Smith v LC Window Fashions Ltd [2009] EWHC 1532 (QB)

[2009] EWHC 1532 (QB)

Case No TLQ/08/0178

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

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

Date 30/06/2009

Before

MR JUSTICE CRANSTON

Between

SmithClaimant

LC Window Fashions LtdDefendant

Gerard McDermott QC (instructed by Stewarts Law LLP) for Claimant

Rohan Pershad (instructed by Greenwoods) for Defendant

Hearing Hearing dates: 27 April - 1 May 2009

Judgment

INTRODUCTION

[1]In August 2004 the claimant, Mr Idris Smith, suffered a severe head injury as a result of an accident at work. He apparently fell into a skip while at the defendant’s premises. Thereafter he spent about two months in hospital until he was discharged under the care of the Community Brain Injury Team. Their involvement terminated sometime in November 2005. It was not until early 2007 that a care manager, Sara Hemming, became involved. It was another ten or eleven months before a support worker, Anthony Williams, was appointed for the claimant. In July 2008 the claimant and his wife moved house.

[2]Meanwhile, in July 2007 these proceedings were instituted for damages for personal injuries. By the time of the trial, which began on 27 April 2009, liability for the accident had been admitted. The remaining issues were causation and quantum. Before and during the trial the parties helpfully agreed a number of matters relevant to these issues. Thus they were able to agree a reduction in the claimant’s life expectancy of 6.5 years. However, significant issues remained. These fell under three main heads: future earnings, the degree of care management required, and accommodation. There was also disagreement about the claimant’s capacity to manage his own affairs for the purpose of the Mental Capacity Act 2005. Before turning to each of these matters, it is necessary to say a little more about the background. BACKGROUND The claimant’s brain injury and its consequences

[3]The claimant was 52 years old at the time of the accident. He lived in the town of Dinas in the Rhondda Valley in Wales. Following the accident there was a period of post traumatic amnesia of about six to eight weeks. The claimant has extensive facial bruising and a frontal skull fracture. There was also serious brain damage, contusions and a subarachnoid bleed. The bleeding was probably made worse by the fact he was taking warfarin for a pre-existing medical condition. As a result of these injuries, the claimant required intensive care for the first week, was in an acute hospital for four weeks and required another four weeks of in-patient rehabilitation. He had only limited rehabilitation over the following two years.

[4]In their joint statement, which contains no areas of disagreement, the consultant neurologists (Dr Hardie for the claimant; Dr Ferguson for the defendant) agreed that secondary to the index injury the claimant has cognitive impairments, including executive dysfunction, with personality and behavioural changes typical of front lobe injury. In their view these are unlikely to improve further. The joint statement of the neuropsychiatrists, Dr Fleminger for the claimant, and Dr Bird for the defendant, said this:

“1 … We agree that such a severe traumatic brain injury is likely to produce some permanent sequelae in terms of cognition or personality. … 6. We agree that neuropsychological testing suggests that there has been no overall decline in intellectual performance. However, there is some evidence of memory impairment and slowed speed of information processing and impairment of some executive function because of the brain injury. Dr Bird estimates these effects as being mild to moderate. Dr Fleminger agrees and adds that Mr Smith’s personality change has probably aggravated the effects of these cognitive impairments; in other words his poor motivation will mean that he is less able to cope with his cognitive impairment. 7. We agree that he has suffered a personality change as a result of frontal lobe injury. The main features of the personality change are poor motivation and initiation, and lack of caring for others. We agree that his personality change is of moderate degree. … 10. We agree that as a result of the injury, and made worse by his alcohol dependence, he suffers rapid swings of mood and is generally disheartened. He also suffers irritability, though not sufficient to meet criteria for episodic dyscontrol.”

[5]As was explained to me in oral evidence, a typical behavioural change in this type of case is a lack of insight with oneself and others. It becomes difficult to take advice and follow advice given. Also compromised is the ability to understand what is needed to achieve targets. Part of this is the profound degree of apathy which damage to the frontal lobes produces. Multi-tasking becomes impossible. Irritability is another feature of this type of injury so that those around feel that they are always walking on eggshells. Socially, the person might be seen as operating in an acceptable way, but those in the family and close friends who deal with him on an everyday basis see the mood swings. The stoicism associated with the frontal lobes dissipates. In Dr Hardie’s description, it is a silent disability. Another of the behaviour changes is that the person does not recognise he or she has problems without constant reminders. An example in the claimant’s case was the need for him to wear a stocking because of leg ulcers. He had this constantly explained to him but still failed to wear it. In a statement the claimant’s brother gave several examples of the claimant’s forgetfulness. Without support a person with these conditions does not recognise that they have a memory problem.

[6]In their joint report, the neurologists also identified the markedly increased risk of post-traumatic epilepsy developing after severe traumatic brain injuries. That diminishes over a period of time. In the event that the claimant were to develop epilepsy in the next few years without any other intervening conditions, it is their opinion that this would be likely to be attributable to the index accident. However, they opine that it is also probable that it would be easily controlled by appropriate anti-epileptic medication.

[7]In the claimant’s case these behavioural changes explained to me by the medical experts were attested to by his wife, daughter and brother. I canvass some of the evidence below. At this point let me mention a statement prepared in mid 2008 the claimant’s brother describes how the claimant had become argumentative and aggressive. His brother no longer liked to be in the claimant’s company, although he still sometimes saw him on a Friday evening. The care worker, Anthony Williams, explained how for the first two to three months it was difficult breaking down the claimant’s pattern of spending the day on the settee. Now he was involved in their joint activities, although there were times when Mr Williams needed to use his own powers of persuasion on the claimant. The claimant’s willingness to do something could oscillate, even during the day. The claimant was easily irritated by things, such as the behaviour of his grandchildren. Mobility

[8]In a report in August 2008 the consultant orthopaedic surgeon, Dr Tayton, noted that the claimant had suffered from back pain off and on for nearly thirty years. This was severe enough to require an operation eleven years previously, which only partly cured the problem. The back pain was now being complicated by degenerative changes in the claimant’s neck. In Dr Tayton’s opinion most of the claimant’s mobility problems related to his constitutional neck and back problems rather than the index accident. Dr Tayton reported that the claimant was fully mobile within his home and able to do as much as he wished. He was also able to visit the local Labour Club regularly on foot without any severe problems, a distance of some 450 yards from his home, up an incline.

[9]In their joint statement of October 2008 the consultant neurologists explained that before the accident the claimant also suffered DVT in his left leg, followed by chronic swelling, venous skin ulceration and leg pains. These had required significant periods of sickness absence from work. An increased risk of thrombosis and embolism was identified. The claimant had been treated with the oral anti-coagulant warfarin on a long term basis.

[10]Given the severity of the brain injury, the claimant had, in the view of all the consultants, made a remarkable physical recovery. Mild residual motor impairments caused by corticospinal tract dysfunction, which were present when Dr Hardie examined him, had resolved by the time of Dr Ferguson’s examination 15 months later. Both Dr Hardie and Dr Ferguson did not anticipate any further neurological deterioration. There was evidence of pre-existing conditions including obesity, chronic post-phlebitic changes in the left leg and generally reduced spinal movements as a consequence of degenerative spondylosis. There was also his ongoing regular alcohol consumption. The joint statement notes: “If there were any deterioration in his mobility in the future, then it is likely to be explained by these other factors and not attributable to the index injury”.

[11]In December 2007, in a short letter, Dr Hardie opined that the claimant was likely to suffer a deterioration in his mobility over the next 5-10 years, so he would require at least the aid of a walking stick, and that he would become wheel-chair dependant or worse by the age of 70 years. That had not been mentioned in Dr Hardie’s January 2007 report. At that point the claimant could go up and down the stairs of his home, although with some difficulty, attributable to pre-existing conditions. Dr Hardie’s December 2007 opinion was sparked by a question from his solicitors and seemed to be linked with the desirability of moving from his then home at 12 Grovefield Terrace. That happened some six months later. Given the nature and origins of this evidence, and the very clear statement in the subsequent joint statement of Dr Hardie and Dr Ferguson in October 2008, I am not persuaded that any future deterioration in the claimant’s mobility will be attributable to the accident. The claimant’s presentation

[12]Despite his devastating injuries the claimant presents well. He gave oral evidence. Although he could not remember some matters, and at one point became irritable about what he regarded as repetitious questioning, the claimant presented his evidence carefully and honestly. No doubt he could not remember some matters as a result of the brain damage. With Anthony Williams’ assistance, he said, he no longer sat around doing nothing every day. However, he could not dance as he once did. Nor could he stand for long periods. All this I accept.

[13]Mrs Smith told me that the claimant was normal and happy before the accident. He made people laugh. After the accident, she told me he had become irritable and moody. He would not know she was depressed although since Anthony Williams had been working the claimant had somewhat improved and would now ask her if she wanted a cup of tea when she cried. Anthony Williams took her husband out, which would give relief from stress for her and her daughter, Gemma. There was a recent incident where the claimant had shaken his grandchild. Victoria, the elder daughter, was now able to leave her boys with him for relatively short periods. Before Anthony Williams began working with her husband he would sit on the settee all day, flicking through television channels.

