Sklair v Haycock [2009] EWHC 3328 (QB)

[2009] EWHC 3328 (QB)Case No HQ 08 X02659
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/12/2009
Before
THE HON MR JUSTICE EDWARDS-STUART
Between
GIDEON SKLAIRClaimant(A Protected PartyClaimantby his Uncle and Litigation Friend DAVID LEE)ClaimantDOREEN HAYCOCKDefendant
Nigel Cooksley QC (instructed by Irwin Mitchell, Solicitors) for ClaimantSimon P Browne (instructed by DWF LLP) for DefendantHearing Hearing dates: 16/11/2009, 17/11/2009, 18/11/2009. 19/11/2009. 20/11/2009, 24/11/2009
JudgmentMr Justice Edwards-Stuart :Introduction
[1]On 18 April 2007, at about 8:25 pm - when it was dark, the Claimant and a friend of his who was blind were crossing a road in Sydenham, South London, when they were both struck and knocked down by a car driven by the Defendant.[2]On 17 November 2008 judgment was entered for the Claimant, subject to contributory negligence, with damages to be assessed. It has since been agreed that liability for the accident should be apportioned 90:10 in favour of the Claimant. This is the hearing of the assessment of damages.[3]At the time of the accident the Claimant was 46; he is now 49. Since his childhood he had suffered from Asperger's Syndrome and Obsessive Compulsive Disorder (“OCD”), and from about the age of 24 he lived with his father who provided for his basic needs such as feeding him and doing his laundry. However, apart from that he was able to lead a fairly independent life and he would travel around London on his own and see his friends. But his father is now over 80, and so even if the accident had not occurred he would not have been able to look after his son indefinitely.[4]The physical injuries sustained in the accident imposed fairly severe limitations on the Claimant's dexterity and mobility, as well as having had a significant adverse effect on his psychological well-being. As a result the Claimant has required care and attention for 24 hours a day since the accident, although the parties disagree as to whether this level of care has to continue. In addition, the Defendant contends that, once the Claimant’s father became unable to care for him, he would have needed care of some sort in any event.[5]Thus the real issues that arise on this assessment of damages are(a) whether the Claimant needs from now on a level of care and attention similar to that which he has had to date and(b) the extent to which the costs of the care and attention that the Claimant now requires (whatever it is) can be laid at the door of the Defendant as being the result of the accident; or, to put the second question another way, to what extent should the Claimant give credit in this claim for the care that he would have required if the accident had not occurred?

The Claimant’s family

[6]It will be helpful at the outset if I give a brief description of the Claimant's family. The Claimant has two uncles and an aunt. His aunt, Leila Sklair, who is married to David Lee, the Claimant's Litigation Friend, was the eldest of the three. She was 18 when her mother died, leaving her as the mother figure to her youngest brother, Harvey - the Claimant’s father – who was then 14. The remaining brothers are Astor Sklair and Sam Sklair. The latter lives abroad.[7]The Claimant was the only son of Harvey Sklair, who separated from his wife Thelma when the Claimant was about 24. The Claimant then went to live with his father, with whom he stayed until the occurrence of the accident. Leila and David Lee have two children, Laura and Abigail. Laura Spicer has two adult children and is a consultant with a practice in Harley Street that specialises in providing training and consultations to those with OCD, addictions and phobias. She and her husband live in Richmond. Abigail Lee-Six is a professor of Spanish at London University, with two teenage children. She lives in Barnes, London SW13.[8]Astor Sklair and his wife have three children. The eldest, Stephen, lives abroad. The two daughters, Anna and Emma, live in London. Anna Sklair is a social worker and lives in Highgate, London N19, and has one daughter at school. Emma Maharjan lives in Sevenoaks with her husband and three year old daughter. She works part time for Barclays.[9]I will have to say more about each of these members of the family later in this judgment, but at first blush they would appear between them to have the resources with which to have taken over the care of the Claimant when his father was no longer able to do so.

The relationship of individual members of the family with the Claimant

[10]David Lee, the Claimant's uncle and Litigation Friend, used to be a jazz pianist and composer who obviously had a successful career. He is now 83 and, if I may say so, appears to be very fit for his age. He had known the Claimant since he was born and used to keep in fairly regular touch with his brother in law, the Claimant's father.[11]He said that before the accident he used to visit the Claimant's father about once a month for lunch. He said that the Claimant would be there on about 85% of those visits. Since the accident he had seen the Claimant about a dozen times, particularly when he was in hospital at Stoke Mandeville. He said that he was very anxious to get the Claimant out of Harcourt House to which he was transferred in December 2007 following his discharge from Stoke Mandeville. The problem was that Harcourt House was a home for mental patients, whose company the Claimant found very difficult and where he was by all accounts extremely unhappy. Mr Lee was involved in the search for the Claimant's present flat and in organising furniture for it.[12]He said that the Claimant had been to stay with them for two weeks on a couple of occasions. One was about six years ago when the Claimant came to stay with the Lees at a house that they owned on Majorca. Initially it was just the three of them but they were subsequently joined by the Claimant's father. It is clear, and I find, that he knew the Claimant very well.[13]Astor Sklair, who also appeared to be remarkably fit for his age, said that before the accident he used to see the Claimant four or five times a year when he visited Harvey, the Claimant’s father. In addition, his father would occasionally bring the Claimant to family gatherings. Since the accident Mr Sklair said that he had visited the Claimant three or four times at Stoke Mandeville, but that he did not visit him whilst he was in Harcourt House. He had been several times to see the Claimant in the latter’s present flat. I find that he also knew the Claimant well, although perhaps not as well as his brother in law.[14]It was fairly clear that the four cousins had not seen much of the Claimant during the past 20 years or so, and so their knowledge of him was derived in part from memories of their childhood. However, they did see him from time to time at family gatherings. In addition, Professor Lee-Six said that she used to ring her mother daily and would hear the up to date news of the Claimant and his father (latterly, since her mother became rather deaf, this regular communication has been by e-mail).

