Pankhurst v White & Anor [2009] EWHC 1117 (QB)

“I have come to the conclusion that his life expectancy is 20 more years. I will alter this opinion to 19 more years if a respiratory assessment indicates that his diaphragm function, vital capacity and other features place him in the high cervical tetraplegic group from the respiratory risk point of view.” (C; 72). 7.4. Mr Gardner next visited the Claimant on 10th November 2007, one week after the Claimant’s 53rd birthday. “At the time of my last report I assessed that he would live 11 fewer years than the average able bodied male aged 52 in the general population. Taking into account the balance of positives and negatives since the last report, I consider that the figure of 10.5 fewer years than average is the correct one. The average man will live for 30.7 more years; viz he will live for circa 20 more years from the age of 53.” (C; 92). 7.5. Mr Tromans’ first report followed a consultation on 15th June 2004. “At this time I would rather not comment on this gentleman’s life expectancy but would like to see how he manages to avoid upper respiratory tract infections and the problems of swallowing at least over a 12 month period….” (C; 109). 7.6. In February 2006, following an examination on 19th November 2005, Mr Tromans wrote: “I continue to think that he will not do very well and his life expectancy is probably less than that of a C4 tetraplegic which is in the order of 56% of normal (remaining life expectancy). I am of opinion that this gentleman’s life expectancy is less than 50% of normal, and is in the order of 15 years from his last birthday” (C; 128). 7.7. By January 2008, Mr Tromans was prepared to be more optimistic: “In my first report I was concerned about his ability to avoid upper respiratory tract infections and he has not experienced any. Whilst I continue to think that he will not do very well, he has managed to avoid hospitalisation. Therefore, his life expectancy is probably that of a C4 tetraplegic which is the order of 56% of normal (remaining life expectancy). His life expectancy is in the order of 17 years from his last birthday (his 53rd)” (C 151). 7.8. Thus, at the time of the experts’ joint meeting (which took place on 28th March 2008) Mr Gardner’s up to date opinion was 20 years from 53rd birthday. Using the same starting point, Mr Tromans’ opinion was 17 years. These opinions were repeated in their joint report (C 152a). 7.9. That was not the end of their reporting. In an addendum report dated 18th March 2008, Mr Gardner repeated his opinion that life expectancy was to age 73 but cautioned: “were he to become ventilator dependent then he would probably live fewer years than this” (C; 254). Mr Gardner wrote two further reports (C; 266 and C; 270) both dated 12th June 2008, shortly before the start of the trial. In the first, he discussed the merits of a cough assist machine. In the second, he modified his opinion; “A loss of 9.5 to 10 years compared with the average man of his age is now more likely than my previously expressed figure of 10.5 years”

“I understand that the matter of subsidence is to be dealt with by the vendor’s insurance policy. Clearly the purchase price must reflect any works of repair that are left undone by the vendor”. 8.9. Later in this Judgment, I will have to decide whether the decision to purchase Archers Post was a reasonable one per se. At this stage, it is sufficient to note that (even if Archers Post was a patently suitable property which the Claimant reasonably wished to purchase sooner rather than later) I am satisfied that: (a) the Claimant suffered no loss by selling the investment properties; (b) if there was a loss, there was no causative link between the accident and that loss; (c) the decision to sell in order to fund the purchase of Archers Post was neither necessary nor reasonable and; (d) insofar as the Claimant received advice from Mr Cumbers, he certainly did not receive advice to sell his investment properties. As far as I can see, the Claimant took that decision on his own; there is no evidence that he was advised by anyone that it was sensible to sell the Week Street premises – certainly not from his lawyers. 8.10. Before moving on from this, I should make a further observation. The Roberts v Johnstone formula requires a Claimant to find the capital to fund the purchase of the property at the outset. Because of the way in which this works, there is a shortfall in virtually every case between the actual capital outlay a Claimant spends on buying a house and the amount recoverable under this head of damage. This has been subject to some critical comment over the years. In general, a Claimant would use part of his damages from another part of the case (pain and suffering for example or loss of future earnings) to buy the property. The Roberts v Johnstone approach makes the implicit assumption that a Claimant will have to “borrow” against other heads of claim to make up that shortfall between the damages awarded under the Roberts v Johnstone principle and the initial capital outlay. In so “borrowing” the Claimant may be at risk that he will not be able to meet his future needs. Even if he uses his damages for pain and suffering to plug the gap, he is deprived of those damages for the time being, which he might well have chosen to use in some other way. If he uses his damages for future losses, he will not have the use of those damages for the purpose for which they were intended, and / or he will lose the investment income upon them – investment income, which the court had assumed he would earn, when the multiplier was fixed and the award was made. In this case, it is acknowledged that the Claimant suffered such a shortfall. 8.11. This shortfall is consequent upon the operation of the Roberts v Johnstone formula and is not peculiar to the facts of this case. What the Claimant is seeking to do by making this claim is to avoid the long acknowledged side effect of the formula. His submission on the investment properties amounts to an attempt to re-write Roberts v Johnstone. In effect, he seeks to claim the difference between the annual amounts he would have received from that source and 2.5% of the capital sum notionally tied up in Archers Post. If this device is available to him, it would enable Claimants in all cases to fund the shortfall in one way or another. What is the difference between this and taking a loan to fund the shortfall? In such a case, the Claimant would be able to claim the difference between 2.5% and the percentage payable on the loan. 8.12. If this “shortfall” element is truly a flaw in the Roberts v Johnstone approach, it is not for me to remedy in this case. If I were to award damages for future loss of investment income in this case, that would be tantamount to supplementing and re-inventing the award of damages for accommodation. It would involve re-writing Roberts v Johnstone. 8.13. For the reasons which I have given, there is no recoverable loss arising out of Mr Pankhurst’s decision to convert his investment properties into cash. 8.14. I must now consider what compensation to award for the period between the accident and the trial. The claim is pleaded at £173,700 (A311). The period must be considered in two parts. Loss of letting income from June 2003 to June 2005; this is clearly recoverable. From June 2005 to trial (June 2008) there is also, as I find, a loss; but this has now to be calculated on an entirely different basis. In view of the decision which I have just made, the Claimant’s claim for the related losses and expenses incurred in the sale of Week Street cannot be maintained. 8.15. I must first calculate the Claimant’s losses for the two years following the accident; that is to say for the period prior to the sale of the Week Street properties. What is the loss to June 2005? The relevant pre accident figures were as follows. Gross letting income Expenses Net income before tax y/e March 2001 £36,040 £8,211 £27,829 y/e March 2002 £39,098 £13,912 £25,829 y/e March 2003 £38,454 £9,355 £29,099 For the two subsequent years the figures were y/e March 2004 £38,140 £19,424 £18,716 y/e March 2005 £46,864 £17,582 £29,282 8.16. At first glance, it appears that there has been little, if any loss. Although I appreciate that I am concerned with the two years between June 2003 and June 2005, I propose to base the loss on March-to-March figures, if only to avoid part years. As this has to be a relatively broad-brush approach, extrapolation of the actual figures for part years would not paint any different picture upon which to found the assessment. 