[14]The claimant has a pattern of evening social activates involving bowls, darts, bingo and playing cards. To an extent he and Mrs Smith go out more regularly than before the accident because when he was working he would often not return home until 10pm. He goes to the Labour Club on a Wednesday night, and by himself to a public house to play darts on a Friday evening. Friday was previously a skittles night but the club collapsed and so he changed to darts. He had been the lead in the skittles team on occasion when team members had dropped out. He did not like that because of the pressure placed on him. Saturday he went to the NUM club. He was on the committee of the NUM club. It seemed that this was initiated by his wife’s conversation with a friend. Committee meetings were once a month on Wednesday evenings. The claimant told me he did not know what was being discussed at committee meetings and he was ignored. However, he had expressed his views once or twice. Together with another committee member he collected money on the door for two hours on a Saturday evening. Entrance was £2 and he needed to give change if a note is presented.

[15]The claimant explained that a source of tension was because his younger daughter, Gemma, and her daughter, Ocean, lived with them. Gemma was a part time legal secretary two days a week. Mrs Smith’s evidence confirmed this. She said that the intention was that Gemma and Ocean would eventually move out, perhaps through the claimant and her purchasing a property and renting it to Gemma, similar to the arrangement with their older daughter, Vicki. The claimant was involved in the discussion of this possibility and, indeed, initiated it. In the evidence of Sara Hemming, the case manager, while Mrs Smith might say she wanted Gemma to leave, in fact she had indicated that she liked having her and Ocean at the house.

[16]The defendant gathered surveillance evidence in mid 2008 and during the period January - April 2009. The resultant DVDs show the claimant in the course of his ordinary day activities, in some cases with his support worker, his wife or both. At one point on the DVD his wife departs and leaves him to lock the front door of the house. He appears in some of the footage at his clubs, at one point calling back bingo numbers, at another making a short speech, and at yet another carrying things from the club to a motor vehicle. The medical experts differed as to whether overall he appeared passive on the footage. To my mind he did not appear out of the ordinary. Even the claimant’s expert neuropsychiatrist, Dr Fleminger, said that the DVD showed a remarkable recovery. The footage is certainly helpful. By its nature, however, it cannot show his cognitive deficits, his personality changes or poor memory. Anthony Williams’ notes

[17]Anthony Williams was appointed as the claimant’s care worker in December 2007. He responded to an advertisement. He had known the claimant through bowls for several decades. He has had no formal training as a care worker but the care manager, Sara Hemming, said she gave some training to him when she visited. All spoke of the way Mr Williams had risen to the challenge. Dr Bird, the defendant’s neuropsychiatrist, told me he was impressed. My own assessment of Mr Williams was very favourable. He told me that he saw his role as helping the claimant back into the community.

[18]Almost from the outset of his appointment as the claimant’s care worker, Mr Williams has kept a daily note. These are for monitoring by the care manager but have also been used by the experts in this trial in the preparation of their reports. For the defendant Mr Pershad was able to use them to good effect in his formidable examination of the witnesses. The notes are thus a useful account of the claimant’s situation and progress, as well as demonstrating Mr Williams’ competence in his role as care worker. Let me review some of their highlights.

[19]In the first week of December 2007, just after his appointment, Mr Williams records the claimant’s possible routine. He notes that he has attempted to find out what goals the claimant had for future months so as to be able to set them with his cooperation. It was also a time for meeting the various friends and family. At the end of December Mr Williams reports that he has established a pattern over the first three weeks of his appointment whereby he has managed to get the claimant out of the house, has helped him put up decorations for Christmas and has been on several outings. There is a specific entry on the 9th December where Mr Williams notes that the claimant had drunk 5 ½ pints of beer on that Sunday evening and seemed to well aware of his actions.

[20]Further progress is reported in Mr Williams’ January summary, in particular in persuading the claimant to socialise more on a Sunday night with different teams and to perform household duties, including the family shopping. Mr Williams took time off over Christmas and noted in his first entry for the New Year that he and the claimant had discussed how the claimant had coped during the holiday period. “[E]verything seemed fine”. There was a discussion of finding a new house as a priority. On the last day of January they had travelled to Treorchy to pay the insurance on Mrs Smith’s father’s house.

[21]In the February monthly summary Mr Williams notes that there was an incident over the four weeks where he had to ask the claimant to slow down his drinking, which was getting out of hand. That had had a positive result. Socialising was also progressing, although the claimant continued to be unpredictable with people. There is a specific entry for the 6th February where the claimant and Mr Williams went to Porth and Williamstown, where the claimant helped Mr Williams in his decision on what to buy Mrs Williams as a birthday present. There is an entry on the 21st February: on the way back from visiting a friend the claimant had to buy dinner for his wife and daughter and had also placed money on his wife’s phone “which is something he would not have done in the past”.

[22]The notes record that in early March Mrs Smith had been ill in bed with influenza for several days. During that period the claimant “helped round the house”. He did the dishes, made the dinner and performed other general household duties. (Dinner in this context meant something comparable to a snack rather than a fully cooked meal). During this period the claimant had also to undertake shopping at the local supermarket and take food to his father-in-law. I note that at this point Mr Williams was on 16 hours a week so he was attending on average three days a week, excluding Sundays.

[23]April 2008 seemed to be uneventful. There is an entry about the claimant needing to attend the job centre and not being in the mood. This visit may have been in relation to the claimant’s benefits. There is an entry recording that the claimant was a little happier because of progress in relation to the purchase of a new house.

[24]Mr Williams’ had a week off in late May. The entry for the Sunday evening, 1st June, when he returned to work records that the claimant and he had a good night and that the claimant played well at skittles. The claimant drank 6 pints of beer and was in a happy mood. In the middle of the month they visited the new house, along with Sara Hemming, the care manager, and Debbie Eaton, the care expert. From Mr Williams’ records it is clear that the claimant was excited about the prospect of the new house. Once possession of this had been taken the notes record that both the claimant and Mr Williams began painting it inside. At about this time Mr Williams has his hours increased to 29 hours a week. The notes record that he is with the claimant during the week and on Sunday evenings as well.

[25]There were plans in late July for work in relation to the garden of the new house. On Tuesday 22nd July Mr Williams had a holiday because of his daughter’s 18th birthday and the entries for the following days, the 23rd and 24th of July, record that the claimant was not in a good mood, did not want to do anything in the garden and refused to go out. However, he claimed he was cheered up when relations visited to look at the new house. The following day, 25th July, was a good day when the claimant was upbeat and ready to work in the garden when Mr Williams arrived. That mood seemed to continue for the week.

[26]Work on the garden shed continued in the August. There is an entry on 10th August, that the claimant realised that he had had more alcohol than he should have had in the previous week. Money was now available through the solicitors and the claimant and Mr Williams were able to purchase materials for work in the garden. There were two occasions, on 12th and 17th September, when the claimant was already up and dressed in working clothes for work on the garden shed when Mr Williams arrived. There had been a hitch a few days earlier in relation to the purchase of items at B & Q, where the claimant had a payment card in Mrs Smith’s, and not his, name. A cheque came through later in the month from the solicitors and the claimant informed Mr Williams when it had been cleared so that the two were able to purchase decking for the garden. The entry on 24th September is that in recent days the claimant had been in very good spirits. He was pleased as to how the garden was changing “and he can’t wait to get out with the paintbrush”.

[27]In mid October the notes record that the claimant asked Mr Williams if the latter could contact the solicitors for a further interim payment to cover Christmas shopping. The relevant member of that firm was unavailable, which did not help the claimant’s mood. The claimant wanted to know why money from the interim payment could not be released. The claimant held a meeting in early November with a financial advisor, which made him uncomfortable. Mr Williams records that the claimant’s mood was down because he could not fully understand what was to happen. The notes in November and early December record that the claimant was apprehensive as to the outcome of the litigation. In early December the care manager, Sara Hemming, increased Mr Williams’ hours because of the Christmas – New Year period and until the end of the litigation. In late December, after Christmas, the notes record an instance where Mrs Smith had said that the claimant was not to go out. Apparently the claimant had drunk excessively over Christmas and there had been an argument between the two which had led Mrs Smith to spend an evening at her father’s house. The claimant had promised not to drink too much over the New Year period and in the New Year.

[28]In mid January 2009 the skittles club, which the claimant attended on a Sunday evening, closed. The claimant decided that he would begin playing darts on that evening at a different club. That was at the Labour club in Penygraig. The skittles club arranges home and away games. After a darts match Mr Williams records that there is time for a game of bingo and that Mrs Smith regularly plays bingo at that Labour club. The notes record an incident about this time where the claimant had an argument with his younger daughter, Gemma, who had arrived home late. The claimant had walked out of the house and had only returned after his son-in-law had found him wandering down the by-pass near the flats in Dinas. To Mr Williams’ knowledge this was the first that anything like that had happened.

