areas of disagreement between Mr Gardner and Mr Tromans in relation to these factors and their effect upon the Claimant’s life expectancy are fairly limited. Most significant would seem to be the respiratory tract history and the risk of chest infections. The Claimant had been admitted to the Queen Alexandra Hospital in Cosham in February 2005 with a cough and pneumonia. The experts agree that he has a weak cough and is at increased risk of further chest infections. However, Mr Gardner believes that with good care, physiotherapy and housing, together with the cough assist machine the Claimant has purchased, the risk can be reduced.[34]Mr Tromans does not agree that the respiratory tract history is a positive feature. He pointed out that the admission for pneumonia was for 5 days as against an average admission for those with SCI in respect of chest infections of 4 days, indicating that this infection was of average severity.[35]Mr Tromans also doubts the wisdom of using the cough assist machine, because of the risk of the Claimant developing a syrinx in circumstances where the experts agree that the damage to the Claimant’s spinal cord put him at risk of developing post traumatic syringomyelia. Mr Gardner considers that the risk involved is a small and theoretical one, when compared with the risk to life from chest problems. He said that the experience of such machines in the United States enabled patients to be kept in the community and did not agree that physiotherapy would be as good. Ultimately, despite his reservations, Mr Tromans’ evidence was that he would be prepared to recommend the cough assist to prevent acute chest infections and in that regard was prepared to accept its value if it kept the Claimant out of hospital.[36]There was some difference between the experts as to the likelihood of the Claimant requiring an anterior continent enema procedure or a colostomy to deal with the management of his bowels later in life. Mr Tromans is of the opinion that there is a likelihood of between 10 and 20% of his requiring such a procedure. Mr Gardner was not prepared to put a figure on the risk. Mr Gardner also said this should not have an effect on the Claimant’s life expectancy unless abdominal procedures were necessary. He also said that the risk of such procedures was taken into account generally in the assessment of life expectancy (in the population at large), from which it was clear that he would not regard that risk as a specific negative feature in relation to this Claimant. I did not understand Mr Tromans to disagree.[37]The experts were essentially agreed about the problems the Claimant has had with his bladder. A suprapubic catheter was fitted in October 2001. There have been problems with this catheter, with the Claimant suffering from recurring urinary infections. At first he had severe autonomic dysreflexia when the catheter blocked. He still experiences autonomic dysreflexia if the catheter gets blocked or he has urinary tract infections. Botox injections into the bladder wall appeared to have reduced these problems. In their joint statement, the experts agreed that there remained a risk to the Claimant of a major episode of autonomic dysreflexia, with potential life-threatening consequences.[38]In his oral evidence, the Claimant talked about these spasms becoming more of a problem. He said that he was getting a lot of urinary infections and was taking antibiotics for this twice a month. When such an infection is at it worst, the spasms could be really bad. Accordingly he was now taking Baclofen which helped reduce the risk of spasms, albeit slowly. He would take it an hour before having a shower, in order to be prepared. The evidence that his spasms have increased with urinary infections was confirmed by the evidence of his current carer, Jana Bohacikova. She said that he has spasms every time he has a shower, which is three times a week. She described one recent severe spasm when she was transferring him from his wheelchair into the shower chair. She was fortunate to be able to hold him as the spasms nearly caused him to fall right out of his wheelchair. In his evidence, Mr Gardner considered that this evidence of intermittent and unexpected spasms coinciding with infections was somewhat worse than his reports had said. Mr Tromans regarded this information about the problems with urinary tract infections (together with the skin problems to which I refer in the next paragraph) as reinforcing the views on life expectancy he had formed on interviewing the Claimant.[39]There was a minor disagreement as to the impact of the Claimant’s low body mass index of 15. Mr Tromans regards that as a negative feature, as I understand it because he regarded it as increasing the risk of pressure sores and the Claimant had required several periods of bed rest to allow his pressure sores to heal. Mr Gardner’s opinion is that the Claimant’s pressure sore history, at least when he saw him in 2005, had been good. Although he accepts that the Claimant has had a worse skin condition since then, he considers this to be attributable to inadequate care and equipment and difficulties with prompt access to appropriate medical care. He believes that correction of these issues will result in the restoration of the earlier better than average state. As Mr Faulks accepted in cross-examination of Mr Gardner, there was only a slight difference between him and Mr Tromans as to the effect of the Claimant being underweight on the Claimant’s general clinical state.[40]In relation to the Osgood Schlatter’s disease the experts were agreed that this was a self limiting disease of the teenage years. Whilst they could not say whether it would have caused problems in later years it was clearly not life-threatening. As Mr Tromans said, it does not lead to osteo-arthritis.[41]In broad terms, I accept Mr Gardner’s assessment that the problems which Mr Tromans has identified are ones which should be capable of being dealt with by the appropriate level of care without any impact on the Claimant’s life expectancy. I also take account of the fact that Mr Gardner, unlike Mr Tromans, had the opportunity to see the Claimant in Court, during the course of the Claimant’s evidence. Nevertheless, it seems to me that some relatively minor reduction from Mr Gardner’s overall figure for life expectancy should be made to reflect the fact that the Claimant’s state of health is somewhat worse than Mr Gardner’s original assessment.[42]The apparent increase in the number and severity of spasms is of some concern, although that too may well be controlled by the appropriate quality and quantity of care and may precipitate the Claimant adopting an alternative method of bladder care such as Mr Gardner would advise. I consider that Mr Tromans is correct that the risk to the Claimant of chest infections is more serious than Mr Gardner has allowed for. In my judgment it would be appropriate to increase the discount from Mr Gardner’s figure for life expectancy of 69 years by a further year in addition to the 2 years discount I have indicated I would make to reflect the potential unreliability of the Krause study. Accordingly, my conclusion is that the Claimant’s total life expectancy is 66 years or a further 41 years beyond his current age.

VI The appropriate multiplier

[43]The next area of dispute is as to what is the appropriate multiplier into which my conclusion as to life expectancy should be translated. Mr Faulks contends that I should use Table 1 in the Ogden Tables. He relies upon Paragraph 20 of the Explanatory Note to the 6th edition which provides:
“Impaired lives 20. In some cases, medical evidence may be available which asserts that a Claimant’s health impairments are equivalent to adding a certain number of years to their current age, or to treating the individual as having a specific age different from their actual age. In such cases, Tables 1 and 2 can be used with respect to the deemed higher age. For the other tables the adjustment is not so straightforward, as adjusting the age will also affect the assumed retirement age, but the procedures described in paragraphs 13 to 15 may be followed, or the advice of an actuary should be sought. In other cases, the medical evidence may state that the claimant is likely to live for a stated number of years. This is often then treated as requiring payment to be made for a fixed period equal to the stated life expectancy and using Table 28 to ascertain the value of the multiplier. “In general, this is likely to give a multiplier which is too high since this approach does not allow for the distribution of deaths around the expected length of life. For a group of similarly impaired lives of the same age, some will die before the average life expectancy and some after; allowing for this spread of deaths results in a lower multiplier than assuming payment for a term certain equal to the life expectancy. In such cases, it is preferable to look up the age in the 0% column in Table 1 or 2 for which the value of the multiplier at 0% is equal to the stated life expectancy. The relevant multipliers are then obtained from the relevant tables using this age.”
[44]He emphasises particularly the underlined passage. Although he accepts that I am not bound by the Ogden Tables, he submits that I should depart from the guidance given only with some hesitation. It is also fair to point out that the Example 4 given in Section C of the Explanatory Notes, headed “Summary of Personal Injury Applications” at Paragraphs 48 and 49, which at least superficially bears some resemblance to the present case, involves the use of Table 1 to assess the multiplier for damages for the cost of future care.[45]Mr Stevenson emphasises that the Tables and the Explanatory Notes to them do not have the force of law. He submits that I should adopt Table 28 “Multipliers for Pecuniary Loss for term certain” because the adoption of Table 1 in circumstances where it has already been used to assess the life expectancy of the Claimant would involve a double discount for mortality. The use of Table 28 in circumstances such as those of the present case was recommended by the Court of Appeal in Royal Victoria Infirmary v B [2002] Lloyd’s Rep (Med.) 282. The Court there was considering which Table was appropriate in the case of a child suffering from cerebral palsy. The life expectancy having been determined, the question was whether the discount should simply be for accelerated receipt in accordance with what is now Table 28 or whether it should also include a discount for mortality derived from Table 1, to reflect the fact that the Claimant would not live to exactly her life expectancy. Tuckey LJ (with whom the other members of the Court agreed on this point) stated at paragraph 22 of the judgment:
“The simple answer to this point, one would have thought, was that the quantification of B’s expectation of life already took into account the chance that she might die earlier or live longer and that she would almost certainly not die on the predicted date. If one also had to take mortality into account in determining the discount this would, as the judge said, be a double discount.”
[46]That case and its reasoning were applied by Lloyd Jones J in Sarwar v Ali [2007] EWHC 274 (QB) in adopting Table 28. He distinguished the earlier decision of Leveson J in Tinsley v Sarkar [2006] PIQR Q1 where the judge had applied Table 1 and declined to apply Table 28, as being a case where the experts were not giving a clinical view of the Claimant’s life expectancy, taking account of all positive and negative risk factors. They were simply estimating the average loss of life arising from the specific negative factors, when compared with the average life expectancy of the population as a whole.[47]I consider that the present case and the approach of the medical experts is akin to that in Sarwar v Ali rather than Tinsley v Sarkar. The assessment of the reduction in life expectancy of the Claimant by Mr Gardner and Mr Tromans has involved a clinical judgment as to the positive and negative factors applicable to this Claimant, in order to assess the reduction in life expectancy compared with the average for a man of his age as set out in Table 1. Mortality having already been taken into account in that exercise, to use Table 1 again to establish the discount for damages for future cost of care and other future losses would involve a double discount, for precisely the reason given by Tuckey LJ. This is a point which does not seem to be recognised by Mr Daykin, the Government Actuary, author of the Explanatory Notes to the Ogden Tables specifically in paragraph 20 on which Mr Faulks relies. Similarly, Example 4 in those Notes would appear to be one where there has not been a clinical judgment that the Claimant’s life expectancy has been impaired by the accident, so that there is no question of double discount being contemplated.[48]Like Lloyd Jones J in Sarwar v Ali, I have considered whether some combination of Tables 1 and 28 might be appropriate, but again like him, I consider that the greater proportion of risks to the Claimant’s life have already been taken into account by the medical experts in their assessment of life expectancy (see paragraph 30 of his judgment). In my judgment, this is a case in which it is more appropriate to use Table 28 to establish an appropriate multiplier for the Claimant. Taking a “term certain” of 41 years and applying a discount rate of 2½ % the appropriate multiplier derived from Table 28 is 25.78.

VII Medical expenses and future medical costs

[49]It is accepted by the Defendant that the annual figure for medical expenses should be £437.04. Taking the multiplier of 25.78, this claim is allowed in the sum of £11,266.89. So far as concerns the future medical costs, there is an unexplained small difference between the amount claimed in the Amended Schedule of Loss for which I gave permission to amend during the trial, which claims the figure of £195,813.50 and the amount claimed in the Excel Spreadsheet produced on behalf of the Claimant at the end of the trial of £196,789.77, but this is de minimis.[50]Although the first page of the Defendant’s Response to the Schedule (albeit the unamended version) states that he allows “Nil” for this item, no explanation of this bald assertion is provided in the Response. However, it appeared that a number of matters raised in submissions and evidence at trial were “not agreed”. First, the cost of a colostomy of which Mr Gardner thought there was a 50% chance. It seems to me this item, at £7,500, is recoverable.[51]Second, the cost of IVF treatment. Given the Claimant’s evidence that he has only achieved ejaculation once since Cameron was born and given the surprise of both spinal cord injury experts that he had managed to father a child naturally at all and their view that he was unlikely to be able to achieve this again, it seems to me entirely reasonable that the Claimant should recover the cost of IVF treatment as claimed in the sum of £20,000.[52]Third, the Claimant claims, on the basis of Mr Gardner’s evidence, £5,000 towards private health care, given that for non-emergency, non-life-threatening matters, such as dealing with pressure sores, the NHS had not to date proved very satisfactory. Mr Tromans’ evidence was that he normally agrees £3,000 a year for private health care to cover these sort of contingencies, where the NHS sometimes falls short. Although the Defendant’s formal position was that nothing at all should be allowed, it does seem to me appropriate to allow Mr Tromans’ figure of £3,000 a year for such eventualities. This was one area where I was not convinced by Mr Gardner’s evidence that more than £3,000 a year should be allowed. Taking a multiplier of 25.78 this translates to an overall figure of £77,340.[53]Fourth, the Claimant claims the cost of a visit to a clinic in France run by M Bohbot, who provides something called laser acupuncture and other forms of intensive therapy for people such as the Claimant. The medical experts showed predictable but understandable scepticism about this “alternative medicine” but by the end of the trial it appeared to be agreed that it was a reasonable thing for the Claimant to try. In any event, the overall cost is relatively modest at about £2,900 and I allow it in full.[54]The final matter not agreed was the cost of psychology. Although the Claimant is not currently suffering any sort of depression it was thought appropriate to suggest two courses of 6 sessions each with a psychologist, one course in say 10 years and the other in say 30 years. The sum claimed is very modest and is recoverable in full, as are the other items claimed which I have not specifically mentioned, so that £138,751 in total under this head is recoverable.