8.17. On behalf of the Claimant, it is suggested that (for the two years ending with the sale of the Week Street properties) I should assume that, but for the accident, the net figures in the last two columns would have amounted to £40,000. The loss should be computed thus: Notional net profits but for the accident; £80,000. Less the actual sums (£18,716 + £29,282). Loss before tax: £32,002. Loss after tax: £25,392. (Figures taken from A310-311). 8.18. It is clear from looking at the figures in the above tables that (a) there was a significant increase in turnover in 2004 to 2005 compared with earlier years, and that (b) in both the years following the accident, there was an increase in expenditure. This increase in expenditure is explained, at least in part, by the need for the Claimant to employ others (including an accountant) to do work which he would previously have done himself. It thus seems clear to me that there is some loss of net income, if only because of the extra expenditure caused by the injury, and the effect that this has had on the bottom line profit. 8.19. In supporting the claimed loss of £25,392, the Claimant submits that the following have to be brought into account. That there were upwards only rent review clauses in the leases on the two shop premises; that the properties were in an improving area, and higher rents could be achieved; that the flat which he and Susan had occupied was on the verge of being offered for letting (it appears that it may have actually been let shortly before the accident, although the evidence about this was not clear); that, at the time of sale, the full rental value of all the premises was assessed by Surveyors at £54,000. 8.20. These assertions would have had more relevance to claims going beyond June 2005, if the Claimant had been able to sustain the main plank of his argument about future loss. It seems to me that the gross letting income has held up well after the accident, and that some of the points advanced on the Claimant’s behalf are actually reflected in the large increase in gross income during 2004 – 2005. If there is any loss at-all in gross letting income, it is a small one. The real loss is to be found within the expenses column. In my judgment, a fair approach is to make the following calculation. I take the average expenses for the three years pre-accident and the average expenses for the following two years. I make a small allowance for inflation. I subtract the notional tax. For the two years post accident, for loss of rental income, I award the sum of £13,000. 8.21. I must now consider the Claimant’s losses, if any, (a) from June 2005 to date, and (b) for the future. As a result of the accident, regardless of whether he retained or sold the properties, the true loss falls under two subheads. First, the Claimant is no longer able, as he was before the accident, to manage the properties, to do the letting, to do some (perhaps most) of the repairs and decoration, prepare the accounts, and so on. Secondly, there is a general loss of earning capacity, which should be compensated. 8.22. As to the first of those two subheads, some time was taken, during the trial, in cross-examination of the Claimant, aimed at making a valuation of his personal contribution to his letting business. His input could be measured by considering the additional amounts which a property owner would need to pay commercially to third parties to manage and maintain the properties. This could be checked (as I have done above) by reference to the drop in profits post accident, when the tasks previously done by the Claimant had to be done by others, and had to be paid for. This again has to be painted with a broad brush, and does not bear any detailed analysis. In my judgment, the Claimant’s contribution to the letting business as at, say, June 2005, would have been approximately £10,000 per annum. That is, in other words, the value which he added to the business by his contribution – letting, managing, repairing, decorating and the like. That is the approximate annual salary the business would have afforded to him for the work he did. This, it must be recognised, was sporadic work, and it was likely to become more sporadic, as the Claimant developed his declared ambitions to travel more widely to more distant places than southern Europe – for six months out of every twelve. The sum of £10,000 is gross income. Some modest uplift would be needed between 2005 and 2008 to reflect the falling value of money. Allowance has to be made for income tax. Doing the best I can, I award the sum of £22,500 for the three years between June 2005 and June 2008, which I take to be the date of trial. The loss from the date of accident to the date of trial thus amounts to £35,500 in total and that is the sum I award for past financial loss. 8.23. The second subhead needs to be considered. This is solely a future loss, because I am satisfied that the Claimant would not have sought any employment in the period 2003 to 2008. There is no evidence that he ever intended to return to paid employment, and there is no reason to assume that he would have done so in the five years following the accident. He has, nevertheless, lost the ability to do so. This is a real loss, which needs to be compensated. It is a loss which it is impossible to quantify with any accuracy or confidence. On the one hand, Mr Pankhurst might (as he intended) have seen out his life without ever doing any further remunerative work other than managing and letting the properties. On the other hand, whether through choice or necessity, he might have decided to re-enter the jobs market. He might have wanted to try and re-establish himself as a businessman. That is most unlikely. He might have done some occasional HGV driving during his stays in England, or indeed some other work. At the trial, I voiced some concern as to how the Pankhursts would manage in the more remote years, when the Escaper became older and required repair or replacement. It seemed to me that the relatively modest earnings of the investment properties might not sustain Mr and Mrs Pankhurst for the rest of their lives, and that some supplemental income might be required. I was reassured that this would be most unlikely. Nevertheless, it is a concern which I still have, and which I continue to recognise. Whatever the likelihood of future working, the Claimant has undoubtedly suffered a loss of employability, a loss of earning capacity. I observe that any loss would be likely to be in the more remote future. The prospect of Mr Pankhurst having wished to seek work within the next few years is small. In the more distant future, there is a greater risk of loss. In the even more distant future, the potential for loss reduces again, at a time when the Claimant would have passed retirement age. 8.24. As at June 2008 (after making allowance for inflation) I assess the work loss at £8,000 per annum. I assess the loss of earning capacity at £5,000. Both are net of tax. Both are from June 2008. The total annual loss is to be assessed at £13,000. 8.25. What is the correct multiplier? There is, of course, an argument for applying different multipliers to the two different parts of the loss. In fact, I propose to apply a whole of life multiplier for the full £13,000 for a man with a life expectation of 19 years from his 53rd birthday. This is agreed at 14.76 years. But I then propose to discount the resulting sum by 15%. My thinking is this. First, I am sure that, but for the accident, the Claimant would have kept the Week Street properties, and would have continued to service them as he had previously done (albeit with some help from time to time). He would likely have done this for the rest of his life. Thus a working life multiplier, whether to 65 years, 70 years, or some other age would not be appropriate. On the other hand, in later years, with increasing age, he might well have decided (if he could have afforded to do so) to do a little less, and to employ others to do some of the work. He may have become ill or less active. Thus, some discount is called for. As to his loss of earning capacity, the loss would have continued beyond normal retirement age, and one does not know whether he might have sought some remunerative work at an older age. He would have found that harder to come by, in his later years. 