[29]February 2009 appears uneventful. Early in the month the claimant asked Mr Williams if they could go to Treorchy to pay the claimant’s house insurance, although Mrs Smith had to accompany them. However, a few days later Mrs Smith asked her husband and Mr Williams to pay household bills at the bank. This was a breakthrough because even though the claimant had paid bills before with the assistance of Mr Williams, Mrs Smith had always given him cash. On this occasion he had to withdraw money from the account, it appears by presentation of a payment book. In February there is an entry that the claimant withdrew money by himself at the bank. In late February the notes record a weekend where the claimant and Mrs Smith had spent time together. The notes record that when Mr Williams arrived on the Monday the claimant was in a good mood. He and his wife had enjoyed the weekend and were even bantering with each other, which the claimant had not done for a long while. In late February the notes record that Mrs Smith had left a list of domestic chores for the claimant including washing dishes, polishing the furniture and cleaning the glass in the conservatory. The claimant had rested after each task but had completed the list by the time Mr Williams left. The following day he had cleaned the moss on the outside of the conservatory by leaning out of an upstairs window and using a long tool.

[30]The March 2009 notes record that Mrs Smith was to play bowls against Scotland. The system apparently is that Welsh teams travel to Scotland and Scottish teams to Wales in alternate years. A mid March entry indicates that the claimant’s mood sometimes reflects the state of the weather. Voluntary work

[31]As early as her report in February 2007 the care manager, Sara Hemming, raised the possibility of the claimant undertaking voluntary work. She recorded that she did not want to set the claimant up to fail any tasks since this could increase his feelings of failure, anxiety and low self-esteem. However, voluntary work might be a suitable approach to gaining some purposeful structure in his life, to allow him to undertake as much as he could manage on a day-to-day, ongoing basis. Part of her plan for the following months was to liaise with the disability vocational officer at the Jobcentre about voluntary work in the area. This intention was repeated in her June 2007 report. Her February 2008 report had as one aspect of the nine part action plan:

“Exploring the options of voluntary occupation. Going on experience with how [the claimant] approaches new ideas this will be a slow process and I would look to support both [his] and his support worker in achieving the …”

The March 2009 report repeats this goal.

[32]In fact nothing has been done in relation to voluntary employment. The care manager, Sara Hemming, explained in evidence that in 2007, given the claimant’s personal presentation, there was no chance of anyone being willing to employ him, even on a voluntary basis. In 2008 voluntary employment was well down the agenda, given that a good number of other matters were being addressed. In 2008 there was the move to the new house and then the work on it and its garden in the second part of the year. Voluntary work was not appropriate at that point.

[33]The defendant was critical of inaction in this regard. Several of the defendant’s experts suggested that voluntary work was open to the claimant. For example Mr Bird, the neuropsychiatrist, opined that the claimant had demonstrated skills since his accident of gardening and painting, which with professional input could be turned into something to be done on a voluntary basis. The claimant would never be a self starter, but voluntary work could be part of his weekly, structured activities. Dr Bird suggested that countryside parks may provide an appropriate opportunity. Then Mr Blackshaw, the defendant’s nursing expert, pointed to the Rhonda Heritage Park, not far from where the claimant lives, and the possibility as he put it of voluntary work there, given that the claimant is not unsociable. Mr Blackshaw said that that the website of the Heritage Park invites volunteers to assist with its operation.

[34]In a sense the claimant already undertakes some voluntary work, in that he sits on the committee of the local NUM club. As a committee member he collects the entrance fee on a Saturday night for about two hours and also calls back the bingo numbers. It may be that there are some additional responsibilities which the claimant could assume at the club, although I note his evidence that he does not like sitting on the committee and his wife’s evidence that he prefers to play bingo rather than call the numbers. There is no evidence that other voluntary work is available for the claimant in the immediate vicinity. There is no evidence that the Heritage Park could accommodate the claimant with the behavioural effects which his severe brain injury this has wrought. The consequence of the claimant’s injury is that he lacks insight and motivation. He would not only need to express an interest but would need to be motivated to engage with it. However, I do not exclude the possibility of voluntary work. I note that Mr Blackshaw accepted that in some cases where he had placed persons in voluntary work in the past they needed to be accompanied by their care worker because of behavioural difficulties. In the claimant’s case it may be that he would need to be accompanied, at least initially. Driving

[35]The claimant told me that he would have liked to continue driving. The position is that he still has a full driving licence but needs to undergo an assessment as to whether he is capable of driving safely. An assessment was arranged in early 2007 but was cancelled. I accept the evidence of the claimant’s care manager, Sara Hemming, that this was because the claimant was apprehensive about failing the assessment. On a number of occasions at about this time she tried to encourage him to carry through with the assessment, but nothing came of it. It was not something the claimant and Mrs Smith wanted to address. Neuropsychological input was not pursued given the other matters which needed to be confronted such as the claimant’s relationship with his wife and, later in the year, the house move. All this seems reasonable. THE LAW General damages

[36]General damages are awarded for the various heads of non-pecuniary damage, notably pain and suffering and loss of the amenities of life. The award for non-pecuniary loss is of a single sum for the total loss without division between the heads. The task of awarding this sum is simplified by use of the Judicial Studies Board Guidelines for the Assessment of General Damages, as explained below.

[37]Turning from general damages the task to determine what is recoverable for pecuniary loss involves application of the test of reasonableness. The claimant is entitled to damages to meet his reasonable requirements or reasonable needs arising from his injuries: Sowden v Lodge

[2004] EWCA Civ 1370

;

[2005] 1 WLR 2129

. There may be a range of reasonable options to meet the claimant’s needs. What is claimed in relation, for example, to care need not be the cheapest available. In Rialis v Mitchell (1984) Times, 17 July Stephenson LJ held at pp 24-26 of the transcript: “What the [claimant] here claims has been spent, is being spent and will be spent on his care 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? For if it is reasonable it is a reasonably foreseeable consequence of the wrong done (sic) the [claimant] and 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 [claimant’s] condition or increase his enjoyment of life… I think the right question is: what is it reasonable to do for this injured boy? Mr Fricker gives the wrong answer in submitting that it would be reasonable to give him the less expensive care and treatment which other parents might prefer to give him or which these parents, if restricted by their own means without the defendant or insurers to look to, might or would have given him. That may be the answer in some cases, but what has to be first considered by the court is not whether other treatment is reasonable but whether the treatment chosen and claimed for is reasonable. There is here the complication that because of his injuries the injured person cannot himself choose his treatment or make known his choice, and the choice has to be made for him by his parents. But that does not alter the principle that the defendant is answerable for what is reasonable human conduct and if their choice is reasonable he is no less answerable for it if he is able to point to cheaper treatment which is also reasonable”.

[38]In Massey v Tameside & Glossop Acute Services NHS Trust

[2007] EWHC 317 (QB)

Teare J said: “In resolving the differences of opinion on these matters I have sought to apply the principles stated and explained in Sowden v Lodge

[2004] EWCA Civ 1370

and

[2005] 1 WLR 2129

which were in turn derived from Rialis v Mitchell (unreported 6 July 1984). In the former case Pill LJ approved statements of Stephenson LJ and O’Connor LJ in the latter case to the effect that the claimant was entitled to the reasonable cost of caring for him in the manner chosen by him, or by those with responsibility for the claimant, so long as that choice was reasonable. A lesser sum would only be payable if the claimant’s choice of care was unreasonable and another form of care was reasonable; see paragraphs 10-11 and 38. Longmore LJ agreed with Pill LJ that the correct question to be addressed in relation to care was “What is required to meet the claimant’s reasonable needs?”; see paragraph 94. Scott Baker LJ agreed with both judgments; see paragraph 101” [para 59].

[39]Thus the issue for me is whether what is proposed by the claimant’s professional advisers in relation to heads of loss, in particular for care management and support, is reasonable. To put it another way, the question I must address is what is required for the claimant’s reasonable needs. So long as the proposals of his professional advisers are reasonable, he is entitled to the reasonable costs of effecting them. There is no need to approve the least cost option unless any other option would be unreasonable. Life multiplier

[40]It is necessary to choose an appropriate life multiplier for all ongoing future lifetime costs. As background to this the parties’ medical experts have agreed that the claimant’s life expectancy has been reduced by 6.5 years. Both parties agree that the conventional method of choosing a multiplier should be adopted, i.e. use of the standard actuarial tables for use in personal injury cases, the Ogden Tables. However, they disagree as to which table, Table 1 or Table 28, should be applied.

[41]The defendant submits that the appropriate approach is to adopt a discount based on Table 1 of the Ogden Tables and not Table 28. The defendant invokes the case of Crofts v Murton judgment 23/6/08, where HH Judge Collender QC, sitting as a deputy High Court judge, adopted Table 1 in a case where, as in this case, there had been evidence of the number of likely years to be reduced from the claimant’s life expectancy. In the defendant’s submission the reduction under Table 1 is to be calculated by adding 6.5 years to his age of 57.25 years. The discount figure for a 63.75 year old man from the 2.5% column in Table is 15.49.