VIII Cost of future care and case management

[55]The issue of the cost of future care and case management is one of the issues which has most sharply divided the parties. To put the matter in context, it is first necessary to look in more detail at the care regime provided to the Claimant to date. As already stated, the Claimant has a permanent resident carer provided by a reputable care agency Active Assistance. Initially this was a lady called Michelle whom the Claimant was able to choose for himself. In November 2004 she was replaced by Kasia who was Polish, with whom the Claimant developed a good working relationship and who stayed until November 2006. Since then, his carer has been Jana Bohacikova, who is Slovakian, and whom he finds broadly satisfactory, although not as good as Kasia. The way in which the regime works in practice is that the carer works for about five weeks, living on the premises, in the annex, before having two weeks off. The problem the Claimant has is really in relation to the temporary replacement carers in that two week period every five weeks or so. It is rarely if ever the same person and their experience and ability varies. Some of them are rough in handling him which probably accounts for some of his skin problems. Others are timid, leaving him without any confidence in them, particularly when they are lifting him.[56]Another aspect of the care which is not currently satisfactory concerns what happens at night. The Claimant and Mrs Burton share a bed. He is not a good sleeper but she is. He often needs a drink of water in the night or his pillow turning over or duvet rearranging, none of which he can do for himself. Mrs Burton’s evidence was that the only thing which wakes her up is if he shouts out “Cameron’s awake” or something about Cameron. He said that he doesn’t like to disturb her and would rather go without than wake her up. Accordingly, he tends to wait until the child stirs before disturbing her and asking her to help him with whatever he wants.[57]Whilst on one view, it might be said that she is going to have to get up for the child anyway and for any additional children they have, so that some disturbance at night for her is inevitable, the position is not satisfactory. She will not always have to get up for children in the night and in any event should not be put to the additional burden of dealing with the Claimant. She suffered serious back injuries in the accident and still suffers pain. Furthermore, the medical experts were of the view that so far as possible her role should not be that of carer of but “wife, lover and mother” and that she should avoid becoming embroiled in his care. This was a view shared by Mrs Jane James, the Claimant’s care expert, if not or at least not entirely by Miss Tessa Gough, the Defendant’s care expert. This issue of night care was one of the issues which divided the care experts and which I have to resolve.[58]It is common ground that this regime as provided by Active Assistance is not entirely satisfactory and should be replaced by an alternative. The dispute is as to which alternative is needed by the Claimant, that recommended by Mrs James or that recommended by Miss Gough. Before dealing with these alternatives in more detail, I should mention one aspect of the way in which the expert evidence emerged which led Mr Faulks to be somewhat critical of Mrs James’ objectivity. Mrs James had produced her report in November 2005, when the Claimant was still in Matthews Place. That report was served on the Defendant’s solicitors on 15 May 2006, together with the Claimant’s other expert reports, there being an Order for sequential production of reports. Miss Gough then saw the Claimant at his current address in October 2006 and produced a report dated 9 November 2006.[59]In accordance with the Order of the Court, the experts discussed the case over the telephone on 1 May 2007 and a Joint Statement of what was agreed and not agreed was produced dated 25 May 2007. After that Joint Statement and without consultation with the Defendant’s solicitors or Miss Gough, Mrs James determined that she should make a further visit to see the Claimant at his current address, not having seen him there whereas Miss Gough had. She said in evidence that this second visit was also prompted by Mr Gardner’s concerns over the care plan, rather than any intention to change her views. Due to administrative errors, it did not prove possible to make the visit until 3 July 2007. Mrs James then produced what was described as an Addendum to her Report but which was in truth and in substance a replacement for that original Report. Some of her costings and recommendations had changed. Most significantly, her cost for care of the Claimant after the age of 40 had gone up by some £20,000 a year because of a perceived need for additional night care after that age, an issue to which I return below.[60]That Addendum was served on the Defendant’s solicitors on 13 July 2007, the Friday before the trial began. Mr Faulks formally opposed the introduction of this Addendum together with a further Report from Mrs Gilman, the Claimant’s physiotherapy expert which had been served at the same time, although he did not suggest that he could not deal with the matters they contained. On the morning of the second day of the trial, I gave the Claimant permission to adduce this additional expert evidence and to make any consequential amendments to the Schedule of Loss. An Amended Schedule was thereafter served.[61]In his closing submissions, Mr Faulks submitted that the fact that Mrs James had produced this supplementary report at the last minute raised a slight concern as to the objectivity of her approach and might suggest that she had “descended into the arena” in a manner which would be inappropriate for an expert. This submission was put carefully and in a measured manner, not as what might be described as a full frontal attack on Mrs James’ independence and integrity as an expert. Nonetheless, I reject the submission. It is clearly regrettable that the further visit to the Claimant and supplementary report were produced without any notification to or consultation with the Defendant’s solicitors or Miss Gough, particularly where a joint statement had already been produced. The court will not regard such departures from the requirements of the CPR as regards expert evidence lightly, but if blame is to be ascribed, it should be to the Claimant’s solicitors, who should have notified their counterparts the moment it was known that this further visit was to take place, rather than to Mrs James.[62]Thus, it does not seem to me that this incident casts any doubt upon Mrs James’ objectivity. I formed the view that, whilst she is clearly a confident and forceful personality and an experienced expert, she was not someone who was trying to “do the best she can” for the Claimant, as Mr Faulks was essentially suggesting. Rather, I considered that she was doing her best to assist the court by providing an objective assessment of the Claimant’s care needs. That is not to say that, merely because Miss Gough’s demeanour in the witness box was less confident, I formed the view that she was any less objective. Like Mrs James, she was clearly trying to assist the court. However, I had difficulty in accepting some of her proposals and in places it seemed to me that her hesitancy suggested an appreciation that some of the proposals she was making were not necessarily appropriate or even adequate for the Claimant. I have in mind in particular the issues of a second carer in respect of transfers and of night care, to which I return below.[63]The “daytime” care package which Mrs James recommends involves one main carer being present for 14 waking hours a day with a second carer present for 6 hours a day to be available for transfers and personal care (when she considers two carers should be present) as well as to undertake what would otherwise be the Claimant’s share of meal preparation, household tasks and childcare. There would be two teams of such carers (so four in all) working in the case of each team 2-3 days on (with some sleeping over) and 2-3 days off. She suggests that the Claimant, assisted by his case manager, would employ such carers direct at a rate of £10 per hour for a 20 hour day. Although she envisaged the 14/6 hour split I have referred to, she did say that precisely how the two carers divided up the hours would be a matter for discussion with the Claimant and his case manager. Mrs James thus does not advocate resident carers, but considers that a better quality of carer could be procured through her package.[64]In contrast, Miss Gough recommends employing two resident carers who would work alternate weeks (so that there would only be one resident carer at a time). To overcome the criticism that resident care does not attract the right sort of carer because the rates are too low, she would pay them £90 a day, a premium rate, for a 10-12 hour working day, with 8 hours sleeping and 2 hours off. Her core regime does not involve having two carers for periods of transfer and personal care. She provided costings for 2 hours a day of “double up” to cover such periods if it proved necessary, to be provided by carers through a local agency at £8.37 an hour on weekdays and £9.12 an hour at weekends. If a second carer could not be found, then she would expect Mrs Burton to assist and would remunerate her at the “family care” rate of £6.41 an hour.[65]I have formed the very firm view, subject to one caveat, which I will come to, that the daytime care package advocated by Mrs James is more appropriate for the Claimant and more closely reflects what he is likely to need and thus the cost of care which he is likely to incur, for the following reasons: i) I consider that it is necessary for two carers to be present during periods of lifting and personal care. The need for two people to help during such periods was strongly advocated by both Mr Gardner and Mrs James and I agree, especially given the risk of spasms. That evidence was also supported by that of Mrs Gilman, the Claimant’s physiotherapy expert. She said that with an increase in spasticity, there would be an increased risk in transfers and it would be unusual for them to be carried out by one person. She said that, especially if this was a trend, there was an increased risk to carers. This was graphically borne out by the recent incident which his current carer described, which so nearly ended in disaster and could have been wholly avoided if two carers had been present. ii) Miss Gough’s proposal of a local carer through an agency for two hours a day is not satisfactory. Even if such people were available, there is likely to be a high turnover of carers and not much continuity. This would only replicate (albeit on a lesser scale) the problem the Claimant currently has with temporary replacement carers during his permanent carers’ weeks off. iii) Equally, her alternative suggestion that this assistance should be provided by Mrs Burton and that she should be remunerated for it is totally unacceptable in my judgment. Not only is this exactly the sort of “excessive involvement” of the wife in care which Mr Gardner rightly said it was most important she should be protected from, but in any event, she should not be involved in lifting, particularly in the light of(i) her own back injuries and(ii) the potential risks from spasms which the various expert witnesses for the Claimant described. iv) Overall, I consider that the flexible “four man team” approach with hourly rates advocated by Mrs James is much more likely to attract the right sort of carers, both in terms of looking after the Claimant’s needs and in terms of developing relationships with the Claimant so he has confidence in his carers, an important element of appropriate care. In contrast, I am not convinced that the residential and flat daily rates of Miss Gough’s package, despite being enhanced, will attract the right sort of carer for the Claimant.[66]The one caveat I have is as to the amount of “double up” for which Mrs James allows, of 6 hours a day. This is because I do not consider that the Claimant is entitled to recover anything for childcare at all. Mrs James includes this as one of the reasons for having the second carer there for 6 hours. She also would allow childcare as part of the claim for past care on the basis that, had he not been disabled, the Claimant would have done much more with his son than he has been able to do. I am not convinced by this. Whilst it is true that what he can do physically for Cameron is extremely limited, he sees the boy and therefore occupies him when otherwise his mother or a childminder would have to, much more than he would have done had he been in full time self-employment as a window fitter. It seems to me that the right amount of double up is 4 hours a day and, therefore, I allow 18 hours a day in total for daytime care.[67]The next area of dispute concerns night-time care. Mrs James’ package has two aspects so far as night-time care is concerned, at least until the Claimant is 40:(i) she allows for a night sleeper at £53.50 per night and(ii) she allows for 4 weeks a year of waking care at £10 an hour for periods when the Claimant is ill. So far as Miss Gough is concerned, she allows nothing under (i) on the basis that his needs at night are catered for by Mrs Burton. At most she would remunerate Mrs Burton for ½ hour or an hour a night at family care rates.[68]I do not regard this as satisfactory. Mrs Burton is not the carer nor should she be expected to be. When pressed about this, although Miss Gough accepted that Mrs Burton should not be the carer, she resorted to saying in effect, in the real world, this is what is happening. That does not seem to me to be an answer: the fact that Mrs Burton gives him his water or turns his pillow now because she has to get up for Cameron is beside the point. The fact is that, when she is not being disturbed by children, she is entitled to uninterrupted sleep. Equally, there seems to me nothing in Miss Gough’s point that, if the carer has to do the tasks, Mrs Burton will be disturbed anyway. The evidence of both the Claimant and his wife was that she was a particularly heavy sleeper, so in all probability she would not be disturbed. In my judgment, this night care, even if only half an hour or an hour a night, is part of the care he requires and he should be able to recover the cost of it being provided by a professional carer.[69]So far as Mrs James’ point (ii) is concerned, Miss Gough would allow for a night awake carer for 12 weeks a year for periods when the Claimant is ill. This is considerably more generous than Mrs James’ 4 weeks, no doubt because Miss Gough is looking at the whole of the rest of the Claimant’s life and not allowing specifically for a different night-time regime after the age of 40, as does Mrs James. After the Claimant is 40, Mrs James would allow for a night awake carer all the time. This was not in her original report but was raised in her Addendum after she saw the Claimant recently, because Mr Gardner’s opinion was that after 40 the Claimant was likely to require turning at night. This issue thus turns in large measure on the medical evidence about the effect of ageing on a C4 quadriplegic such as the Claimant.[70]Mr Gardner’s opinion, set out in the Joint Statement and repeated in his evidence, is that as the Claimant gets older, his skin will become less resilient and he will require turns in bed at night more frequently. In the last 15 years or so of his life (i.e. on Mr Gardner’s assessment of his life expectancy from his early to mid 50s) he will require two turns at night. Given other ad hoc needs, such as repositioning of the quilt, his opinion is that in those last 15 years, the care regime should allow for three or more visits at night.[71]Mr Tromans considers that the effect of ageing is more relevant to a paraplegic or lower tetraplegic than to someone as disabled as the Claimant, who because he is fully dependent on others has no ability to lose in this context. Mr Tromans said that for people like the Claimant who already had care, he had never been involved in trying to provide them with additional equipment because of ageing. This evidence does not really seem to me to address the point which Mr Gardner is making, which concerns skin condition, not ability to assist in one’s own care. In the circumstances, I accept and prefer Mr Gardner’s evidence about the effect of ageing on the necessary care regime.[72]Clearly Miss Gough’s proposals simply do not cater for this eventuality at all. Equally, it seems to me that Mrs James’ proposal for a night awake carer from the age of 40 might be said to be excessive in terms of likely needs. It seems to me that the right approach is to allow the night awake carer as advocated by Mrs James from the time when the Claimant is 50.[73]So far as the other elements of the claim for future care based on Mrs James’ care package are concerned, the uplift at 27% which was based on her experience, is clearly recoverable, as are the costs of additional food and of the Community Access Fund. I would also allow her costs for staff meetings and training and for induction training.[74]The experts are agreed that the Claimant should have a care manager to manage his care package. He has already approached Bush & Co, a well known firm based in Northampton. They would apparently be able to provide a care manager from the Hampshire area. Their hourly rate is £79 per hour but their travel time is charged at £59 per hour plus mileage. Mrs James has costed care management on the basis that it will be provided by Bush & Co. In the first six months she allows for 10 hours a month, in that the case manager will need to make two visits a month to enable the case manager to recruit and train suitable carers. Thereafter, she allows for six hours a month, to allow for one visit a month.[75]Miss Gough takes a different approach. She has costed the exercise on the basis of using a local agency to provide a case manager, although the hourly rate is in fact very slightly higher than Bush & Co, at £80 an hour. The major difference is in the cost of travel time. The rate of the local agency is £37.50 an hour as against Bush & Co’s £59 an hour. In the first month she allows for a visit a week, 12 hours in all, in the second month a visit a fortnight, 6 hours in all. Then for the rest of the first year and for subsequent years, she allows for 3 hours a month, with a visit a month. She also allows for various contingencies. Her rationale for less for the case manager to do in the initial period than Mrs James suggests is that this is not a case where the Claimant has just come out of hospital and so care is not being provided for the first time. Mrs James was obviously alive to that point, but thought that Miss Gough had underestimated how much work there would be for the case manager to do in the first six months or year and how time consuming the task would be.[76]It seems to me entirely reasonable for the Claimant to use Bush & Co having already been in contact with them, albeit the lady he originally spoke to has apparently gone to Australia. Their higher travel charges as costed by Mrs James will be alleviated somewhat if, as is apparently the case, they can provide a care manager who is based in the Portsmouth area. In these circumstances, it would not be reasonable to allow more travel time than 2 hours per visit and 40 miles per visit. I would adjust Mrs James’ figures accordingly.[77]In terms of how much time will be required in the initial period, of course there is force in Miss Gough’s point, but I agree with Mrs James that it will take longer for the case manager to get his or her head round the Claimant’s case in the first six months than Miss Gough thinks. I accept the hours for which Mrs James allows in the first six months.[78]The costs of future care per year which I award are thus as follows: i) 18 hours per day of daytime care @£10 an hour x365 days £65,700 ii) Night Sleeper £53.50 per night x 337 nights £18,029.50 iii) Waking nights in times of illness (until age 50) 10 hours a night @£10 an hour x 28 nights £2,800 iv) NI, Annual/Sickness Leave, Recruitment Costs, Payroll Costs etc @27% £23,362.97 v) Additional Food Costs £19.40 per week x 52 £1008.60 vi) Community Access Fund £20 a week x 52 £1040.00 This means that the total projected annual cost of carers up to the age of 50 is £111,941.27. Taking the appropriate multiplier from Table 28 of the Ogden Tables, which is accepted to be 18.65, gives an overall figure of £2,087,704.59. After the age of 50, this increases. Items (ii) and (iii) above come out of the equation and are replaced by an annual figure for waking night care of £36,500 (10 hours a night at £10 an hour x 365). The uplift of 27% becomes £27,594 and the total projected annual cost of care after the age of 50 is £131,842.80. Again taking the appropriate proportion of the multiplier of 7.13 (ie 25.78 less 18.65), this translates into an overall figure of £940,039.16.[79]So far as case management is concerned, in the first six months, because I have only allowed 2 hours and 40 miles of travel per visit, the amount recoverable comes down to £6,396 as against the figure claimed of £9,780. After the first six months and for the same reason, the annual cost of ongoing case management is £7,344 as against the figure claimed of £10,728. Taking the appropriate proportion of the multiplier, ie 25.78 less 0.5 or 25.28, the overall figure comes out at £185,656.32.[80]Costs of training of carers and induction taking the multiplier of 25.78 total £31,430.98 and £23,573.23 respectively and as indicated, these are both allowed. I would also allow the small amount of £2,151.36 claimed as the costs of family care until October 2007.[81]Having considered the issue of the cost of future care, this is probably an appropriate point in the judgment to consider two further issues related to that issue:(i) whether it would be appropriate to order periodical payments in respect of that aspect of the Claimant’s damages; and(ii) the extent to which the award of damages should be reduced or adjusted in some way to reflect the funding for care which the Claimant has received and may continue to receive from the state, the so-called Crofton issue after the recent decision of the Court of Appeal in Crofton v NHS Litigation Authority [2007] 1 WLR 923.