8.26. I add one postscript to this part of the judgment. I did consider whether it would be more appropriate to assess the loss of earning capacity in stages: a smaller amount for the early years, with increments for the later years, and then using the accuracy of the Ogden tables to apply varying multipliers. However, this assessment does not claim to have the accuracy of a really firm evidential base and (to repeat the phrase) I have to paint with a broad brush. Accordingly, I have resisted that temptation. I acknowledge that the potential for loss increases with the passage of time and that the annual loss in the later working years might be assessed as a higher annual figure than it is at present, before reducing again in the more remote years. I have attempted to factor this in to my own calculation, making allowance for the fact that the discounting for the remote years will be greater than for the earlier years, and that the possibility of loss reduces again after notional retirement age. Doing the best I can to assess the unknown, I have reached the conclusion that a whole of life multiplier, applied to a multiplicand of £13,000 is a fair assessment, with a 15% discount of the resulting figure to take account of the much smaller potential for loss during the very remote years, post retirement. 8.27. Accordingly, the award is £13,000 x 14.76 x 0.85 = £163,098. Section 9: The agreed claim for care. 9.1. I have already noted that the parties have agreed damages in respect of the claim for care. As to the future, there are to be annual periodical payments at a starting sum of £260,000 per year. That is an enormous amount. Although this is all agreed, I need to look at the future care package, because it has an important impact upon the contested claims for accommodation and holidays. 9.2. I have already noted that Mr Pankhurst requires 294 hours of care per week (a week consisting of 168 hours). The broad picture is this. The 24-hour day is divided into two periods; waking hours (14) and night hours (12). There are not 26 hours in the day, but there will be some small overlap, and there is travelling time to be paid. During the 14 waking hours, there will be two carers for 10 of those hours, and just one carer for four of them. During the night (12 hours) there will be a waking night carer and a reserve sleeping night carer. Thus, there will be two carers on duty for almost the whole time. 9.3. As already noted, 294 hours is the equivalent of 6 people working a 45 hour week. That does not take any account of annual holidays. In reality, the Care Agency will need to find a bare minimum of nine care workers, all working long hours, to operate the intended model. If one takes a working week as comprising 40 hours, and if carer annual holidays (to include bank holidays etc) are factored in, it would take between nine and ten full-time care workers to provide the full package. 9.4. The intention is to have two teams of care workers, each of six people, working various shifts; a total of twelve employees. This is the intended model, accepted by the Defendant. Only time will tell whether or not it will prove possible to recruit and retain that number of care workers to work in Wittersham. Section 10: Accommodation and Holidays; the Benchmark 10.1. There are now two outstanding heads of damage – accommodation and holidays. I need to direct myself as to how I should approach the quantification of these two outstanding claims. I note at the outset that what might be considered recoverable for one Claimant might not be so for another. Whether or not a head of loss or damage is recoverable, the test is, of course, reasonableness. The Claimant is entitled to damages to meet his “reasonable requirements” or “reasonable needs” arising from his injuries: see Sowden v Lodge [2005] 1 WLR 2129. Where there is a range of reasonable options, it is not a requirement that the Claimant should take the cheapest. 10.2. In Rialis v Mitchell (1984) Times, 17 July 1984 Stevenson LJ said (in that case in the context of a claim for the cost of care): “For if it is a reasonably foreseeable consequence of the wrong done … the defendant cannot complain that it requires payment of a very large sum of money. The court must not react to dreadful injuries by considering that nothing is too good for the boy which will ameliorate his condition and increase pathetically little enjoyment of life which is all that is left to him; that would lead to making the defendant pay more than a fair and reasonable compensation. But the court must not put the standard of reasonableness too high when considering what is being done to improve a plaintiff’s condition or increase his enjoyment of life… I think the right question is: what is it reasonable to do for this injured boy? … The defendant is answerable for what is reasonable human conduct and if (the Claimant’s) choice is reasonable he is no less answerable for it if he is able to point to cheaper treatment which is also reasonable” (my emphasis). 10.3. There are two sides to the coin. A Claimant is not entitled to the world. But what is fair and reasonable must be liberally judged; the standard for judging the Claimant’s actions is not high. McGregor on Damages (17th edition) puts it this way at para 7-064: “In mitigating his loss the claimant victim of a wrong is only required to act reasonably and the standard of reasonableness is not high in view of the fact that the defendant is an admitted wrongdoer”. 10.4. A similar sentiment was expressed by Sachs LJ in Melia v Key Terrain Ltd(1969) No 155B: “The standard of reasonable conduct required must take into account that a claimant in such circumstances is not to be unduly pressed at the instance of the tortfeasor. To adopt the words of Lord Macmillan in the well-known Waterlow case, the claimant's conduct ought not to be weighed in nice scales at the instance of the party which has occasioned the difficulty” (my emphasis). 10.5. In his closing submissions, Mr McDermott QC, on behalf of the Claimant, said this: “The only issue in this case where such principles might have such relevance is in relation to the claim for accommodation, but since this is a past loss and the Claimant bought Archers Post using his own funds to provide suitable accommodation for him as a result of his injuries, it is submitted that Rialis is directly applicable and given that the Second Defendant’s case is that the Claimant has acted unreasonably in relation to some decisions, the proper legal analysis is whether the Claimant has failed to mitigate his loss having first ascertained the benchmark that could reasonably have been expected” (my underlining). 10.6. The Defendant contends that I am not concerned with mitigation of loss, but rather with compensation for loss sustained. It seems to me that this is immaterial. In either event, as was made clear by Stevenson LJ in Rialis, it makes no difference. The test is the same: whether or not the purchase of Archers Post was reasonable in all the circumstances. “What the plaintiff here claims has been spent, is being spent and will be spent … may be looked at as mitigation of the injury and damage done to him by the defendant’s negligence or as a natural result of them. In either case the question is: is it reasonable?” (per Stevenson LJ)(my emphases). 10.7. I note Mr McDermott’s reference to a “benchmark”

“Thus a claimant who had a good lifestyle with high quality accommodation pre-accident is entitled to be provided with sufficient damages to purchase a similar style of accommodation post-accident taking into account any additional space requirements on account of being in a wheelchair.” “So a high earner or a claimant with a very good lifestyle before an accident will tend to recover more by way of damages than someone else who earned less or was not used to the same high standards.” “The issue of reasonableness and whether or not the Claimant has acted reasonably to mitigate his loss must be seen in context. In argument, reference was made to the ‘Rolls Royce’ argument. However, this argument only applies if the Claimant had a Ford Cortina before the accident and there has been some element of betterment following the accident: if in fact the Claimant had a Rolls Royce before the accident, he is perfectly entitled to a replacement of a similar standard to what he had before. In this scenario, the issue becomes not whether it was reasonable to purchase the Rolls Royce but whether a fair price was paid for it. Only if the Claimant paid over the odds for the Rolls Royce should the claim be reduced.” 