Huntley v Simmonds [2009] EWHC 405 (QB)

[2009] EWHC 405 (QB)Case No HQ/06X0342
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/02/2009
Before
MR JUSTICE UNDERHILL
Between
Joseph Paul HuntleyClaimant(a Protected Party by his Litigation Friend,ClaimantAlison Jane McClure)ClaimantPaul SimmondsDefendant
Mr David Wilby QC and Mr Paul Dean (instructed by Blake Lapthorn) for ClaimantMr Ronald Walker QC and Mr Nigel Lewers (instructed by Irwin Mitchell) for DefendantHearing Hearing dates: 10-14 and 21 November 2008, 13 February 2009
Judgment
[1]The Claimant is now aged 27. On 20th June 2004, when he was 22, he was a passenger in a car being driven by the Defendant which went out of control and crashed. He suffered serious injuries. The Defendant has admitted liability, and the matter comes before me for an assessment of damages.[2]I shall have in due course to give a full account of the Claimant’s injuries and their consequences. At this stage I need only say that the principal injury consisted of serious brain damage, as a result of which the Claimant has major cognitive and behavioural problems. He may be capable of some degree of independent living – just how much is a matter of controversy – but at present he has the support of paid helpers, referred to either as carers or support workers, on a daily basis. He is a protected person and brings these proceedings through the deputy appointed by the Court of Protection, Ms Alison McClure, acting as his litigation friend.[3]The Claimant has been represented before me by Mr. David Wilby QC leading Mr. Paul Dean. The Defendant has been represented by Mr. Ronald Walker QC, leading Mr. Nigel Lewers.[4]It is convenient to identify at this stage the expert witnesses from whom I had evidence. They were (in the case of each speciality naming the Claimant’s expert first): Dr. Nicholas Leng and Professor John Beaumont, consultant neuropsychologists; Dr. Michael Gross and Dr. Oliver Foster, consultant neurologists; Dr. Jonathan Bird and Dr. Mark Upton, consultant neuropsychiatrists; and, on the care issues, Ms. Jo Clark-Wilson and Mr. Derek Blackshaw. Each of the experts had produced more than one report, and in the case of each speciality there was a joint statement. I heard oral evidence from all the experts save Dr. Leng and Professor Beaumont: in their case the parties were agreed that in view of the contents of their joint statement they need not attend (though as to this see para. 54 below).

THE CLAIMANT’S LIFE PRIOR TO THE ACCIDENT

[5]The Claimant grew up on a council estate in Hilsea, on the outskirts of Portsmouth. His mother, Joanne Smith, was only sixteen when he was born and living with her parents; and when, while he was still very young, she married and left home the Claimant remained with his grandparents because both she and her husband (who was not the Claimant’s father) had to work. The Claimant remained living at his grandparents’ home up to the date of the accident (though his grandmother died in 2001). However his mother, who lived only a couple of miles away in Cosham, remained very fully involved with his upbringing; and indeed latterly, as her father became seriously ill, she spent a lot of time at the house as his carer.[6]The Claimant’s teenage years were troubled. He was expelled from school at about the age of twelve for fighting and received no further schooling thereafter. From about the age of fifteen he worked as a building labourer, doing mostly groundwork; but the work was only intermittent. He drank a good deal and regularly got “paralytic” at the weekends. He also took drugs. He told Dr Bird that he used to take “everything” (except heroin): that may not be entirely reliable, but there is clear evidence of his using cocaine, cannabis and benzodiazepines. The evidence of his mother and other witnesses was that his drug use was “recreational”, and that may be correct in the sense that he does not appear to have become addicted to any substance; but the evidence nevertheless suggests that his drug-taking was frequent and quite heavy. The Defendant’s case is that the Claimant also had a violent and aggressive temperament. As to that, according to his mother, the Claimant could indeed be “vile” in the way that he spoke to people: he could not only be foul-mouthed and offensive but also use threatening and aggressive language. But she said that that was not translated into actual violent behaviour. It may well be true that the Claimant’s aggression during this time was more often verbal than physical; but I cannot accept that he never engaged in actual violence. It was his mother’s own evidence that he was in trouble with the police on a number of occasions. Unfortunately the details are not known. The only conviction disclosed by the Criminal Records Office was in November 2003, for a drink-driving offence: he was disqualified from driving for three years and his (provisional) driving licence was ordered to be endorsed. However there was certainly an episode, when he was aged about eighteen, when the Claimant was ordered to do community service and was tagged for eight months and subjected to a curfew: he and his mother told Dr Bird that that was the result of his being “done for fighting”. There are suggestions in the medical notes and reports that “fighting” was a cause of other encounters with the police. It is also relevant that the Claimant had a collection of what were described as Samurai swords and of other knives; and that, following the accident, a knuckleduster was found in his pocket.[7]When these aspects of the Claimant’s character prior to the accident were elicited in cross-examination of his mother and other witnesses (though in truth they were to a considerable extent already apparent from the expert reports), Mr. Wilby complained that Mr. Walker was attempting “character assassination”. That is not a legitimate criticism. The matters in question are clearly relevant to matters which I shall have to decide, in particular the claim for loss of earnings. But it is fair to point out that the evidence of one of carers, Roma Adams, who knew him before the accident and who struck me as a fair and sensible witness, was that his behaviour was not out of the ordinary for a teenage boy from his background. As she put it in her oral evidence before me:
“He wasn’t a bad person. He did what everyone gets up to. It was more dabbling – what boys do. All young boys fight: it is part of growing up.”
She added that he was “a nice boy”, friendly and funny and very attractive to girls. He had lots of confidence: he would joke a lot and be “cheeky”. He enjoyed the usual activities of a teenager of his background, including motocross and ferreting.[8]Despite his somewhat unsettled home life and disrupted schooling, there were positive influences on the Claimant. His mother struck me as a hard-working and strong woman; and although her early parenting might have left something to be desired, I am sure she tried to keep him out of serious trouble. He had a large family, and his mother described the local community in Cosham and Hilsea as friendly and supportive – “like a little East Enders community”. It was her evidence that the Claimant had already begun to settle down by the time of the accident. She thought that the change started at about the time that he was tagged. There may, again, be some truth in this, but it would certainly be wrong to describe the Claimant as having become a reformed character. The episode of drink-driving was less than a year before the accident. As I have mentioned, he was carrying a knuckleduster when the accident occurred; and there were also traces of cocaine and benzodiazepine in his blood. Nevertheless, I am prepared to accept that he had settled down to some extent, as is common enough for boys entering their twenties. He had a steady girlfriend and was working, if not on a permanent basis, at least for long stretches, sufficient to give him enough money for his needs. It is fair to note that although he had had the encounters with the police to which I have referred he had never served a custodial sentence.

THE CLAIMANT’S INJURIES AND INITIAL TREATMENT

[9]The Claimant’s main injury was damage to the brain. He was in a deep coma (initially rated at 3 on the Glasgow scale) for 42 days. The principal areas of damage were to the frontal lobes, but there was also damage to the left parietal region and other parts of the brain. The damage is permanent. I shall have to say more in due course about the cognitive and behavioural consequences, but it is convenient at this stage to set out in full (save for the formal parts) the helpful joint statement of the two neuropsychological experts, Dr. Leng and Professor Beaumont:- 3. Mr Hopkins sustained no less than a very severe traumatic brain injury in the accident in question. This included damage to the frontal lobes of the brain. 4. He suffers from a frontal lobe dysexecutive syndrome. 5. There is clear evidence that Mr Hopkins suffered from pre-accident behavioural problems, with illicit drug taking and a forensic history, but the evidence suggests that he was beginning to settle down, as he was engaged in ground work and had developed a relationship with a girlfriend. The effect of his traumatic brain injury has been to worsen pre-existing behavioural and personality traits. 6. Prior to the accident Mr Hopkins was probably of borderline to low average intellectual abilities. However, this is not an exact determination in his case, given the difficulties he presented with at school. 7. At the time of our neuropsychological assessments Mr Hopkins presented with impairments of intellect, memory and executive functioning. Unfortunately, he has been prone to fail tests of effort, and whilst one can never rule out an element of conscious elaboration, we think it likely that he fails to engage with this kind of procedure because of the effects of his frontal lobe brain injury which prevent him from applying himself properly, or incline him to be disinhibited. This makes it difficult to accurately determine the degree of cognitive impairment present, though we think this to be significant nonetheless. 8. Behaviourally, Mr Hopkins is disinhibited, he finds it difficult to process information and to learn, he is impulsive, and finds it difficult to reason. We accept that the descriptions of him being childish, unreasonable, impatient, intolerant, easily distracted, unable to multi-task, lacking apathy and intuition and having poor understanding of financial transactions, are all consistent with a frontal lobe dysexecutive syndrome. 9. As a result of the effects of his brain injury he will require some degree of supervision and support to maintain his safety, organise his behaviour, help him to manage his affairs and engage in activity. 10. There appears to have been no appreciable improvement in his insight or capabilities over the time that we have assessed him. Therefore, we cannot see any prospects for significant improvement in the future. We think it unlikely that he will display the ability to learn, or to be trainable, in aspects of daily living, such that we see him as continuing to function at the present level for the future. It follows from this that we would not anticipate any significant reduction in his case management, care or supervision needs for the future, although Professor Beaumont considers that the level of care and supervision currently provided might be reduced over the next three years. We note, however, that he has not engaged well with rehabilitation or therapeutic input and it may well be for the future that the best can be hoped for is some degree of “containment”, which is to say some degree of overseeing and supervision to try and keep him “on the rails”. 11. Because of his frontal lobe dysexecutive syndrome, which has affected not just his cognitive and executive skills, but also his behaviour and personality, it is unlikely that he will be able to hold down longer term relationships. 12. His frontal lobe dysexecutive syndrome, and in particular his difficulty in regulating inhibiting behaviour, he will remain at some risk both to himself and to others, in that his forgetfulness could be somewhat perilous to him at home, and he will continue to be prone to anti-social behaviour, such as excessive drinking, violence, inappropriate language and aggressive language and behaviour. 13. There is a risk that, if left to his own devices, there will be an increased risk in regard to the above, and that he will be prone to do little, resulting in a downward spiral of behaviour. 14. As a result of his traumatic brain injury, and all of the above difficulties, we consider that he lacks mental capacity within the terms of the Mental Capacity Act 2005, and is not likely to regain this, that he is incapable of independent living, and will not be capable of any employment.[10]I should say a little more about the “frontal lobe dysexecutive syndrome”. As Dr. Bird put it in his oral evidence, the frontal lobes function as the “CEO” for the personality. If they suffer damage, and whether or not there is any cognitive impairment, the victim may lose to a greater or lesser extent the ability to manage his own behaviour. He may thus become impulsive, disorganised and unable to plan or properly to understand the consequences of his own actions. Without assistance and encouragement his life is liable to become random and unstructured. His behaviour may be disinhibited. All these features are, on the evidence, present in the Claimant’s case.[11]In consequence of that condition the Claimant himself did not give evidence before me. He did however attend Court on two occasions, and I observed some aspects of his behaviour. He evidently found it difficult to concentrate on what was going on, and he did not stay very long. He spoke frequently to his solicitor without any attempt to moderate his voice.[12]The Claimant’s brain injury also caused a left-sided hemiparesis, leaving him with a mild weakness on the left side; and a degree of speech dysarthria. A further aspect of the head injury is that he suffered a left-sided peripheral vestibular lesion as a result of concussion – that is, damage to the parts of the inner ear responsible for balance. This damage too is permanent.[13]As a result, as I understand it, primarily of the left-side hemiparesis - but also perhaps to some extent of the vestibular damage - the Claimant has difficulty walking. He has a pronounced “wide” gait and usually has to use a stick. He can only walk slowly and cannot manage any long distances. His balance is also somewhat unstable and he occasionally suffers falls, especially when he has had too much to drink.[14]The Claimant’s other injuries were comparatively less serious. A possible fracture of one or more parts of the spine was diagnosed, as a result of which he was kept for several weeks in a cervical brace; but these do not appear to have had any consequences beyond occasional and mild aching in the neck and lower back. There has been what has been described as “a mild disruption of pursuit eye movements”; but the agreed neuro-ophthalmological evidence is that this is not likely to lead to any visual disability. He is estimated to have a 2-3% risk of developing epilepsy in later life. As part of his treatment in hospital, he underwent a tracheotomy: this has now been closed, but it may be the cause of a tendency which he now shows to cough and spit excessively. 15. The Claimant remained in hospital until 15th September 2004. He was then discharged with a view to attending an inpatient rehabilitation facility. However, he was very distressed at the prospect of being with patients most of whom were elderly and some of whom were suffering from dementia or otherwise apparently more disabled than himself; and he discharged himself and was taken by his mother back to his grandfather’s home.