IX Periodical payments

[82]The Court is now required by section 2 of the Damages Act 1996 as amended to consider whether it is appropriate to order periodical payments of damages rather than a lump sum, in respect of some or all of the Claimant’s damages. In making this assessment, the court has to take into account, inter alia, the form of award preferred by each of the parties and the reasons for that preference and the nature of any financial advice received: see paragraph 1 of the Practice Direction B to Part 41 of the Civil Procedure Rules.[83]In the present case, at the time that the Claimant gave his evidence, he was understandably not sure whether he wanted a lump sum award or an order for properly secured periodical payments, since the suggestion that such payments should be ordered had been advanced on behalf of the Defendant somewhat late in the day. The Claimant indicated that he thought that he would be better able to get on with his life if he had a lump sum. He has spoken to an independent financial adviser, Mr Terry Caister, from Wickham in Hampshire who will be happy to assist him in relation to investment of any lump sum awarded, although I do not have any details of that advice.[84]On behalf of the Defendant, it was said that the Court should order any award of damages to be by way of periodical payments, for the reasons set out in paragraph 5 of the Defendant’s Skeleton Argument, specifically(i) because of the significant difference between the parties as to life expectation;(ii) because such an award would avoid the risk of under- or over-compensating him should he live for a longer or shorter time; and(iii) such an award would avoid or substantially reduce the risk of damages being eroded because for example, the Claimant chose to invest capital sums in an unsuccessful business adventure.[85]In closing submissions on behalf of the Claimant, Mr Stevenson urged me not to award periodical payments. He said that the Claimant did not want to be treated like an 11 year old child, receiving handouts. No doubt in part this reflected the mistrust between the Claimant and the Defendant (or rather his insurers) which was referred to by Counsel and which was apparent anyway during the course of the trial.[86]Addressing the concern expressed on behalf of the Defendant that if awarded a lump sum in respect of future care, the Claimant might not spend it on care but on an unsuccessful business venture, he asked me to accept the Claimant’s evidence that if awarded such a lump sum he would spend it on care. Of course, I accept that evidence and I also bear in mind that he said also that he had no interest in going into property development with his brother, so that he is unlikely to use his damages in that way. However, in determining whether to order periodical payments, I have to determine what form of award best meets the Claimant’s needs, whatever his own preference.[87]In the circumstances, I have considered the issue whether to order periodical payments in relation to the award of damages generally in this case, given that the Claimant will on any view be receiving a substantial lump sum otherwise. I am not convinced on analysis that the difference as to life expectancy was as great as suggested on behalf of the Defendant, particularly since my judgment on that issue discounts for the Krause versus Strauss dispute and for a further year in relation to the Claimant’s health generally and thus goes a considerable way towards addressing Mr Tromans’ concerns. Nor do I think that the Claimant is the sort of person who will fritter away his damages on speculative business ventures.[88]Accordingly, I do not propose to order periodical payments generally. The one area of the award of damages where however it does seem to me that periodical payments would be appropriate is in relation to the cost of future care and case management. It seems to me that such an award, if indexed properly, will best protect the Claimant in respect of his likely needs in the future. An order for periodical payments will also, if accompanied by the form of order I propose in the next section of this judgment in relation to the issue of taking into account state funding of care, provide better protection for the Claimant in relation to the uncertainties of such funding in the future, than awarding a lump sum by reference to a reduced multiplier.[89]As regards indexation, section 2(8) of the Damages Act 1996 as amended contemplates that an order for periodical payments shall be treated as providing for the amounts to vary by reference to the retail price index (“RPI”). Section 2(9) provides that an order may disapply or vary subsection (8). In a number of recent decisions at first instance the Courts have concluded that it would be fair just and reasonable to modify the statute and apply a basis of indexation other than RPI: see Thompstone v Tameside and Glossop Acute Services NHS Trust [2006] EWHC 2904 (QB) (Swift J), Corbett v South Yorkshire SHA (2007 28th March, HHJ Bullimore sitting as a Judge of the Queen’s Bench Division), Sarwar v Ali [2007] EWHC 1255 (QB) (Lloyd Jones J) and most recently RH v United Bristol Healthcare NHS Trust [2007] EWHC 1441 (QB) (a decision of Mackay J handed down on 20 June 2007).[90]In those cases, the Courts have not used the RPI for indexation, because the discrepancy between earnings and prices, the growth in earnings being significantly greater than that in prices, is such that indexation by reference to the RPI would lead to massive under-compensation: “..therefore the purpose of indexation, namely to ensure as far as possible that the real value of the annual payments is retained, would not be met” (per Lloyd Jones J in Sarwar v Ali at paragraph 154). The Courts preferred to index periodical payments by reference to the so-called ASHE (Annual Survey of Hours and Earnings). In those cases as in the present case, the periodical payments order related to the cost of future care and case management. The Courts adopted indexation by reference to ASHE 6115, the occupational earnings distribution for care assistants and home carers, as being the best way of ensuring that the real value of the annual payments was retained.[91]Those cases are going to the Court of Appeal on the issue of whether and in what circumstances, the Court should depart from indexation by reference to the RPI. The appeals are due to be heard in November. In the circumstances, rather than rearguing the issue of indexation before me, it was sensibly agreed that, in the event that I ordered periodical payments, the issue of indexation should be stood over to abide the decision of the Court of Appeal. In the event that, in the light of that decision, the parties are unable to agree an appropriate basis of indexation, there will be liberty to restore the case for further argument.[92]For the present, I will simply order that, in principle, the cost of future care and case management should be the subject of an award of annual periodical payments. These will be at £121,418.87 (the total of all care and case management elements) to the age of 50 and at £141,320.40 from the age of 50, with appropriate indexation to be determined hereafter.