10.9. Herein, as it seems to me, is the crucial issue. It is the Claimant’s case that he enjoyed a fine lifestyle before the accident. He was used to the comforts of a large and impressive home (Harvel Lodge) and had followed the sun for 6 months of the year in a luxurious motor home. Thus, his reasonable expectations should be set at a high level. He should be entitled to a large house with many facilities (including it may be said a spare bedroom for guests to visit, a large dining area where guests could be entertained, as well as many other facilities, such as a large sun lounge/ conservatory, unrelated to his disability). He should also have long trips to Portugal and elsewhere to enjoy the winter sunshine, as he had done pre-accident. Only in this way could he receive full compensation to reproduce, as nearly as possible, his pre-accident life style. 10.10. On the other hand, the Defendant submits that, at the time of the accident, the Claimant had left Harvel Lodge behind. He had no fixed abode. When it comes to assessing reasonable compensation for accommodation and holidays, the Claimant should not be entitled to two Rolls Royces where he previously had only one. So far as his living accommodation was concerned, he had voluntarily swapped a Rolls Royce for a Ford Cortina long before the accident. He was no longer living in a “grand house” and Harvel Lodge was an irrelevance. He had no facilities for entertaining guests pre-accident (except within the confines of the Escaper). He had made a choice between a comfortable home with high earnings on the one hand, and a nomadic lifestyle in a motor home with modest income on the other. He had chosen the latter. 10.11. In his final submissions, Mr McDermott QC said this; “An ……. analogy would be that of a successful accountant or barrister of similar age to the Claimant who, through hard work, owned and along with his family enjoyed a sizeable country home and perhaps a second holiday home, but then suffered equivalent injuries. … there would be limited scope for suggesting that the claimant in such a position was not entitled to a large loss of earnings claim, plus adaptation costs for both properties to enable him and his family to come somewhere near to, but obviously not reach, their pre-accident quality of life.” 10.12. How, one may ask, is that a valid analogy? This notional claimant is a successful barrister or accountant who owned and enjoyed a sizeable home plus a second holiday home; a working barrister or accountant, as he has a large loss of earnings claim. He would be entitled to a loss of earnings claim, because he was working and was deprived of his substantial earnings. The loss of earnings claim is beside the point, given that I have to apply a 100% recovery principle and that damages under each head are to be separately assessed. That claimant would be entitled to adaptation costs. But, if he had to buy a new property, suitable for adaptation, he would have to bring the value of his existing home into the equation. And (for the very reason that he was working and funding a life style allowing him to own and enjoy a sizeable home) he could have no claim to four months of winter breaks. 10.13. So, what is the appropriate “benchmark” for Mr Pankhurst? How should I assess his “reasonable expectations”? In due course, I will need to consider whether parts of his claim exceed reasonable expectations. But first, I should examine what has been called the “benchmark”, and, albeit in broad terms, attempt to define it in Mr Pankhurst’s case. 10.14. In my judgment, the “benchmark” must take account of this. Mr Pankhurst was, at the time of the accident, a man who had been a successful business man, but who now had but two major assets – the Escaper, which he had bought for £120,000 and the Week Street properties, which were worth (when they were later sold) £525,000, and which provided him with an investment income of about £30,000 per annum. He had no home other than the Escaper, and no other income. He had no house of his own to set against the purchase of a home to be funded by the Defendant to provide for his needs. True it is that he had lived in good quality accommodation in the past. But he had not done so for many years. When he had lived in Harvel Lodge, he needed to work in business to afford it, and he could not travel. When he travelled in the Escaper, he could not enjoy or afford a Harvel Lodge lifestyle. Why should Harvel Lodge be brought into account at-all, (at least to more than a minimum extent) when the benchmark is being considered? 10.15. If the accident had occurred (say in 1991) when Harvel Lodge was his property and his home, it would have served as an important ingredient of the benchmark. If it could not have been extended or adapted to meet his needs, he would have been entitled to buy a similarly impressive property. However, he would have had to bring into account the value of Harvel Lodge to set against the cost of the new home. In fact, the Claimant disposed of Harvel Lodge long ago, and should be taken to have received full value for it (having “gifted” it as part of a wider settlement). All he is able to set against the cost of his new accommodation is the value of the Escaper. 10.16. There is another ingredient. If the accident had occurred at that time (1991), the Claimant would not have been able to formulate a claim for four months of European travel per year. When he was living in his “grand house”, he was not following the sun for six months a year. In order to be a successful businessman, he had to work and earn a living. How can it be the case that, by giving up his former life style, by renouncing his income and giving away his home, he can increase the value of his damages claim? How can he claim both the cost of a magnificent new home (without any significant value in his existing home to set against it) as well as extensive and expensive holidays? 10.17. It would be wrong for me to take too restrictive a view, because Mr and Mrs Pankhurst undoubtedly enjoyed their life travelling together. They say that they did not miss having a fixed home, and the Escaper was luxurious. But their lifestyle was undoubtedly restricted by a modest income, and they did not have the security of their own home other than the Escaper. Nevertheless, it seems clear to me that reasonable expectations should not encompass both a fabulous expensive purpose built house with all the additional features and facilities, funded almost completely by the Defendant, as well as hugely expensive holidays for four months every year. 10.18. In my Judgment, it is necessary for the Claimant to reduce his expectations to make them reasonable. Clearly, because of the history, the two claims (for accommodation and holidays) cannot be considered each in isolation. I propose to make adjustments to reduce the expectations in respect of both those heads of damages, to try and balance the equation, and to give the Claimant reasonable compensation, having regard to the pre-accident history: an award which is also fair to the Defendants: perhaps two Ford Cortinas for one Rolls Royce. I must set the “benchmark” in an appropriate place. It is in a very different place from that urged on behalf of the Claimant. It is aimed at providing 100% compensation, whereas it may seem that the claim as formulated seeks substantially more. Section 11: Accommodation 11.1. With that “benchmark” in mind, I need to consider the claim for accommodation. It is the Defendant’s case that the purchase of Archers Post was unreasonable from the outset; that it was not a suitable property. Alternatively, if it was a reasonable purchase, there has been a huge overspend on the adaptations, going well beyond the provision of reasonable compensation. Before considering the details of the claim for accommodation, both past and future, I must consider this issue of principle. Was this a suitable property for the Claimant to buy? Did he act reasonably in buying it? 11.2. To assist me in making this decision, I heard evidence from two expert witnesses. I heard from Mr Steve Cumbers, an architect who specialises in healthcare design, instructed on behalf of the Claimant. Over the years, he has provided many reports in personal injury claims and has given evidence before the courts on frequent occasions. The Defendant instructed Mr Stewart Lord, also an architect with many years of experience in the field of disabled design and accommodation needs. He has also prepared reports in cases of this nature and has given evidence, although much of his practice has been concerned with advising local authorities and other public bodies upon building provision for the disabled. I will consider their evidence as I make my findings. 11.3. How do I approach this issue? It is agreed that it is a two-stage process. First, I determine whether the purchase was reasonable. That is a question of fact. If I find that the purchase was unreasonable, I do not move on to consider the allegations of what I have termed “overspend”