The present condition of the Claimant

[15]Mr A M Tromans FRCS, Consultant in Spinal Injuries at Salisbury District Hospital, was the first expert witness called on behalf of the Claimant. He had prepared three reports dated 30 January 2008, 1 September 2008 and 10 December 2008. In addition, he wrote a letter dated 19 October 2009 which dealt with a recent report on physiotherapy by Laura Bochkoltz dated 5 October 2009 and the Claimant's life expectancy. His conclusion is that the Claimant had sustained a cervical spinal injury, with a central cord syndrome. He had aberration of hand function that interfered with his dexterity, preventing him from undertaking fine manipulative tasks, such as fastening buttons, belts and zips, holding cutlery adequately and cutting up food. On account of his clumsiness he was at risk of burning himself with hot drinks and other hot items and so he was at some risk in a kitchen. In addition, there was some impact on his mobility, he was not steady as he walked and was at risk of falling and breaking long bones.[16]As to the future, Mr Tromans considered that the Claimant would have to live in accommodation that was wheelchair accessible and that in a few years time – by his early 60s, because his ageing would accelerate by reference to the norm, he would need a wheel chair - but one of the type that could be driven by an attendant, and not by the Claimant himself (Mr Tromans considered that the Claimant would be at risk in a wheelchair that he drove himself). Mr Tromans considered that the Claimant had taken a fairly long time to reach his peak post injury. He said that the Claimant's manual dexterity might improve a little under constant supervision, but effectively he had reached a plateau. He regarded it is important that the Claimant continued to undergo regular physiotherapy.[17]Mr Tromans considered that the Claimant was likely to have a life expectancy reduced by 10%, by comparison with an otherwise healthy male in the UK of similar age. This figure is not challenged.[18]He agreed in cross examination that the Claimant may achieve some further improvement in his manual dexterity provided that he had constant supervision, but beyond this he did not think that his present difficulties would be overcome ("I don't see him getting much better"). In terms of balance he considered that the Claimant might be at some risk of being distracted if walking beyond the bounds of his garden and could easily fall, although he was not aware of the Claimant actually having had a fall since the accident. He was not able to comment on the descriptions in the carers’ daily records about the Claimant being taken for long walks, without knowing how long each walk took and how many rests the Claimant may have had on the way. He said that he would be concerned about the Claimant's ability to cross a road whether accompanied or not - the problem being that because of the slowness of his walking it would be a question of getting the timing correct. He considered that the Claimant should always have someone with him.[19]I found Mr Tromans to be a careful and knowledgeable witness, but in reality I did not detect any serious difference between the parties in relation to those aspects of the Claimant's injuries that were covered by his evidence, which I accept in the terms that I have summarised above.[20]Of more concern is the Claimant’s psychological condition. Since the accident he has become very anxious. Psychiatric evidence in support of the Claimant's case was given by Dr Stuart Turner. He had reached a substantial measure of agreement with his opposite number, Professor Trimble, and they produced a Joint Psychiatric Statement dated 21 October 2009. They agreed that the Claimant had suffered an additional psychiatric disorder after the accident which had features of Post Traumatic Stress Disorder ("PTSD"), which should be described either as PTSD or a chronic Adjustment Disorder. Professor Trimble considered that it was PTSD, whereas Dr Turner preferred to call it chronic Adjustment Disorder. For convenience and clarity, I will also adopt the latter term. In my view nothing turns on this difference of terminology, because it is clear that both experts were describing the same features. They agreed that the Claimant was no longer able to lead the same sort of life as he could before the accident, and that this was a result of a combination of his physical impairment and the changes in his psychiatric condition.[21]Conversely, both experts are agreed that before the accident the Claimant suffered from Asperger’s Syndrome and OCD and that these conditions remain, albeit that his overall condition is now aggravated by the chronic Adjustment Disorder.[22]In summary, the psychiatric experts agree that the Claimant was psychologically traumatised as a result of the accident, and that this explains his anxiety symptoms (the chronic Adjustment Disorder). They concluded that the Claimant would require long term psychiatric care, and that there had been a substantial change in his lifestyle which would, on the balance of probability, persist.[23]Dr Turner was asked about the daily records kept by the Claimant's carers, which he had not seen at the time of writing his reports (although he thought that he had seen them before the agreement of the Joint Statement). He said that the carers’ notes, taken as a whole, supported his diagnosis. However, he accepted that it would be foolish to say that every incident of anxiety or frustration described in the daily records was necessarily attributable to the accident. But, as he realistically pointed out, the real question was one of fact: what was the Claimant like before the accident and what is he like now?[24]I found Dr Turner to be a careful and impressive witness. His views were not shaken to any significant extent during cross examination but he was prepared to make concessions or to agree limitations where appropriate. I have no hesitation in accepting his evidence.[25]There is no doubt that since May 2008, whilst the Claimant has been living in his present flat, his physical condition has improved enormously thanks to the efforts of those attending and caring for him. However, physically speaking, he is still a long way from where he was before the accident. His mobility is limited: whereas before the accident he could walk for hours on end, now he cannot walk for more than about 30-40 minutes without stopping for a 10-15 minute rest. His gait is shuffling and he drags his right foot. He is at some risk of falling, although it seems that he has had few, if any, falls to date.[26]In addition, he still has fairly severe restrictions on the use of his hands, his right hand in particular. Unfortunately he is right handed. He can eat only with difficulty, and he cannot hold a knife so as to enable him to cut up food. He cannot manipulate zips and buttons or shower gel, so he needs help with these activities. He used to be able to handle money, but now he cannot handle coins. He can pick up a CD, but only by pushing it along a flat surface until the edge so that he can take hold of it. He cannot put on some clothes, such as T shirts, which involve being pulled over his head, and sometimes he cannot put on a coat.[27]Whilst he may continue to make some small improvement, it seems reasonably clear that his physical condition as it is today is more or less permanent, except that it may start to deteriorate at some time in the future. Any plan for his future care must take these matters into account.[28]So far as the Claimant’s OCD is concerned, this manifests itself mainly in the time that it takes him to perform simple activities like cleaning his teeth or washing up a plate. The Claimant will typically spend up to an hour every morning cleaning his teeth, and he uses several tubes of toothpaste a week. His washing and toilet rituals are so time consuming that he probably takes a couple of hours to get up, wash and get dressed. On the evidence I find it difficult to say whether or not this aspect of his behaviour has become worse since the accident: but if there has been any change I find that it is not significant.[29]However, there are three aspects of the Claimant’s behaviour that undoubtedly have been adversely affected by the accident - the evidence is quite unequivocal about this. The first is that he now repeats himself to a far greater extent than before. Whilst before the accident he used to repeat things two or three times, he might now repeat a phrase 30-40 times. A friend, Adrian Buckley, said that whilst it has always been difficult to have what he described as a “normal” conversation with the Claimant, although they had always been able to communicate satisfactorily, this has become far more difficult since the accident. I accept this.[30]The second is his tendency to have prolonged bouts of coughing. Before the accident he would have a coughing session when he was washing in the morning, but it was nothing like as bad as it is now. As his father put it, now "he goes on and on".[31]The third aspect of the Claimant’s condition that has deteriorated since the accident is one that I have already mentioned: a greatly increased level of anxiety, which has resulted in the diagnosis of chronic Adjustment Disorder. Whilst his father described him as being a very good sleeper before the accident, in the sense that he was never disturbed by him during the night, the Claimant now gets up three or four times (or more) during the night to go to the lavatory and often needs reassurance after doing so. Sometimes he has nightmares. These appear to be more frequent at certain times of the month and to occur perhaps two or three times a fortnight at other times. One reason why the Claimant gets up so much in the night is that he drinks an enormous quantity of fluids, particularly before going to bed. By way of another example of the Claimant’s anxiety, Mr Lee said that the Claimant did not know why his right hand was as it was, and kept seeking assurances that it would get better.