X The Crofton issue

[93]The next issue concerns the extent to which the award of damages in respect of future care requires to be reduced or adjusted to reflect the funding for care which the Claimant receives and will continue to receive from Hampshire County Council and the Primary Healthcare Trust. One of the problems here is that of uncertainty, specifically as to whether, faced with a large award of damages, those authorities will stop state funding altogether. I will summarise the evidence, but first the principle involved needs to be examined.[94]In Freeman v Lockett [2006] EWHC 1002 (QB) Tomlinson J raised what might be described as the socio-political question whether a tortfeasor should in effect benefit from the state funding his victim’s care. As he put it in paragraph 6 of his judgment:
“Naturally I accept that the principle involved is compensatory and that one should avoid, so far as possible, double recovery. But I would have expected that the purpose of an award of damages against a tortfeasor would in these circumstances be to relieve the victim of his negligence of the necessity to resort to state funding of his or her care, thereby incidentally relieving the state of the necessity to fund the care of that victim and ensuring that the state's limited and hard pressed resources are available to fund care in the case of those whose injury or affliction has not come about as the result of the actionable fault of another who is by statute required to purchase insurance against the risk of his negligently injuring persons whilst engaging in the activity in question, here driving a motor vehicle on the public highway. I am relieved to find that there is formidable support for my view of what the law ought to provide in the shape of Dr Harvey McGregor QC – see McGregor on Damages 17th Ed. paragraph 35-209.”
[95]I must confess to having considerable sympathy with that analysis, but I fear that the approach of simply ignoring any state funding altogether is not open to me. In that case, the judge decided that there should be no reduction in the claimant’s damages to reflect the possibility of funding by the local authority. He so decided in part because the claimant indicated that if she received a full award, she would not pursue her application for funding by the local authority, but he also went on to say that there was no principled basis on which the court could estimate what funding the claimant could reliably expect to receive in her lifetime, clearly influenced by what he saw as the fragility of the policy under which direct payments might be made.[96]The Court of Appeal in Crofton recognised the force of the socio-political point to which I have alluded. In the judgment of the Court at paragraphs 88 and 89, Dyson LJ said:
“Longmore LJ [in Sowden v Lodge [2005] 1 WLR 2129] referred to the "instinctive feeling that, if no award for care is made because it will be provided free by the local authority, the defendant and his insurers willhave received an undeserved windfall". The counter-argument is that, if the claimant does not have to give credit for benefits that he will receive from the state as a result of his personal injury, then on the law as it currently stands, he will make double recovery. To satisfy the "instinctive feeling", a change in the law would be necessary. Such a change raises what is essentially a political question and, therefore, a matter for Parliament. Historically, the state provided many services to the victims of tortious accidents without charge and made no attempt to recoup the cost of those services from the tortfeasors. Recently, there has been an important change in respect of NHS hospital and ambulances services. Part 3 of the Health and Social Care (Community Health and Standards ) Act 2003 (which came into force in January 2007) provides that any person who has made a compensation payment in respect of an injury to another person will be liable to pay relevant NHS charges for treatment and ambulance services provided to that person. This legislation does not affect the assessment of damages as between the claimant and the tortfeasor. We do not know whether this legislation signals a general change in the attitude of the legislature to the responsibilities of tortfeasors to pay for the costs presently imposed upon the public purse. We say only that we can see no good policy reason why the care costs in a case such as this should fall upon the public purse. We can see no good policy reason why damages which are about to be awarded specifically for the provision of care to the claimant, needed only as a result of the tort, should be reduced, thereby shifting the burden from the tortfeasor to the public purse. We recognise that the mechanism by which these ends could be achieved with justice might be complex and difficult. But, as we say these are policy issues and are a matter for Parliament.”
[97]However, clearly the Court of Appeal considered that in the absence of legislative intervention, as a matter of legal principle, payments by third parties such as local authorities, which the Claimant would not have received but for the accident, have to be brought into account. At paragraph 91, Dyson LJ stated:
“In principle, payments by third parties which a claimant would not have received but for his injuries have to be taken into account in carrying out the assessment of damages unless they come within one of the established exceptions. It is not suggested that direct payments made by a local authority in the exercise of its statutory functions to make care arrangements under section 29 NAA and section 2 CSDPA may not in principle be taken into account. If the court is satisfied that a claimant will seek and obtain payments which will enable him to pay for some or all of the services for which he needs care, there can be no doubt that those payments must be taken into account in the assessment of his loss. Otherwise, the claimant will enjoy a double recovery.”
[98]The Court of Appeal went on to consider Freeman v Lockett, stating that the decision could be justified on the basis that the claimant would withdraw her application for funding if she received a full award of damages. However, the Court was more wary of the wider basis of Tomlinson J’s decision, that state funding should be disregarded because of uncertainty. At paragraph 95, Dyson LJ said:
“We would accept that there may be cases where the possibility of a claimant receiving direct payments is so uncertain that they should be disregarded altogether in the assessment of damages. It will depend on the facts of the particular case. But if the court finds that a claimant will receive direct payments for at least a certain period of time and possibly for much longer, it seems to us that this finding must be taken into account in the assessment. In such a case, the correct way to reflect the uncertainties to which Tomlinson J referred is to discount the multiplier.”
[99]Accordingly, where, as in the present case, the Claimant is being funded for care and will continue to be funded at least for a period after any award, that funding has to be taken into account. The problem is that the Court of Appeal does not really give any guidance as to how it is to be taken into account other than by discounting the multiplier, which as I see it may not be the right approach if there is a possibility that, in the future, the funding may cease altogether. I turn to the evidence in this case.[100]The Defendant called Mr Colin Mansbridge, Head of Revenue Services in the County Treasurer’s Department of Hampshire County Council. One of his areas of responsibility is the financial assessment for clients of Adult Services, as that section of Social Services dealing with adults such as the Claimant is now named. He described how the Council has adopted the guidance set out in “Fairer Charging Policies for Home Care and Other Non Residential Social Services” issued by the Department of Health in September 2003. This is the guidance the effect of which is analysed by Tomlinson J at paragraphs 19-21 of his judgment in Freeman v Lockett.[101]The Claimant’s care needs are currently funded by a combination of funds from the Council in respect of social care and from the Primary Healthcare Trust in respect of healthcare, which as Mr Mansbridge says is assessed at 40%. Part of the social care is funded by the Independent Living Fund, but as Mr Mansbridge said in his evidence, once the Claimant receives any award of damages, that funding will cease and the Council will pick up the shortfall.[102]Mr Mansbridge described how the council’s policy as regards funding for care was set by the executive member of the council with responsibility for the task. The policy can change from time to time and was changed most recently in May 2006. The effect of that change in policy was that the Council now has to take into account the capital and income of any particular client to assess whether that client should contribute towards the funding of his or her care. The Council will look at any sums awarded by way of damages to see for what purpose the funds were received. If they represent funding for future care, they may well have to be brought into account. It was apparent from his evidence that the Council had not been aware, when it last assessed his needs, of the substantial interim payments received by the Claimant (£700,000 in all), £200,000 of which is sitting in his bank account.[103]Equally the Council is not bound by any award the Court may make in forming its assessment of the Claimant’s needs. In the present case, the assessment of Hampshire Adult Services as to the Claimant’s needs is costed at about £80,000 a year. Merely because my judgment has assessed the cost of his care and case management needs at present at about £121,400 a year does not bind Adult Services who may continue to assess his needs at £80,000.[104]Mr Mansbridge said that at present, the Council’s policy is to take into account a client’s capital and income in assessing what contribution the client should make towards the cost of care but that there is a maximum contribution of £395.64 a week, which equates to slightly over £20,500 a year. If that policy and the maximum contribution were set in stone, it would make the determination I have to make as to an appropriate reduction somewhat easier. But it is not. Mr Mansbridge said that he was not able to help as to whether the executive member of the Council might change the policy in the future. When asked in cross-examination whether he could see a state of affairs arising where the executive member would institute a policy that, if a client received a substantial award of damages which covered the cost of care, the Council would contribute nothing, he said that there were a number of local authorities which do not have a maximum contribution and that in such a case, there was a good chance the client would end up paying for all of the care. He said that the executive member of the Council may well decide in the future that in a case where the client has a fund available to cover the cost of care, such as an award of damages, he or she should pay for all the care.[105]Accordingly, the overall position is that, as matters currently stand, the effect of my award in favour of the Claimant of annual payments in respect of care and case management is likely to be that the Council will require him to make a contribution of £20,500 towards the cost of care which it and the Primary Healthcare Trust will otherwise continue to fund, to the tune at present of about another £60,000. It follows that I could say that the annual payments should be reduced by £60,000 so long as that maximum contribution remained the same. The problem is that this will not cater for the situation where, for example, the maximum contribution is increased in the future or where the Council removes the ceiling altogether and requires the Claimant to pay for all his care out of his own funds. That approach has already been adopted by other local authorities and it seems to me that there is a distinct possibility that Hampshire County Council will follow suit. After all, the issue has already been brought into sharp focus for this Council by Crofton where the local authority concerned was also Hampshire County Council. If that policy is adopted, it will be no more than the Council, through the discretion given to it by guidance such as “Fairer Charging Policies for Home Care and Other Non Residential Social Services”, recognising the force of the socio-political argument debated in cases such as Freeman v Lockett and Crofton and which I have outlined above.[106]Given the distinct possibility of such a change in policy, it does not seem to me appropriate or fair to the Claimant simply to make a reduction in the multiplier as the Court of Appeal suggests. Since the amount of care which the Council funds is no more than adequate, whereas I have accepted that the Claimant should be entitled to the better, more expensive, care regime as advocated by Mrs James, the effect of such a reduction in multiplier might well be, in the event that the Council does make such a change in policy, to condemn the Claimant to a less adequate care regime in future.[107]The parties had various suggestions as to how to resolve this conundrum. Mr Stevenson on behalf of the Claimant put forward a formal offer of what he described as a “reverse indemnity” whereby the Claimant would receive his full award of damages without any reduction (in the case of his future care by way of periodical payments as I have determined) and in return would undertake to use his best endeavours, albeit at the Defendant’s insurers’ expense, to obtain the maximum payment by way of funding for care from the local authority. This has apparently been done in other cases and I can see that from the Claimant’s perspective it has the attraction of removing risk. However, as I have already indicated, there is a degree of mistrust between the Claimant and the Defendant’s insurers. Mr Faulks told me that the insurers would not be happy with such a reverse indemnity arrangement. I do not believe that I have power to order it.[108]The alternative proposal by Mr Faulks was that the Court should order the Defendant to pay whatever proportion of the annual payment which the court has awarded in respect of care and case management was not funded by the state. This would ensure that if, on the hypothesis I have outlined above, next year the Council requires the Claimant to contribute £20,500 towards the cost of his care but will otherwise pay £60,000 towards that cost, the Defendant’s insurers would fund the £61,400 odd difference between the annual award for care and case management and that payment by the Council.[109]If on the other hand, in the future, the Council’s policy changes and the maximum contribution increases or the Council decides not to fund the cost of care at all, the effect of an order that the Defendant should pay whatever proportion of the cost of care awarded was not funded by the state would be that the insurers’ contribution would increase correspondingly or they would become liable for the full amount. I appreciate that this is not as attractive to the Claimant as the reverse indemnity but it seems to me that it is a proposed course which has the merits of being an order the Court has power to make and of being fairer to the Claimant in the long term than any alternative order reducing the multiplier to reflect state funding the extent of which in the future is uncertain.[110]There will have to be some safeguards in place as regards timing of payments. As I understand it, one effect of the award of substantial damages and consequent implementation of the more extensive care regime Mrs James recommends, will be that the Council will choose to make direct payments to Claimant. Once the Council’s policy is clear, then it will be necessary to ensure that the insurers make the necessary periodical payments promptly. If the necessary safeguards cannot be agreed between the parties, there will be liberty to the parties to apply back to the Court for further directions (as there will be in any event once the outcome of the Thompstone appeals is known).

XI Occupational therapy and aids

[111]The expert evidence on behalf of the Claimant on issues of occupational therapy and the aids required by the Claimant to ensure as normal life as possible was given by Mrs Andrea Grindley. She is an occupational therapist with considerable experience of assisting quadriplegics. She acts as an expert witness on both sides in cases such as these, although she said 65% of that is defence work. I found her an impressive witness. The Defendant did not call an occupational therapist in this area, but recalled Miss Gough. As she fairly accepted her experience is in nursing. She also accepted that she would defer to the opinions of an occupational therapist with spinal injury experience, which of course Mrs Grindley is. It follows that, save in certain limited respects which I detail below, I prefer the evidence of Mrs Grindley on these issues to that of Miss Gough where they differ, which I would have done anyway, in the light of Mrs Grindley’s greater relevant experience, even without Miss Gough’s concession.[112]So far as wheelchairs are concerned, the Defendant agrees that in addition to the Balder wheelchair which the Claimant has purchased (and which has the facility for him to stand), he should be entitled to recover the cost of an all terrain wheelchair, the Alber Adventure Chair. However, in so far as a back up lightweight manual wheelchair is concerned, the Defendant says this should be obtained through the Wheelchair Service i.e on the NHS. The Claimant’s experience of the Wheelchair Service has not been a happy one and I accept Mrs Grindley’s view that he should not be dependent on them. However, since this is essentially a back-up should anything go wrong with the Balder, which is a reliable piece of equipment, I do not think the Claimant can recover the full cost of a Cyclone wheelchair with stand up facility, but only a lightweight manual wheelchair, which Mrs Grindley costed at about £3,000. This also ties in with the evidence of Mrs Gilman, the physiotherapy expert called by the Claimant, that with the Balder already, the Claimant does not need another stander.[113]As Mr Faulks ruefully accepted in closing submissions, in the light of Miss Gough’s acceptance at the end of her re-examination that the Claimant was entitled to have 4 hoists on the basis that (as I conclude hereafter) he is entitled to have the swimming pool and thus the pool hoist that goes with it, he has “lost on hoists”. They are recoverable in full.[114]Although Mr Gardner was in favour of the special Clos-O-Mat toilet facility, Mrs Grindley disagrees and the Claimant does not like it, so I have disallowed that item.[115]I consider that both the neater-eater and the neater-drinker are facilities which the Claimant should be entitled to have if he wishes As Mrs Grindley described the neater-eater in her evidence, correctly in my view: “this is another give-back in terms of self-esteem”.[116]Equally I have formed the view that the tilt in space shower chair (which Mrs Grindley confirmed was not available on the NHS) should be recoverable. As she said, the Claimant feels insecure in the shower chair he has at the moment and the tilt in space chair will be more comfortable and safer. I also agree that the reclining armchair which she recommends with two motors, one of which enables the legs to come up separately, rather than some cheaper version, should be made available.[117]The Defendant, whether through Miss Gough or through his Counsel, quibbled in relation to a multitude of additional matters (an attitude and approach replicated in the case of assistive technology) even to the extent of querying the cost and frequency of replacement of cushions for the Claimant’s wheelchair. Whilst one understands fully that the Defendant and the insurers who stand behind him do not wish to pay out more than the Claimant is entitled to and whilst, in relation to a number of major items, they have valid arguments and concerns, as this judgment demonstrates, the extent of relatively petty quibbling on aids as on assistive technology (to which I turn hereafter) was unedifying and should have been capable of agreement.[118]That said, I propose to make some allowance for the Defendant’s arguments. The items already identified bring the sum claimed on an annual basis to in the region of £20,335. I will reduce that to £20,000. Taking account of the fact that the Alber All-Terrain wheelchair and the Woodstar trips to North Wales are matters which are likely only to be relevant to the Claimant up to age 50 (so that the reduced multiplier of 18.65 applies to those items) but otherwise applying the multiplier of 25.78, I arrive at an overall figure for aids of £492,527.32.