“Whilst it may be said that the Claimant ought to act prudently since he is spending the defendant’s money we submit that this may not necessarily reflect the state of the law” (my emphasis). 11.5. In my judgment, it certainly does reflect the state of the law. Surely, the duty to act reasonably involves acting prudently. But, I have to remind myself that the bar is not set high. The Claimant’s actions have to be judged against the background that he has been disabled by the tort feasor, and that there is an element of need and urgency. He is not obliged to mirror the actions of the careful investor with time on his hands to weigh all the options. I must take account of the fact that he was put into a position of need by the Defendant’s negligence. His conduct is not to be weighed in “nice scales”. 11.6. Before considering these questions and making that judgment, it seems to me that it would be instructive to look at Archers Post as it is today, and what it provides in the way of accommodation. I appreciate that, in one sense, it could be said that I would be approaching the question from the wrong end (I will endeavour not to do so). But it is as well to have the finished product in mind, and to consider it against the “benchmark”; the reasonable expectations of a Claimant with no fixed home of his own and a lifestyle in a mobile home (albeit the very top of the range) sustained by an income of £30,000 pa. 11.7. However, when I come to judge whether this was a suitable property, and whether the Claimant acted reasonably when he exchanged contracts upon it, I agree with Mr McDermott that I should not take the benefit of hindsight. The actions of the Claimant must be judged as at the date of purchase, and what was then known about the property. 11.8. Archers Post, as it currently stands, is a luxurious property indeed. I have visited it. Mr and Mrs Pankhurst are rightly proud of it. It has a total internal living area of 371 square metres. On the ground floor there are: a large kitchen (22 square metres); dining room (25); living room (40); integral sun lounge (22); physiotherapy room (21); Claimant’s bedroom (27); Claimant’s en suite bathroom (13); second bedroom (17); hobbies room (11); family bathroom (9); and utility room (12). On the first floor, there are a large bedroom (40); en suite shower room (7); and a carer suite incorporating kitchenette and en suite shower (23). There are 81 square metres of “circulation space” (ie halls landings) and there are two staircases, and a lift. The layout, as built, is shown in photographs taken by Mr Lord, the expert architect, instructed by the Defendant (E321 to 338) together with plans at E318 and 319. Archers Post has been built to exacting standards, with several state of the art features. Fixtures and fittings are of the finest. No expense has been spared. There are, for example, a ground source heat pump, and a standby generator. 11.9. In order to judge whether it was reasonable of Mr Pankhurst to purchase the property, I need to look at the circumstances in which the property came to be purchased. I note at the outset that the property suffered from significant subsidence. It is important that I should consider the evidence about this, as well as the evidence of the expert witnesses as to what accommodation was appropriate for a man with Mr Pankhurst’s injuries. 11.10. I begin in July 2004 when Mr Cumbers was first instructed on behalf of the Claimant. This was at a time when Mr and Mrs Pankhurst were living at 15 St Welcume’s Way, and before Archers Post had become available. He visited the Pankhursts on 14th July 2004 and produced a Preliminary Report dated October 5th 2004 (E; page 1). Apart from providing evidence of the inadequacy of the accommodation then occupied, he provided a professional opinion upon Mr Pankhurst’s needs based upon his then assessment. His detailed opinion is to be found between E15 and E20. 11.11. At that stage, the Claimant did not have any specific property in mind. Mr Cumbers’ report estimated the cost of acquiring a bungalow property in the area of Kent where the Pankhursts had recently lived, the approximate amount of living space he would reasonably require, and the likely cost of necessary building works to provide whatever adaptations and extensions may be needed. Of course, with no particular property in mind, Mr Cumbers’ opinion was very much a preliminary one, providing a “ball park figure” which would need to be revisited as and when an actual property became available. I will need to return to that report later in this Judgment. For the moment, it is sufficient to note that Mr Cumbers visited Mr and Mrs Pankhurst in July 2004, assessed their needs, and provided his report some three months later. He noted (E25) that: “The search for suitable accommodation should be confined to dwellings where the whole of the accommodation is at ground floor level and at one level throughout” (my emphasis). Also: “The dwelling should have approximately 176 square metres of adaptable space. If smaller, it should have potential for adaptation and extension to achieve approximately 176 square metres”

“The most significant item of concern is that the structure is affected by subsidence which appears to have been monitored by Insurers over a lengthy period of time. It is important that, prior to exchange of contracts, you obtain all information which is available with regard to the investigation and monitoring by Insurers / Engineers …” (K283). 11.17. The report further noted that there was clear evidence that the property was suffering from structural movement. There was cracking to all principal rooms at ground level, particularly in one corner, together with further cracking at the upper level and there was evidence of recent continuing movement. Before Mr Pankhurst should proceed, he should make further enquiries to ascertain what remedial action was being taken, and the insurance position should be protected (see K286). Other advice was given including (at K283) “on the assumption that the property is in its present condition but structurally sound, we would assess the current value as being in the region of £425,000 - £450,000” (my emphasis). 11.18. Mr Cumbers visited Archers Post on 15th December 2004 in order to view the property for the first time. He wrote a letter dated 17th December 2004 (E48-49) giving advice, which included: “I understand that the matter of subsidence is to be dealt with by the vendor’s insurance policy. Clearly the purchase price must reflect any works of repair that are left undone by the vendor … I would recommend the commissioning of an independent structural report to discover what should be done to repair the dwelling. My initial feeling is that this may involve major underpinning. This being the case, it may be more viable to demolish the bungalow and rebuild.” (E49) 11.19. In fact, Mr Cumbers wrote two letters – 17th December 2004, and 26th January 2005. They are reviewed at E54 and E55 and they bear careful reading. He advised in strong terms that the Claimant should obtain a structural engineer’s report, and also that a further detailed report should be obtained from Mr Back (who had produced the report at K40). “I am sure Mr Back’s up-dated report will deal with all of this in full, but I come back to my initial advice to obtain a second opinion on Mr Pankhurst’s behalf so that the full cost is known before agreeing to the asking price” (E55) (my emphasis). 