THE CLAIMANT’S CARE BETWEEN SEPTEMBER 2004 AND DECEMBER 2006

[16]For a period of fifteen months following his discharge from hospital the Claimant was living with his grandfather. His mother, who was already acting as her father’s carer, took on the care of both of them. She gave up her job and moved into the house, at least for the early period, leaving her other children in the care of her uncle. Fortunately, the house was to some extent equipped for the care of someone in the Claimant’s condition as a result of adaptations made while his grandmother was ill.[17]Despite what his mother was able to do for the Claimant, his care during this period was unsatisfactory. Both his GP and the Social Services Department attempted to arrange rehabilitation (including a residential course at the Brain Injury Rehabilitation Trust in Cambridge) and other assistance, but his co-operation was extremely patchy. He declined many offers of assistance and was irregular at attending assessments: he left the course in Cambridge after only five days, claiming that it was not helping him: no doubt this attitude was itself wholly or in part attributable to the frontal lobe dysexecutive syndrome. Nevertheless, his condition did gradually improve. He had some physiotherapy, as a result of which he began to be able to walk. He also had speech therapy, which improved the fluency and intelligibility of his speech.[18]It is difficult to get a clear picture of the Claimant’s overall condition during this period. He was easily fatigued and spent a lot of time at home, sleeping or watching television. Although his mother provided most meals and did the housework, he could get up and - after a time – wash and dress himself: indeed he took considerable care over his clothes and appearance. He could make simple meals using the microwave or pre-prepared food. Also after a time, he was able to get out and about and see his girlfriend and other friends. Although his relationship with the girlfriend whom he had had prior to the accident broke down, at some point in 2005 he fathered a son with another woman. I should note that although there has been some proposed contact with the child I am not clear what came of it; and there is no suggestion that the Claimant will have a substantial family life with the child or his mother.[19]However, the disinhibiting effects described by the neuropsychologists (see in particular para. 12 of the joint statement) also manifested themselves. He was frequently unpleasant and unreasonable in his conduct towards his mother – among other things demanding that she paid to him the carer’s allowance which she enjoyed for looking after him. He would telephone her constantly when she was out of the house, wanting to know where she was and what she was doing and asking her to do things for him. He was irritable and aggressive to his grandfather, and on at least one occasion used a degree of violence towards him. He would lash out with his stick against his mother and other family members when frustrated or angry. There was also one episode of more serious violence. In December 2005 his mother had a party at her own home, to which she deliberately did not invite the Claimant on account of his erratic behaviour. But he learnt of the party nevertheless and came round late, after his mother had already gone to bed. He came into her bedroom and started hitting her with his stick in order to rouse her. She woke up and pushed him away. He then grabbed and smashed a bottle which he held up to her face: she put her hands up to protect herself and cut her finger. There was a lot of blood. Her boyfriend managed to take the bottle away from the Claimant, but he then picked up a knife and continued to threaten her until she knocked him down. The actual injury appears to have been more frightening than serious, and it cannot be known whether the Claimant would have been prepared to deliberately to cut her face or to use the knife; but his conduct was on any view highly dangerous.[20]The Claimant and his mother became increasingly discontented with what they perceived as the lack of initiative shown by the solicitors whom they had first instructed to bring proceedings arising out of the accident. Some time in the first half of 2006 they changed to his present solicitors, Blake Lapthorn. They engaged the firm of Independent Living Solutions Ltd. (“ILS”), who specialise in brain injury cases, to assess the Claimant and prepare a report on his immediate needs. On 4th July 2006 he was assessed by Eliot Lamb, who had recently joined ILS as a “case Manager/Occupational Therapist”.[21]Mr. Lamb’s report following his assessment identified the goal as being:
“For Joey to maximise his independence and engagement in the areas of looking after himself, leisure, and employment, with the correct amount of support.”
His recommendations can for present purposes be summarised under three heads: - Care and case management. Mr. Lamb recommended the appointment of a case manager, who would develop a programme of “regular, purposeful activities” in order to give structure to the Claimant’s life. There would be an agreed weekly timetable of such activities: possibilities to be explored included visit to the gym, “vocational opportunities” and driving lessons. For the purpose of delivering that programme daytime support workers would need to be engaged. The proposed programme can properly be described, in a broad sense, as rehabilitative (although Mr Wilby for some reason jibbed at that description). - Accommodation. Mr. Lamb recommended that the Claimant needed to move out of his grandfather’s house and live in his own accommodation, though with support to help him manage. - Specific therapy. Mr. Lamb recommended further physiotherapy and speech therapy, together with an assessment from a psychologist to see what further treatment could help with his cognitive function and anti-social behaviour.[22]Pursuant to that recommendation, Mr. Lamb was himself appointed as case manager in July 2006. The Claimant’s was his first case as a case manager, though he had relevant previous experience. In his witness statement dated 27th June 2008 – by which time he had acquired several more clients - he described the Claimant as “the most demanding client I have [with] the most difficult behaviour to manage”. With hindsight, it may not have been ideal for a case as difficult as the Claimant’s to be handled by someone with no previous experience as a case manager; but Mr. Lamb had the benefit of advice and supervision from a much more experienced case manager in ILS, Nick Carter, and he struck me as sincere and conscientious. It is clear that he has developed and – perhaps more difficult – managed to retain a good relationship with the Claimant.[23]Apart from the instruction of ILS, the Claimant’s new solicitors also began to instruct appropriate experts for the purpose of the present claim. The first reports from the neurological and neuropsychological experts for both parties date from the second half of 2006.[24]It took some time to put Mr. Lamb’s recommendations into effect. The first support worker was not engaged until November 2006; and it was even then not practicable to put in place the kind of structured regime which was envisaged until the Claimant had moved into his own accommodation. As to that, various possibilities were explored, but the option favoured by the Claimant was to rent a two-bedroom apartment in a fairly new and fairly up-market development called Oyster Quay at Port Solent, a mile or two away from Hilsea. His mother thought he should stay in Cosham or Hilsea, nearer to his friends and family, and regarded the flat as a waste of money; but Mr. Lamb was prepared to recommend it. The Claimant moved in around Christmas 2006.

THE CLAIMANT’S CONDITION AND CARE FROM JANUARY 2007 TO DATE

[25]Broadly speaking, the Claimant’s physical and neuropsychological condition and his behaviour and pattern of living have been stable over the period following his move to Port Solent. They are of course the subject of expert evidence, but that has had to a considerable extent to be based on what the experts were told by those who know the Claimant. I have had factual evidence from his mother, Mrs. Smith, and brother, Josh Smith; from Mr. Lamb; and from some of his support workers. There are copious contemporary notes made by Mr. Lamb and (though these are mostly of rather poor quality) by the support workers. Over four days in June 2007 and another day in August 2007 the Claimant was the subject of covert surveillance conducted on behalf of the Defendant: I was shown a DVD of the most relevant parts, which has been helpful to me in putting flesh on the bones of some of the descriptions in the evidence. I can describe the main points emerging from that evidence as follows.

Support workers

[26]Mr Lamb has not found it possible to recruit, or in any event to retain for any length of time, support workers who are not part of the Claimant’s family or circle of friends (which seems, however, to have been very wide). Initially he sought to recruit support workers by advertisement; but the Claimant soon made it clear that he was not prepared to put up with people whom he did not already know and – with two short-lived exceptions – the workers recruited have all been family members or friends (or occasionally friends of friends). Even towards those the Claimant’s behaviour has often been - to adopt the standard euphemism – “challenging”. Although when he is in a good mood he can be fun to be with, he can also often be demanding and rude and treat his support workers like servants. He has on several occasions “sacked” support workers, though he sometimes has them back again. The Claimant does not in fact have the power to dismiss his support workers, since they are formally employed by his deputy. But he cannot in practice be made to continue with a support worker whom he finds unacceptable. Partly for this reason, though no doubt partly also because they have mostly been recruited informally and not on a professional basis, the turnover of the Claimant’s support workers has been high. I need not identify them all here: there have been fifteen in all, in less than two years. The longest-lasting was Ms Adams, to whom I have already referred, who was with him from late 2006 until August 2007. Although she replied to Mr Lamb’s initial advertisement, she had in fact known the Claimant from before the accident. She got on with him well – though she said that there were also times when he could be very difficult and indeed reduce her to tears – and she was, I am sure, a positive and stabilising influence in his life while she was with him. But they eventually fell out irreparably: he said some very offensive things to her and she did not feel able to continue. The Claimant’s younger brother, Josh, has also worked a good deal as a support worker for him, though there have been intervals when he has left to do other work or because he and the Claimant have fallen out. He was only 17 when he started to work for the Claimant in early 2007. The Claimant’s mother has had spells as a regular support worker, but she did not enjoy it – largely because of the rude and aggressive way in which he often behaved towards her – and she now only works for him occasionally on a “bank” basis.[27]Although I have no doubt that most of the support workers – including all those whom I have specifically mentioned – have meant well, the fact that they were already family members or friends (and in Josh’s case also his young age) means that it is not easy for them to engage with him as independent professionals; nor does it seem that they have mostly had the calibre or maturity to understand the role of a brain injury support worker in a case such as the Claimant’s. They have had minimal training. They are required to make notes about what they have done, or other relevant observations, for each shift that they work; but, as I have said, the quality of these notes is generally poor and uninformative.[28]The Claimant has on several occasions said that he does not see the point of having support workers and wants to be rid of them. In January 2007 he is reported in Mr. Lamb’s notes as saying that he would “sack his carers after his claim is settled”. Mr Walker cross-examined Mr Lamb on the basis that the support worker regime had been maintained at a wholly excessive level for the purpose of “claim-building”. He relied in particular on a note made by Mr Lamb in February 2007 after the Claimant had “sacked” Josh. Mr Lamb’s note reads as follows:
“He does not want to see Josh today and does not want him to work with him. He feels that Josh has “taken the piss”
. I explained that he needs to consistently have carers for his legal claim but he said: I don’t give a shit [emphasis supplied].” Mr Lamb said that, although he plainly had said that to the Claimant, it did not represent his real view. He was convinced that the Claimant could not manage without support workers; but he used the argument that he did as a way of persuading the Claimant to put up with them. I accept that explanation. It is regrettably inevitable that in a situation of this kind the distinction between what is necessary in the interests of a claimant, irrespective of the litigation and what may help to maximise his or her claim may become somewhat blurred; but, having seen Mr Lamb, I am satisfied that he is innocent of any deliberate “claim building”, and if he had been as cynical as the note, read out of context, might suggest it is very unlikely that he would have committed his view to writing in the first place.