The needs and future treatment of the Claimant

[32]There is an issue as to the extent to which the Claimant’s OCD and the chronic Adjustment Disorder are or might be amenable to treatment.[33]At this point it may be helpful to say something about Asperger’s Syndrome, which I take gratefully from Professor Trimble’s explanation. Asperger’s is a form of autism. Whilst autism covers a broad spectrum in terms of the IQ of those who suffer from it, those who have Asperger’s are at the upper end of the spectrum. Someone who has Asperger’s does not necessarily suffer from Learning Disability, which is defined in terms of an IQ below 70. Indeed, some sufferers from Asperger's can have a very high IQ. However, they do not observe Theory of Mind, which is the innate ability of one person to sense the state of mind of another and to be able to see a situation through another person's eyes and another person's point of view. This is why those with Asperger’s frequently behave or react in an inappropriate manner in any social situation. To a victim of Asperger's everything is taken at face value and read literally. Routine and what was described by Professor Trimble as the "maintenance of a sameness" is of crucial importance to them.[34]This raises the important question of the extent to which a sufferer from Asperger’s will benefit from the company of others who suffer from the same condition. On the basis of Theory of Mind one would expect the benefit to be limited. When I asked Professor Trimble about this, particularly in the context of the potential benefits to the Claimant of being in a Supported Living arrangement with a few other Asperger’s sufferers, he agreed that the principal benefit would be the availability of a care regime that was geared to Asperger’s, rather than social interaction with other residents.[35]Dr Turner was questioned at some length about the possibility of treating OCD and chronic Adjustment Disorder. He accepted that this was possible but that treating both at the same time involved an element of risk because of the increase in anxiety that was inherent in the treatment. He agreed that the presence of Asperger's was not a barrier to the success of such treatment, but his view was that in the Claimant's case this sort of treatment would be very difficult. One reason for this was that a patient has to "buy in" to this type of programme and that, in addition, it required understanding and the motivation to complete it - matters beyond the capability of the Claimant.[36]When giving evidence, Professor Trimble said that he thought that the Claimant could and should be treated for these two conditions. However, in his report dated 18 June 2009 he was much more circumspect. He said, at page 1/198 of the trial bundle, that:
“It may well be that he could be helped by further psychiatric intervention, it is not clear what psychiatric help he is having now. He is on a medication that is sometimes used for these behaviours, but there are people who would suggest that even with his disabilities, some cognitive behaviour therapy associated with more aggressive treatment of the obsessive compulsive components with this syndrome with antipsychotic medication but also with drugs that specifically help people with obsessive compulsive disorder, would help him. ”
I find it noteworthy that this is expressed in the third person: it does not strike me as the language that would be used by someone when expressing his own view, at least not if it was a view that was at all strongly held.[37]As I have indicated, Dr Turner was very cautious about the likely success of any treatment. In their joint statement Dr Turner and Professor Trimble said this (2/430):
“12 We agree that it would be reasonable to consider a competitive behavioural intervention. This should be evaluated and undertaken by an experienced practitioner. 13 He will require long-term psychiatric care. There has been a substantial change in his lifestyle and this on the balance of probability will persist. ”
Dr Turner said that these words had been carefully chosen and were not intended to imply that cognitive behaviour therapy(“CBT”) would necessarily be successful, rather that it should be considered and that the Claimant should be assessed for it - not that it should necessarily be carried out.[38]On this I prefer the evidence of Dr Turner to the evidence given orally by Professor Trimble, although whether the views expressed in the latter’s report were really very different to those of Dr Turner is perhaps open to doubt. My finding on this is that without further investigation it is simply not possible to say whether or not the Claimant would benefit from CBT.[39]Dr Turner agreed that from a psychiatric point of view it would be better for the Claimant to be living with his family, but he accepted that if that was not possible being cared for by the same group of carers was a good second best.[40]Immediately before hearing the evidence the court was shown two videos taken in 2008 and October 2009 of the Claimant doing various exercises which, amongst other things, demonstrated the extent of movement in his hands and shoulders. There were also films of the Claimant walking and running in his garden. It was perfectly clear from these videos that the Claimant cannot walk properly and tends to drag one leg and that the movement in his right hand, and to a lesser extent in his left hand, is fairly limited. The claimant could pick up a soft object in his right hand, but from what I saw I doubt very much if he could have held an implement such as a pencil in the way that other people would normally be able to do. In short, the more recent videos confirmed the medical evidence that I have already described.[41]Mr Lee said that the Claimant had been nothing like that before the accident and that he used to bound up the stairs three at a time in his former flat, and would be able to walk for miles across London. He said that the Claimant had no trouble finding his way around, and in fact would tell Mr Lee how to get from A to B. He had a phenomenal knowledge of rail and bus timetables and would be able to produce an itinerary straight out of his head. He could not recall an occasion when the Claimant had got into trouble and needed to be bailed out.[42]In the course of his opening Mr Nigel Cooksley QC, who appeared for the Claimant, took me through some of the contemporaneous notes made by the carers who have been looking after the Claimant for the past 18 months or so. There is perhaps no better way of giving the flavour of what is sometimes involved in caring for the Claimant than quoting some extracts from these notes.[43]When reading the following extracts two things must be borne in mind. First, for the most part they were written by people whose mother tongue is not English. Second, the extracts selected by Mr Cooksley were not intended to be representative of the notes as a whole, but to illustrate some of the more unusual aspects of the Claimant's behaviour. Date Extract from carer’s Daily Record 6.1.09 "Got up to the toilet at 00.30 am - spent there about 20 minutes and then spoke to me until 1.30 am - he was anxious, worried about future day. Gideon was emotional, nervous and loudly [sic]. I asked him to speak gently and calm down. At 1:45 am he back to bed. 20 minutes later to the toilet, talked to me again. He was need [sic] to know that everything is okay, no worries and so on. At 3:15 and 6:10 am Gideon going to the toilet." 10.1.09 "At 11.00 pm Gideon went to the toilet until 1:15 am. When he came out he became very anxious and repetitive and finally went to bed at 2:00 am. 3:15 am Gideon went to the toilet. 5:00 am Gideon went to the toilet. The reason why Gideon became anxious was because he was talking about the pub and that he does not go enough." 