[42]The claimant contends that it is a distinction without a difference where what is agreed is a reduction in life expectancy (6.5 years in this case) rather than a life expectancy itself (for example, to 72 years). In his submission the proper approach is to use Table 28. Table 28 is for a fixed period and does not take into account mortality risks. The fact is that the parties have essentially fixed a life expectancy for the claimant by obtaining life expectancy evidence which takes into account many of the factors to which members of the public who make up the cohort upon which Table 1 is based are subject. In the claimant’s submission, by examining all the particular features which will foreshorten the claimant’s life expectancy, the medical experts have determined what his life expectancy is. To use Table 1 would subject the claimant to double counting of these factors. The appropriate multiplier in Table 28 is 16.7.

[43]In my judgment Table 1 is the appropriate table to determine the multiplier. Table 1 sets out reasonable estimates of the future mortality likely to be experienced by average members of the male population. It is a statistical expectation of life figure and as such cannot tell how long any particular person will live. Table 28 is a table to be used where pecuniary loss is to be valued for a fixed period. It makes no allowance for mortality or other contingency. Avoiding a double discount for mortality was the principle laid down by the Court of Appeal in Royal Victoria Infirmary v B [2002] Lloyds LR (Med) 282. In my judgment the learned judge in Crofts v Murton rightly said that the Royal Victoria principle applied only where, on the medical evidence, the court can determine exactly how long an individual in a particular case can be expected to live. In that case, as in the present claim, the medical evidence did not decide the overall expectation of life, how long the claimant would live. Rather it determined by how much his pre-morbid statistical life expectancy had been shortened. There is no double-counting of mortality by use of Table 1. As a note to the Ogden Tables explains (Facts and Figures, Tables for the Calculation of Damages, 2008/9, p 52):

“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. … 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 result 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.”

GENERAL DAMAGES

[44]Published under the auspices of the Judicial Studies Board the Guidelines for the Assessment of General Damages are designed to provide a framework for the assessment of general damages in personal injury cases. The categories and brackets set out in the Guidelines reflect the decisions of the higher courts on quantum. In this case the parties agree that the claimant falls under the heading “moderate brain damage”. They disagree, however, about where he lies under two of the three categories under that heading. The two categories are: “(i) Cases in which there is moderate to severe intellectual deficit, a personality change, an effect on sight, speech and senses with a significant risk of epilepsy and no prospect of employment.” £96,000 to £140,000 (ii) Cases in which there is a moderate to modest intellectual deficit, the ability to work is greatly reduced if not removed and there is some risk of epilepsy (unless a provisional damages order provides for this risk).” £58,000 to £96,000 The claimant submits his injuries lie between the two brackets, and suggests a figure of £110,000. On the other hand, the defendant places the claimant at the upper end of category (ii), with a figure of £90,000.

[45]It is by no means straightforward to decide where the claimant falls in relation to these categories. There is no exact fit on the medical and other evidence into one or other of the categories. What can be said is that the claimant has a modest to moderate intellectual deficit. That is most obviously manifest in his problems with memory, poor concentration and poor information processing. There is most definitely the personality change which characterises category (i), but not the effect on sight, sound and senses. As already noted the joint report of the neurologists identified an increased risk of epilepsy.

[46]As to employment, highlighted in category (i), the joint statement of the neurologists said that in the light of the combination of factors, including the claimant’s age, his failure to improve with earlier attempts at rehabilitation, and all his other general medical problems, it is unlikely that he will ever be capable of returning to any form of paid employment. The defendant’s neuropsychiatrist, Dr Bird, thought that single task, limited employment, might be possible, such as working a few hours at a reception desk as a security officer. By the end of the hearing, however, it seemed clear to me that the claimant was incapable of paid employment.

[47]Taking these various matters into account I have concluded that the claimant can be found to fall into category (i). However, he is very much in the lower range in that category. To conclude, as the claimant submits, that he is almost at the one-third mark is perhaps too generous when he has not incurred some of the hallmarks of category (i), and when his unemployability is attributable, in part, to other medical problems. Taking all these factors into account, the appropriate figure, in my judgment, for general damages is £100,000. PAST AND FUTURE EARNINGS LOSS

[48]The background to the claimant’s working life is that he left school at 15 and has never obtained qualifications. During his working life he has undertaken labouring and driving jobs, including fork lift driving. Employment has not been continuous and on occasions he has been away from work through illness. A long-term back problem made it more difficult, at times, to undertake heavy work. At the time of the accident the claimant was working with the defendant as a truck driver and factory operator. He undertook regular overtime. Subsequent to the accident, in April 2006, the defendant’s factory closed, and some 40 employees were made redundant. The claimant told me that he had no significant pension arrangements. If he had been able to do so, he said, he would have continued working beyond the age of 65, as long as possible.

[49]Against the background of his lack of qualifications and work history the defendant submits that the contention that the claimant would to have continued working beyond the age of 65 is unsustainable. The only evidence was the claimant’s own, that he would have worked as long as possible. In fact, submits the defendant, the claimant’s work history is patchy. He had a longstanding back problem and ongoing problems with DVT. He has been a heavy drinker and there may well have been future hurdles to employment attributable to that. The defendant’s expert, Dr Bird, proferred the example of a disqualification for drink driving, and the resultant inability to access employment in more distant places such as Cardiff. The claimant has no qualifications, indeed he had pre-accident difficulties with reading. South Wales has high unemployment. During his employment, the claimant’s income was low; at the date of the accident it was £163.54 net per week. The claimant and his wife have no large financial obligations. In all, submits the defendant, on the balance of probabilities the claimant would not have worked beyond the age he was entitled to draw the state pension.

[50]In relation to past earnings loss, the defendant contends that increases of 5% per annum are not supported and again very unusual. Indeed the claimant was unlikely to have worked again after his factory closed. At that point he was aged 54. The claimant’s case, that he would have stepped immediately into alternative employment, is not supportable for the reasons mentioned. Since the chances of future employment are not capable of precise quantification, no award for future loss of earnings are capable of being proven. Alternatively, if there is a loss the claims should be subject to the discounts suggested in Table A of the 6th Ogden Tables. The defendant cites Conner v Bradman

[2007] EWHC 2789 (QB)

in support. The claimant is educated to ‘level O’ and, but for the accident, he would have been unemployed in any event by the date of the trial. On that alternative case, the discount figure should be 0.4, which produces an earnings multiplier to the age of 65 of 2.73.

[51]In my view the claimant was not without prospects of employment, notwithstanding the defendant maintaining that the claimant would never have worked again after the factory closed in 2006. Mrs Smith accepted that the Rhonda Valley is an area of comparatively high unemployment. That, as a matter of judicial notice, is not new. In any event, despite the claimant’s absence of qualifications, he seems always to have had work when he wanted it. Not surprisingly it was low paid, unskilled work. Perhaps the claimant’s pre-accident personality was a factor in his ability to find employment: he seems to have been valued at his clubs for his outgoing personality and an ability to make people laugh. Some of that old spark was once or twice evident in the witness box. I can conceive how that might have made him an attractive employee. There were his health problems, for example his bad back and the resultant difficulty with heavy work. But that seems only to have confined his choice, not to have eliminated the chance of work. There is no doubt that he has been a heavy drinker but as Dr Fleminger and Dr Bird said in their joint statement there was no evidence that this had any effect on his employment in the past. Given his pension position, he may have kept working beyond his 65.

[52]Taking all those matters into account my judgment is that the appropriate course is to award the claimant his full loss of past earnings. Since the claimant was only just above the minimum wage, it seems sensible to track the proportionate increases in the minimum wage over the period from the accident to date. The figures advanced on behalf of the claimant, in effect, do that. For that reason I regard them as appropriate.

[53]As to loss of future earnings, some account must be taken of the contingencies the defendant advances. Certainly in Conner v Bradman

[2007] EWHC 2789 (QB)

Judge Coulson QC (now Coulson J) used Table A in the case of a claimant whom he found would suffer a quantifiable loss of earnings for an appreciable time: at [69]. However, a difficulty with the figures in Table A is they only provide discount factors up to the age of 54. The notes to the tables state the following:

“Where the claimant is older than 54, it is anticipated that the likely future course of employment status will be particularly dependent on individual circumstances, so that the use of factors based on averages would not be appropriate. Hence reduction factors are not provided for older ages.”

In closing, Mr McDermott QC for the claimant, conceded some of the difficulties with the case he initially advanced. He submitted that a method of incorporating the contingencies advanced by the defendant was to treat the claimant as working until 65, not 70. In the light of the individual circumstances of this claimant it seems to me that this would strike the appropriate balance as regards loss of future earnings, and I adopt it. FUTURE CARE AND CARE MANAGEMENT

[54]Future care and care management were the largest component of the claim. It was also the most fiercely contested. With great skill Mr Pershad exposed all possible weaknesses in the claimant’s case under this head. As will become evident, despite some difficulties in the claimant’s case, I have concluded that it meets the test laid down by the Court of Appeal in Rialis v Mitchell.