The support regime and the Claimant’s daily life

[29]Under the regime originally put in place by Mr Lamb the Claimant was supposed to have support from Monday to Saturday, with support workers doing shifts from 9 a.m. to 5 p.m. and 5 p.m. to 11 p.m.: he had no support on Sundays or overnight. This was not intended necessarily to be the position permanently. Mr Lamb’s evidence, which I accept, was that it was considered the best regime to start with, particularly since the Claimant was about to move out of his grandfather’s home and it remained to be seen how he would cope with living in Oyster Quay. It would be necessary to review the level of support that he required in due course. Ms Clark-Wilson, in her first report dated 23rd February 2007, endorsed the then current regime, but observed that after the Claimant had become settled “… there should be a programme for this to be gradually reduced, until it is ensured that he has enough routine and structure during the day, which ensures his safety, but that he is having as much independence as he can achieve.” Others of the experts expressed similar views at about this time. However, because of the difficulty in recruiting and obtaining support workers, it has not proved possible always to provide the full regime of support that Mr Lamb intended. There have been occasions when the Claimant has had no paid support worker in attendance, even on a weekday. On other occasions the Claimant has dispensed with the services of his support worker because he was going to be with friends or his girlfriend (as to whom see para. 36 below).[30]At some point in May 2007 the Claimant began to have support also on Sundays. This decision is not very well documented, but Mr Lamb said in evidence before me that it was done in order to “give [the Claimant] more support and more structure to his activities during the whole week” He at first said that it was also necessary in order to “minimise risk” following an incident, to which I refer below, in which he became involved in a fight in a pub. But he subsequently accepted that that was irrelevant to the question of Sunday support. . That explanation is consistent with an entry in Mr Lamb’s notes from late March 2007, where he records the Claimant telling him that “he feels that he now needs weekend care so that he can do activities”.[31]At about the same time, it was decided that a support worker should stay with the Claimant overnight on the evenings on Thursdays, Fridays and Saturdays (to which I will refer for convenience, if slightly inaccurately, as “week-end evenings”). This was justified to the Claimant’s solicitor in a letter from Mr Lamb dated 27th September 2007 on the basis that “these are high risk periods for himself and others when he is drinking alcohol in the community”.[32]In accordance with Mr Lamb’s original plan, support workers were primarily intended to help mitigate the consequences of the Claimant’s frontal lobe dysexecutive syndrome by providing (in the words of the joint neuropsychological report) “supervision and support to maintain his safety, organise his behaviour [and] help him to maintain his affairs and engage in activity”. The latter element was of particular importance in day-to-day support: without encouragement, the Claimant was unlikely to be able to undertake any kind of worthwhile activity, and by introducing goals and structure into his daily life it was hoped that he could be given a more purposeful and happy existence.[33]There has only been very limited success in this regard. When he moved to Oyster Quay the Claimant joined a nearby gym, the David Lloyd Leisure Centre, and he has attended fairly regularly for swimming and other exercises, although he eventually fell out with his instructor and is no longer receiving fitness training. He was also assessed by an organisation called the Mobility Centre as fit to drive, and he undertook a large number of driving lessons and passed the theory test. But it became clear that, while he was capable of learning to drive, the problems of concentration and temperament attributable to his frontal lobe dysexecutive syndrome made it impossible for him to be a safe driver: the experts in fact believe that that should have been clear from the start, but the episode illustrates that the severity of the Claimant’s condition may initially have been underestimated by Mr Lamb. Following the circulation of this judgment in draft I was informed by Mr Dean that the Claimant had in fact, unbeknownst to his solicitors, taken and passed the full driving test and obtained a full driving licence. In the light of the medical evidence to which I refer, the Claimant’s deputy is very concerned at this development and has written to the DVLA. She has not sanctioned the purchase of a car and questions whether the Claimant will be able to obtain insurance. In my view I must continue to proceed on the basis that, whether or not he retains his licence, the Claimant is unlikely in future to be able in practice to drive a car. However, the facts that the Claimant was able to persist with driving lessons, to arrange and take a driving test without the involvement of his case manager or deputy, and to pass it illustrates that his capacity of independent action and his cognitive abilities are far from totally impaired. A variety of courses, for example in IT, have been proposed; but the Claimant has showed no interest in them or, if he has, has given them up after a short while. He has declared that he has no interest in undertaking any kind of voluntary work. In practice, the principal regular tasks undertaken by the support workers appear to be a degree of housework and accompanying the Claimant on visits to the gym, to the supermarket and, particularly on weekend evenings, to the pub.[34]On a typical day the Claimant spends a fair amount of time at home. He watches television or goes on the computer a good deal, playing games or researching holidays or visiting other sites that interest him. He can and sometimes does cook a simple meal, though the support worker will keep an eye on him. He tires easily and sometimes sleeps during the day. But he does also go out a good deal. Most days he will visit the supermarket with his support worker: Mr. Lamb has tried to institute a system in which the Claimant plans his shopping for several days at a time, but this has not worked. He may go to the gym or, until recently, for a driving lesson. More occasionally he may go out on other activities which interest him or which Mr. Lamb or the support worker have suggested. He may meet up with friends for a drink or a meal or visit his mother or other family members. On week-end evenings he will go out to a pub or club. When he does so, he tends to drink very heavily. For most of these activities he will be accompanied by a support worker, but that is not invariably the case. He is capable of going out on his own and sometimes does, usually with his support worker’s consent (though not always, as the incidents referred to in para. 36 below demonstrate). He can walk short distances: otherwise he gets a taxi. He regularly, for example, walks on his own to a nearby shop to buy a paper; and the surveillance DVD showed him at a cashpoint on his own taking out money. He is perfectly capable of crossing the road safely. The basic decisions as to what he does every day are his own, though it is supposed to be part of the support worker’s role to encourage purposeful activity. He is allowed spending money by his deputy and uses a cash card to obtain it, but his expenditure has to be restricted because he is incapable of any kind of financial planning and spends impulsively – typically on designer clothes, or on food which he does not need - if he gets the opportunity.

The Claimant’s relationships

[35]The Claimant clearly had a circle of good friends before the accident, and there are some whom he continues to see and go out with a fair amount, principally to the pub. They are loyal to him but of course are affected by his changed behaviour.[36]As for sexual relationships, I have already referred to his having fathered a child in the course of 2005. In late 2006 he developed a relationship with a Ms Tracy Plunkett, who gave evidence before me. The relationship continued until the late summer of 2008 and both Mr. Lamb and Mrs. Smith believed that it had a positive effect on the Claimant. He and Ms Plunkett did not move in together and Ms Plunkett had other responsibilities, both because of her work and because she had a teenage daughter; but they saw each other regularly and went on holiday together to Barbados, as well as enjoying a weekend away in London. For all that, the relationship was a troubled one. The Claimant’s behaviour was often difficult, and for that reason Ms. Plunkett was unwilling to commit herself to it as fully as he wanted. There was more than one break-up before the Claimant and Ms Plunkett finally parted. After one such split in mid-2007 the Claimant went on two occasions to Ms Plunkett’s home in Cosham (it appears that he took a taxi) and there poured acid on her car and slashed her tyres. He told her that he would burn her house down and that he would glass her. He also cut up some of her clothes and threw them on her lawn. Following the eventual break-up he again went to her house, taking a hammer, and broke the glass in her front door: again, he got there by taxi, having left his support worker with an excuse. He also made threatening and abusive telephone calls to her. The Claimant has been charged, but it is not clear whether the charges will be pressed. Like other witnesses, Ms Plunkett stressed in her evidence before me that the Claimant had positive qualities - “kind … caring [and] lovable” - and could on occasion be good company. But he was very difficult to be with: she described him as “impulsive, childish and hard to reason with” and prone to fly off the handle, like a child or a drunk. She was sure that he was incapable of living by himself.[37]As already noted, Mrs. Smith, the Claimant’s mother, has on occasion worked as a support worker but her preference is, entirely understandably, not to be involved in his life in that role. The Claimant feels very close to her, and if he is at a loose end or has some problem which he cannot deal with, or something he wants, he will telephone her. His calls can be very frequent and repetitive, coming back to the same question again and again: he is incapable of appreciating that it is not possible for him always to have what he wants. The same behaviour is experienced by other family members and friends and by Mr. Lamb and Ms. McClure.

Holidays

[38]In spring 2007 the Claimant went on holiday to Thailand for three weeks, arranged around a friend’s wedding. He was accompanied by one of his carers. He enjoyed himself very much, taking full advantage of the usual pleasures available to a young single man on a Thai beach holiday. However, he spent far more money than he had been allowed and had to phone home for more. There was a holiday planned in Mexico in November 2007, but this had to be cancelled at short notice (at some cost) because the Claimant fell out with Josh, who was due to accompany him. He went to Turkey for a week with a carer in September 2008 and to Thailand again the following month with Josh. Again, he spent far more money than he had, and in Turkey he ran up a bill of several hundred pounds on his support worker’s mobile phone: the fact that he was able to do so illustrates the very limited extent to which his support workers have been are capable of moderating his behaviour. As mentioned above, he had a holiday in Barbados with Ms. Plunkett in spring 2008.

The Claimant’s behaviour

[39]As already indicated, the Claimant’s conduct towards his support workers can be rude and aggressive. He is very foul-mouthed and can often say very objectionable things. He can also be offensive towards strangers. In the street or the supermarket he may make uninhibited comments about people’s appearance: the remarks may be racial or homophobic. He can get impatient in queues and may, for example, barge people with his supermarket trolley. By way of further illustration, I heard evidence of – or saw reference to in the notes – episodes where the Claimant was abusive or angry in the GP’s surgery, banging the desk with his stick; where he was offensive to the receptionist at the centre where he was taking a mock driving test; and where he threatened to hit the passenger in the seat behind him in an aeroplane if he did not move his legs. He often spits in the street. The surveillance DVD picks up an episode in which, rather than find a toilet, he urinated in a supermarket car-park, without making any attempt at concealment. It also shows him being rude to the waiters in a restaurant. When angry he will often make verbal threats of violence, though I discuss below the extent to which these may result in actual acts of violence.[40]Such conduct is anti-social but not in itself dangerous, except to the extent that it may provoke a violent response. But there is also evidence of more serious conduct. The Claimant continues to keep knives, and his collection of “Samurai” swords. There has been some discussion involving Mr Lamb and the support workers about how to remove them; but nothing seems to have happened. On one occasion during a row with his sister the Claimant took out a flick knife, though it is not suggested that he threatened to use it. He frequently threatens violence when angry: he talks of stabbing people or burning down their houses. I have already referred to the damage that he did to Ms. Plunkett’s house and to her car. However, the evidence of actual violent behaviour is more limited. It is of two kinds.[41]First, there have been some episodes of violence towards members of his family, and particularly towards his brother Josh, who spends a lot of time with him in his capacity as a support worker. On one occasion the Claimant “lashed out” against Josh when holding a kitchen knife: he sustained a cut to his finger. Although I do not get the impression that there was any serious injury, the incident could easily have had much worse consequences. On another occasion Josh was hit on the arm with a hammer. On a further occasion, following some kind of confrontation Josh took refuge in the bathroom and the Claimant sprayed CS gas under the bathroom door: the very fact that the Claimant had a canister of CS gas in the flat is a matter of concern, quite apart from the fact that he used it. Somewhat less seriously, the Claimant hit Josh in the face when he tried to stop him throwing an empty pizza box out of the car. No other family member seems to have suffered the same level of violence during this period, but Mrs. Smith in one of her notes while she was working as a support worker records that the Claimant “slung a knife” at her.[42]Secondly, there was an incident in January 2007 when the Claimant hit another customer in the face with a beer glass in the pub: the glass apparently did not break. There is no direct evidence of the episode, which is known only because the Claimant himself mentioned it shortly afterwards. His account was that the other man head-butted him for no apparent reason and that he hit him in response. The matter does not seem to have been pursued by the police or by anyone else, and it seems likely that no serious injury was done. But on any view the incident was potentially very serious.[43]I should briefly mention a further incident which Mr Wilby sought to rely on as an episode of violence. On one of the occasions when the Claimant was the subject of covert surveillance he went out to dinner in a restaurant with three friends. In the course of the meal the Claimant seems from the DVD to turn to his companion and prod him in the arm with his fork. It is not clear whether the gesture was even “play violence”; but even if it was it was quite evidently wholly friendly in intention and is of no significance for my purposes. The reliance on it by counsel, and by some of the expert witnesses, has been ill-judged in as much as it has made it more difficult for me fairly to assess their views of the seriousness of other incidents on which they rely.[44]A different kind of behaviour attributable to the Claimant’s condition also needs to be mentioned. There have been occasions when he has left the cooker on, or turned on the gas without lighting it. Once he opened the washing-machine prematurely and caused a minor flood. Such incidents do not appear to have occurred frequently or to have had serious consequences, but clearly they have the potential to do so.[45]I have, inevitably, focused on the episodes of violent or anti-social or risky behaviour shown by the evidence. But there is a danger of that giving an unbalanced picture. For much of the time the Claimant’s behaviour, though rather boorish, is not seriously objectionable; and his friends, family and support workers can enjoy his company. The daily notes kept by support workers generally, though not always, record “good mood” or “OK mood”; and although the form was modified in mid-2008 specifically to ask about verbally or physically aggressive behaviour the answer is nearly always “no”. Mr. Lamb suggested that this was partly because the case-workers had become desensitised to the Claimant’s objectionable behaviour; and Mrs. Smith told me that when she wrote daily notes she left a lot out because she was afraid that “if anybody … knew what Joey was really like they would lock him up”. I do not doubt that those factors may be in play; but I believe that any incidents of serious violence or abuse could hardly have gone unrecorded. His anti-social behaviour is not constant nor is it at a high level, particularly towards strangers. He is known in the neighbourhood, and no doubt receives a degree of tolerance on that account. His occasionally rude behaviour has not led to him being banned from the supermarket, though he goes there most days. His lameness is such that strangers are unlikely to regard him as particularly threatening. It is important not to lose sight of the fact that over the last three years – and in particular the last two at Oyster Quay - the Claimant has not, with the exception of the incidents following the break-up of his relationship with Ms. Plunkett, got into serious trouble. Mrs. Smith in her most recent witness statement says: “Joey’s behaviour has improved. It is so much better than it was during the first two years … I think that part of it may be due to the fact that Joey is finally coming to terms and accepting how he is now.” (But it is fair to note that she adds that he remains “much more physically and verbally aggressive and violent than any normal individual”.)