14.1.09 " . . . Went to bed at 10.45 pm. he didn't sleep well, got up three times (12 am, 3:20 am and 5:30 am), came to the living room, complained he couldn't sleep. Gideon was worried and anxious through the shift. I reassured him that everything is ok." 9.2.09 "At 10 pm he insisted to go for a walk. I tried to explain him and calm him down but all my efforts failed. Gideon became extremely assertive and demanding, he shouted and screamed. I spent 1 hour to calm him down but he insisted to go to the garden. At 11 pm he went to the garden, also it was heavy rain outside. When I came to the garden in five minutes, Gideon was not there. I looked for him on the street and spent 20 minutes for that. I found him in 20 minutes on the edge of Foxgrove Road. He was very wet and extremely agitative [sic]. I took Gideon home, it was 11:30 pm. Gideon was very repetitive and demanding. I spent 40 minutes to calm him down. He insisted to have 4 drinks and at 12:10 am Gideon had 4 drinks and went to the toilet for 30 minutes. Finally Gideon went to bed at 1 am, but he remained restless and sleepless. At 1:40 am he came to me and we have another 15 minutes talk. He got up for the toilet at 2:50 am and 4 am. Gideon asleep after 4:15 am." 17.2.09 "He finished his drinks and completed evening routine by 12 am . . . kept talking loudly with himself. Verbally abused personnel again and again. He looked terrible: red face, empty eyes, skin on the face wet from sweat with foam on mouth. Hard . . . hard . . . very hard . . . unbearable. It seems like there is no light at the end of the tunnel . . . 2:30 am . . . "I am bleeding. I am bleeding." . . . "I am dying.". 26.2.09 "I took him to the shop in Bromley. He was well behaved during our stay to the shopping centre. He was happy and I got him some drinks and cakes. We didn't find any table close and Gideon got upset about it and started panicking for nothing . . . He was panicking till we got back home." 16.3.09 "He got up at 1:30 am, 2:40 am for toilet. Then at 4:20 am he woke up and said the nightmares tortured him. "Somebody biting him and he couldn't sleep". I reassured him that it's not real." 4.4.09 "He was so loud and demanding during one hour (I asked him to speak in a quiet voice and tried to answer his questions quietly). The neighbours complained about the noise he was making. He asked to forgive him." 1.6.09 "He was repetitive and talked too much, basically nonsense. He couldn't cope with his sick condition, till 9 pm I took him for a walk. But he was talking so loudly and shouted on the street that I took him back home after 3rd round at Foxgrove Road." 11.6.09 "Then again he got up at 5:50 am and was afraid and had fears that somebody is claiming through the windows. I convinced him that he was panicking for nothing and he went back to bed." 19.6.09 "Then he called to his father and friends. He had his evening routine finished by 11 pm then he said he can't sleep and went to the garden for an hour. He got back at 12. He laid on his bed but he didn't sleep all night. He was hanging round the flat talked with himself. . . . Gideon was awake when I came. He was dressed, looked tired and anxious. He took his morning's medication but refused to do the rest of the routine. At 10 am he escaped from the house while I was in the bathroom and the next 5 minutes I did not find him in the garden. I found Gideon on the street far from the house. When I said to Gideon he should not do this, he became very aggressive, demanded not to report his misbehaviour. He was very angry, kicked the door with his foot, shouted. It took one hour to calm him down." 20.6.09 "Gideon was eating his dinner when I came. He was calm, but not in a very good mood. He finished at 8:30 pm and we went for a walk. Gideon misbehaved on the street, he suddenly crossed the road unsafely, nearly got under the car, put himself into a danger. I stopped him, he looked scared. I explained to Gideon that he shouldn't do this and the need to be careful crossing the road. Gideon started to shout, became very angry, I suggested to Gideon to continue to walk and slowly I managed to calm him down." 4.7.09 "Gideon was in a right mood. We went for a walk at 8:45 pm to Ravensbourne station. We were coming home when it Gideon started to talk about his past life, his dad and mother, worried about the future, suddenly became very anxious. He [illegible] “all of troubles because of my sick condition". He shouted, gesticulated on the street. He continued to do the same at home: he was loud, anxious, repetitive. 21.8.09 ". . . He went to bed at 11:15 pm. I put eardrops into Gideon's right ear. He didn't sleep till 1 am and was talking with himself in a loud voice. At 2:30 am Gideon went to the toilet and then came to me and complained about nightmare. I reassured him that everything is ok and safe. Gideon was very anxious and I spent 20 minutes to calm him down. He went to the toilet at 3:45 am, and 6:30 am. Gideon didn't sleep well during the night. He kept talking and singing most of time. He had a lot of worries and was quite repetitive during the shift." 30.8.09 "Gideon was not in a stable mood all of the day . . . So demanding, very anxious, repetitive. He ignored his routine completely. It was very difficult to organise him. Gideon was bad behaved [sic] outside (shouted, attracted attention of passers by)." 7.9.09 "He got up to the toilet 3 times: at 00.15 am, 2:10 am and 6:45 am. Gideon needed some reassurance things are okay during the night." 6.10.09 "Gideon took his morning medicine at 8 am. He got up at 9:30 am. Gideon was very anxious and demanding, he complained about having nightmare. I managed to calm him down, he spent 2 hours in the toilet and then brushed his teeth. Gideon finished his morning routine at 1:30 pm." 13.10.09 "Gideon was quite agitative (sic) and emotional. He didn't sleep well, woke up 4 times at 00:30 am, 1:30 am and 2:45 am. At 4:30 am Gideon came to me, he needed reassurance that everything is ok. Then he was talking to himself in the bedroom and fell asleep only at 5:30 am."[44]I also heard evidence from two of the carers themselves: Hanna Viaryshka and Violetta Hermanovich, both of whom were authors of some of the extracts quoted above. As their names suggest, they are from Belarus. The former used to be a dentist and the latter a doctor and anaesthetist, so they are both well qualified by professional experience to give an objective account of the Claimant’s condition and the level of attention that he required.[45]Hanna Viaryshka told the court that the Claimant was sometimes very anxious, and was unpredictable in that he had mood swings. She said that for most of the time he was very positive, but sometimes he could become very agitated and then he needed a lot of reassurance. She said that he would talk about the car accident, and would tell strangers about it that he met in the road. She said that he could do some domestic tasks but that he needed a lot of supervision. If left to do something by himself, he might or might not do it.[46]Her evidence was largely confirmed by that of Violetta Hermanovich. She also said that the Claimant’s behaviour can be very different from day to day. She said that sometimes he can sleep like a baby, but at other times he is full of phobias, panic attacks and nightmares. She said that he could not manage himself either mentally or physically. She said that the idea of going into an institution frightened him, and that he was even concerned at the prospect of appointments with doctors or dentists. He liked the idea of going for a walk but there were places that he liked and those that he didn't like. For example, he liked going to the pub and to the railway station. He could not walk for more than about 30 minutes or so at a time, and then he liked to sit down for 15 or 20 minutes. She said that she had seen him fall once when he was out in the park. He lost his balance. She said that when they were out the Claimant would talk to everyone as if they were a friend, but that this sometimes annoyed them. I accept this evidence from the two carers, most of which was not seriously challenged.[47]Whilst the Claimant was still in Stoke Mandeville those acting for him approached the Defendant's insurers about appointing a case manager. A company called Harrison Associates was recommended, and Lindsay Wasserfall was appointed the Claimant's case manager in September 2007. She gave evidence and I found her to be an impressive witness. Her first responsibility was to find the Claimant suitable accommodation into which he could move when he was discharged from Stoke Mandeville. She first tried to find a flat and approached the housing association of which Harvey Sklair was a tenant. They were unable to provide a ground floor property and suggested that she put him on the social services housing register. The Borough of Lewisham indicated that the waiting list was about 3-6 months. The only alternative was to rent privately.