XII Physiotherapy and equipment

[119]When the issue of physiotherapy and related equipment is viewed overall, the difference between the parties in financial terms is relatively minor. Of more significance is the issue of the swimming pool and its costs, to which the physiotherapy evidence was also directed, with which I deal in the next section of this judgment.[120]Mrs Gilman who gave expert evidence for the Claimant and Mrs Constantine who gave expert evidence for the Defendant were in broad agreement as to the Claimant’s physiotherapy needs until the last ten years of his life. For most of his life, Mrs Gilman thinks 20 sessions of physiotherapy a year will suffice, Mrs Constantine in fact slightly more at 21. Mrs Gilman allows for 40 sessions in the first fifteen months. Mrs Constantine takes what might be described as a more graduated approach. She suggests twice weekly sessions for the first 13 weeks. Thereafter, she allows for a review of the maintenance programme through 8 sessions annually, together with 12 sessions annually for carer training and one session annually for review of the Claimant’s posture and mobility. In this area, I prefer the approach of Mrs Constantine.[121]As I have said, the principal difference between the experts is as to the Claimant’s needs in later life. Mrs Gilman considers that, in the last 10 years of his life, the amount of physiotherapy the Claimant will require will increase to 40 hours a year. In her evidence Mrs Gilman said that her experience was that, whatever the level of injury, as clients age, there was change and it was this that led to the need for extra therapy. Mrs Constantine disagreed. Her experience of working in a spinal treatment centre for seven years assessing the long term needs of patients was that the needs of patients with the level of injury suffered by the Claimant did not change significantly with age.[122]This seems to me to tie in with Mr Tromans’ evidence that in patients with this level of disability, he had no experience of pursuing additional equipment because of ageing and that, as they were fully dependent on others, there was no further ability to assist in their own care capable of being lost through age. Although as I have held, that evidence failed to address Mr Gardner’s point about the effect of ageing on the Claimant’s skin and the need for turning at night, it remains a valid enough point in itself and is supportive of Mrs Constantine’s evidence. I also note that Mr Stevenson chose not to cross-examine Mrs Constantine, so that her evidence on this point was unchallenged. I prefer her evidence on this point to that of Mrs Gilman, which seemed to me somewhat generalised and certainly did not justify a doubling of the treatment in the last ten years of life. Accordingly, taking the Defendant’s figures from the spreadsheet provided by the Claimant and applying where appropriate a multiplier of 25.53 (i.e. the appropriate multiplier of 25.78 less 13 weeks covered by Mrs Constantine’s two sessions a week, which I have also accepted) the amount allowed for physiotherapy treatment is £73,076.90.[123]Turning to equipment, the need for and cost of the FES cycle is agreed between the experts. On the basis that he will be purchasing this in the near future, there is no need to allow for replacement of the Theravital, which he has already purchased and the cost of which forms part of his special damages. Equally, the FES attachment for the Theravital is not required in those circumstances, so these items are disallowed. In relation to the FES, I allow the cost of maintenance less the free maintenance for the first three years. I also allow for the cost of an active passive trainer which the experts agreed was required.[124]One item which is in dispute is the need for a physiotherapy plinth or so-called wide therapy couch. Mrs Gilman is of the view that this will make the Claimant’s treatment easier and safer. In her evidence she said she recommends it for two reasons:(i) it would be a useful surface on which to carry out stretches and would be better than a bed because it has a firmer surface;(ii) it could serve as a changing surface which is required in the pool area. Therefore it could serve both functions. Mrs Constantine’s opinion is that such a plinth would be of no benefit to the Claimant. On balance, I prefer Mrs Gilman’s evidence on this point and would allow for this item.[125]The experts are agreed that the “cough assist” which the Claimant has already bought has been an effective treatment for the Claimant. This item is a reasonable one and costs in relation to it should be recoverable. In the context of the claim for future loss, I allow for the costs of replacement and of the warranty claimed, subject to adjustment of the appropriate multiplier to reflect the fact that the overall multiplier is 25.78, not 27.076 as asserted on behalf of the Claimant. Allowing for the small items claimed as well, what I will award is £17,255 in respect of capital items and £97,998.10 for replacement and maintenance.

XIII Hydrotherapy and the swimming pool

[126]I propose to deal with the issue as to the necessity for and reasonableness of the swimming pool separately before addressing the specific accommodation issues, since it is an issue that impacts on several of the accommodation costs. Equally, I propose to deal with the assistive technology issues after dealing with accommodation issues, since to an extent they are inter-related.[127]It is common ground between the medical experts and the physiotherapists that the Claimant would benefit from regular sessions of hydrotherapy. Mr Gardner referred to the beneficial effect of the Claimant being able to move around in the water to help ease joints in a weightless environment. Mr Tromans, whose unit at Odstock has a hydrotherapy pool of some size, agreed that immersion in warm water is likely to be beneficial for pain and spasticity, although he considered this could be achieved in a spa pool rather than a formal swimming pool.[128]Mrs Gilman said physiotherapists regard hydrotherapy as physiotherapy in water aimed at reducing physical symptoms. Mrs Constantine agreed that being in the pool would be therapeutic for the Claimant in terms of stretching and pain relief, although if she were starting from scratch, she would probably recommend a spa type pool 14 feet long by 6 to 6 ½ feet wide, such as she had recently seen installed. Of course in the present case one is not starting from scratch. It is worth setting out in full her opinion as expressed in her report:
“Mr Burton found great benefit from using the hydrotherapy pool at Salisbury District Hospital. It is very difficult to locate suitable hydrotherapy facilities for those with tetraplegia -there are commonly difficulties with pool access, changing facilities, temperature, swimming times, distance to be travelled and so on. A problem with any one of these makes it impractical or impossible for someone such as Mr Burton to use public swimming facilities. As Mr Burton’s property already has a pool in-situ, it seems entirely reasonable that this should be made suitable for his needs with respect to issues such as access and temperature. It will be of benefit to him both therapeutically with respect to stretching and pain relief and for leisure purposes-particularly as a means to engage with his son”
[129]Notwithstanding the relative unanimity of the expert evidence on this issue, Mr Faulks submitted that the Claimant should not be able to recover the costs of the pool and the related expenses because it is not a medical necessity, relying in this context on the decision of the Court of Appeal in Cassel v Riverside Health Authority [1992] PIQR Q168. In that case, the Claimant suffered cerebral palsy during his birth, causing irreparable brain damage. He loved water and it was hoped he would learn to swim. His claim included £32,000 for the cost of a modest swimming pool. The judge allowed this cost in addition to his general damages for loss of amenity. The Court of Appeal reversed that award on the basis that there was no evidence that it was medically necessary for him to swim. As Ralph Gibson LJ put it:
“there was no basis in the evidence for awarding this sum as an expense made necessary by the increased cost of caring for the plaintiff in his injured state.”
[130]It seems to me that the critical difference between that case and the present one is that there was no medical evidence there to support a case that swimming was a necessary part of the therapy the Claimant required. The only evidence came from the Claimant’s mother. In contrast, in the present case there is evidence both from the spinal cord injury specialists and the physiotherapists as to the therapeutic benefit to the Claimant that hydrotherapy would have. In principle, it seems to me that the costs of a pool and the related expenses of modifying it to the Claimant’s needs and running it should be recoverable. I will return to the detail of those claims later in this judgment.[131]At the trial, the Defendant maintained the position that even if it were appropriate for the Claimant to have an indoor pool at his house, the pool at the property purchased, which measures 7 metres by 4 metres was in excess of his requirements and a smaller pool would suffice. Some mention was made of a hot tub but that would not be sufficiently large to enable the Claimant to move around in the water with a carer and a physiotherapist, as it was accepted would be required. It was then said that a pool of the size of the hydrotherapy pool at LB Healthcare (the organisation which has been providing the Claimant with physiotherapy) would suffice. This point rather backfired on the Defendant when it emerged late in the trial that the pool at LB Healthcare was exactly the same size as that at the Claimant’s property. In all the circumstances, I have reached the very firm conclusion that the pool complex is not in excess of the Claimant’s requirements and is entirely suitable and appropriate. XIV Accommodation Was the house purchased more than necessary for a suitable property?

XIV Accommodation

[132]The principal issue in relation to accommodation concerns the Roberts v Johnstone [1989] QB 878calculation of the interest allowable on the difference between the price paid for suitable accommodation and the price the Claimant would have paid for a house if he had not suffered the injury (it being agreed in this case that the price the Claimant would have paid is £200,000). This is an issue which has an impact on other issues relating to accommodation.[133]The Defendant does not suggest that the property purchased is not suitable but argues that it has more extensive grounds than necessary and contains a swimming pool complex which is surplus to requirements. Accordingly, the price of £600,000 paid for the house is said to be more than was necessary. Mr Cowan, the expert architect who gave evidence for the Defendant, considered that an appropriate property to satisfy the Claimant’s needs in the Portsmouth/Southampton area should have cost no more than £480,000. He produced particulars from the internet of two properties in the locality which he considered might have satisfied the Claimant’s needs. He accepted that he had not viewed either and that they both appeared to be on sloping sites, which was not ideal for the Claimant. He said in evidence that he was merely trying to put down a yardstick or indicator as to the price per square metre of appropriate properties.[134]In my judgment, the Defendant’s contentions on this point are misconceived for a number of reasons. First, as Mr Cowan fairly accepted, the question whether a pool is required for the Claimant is a matter for others, not for him. I have already concluded that it is reasonably necessary for the Claimant to have a pool as part of his ongoing therapy. Since neither of the properties identified by Mr Cowan had a pool, they are not an accurate guide as to the cost of a suitable house for the Claimant with a pool. Since, as was accepted by Mr Cowan, it would cost about £160,000 to build an indoor pool of the size of that at the Claimant’s house, that would suggest that (even assuming that a reasonable price for a suitable house without a pool would be about £480,000) the price paid of £600,000 was a thoroughly reasonable one and may even have been on the low side.[135]I should add that, even if I had reached the conclusion that the pool was not medically necessary or appropriate as a part of the therapy the Claimant needs, it would not follow that the value of the pool should be deducted from the capital value of the house. This point was addressed by Hobhouse J as he then was in Willett v North Bedfordshire Health Authority [1993] PIQR Q166. In that case those acting for the infant plaintiff had bought a house for him with a swimming pool, the additional cost of which was £15,000. The judge found, following Cassel, that the pool was not reasonably necessary for the well-being of the claimant, but rejected the argument that he should go on to reduce the capital value of the house by £15,000 for the purposes of the Roberts v Johnstone calculation. He said:
“I do not accept the defendant’s argument on that point. The relevant question is whether or not it was a reasonable expenditure on the part of those acting for the plaintiff to buy this house. It is accepted that they had to buy a house that was suitable for him. They had to go out into the housing market and purchase a house. It is also the evidence that a reasonable estimate for the sum to be expended would have been between £120,000 and £160,000. The price paid for this house falls within that bracket. I accept the submission of the plaintiff that when those acting for James are going out into the housing market, provided they act reasonably, they must exercise a reasonable element of selectiveness in the house they buy. They may prefer a house with a smaller or larger garden. They may prefer a house in one area or another. They may prefer a house which is on a main road or may prefer a house in a quieter area. The house which they did buy has the disadvantage that it is on a main road, but it has many advantages and one of those advantages is the swimming pool. It is a suitable house. It has been bought at a reasonable price within the range that they should reasonably have had in mind and I am not prepared to hold that they acted unreasonably in buying this house. If that is so, then the fact that it included a swimming pool is beside the point. They have incurred reasonable expenditure.”
(at pages Q173-4)[136]Mr Stevenson submitted that this case is analogous with Willett. I agree. Accordingly, even if I had concluded that the pool was not reasonably necessary for the Claimant’s needs, I would still have concluded that it was reasonable to spend £600,000 on a suitable property and that there should be no deduction from that figure for the purposes of any of the relevant calculations. The passage from Hobhouse J’s judgment also addresses directly the suggestion that the grounds at the property were too extensive and I reject any suggestion that there should be a deduction from the price of £600,000 to reflect some notional more modest garden. Furthermore, on the facts of this case where the Claimant has a young son with whom he wishes to play in the grounds of the house and intends to purchase an all-terrain wheelchair (the cost of which it is accepted on behalf of the Defendant should form part of his damages), I rather doubt whether there is any force in the suggestion that the grounds are too extensive.[137]In any event, given the long and dispiriting search which the Claimant and his wife had for a suitable property (including being gazumped on the other suitable house they found), I have formed the very firm view that it was reasonable for them to purchase the property they did. Notwithstanding that Mr Cowan is an expert on the issue of suitable accommodation for people with disabilities and that he gave his evidence in a fair and measured manner, I also have considerable reservations about whether or not £480,000 is a realistic price for a suitable house even without a pool. Due to the constraints of time in preparing his report, he had not inspected either of the properties he identified to assess their suitability, let alone the cost of such alterations as would inevitably be required. He could only give very general evidence as to the likely cost. He balked at Mr Wethers’ figure of £200,000 saying that he would hope to be able to do it for £150,000.[138]Whether this is right or not, none of this generalised evidence seems to me to be a sound basis for the contention that £600,000 was an excessive price. It is notable that the asking price for the other house they found (which did not have a pool and which in other respects was not as suitable as the property they eventually purchased) was £595,000, only £5,000 less (and although the Claimant’s offer of £585,000 was accepted, he was subsequently gazumped). This provides further support for the Claimant’s case that £600,000 was within the range of what was a reasonable price for suitable accommodation even without a pool.[139]On the basis that the Roberts v Johnstone interest calculation is thus referable to the difference between £600,000 and £200,000, the correct figure for annual interest is £10,000 as contended for by the Claimant. Taking the multiplier I consider appropriate of 25.78, the amount recoverable under Roberts v Johnstone for the future is £257,800.[140]Dependent in part on the reasonableness of the acquisition of the property is the amount recoverable by way of annual running costs, additional to what would have been recoverable in any event. These, including pool related costs, are now put on behalf of the Claimant as £14,527.40. Some of these, including gardening/maintenance are agreed on behalf of the Defendant. Others are apparently not admitted although no positive case is put forward about them.[141]There are two matters which were the subject of specific submissions. The first is the running costs of the swimming pool which are claimed at £4,000 a year. Mr Faulks contends that this is a substantial sum and that all that should be recoverable is the additional costs of heating and maintaining a pool to cater for the Claimant’s specific needs, over and above the costs which would have been incurred in running a pool at the property anyway. Whilst I see the reasoning behind the argument, on analysis it is wrong. The Claimant is entitled to recover as damages expenditure he would not have incurred but for the accident. Had the accident not occurred, it is common ground that he would have spent £200,000 on a house, which clearly would not have had an indoor pool. This is not a case in which it could be said that having a pool which he can only use personally for limited hydrotherapy purposes somehow gives rise to betterment to the Claimant, merely because he can have the pleasure of watching his family and friends enjoying themselves in the pool. I consider that the pool costs are recoverable in full.[142]The other matter is the question of council tax on the carer’s annex. There has been some suggestion that the local council will levy council tax separately from the main house, now that the annex is occupied. I found this rather a surprising proposition when it was first mooted, since it is not as if the annex is rented out. Rather, it is lived in by the carer whom the Claimant needs. In fact, towards the end of the trial some information was produced, apparently from a Citizen’s Advice Bureau website, which suggests that some live in carers are disregarded for council tax purposes. Furthermore, given that it is proposed that the care regime recommended by Mrs James is to be adopted, with carers not resident there but only sleeping over sometimes, it seems to me even less likely that the council will levy a separate charge to council tax on the annex. I agree with Mr Faulks that it has not been shown on a balance of probabilities that this charge will be incurred. I propose to disallow it. I will allow council tax as an annual cost only in the amount of £309.47 accepted by the Defendant.[143]Thus, overall the annual running costs which I will allow are £13,656.32. Applying the multiplier of 25.78, the overall amount recoverable is £352,059.93.