Psychiatric and neuropsychological support

[46]The Claimant saw a psychiatrist, Dr. Ingrid Parker, twice in the summer of 2007. She reported that although he clearly had problems with anger control, exacerbated by drinking too much, he was resistant to help with this: he was also resistant to any suggestion that he might take mood-stabilising medication. She thought that he had reasonably good insight and was not unhappy: he was not suffering from any psychiatric illness. She gave him some advice about cutting down on his drinking. She saw no need for treatment or follow-up.[47]Neither the Claimant’s solicitors nor ILS seem to have sought any neuropsychological input when they first devised and implemented their regime for the Claimant (though they will have had access to the initial medico-legal report produced by Dr Leng). However, in April 2007 Mr Lamb made contact with Dr Richard Maddicks, a consultant neuropsychologist practising in Portsmouth. He met the Claimant on 31st May 2007 and wrote to Mr Lamb on 18th June: his letter, however, did no more than suggest a further meeting, involving the support workers and family members, to discuss how the difficulties caused by the Claimant’s behaviour could be “managed”. Such a meeting took place on 29th August and some general advice was given. In January 2008 – i.e. well over a year after the support regime had started - Dr Maddicks produced some short notes for distribution to the support workers which sought to explain in simple language the nature of the Claimant’s disability and how it affected his behaviour and gave some guidance as to how to cope with difficult situations. For some reason these were not distributed at that stage, but there was a further meeting between Dr Maddicks, Mr Lamb, Mrs Smith and two of his support workers (one of them being Josh) in March 2008: I am not clear whether the guidance was issued following that meeting. The Claimant did not himself see Dr Maddicks again until October 2008: I deal with this at para. 52 below. In addition to these formal meetings, Mr Lamb on several occasions sought Dr Maddicks’ advice by telephone or e-mail.

Overview

[48]Over the two years since he has been living at Oyster Quay the Claimant has been living a life which is not without its pleasures. He likes his flat. He enjoys going to the gym and being with his friends and going out drinking. He has had several holidays which he has enjoyed. Despite his various difficulties, he has had the opportunity, within certain limits, to live as he likes. None of the experts suggest that he is depressed, notwithstanding that he has considerable insight into his condition. His cognitive abilities do not appear to be too gravely impaired. Nevertheless the problems caused by his frontal lobe dysexecutive syndrome are fundamental. His behaviour causes serious difficulty in his relationships with others: whatever his tendency to rude or violent behaviour before the accident, it is clear that it now has a different character because of his disinhibition. His inability to work or to engage in other purposeful activity necessarily means that his way of life is limited.

PROGNOSIS

[49]It is agreed that the Claimant’s life expectancy has been reduced by between three and five years. There is no prospect of any improvement in his physical disabilities, and specifically his lameness. The real question is whether there is a prospect of an amelioration of his cognitive and behavioural problems, offering the prospect of a greater degree of independence and a more purposeful and ultimately happier lifestyle. That is relevant not only to an assessment of his overall loss but also, at least potentially, to assessing his future care needs.[50]Mr Wilby’s submission was that there was no such prospect. He relied in particular on para. 10 of the joint statement of the neuropsychological experts, and in particular on their statement that:
“… we cannot see any prospects for significant improvement in the future. We think it unlikely that he will display the ability to learn, or to be trainable, in aspects of daily living, such that we see him as continuing to function at the present level for the future.”
Evidence to broadly the same effect was given by Dr Gross and Dr Bird. Dr Gross told me that he did not accept that on the balance of probabilities the Claimant’s behaviour and capacity would improve: he emphasised that the fundamental problem was structural brain damage and that, although a degree of improvement in function was possible after 4½ years, it was unlikely. It was Dr Bird’s view that the very limited success of the regime introduced by Mr Lamb over the previous two years meant that no further progress could be expected.[51]Mr Walker submitted that the picture advanced by Mr Wilby was unduly pessimistic. He pointed out that all the experts in their initial reports had expected that after an initial period of intensive support the Claimant would need much less care than he was now receiving. He submitted that the problem was that the support regime as implemented had not been adequate to establish to what extent the Claimant’s behaviour and capacities could be improved by skilled support and training. So far as expert evidence was concerned, he relied principally on the evidence of Dr Upton. Dr Upton was critical of the rehabilitation package provided by ILS. His essential criticisms can be summarised as follows: - The Claimant should have been given mood-stabilising medication. This had been recommended at an early stage by Dr. Parker: it had also in fact been recommended by Dr Bird in his first medico-legal report. It had not been pursued, principally – it appears – because the Claimant understood from his GP that if he took the medication he could not continue to drink alcohol. - There had been no, or no adequate, neuropsychological input into the support regime. It was true that Dr Maddicks had been consulted; but his input was late and limited, and he had certainly not proposed a detailed and thorough plan for achieving improvements in the Claimant’s behaviour. - The Claimant was being given so much “support” that he had no opportunity to develop any independence. His position was summarised in the “report of points of agreement and disagreement” between himself and Mr Bird lodged shortly before the trial as follows:
“Given appropriate treatment, Dr Upton expects further improvement. Dr Upton considers that the level of support worker time is too high and detrimental to [the Claimant’s] function and recovery. Dr Upton considers the Claimant will always need support (to support domestic function, structure and activities and maintain independent living skills) but that this level will be significantly lower than the current level.”
A similar view was expressed, though less fully developed, by Dr. Foster. While accepting that the Claimant’s brain damage was irreparable, he believed that it was nevertheless possible for the Claimant to achieve behavioural change through “modelling” – that is, by being put in an environment in which he could be steered into “structured purposive activities”. It was put to him by Mr Wilby that that is precisely what had been tried over the past two years, without success. But it was Dr Foster’s view that the wrong things had been tried and that the support offered to the Claimant had been insufficiently skilled or subtle. He too referred to the possibility of advantages from taking mood-stabilising drugs.[52]Mr Walker also relied on the fact that in October 2008 the Claimant himself had asked to see Dr Maddicks again for help in addressing his behaviour. This request arose out of his recent break-up with Ms Plunkett. I should set out in full the terms of the letter written by Dr Maddicks to Mr Lamb following the meeting on 6th October. It is as follows:
“Thank you for asking me to review Joey following his request to address his recent behaviour. I am writing to update you on my meeting with him on 6 October 2008. His support worker was present along with Josh, his brother. Joey’s motivation to address his behaviour is clearly considerable and genuine. He discussed his recent behaviour in relation to Tracey, in particular his concern that this has jeopardised the possibility of any potential reconciliation. He also accepted that this recent behaviour, although extreme, is a more general, longstanding issue. I indicated to him that I thought it would be possible to help with this issue although this is likely to take a little time. Interestingly, in the course of our discussions Joey described his behaviour as ‘impulsive’ and we discussed how this is a characteristic of brain injury. However, at the same time, the damage to Tracey’s properly appeared to be more ‘considered’, i.e. Joey took a taxi to her property giving him considerable time and opportunity to think through the implications of his behaviour. Joey also discussed his tendency to respond to difficult feelings (such as rejection) by wanting to hurt others. As we have discussed, it is possible that damage to Tracey’s property now constituted an ‘effective’ release mechanism in view of his physical limitations and associated vulnerability. I strongly suspect that, pre-injury, this scenario would have culminated in physical confrontation and ‘resolution’. It is not clear to what extent alcohol contributed to these recent events. I discussed the possibility of obtaining clear ‘recordings’ of Joey’s behaviour (i.e. in ‘ABC’ format) in order to help establish a clearer understanding of the contextual factors, functions etc. and wonder whether we could ensure that the support workers complete these over the coming weeks. It would be helpful to liaise with you further regarding this. I indicated to Joey that I would like to see him again to discuss these issues further and consider management ‘options’; the timing of this will obviously be determined by whether or not he goes to Thailand on Friday. Whilst we did not discuss medication, I do wonder if this is an area that requires review/further consideration. Given Joey’s pre-injury personality and behavioural traits, I think that we should urge caution regarding the long term effectiveness of any treatment, either psychological or pharmacological. However, I do wonder whether a neuropsychiatric opinion regarding medication would also be prudent at this stage alongside my own involvement? My primary concern is that Joey’s motivation to address this issue is entirely associated with the possibility of reconciliation with Tracey. If this possibility were to recede I would consider that: (1) any motivation would be absent, thus making psychological treatment very difficult if not impossible to sustain; (2) his risk of ‘acting out’ his feelings of anger towards others would be increased (particularly were he to be driving unsupervised, placed in challenging situations, under the influence of alcohol/drugs etc). It would be very helpful to let me know whether Joey is going to be around in the next 1-2 weeks for a further appointment or whether we need to schedule one for his return to home. It would also be helpful to consider support workers recordings with you before proceeding.”
Although the positive tone of the early part of that letter must be read with the heavy qualifications which follow, it plainly opens the possibility of further treatment. Mr Walker submitted that it was clear evidence (a) that Dr Maddicks had not up to that point been asked to give the kind of input and advice which Dr Upton believed should have been sought; (b) that there was a real prospect that such input would now be forthcoming; and (c) that it might be effective. (1) any motivation would be absent, thus making psychological treatment very difficult if not impossible to sustain; (2) his risk of ‘acting out’ his feelings of anger towards others would be increased (particularly were he to be driving unsupervised, placed in challenging situations, under the influence of alcohol/drugs etc). It would be very helpful to let me know whether Joey is going to be around in the next 1-2 weeks for a further appointment or whether we need to schedule one for his return to home. It would also be helpful to consider support workers recordings with you before proceeding.”[53]The evidence of the experts as regards this letter can be summarised as follows. Dr Upton said that it supported his view that there remained things that could be done to improve the Claimant’s behaviour. The suggested “ABC” reporting refers to a form of recording behaviour in terms of antecedents, behaviour and consequences which is just the kind of analysis that Dr Upton believed could have been introduced from the start and could have formed the basis for a programme that could have helped to modify the Claimant’s behaviour. He emphasised that in his experience “these techniques do work in most cases”. Dr Gross accepted in cross-examination that the letter justified a limited degree of optimism - what he described as “a chink of light”. He said it showed that the support for the Claimant was “very much a work in progress”. He said that he did not think it mattered whether the Claimant’s motivation for seeking assistance may have been to help to restore the relationship with Ms Plunkett or to keep out of prison: he said that motivation was not important and drew an analogy with the “reward” systems used in many institutions for the mentally ill. However he observed in re-examination that “clinicians are always optimistic”. Dr. Bird summarised the contents of Dr Maddicks’ letter in a supplementary report but expressed no view about it: he was not asked about it in his oral evidence.[54]The first point that Mr Wilby made by way of response to the case advanced by Mr Walker was that the principally relevant specialist expertise in this case was not neuropsychiatric or neurological - that is, the specialities of Dr Upton and Dr Foster - but neuropsychological, and thus that the issue of any further possible improvement was effectively concluded by the agreed terms of the joint statement of the neuropsychological experts, Professor Beaumont and Dr Leng. I do not agree. In the first place, while I acknowledge that the neuropsychological opinions are of great importance, I was not persuaded that the issue in question was one on which a neurologist or neuropsychiatrist was unable to express a valid opinion. Clinicians do not operate in impermeable boxes. Although Dr Upton is a neuropsychiatrist by speciality, his particular clinical expertise is in the care and treatment in the community of patients with brain damage; and he told me that the nature of his practice meant that he had very considerable experience of the kinds of regime which he believed should have been implemented in the present case but had not been. Thus the agreed evidence of the neuropsychologists represents only part of the relevant evidence before me. In circumstances where there was clearly a dispute on this question, it is perhaps less than ideal that I did not hear live evidence from Professor Beaumont and Dr Leng. A joint statement is always a helpful document, but it is in the nature of things something of a summary. In his written closing submissions Mr Wilby said that if I thought it necessary there should be an adjournment to allow Dr Leng and Professor Beaumont to be called. He did not repeat this suggestion in his oral submissions, but in any event I do not believe that it would have been proportionate or in the interests of justice to take this course. I was able to obtain a reasonably good understanding of their views from their reports, which were before the Court, and their joint statement, all of which I have read carefully.[55]I should also say that Mr Wilby in cross-examination made an attack on Dr Upton’s integrity. He referred, without producing it, to a report which Dr Upton had written in other proceedings (where Mr Wilby had been engaged as counsel) and put it to him that the opinions expressed by Dr Upton in that case were inconsistent with those which he was now advancing; and he suggested that Dr Upton allowed his opinions to be influenced by the interests of the party for whom he was acting. I made it clear that it would be impossible for me to assess the validity of this challenge without sight of the report to which Mr Wilby was referring, but I questioned whether even then I would be in a position to reach any useful view without having to spend a disproportionate amount of time understanding the facts of the case in question; I invited Mr Wilby to consider whether he wished to go down that route. In the event, he did not seek to rely on Dr Upton’s report in the other case. I should however make it clear that, whether Dr Upton’s views were right or wrong, I was satisfied that he was advancing them in good faith and without any more partisanship than is sometimes inevitable when a witness is exposed to hostile cross-examination.[56]Those particular points being put on one side, the real issue of substance is whether, on the evidence, I believe that there is any prospect of significant improvement in the Claimant’s condition. In my view there is. I do not believe that the support regime which has been in place to date has truly tested the extent to which his behaviour can be modified and his independence enhanced. It is not for me to attribute blame. I do not underestimate the difficulties which Mr Lamb and those caring for the Claimant have faced. But I believe that those difficulties could have been addressed with more imagination and “grip”. On the basis of the evidence of Dr Upton and Dr Foster, I am not persuaded that, with the best advice and a good deal of determination, the Claimant could not have been, or could not now be, induced to accept better-qualified and more independent support workers; and if that were achieved, there is a good prospect that he could be guided into drinking less, accepting mood-stabilising medication, engaging in more constructive activities and moderating his anti-social behaviour. I appreciate that that is a big “if”; but the choice may have to be made in any event, since Mr Lamb accepted that it may not be possible in the medium or longer term to go on recruiting support workers on the current pattern because the pool of family and friends willing to take the role may dry up. I note that Dr Bird expressed the view that the Claimant could and would be persuaded to accept case-workers from outside his own circle: he said “it won’t be easy, but I think it can be done”. Mr Lamb himself is not happy with the present situation, and there is reason to hope that the conclusion of these proceedings, and the renewed involvement of Dr Maddicks, will provide an opportunity for the regime to be reinvigorated.[57]I am not sure that it is necessary or indeed possible for me to identify what level of improvement, if any, is more likely than not to be achievable; but I would if necessary say that on the balance of probabilities a more effective regime will (assuming funding to be available) be put in place and will achieve a significant improvement. But I should make it clear that I fully accept that the brain damage which the Claimant has suffered is irreparable and thus that any improvement in his independence, behaviour and way of living will never be more than limited. Nor can there be any certainty that it will occur: all that I can say is that in my judgment it is probable.