11.20. At the same time and in the same correspondence, Mr Cumbers noted that, if one took account of the accommodation at first floor level, the total area amounted to more than the 176 square metres that he had thought would be required. At ground floor level alone, the area was 159 square metres, only a little below what would reasonably be required. He also said this: “In my opinion, this property is suitable for appropriate extension and adaptation to meet James Pankhurst’s likely long-term accommodation needs. In terms of location, the property is absolutely ideal for the couple as it is next door to their closest friends. In terms of costs, my preliminary report anticipated that approximately £500,000 would be spent acquiring a suitable property and approximately £190,000 would be spent extending and adapting appropriately. If this property were to be acquired for the lesser figure of £450,000, I would be of the opinion that this represents good value for money. The saving on purchase cost may though be offset by extension and adaptation costs that are somewhat higher than envisaged to achieve appropriate separation in terms of carers’ accommodation and appropriate garaging.” (E48-49) 11.21. These letters are of significance in two respects. First, having seen the property (subject to the underpinning works being done or provided for by a reduction in price) Mr Cumbers held to the opinion that the accommodation would cost no more than he had originally stated in his preliminary report, although the balance between purchase price and adaptation works might change. The adaptation costs were likely to be higher than anticipated because of the need to provide separation of carer accommodation and garaging. Secondly, he put down another marker about the subsidence, and the need for a structural report with provision for remedial works to be done outside the budget which he was setting. It was for the vendor or the vendor’s insurers to pay for this work, or for it to be reflected in a price reduction. Most importantly, an independent structural report was needed before the sale should go ahead. Insofar as he thought that the property “represented good value for money”, that was subject to his caveat that the subsidence problems had to be resolved. 11.22. As noted above, Mr Cumbers had advised that an up-dated report should be obtained from Mr Back. In fact, Mr Back was never asked to produce an up-dated report. This is a relevant piece of evidence, which I will have to consider carefully. It is particularly relevant when I come to consider Mr McDermott’s repeated submission that Mr Pankhurst acted at all times upon Mr Cumber’s advice. 11.23. There then followed some correspondence between solicitors (i) concerning the insurance position and the works which were needed, and (ii) negotiating for the sale. It is clear that Mr Pankhurst had made up his mind to go ahead with the sale by early March 2005 at the latest (see K95). In order to fund the purchase, Mr Pankhurst had decided to sell 112 and 114 Week Street, and these were put up for auction on 3rd June 2005 (see K98). 11.24. The Defendants were now made aware of Archers Post and Mr Lord visited on 17th March 2005 to view the property for the purpose of a report to the Defendant. Mr Lord had also (as Mr Cumbers) already produced what one might call a “generic” report (December 2004; E181) in which he assessed the Claimant’s accommodation needs. Following his visit on 17th March 2005, he produced a second report, dated May 2005 (E216 – 278). He expressed the opinion that Archers Post was not a suitable property for a host of reasons – principally because it was in a bad state of repair (with particular note of the subsidence). The costs of restoring the property, together with the adaptations required as a result of Mr Pankhurst’s disability, would be disproportionate. 11.25. On 4th May 2005, there was a letter from Messrs Stewarts (solicitors acting for the Claimant in this litigation) to Messrs Gullands of Maidstone (solicitors acting for the Claimant in the property purchase) (K106). A number of questions were posed. Had the vendors arranged for the remedial works to be done, and, if so, were the works yet complete? Was it clear that the works were to be funded by the insurer? Was it understood that the insurers would continue to fund any later works, even if Mr Pankhurst were to extend or rebuild? Additionally, the letter emphasised that Mr Cumbers had advised that an independent structural engineers’ report should be obtained before Mr Pankhurst exchanged contracts. 11.26. That letter was answered on 6th May 2005 (K108) enclosing a letter which the writer had sent to Mr Pankhurst two days previously (K109). It did not, however, answer the questions posed by Messrs Stewarts (and it is clear that those questions were never answered). The letter to Mr Pankhurst gave a “layman’s understanding” of what had “apparently” caused the problem, and stated that, if a period of monitoring (to end in June 2005) had been completed satisfactorily, contractors (Booker and Best) would be given the go ahead to do the works (presumably at the expense of the vendor’s insurers). “It would therefore seem it is going to be some time in June that the outcome will be known as to whether the problem has been solved. Once again we must stress this is my layman’s understanding of the situation and you need professional advice to make sure you are not buying a property that is subject to continuing or unresolved problems”. 11.27. On 3rd June 2005, the Week Street properties were sold for £525,000. Within four days (on 7th June 2005) contracts were exchanged on Archers Post for completion on 4th July 2005 (see K110) at £450,000. As far as I am aware, the Claimant received no advice from his solicitors (that is to say those who act for him in these proceedings) and it has never been suggested that they were involved in any way in the decision to buy, except insofar as they wrote to the conveyancing solicitors, Messrs Gullands. Nor have I been told about any advice given by them. It seems that the Claimant acted entirely on his own in selling the Week Street properties, and in buying Archers Post. It has been submitted that he relied upon the advice of Mr Cumbers; I will need to look at the evidence about that in due course. In any event, contracts were exchanged on 7th June 2005. 11.28. Before exchange of contracts, Mr Pankhurst did, as he had been advised, seek a report from structural engineers. The report (written by Mr Davies of the Alan Baxter Partnership) (K117 – 121) was dated 10th June 2005, three days after the exchange of contracts, although there was a discussion by telephone between Mr Pankhurst and Mr Davies before the formal report was sent. 11.29. When Mr Pankhurst made his first witness statement in this case (17th September 2005; B1-20) just three months after exchange he said: “Our surveyor said that the building is structurally sound. There are cracks that have been monitored by Peter Backs and Associates and they have observed (sic) any further movement”. 11.30. That, I fear, was a misleading statement. It is entirely clear that the report: (i) gave no assurances about the stability of the remaining structure following repairs to the affected parts (ii) noted that important drain and tree works had not been carried out, and (iii) (of particular importance) referred the matter for comments by Peter Back Associates (who had provided the original 2003 report) on the question of whether underpinning was required. It may also be noted (iv) that the report ended with the recommendation (K121) that “it is most important to continue insurance cover with the present insurers.” 11.31. By the time that report was received by Mr Pankhurst, contracts had already been exchanged. When Mr Davies spoke with Mr Pankhurst on the telephone, the purpose must have been to give a summary of his opinion. It is inconceivable that Mr Pankhurst could have been given the impression that the property was structurally sound. It is also inconceivable that he would not have been told of Mr Davies’ reservations and concerns, which were to appear two or three days later in his report. 11.32. Mr Pankhurst then exchanged contracts before he received the written report (i) notwithstanding that no assurances had been given about the stability of the remaining structures (ii) without making provision for the drain and tree works to be carried out (iii) without referring the matter back to Peter Back Associates (or anyone else) on the question of whether underpinning was required, and (iv) without securing continuing insurance cover with the existing insurers. It goes without saying that he had not had the benefit of reading the structural engineer’s full report, because it was not provided until three days after exchange. 11.33. Thus it was that Mr Pankhurst acquired Archers Post. No structural remedial works were in fact undertaken by the vendors or their insurers. No undertaking was given by the insurers that they would continue to bear the risk; or that they would bear the future costs of structural repairs, whether in respect of existing settlement damage or future subsidence. Mr Pankhurst paid the full asking price. There is no evidence to suggest that there were any other potential buyers, or that there was any immediate urgency. I am sure that if there had been competition for this property, I would have been told about it. It is difficult to imagine anyone else expressing interest at that price for a property with unresolved subsidence problems, particularly having regard to the fact that the valuation was of £425,000 to £450,000 only if the property was structurally sound. 