[48]An associated problem was whether Harvey Sklair would be prepared to move into new accommodation if something suitable could be found. She said that eventually he decided that he did not wish to move from where he was. She therefore looked at flats in that area, but there were all sorts of problems in terms of finding a flat that was sufficiently soundproofed (so that the Claimant would not annoy the neighbours) and which was within an easy bus journey of his father. Eventually she was left with no alternative but to move the Claimant to Harcourt House as an interim care solution whilst the various other problems, which included the necessary funding arrangements, were resolved.[49]When a flat was finally found she anticipated that there would be a fairly high turnover of carers, but she was amazed at how smoothly it went. She said that whilst the Claimant's problems presented rather similarly to the brain injury patients in Harcourt House, they had different problems to those of the Claimant. Whilst the behaviour of the Claimant could be challenging, it was challenging for different reasons. Most residential institutions were not able to cope with a person with his disabilities. She said that although there was some delay in doing so, the Claimant's carers did receive some training in dealing with people who suffered from Asperger's. There were problems, particularly at the beginning, with the Claimant's inappropriate behaviour towards his female carers. He would make inappropriate comments of a sexual nature or walk around with nothing on. However, when the carers told him to stop it or to put on a dressing gown he would always comply.[50]She said that in the early stages she had hoped that the level of care could be reduced as the Claimant progressed, and that she tried various options to this end but none worked. She explained how she tried to get the social services to carry out an assessment of the Claimant in the hope that she could then get a contribution from them towards his care. She spent months and months trying to get a response but it was clear that, as she put it, they did not want to touch the case with a bargepole. One problem from the local authority's point of view was whether the Claimant came within the responsibility of the team that dealt with learning difficulties or the team that dealt with mental health. She said very candidly that with the benefit of hindsight she realises that she underestimated the problems that she would face in finding suitable accommodation for the Claimant.[51]Ms Wasserfall agreed that the Claimant had definitely made progress physically since moving into his flat, but she said that he was apparently much more anxious than before.[52]I thought that Lindsay Wasserfall’s evidence provided a striking illustration of the difficulties in finding suitable accommodation for the Claimant and in arranging a suitable care package. Both of the care experts, Mrs Maggie Sargent and Mrs Barbara Scandrett, went out of their way to say what a good job they thought that she had done. I agree with them.[53]As to what should happen from now on, Professor Trimble thought that the Claimant should be provided with a supported housing package so that he would be under the supervision of carers who had experience of and had been trained to look after people with Asperger’s. He was critical of the fact that his present carers did not, as he saw it, have this experience or training. I have to say that I approach this evidence with a little scepticism. It seems to me that the Claimant has been exceptionally well cared for since he moved into his present flat, and I thought that the two carers who gave evidence before me showed a very good understanding of the Claimant’s needs and concerns. They had been with him for over 18 months, which is itself a good indication of their dedication. It may be that other carers with the necessary specialist training would have done better, but I am far from sure of it.[54]Mrs Barbara Scandrett, the care expert instructed on behalf of the Defendant, also considered that a supported housing arrangement would be very appropriate for the Claimant. In this she was supported by John Fahy, a Registered General Nurse with 24 years experience of care and support provision in both social services, charitable and commercial sectors. In his report Mr Fahy made the following observations (2/428h):
“5.6 Mr Sklair is not well served by being within a 24 hour staffed service since this becomes a direct substitute for the family home environment (as described above) and will continue to prevent him from achieving his full potential as an independent member of society within the realms of Citizenship and other widely accepted goals for people with Learning Disability laid out in such documents as "Valuing People" (Department of Health, 2001) and "Keys to Citizenship" (Simon Duffy, 2005). 5.7 The provision of waking staff within a service where Mr Sklair was present would exacerbate the day to night reversal experienced by people with Asperger's Syndrome and encourage night waking and behaviours as Mr Sklair would be anxious to interact with staff if they are present and awake.”
[55]I have reservations about this evidence for three reasons. First, I do not see how in his present condition the Claimant is ever likely to “achieve his full potential as an independent member of society”, whatever the quality of care that he may receive. It may be that he came close to doing this before the accident, but now he is in no position to do this and will never become so. Second, there is doubt as to whether or not the Claimant is a person with a Learning Disability: Professor Trimble certainly doubted it (this is discussed further below). Third, I have some doubts as to whether Mr Fahy is really qualified to express the view in the second paragraph and whether any other establishment which provides on hand support 24 hours a day will produce any different result: in any event, it may be that the care regime now proposed on behalf of the Claimant does not involve the provision of “waking staff” as described by Mr Fahy.[56]Mr Fahy concluded that if the Claimant had been in supported living arrangement prior to the accident he would have required 48 hours of support from social services per week. He considered that in his present condition the Claimant would require an additional two hours of support per day if he was in a similar supported living arrangement. Mrs Scandrett thought that the Claimant would require an additional 5 hours per day.[57]Whilst both Mr Fahy and Mrs Scandrett were very ready to explain how local authorities were willing to set up supported living arrangements for people such as the Claimant, neither was able to provide an example of any particular such arrangement in south London. I accept that it is possible that the local authority might be prepared to set up such an arrangement for the Claimant, assuming that they had three or four other people with similar needs, in a part of South London that would be reasonably convenient for the Claimant's father. However, there is no certainty that the local authority would do so, particularly if there is doubt as to whether or not the Claimant should be categorised as a person with a learning difficulty: see the report by Dr Winterhalder dated 10 September 2008 (3/556) - "it is unclear whether Gideon Sklair does indeed have a learning disability". Professor Trimble said that he agreed with this opinion.[58]Since those acting for the Defendant did not draw my attention to any specific example of an appropriate supported living arrangement for people with Asperger's anywhere in south London, or even in south east England, I do not see why the court and those acting on behalf of the Claimant should have to take this on trust. The court needs to be guided by specific evidence rather than aspiration or speculation: in this situation it is for the Defendant to put forward cogent evidence in support of the alternative regime for which she contends (see Sowden v Lodge [2005] 1 WLR 2129, at paragraphs 85 and 86, per Pill LJ).