THE CLAIM

[58]I will consider the issues by reference to the conventional heads of claim as set out in the Claimant’s Schedule of Damages. A. PAIN SUFFERING AND LOSS OF AMENITY[59]Both Mr Wilby and Mr Walker in their submissions as to the correct level of damages for pain, suffering and loss of amenity relied principally on the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases (9th ed). This identifies four categories of brain damage, of which I need refer only to the first three, namely:(a) “Very Severe Brain Damage”, with a range of £180,000-£257,750;(b) “Moderately Severe Brain Injury” with a range of £140,000-£180,000;(c) “Moderate Brain Damage”, with a range of £58,000-£140,000. The Claimant claims that his case falls within the highest bracket, albeit near the bottom, and suggests a figure of £190,000. The Defendant says that it falls at about the mid point of the third bracket and suggests a figure of £120,000.[60]The Claimant’s case on this seems to me wholly unrealistic. The bracket in question is intended for cases where the victim’s brain functioning is profoundly affected and he or she is unable to lead any kind of independent life. The Claimant’s injuries, serious as they are, are nothing like as bad as that. Cases falling within the second bracket are characterised in the Guidelines as follows:
“The injured person will be very seriously disabled. There will be substantial dependence on others and the need for constant professional and other care. Disabilities may be physical, for example, limb paralysis, or cognitive, with marked impairment of intellect and personality.”
The third bracket has regard to the same factors but is described as being appropriate where “the degree of dependence is markedly lower”.[61]In my judgment the Claimant’s case falls near the boundary between the second and third brackets. I will not attempt to recapitulate all the features of his condition and prognosis which I have set out earlier in the judgment. It is plain that his brain injury has had very serious cognitive and behavioural consequences, which have left him unemployable and seriously impaired his independence and, accordingly, his ability to lead a full and satisfying life. His impulsive and anti-social behaviour is likely to continue to cause real difficulties for him, even if it remains possible to modify it to some extent. His lameness is also a significant physical disability. But he is by no means wholly dependent. The fact that he has, at present, an almost round-the-clock support regime, if it is justifiable at all (a point to which I will have to return), is justified not on the basis that he needs constant care but rather by reference to a combination of rehabilitative effect and the need to minimise risk. But he is by no means wholly dependent. He can and does regularly make choices about what he wants to do, and he can often, if he wishes, act on those decision, without involving others. A dramatic example is his visits to Ms Plunkett’s house (taking a taxi to do so) in order to do damage there, but more mundane examples involve walking to the shop or using his computer. He has a social life, with genuine friends, and he also has the capacity for sexual relationships, albeit that it must be very questionable whether he will be able to maintain a permanent, or even long-term, relationship and a normal family life. He is able to participate in activities that he enjoys, both on holiday and at home. His injuries do not cause him any significant pain. In my judgment the right figure for general damages under this head is £140,000.[62]I should say that Mr Wilby referred me to the decisions of Mackay J in Pike v Vine [2004] EWHC 1381 (QB) and of Ramsey J. in Taylor v. Chesworth [2007] EWHC 1001 (QB), which are both cases in which the Claimant suffered frontal lobe dysexecutive syndrome as the result of a car accident. In the former the Claimant was awarded £150,000; in the latter the parties agreed a figure of £125,000. Those cases confirm that my award is in the right bracket, but I do not find them of assistance in establishing the precise figure: nice comparisons of the degree of disability suffered by claimants in different cases is rarely a worthwhile exercise. B. PAST LOSS[63]I proceed by reference to the heads of loss identified in the schedule submitted at the trial. I am bound to say that a number of heads remained in issue on which I would have expected the parties to be able to reach agreement. Perhaps because they too shared the same expectation, the evidence on some of the financially less significant heads was limited, and because parties were anxious to limit closing submissions to a single day, in which the focus was inevitably on major points, I did not enjoy the benefit of proper oral submissions about them either. I will however do the best that I can on the evidence and submissions provided. (1). Unpaid Care[64]This item reflects the care given, primarily by Mrs. Smith but to a limited extent also by other family members, in the period between the accident and the Claimant’s move to Oyster Quay and the introduction of the present support regime. The Claimant’s figure is £16,502, and the Defendant’s £10,815. The breakdown of the differences appears in the joint statement of the care experts. Essentially two points arise.[65]First, Ms Clark-Wilson allows, but Mr Blackshaw does not, for the time spent by family members in visiting the Claimant while he was in hospital. I accept that this element should be disallowed. Mr Walker relied on the decision of the Court of Appeal in Havenhand v Jeffrey (unreported, 24.2.97), endorsed in Evans v Pontypridd Roofing Ltd. [2001] EWCA Civ 1657:in that case Beldam LJ accepted the submission of counsel for the defendants that no allowance could be made for “normal hospital visits arising from family affection and not [made] for the purposes of providing services which the hospital did not provide”. The position in the present case is a fortiori since for much of the period the Claimant was in a coma. Ms Clark-Wilson in her short comments in the joint statement sought to justify this element on the basis that the family needed to be present in order to “provide information and support to the clinicians as required” and because “they were concerned about his safety”. I heard no direct evidence on this aspect, either from any factual witness or from the experts; and virtually no time was devoted to it in closing submissions. In those circumstances I can only say that I am aware of nothing which gives any evidential support to Ms Clark-Wilson’s contention. In this connection I should note that Mrs. Smith in her witness statement said that she and other family members were unhappy with the care at the hospital and wanted someone with him in case, as happened on one occasion after he had come out of the coma, he pulled out his tubes without any of the nurses noticing. While I do not doubt the genuineness of her concern, I could not on the basis of that evidence alone justify awarding the Claimant the costs of their attendance as, in effect, a precaution against negligence on the part of the hospital. The consequent reduction from Ms Clark-Wilson’s figure amounts, on my calculation, to £2,543.[66]Secondly, Ms Clark-Wilson and Mr Blackshaw differ as to the number of hours to be attributed to Mrs Smith’s care of the Claimant during the period that he was living with his grandfather and she was looking after both of them. Again, there is no evidence from which the hours in question could be quantified in any precise way, and I was given no help on this issue in closing submissions. Taking a broad view, I think that Ms Clark-Wilson’s more generous estimate is to be preferred. It is clear that Mrs. Smith, who gave up her job following his return from hospital, had to put in a great deal of work – and substantially more than was necessary from the point of view of looking after her father – in caring for and supporting the Claimant.[67]Mr Walker in his closing submissions drew attention to the fact that it had emerged during the oral evidence that Mrs. Smith had been paid carer’s allowance in respect of her provision of care to the Claimant. He said that there should have been disclosure of the sums received, since these were deductible from the damages awardable for her care. He acknowledged that, since no such disclosure had been forthcoming, no precise figure could be established; but he said that the sum involved must have been of the order of £45-50 per week. Although, again, the point was not very fully argued, it seems to me correct that there has been a failure of disclosure by the Claimant in this regard. However, if the point had been taken promptly when it first emerged there would have been an opportunity to adduce some evidence in relation to it: one important question would have been over what period the allowance was paid. While I accept that it would have disproportionate to make a major song-and-dance about the issue, the fact remains that if Mr Walker wanted me to make some deduction from the claim he needed to supply me with the material with which to do so. I do not feel able to make a purely speculative discount.[68]In the result I award £13,959 under this head. (2). Paid Care[69]The Claimant claims £112,385 under this head, being the cost of the support worker regime in place between late 2006 and the present. There is no issue as to the rates paid, but it is the Defendant’s case that the level of support given was unnecessary and unreasonable. Mr Walker points out that the purpose of the support worker regime as originally envisaged was essentially to help develop the Claimant’s independence by encouraging and guiding him into a more ordered way of life, with structured and purposeful activities. On this basis it was thought right to provide care during the day for six days a week, although it was envisaged that that level of care would or in any event might reduce in due course: see para. 29 above. What in fact happened was: - that the level of support had considerably increased, with the introduction of support on Sundays and night sleepers; and further - that the support workers had ceased, to the extent that they ever did, to provide support and guidance of the kind intended and were not indeed of a calibre to do so - as Mr Walker graphically put it; “Much of the “care” that was paid for apparently consisted of nothing more than accompanying the Claimant to public houses or clubs while he got drunk … the employment of his family and his friends to accompany him to public house, nightclubs etc. (as and when he chooses) cannot plausibly said to be by way of fulfilment of [the need for support originally identified] nor indeed to be “care” at all.”[70]That attack cannot be wholly fair. Support workers have to be engaged on a regular basis and, on a scheme such as that intended in the present case, to support the Claimant in all the activities of his daily life. If that includes being present during, and indeed participating in, his social activities, that is not necessarily a bad thing; but even if the support worker has no real role on such occasions and is sent home he or she cannot be stood down without pay. But Mr Walker’s underlying criticism is that the support workers seem to have done little that was constructive or useful.[71]The essence of Mr Wilby’s response was that the matters complained of by Mr Walker simply reflected the fact that the seriousness of the problems caused by the Claimant’s attitudes and behaviour had not been fully appreciated when Mr Lamb first made his plans. Mr Lamb had been constrained to employ a cadre of support workers consisting of family and friends because the Claimant would not accept anyone else; nor indeed, in view of his behaviour, would anyone else be likely to be prepared to work with him for any length of time. Even if they were less than ideal, and the achievement of the goals originally hoped for had suffered on that account, that simply could not be helped – though in any event it was Mr Wilby’s submission that the Claimant’s condition was such that no progress beyond what had already been achieved could be expected. The other aspect which had not at first been properly appreciated was that the Claimant’s behaviour created such risks for himself and for others that he needed a minder throughout the day, and at night if he was going out, in order to keep him from getting into serious trouble. It was primarily for that reason that “night sleepers” were necessary: on the nights when the Claimant went drinking he would be out long after 11 p.m., and if someone had to accompany him and see him home it made sense for them to then stay the night.[72]Mr Wilby relied in support of that case partly on the general evidence of the Claimant’s disinhibited and anti-social behaviour but more particularly on the incidents of violence which I have reviewed at paras. 41-42 above: he placed particular emphasis on the “glassing” episode in January 2007 (not in fact a true glassing because the glass did not break). Josh Smith in his evidence explained how when he was with the Claimant in this role he would keep an eye on him at all times to see that he did not get into confrontational situations of the kind which led to that incident and would seeek to defuse them if they did occur. The evidence before me was that when support workers accompanied the Claimant to the pub they did not drink alcohol, though there is some suggestion in the notes of a concern that this rule was not being adhered to.[73]Mr Wilby also relied on the expert evidence, principally of Dr Bird. Dr Bird described the Claimant in his oral evidence (though not in his report) as “a very dangerous young man”. He said that he needed someone with him all his waking hours; and when Mr Walker asked him about the provision of care at night he responded that “anything can happen at night” and repeated that the Claimant was “a very significant risk to himself and others if he is left unattended”. Dr Gross – perfectly appropriately in view of his field of expertise – was less full and explicit on the subject of the degree of care which the Claimant required; but he too referred to the need for the Claimant to be “contained” and commented that that would be difficult if he was without support for large parts of the day. Mr Wilby also referred to the fact that Ms Clark-Wilson in her later reports modified her original position and recommended 24-hour care, and on one view of the matter it is her evidence, as the “care expert”, which is central. As to that, however, in a case of the present kind the care experts are doubly dependent on the input of others – that is, on the medical experts as regards the extent of the injury and the prospects of treatment and improvement, and on the Claimant’s family and support network for evidence of his capability and needs. On those I am in a good position to form my own views.