11.34. On 14th July 2005, the Defendants formally let the Claimant know their views about Archers Post. They filed their Defence to the action with a counter schedule attached. The Particulars of Claim had set out the Claimant’s position, identifying Archers Post, and specifying the provisional amount of the claim. In the meantime, as noted above, the Defendant’s expert, Mr Lord had visited the premises and had produced his report of May 2005. The Counter schedule (A55-56) served on 14th July 2005, was based upon Mr Lord’s report. It noted that the Claimant proposed to purchase Archers Post for £450,000, that he proposed expenditure of £381,000 on extensions and adaptations, which would achieve a betterment value of only £20,000. That in itself was neither reasonable nor necessary. However, there were also other matters. The property was in a dilapidated condition, with problems with drainage, the presence of asbestos, infestation of wood boring beetle, and the need for renewal of wiring and piping. Additionally, there were signs of significant structural movement, the cause of which was still not known. The Defendants took the view that (a) this property was not suitable, even if costs were as pleaded (£450,000 plus £381,000 less £20,000) and (b) that these costs were likely to spiral out of control. 11.35. The Defendants were unaware that, in one sense, the pleading was too late. They were unaware that the property was already in Mr Pankhurst’s ownership. 11.36. It was not only the Defendants who were unaware. Mr Cumbers revisited the property on 15th June 2005. He noted that Mr and Mrs Pankhurst were “determined to proceed with Archers Post”

“When we found Archers Post we had to think very seriously about what to do. On the one hand, we knew we had a property that would provide not only the living space we needed, but also a feeling of being a home”

“That is the advantage with Archer’s Post - the rooms are of sufficient size that they will still be an appropriate size for me when the corridors are adapted” (all my emphases). 11.38. The impression at that time was that Mr Pankhurst was of the opinion that the space offered by the existing house (really a dormer bungalow) would be sufficient, and that the rooms would be of adequate size even when walls were moved to widen the corridors. There was certainly no indication in that statement that there would be a claim for the enormous enlargement which has in fact taken place. 11.39. I can now consider Mr Cumbers’ second report (E50-100E). Although not written until February 2008, it dealt with events from June 2005. In the report, he iterated that: “I understood that the matter of historic subsidence was to be dealt with by the vendor’s insurance policy … (and) … the purchase price must reflect any works of repair left undone by the vendor in this respect” (E54). 11.40. The report is particularly significant in that the costs of adaptation were now going to be considerably increased. His original report had not taken account of: “the size of accommodation required to achieve the increased wheelchair manoeuvrability space required by Mr Pankhurst’s seated posture; it did not include a conservatory; it did not include the retreat bedroom for Mrs Pankhurst; it did not include the second carer facilities required at that time, or items such as the standby generator or ground source heat pump, all of which in my opinion it has been appropriate to include. It made no allowance for their history of having owned a property like Harvel Lodge.” (E54) (my emphasis). … “I am now of the view that Mr Pankhurst’s special requirements considerably exceed those I contemplated at the preliminary report stage. As I have indicated previously, my initial feeling was that the necessary extensions and adaptations to Archers Post were likely to be in excess of my preliminary costing.” (E55-56). 11.41. It is important to note that that report was written in February 2008, long after the expenditure had been incurred. The water had already passed under the bridge. This was only Mr Cumbers’ second report, and it included a great deal of historical detail. It was not a report designed to assess what would be an appropriate way forward. It was a retrospective report assessing the reasonableness of what had already been done. The “considerable excess” to which Mr Cumbers referred was in fact the difference between £190,000 and £924,000. 11.42. On 10th June 2005, Mr Cumbers had been instructed to undertake a measured survey and to prepare drawings as existing and to illustrate outline proposals for (i) extending and adapting and (ii) rebuilding. He revisited on 15th June 2005. He noted that Mr and Mrs Pankhurst were “determined to proceed with Archers Post”

“It remains my view that the present flat may not have been the ideal choice but it is of adequate size and needs only limited alteration to meet the minimum requirements for the Claimant’s present needs” (my emphasis). He also said this (E189): “(Mr Cumbers) recommends that the Claimant seek a large bungalow 176 sq metres in a rural position with up to half an acre of land. I believe that this is excessive and that if relocation became necessary the Claimant’s needs could be accommodated in a bungalow providing approximately 80 sq metres on a normal plot. Should a residential carer be recommended then an additional area of 16 sq metres would be appropriate making a total of say 100 sq metres”

“There were a number of problems with the property, including subsidence … So following advice from an architect, Chris McMulland (sic), we knocked down the existing property and began to rebuild from scratch.” 11.63. As far as I can see, there is no further explanation of this decision. There is no evidence from Mr McMullon or anyone else. There is no report and no costing of alternatives. There is, however, a letter from Mr Collins, a builder, dated (enigmatically) 29th January 2008 (K237). Whether this letter was written at the time and the date typed inaccurately, or whether it was a letter written much later for evidential purposes, I do not know. In his final submissions, Mr McDermott QC stated that there had been a site visit between the Pankhursts, Mr McMullon and Mr Collins. Mr McMullon’s presence at the site meeting is not disclosed by the letter. The letter is, nevertheless, interesting for two reasons. First, it appears that the decision was taken somewhat lightly, without any detailed examination of the alternatives, or the costs implications. Insofar as Mr McMullon and / or Mr Collins did advise the Claimant to rebuild from scratch, there is no evidence as to what that advice was based upon except the need to move or alter “most of the internal and external walls anyway”, the “extra space needed for Mr Pankhurst and his carers”, the need for “major reinstatement” of the existing floors, ceilings and roof structures, and “certain structural aspects”, whatever those might have been (K237). Secondly, it is confirmation of the fact that, even if there had been no subsidence problem, the plan was not to build extensions onto the existing structure, but to do a virtual rebuilding in any event. If there had been no demolition, very little of the original house was to be retained. The proposed adaptations would have involved enlarging virtually every room, expanding in all directions, leaving only a small part of the original house intact. 11.64. As to the decision to demolish, it is clear that circumstances had not changed in any way between the date of purchase and the time when the decision to demolish was taken. There had been no new information, no further investigation, and no further survey. I also note how the Claimant’s evidence changed for no good reason. Whereas, when justifying his decision to buy the property he was able to include in his witness statement that his surveyor had said that the property was “structurally sound”, his opinion changed when the decision to demolish was made. Now, as noted above, he said, “There were a number of problems with the property, including subsidence … so … we knocked down the existing property and began to rebuild from scratch.”