Alterations

[144]The Claimant claims the cost of various works of alteration and adaptation at the property purchased as part of his future loss. The figure shown in the Amended Schedule of Loss produced in draft at the outset of the trial, for which I gave the Claimant permission to amend was £207,607.82. To this should be added the cost of the pool decking (which is not in dispute) at £3,397. The total is then subject to a contingency or uplift figure of 5% of which Mr Wethers spoke in his evidence and which Mr Cowan seems to accept in principle, of £8,393.45. The total claimed is thus £219,398.27.[145]The Defendant admits only £140,351.85 of this amount. It appears from the Joint Statement of the housing experts, Mr Wethers and Mr Cowan that there are differences between them as regards both the house adaptation costs and the pool adaptation costs. The differences as regards the house adaptation costs concern two matters. First in respect of the cost of floor coverings put forward by Mr Wethers, Mr Cowan queried whether there was not an element of duplication. As explained by Mr Wethers in his evidence, this related to the cost of replacing carpet in areas where door openings would be altered to accommodate the Claimant’s wheelchair with the consequence that carpets would be cut and damaged, requiring total replacement. When this explanation was put to Mr Cowan in cross-examination, he accepted it.[146]The second difference concerns the cost of extending the existing shower room in the house to make an appropriate wet room for the Claimant. The size of this extension was agreed, but not the building costs which Mr Cowan regarded as too high. In his evidence, Mr Wethers explained that where the size of an extension was relatively small, the cost of building per square metre was correspondingly higher. In his evidence Mr Cowan accepted this explanation in principle but said he had not had time to look at Mr Wethers’ analysis in detail. He said very fairly that he was not in a position to disagree with Mr Wethers although the figure might be high. In the circumstances, I propose to accept Mr Wethers’ evidence and figures. It follows that the house adaptation costs are recoverable in full at £98,457.57.[147]So far as concerns the pool adaptation costs, again there are two matters which divide the experts, whether it is appropriate to allow for separate shower and changing facilities within the pool area and what the location and size of the glazed link should be between the house and the pool. The two matters are interlinked, in the sense that Mr Cowan considers that it is not necessary to have a separate shower and changing facility in the pool area, because it is possible to construct a heated glazed link between the pool and the carer’s day room adjacent to the Claimant’s bedroom and wet room in the main house.[148]In his evidence in chief, Mr Wethers said that it was unreasonable to expect the Claimant after using the pool to go in his wheelchair to his shower room in the main house to shower and change and that the Claimant needed a shower and changing facility in the pool area. This opinion was not challenged in cross-examination and although Mr Wethers is not a medical expert, he has considerable experience of providing for the housing needs of disabled people. Furthermore, his opinion accords with the medical evidence as to the vulnerability of the Claimant. I am very firmly of the view that the Claimant does need a shower and changing area within the pool complex and that it is unreasonable to expect him to go back in his wheelchair to the main house to shower and change after a swim, even if the link which Mr Cowan proposes is heated.[149]Once that point has been resolved, there is no longer any need to have the glazed link linked to the carer’s day room as Mr Cowan suggests. The obvious and most convenient location is between the pool and the reception rooms in the main house rather than between the pool and a room occupied by the carer, given the desirability of providing as much privacy and normality for the family as possible. All that is therefore left between the experts as regards the glazed link is its width. Mr Wethers advocates a width of 1500 mm, partly to provide storage space in the link for the physiotherapy plinth which should not be left in the pool area for fear of corrosion from the very warm and humid atmosphere and partly to assist turning by the Claimant through the doorway to the house. Mr Cowan in his reports advocated a link of a lesser width at 1200 mm. Although he considered that any plinth could stored more cheaply in a store room within the pool complex (a view with which I concur) he accepted in his evidence that he would not object to Mr Wethers’ proposal for a link with a width of 1500 mm. In the circumstances, it seems to me that there is nothing in the points made by the Defendant in respect of pool adaptation costs. Overall the sum claimed by the Claimant for adaptation costs of £219,398.27 is recoverable.

XV Assistive technology

[150]This area of the case concerns the cost of technology now available to assist the Claimant to lead as normal a life as possible, such as wheelchair technology, voice activation software for the computer and remote controls in the house for lights, power sockets, blinds/curtains and doors. On this issue, the Claimant called Mr Roger Southall who has immense experience of such technology and now runs his own company which arranges the supply of such technology to tetraplegics. He has indeed started arranging such technology for the Claimant. It was suggested that I should approach his evidence with some caution because of the difficulty of being objective if he was making a profit out of the supply of such technology. In my judgment there was nothing in that point. His response when this suggestion was put to him in cross-examination was an apt one. He said that when you specialise in something and it is your life’s work you try to be objective. I found him to be a measured and objective witness.[151]The Defendant called Mr Colin Clayton who has worked as an electonics engineer in assistive technology, particularly at the Augmentative Communication Service associated with Great Ormond Street Hospital. He is now an assistive technology consultant. He gave his evidence in an open and fair manner and is obviously experienced in the field, although I was left with the impression that he was less experienced than Mr Southall in what was available in the market and its price, being particularly dependent on what is charged by one supplier, Possum, although that supplier is one of the leading suppliers. Mr Southall had worked for Possum in the past but seemed to me better able to give an assessment of the requirements of this Claimant and what that would cost looking at the market as a whole, not simply at what is available from Possum. Accordingly, except in a few areas detailed below, I preferred Mr Southall’s evidence to that of Mr Clayton.[152]In the event, the differences between the two experts were not great. One of the principal areas of dispute was as to the number and cost of remote light and power switches and of remote controls for curtains/blinds and doors. I should say at once that I was distinctly unimpressed by Mr Clayton’s evidence challenging the number of such remote controls which the Claimant should have. If such technology is available to give the Claimant a level of independence so that he does not have to summon a carer or his wife to switch on a light or a piece of equipment or to draw a curtain or blind, it seems to me that he should be entitled to it and to recover its cost from the Defendant. The number of such remote controls was assessed by Mr Southall and set out on a helpful plan he prepared. The assessment did not involve every single light fitting or power socket or every window or door in the house, but only those that the Claimant was likely to use in the normal course of events.[153]Similarly in relation to prices, I prefer Mr Southall’s evidence as to the appropriate cost for such remote controls, based as it is upon assessing what is suitable after looking at the market as a whole rather than just at Possum prices. Indeed, in a number of instances, Mr Clayton appeared to accept that the prices proposed by Mr Southall were reasonable.[154]Mr Southall advocated a CCTV system with 4 cameras costing £1,750. When he was asked in cross-examination whether this was really necessary (which in itself was rather a surprising question since the Defendant’s expert Mr Clayton advocates such a system, albeit a cheaper version costing £1,000) Mr Southall responded that there was an awful amount of expensive equipment at the property and there was a need to record visitors. He also referred to the security risks which might be involved if carers were female, which he did not spell out. In my judgment the CCTV system is necessary and the Claimant is entitled to recover the cost put forward by Mr Southall.[155]Lastly in relation to what might be described as house based technology, Mr Southall put forward a figure for installation, programming, training and commissioning of £6,500. This was what might be described as a “bespoke” assessment of what might be required, whereas Mr Clayton had simply taken a figure of £3,000, Possum’s figure for installation alone. He had not included training and commissioning. He accepted that this was a bare minimum figure. Mr Southall did not consider Mr Clayton’s figure would enable a full and proper installation of what the Claimant requires. I agree with that assessment and allow the higher figure put forward by Mr Southall.[156]In relation to computer equipment, there are three items in dispute between the experts. First, the cost of voice activation software which Mr Southall priced at £450 being the cost of software called Professional which he had supplied to the Claimant and which he said was the best available. Mr Clayton had no experience of Professional and priced £200 for this, on the basis of Dragon Preferred software, which according to Mr Southall, is less reliable software which he does not consider appropriate for the Claimant’s needs. I allow the higher amount for the Professional software.[157]The second item was the lightweight headset for computer voice software which Mr Southall priced at £452, whereas Mr Clayton only allowed £50. As explained by Mr Southall, what he had priced for was a special system which went with the radio two way headset for wheelchair integrated telephone and computer use (which is agreed between the experts at £725). He said this combined system was not a commercially available item but was specially made. Mr Clayton was unable to comment on this because he said he did not have enough information. I allow this item in full.[158]The third item was the cost of the laptop computer itself. Mr Southall referred to the need to have a robust computer because of the risk of it being dropped from the wheelchair or by a carer, which I fully accept. However he had priced this at £2,400, twice what Mr Clayton allows for. Allowing for the current price of what might be described as good robust laptops which is considerably less that £2,400 and for the fact that as Mr Southall accepted, some credit had to be given for the fact that the Claimant would have had a computer anyway, it seems to me that the right figure to allow is £1,200 rather that the £2,400 claimed.[159]The final major area of assistive technology which Mr Southall deals with is wheelchair technology, specifically head controls and voice seat controls, a vehicle lock down system for a second chair (which I have held the Claimant is entitled to) and maintenance, all of which totals £20,000. Mr Clayton does not comment on these costs, which he says are usually the remit of other experts. Whether that is right or not, there is no specific challenge to these costs from any of the Defendant’s experts and accordingly, I allow them in full.[160]There was a minor difference between the parties as to whether the Claimant is entitled to recover the £300 claimed for consumables such as printer paper and cartridges and for updates, or only £150 as suggested by Mr Clayton. This was hardly worth troubling over, although there was cross-examination about it. I allow the claim in full.[161]Dividing what I have found is recoverable between wheelchair technology and other assistive technology, as the Claimant does in respect of future loss in the Amended Schedule, I conclude as follows. In respect of wheelchair technology the Claimant is entitled to recover the capital cost of £19,750 and annual replacement costs of £2,225, which applying the multiplier of 25.78 amounts to £57,360.50. In relation to other assistive technology, the Claimant is entitled to recover the capital cost of £62,807 and annual replacement costs of £10,956.90, which applying the multiplier of 25.78 amounts to £282,468.88.