[55]My approach to deciding what is reasonable in accordance with that decision has been guided by a number of overall considerations. The first is that the claimant has suffered very serious brain injury, which has given rise to significant cognitive deficits and a personality change. He has made a better than expected recovery but is poorly motivated and subject to mood swings. He needs assistance with his everyday life; a significant, consequential burden should not fall on Mrs Smith. The second consideration is that the care regime presently in operation is still in its infancy. Hovering in the background has been the outcome of this litigation. Nonetheless, through the work in particular of Anthony Williams it seems to have been a remarkable success. Mr Williams has been able to motivate the claimant and has improved the quality of the claimant’s life. But because it is in its early days it would, in my view, be unfair to judge it too harshly. The third factor is this: no one suggests that the claimant can do without any support. It is clear that without care management or the assistance of a care worker he would have little quality of life. There would also be an additional strain on his marriage. Past Care

[56]During the course of the hearing the parties helpfully agreed the amounts attributable to this. While therefore there is no need for any decision on my part, it is necessary to outline past arrangements since these have some bearing on the future. As to care management, some time after the accident Sara Hemming began as the claimant’s care manager. In 2007 she spent some 58 hours on his case, in 2008, some 66 hours. From his accident in 2004 until December 2007 the claimant had no care worker support. Then Mr Anthony Williams was appointed. Since December 2007 the hours he has worked are as follows: December 2007 – 16 June – 16 hours; 16 June- 14 August 2008 – 29 hours; 15 August-2nd December 2008 – 16 hours; and 2nd December to the present – 29 hours. The present package of 29 hours divides into 5 hours each weekday and 4 hours on Sunday evening.

[57]The increase to 29 hours over a relatively short period in mid 2008 was when the claimant and Mrs Smith were moving house. In June 2008 the care manager, Sara Hemming, had raised it with Mr Williams, who was able to undertake the additional hours, and with the care expert, Debbie Eaton, who had agreed. The increase in December 2008 to 29 hours was to assist the claimant over the Christmas and New Year period and to the end of the litigation. Since December 2007 four of the hours have been on a Sunday evening. At first blush this four hours is a puzzle. That is the evening the claimant attends darts at the Labour Club. The justification given for Mr Williams accompanying the claimant is that he can control the claimant’s drinking. Sara Hemming, the care worker, gave evidence that before her involvement Mrs Smith had reported that the claimant would sometimes drink up to 8 pints a night – if he drank less, he drank quickly – and would become argumentative. Over the week the claimant had reduced his drinking. Mr Williams does not accompany the claimant on his Friday evenings, but that evening the claimant is often accompanied by his wife.

(a) Professor Roger Li Wood’s joint report

[58]As the jointly appointed neuropsychological expert, Professor Roger Li Wood reported on the claimant in March 2007. He recommended against inpatient rehabilitation. Instead, he recommended a community-based programme, supervised by a clinical psychologist and implemented by a brain injury case manager with support worker assistance. He stated that the aim would be to help the claimant develop self-care routines. “Neuropsychologist should set up a training programme that would last approximately six months, by which time any progress that is likely to be made, will have been made. Thereafter [the claimant] will only require some form of maintenance, but at a fairly low level of input.” To reduce the burden of care for Mrs Smith he also recommended cognitive behavioural therapy provided by a clinical neuropsychologist.

(b) Debbie Eaton’s reports

[59]Debbie Eaton is the expert instructed by the claimant. She has prepared three reports. Her background is as a state registered occupational therapist, who qualified in 1985. She has prepared occupational therapy and case management reports for personal injury litigation since 1997 and has worked as a brain injury manager in private practice since 1998. Prior to that she held clinical leadership occupational therapy posts in the NHS. During her time in private practise she has provided care management for over 50 clients with varying needs. At the time of the trial she was actively managing nine patients.

[60]Her first report on the claimant is over 36 pages. It drew on the expert reports then available, a care management report by Sara Hemming, a review of GP and hospital records, and a visit to the claimant and his wife the previous month. After reviewing the claimant’s accident and its consequences, his past medical, social, educational and employment history and reviewing the reports I have mentioned, Ms Eaton turned to an assessment of the claimant – a description of his disabilities and a functional assessment. In terms of transport, for example, she noted that the claimant used taxis to travel to various social clubs but also that he used public transport, travelling by bus on occasions and not reporting any difficulty in that regard. She recorded that Mrs Smith told her that the claimant would have a wash, shave and change of clothes if attending one of his social clubs but otherwise felt that there was no point in doing so. He did not feel safe getting in and out of the bath and as a result strip washed.

[61]In 2006 the claimant and Mrs Smith had a holiday for a weekend, by coach to Blackpool. Although the claimant seemed to enjoy the trip when away, when he returned home he said that he had not done so. Ms Eaton judged that some 2 ½ years after the accident Mrs Smith was under a considerable burden of support and one that she was finding difficult to sustain. She not only cared for her husband but also provided support for her father and brother. At paragraph 13.11 she concluded that paid support would probably need to be introduced gradually. Thus Ms Eaton recommended that a support worker could be employed for sixteen hours per week, although this might start gradually, with fewer hours in the first instance. The aim of the support would be to assist the claimant to structure his time, to encourage him to implement a regular routine of personal hygiene care, to assist him develop independent skills in some domestic tasks and to explore options for social, leisure and vocational activities. “13.12 I consider that support worker time should be used flexibly, but might, for example, allow for four hours of support, four days per week in the first instance. … I feel that without the benefit of a support worker to assist [the claimant] to carry out any activities he will not be able to motivate himself to make any changes in this routine.”

[62]Ms Eaton went on to recommend that her programme be put in place for six months and then reviewed. At that time her view was that the matter was urgent given that the claimant had been injured in 2004. There was a need to see how a system involving a care worker would operate given that the claimant had never had support before and might well resist, given the intrusion on his and his family’s routine.

[63]Later that year Ms Eaton prepared a supplementary care report. To do this she did not visit the claimant. At this point there was no care worker. Ms Eaton developed a number of scenarios based on her earlier recommendation that a regime of paid care be put in place for a period of six months and then reviewed. The first was if the claimant continued to live with his wife and a support regime was implemented, the second was if he lived alone, and the third, as the claimant became older.

[64]Ms Eaton’s third report was in mid June 2008. It runs to 69 pages. As well as another visit to the claimant the report was based on a perusal of the various expert reports, including that from the defendant’s nursing expert, Derek Blackshaw, witness statements, and care and care management records, including the daily reports from Anthony Williams between December 2007 and February 2008. After reviewing the various documents Ms Eaton turned to her assessment. She recorded that the claimant had told her that his life had improved since the introduction of Anthony Williams as his support worker. “[The claimant] told me that he has been really pleased with Anthony’s input and he feels that, as he is somebody he knew before the accident, he can speak openly with Anthony. He added that he does not mind if Anthony corrects him on something, as he feels that Anthony is part of their community and knew all his family members before he was appointed as his support worker” (para 11.4). The claimant also told her that he had an increased activity level, had seen many members of his family, which he enjoyed, and also felt able to carry out tasks to help his wife such as purchasing small items from the shops. During her visit, they visited the new property where they were about to relocate. Ms Eaton notes that at the new property the claimant was jovial in mood and she noticed a marked change in his demeanour and presentation from when she had seen him previously.

[65]However, Mrs Smith told Ms Eaton that in many ways the claimant had not changed and that when he was on his own he was difficult to motivate. Problems remained with his alcohol consumption and his lack of emotion towards her. However, she felt that with the assistance of the support worker she was able to share the burden of motivating and prompting him. Mrs Smith said that she found the input of the care manager, Sara Hemming, to be extremely beneficial. She could discuss her concerns and difficulties, including correspondence. Anthony Williams told Ms Eaton that in the early days every suggestion for activity came from him, but now the claimant was making more suggestions himself and they were able to plan activities for each session together. However, Mr Williams noted that the claimant still struggled with being able to plan in advance.

[66]Ms Eaton concluded that the claimant “continues to present with considerable problems and the process of paid support can be seen as managing rather than ameliorating these difficulties” (para 19.7). Were paid support to be reduced or withdrawn, her conclusion on the basis of the evidence to date was that the claimant would not maintain his progress in terms of engaging in activities which had been achieved. A key benefit of the regime of support was the impact upon the relationship between the claimant and his wife (para 19.12). There were some key areas of difficulty where the claimant had not made progress such as the inability to initiate activities of daily living without the support of his carer, his inability to plan ahead and his excessive drinking. “It is my overall view that the provision of case management and paid care has been entirely appropriate for [the claimant] and that there have been considerable benefits to the quality of his life since the introduction of this routine. … It is my view that a provision of reducing support is not appropriate for [the claimant]. He has not shown any ability to generalise skills learned when paid support is not available. My recommendation is that case management and paid support should be maintained for the remainder of [the claimant’s] life and that it would be appropriate for the number of hours to support to increase” (paras 19.21, 19.23) (my emphasis).