“Thank you for the copy of the Structural Engineer’s Report by David Davies for the Alan Baxter Partnership. Please may I draw your attention to Mr Davies’s conclusions as appearing on pages 4 and 5 of his letter. Please refer this directly to Gullands to seek PBA’s comment and advice”. 11.68. In his further letter to the Claimant and his wife dated 4th July 2005 (K124) he said: “I am wondering whether you have had a chance yet to revert to Gullands and whether they in turn have reverted to the vendor’s solicitors in respect of David Davies’s Report. If PBA are in agreement that underpinning is appropriate then clearly this is something that the insurers should take onboard”. 11.69. Mr Cumbers wrote those two letters without knowing that the Claimant had exchanged contracts and had completed the purchase on 4th July 2005. It is plain that he was voicing concern that the issue of subsidence had not been resolved either as to the nature of the problem or who was going to pay for it. 11.70. It is just not true to say that the Claimant sought and relied on Mr Cumbers’ advice. If he had done so, he would not have paid the full asking price, and he would have obtained assurances about the condition of the property. He would not have purchased the property when he did. 11.71. It is entirely clear that, at the time of purchase, (i) no decision had been made as to what should be done about the subsidence problem (ii) no assurances had been received from vendors or insurers about the cost of remedying the subsidence problem (iii) there was no estimate of what it would cost to underpin and then to extend and adapt and (iv) there was no estimate as to what the cost would be of demolishing and building it from scratch. 11.72. These and other issues (upon which, as detailed above, Mr Pankhurst had been repeatedly advised) should have been resolved before exchange of contracts. In my judgment, it was patently not reasonable to buy the property without resolving those issues. Buying the property at that time involved taking a significant risk, which no reasonably prudent person, spending his own money, would have taken. As it turned out, those risks manifested themselves. 11.73. Instead, acting (as I find) against the advice which he had received, and, it seems, without any input from the solicitors, he imprudently (as I also find) sold his investment properties and immediately invested the proceeds in Archers Post. He did not wait the few days to consider the contents of the structural engineers report, preferring to speak with the engineer on the phone and (in all likelihood) being selective about processing the information which he was given. He acted with unnecessary haste, exchanging contracts at the first opportunity, as soon as he had the Week Street proceeds in his hands. He did not seek advice from his solicitors or Mr Cumbers at that point, almost certainly because he did not want to hear what he knew they would say. If he did seek advice from his solicitors, I have not heard about it. He did not even tell Mr Cumbers at the time of the June 2005 site visit, that he had already secured the property. The slightest modicum of prudence would have prevented any reasonable man (even in the pressed circumstances in which Mr Pankhurst found himself) from paying the full asking price for a property, which, at the very least, required substantial and undefined repairs, the costs of which were not known. I say “at the very least” because there was also the known possibility that there may be no alternative to demolition and re-building. 11.74. Nor am I satisfied that Mr and Mrs Pankhurst looked at any other properties, at least not with any genuine intent; and certainly not after they had first seen Archers Post. There seems to be an assumption inherent in Mr McDermott’s submissions that, if Mr Pankhurst says something, it must be so, and the court must accept it at face value. However, with so much of Mr Pankhurst’s evidence, I regret to say, there is a self-serving element, and a complete lack of any detail or supporting material. For example: “we looked at about four other properties … there was one that was so narrow I could not even get down the hallway because it was so narrow” (B8). (my emphasis). There is no detail given of any of those properties. And later: “I looked at other properties which seemed adequate but on closer inspection would have meant significant alterations and remained a compromise in one way or another. Widening of door frames, hallways and thus reducing living spaces” (B112). There is no detail given of any of those properties. And later: 11.75. No further detail. But, in any event, where is the difference between this and Archers Post? What of the “significant alterations” there? Archers Post, it seems, could have all living spaces increased by re-building or (if the original had been retained) the demolition of 75 / 80 per cent of internal and external walls to create large rooms. Why not these other properties? These are generalisations, but no evidence has been presented by Mr Pankhurst as to where these properties were. And there is only his general say so that they were unsuitable. 11.76. When Mr Pankhurst said that the decision to purchase Archers Post had been a hard one, Mr Methuen suggested to him that it was not a hard decision at all. It was put that from the moment Archers Post came onto the market, he had closed his mind to all other options. The Claimant’s response was, “Purely because Archers Post was a miracle come true.”

“Archers Post had the space requirement to suit (the Claimant’s) needs. When asked his professional view regarding the adequacy of space at Archers Post during examination in chief Mr Cumbers said, “suits him very well; we agonised very hard – looked at spaces very closely. We increased some, had to make had (sic) wheelchair manoeuvrability he needed; that provides precisely what he needs for his wheelchair manoeuvrability – no more, no less”. “Fifthly Archers Post has the space to accommodate carers without the Claimant and the carers living on top of each other, thus retaining some privacy.” “Sixthly, the Claimant’s architect, Stephen Cumbers, visited Archers Post on 15 December 2004 and recommended that the property was absolutely ideal in terms of location and was suitable for extension and adaptation to meet the Claimant’s likely long-term accommodation needs. Mr Cumbers’ advice was that ‘…It seems to me that the vendor may not wish to be bound by a further structural survey or the cost of the greater repairs to the structure that I suspect may be required. Nevertheless I am of the opinion that Mr and Mrs Pankhurst will not find a more suitably located property, and I would urge you to liaise with the vendor’s solicitor to secure the same’ The Claimant reasonably relied upon the advice from this expert.”