XVI Loss of earnings

[162]In the Amended Schedule of Loss served on behalf of the Claimant at the outset of the trial, a claim was put forward for past loss of earnings until the trial of £249,844.71 and for future loss of earnings at £33,000 a year with a multiplier of 22.85, amounting to £754,034.34, giving an overall total slightly in excess of £1 million. Mr Faulks described this claim as wholly unrealistic, a view with which I entirely agree. Recognising this, in closing submissions, Mr Stevenson limited his client’s claim for past loss of earnings to £100,000 (roughly based on £20,000 a year for 5 years, said to be conservative since the period since the accident is almost 6 years) and in respect of loss of future earnings, whilst maintaining a claim for £33,000 a year, accepted that a multiplier in excess of 20 could not be justified.[163]Notwithstanding those sensible concessions, it remains the case that the claim for loss of earnings is excessive. In order to put this in context it is necessary to look more closely at the education and employment history of the Claimant.[164]At the stage of his primary education, the claimant was statemented as having moderate learning difficulties and went to a special school at the age of eight. After four years during which he worked hard to bring his reading and writing up to the requisite standard, he underwent further tests and transferred to mainstream education. He attended Warblington School in Havant. Although it is clear that he was a hard worker at school, his learning difficulties affected his ability to achieve in exams. He took 9 GCSEs, obtaining grades varying from D to G and left school in the summer of 1999.[165]From about the age of 14, the Claimant had worked out of school hours and at weekends, first with a paper round which he then supplemented by working at the Pantry Café in Waterlooville for some eighteen months at weekends and in school holidays. A statement from Mrs Timmins, the former owner of the café, speaks to his hard work and to the fact that he worked well without requiring supervision. In the summer holidays of 1998, the Claimant participated in Trident, a work experience scheme in Hampshire. He spent two weeks working for a window fitting business and found that this was work he enjoyed.[166]When he left school, he started working for Paul Burton (who was his mother’s partner at the time) and Lee Thomas who were double glaziers. He started as a “joey” or “jerry”, someone who does all the menial tasks the skilled window fitters do not want to do and was paid £100 a week cash in hand. However, in September 1999, they did not have as much work coming in as they had hoped and could not afford to keep paying the Claimant. He then registered with Knight Benton, a local employment agency for whom he did a series of jobs involving manual labour. During that time he was registered for national insurance and paid income tax. One of the jobs through Knight Benton was working for Zenith Windows in Petersfield, loading lorries with windows in the correct order.[167]After some two months, he left Knight Benton and returned to work for Mrs Timmins at the Pantry Café. He worked 6 days a week from 7.30 in the morning until 5 at night, essentially running the café himself, for which he was paid £130 a week cash in hand. Although Mrs Timmins wanted him to go into partnership with her, he did not want to work in a café all his life. She then sold the café to Major Atwell and the Claimant continued working for him but did not like his style of running a business and so left at the end of October 2000.[168]The Claimant then worked for Manpower from 30 October 2000 to 30 March 2001 and was engaged at Xyratek in Havant on shift work helping to build computer chassis. During that time he paid national insurance and income tax. Although he says that he enjoyed working at Xyratek, what he really wanted to do was work in the double glazing industry. In December 2000, he sat a two hour exam set by the Construction Skills Certification Scheme which he passed, being classed as a consequence as a skilled installer of windows and doors. In March 2001 an opportunity came up to work again with Lee Thomas which the Claimant took.[169]At this stage, Mr Thomas was in his early 20s. In his witness statement dated 14 March 2004, he says he is an experienced and qualified window fitter. In 2001 he was working on a self-employed basis as a team with Paul Burton. Through a company called Futuremost for whom they had worked before, they landed a large contract working in Hackney and invited the Claimant to join them. Mr Thomas says the Claimant was a fast learner and within 2 months was able to fit most types of UPVC windows and other double glazing products. The Claimant was paid £180 to £200 a week cash in hand, although his evidence was that once he began working with Mr Thomas in March 2001, he took steps to register himself as self-employed and obtained his self-employment card from the Inland Revenue.[170]At around this time, Mr Thomas ceased working with Paul Burton whom he found unreliable and he and the Claimant started working together as a team. Following the job in Hackney, they fitted windows and doors at Lynton House in Portsmouth, a development opposite the Law Courts, where Mr Thomas was paid £600 a week (apparently net of tax deducted at source) and the Claimant continued to be paid £180-200 a week. In June 2001, they moved on to Gun Wharf, a large and prestigious development of shops restaurants and apartments in Gosport, where they fitted doors and windows. Mr Thomas says that they were paid on a piece work basis of £30 a window. The windows required chemical fix fittings, a relatively new type of fitting to both of them which needed some skill to fit. It is asserted that initially they were only fitting 7 windows a day, but by the time of the accident were fitting 12-15 windows a day working 5 days a week. Mr Thomas says that once they had established how many windows a day each of them could fit, they had agreed they would split the profits 50/50. However, this had not happened by the time of the accident, up to which time the Claimant was still being paid £180-200 a week.[171]The Claimant’s case in relation to loss of earnings since the accident and future loss of earnings hereafter is that he would have worked as a self-employed window and door fitter within the construction industry. As a general proposition I accept this, but subject to a number of caveats which may have some impact on what can realistically be claimed. First at the time of the accident, as already noted, the Claimant suffered from Osgood-Schlatter’s Disease. He had seen his doctor only a month before the accident and had been referred to an orthopaedic surgeon although he was never seen by the surgeon because the accident intervened. The doctor says that although he has given up most of the sport, “his job does require heavy lifting and carrying. As a result, from time to time his knees are quite painful, and in addition he is unable to kneel on his tibial tuberosities”. In his evidence the Claimant referred to having to kneel on pads when working. The medical evidence is that the Osgood-Schlatter’s would have passed when the Claimant got older. Indeed the doctors were surprised that he still had it at 18. Whilst I accept that it is unlikely to have had any permanent effect on his earning capacity, it may have slowed him down somewhat for a few years.[172]Second, there is obviously a question as to the extent to which work as a self-employed window fitter would have been continuous over a working lifetime. I accept the evidence of Mr Wood, the employment expert called by the Claimant, that in the years since the accident, the area of the south of England in which the Claimant lived and worked, what one might call the M27 corridor, has seen a building boom, with plenty of jobs available in the construction industry. The development at Gun Wharf has apparently been ongoing and it is conceivable that the Claimant would have continued to find work there, although I note that Lee Thomas does not seem to have worked there since July 2002.[173]Furthermore, despite the current boom, it is possible that it will not last, especially since in the case of the Claimant one would be projecting a further 40 years from now of working life. There would be likely to be lean periods, perhaps even times when work was not available at all, although it is fair to say that the multiplier which the Claimant accepts of 20 probably takes into account those sorts of contingencies: see Section B: Contingencies other than mortality, in the Explanatory Notes to the 6th edition of the Ogden Tables. A related point is that there may not have been work in the immediate locality and the Claimant may have had to travel to find work. As a self-employed man, he would have had to pay for such travel himself.[174]In support of his claim for loss of earnings, the Claimant relies on two comparators. The first is Lee Thomas, from whom as I have said a witness statement was served. Despite the efforts of the Claimant’s solicitors (and, as I understand it, an enquiry agent) it has not been possible to find Mr Thomas who seems to have vanished without trace. Accordingly I allowed the statement to be put in evidence under the Civil Evidence Act. Although his absence was no fault of the Claimant or his advisors, this was most unsatisfactory, since there were a number of inconsistencies in the statement which could have been tested by cross-examination. The most obvious is the extraordinary leap which Mr Thomas makes from the 12-15 windows a day he and the claimant were able to fit working together at Gun Wharf to the assertion that a short time after the accident he, Mr Thomas, was able to fit 30 windows a day working on his own, earning apparently £2,000 a week, which he says the Claimant could also have earned. This evidence is frankly incredible. Furthermore, as Mr Faulks rightly pointed out, nothing that is said about earnings is supported by any documentation. I can give little weight to anything Mr Thomas says, except as to the general picture of what was happening in his trade.[175]The second comparator is the Claimant’s brother Richard, who is a year younger than him and who did give evidence at the trial. He is working in the construction industry on a self-employed basis as a carpenter, earning about £500 a week net of tax. However, not only were his GCSE grades much better than those of the Claimant, but more importantly he attended Highbury College for two years achieving a City and Guilds qualification in carpentry. He is thus more highly qualified and skilled than the Claimant was. I do not find his earnings or his earning potential of much assistance in determining what the Claimant’s earnings would have been.[176]The Claimant also called expert evidence from Mr James Wood who has more than 30 years experience working in the careers service in Hampshire, specialising in finding jobs for people with special needs. He is clearly an honourable and fair-minded man, but his evidence seemed to me to be a prime example of someone trying to do his best for the Claimant, for whom he had considerable sympathy, rather than assist the court through an objective approach. His report relied heavily on the evidence of Lee Thomas and Richard Burton in an entirely uncritical manner, to arrive at an opinion that the Claimant would have had the potential to earn between £45,000 and £55,000 a year as a self-employed window and door fitter. That is evidence which I simply cannot accept.[177]The only other material on which Mr Wood was able to rely in support of his opinion as to the Claimant’s earning potential was information he had obtained over the telephone from a company called Safestyle UK which apparently advertises over the internet for self-employed UPVC window and door fitters to work in two or three man teams. It is said on their website that top fitters consistently earn fees in excess of £1,500 a week for a six day week. Mr Wood was apparently told by the lady at Safestyle to whom he spoke over the telephone that top fitters could earn up to £2,000 a week. Again he seems to have approached this in a somewhat uncritical manner. When Mr Faulks put to him in cross-examination that companies which advertise for workers in this manner are trying to attract people to work for them and will say that you can earn as much as possible within reason (which in my view is a perfectly legitimate point), all that Mr Wood was able to say was that he had the feeling that the information he was getting from the lady at Safestyle was genuine and that it seemed to correlate with Lee Thomas’ earnings. This answer seems to me to demonstrate the obvious flaw in Mr Wood’s evidence and I cannot accept that the information from Safestyle is a reliable guide to the earning potential of the Claimant.[178]The Defendant called as an expert Mr John Rollings, who has fifteen years experience as a recruitment and employment consultant and who has been an employer in his own right with a multi-million pound wages bill. He was a measured and careful witness, but again I found his evidence of limited assistance. He relied upon the Annual Survey of Hours and Earnings (ASHE). The national median for glaziers and window fitters already established in their workplace as at March 2007 was about £350 a week gross, £271.43 net. He accepted that the Claimant was hard-working but not in any sense exceptionally so. He also said that the Claimant was not what he described a “self-starter” and had limited qualifications. His opinion was that in time the Claimant could have aspired to achieve that national median. In cross-examination, he accepted that ASHE specifically excluded the self-employed. He said that the ASHE information is drawn from a 1% sample of employees taxed on a PAYE basis, consisting of those whose national insurance number ends in 14.[179]The Claimant was clearly a conscientious and hard-working young man, what Mr Stevenson described as a “grafter”. I do not accept the thesis advanced on behalf of the Defendant that there was any instability in his family history which would cast any doubt upon his stated desire in his evidence, which I accept, to have made the most of a working life as a self-employed window fitter, had it not been for the accident. Equally, as I have already indicated, I cannot accept either the comparators put forward or the expert evidence on behalf of the Claimant (unsupported as any of it is by any documentation) as a reliable guide to the earning potential of the Claimant.[180]I consider that there is some force in the corresponding criticism by Mr Stevenson of the Defendant’s reliance through his expert on ASHE which does not deal with the position of self-employed people at all. In my judgment, a self-employed window and door fitter who was prepared to work hard as the Claimant was, could hope to have earned more than the £350 a week gross for which the Defendant contends. I consider that something in the region of £450-500 a week gross would be an appropriate range of potential earnings to take. However, I accept Mr Rollings’ assessment that whatever figure is taken should only be for 48 weeks a year. Also, from that figure has to be deducted tax and something to reflect the costs associated with self-employment such as tools and travel. Taking the mid-point of the range above of £475 a week gross, it seems to me that the right net figure to take is £350 a week, which translates into £16,800 a year.[181]It is accepted by both experts that the Claimant has no residual earning capacity. Accordingly, in my judgment, the correct award for future loss of earnings is that, applying the accepted multiplier of 20 to the £16,800 a year, the total award is £336,000.