What would have happened if there had been no accident: the “but for” scenario

[59]I now turn to consider what would have happened if the accident had not occurred and the Claimant had continued to live with his father. Everyone accepts that the arrangement could not have continued for much longer and that losing his father as his carer would have had a serious effect on the Claimant. The questions that I have to address are how serious this effect might have been, and what would have been the practical consequences in terms of the Claimant's need for care and support.[60]In spite of the fairly considerable measure of agreement between the psychiatric experts, Dr Turner was cross-examined at some length on this aspect of the case. I do not intend any disrespect to Mr Simon Browne, who appeared on behalf of the Defendant, if I summarise the thrust of the case that was being put to Dr Turner in the following terms: for the Claimant to lose his father, or his father's services as a carer, would have been a substantial and dramatic change in the Claimant's life which might well have resulted in the same level of Adjustment Disorder as in fact occurred following the accident. Dr Turner's answer to this was to agree that either of those situations would have been disturbing events, but not as disturbing as the actual events that occurred. This, explained Dr Turner, was because the Claimant had not only suffered the effects of the accident but also had lost the services of his father as a carer. This was a more disturbing sequence of events then simply losing his father's services.[61]Thus Dr Turner considered that the Claimant’s likely reaction to losing his father or his father's services as a carer would not have been as marked as the reaction which he in fact suffered as a result of the accident. However, Dr Turner accepted that the Claimant would have been at risk of suffering an Adjustment Disorder in the event of either his father's death or his father reaching a point where he could no longer care for the Claimant. Dr Turner agreed that the death of his father would have given rise to a bereavement reaction, but he said that the question was whether or not that bereavement reaction would be likely to turn into a pathological condition. He said that there was a risk of that happening. He accepted that continuity and lack of change was an important factor in the care of the Claimant. He said that if in the event of the loss of his father's services as a carer the Claimant was taken in and looked after within the family that would “trump" (as he put it) any lack of continuity that would result from being moved from one member of the family to another. I accept Dr Turner’s evidence on these points.[62]At the time of the accident the Claimant’s father was then 78 and it is obvious that he would not have been able to go on looking after the Claimant indefinitely. When he gave evidence before me he was showing some signs of infirmity, and his memory was somewhat erratic. I accept, on the basis of what I have heard by way of evidence and what I have read in the trial bundle, that the shock and disruption of the accident has also taken a toll on Harvey Sklair. I therefore accept that his condition today is in all probability rather poorer than it would have been if the accident had not occurred. Taking this into account, my best estimate is that at the date of the accident he would have been fit enough to maintain the pre accident regime of looking after his son for a further three or, possibly, five years (that is until some point between April 2010 and April 2012).[63]The evidence of the members of the family, whom I found to be almost without exception honest and impressive witnesses, was that they would have worked together to find a solution from their own resources to the problem of the care for the Claimant when his father was no longer able to do it. I accept that this had been the understanding to which they had come, although no particular course of action had been discussed, let alone decided upon.[64]Mr Lee, who is now 83, saw it as taken for granted that they would have the Claimant to live with them if that was necessary. He and his wife, Leila, lived in a four bedroom house, and two of the bedrooms had ensuite bathrooms. Mr Lee said that his wife - as the eldest of the four children - had a particularly soft spot for Harvey, the Claimant's father. He said that his wife and her brothers were a very close knit family and that there would have been no question but that between them they would have looked after the Claimant once his father became unable to do so. He thought that the Claimant's condition before the accident was something with which one could live, and that he could live quite happily in a house where there were no dogs and cats provided that he had his own bathroom and his own key so that he could come and go as he wished. He said that it would have been quite easy to look after the person that he referred to as "the other Gideon", and they would have extended the hours of their cleaning lady so that she could do what was necessary by way of cleaning, laundry and so on for Gideon. To illustrate how Gideon behaved before the accident he said that if you heard him coughing all you had to do was to tell him to stop, and he would stop. But he said that it is nothing like that now.[65]The Claimant’s cousin, Professor Lee-Six, thought that the best solution would have been to leave the Claimant in the flat that he had shared with his father and arrange for an outside carer or helper to come in for a few hours every day to provide for his needs. By contrast, his uncle, Mr Astor Sklair, thought that various members of the family could have taken him in so that he would spend a few months - or perhaps longer - with each and then move on to stay with another. He said that he and his wife had the accommodation and would have taken their turn to have him for so long as they remained fit enough to cope.[66]His cousin, Mrs Maharjan, Astor Sklair’s daughter, also said that she and her husband would have been prepared to take in the Claimant, even though they had a three year old daughter and she had not seen much of the Claimant since their childhood except at family gatherings. She was aware of his problems but said that she understood that for the most part he had been able to look after himself, however in his present condition they would be unable to offer the level of support that he needed. They lived in Sevenoaks in a house which had three bedrooms and two bathrooms. She said that she and her husband shared the childcare and there was always someone in the house.[67]Her cousin, Laura Spicer, who as I have mentioned is a consultant in Neuro Linguistics Programming and runs a clinic in Harley Street, did not give evidence because she was abroad, but her witness statement was put in evidence (although not admitted). She stated that she too would have been prepared to take the Claimant and that, in terms of both her professional background, knowledge of the Claimant and domestic accommodation (she and her husband had a three bedroom house with a self contained bedroom annex), she was probably the member of the family best placed to do so. Her two children are grown up.[68]I am quite satisfied that those members of the family who gave evidence about this did so in good faith and I formed the view that this was a family who would pull together when the circumstances required (as I was told they had done on a previous occasion). Taking the evidence as a whole, I am confident that the family would not have allowed the Claimant to go into any accommodation provided by the local authority without first trying to look after him themselves, or at least making arrangements under which he would receive the necessary level of care and supervision. Subject to the precise circumstances in which his father became unable to look after him, I consider it most likely that the Claimant would have remained in the same flat and that the family would have provided (at their expense) suitable outside care and supervision, probably for about 15-20 hours a week. This is broadly in line with the 14 hours per week suggested by Denise Ashworth, an occupational therapist called on behalf of the Claimant, whose evidence I accept.[69]If this did not work, I consider that they would have agreed that one of them should take the Claimant in to live with them but that they would have continued to employ outside help at a similar level. However, whichever route was taken, I think it likely that in the longer term this might well have proved too stressful for the family members involved and that they would eventually, albeit reluctantly, have been forced to the conclusion that there was no alternative but to find some form of supported living arrangement for the Claimant provided by the local authority. I think that this could well have happened in 10-15 years after the date of the accident.[70]In this context I must record that Mr Harvey Sklair was a most unconventional man - one witness described him as a Bohemian - and I strongly suspect that the extent of his tolerance and forbearance of his son's peculiarities was not likely to be equalled by anyone else. His fondness for his son was beyond question and his own "laissez-faire” attitude made him uniquely able to cope with his son's behaviour. His unwillingness to involve outside intervention was the subject of some criticism from the Defendant's experts, but I really question whether the Claimant would have been any better off under any other regime: in fact, I am strongly inclined to doubt it. I consider that it is to Harvey Sklair’s enormous credit that he looked after his son so well for so long.[71]Doing the best I can when considering a scenario that is fraught with speculation, I find that the most likely outcome would have been that the family would, by one means or another, have looked after the Claimant for about 5-10 years beginning at a point between April 2010 and April 2012. In doing so they would probably have incurred expenditure equivalent to the employment of a carer for 15-20 hours a week. If one assumes an hourly rate of £10/hr, which broadly accords with the evidence about the cost of such services, this is £150-£200 per week, or £7,800-£10,400 per annum for 5-10 years. So, very broadly, I conclude that the family would have spent between about £50,000-£100,000 on the Claimant’s behalf in caring for and supervising him from April 2010.[72]I am assuming that the Claimant would have continued to receive the same level of benefits during this period, which would have paid his daily living expenses, and that he would have received housing benefit for any period in which he stayed at the flat without his father.