[67]Ms Eaton then dealt with future needs. If the claimant and Mrs Smith continued to live together she proposed a package of ninety one hours per annum for case management. That took into account the possibility of a change of support worker, and the consequent need for greater care management input. It also facilitated the second support worker she recommended. The ninety-one hours she proposed per annum broke down as follows, although in her evidence before me she made slight modification of these to take into account matters such as NVQ qualifications. Case management roles Hours per annum Ongoing recruitment of support worker, including initial training allow recruitment every two years of 30 hours, i.e. allow 15 hours per year. 15 Ongoing liaison with neuropsychologist and other services, including GP and district nurses, allow six hours per year. 6 Developing care plan, undertaking risk assessment, allow 12 hours per year 12 Implementing care plan, monitoring support worker, training and supervision, including meetings with the support workers at least once every two months, 18 hours per year. 18 Regular visits to [the claimant] on a monthly basis, allow two hours per visit, 24 hours per year. 24 Reviewing documents, preparing written reports, allow six hours per year. 6 For contingency in case of unforeseen change, allow 10 hours per year. 10 Total case management time per annum 91

[68]Ms Eaton’s report then went on to recommend thirty hours of paid support per week. That was based on a number of premises. First, that there had been little or no carry over to the times when the support worker was not present. In other words, when support was absent the claimant was unable to initiate meaningful activity and simply sat and watched television, with a consequent adverse effect on his mood and on irritability. “Given the reported benefits of the paid support regime and the limited carryover of these benefits when support is not present, I recommend that support time increase in the immediate future and that an allowance of up to thirty hours per week be made for paid support, to ensure that [the claimant] can have support worker visits for six days a week. I consider that this increase is required immediately, in advance of [the claimant’s] move to his new house and should continue for the foreseeable future” (para 24.4.6). Ms Eaton also developed the notion of a second support worker, who would be available in the event of the existing support worker taking sick leave and also to cover planned annual leave. The report then dealt with care input in the event of the claimant and Mrs Smith separating. Included among other future costs was a provision for short respite breaks for the claimant accompanied by a care worker, leaving Mrs Smith at home.

[69]A few weeks prior to the hearing, Ms Eaton filed a further supplementary report. In the main this involved a review of Anthony Williams’ notes between December 2007 and January 2009. In that she opined that the regime of support had been effective in enabling the claimant to engage in routine activities including domestic tasks, social activities, and DIY and household maintenance projects. To her the records indicated that the completion of these tasks had given the claimant a sense of pleasure but that he continued to need assistance both to initiate and complete them. Her overall impression was that, with paid support, he now had a structured routine but that as soon as there was any change to it, with the support worker not being present, he reverted to feelings of low mood and failed to engage or sustain activities.

(c) Derek Blackshaw’s reports

[70]For the defendant Derek Blackshaw prepared two nursing reports. Mr Blackshaw was a senior nurse and health services manager before becoming an independent consultant on nursing and care issues. He has been an expert witness since 1991 but is looking to retirement and is no longer taking on new work. He has specialist knowledge of mental health and brain injury services and his commissions have included care management of people with brain injury, mental illnesses or special life care needs. He had advised on the development of a care management service. At the hearing Mr Blackshaw’s evidence was that although he had advised on care standards regulations he was not completely familiar with the current legislative regime.

[71]Mr Blackshaw’s first report resulted from a visit to the claimant in early June 2007 and is dated the 11th July of that year. This eighteen page report reviews the post-accident history of the claimant, his accommodation, his pre-accident history and the difficulties which he experienced with day to day living at the time of the visit. He noted that the claimant normally prepared lunch while his wife was out during the day and would make himself a sandwich or egg on toast. The main meals were prepared by his wife, as they had been in the past. In relation to future care Mr Blackshaw supported the recommendations advanced by Professor Wood, i.e. a six months training programme. He considered that input over the same six months period from a support worker would encourage the claimant with more day time activity and would be beneficial for his general wellbeing. The care manager would require twelve hours, together with four hours travel for the programme’s duration, i.e. six hours per month plus four hours travel, with two visits a month.

[72]With regard to a support worker, Mr Blackshaw thought it inappropriate to make a fulltime appointment since his recommended programme would be time limited. He recommended an input of four hours a day for three days per week. Longer term he considered that it was advisable that the claimant continued to have input from a care manager and a support worker, but agreed with Professor Wood that this would be at a fairly low level. “I consider that two sessions of three hours each per week would be sufficient to maintain support to [the claimant] and give him opportunity to work with the support worker both on outings and planning his activities for the week.” For the care worker he recommended an average of two hours per month together with two hours travel on alternative months, with a contingency allowance for a further six hours per year. For the care manager that involved a total of thirty hours per annum, excluding travel.

[73]In early September 2008 Mr Blackshaw prepared a supplementary nursing report. No further visit to the claimant was made and so he was relying on his visit in June of the previous year. However, he did have the additional documents, such as the expert reports, the care management report of Sara Hemming of February 2007 and the care management records from December 2007 to February 2008. In a relatively short document, of some six pages, Mr Blackshaw briefly reviews these reports. As to future care he remarks that his recommendations of a regime of case management and paid care and family care coincided with those of Ms Eaton. However, in all three elements he noted that the number of hours she considered necessary were significantly higher “than I consider to be either necessary or reasonable”. Mr Blackshaw concluded:

“[I]t is my opinion that they are based on a level of disability beyond that which [the claimant] suffers on account of the material accident and are likely to bring about passivity and dependency on his part”

. As far as the differences in the level of care management recommended, Mr Blackshaw regarded Ms Eaton’s assessment to be at “an exceptionally high level and in my opinion the proposal for visits on a weekly basis is entirely without justification.

(d) Expert evidence at the hearing

[74]At the hearing both Ms Eaton and Mr Blackshaw gave evidence. Ms Eaton maintained her recommendations. She explained that the original recommendation of 16 hours care worker support was a relatively short term proposal at a time when the claimant urgently needed support. The level was pitched to see if it would work, especially since the claimant had never had a care worker in the past. As to the future, she reiterated her recommendation for a second support worker to cover holidays and other absences of Anthony Williams. She also identified a risk of burn out on the part of a support worker after three to four years. Evidence was led on the need for training and the requirements of the care quality regulator. In cross-examination Ms Eaton agreed that the aim of future care should be to promote independence on the part of the claimant, but that the level of care support should be at a level to maximise his quality of life. She agreed that in the initial period her recommendation of sixteen hours of care worker support per week was not greatly different from Mr Blackshaw’s twelve hours. Her supplementary report was prepared without the benefit of seeing all of Anthony Williams’ daily notes.

[75]Ms Eaton’s important recommendation for the future of thirty hours input was based, she said, on several factors. First, there were the medical reports which highlighted the claimant’s lack of insight, moods and irritability; secondly, there was the lack of carryover when the care worker was not available. It was put to her that it would be possible to implement a system for carryover for days when the care worker was not available, and that there was no evidence that the claimant lacked insight regarding the need to implement a structure. It was also put that neuropsychological input had not been attempted so as to develop a structure for the claimant’s activities in the absence of the care worker. Ms Eaton thought there was enough evidence, for example, from Anthony Williams’ notes, to justify her conclusion that there was a failure to carryover. The claimant lacked motivation and that, on the basis of the medical evidence, would not change with time. She said that in her experience there were packages of care of less than thirty hours and others extending to 24 hours care per day. The evidence suggested that when the care support package was reduced to sixteen hours the claimant had reverted to a situation where he lacked the initiative to have an idea and the drive to implement it.

[76]In his evidence Mr Blackshaw remained firmly of the opinion that thirty hours was far too much. In the longer term six hours per week was sufficient. There was a real threat of dependency with too much input. The current regime of care support concentrated on individual tasks, whereas the goal should be independence. What was required was a setting of goals during a period of active treatment, including input from psychotherapy, overseen by a neuropsychologist. The claimant needed to be shown how independent he was. There had to be a planning where measurable goals were set so that he could see the progress being made. Certainly there was no reason for the four hours input on Sunday evenings. The speed with which the claimant was able to change his Friday night activity from skittles to darts demonstrated his ability. The claimant was not without spark and six hours per week would be sufficient, so long as a treatment programme was properly designed with planned activities, the introduction of new activities, and reinforcement and repetition so that the claimant did not regress. Cognitive therapy would enable the claimant to develop his own thoughts and initiative. Volunteering was one method of getting a structure into the claimant’s week. There needed to be a planning of his diary so that fitted into one part of his activities for the week. Any prompting for him to participate in activities would come from the structure itself. It was important to focus on goals and not on individual tasks. Getting back into the community was a goal. Mr Blackshaw seemed to accept the need for some respite breaks for the claimant. The defendant’s submissions

[77]For the defendant Mr Pershad carefully constructed a case on the back of Mr Blackshaw’s reports and a trenchant critique of Ms Eaton’s approach. In his submission, the required package of care worker support was six, at most twelve hours, per week. Ms Eaton’s recommendation for thirty hours a week care worker support was flawed, not least because it was formulated at a time when the full diary of Anthony Williams was not available and before the move into the new house. Ms Eaton acknowledged it was a significant package. Moreover, her approach ignored the evidence of the experts, not least Mr Blackshaw. It was contrary to the conclusion of Professor Wood. Dr Bird had said that the regime of twenty nine hours per week was much more than he would have expected, and there were the concessions of Dr Fleminger at the hearing in favour of the defendant’s case.