[74]Neither Dr Upton nor Dr Foster believed that the Claimant needed to be “contained” throughout the day or, still less, at night. Again, since the issue was not primarily one for a neurologist, it was Dr Upton who dealt with the point more fully. He accepted that the Claimant’s behaviour posed some degree of risk but he said that it was “not of such a kind that it requires 100% 24-hour guarding”. He pointed out that all but one of the episodes of significant violence relied on by Mr Wilby were directed at family members, and more particularly at his mother and his brother. There had only been one case of serious violence against a stranger – that is, the “glassing” incident - which he did not regard as a sufficient indication of the level of risk asserted by Dr. Bird. (As to that, Dr Upton did not refer to the details of the incident; but I note that what exactly happened is unknown and that on the Claimant’s account he was in fact responding to an unprovoked assault.) It was Dr Upton’s view that the Claimant showed “significant aspects of control”: he was, at least to some extent, able to choose when to misbehave. He pointed out that the attacks on Ms Plunkett’s car and house were not spontaneous acts of violence arising out of disinhibited or anti-social behaviour in public: on the contrary, they showed a considerable degree of premeditation and indeed independence. (It will be noted that Dr Maddicks had made a similar point in his letter of 6th October 2008.)[75]I prefer the evidence of Dr Upton. His assessment of the Claimant’s behaviour seems to me more nuanced than that of Dr Bird and more closely based on the specifics of the evidence. In my view it is indeed significant that the Claimant’s violence has been largely confined to members of his family and that even with them – though he has done some dangerous things – he does not show a propensity deliberately to inflict serious harm. I note in this connection that Josh, though he has left the Claimant from time to time, has been willing to come back to work with him subsequently despite the incidents of violence that he describes.[76]I do not therefore accept that the Claimant needs seven-day-a-week 24-hour care for the sake of his own safety or that of others. In fact, it is to be noted that no-one has so far really proceeded on that basis; nor has any medical witness save Dr Bird asserted such a need. Some of the incidents of violence described date from the very beginning of the period with which we are concerned – and the Claimant was of course known to have acted violently towards his mother and his grandfather in the earlier period; but it was not thought necessary initially to afford 24-hour supervision. And even now there are substantial periods of time when the Claimant is on his own, either on weekday evenings, or when a support worker is for one reason or another unable to come or is dispensed with. I note too that it was many months after the “glassing” incident that the idea of the Claimant having support on week-end nights first emerged. The change of approach between the original and later reports of Ms Clark-Wilson is in my view based on inadequate material.[77]I would also add, echoing a submission of Mr Walker, that if the Claimant was really as dangerous as Mr Wilby submitted there would be a serious question whether he should be confined under the Mental Health Act. Mr Gross did indeed refer to that possibility saying that “he’s on the borderline between containment and confinement” – though he qualified that observation by saying that he was not a psychiatrist. On the other hand, Dr Bird firmly rebutted the suggestion that any order under the Act could be made in the Claimant’s case. That must mean that in his view the Claimant’s condition was not such that his detention was necessary for his health or safety or for the protection of other persons. None of the other experts nor Dr Parker or Dr Maddicks have made any such suggestion.[78]Accordingly in my view the reasonableness of the support regime provided for the Claimant must be based on what is appropriate for the purpose originally identified by Mr Lamb. In my judgment the regime originally planned by him, under which the Claimant would be supported for fourteen hours a day six days a week (that is, 84 hours a week) was reasonable, on the basis that, at least in the early stages and with a move to a new home, he would benefit from very extensive support - though it does not follow that that would be the position indefinitely. Against that background, I do not believe that the additional hours charged in respect of the “night sleepers” were reasonable. I do not say that the Claimant may not benefit from the presence of a support worker after 11 p.m. on some occasions, including evenings when he wants to go out drinking or to a club. A good support worker could be very helpful in modifying his behaviour in this regard and although I regard Mr Wilby’s submissions on risk as exaggerated I can see that such risk as there is is at its highest when the Claimant is out on occasions of this kind. But I do not see why such support could not have been provided out of the 84 hour weekly total. These evening occasions are provided for under the current regime on the basis that they are predictable, and support workers are apparently available: all that would happen is that support would not be provided for at least part of at least some days, and I can see nothing wrong in that. (Nor in any event do I see why a support worker accompanying the Claimant to a pub or club late at night needs to sleep over with him on their return. There is no reason why, after the Claimant has been seen home, the support worker cannot go home by cab.)[79]The position about Sundays is more doubtful. The rationale for the extension was not very clearly explained at the time. However, I have accepted Mr Lamb’s evidence that a bona fide judgment was made that the Claimant would indeed benefit from support on Sundays; and I have not been persuaded that that judgment was an unreasonable one.[80]It seems to me that I ought not to disallow the claim under this head, in whole or in part, simply because – as I have found - most of the support workers, particularly in the latter period, have not been of the calibre required and, at least partly for that reason, have not been delivering the level of support that should have been expected of them. While there may be room for criticism of Mr Lamb I am satisfied that he was continuing to try to do the best thing for the Claimant. A time might have come when the regime was so patently not achieving its goal, and not going to do so, that it was unreasonable to persist; but that point has not in my judgment been reached.[81]On this basis I would allow the claim under this head subject to the deduction of the cost of support workers for week-end evenings. On the figures which I have been given that produces a reduction of £12,150 – leaving a total of £100,235. (3). Case Management[82]The sum of £64,612 is agreed under this head, though Mr Walker stipulated that in considering the issue of future case management costs this should not be relied on as a concession that the current level of fees charged in relation to case management was reasonable. (4). Physiotherapy[83]The Claimant claims £4,181 under this head. Of this, £1,648 represents the cost of neurophysiotherapy and is agreed. The balance of £2,533 represents the cost of membership of the David Lloyd Leisure Centre and the fees paid to the Claimant’s fitness instructor. It is pleaded in the Schedule of Damages that:
“It is the opinion of the experts including Jo Clark-Wilson that the Claimant will benefit from membership of the leisure centre both in relation to improving and retaining his physical condition in consequence of his left sided disability and also because of the beneficial therapeutic effects of attending a gym.”
I have been unable to identify any passage in the reports of the experts which contains any such explicit statement; but the proposition seems plausible and although the Defendant initially disputed this item on the basis that it was expenditure of a kind which the Claimant would probably have incurred in any event Mr Walker sensibly did not press his objection. I will accordingly allow the whole amount. (5). Speech and Language Therapy[84]The sum claimed of £460 is agreed. (6). Accommodation[85]The Claimant claims the total cost of his accommodation at Oyster Quay from December 2006 to the date of trial. This includes not only rent, at £1,250 per month, but also (as pleaded in the Schedule of Damages) “the initial deposit, rent, centre fees and insurance renewal and council tax payments”. The total figure claimed is £35,518.[86]The Defendant rejects the totality of this head of claim on the basis that the Claimant would have had to incur accommodation expenses in the period in question in any event. It is his case that, if there had been no accident, the Claimant would probably have stopped living with his grandfather, and moved into accommodation for which he would have had to pay, by no later than the date that he in fact moved, i.e. December 2006. In any event, he would have had to move out following his grandfather’s death in January 2008. Mr Walker accepted that the Claimant could in principle have claimed for any additional cost of accommodation attributable to his injuries: in particular, if (contrary to the Defendant’s case) I were to accept that a night sleeper was required, I might make an award in respect of the additional cost of a two-bedroom flat. However, that was not the way in which the case had been pleaded. Mr Walker, I think, accepted, and in any event I find, that the reasons why the Claimant left his grandfather’s house when he did are attributable to his condition – it was not an environment in which it would be easy to achieve any further rehabilitation – but that does not dispose of the fundamental objection that even if there had been no accident he would have left by then in any event.[87]In my judgment the factual foundation of Mr Walker’s submission is correct. The Claimant would certainly have had to leave his grandfather’s house in early January 2008 (Mr Wilby did not suggest that there was any basis on which he would have been entitled to remain); but in fact I agree that it is likely that he would have left by about the end of 2006 in any event. He would by then have been aged 25. He would have found living with his terminally ill grandfather increasingly irksome. He had a reasonable earning capacity (as to this, see paras. 103-5 below). In my view the probability is that he would have moved out, either to live in a bed-sit or other accommodation appropriate to a single person, or to live with a girlfriend or share with other friends.88. That finding creates a real difficulty. Mr Walker is correct in submitting that no case was advanced to me on the loss that the Claimant would have suffered on that hypothesis. I have some – not much – evidence about the accommodation needs attributable to the Claimant’s condition; but I have no evidence, from an accommodation expert or anyone else, about the difference in the price of accommodation which meets those needs and other accommodation such as the Claimant might have been expected to occupy but for the accident. It was for the Claimant, in the light of the Defendant’s pleading, to put before me the evidence which would enable me to quantify a claim on this alternative basis if I did not accept the primary way in which the claim was put. However, it seems pretty clear that some such loss has been suffered, and I am reluctant simply to ignore it. It seems to me possible to make some estimate, albeit on a conservative basis, as a matter of common knowledge and common experience.89. Approaching the matter on that basis, I think it likely that the Claimant would, but for the accident, have been incurring accommodation expenses in this period of the order of £500 per month – either, as I have said, in a bed-sit or small flat or in some kind of sharing arrangement. Accommodation appropriate to his present condition cannot be achieved at anything like that price. He needs accommodation within easy walking distance of shops and other facilities, in an area readily acceptable to his support network, both paid and unpaid, and of sufficient size to accommodate a support worker throughout the day without them getting on each other’s nerves or in each other’s way. It also needs, on the evidence of Ms Clark-Wilson, a walk-in shower. The flat at Oyster Quay has those characteristics. The second bedroom may not – on my findings – be necessary qua bedroom, but it fulfils the function of allowing the Claimant and his support worker to have some privacy from one another. On the other hand, the rent clearly includes a premium for features which are not in any sense necessary, including the fact that the second bedroom has “en suite” facilities, the presence of a gym in the basement (which the Claimant does not use because of his membership at the David Lloyd Centre) and a balcony with marina view. Although, as I have said, detailed evidence is regrettably lacking, I think I can reasonably assume that accommodation with the features which the Claimant needs would have been available in Port Solent or some other suitable area nearby at less than £1,250 per month. Looking at the matter in the round, I propose to award a sum of £600 per month in respect of additional accommodation costs during this period. Since, as I understand it, the period adopted in the Schedule is one of 35 months, that yields a sum of £21,000.[90]Mr Walker submitted that the Claimant could have mitigated his loss by putting his name down for council accommodation, which he says would have been available since he would clearly have had priority need status; but I heard no evidence to support this submission.