The relevant legal principles

[73]The Defendant’s primary case is deceptively simple. It is the Claimant’s case that as a result of the accident he requires care and accommodation on a 24 hour basis. However, if the accident had not occurred the Claimant would still have required care and accommodation in any event once his father either died or was no longer able to look after him. Therefore the true loss, so the argument runs, is represented by the difference in the level of care that the Claimant would have required in any event (that is, once his father was no longer able to look after him) and the additional level of care that he requires now. According to the Defendant’s evidence, this is about 5 hours of care per day.[74]However, in my view there is a fallacy underpinning this argument. It confuses the question of the need for the care with the question of who will or would have paid for it. I agree that if the cost of the care that would have been incurred but for the accident would have been borne by the Claimant, and if the costs of the care that are now required are also to be borne by the Claimant, then it must follow that the Claimant could not make a claim for the latter without giving credit for the former (ie. the costs that have been avoided).[75]But if the costs of the “but for” care would have been met by the local authority, or some other body, then no costs would have been avoided and so there would be no costs for which to give credit. The extent to which this might or might not have been the case is a question of fact that I have to determine.[76]The next question is whether the Claimant is entitled to recover the costs of the proposed privately incurred care if it is the case that appropriate care can or could be provided by the local authority at no, or little, cost to the Claimant. There are essentially two aspects to the question. The first is whether the Defendant is under any obligation to compensate the Claimant for the costs of private care if suitable care is available at the hands of the local authority or state (I am deliberately ignoring for the purpose of this analysis the possibility of the local authority providing a basic level of care that is “topped up” by the Claimant at his own expense).[77]The second aspect, which may to a large extent turn on the answer to the first, is whether the care package that the Claimant proposes to adopt, and the cost of which forms the basis of his claim, is one that it is reasonable for him to adopt.[78]It might be thought that the first aspect of this question involves the doctrine of mitigation of loss, namely the rule that a claimant cannot recover in respect of a loss which, by acting reasonably (as between himself and the Defendant) he could have avoided. However, it is now established that that is not the case. In Peters v East Midlands SHA [2009] 3 WLR 737, it was held that a claimant was entitled as of right to pursue a claim against a tortfeasor rather than to rely on the statutory obligations of a public authority: see Dyson LJ, delivering the judgment of the court, at paragraphs 53 and 54. The court observed that it was difficult to see how this situation could in principle be distinguished from the case where a claimant has a right of action against more than one wrongdoer or a right of action against a wrongdoer and an innocent party.[79]Accordingly, any defence based on the assertion that the Claimant’s loss should be assessed on the basis that he should avail himself of the services of the local authority, if available, rather than opt to have the same services provided privately must fail as a matter of principle.[80]This conclusion then leads on to the second aspect of the question, namely whether the care package that is being advanced on behalf of the Claimant is an appropriate one and is reasonably necessary in extent. This is essentially a question of fact. In considering this I remind myself that the test is not whether other care or treatment is reasonable but whether the care and treatment chosen and claimed for is reasonable: see Sowden v Lodge [2005] 1 WLR 2129, at 2137, per Pill LJ (citing Stephenson LJ in Rialas v Mitchell (1984) 128 SJ 704). The test is whether the Claimant has made a reasonable choice: it is not for the court to consider what might be in the best interests of the Claimant (see Sowden, at 2144).

Conclusions in relation to the care package required for the future

[81]For the reasons set out earlier in this judgment I am not satisfied that the Claimant would be provided with suitable supported housing by the local authority in either Bromley or Beckenham if they were asked to provide such accommodation in the near future, although I cannot rule out the possibility that such accommodation may become available in the longer term. It is clear from the authorities that the Claimant is not obliged to take the risk of putting himself at the mercy of the local authority when he has the choice of making his own arrangements.[82]In the light of the evidence taken as a whole I have no hesitation in finding that the Claimant does need 24 hour care, as both Mrs Sargent and Mrs Scandrett agreed, that is to say that he needs a trained person in attendance 24 hours a day. There was an attempt to leave him unsupervised for an hour a day, but it seems to have met with fairly limited success. In any event, I do not consider that in practical terms there is any material difference between care that is required 24 hours a day and care that is required 23 hours a day. I agree that the Claimant only requires what is called a sleep in carer at nights (that is someone who is paid for 6 hours but is physically present and on call for 10 hours), because the need is for someone to be on hand and available during the night, but who does not need to watch over the Claimant the whole time.[83]I therefore do not accept the suggestion, if indeed it is still pursued, that all that the Claimant requires as a result of the accident is a few extra hours of care per day. He now requires some form of care for virtually 24 hours a day because he cannot be left on his own for anything longer than quite short periods, measured in minutes rather than hours. By contrast, before the accident he went out and about by himself for several hours a day without ever, it seems, getting into difficulty.[84]I consider that the most appropriate form of such care is a continuation of his present arrangements, slightly modified in the respects that I discuss below. It is not now disputed that the arrangements made to date have been reasonably made, or are reasonable in their cost. However, the Defendant does not admit that the Claimant is entitled to recover this sum without giving some discount or credit for the cost of the services that he would have required in any event if the accident had not occurred.[85]The two care experts have very largely reached agreement as to the cost of the package required if the Claimant is to live in privately rented accommodation, rather than in a residential placement or supported housing. I will deal with the figures in more detail later in this judgment. The extent to which the Claimant must give credit for the cost of the care that he would have received if the accident had not occurred[86]I consider that this raises the most difficult issue in the case. There is, surprisingly, very little authority that provides any guidance on the problem presented by this case or, at least, neither counsel nor I have been able to find any. So the problem must be approached from first principles.[87]The starting point must be the remarks of Lord Bridge in Hodgson v Trapp [1989] 1 AC 807, at 819:
“My Lords, it cannot be emphasised too often when considering the assessment of damages for negligence that they are intended to be purely compensatory. Where the damages claimed are essentially financial in character, being the measure on the one hand of the injured plaintiff's consequential loss of earnings, profits or other gains which he would have made if not injured, or on the other hand, of consequential expenses to which he has been and will be put which, if not injured, he would not have needed to incur, the basic rule is that it is the net consequential loss and expense which the court must measure. If, in consequence of the injuries sustained, the plaintiff has enjoyed receipts to which he would not otherwise have been entitled, prima facie, those receipts are to be set against the aggregate of the plaintiff's loss and expenses in arriving at the measure of his damages.”
[88]As I have already indicated, I accept that where a claimant would have incurred expenditure if the accident had not occurred, being expenditure which he will now not incur, then it is only fair and reasonable for such expenditure to be taken into account when assessing his net loss as a result of the accident.[89]However, where the Claimant would have continued to enjoy care and attention given out of love and affection which he now cannot enjoy because of the accident, I see no reason in either logic or justice why he should be required to place a value on that care and attention and then be made to give credit for it against his claim. In this case the Claimant has not gained by the absence of his father’s care and attention - indeed he would say that he is now worse off because he is without it - and I do not believe for one moment that his father would feel that he has achieved a saving as a result of the accident: far from it, I am sure that he would have much preferred to continue to care for the Claimant for as long as he is able to do so. I therefore reject the submission of the Defendant that I should place a value on these services and give the Defendant the benefit of it. To do that would be to add insult to injury.[90]Accordingly, in assessing the Claimant's loss to date and his future loss I propose to leave out of account any valuation of the services that his father would have rendered if the accident had not occurred. By the same reasoning I propose to leave out of account any care and attention that he would have received from other members of his family.[91]The more difficult question is how to treat expenditure that would not have been incurred by the Claimant himself, because he has no independent means, but would have been incurred on his behalf by members of his family. If the expenditure would have been incurred by the Claimant himself then, as I have already indicated, justice would require that it be taken into account when assessing the net value of the claim. But suppose that the Claimant's family lent him the money with which to pay for his care and that he paid for that care himself using the money. In principle, I would have thought that he would have had to give credit for that expenditure. If that is correct, then why does it make any difference if the members of his family pay for the care themselves instead of channelling the money through the Claimant?[92]It seems to me that there is a difference in principle between services that are provided in kind and the provision of cash. If, but for the accident, expenditure would have been incurred on the Claimant's behalf by members of his family who felt responsible for his wellbeing, then I consider that the fact that such expenditure will now be avoided should be taken into account when assessing the net value of the financial loss sustained as a result of the accident. In reaching this conclusion I have considered the impressive judgment of Tomlinson J in Freeman v Lockett [2006] EWHC 102, which might be read as suggesting that no account should be taken of any contribution by the family. However, I consider that the situation that he was considering in that case was significantly different from the circumstances of the present case – apart from anything else, Tomlinson J was not considering expenditure avoided that would have been incurred in the “but for” situation. In addition, I have already rejected any suggestion that the Claimant is obliged to look to the local authority for future support.