[78]Even if sixteen hours per week was a reasonable starting point, submitted Mr Pershad, that had to be reduced to twelve hours per week because of the lack of evidence to support an input on the Sunday night. There was no evidence of a lack of self-control on that evening. The claimant had demonstrated that he could deal with a difficult social situation at his Friday night club, where he had walked away from someone who was sarcastic about his card playing. The Sunday night activity involved a team carrying out a structured activity. No assistance was required on a Friday evening yet he was able to get home safely without incident, lock the door and go upstairs to bed. The evidence about regular, excessive drinking was not accurate. There were very few entries in Mr Williams’ diary where the claimant has drunk excessively. Were sixteen hours used as the benchmark, this should therefore be reduced to twelve hours per week by the elimination of the four hours on a Sunday evening.

[79]Mr Pershad contended that the placement of the claimant in voluntary work would reduce yet further the requisite weekly input by a care worker. Nor did the 16 hour per week recommendation take into account the fact the claimant might be able to pass his driving assessment. He would be able to undertake activities independently. While a higher weekly input by a care worker may be necessary in the first instance to establish the structures which Mr Blackshaw had suggested, it was not likely that the claimant would need an externally imposed structure for the rest of his life. He had motivation and initiative and an ability to learn and act in accordance with a structure. That was most obvious with his social activities. After the initial period no more than a low level of ongoing input would be necessary, which lent support to Mr Blackshaw’s recommendation of six hours per week. Analysis and conclusions

[80]Both experts advanced strong arguments in support of their preferred course for the claimant’s care and support. Mr Blackshaw impressed me with his long experience and robust good sense. Ms Eaton’s forte was careful and lengthy written analysis, backed up by a considerable volume of contemporary case work in the field. Having pondered the matter for some time, and having re-read all the material, it seems to me that Ms Eaton’s approach is to be preferred. Hers was a careful judgment, informed by a considerable practice and a knowledge of current and regulatory requirements. Her conclusions were backed by thorough and thoughtful reports. In cross-examination she readily conceded points. Despite Mr Pershad’s meticulous cross-examination, however, she was able to maintain her justification of the key aspects to her preferred approach. It is evident from what I have said that there were flaws, for example, she did not have available all of Anthony Williams’ notes and those notes did not always support her assertions, notably about carry over. However, she did have other evidence on matters such as carry over, for example from Mrs Smith, and at the end of the day I lean in favour of her recommendations, backed as they are by an impressive experience and professional judgment.

[81]There was some support for her approach in other evidence. Thus Dr Fleminger suggested that the defendant’s proposals for six hours a week for a care worker would lead to the claimant’s regression. He would become less active, depressed and more anxious as a result. His lack of insight would include a failure to appreciate the absence of support. Indeed, I even detected some support for the claimant’s case from Dr Bird, the defendant’s neuropsychiatrist, and an impressive witness. He emphasised that the nature of the care package was not his area of expertise but he would not have approved 30 hours a week. Nonetheless, he acknowledged that the claimant needed a structure into the future and continued supervision. While I have rejected one part of the solution proferred by Dr Bird, voluntary work, it seems clear to me that neither the six nor twelve hours of care worker support per week favoured by the defendant would be sufficient to provide that type of structure and supervision which I assume Dr Bird envisaged. For completeness I simply note that Professor Wood’s recommendation as to the level of care was for interim arrangements; events have passed it by.

[82]That leaves Ms Eaton’s recommendation of thirty hours of care worker support per week. I do not need to be persuaded that this is exactly what is required. All I need to decide, as I do, is that this meets the reasonableness standard established by the Court of Appeal in Rialis v Mitchell. As Stephenson LJ explained in that case, what has to be considered by the court is not whether some other treatment is reasonable – in this instance some lesser number of hours per week – but whether the proposals identified by the claimant’s professional advisers are reasonable. In my judgment the thirty hour package for 52 weeks a year in this case is reasonable according to this test and thus the claimant is entitled to its cost. The proposal for ninety-one hours of care-management per annum also meets that legal standard, not least because it seems to me to incorporate contemporary standards for training.

[83]Ms Eaton’s proposals for a number of short UK based respite breaks with care worker attendance seemed to be supported by Mr Blackshaw; in any event I consider they are reasonable. I am not persuaded of the case for any separate provision for foreign holidays. Separation from Mrs Smith

[84]Mrs Smith’s own evidence was that the relationship between her and the claimant was up and down. In recent times it had been better but there were still difficulties. In December 2008 she had left the house and spent the night at her father’s because of his behaviour. However, despite the strains she would not leave her husband. He was not a cruel man. There had been problems in the 1970s with his depression but she had not left then. The care worker, Sara Hemming, who speaks to Mrs Smith on a regular basis, thought there were stresses between the two and was concerned that Mrs Smith might withdraw to her father’s place, as had occurred on the one occasion. Indeed Mrs Smith had said she would like to decorate a room at her father’s house so she could retreat there.

[85]The claimant’s neuropsychiatrist, Dr Fleminger, referred to the literature which evidences an increased risk of marriage break-up as a result of serious brain injury. The behavioural problems which it produces, the resultant lack of companionability, and the irritability – all these place a strain on relationships. His estimate now was that there was a 10-15 percent chance of separation. Earlier he had given a higher estimate, but the claimant’s increased activities, and his mood improvements, meant that he revised the figure downwards at trial to 10-15 percent. Dr Bird, the defendant’s neuropsychiatrist, preferred to stick with his estimate that separation was unlikely, rather than trying to place a figure on it. He observed the affection which seemed to exist between the couple on the DVD. However, Dr Bird acutely observed that one is constantly surprised at the couples who do separate.

[86]In the light of the experts’ estimates, and doing the best I can, I place the chances of the marriage between the claimant and Mrs Smith breaking down at 10 percent. Given that this is a relatively low risk I am not persuaded that a multiplier-multiplicand approach is appropriate. A contingency sum seems reasonable in the circumstances to cover the extra domestic help the claimant will need. I fix that at £20,000. ACCOMMODATION

[87]In the middle of 2008 the claimant and Mrs Smith moved to a new bungalow in Dinas. They had lived in a terrace house since shortly after their marriage. The claimant’s case is that the cost for the purchase of the new property is recoverable since once he was injured it was reasonable to move. That is partly because as a result of his injuries he needed a house with a place so he was able to withdraw for peace and quiet. The defendant denies that it was necessary for the claimant to move to the new house and asserts that the purchase of the new property cannot be regarded as reasonable. The previous accommodation

[88]The previous accommodation, at 12 Grovefield Terrace, appears to be a typical Rhonda Valley terrace. It is at three levels. Street entry is at the second level, the ground floor. That is the living room. Downstairs is the kitchen, utility room and bathroom. There are three bedrooms at the third level. There is also a small garden. The dimensions at each level are just over 30 square metres.

[89]At one point after the accident it was thought that the claimant’s mobility would deteriorate and that it would be necessary to obtain single level accommodation. This was the import of Dr Hardie’s report of January 2007, supplemented by a letter from him of December 2007. It seems that the accommodation expert proceeded on this basis. Fortunately, mobility did not prove to be a major problem and Mrs Smith gave evidence that her husband could walk up and down the stairs, albeit using the handrail. However, it is clear that the claimant was unwilling to do this. One reason was that he felt that he may suffer dizzy spells. Dizzy spells can be a feature of those suffering a serious head injury. For that reason the claimant did not want to have to negotiate the two flights of stairs in the house. However, the new bungalow has stairs between its two levels and he has never fallen. It seems to me that this cannot have been a major factor in the claimant’s desire to move.

[90]At some time after the accident there is no doubt that 12 Grovefield Terrace was crowded. The Smith’s younger daughter, Gemma, was living with them, along with her young baby, Ocean, who was born some time in 2007. In 2004, their elder daughter, Victoria, had moved back into the family home following the break up of a relationship. She had left some ten years previously. Her two young sons stayed with their father, but after Victoria moved back in 2004 they would typically visit Grovefield Terrace after school. They would also be there on weekend afternoons. Victoria moved out again at the end of 2006 or the beginning of 2007. She still visited her parents with her sons, on a weekly basis.

[91]In the defendant’s submission the possibility of a quiet zone for the claimant on the third floor at Grovefield Terrace was never explored. The claimant was able to negotiate the stairs and there was no reason why he could not have retreated to the bedroom level to avoid the crowding downstairs. There was no suggestion in the notes of the care-worker, Anthony Williams, that any work was ever done to develop the top floor as a quiet zone. The aim, almost from the time he arrived, was to move house. Nor, in the defendant’s submissions, was there any cognitive therapy for the claimant to address the hatred he had for 12 Grovefield Terrace. In fact what seems to have happened was that a move to a bigger property was assumed from an early stage.