[91]Mr Walker also submitted that the Claimant was entitled to council tax relief, for which credit could be given against the Claimant’s claim. Mr Wilby accepted that this was correct in principle but said that he understood that that had already been taken into account in the figures claimed. On the basis, however, on which I am now proposing to award damages, it does not seem to me that any issue arises in this regard. The Claimant would, on the finding that I have made, have had to pay council tax but for the injury: it is true that, perhaps, the level of tax might be different as between the accommodation which he would have occupied and the better accommodation in respect of the price of which I have held he is entitled to claim, but any such difference is too speculative and uncertain in amount for it to be appropriate for me to take it into account. (7). Transport[92]The Claimant claims £4,107.75 under this head, made up as follows:(a) Cost of mobility assessment to see whether he was fit to drive - £565(b) Fee for GP Medical Report needed to obtain provisional licence - £93(c) Cost of driving lessons - £698.75(d) DVLA driving licence fee - £75(e) Taxi fares - £2,676.[93]Although it has now become clear that the Claimant is unfit to drive, Though see n. 4 above. that was not evident at first, as demonstrated by the fact that he received a positive assessment from the Mobility Centre. In those circumstances items (a) and (b) seem to me allowable. But I accept the Defendant’s submission that, but for the accident, the Claimant would have acquired a driving licence and taken driving lessons in any event; and in those circumstances items (c) and (d) must be disallowed.[94]As regards the claim for taxi fares, I fully accept that because of his lameness the Claimant on occasion has to take taxis where he might otherwise have walked or taken public transport. There will also have been journeys specifically for reasons associated with his condition, such as medical appointments. However, no evidence was put before me of the number or cost of such journeys, or otherwise supporting the figure claimed. Mr Wilby invited me to accept the pleaded figure on the basis that it was a reasonable estimate. I do not find that very satisfactory. Again, however, I do not think that the absence of evidence requires me to make no award at all under this head, though I should err on the side of conservatism. We are dealing with a period of, approximately, three years: in the earlier part of the period the Claimant was much more disabled, but I find it difficult to judge how that would have affected his need for taxis. In the end, I think no injustice will be done if I take a round figure of £500 per year (which I note is in fact the amount claimed in respect of future loss under this head).[95]Accordingly, I award the sum of £2,158 under this head. (8). Miscellaneous Expenses[96]Under this heading in the Schedule of Damages the Claimant raises a number of disparate claims. Items to a value of £1,915 are admitted. I deal with the remainder in turn.[97]“BT phone rental”. This item totals £2,889. That is apparently the total amount of the bills in respect of the land-line at Oyster Quay over the period that the Claimant has been living there. Mr Wilby accepts that he cannot justify such a claim. He tells me that the real intention was to claim for the additional cost of calls incurred by reason of fact that the Claimant – as a result of his condition – makes a wholly excessive and abnormal use of the telephone. However, no figures were put forward on the basis of which I could make any estimate; and I am not in this instance prepared to guess.[98]“Barclays travel insurance for Claimant”. The Defendant pleads that the Claimant would have travelled and taken out travel insurance even if he had not been injured. That seems to me unanswerable, and I disallow this item.[99]“Ironing assistance”. This item is pleaded as follows in the Schedule of Damages:
“The Claimant has paid a family member or friend to do his ironing currently it is his sister. The Claimant pays £25 per week.”
That sum of £25 per week is claimed for 217 weeks, i.e. for the entire period since the Claimant came out of hospital. This produces the remarkable figure of £5,425. Again, the evidence in support of this claim is scanty in the extreme. There is in fact no evidence, apart from a passing remark attributed to Mrs Smith in one of the expert reports, that the Claimant cannot do his own ironing; and if is not self-evident that he cannot. There was evidence that during the time that the Claimant was living with his grandfather the ironing was done by his mother, and I see no reason why this should not form part of the care for the cost of which he is being compensated under another head. During the period after the move to Oyster Quay Ms Adams gave evidence that she did some ironing. There was some evidence that an aunt who was not otherwise involved as a support worker has done ironing for the Claimant; but no attempt was made to identify for how long she has done so or what she has been paid. I will allow a modest amount – of £15 per week for 100 weeks, which is just under half the period. That gives a figure of £1,500.[100]“Laptop computer”. £1,100 is claimed as the cost of a laptop computer (considered to be appropriate to assist the Claimant to improve his skills and communication). This claim is disputed on the basis that it is very likely that the Claimant would have bought a laptop in any event but for the accident. I agree with that.[101]The total which I allow under this head is accordingly £3,415. (9). Holidays[102]The Claimant claims £2,000 under this head, on the basis that he needs to be accompanied by a support worker when on holiday. That is plainly correct, and I accept that the Claimant is entitled to the relevant additional costs. There was however some confusion before me as to how the sum of £2,000 was arrived at. In relation to the holiday which he took to Thailand in October 2008, the flight reservation details provided by the travel agent are in the bundle and show that the cost for Josh amounted to £520.35. The equivalent document for his holiday in Turkey in September 2008 is not shown, but I will assume – possibly somewhat generously – that the additional cost of his support worker represented one half of the total, namely £439. The Schedule of Damages refers to the Claimant’s other holiday in Thailand in spring 2007, his holiday in Barbados and the cancelled holiday to Mexico: see para. 38 above. The holiday in Barbados was with Ms Plunkett, and no support worker was taken. I have been given no figures for the other holiday in Thailand nor for the cancellation costs of the Mexican holiday, and it is unclear to me on what basis the Claimant would be entitled to the latter anyway. I appreciate that there may be a limit to the extent to which it is necessary or appropriate to provide detailed breakdowns, but in these circumstances I do not think I should allow more than £1,500. (10). Loss of Earnings[103]The Claimant pleads that but for the accident he would have continued to work for a while as a ground-worker with net annual earnings of £14,500; but that he was capable of moving to semi-skilled work of a kind generically characterised as “construction/machine operator”, for which he would have been entitled to a higher level of earnings, claimed at (at 2006 rates) £18,601 p.a. This figure derives from the report of a Mr Halliday. Mr Walker submitted that no permission had been obtained to rely on that report. I have been unable to get to the bottom of that issue; but the figure is derived from published statistics and is in line with what I would have expected in any event. Inevitably the precise date at which this would have occurred is unpredictable; but the Claimant’s 25th birthday, i.e. November 2006, is taken as representing the midpoint of the probabilities. The total sum claimed calculated on that basis is £72,252.[104]The Defendant in his Counter-Schedule pleads as follows:
“It is accepted that the Claimant might have earned £14,500 per annum net as an average. But his history indicates he would not have been in continuous employment. The defendant therefore allows £14,500 x 4.41 years to date. The likelihood of significant periods not working is offset by the chance that he might have settled down and increased his earning capacity. Total = £63,945.”
The reference to “the likelihood of significant periods not working” is to evidence dating from prior to the accident period showing that his earnings were intermittent and to the risk that, given the Claimant’s history of drug use and criminal propensities as summarised at para. 6 above, there was a real risk that he would have spent some time in custody or otherwise off work.[105]In his closing submissions Mr Walker initially sought permission to resile from the pleading in the Counter-Schedule. While he was content to adhere to the figure of £14,500 as an annual rate, he wished to submit that the risks of intermittent working should be taken into account not only as a factor counter-balancing the chance of enhanced earnings but as a reason for compensating the Claimant on the basis that he would, in the years in question, have earned at less than the full annual rate. Mr Wilby resisted that application, and in the end Mr Walker did not pursue it. On that basis, the only question for me is whether in the two years since November 2006 it is probable that the Claimant would have enhanced his earnings to the level claimed. In my judgment, and subject to one point, it is. I think it unlikely that, as he got into his later twenties, the Claimant would have been content with a level of earnings as little as £14,500: he would have wished to earn at least enough to find his own accommodation (cf paras. 85-89 above) and to have sufficient disposable accommodation for a reasonable social life. There is no reason to suppose that he was not capable of doing the kind of semi-skilled work relied on in his claim. However, some allowance does in my view have to be made for the risk of interruption to his earning capacity, and/or damage to his “promotability”, as a result of getting into trouble with the law or other consequences of his lifestyle: I think that these risks would have been less significant as he got into his middle twenties, but they were not negligible. I will reduce the figure claimed from £72,252 to £67,252. (11). Court of Protection Costs[106]Damages under this head are now agreed in the sum of £35,759. C. FUTURE LOSS (1). Care[107]This is of course by far the largest element in the claim. A fundamental question which arises in connection with it is whether I should make a lump sum award or a Periodical Payment Order (“PPO”) under ss. 2 and 2A of the Damages Act 1996 and CPR Part 41, or some combination of the two. But it is necessary to defer consideration of that question until I have determined the principal issue as to the level of care required. As to that, I direct myself as to the necessary approach in accordance with the decision of the Court of Appeal in Sowden v. Lodge [2005] 1 WLR 2129.[108]The parties are agreed that the Claimant will need some level of care and support for the rest of his life. The multiplier is agreed at 28.75. The essential question is the level of that support. As to this, the Claimant, relying on the evidence of Ms Clark-Wilson, claims on the basis of a 24-hour-per-day seven-day-a-week care regime, at an annual cost of £96,741. That yields a total claim, on a lump sum basis, of £2,781,130. The Defendant’s case, based on the report of Mr Blackshaw, is that it is necessary to distinguish between two separate periods. For the next two years Mr Blackshaw recommends support at a level of seven hours per weekday and five hours per day at weekends, together with the cost of a residential support worker for holiday periods only. Taken with certain ancillary costs, this yields an annual figure of £25,259. For the remainder of the Claimant’s life, Mr Blackshaw provides for support at 21 hours per week, with, again, a residential support worker for two weeks per year to allow for holidays. This, with the ancillary costs, gives an annual figure of £14,816.40. The total amount in relation to both periods is £446,335.[109]The starting-point must be to determine what level of care I believe that the Claimant needs at present. I have already decided some of the issues relevant to this question. Specifically, as found at paras. 69-77 above, I do not believe that the Claimant needs 24-hour care in order to guard against the risk of serious injury to himself or others; nor do I believe that he needs regular night sleepers. I also believe, as discussed at paras. 49-56, that the experience of the last two years has been inadequate to establish whether the Claimant is capable of achieving a real improvement in his functioning and behaviour over what is so far apparent; and that it would be in the Claimant’s interest for a rehabilitative regime to continue. I therefore believe that it is reasonable, for a further substantial period, to provide for the Claimant an intensive level of support which will maximise the chance of achieving such an improvement. I am prepared to proceed on the basis of Mr Lamb’s original estimate in 2006 that 84 hours a week is appropriate; nor do I see any reason to distinguish between week-days and week-ends. I obviously hope, though I cannot prescribe, that the calibre and/or the supervision and training of the support workers, together with the input from a neuropsychologist, will be such that the Claimant achieves a greater benefit than has so far been achieved. It does not follow that the actual hours worked should be precisely the same as those originally envisaged by Mr Lamb. As I have already acknowledged, there may well be a strong case for him being accompanied at night when he goes out. There may also be a strong case for seven-day-a-week support. But in both cases that can be accommodated by some adjustment in the hours of support accorded during week-day daytimes. (Mr Lamb’s fourteen hours per day, which excluded Sundays, would on a seven-day basis become twelve hours per day.) In my view the reasonable term for such support is one of three years from the date of trial.