The reasonable costs of the proposed care package

[93]During discussions that have taken place between the two care experts - Mrs Maggie Sargent, who was instructed on behalf of the Claimant, and Mrs Barbara Scandrett, who was instructed on behalf of the Defendant - substantial agreement has been reached as to the Claimant's needs in terms of the quality and extent of the care required in the context of a 24 hour care package. That is the package that I have now held to be appropriate.[94]In short, on the basis that this would be provided by an organisation that would provide the services of a case manager and directly employed carers, it is now agreed that the Claimant requires the following by way of care: Care costs Rate and/or amount Period Agreed 14 hrs/day @£11/hr Monday-Friday £770.00 14 hrs/day @£13/hr Saturday & Sunday £364.00 Sleep in £72 Monday-Friday £360.00 Sleep in £84 Saturday & Sunday £168.00 ENIC Total:[95]It was agreed that the Claimant would require the certain additional costs, which included an allowance for food or drinks for carers when on outings. However, there was no agreement as to whether or not the carers could expect to be fed whilst on duty in the flat. Mrs Sargent allowed £25/week for this but Mrs Scandrett allowed nothing. I consider that there should be an allowance, which I assess at £20/week. The overall result is set out in the table below: Item Rate Agreed Additional Food & expenses for carers on outings £30/week £1,560.00 Food & expenses for carers in the flat £20/week £1,040.00 Recruitment (advertising costs) £1,000.00 Insurance £116.00 Payroll £350.00 Training £800.00 Total: £4,866.00[96]In relation to the costs of case management, it was agreed that a case manager would need to visit the Claimant on a monthly basis, with an allowance of 2 hours travel (at about half rate) per visit. It was agreed also that there should an allowance of 10 hours a year for crisis management. However, there was disagreement between the care experts as to the need for routine care and attention over and above the monthly visits and an allowance for appraisals and recruitment.[97]Mrs Sargent said that she would expect the case manager to spend about one hour a week attending to telephone calls, correspondence and the like in relation to the Claimant's case. Mrs Scandrett disagreed. She thought that day to day problems could be dealt with by the carers without resort to the case manager. In addition, Mrs Sargent had allowed 30 hours a year for appraisal and recruiting. Mrs Scandrett disagreed with the need for this also.[98]I have to say that I thought Mrs Scandrett's evidence about the absence of any need for additional time to deal with correspondence and so on had an air of unreality about it. In my view, the case manager would inevitably be involved in a certain amount of routine administration on a regular basis. I see no grounds for disagreeing with Mrs Sargent's estimate, which seemed to me to accord with common sense and to be entirely reasonable. As to the time spent on recruiting and appraisal, I accept Mrs Sargent’s evidence (which was not challenged) that the agreed allowance of £1,000 for recruitment was for advertising costs only and did not include any management time. I therefore consider that some additional time should be allowed for this and I would allow about two to three days, or, say, 20 hours a year.[99]To the extent that there was a difference about the hourly rate, I accept Mrs Sargent’s rate of £85/hour. I therefore find that the annual allowance for case management should be £12,150 (that is Mrs Sargent’s total figure of £13,000, less £850).

Other heads of damage

[100]The parties have sensibly and helpfully agreed various heads of damage, which are set out in the table below, which was helpfully provided by Mr Browne: General Damages £137,500 Past care Past case management £29,749 Past accommodation costs £38,031 Travel expenses £1,608 Therapies £4,941 Past Court of Protection £12,489 Past aids and equipment £833 Interest (to be left to counsel to calculate) Future care and case management Future therapies £20,570 Future aids and equipment £36,000 Future accommodation Future Court of Protection £204,312[101]The Life Multiplier is further agreed at 20.80, but this agreement is subject to the Defendant’s submissions as to the need for a discount (by one means or another) to reflect the costs of care that have been avoided.[102]In my judgment, and for the reasons that I have already given, there should be no reduction in the costs of the care to date, the figure for which is agreed at £556,423.22. The Claimant is therefore entitled to that sum plus interest.[103]In relation to future care, I would allow the current rate until 31 January 2010, which should give time for the new regime to be implemented. I would allow a further £9,000 for the cost of renegotiating the contracts of the existing carers (being £2,000 per carer plus £1,000 for associated expenses).[104]From 1 February 2010, the appropriate multiplicand for the cost of future care will be the figure calculated in accordance with my findings set out above. However, I consider that there is a likelihood that the Claimant will have to spend the last few years of his life in accommodation provided by the local authority and to allow for this contingency (and the very small shift in start date) I consider that I should reduce the multiplier from 20.8 to 18.[105]This leaves the question of the expenditure that would be incurred on the Claimant’s behalf in the future. I have already reached the conclusion that this would be between £50,000 and £100,000, but that it would not start until some time between April 2010 and April 2012.[106]In order to take into account the many uncertainties that are inherent in the exercise of assessing this expenditure, and the fact that it will be incurred over a period in the future, I consider that a fair result would be achieved by taking a round figure of £60,000 and deducting it from the total award.

Conclusions

[107]This is one of those difficult cases where the court faces an almost impossible task in arriving at the fair solution. Fairness to the Defendant requires that some allowance is made for expenditure that would have been incurred but which has been avoided as a result of the accident, but fairness to the Claimant, and particularly to those who will have to bear the burden of the responsibility for his future care, requires that they should not find themselves feeling as if they have been penalised because they would have been generous with both their time and their money if the accident had not occurred.[108]In reaching my conclusions I have tried to balance these conflicting factors as best I can in order to achieve what I consider to be a just result.[109]I hope that I have covered all the heads of damage that remained in issue and I invite the parties to produce an agreed schedule, which must include interest on the losses to date as appropriate. If there are any matters which I have left out or which cannot be agreed, then I will of course entertain further submissions from the parties in relation to them together with any issues in relation to costs.

Lump sum or periodical payments

[110]I am required by section 2(1) of the Damages Act 1996 to consider whether or not the Claimant’s damages ought wholly or in part to take the form of periodical payments instead of a lump sum. For reasons that I have already set out this is a case where the Claimant will not be compensated in full for the costs of his future care. This is partly because of the agreed reduction for contributory negligence and partly because I have found that some deductions have to be made for losses that have been avoided. Mr Lee was adamant in expressing his preference for a lump sum and I must give his view on that great weight. In addition, no-one – including the financial experts – sought to persuade me that an order for periodical payments should be made in this case. In these circumstances I am quite satisfied that this is a case in which such an order would not be appropriate.[111]I am most grateful to counsel and the parties’ experts for their co-operation in reaching agreement on so many issues and figures.

Cited in 1 later judgment