[92]To my mind the explanation comes from the care manager, Sara Hemmings. She explained that the claimant wanted to move, at one point away from the Rhonda altogether. He regarded the sitting room as his room, where he slept at night and stayed during the day. He would simply not have countenanced any move to a quiet room upstairs. The new property

[93]The relocation to the new property at 8 Parc Afon occurred in the middle of 2008. The property is a modern bungalow with two levels, the living area and kitchen being on the ground floor, with the bedrooms and bathroom upstairs. Most significantly the house has a conservatory. The claimant’s evidence was that the house was a great improvement on the previous property because one could do everything at one level and one only needed to go upstairs to sleep. It was easy to walk into the garden. Importantly there was the conservatory, a place to which the claimant could retreat. In Mrs Smith’s evidence the conservatory was regarded as the claimant’s territory. He had a television there: he confided in his care-worker, Anthony Williams, there: and he was able to escape the noise and bother of the children. Indeed, he spent considerable periods in the conservatory. Victoria and the old house

[94]The elder daughter, Victoria, has moved into 12 Grovefield Terrace. She is paying a rent of £40 per week, less than the rental value, which seems to be about £325 per month. That money is paid into the Smith’s current account. Mrs Smith explained in her evidence that the rental arrangement with Victoria is an attempt to assist their daughter. However, she denied that the new property was bought with that end in view. Of some importance is that in Mrs Smith’s evidence the claimant was also involved in the decision to rent the old property to Victoria. The defendant’s submissions

[95]The defendant submits that it was not necessary for the claimant to move from 12 Grovefield Terrace and the purchase of the new house at 8 Parc Afon was not reasonable. The claimant, it is said, was mobile, and could go up and down the stairs. There was a possibility of a quiet room upstairs which was never explored, and any argument about the need for a shower disappears because the evidence is that the claimant does not use it at the new property. The defendant concedes that the claimant had a dislike of the old property but that was, in its submission, attributable to the other problems associated with it such as the presence, at one point, of the two daughters with the grandchildren. Any dislike of the property was never properly addressed through the use of any strategy, in particular neuropsychological input. The defendant also raises the issue of the rental of the old property to Victoria, the elder daughter, not only in relation to the rental income attributable to that, but also because it casts light on a possible real motivation for the purchase of the property. The claimant had not discharged the necessary burden with regard to the move. Reasonableness of the purchase

[96]I have no hesitation in concluding that the purchase of the property was reasonable. On the evidence, it seems that one consequence of the claimant’s accident was that psychologically he felt that he needed a new beginning. At one point he wanted to leave the Rhonda completely. Conversely, he hated the old house. In my judgment it would have been unrealistic to have expected cognitive therapy to address that issue. While the crowded situation would have contributed to the claimant’s feeling that he needed to escape the old property, that is only part of the picture. In my judgment Victoria’s rental possibility had no bearing on the move. All the evidence subsequently supports the reasonableness of the purchase of the new property. It has had a very positive impact on the claimant. His stress is mitigated, especially since he can retreat to the conservatory. His daughter, Victoria, told me in evidence that there was far less tension with the move to the new house. She conceded that the claimant’s positive development had been accentuated from January of this year, which is independent of the move. However, there is no doubt on the evidence that the new house has had a positive psychological impact on the claimant. CAPACITY

[97]The claimant must be assumed to have capacity to manage his financial affairs unless it is established that he lacks it. Under section 2 of the Mental Capacity Act 2005 (“the 2005 Act”) he lacks capacity if at the material time he is unable to make a decision for himself in relation to the matter “because of an impairment, or a disturbance in the functioning of, the mind or brain.” Section 3(1) of the Act provides as follows:

“(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable— (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means).” (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means).”

The defendant’s case

[98]The defendant’s case is that the claimant has the capacity to manage his own affairs. The fact that he does not currently look after his finances on a day to day basis should be seen in the context that prior to the accident he never managed the household finances. His wages were paid into a bank account and his wife paid bills and provided him with an allowance for the sums he needed to spend on a day to day basis. Very little appears to have changed. There can be no doubt that he has an understanding of money and monetary issues. He goes out regularly to his club. He collects money on the door of the NUM club on a Saturday evening. The club would not allow him to do this if he was incapable of collecting the money required and giving change to permit entry to the club.

[99]The defendant also points to Mr William’s notes, which evidences the claimant drawing cash out of a bank account and paying bills. There is no credible suggestion that he is vulnerable or that he spends money without appreciating its value. The claimant is clearly engaged in financial issues. He was actively engaged in selecting the new property and was involved in the decision making process leading to renting the old house to Victoria and the possible provision of money to allow his younger daughter Gemma, to do likewise. He and his wife will clearly take financial advice. Inability to make decisions

[100]In my judgment the claimant is unable to make decisions relating to the damages he will be awarded as a result of this litigation. These decisions are of a quite different character from the financial decisions he makes in relation to his daily activities and from the very specific decision to purchase the new property and rent the old to Victoria. This inability to make decisions is my understanding of the thrust of the medical evidence. Although the defendant says it is historical, the report of Professor Wood, a jointly instructed expert, was quite clear that the claimant did not have the capacity to manage his affairs. Although the defendant remarks that Dr Fleminger did not specifically test financial capacity, Dr Fleminger was clear that the claimant lacked the capacity to manage his financial affairs and to instruct a solicitor. While he thought the claimant may at some point regain that capacity, he concluded that the claimant would remain vulnerable either to exploitation or to not being able to understand fully what was required by way of managing his affairs. The defendant’s expert neuropsychiatrist, Dr Bird, concluded that Mr Smith probably did have capacity to manage his finances and affairs and to instruct a solicitor. In evidence, however, Dr Bird, conceded that the fruits of this litigation would need to be placed where they were inaccessible to ready use. In all, on the basis of all the evidence I find that those acting for the claimant have discharged the burden of proving his lack of capacity under the 2005 Act. CONCLUSION

[101]The claimant was severely injured at work and suffered brain injury. He has made a remarkable recovery but will be affected in the ways described in the judgment for the remainder of his life. My task has been confined mainly to determining the level of damages. Applying the Judicial Studies Board Guidelines, I have determined the level of general damages for non-pecuniary loss in respect of pain, suffering and loss of amenity as £100,000.

[102]Part of my task was deciding on a life multiplier to reflect early payment of the awards for pecuniary loss. In my judgment, for the reasons I have given, the defendant’s argument should prevail in selecting it, having regard to the agreed reduction of 6.5 years in life expectancy. As to loss of earnings, my view is the claimant would have found alternative employment had he continued at the defendant company but been made redundant when the factory closed in 2006. On the evidence available to me, he would have obtained employment elsewhere for the whole period between being made redundant and the date of trial. It seems to me that the rate of pay he would have achieved in such alternative employment is most sensibly pitched at the level Mr McDermott QC has advanced on his behalf. For the reasons I have given I have also adopted Mr McDermott QC’s approach in setting the net annual wage for future loss. As to the multiplier, however, I am persuaded that the contingencies advanced by the defendant are such that although this claimant should be regarded as continuing in employment to 65 years he would not have continued to work, as he said he intended to, until 70.

[103]Past care and care management was the most difficult and contested part of the case. Fortunately no determination was required for past gratuitous care, paid care and care management, all of which the parties were able to agree. After considerable thought, and notwithstanding Mr Pershad’s powerful arguments, I have been persuaded that the approach to future care and care management advanced by the claimant’s expert, Ms Eaton, should be adopted to the extent I have indicated. (I note that Ms Eaton agreed minor adjustments to her recommendations in the witness box, which I adopt). That applies both to future care and care management. The corollary of her approach, taking into account as it does contemporary practice and regulatory requirements, is that there needs to be provision for year round support, back up care, and training for any care worker. As part of this exercise I also had to decide – a most invidious task – the risk of marriage break down between the claimant and Mrs Smith. On the basis of expert evidence I have found that to be 10 percent and have decided on the fixed sum to cover that eventuality.

[104]Accommodation was a more straightforward matter. I have had no difficulty in deciding that it was reasonable for the claimant to move from Grovefield Terrace to 8 Parc Afon and that the move was reasonably attributable to the injuries sustained in the accident. 8 Parc Afron was a reasonable house to which the claimant should have moved. The moving and additional costs are allowable and the future additional costs advanced by the claimant are reasonable and allowable. The parties have agreed increased house maintenance costs.

[105]I have referred to the medical experts’ view, that most of the claimant’s mobility problems are attributable to factors other than the accident, and that future deterioration in mobility is likely to be explained by those other factors. The claimant no longer walks home from his club, but that is partly attributable to the Parc Afron move. Doing the best I can it seems to me that a figure of £5000 is appropriate to cover past and future transport costs. No other miscellaneous costs are appropriate, expect for a small annual amount the claimant has advanced to cover telephone calls to his care manager and care worker. Past and future medical costs have been agreed.

[106]Finally, I need to decide on the claimant’s capacity to manage his financial affairs. In my judgment the claimant does not have the capacity to manage his affairs and is unlikely ever to regain that capacity. The result is that I award the future cost associated with the administration of the claimant’s affairs by the Court of Protection.