XVII Special Damages

[182]I turn finally to the issues regarding special damages from the date of the accident to the date of the trial. Some of the items of special damage are agreed by the Defendant and do not require further discussion in this judgment. All the items agreed and those which I allow are set out in Appendix 3 to this judgment. I will only deal specifically with the items which remain in dispute.

Loss of earnings

[183]I have already indicated that, recognising that, realistically, the sum claimed in the Amended Schedule of Loss for loss of earnings of £249,844.71 was not justifiable, the amount claimed has been reduced to £100,000. Given that almost 6 years had passed since the accident by the time of trial this amount correlates very closely with the £16,800 per year which I have held is the appropriate annual figure in assessing future loss of earnings. I conclude that this item is recoverable in full.

Family care

[184]What is claimed by the Claimant is the cost of care provided by the Claimant’s family during various periods as set out in Mrs James’ Addendum Report. The first period covers the time that the Claimant was in hospital from 15 August 2001 until 30 June 2003. Mrs James and Miss Gough are agreed as to the basis for the gross assessment of remuneration, being the rates quoted by the National Joint Council for Local Government Services as the standard hourly rate paid at Spine 8 equated to the rate and grade paid to home carers. They are also in broad agreement as to the hours allowable.[185]In relation to the discount from those rates to account for the fact that the care is being paid by the family, Mrs James recognises that some discount should apply but says this is up to the Court. Miss Gough applies a discount of 25% to reflect the non-commercial element of the care provided and this is agreed on behalf of the Claimant. Accordingly, in respect of this first period, I propose to award the sum admitted by the Defendant of £9,844.32.[186]Mrs James’ second and third periods which cover the time from the Claimant leaving the hospital until the trial can be considered together. She would allow for 21 hours of care by Mrs Burton throughout this period. Miss Gough originally allowed only 2 hours a day or 14 hours a week from 30 June 2003 until the birth of Cameron on 6 June 2004. Thereafter, at least in her report, nothing at all was allowed for family care. I must confess that when I first read her report this struck me as illogical. I could not understand how it could be said that all care by Mrs Burton had ceased, merely because their child had been born. Miss Gough modified her position somewhat in the witness box. In the light of Mrs Burton’s evidence that she had to cater for the Claimant’s needs during the night, Miss Gough would now allow half an hour to an hour a night at the same discounted rate.[187]I consider that Miss Gough’s evidence underestimates the extent to which Mrs Burton has had to provide care since the Claimant came out of hospital, both before and after Cameron was born. I consider that Mrs James’ allowance throughout this period, which equates to 3 hours a day, is more realistic. I propose to allow that amount of care throughout albeit at rates discounted by 25% as before. This means that the amount allowed from 30 June 2003 up to trial will be £20,553.50. As already stated when dealing with the issue of childcare in relation to future losses, I am unconvinced by this element of the claim and do not allow anything for it. The amount awarded for all periods up to trial is thus £30,397.82.[188]I propose to consider here the separate claim for “care of siblings” which as I understand it is a claim for additional family care provided to the Claimant by two of his half sisters. The claim is put forward at an hourly rate of £9.60 with no discount and the Defendant challenges this rate and proposes a rate of £6 an hour. In the light of the need to make some discount, this seems entirely fair and I award the amount proposed by the Defendant of £1,170.

Equipment

[189]This claim has been reduced to £8,681.77 from the higher figure of £14,130.77 claimed in the Amended Schedule, to exclude the cost of the Cyclone wheelchair. It was the Claimant’s evidence that the seat was the wrong size and was uncomfortable, but the problem not having been resolved by the supplier, the chair had been returned by the Claimant and had not been paid for. The Defendant submits that the reduced claim should be reduced further to offset the cost of the computer the Claimant would have bought in any event and because the Defendant challenges the purchase of mobile phones. £8,000 is offered. I have already taken account of the cost of any computer the Claimant would have bought in any event, in discounting the cost of computers in the assistive technology element of the claim for future loss. Mr Stevenson informed me that there was in fact no claim for the cost of mobile phones, it having been mistakenly omitted from the Schedule. In the circumstances, I allow the £8,681.77 now claimed in full.

HiLite Gantry and frame

[190]The Claimant claims £2,650 in respect of these items, which have been purchased and which the Claimant needs. The Defendant asserts that he has not seen proof of purchase but for some unexplained reason £1,695 is apparently offered on this item. I can see no reason for not allowing this claim in full.

Holidays

[191]The Claimant claims £4,489 for his Caribbean holiday in 2004 and £5,315.18 for his Mediterranean holiday in 2005. The Defendant submits that a £1,000 discount on each should be allowed to reflect the cost of the holidays which the Claimant would have taken in ay event, in all probability. I agree with this and award £3,489 and £4,315.18 respectively.

Enabling adaptations at the property purchased

[192]There were originally two elements to this claim, the cost of the wet room and the cost of pool decking. The latter item has not yet been incurred, so does not form part of the special damages. The former is agreed at £6,416.37.

Relocation costs

[193]The Claimant claims relocation costs for the move to his present house in the sum of £23,105.96, which already takes account of costs that would have been incurred in any event, in moving to a new house had the accident not incurred. The only basis upon which the Defendant resists this claim is because it is contended on his behalf that the Claimant should have relocated to a less extensive house than that purchased. Given my conclusion that the property purchased is both suitable and appropriate accommodation, the relocation costs are recoverable in full.

Roberts v Johnstone

[194]Again, the dispute about the past Roberts v Johnstone calculation turns upon whether the property purchased is excess to requirements and, given my conclusion that it is both suitable and appropriate accommodation, the amount claimed of £16,894.54 is recoverable in full.

Transport

[195]The Claimant claims the cost of the Chrysler Voyager he acquired at £38,500. This purchase is not challenged, but the Defendant seeks some credit for the fact that, although the Claimant had a Renault 5 at the time of the accident, had the accident not occurred, he would almost certainly have acquired another, better car in the intervening six years. A Volkswagen Golf was suggested. In principle it seems to me this must be right and I propose to deduct £10,000 from this element of claim and award £28,500.

Insurance

[196]The Claimant claims £1,194.05 under this head. The Defendant’s response is to say this requires clarification as there appears to be an element of duplication with £1,086 included in Travelling Expenses, the next head of claim. It is surprising to say the least that this modest amount had not been clarified and resolved before the end of the trial. Mr Stevenson points out that in any event this item of claim has not been updated since August 2004 and is probably an underestimate of the amount actually incurred. I see the force of that submission and allow this item in full.

Travelling expenses

[197]The amount claimed is £16,023.65. This relates to travel by the Claimant’s family when he was in hospital, taxi fares for the Claimant when he visited home from hospital, hospital attendances after he was discharged into the community and other related expenses. The expenses are those claimed in the original Schedule of Special Damages filed in the Southampton County Court. The claim has not been updated and as a consequence, expenses are only claimed until June 2004. Where the travel involves private car, it is claimed for at a rate of 42p per mile.[198]The Defendant challenges this rate and submits that a rate of 20p per mile allegedly based on “ball park” AA and RAC mileage rates is more appropriate. For the 29,100 miles claimed at 42p a mile, the Defendant offers 20p per mile or £5820. In the light of the suggestion that there had been some double-counting on insurance, the Defendant offers £8,538.65 on this claim overall. No evidence was produced to justify these alleged “ball park” rates. All that Mr Stevenson advanced by way of a positive response on this point was to say that this claim has not been updated since August 2004 and since there have been continuing travel expenses since then, I should allow the claim in full. However, unlike with the insurance where it can legitimately be said that annual premiums have been incurred since 2004/5, I simply have no idea what travel expenses the Claimant has incurred over and above those he would have incurred in any event in the intervening three years.[199]Furthermore, I have not been provided with any information from which to assess which figure for mileage is more appropriate. Doing the best I can by reference to matters of which the Court is aware such as the Inland Revenue tax free allowances for mileage of 25p per mile up to 10,000 miles and 40p per mile thereafter, I consider that the rate of 42p is slightly on the high side, whereas 20p per mile is far too low. I propose to allow mileage at 35p per mile which equates to £10,150. As regards the balance of the claim which is for some £3,800, I propose to allow £3,000 to account for some potential unresolved duplication and other uncertainties. Accordingly, overall £13,150 is allowed in respect of this head of damage.

Hospital expenses

[200]These are claimed in an amount of £6,740.59. The Defendant invites the Court to discount this claim to reflect expenses which the Claimant would have incurred in any event. The claim includes 194 DVDs at £2,520. I very much doubt whether the Claimant would have bought that many DVDs in such a short space of time, had he not been confined to hospital for nearly two years as a consequence of the accident. However, I accept that a limited discount should be allowed for expenses he would have incurred in any event and allow £6,000 in respect of this head of damage.

Clothing

[201]The claim is for £2,259.99 and again has not been updated since August 2004. The Defendant cavils at it and says some clothing would have been purchased in any event. As Mr Stevenson pointed out, quadriplegics do require some special clothes, specifically trousers and expenditure has been incurred on such items since August 2004. The claim is reasonable and is allowed in full.

The Claimant’s mother

[202]The final contested item concerns £1,018 expenses incurred by the Claimant’s mother after the accident, including in relation to driving lessons. The Defendant offered £400 on this head. The suggestion that there was duplication with the item accepted of “driving tests, phone and postage” is wrong because one is talking here about the lessons not the test. The Defendant’s position on this head seemed somewhat petty and I allow the claim in full.

Conclusion on Special Damages

[203]Accordingly, I conclude that the total amount recoverable by the Claimant by way of special damages is £297,874.28. The breakdown of this figure is set out in Appendix 3 to this judgment.

XVIII Overall Conclusion

[204]The overall gross amount of the award of damages and interest which I make is £6,320,434.49. From this must be deducted the sum of £35,186.59 received from the Compensation Recovery Unit, together with the amount of the interim payments and interest on those interim payments, after the conventional offset against special damages. The net damages on a lump sum basis are £5,531,568.93. The calculation of how this sum is arrived at is set out in Appendix 1 to this judgment.[205]So far as the costs of future care and case management are concerned, I will make an order for annual periodical payments in the sum of £121,418.87 to the age of 50 and at £141,320.40 from the age of 50, with appropriate indexation to be determined hereafter in the light of the decision of the Court of Appeal in Thompstone and the other appeals being heard at the same time. As indicated earlier in this judgment, I order that the Defendant should pay whatever proportion of those annual payments is not funded by the State. Appendix 1206. Summary of Award Damages Interest Special Damage £297,874.28 Interest £55,070.02 Pain and suffering £227,000.00 Interest £13,946.28 Future £5,726,543.91 Total £6,251,418.19 £69,016.30 Global damages and interest £6,320,434.49 Less CRU -£35,186.59 Total £6,285,247.90 Less interim payments -£700,000.00 Less interest on interims -£53,678.97 Net damages on lump sum basis £5,531,568.93207. Appendix 2 Future Loss Annual Amount Multiplier Lifetime Amount Medical expenses £437.04 25.780 £11,266.89 Medical costs £138,751.00 Family care to October 2007 £2,151.36 Child care to June 2009 £0.00 Paid care to age 50 £111,941.27 18.650 £2,087,704.59 Paid care thereafter £131,842.80 7.130 £940,039.16 Carers’ training/meetings £1,219.20 25.780 £31,430.98 Carers’ induction £914.40 25.780 £23,573.23 Case manager (1st 6 months) £6,396.00 Ongoing case management £7,344.00 25.280 £185,656.32 Aids capital cost £31,072.47 Aids replacement £492,527.32 Physiotherapy £73,076.90 Physio equipment £17,255.00 Replacement £97,998.10 Technology £62,807.00 Replacement £10,956.90 25.780 £282,468.88 Wheelchair technology £19,750.00 Replacement £2,225.00 25.780 £57,360.50 Adaptations £219,398.27 Future costs £13,353.59 25.780 £352,059.93 Roberts –v- Johnstone £10,000.00 25.780 £257,800.00 Earnings £16,800.00 20.000 £336,000.00 £5,726,543.91 Appendix 3208. Special Damages Family care £30,397.82 Loss of earnings £100,000.00 Miscellaneous medical expenses £2,510.88 Equipment (including Cyclone) £14,130.77 Less Cyclone Life Stand refund -£5,449.00 HiLite gantry and frame £2,650.00 Physio £12,176.00 Balder Finesse powered chair £19,259.00 Voice controls £9,475.00 Cough Assist £4,080.00 Stand for Cough Assist £255.00 Caribbean holiday 2004 £3,489.00 Mediterranean holiday 2005 £4,315.18 Housing - Matthews Place £295.62 Enabling adaptations £6,416.37 Relocation costs £23,105.96 Roberts v Johnston (£16,892.54) £16,892.54 Care of siblings £1,170.00 Transport - Chrysler £28,500.00 Insurance £1,194.05 Travelling expenses £13,150.00 Hospital expenses £6,000.00 Clothing £2,259.99 Penny Burton £1,018.34 Driving tests, phone and postage £399.58 Items damaged in accident £105.00 Utilities £77.18 Total specials £297,874.28

Cited in 3 later judgments