[110]It cannot of course be known what degree of improvement in the Claimant’s independence and behaviour a reinvigorated regime will in fact achieve, if indeed it is introduced, though I have found on the balance of probabilities that it will achieve some. But, whether there is any improvement or not, I do not believe that it is likely to be necessary or reasonable for such an intense level of support to continue at the end of the three-year period that I envisage. Whatever the outcome, I do not believe that he will need or will realistically benefit from support at the current level on a long-term basis. That level of support is, as I have held, justifiable only for rehabilitative purposes, and what rehabilitation is possible should have been achieved by the end of the period. The criterion thereafter will be what is necessary in order to enable him to function as well as possible having regard to his disabilities as they are likely to be at the end of the period of three years. The level of care necessary for that purpose may vary at different stages of his life: the situation is not comparable to that of a claimant who has suffered catastrophic brain damage such that he needs constant care. However, it is impossible to predict the kinds of fluctuation that may occur. My best judgment is that the Claimant will need at least six hours care per day (i.e. 42 hours per week); but that is a minimum level, and it may be that a higher level of care will be needed for substantial periods of his life. The length of those periods, when they will occur and the amount of extra hours that may be required is wholly unpredictable; but in my view the mid-point of all the possibilities could best be expressed by allowing a 50% uplift on the minimum level, so as – subject to the points discussed below – to award damages on the basis of a care requirement of nine hours per day (63 hours per week). I note that that allowance is in fact in line with the original assessment of Mr Clark-Wilson: it is only the subsequent increase in her figures that I have been unable to accept. It is considerably more generous than the assessment of Mr Blackshaw; but I am bound to say that I did not feel that his evidence was adequately based on the medical evidence as to the Claimant’s condition or indeed on any relevant personal experience in managing cases of this character.[111]However, there is a further complicating factor. It seems to me that, quite apart from the fluctuations to which I have referred above, there are particular factors in this case, going beyond the normal uncertainties and vicissitudes of life, which may impact on the Claimant’s need for care. Specifically: - There is a real possibility that, at least for some periods, he will refuse to accept support at the level recommended or indeed at all. I have referred above to the evidence that he has on several occasions expressed a wish to dispense with paid support workers and has said that he will do so once the present proceedings are over. The risk of his trying to do so may be particularly high if, through choice or necessity, support workers have to be introduced from outside the circle with whom he feels comfortable. The evidence is clear that he will in fact be unable to manage without a substantial level of support; and in my judgment it is unlikely that he will be willing or able to carry out his threat in full or for long periods. But I do regard it as entirely possible that he will make sufficient difficulties that some kind of compromise will have to be put in place under which he has less support than his deputy or his case manager believe appropriate. A variation on this scenario would occur if he formed a stable relationship with a girlfriend and if they started to live together: they would be very unlikely to need or want the presence of paid carers for many hours a day. The experience of the Claimant’s relationship with Ms Plunkett shows that it is not very likely that he will form such a relationship, but the possibility cannot be ruled out. - He may commit a criminal offence sufficiently serious that he is sent to prison. I do not think that this is very likely. I have already expressed my view that the risk of the Claimant committing serious violence is smaller than Mr Wilby suggested; and in a borderline case I am sure that the court would take his condition into account. But the risk is not wholly negligible. - He may be committed under the Mental Health Act. I have reviewed the evidence about this above. The risk seems to me to be small but, again, not negligible. Although each of these risks individually – particularly the latter two - may not be very great, in my judgment when viewed cumulatively they represent a significant chance that the Claimant will not in fact receive paid care at the level prima facie established above. That chance cannot fairly be ignored. In a conventional lump-sum award I would recognise it by reducing the figures of twelve hours and nine hours per day identified at paras. 109-110 above to ten hours and eight hours per day respectively.[112]There is a difference between the experts as to the hourly rates at which care should be costed. Ms Clark-Wilson takes a figure of £10 per hour and Mr Blackshaw £8.50: both suggest an enhanced rate for weekends. Ms Clark-Wilson does not cite any support for her figure, whereas Mr Blackshaw exhibits some published statistics. I was not addressed on this issue, nor were the experts cross-examined. The fact that Mr Blackshaw has done some research inclines me to accept his figure. On the other hand I think it an unrealistic refinement to distinguish between weekday and weekend rates; and I think some recognition is necessary of the fact that good support workers of the kind that the Claimant needs may attract a premium. I think the right figure is £9.50 for all hours worked. It is common ground that costs should be calculated on the basis of a 59-week year.[113]‘Employment costs’ – e.g. recruitment, training, insurance - £3,000 p.a. should also be included in the figure, together with an appropriate figure for employer’s national insurance contribution.[114]The Claimant has made it clear that he seeks a PPO in respect of this head of loss. He has adduced evidence in support of that preference from Mr. Richard Cropper, a well-known expert in this field, which the Defendant does not seek to challenge. I am satisfied by that evidence that it would be in the Claimant’s interests to be compensated under this head by a PPO and that the statutory conditions for making such an order are satisfied. There is no difficulty about awarding a PPO on that basis (i.e. based on ten hours per day) in respect of the initial period of three years that I have identified. But in view of the fact that for the later period I have distinguished between a minimum level of care and a further level which is uncertain, and will fluctuate unpredictably, it seems to me that I ought to make a PPO only for the lower figure of six hours, while the balance of two hours should be compensated by an element of the lump-sum award. This general approach was urged on me by Mr. Walker, if I were contemplating a PPO at all; and I note that it was also adopted – though on the basis of different evidence, producing different figures – by Ramsey J. in Taylor.[115]I will ask the parties to agree an order in appropriate terms as regards the PPO and the arithmetic in respect of the lump sum element. Mr Walker in his oral submissions in closing contended that since in future any care which was the subject of a PPO would be likely to be provided by family and friends the indexation should be by reference to a different ASHE category. I reject that submission. It is in fact unpredictable who will provide such care as is required. I have indicated that it is in the Claimant’s interest that he should have more professional support workers and in my judgment that is likely to happen, at least to a considerable degree. It would be an unjustified refinement to adjust the indexation to reflect the possibility that it may not do so. (2). Case Management[116]Unlike in relation to past loss, this head is not agreed. The Claimant’s figure is £543,735, though his primary case is that this part of his claim also should be the subject of a PPO. The Defendant’s figure is £165,840. I heard further submissions on this aspect following my circulation of this judgment in draft.[117]The Claimant’s figure is arrived at by relying on Ms. Clark-Wilson’s statement that ILS’s current level of charges should form the baseline for the rest of the Claimant’s life. I doubt if that would have been a defensible approach even if I had accepted her evidence that the Claimant needed 24-hour care, but it is certainly not appropriate on the approach to his future care needs which I have adopted above. I am however prepared to take a figure around the current level for the next three years, since I anticipate the continuation of an intensive regime, with, it is to be hoped, the recruitment of a better calibre of support worker and considerable work required to try to ensure that the Claimant co-operates with them. (No claim is made as such for the input of Dr. Maddicks or another neuropsychologist; but I do not regard it as unreasonable to bear the costs of that in mind also under this head.) The annual figure seems at present to be £24,705; but Mr Walker submitted that since Ms Clark-Wilson proposes a drop to £20,289 in the third year it would be wrong for me to award more than that. Since we are dealing with predictions in any event, I think justice will be done if I take the average for all three years, which is £23,233, as the figure for each. For the remainder of the period the case management work required will be less. I regard Mr. Blackshaw’s annual figure of £3,840, based on four hours work per month, plus travel, as unrealistically low given the nature of the problems which the Claimant is likely to continue to pose even if there is some improvement in his condition. Any figure can be no more than a broad estimate. In my view the amount of case management required in the longer term is likely to be about half of the current level. I take a figure of £12,000. I am prepared to include those amounts in the PPO. (3). Aids and Equipment[118]The Claimant claims £11,803 under this head; the Defendant allows £9,145. The difference is as to whether the Claimant needs a “Mangar bath aid” and a gas detector. As regards the former, the Claimant seems to have told Ms. Clark-Wilson that he did not feel able to take baths, at least unless a support worker was present, because of the risk of falling but to have told Mr. Blackshaw that he could “bath and shower without difficulty”. This discrepancy was not pursued in the evidence, but Ms. Clark-Wilson’s version is more specific and circumstantial, and in view also of the evidence of the Claimant’s lameness and occasional difficulties with balance I prefer it. I will accordingly allow this item. As to the latter, this item too seems justified in view of the evidence that the Claimant has on occasion turned on the gas but forgotten to light it. (4). Transport[119]The Claimant claims £14,375 under this head, representing £500 p.a. for the cost of taxis. The Defendant allows nothing. It follows from my finding at para. 94 above that I should allow this claim. (5). Accommodation[120]It appears to be the intention of the Claimant, and of the others who are involved in his decision, that once he has received a final award of damages he will buy somewhere to live. There is no explicit evidence to that effect, but it seems both probable and sensible and I will proceed on that basis. The Claimant suggests that I should allow one more year at the level of loss which I have allowed in respect of his accommodation at Oyster Quay, on the basis that that represents the mid-point of the probabilities as to when he will move. I agree that that too seems sensible. The resulting sum, in accordance with my findings at para. 89 above, is £7,200.[121]There was no specific proposal before me about where the Claimant might move to, though it seems clear that it will be somewhere in the near neighbourhood of Cosham. That being so, the approach in the Schedule of Loss has been to cost “the difference between the cost of the sort of property he could realistically have purchased but for his accident and the cost of the accommodation which is now required”. The former is estimated at £125,000 (on the basis of what the Claimant says that his earning capacity would have been but for the accident), and the latter at £225,000. The Claimant then does a Roberts v. Johnstone calculation in respect of the difference of £100,000, producing a loss of £88,437.[122]The Defendant allows nothing under this head. Mr. Walker makes an equivalent submission to that set out at para. 88 above, namely that since no evidence has been put before me as to the differential costs in question there is no basis on which I can assess any loss. I have a good deal of sympathy with that submission. The Claimant’s approach requires me to take on trust a wholly unsupported assertion about property values in the Portsmouth area, about which unsurprisingly I have no actual knowledge. Though no doubt small in the context of the claim as a whole, the sums claimed for accommodation loss (past and future) are far from negligible, and it would not have been either difficult or expensive for the Claimant to obtain evidence, which need not have been elaborate, from a local estate agent to give me some guidance. Again, however, I do not believe that it would be just for me simply to disallow the claim. The Claimant’s basic approach is sound, and I regard it as legitimate for me to take judicial notice of the kinds of cost differential likely to be found between properties of the kinds hypothesised, though I should err on the side of conservatism.[123]In my judgment the essence of the difference in accommodation need attributable to the Claimant’s condition is that he will require substantially more space to reflect the fact that for large parts of the day he will be having to share the accommodation with a carer. Whether or not that carer will ever actually have to spend the night, the best surrogate for that requirement is to assume an extra bedroom. I agree with Ms. Clark-Wilson that such accommodation will also need to be reasonably close to shops and other facilities, but not too close to features – most obviously a pub - which may get the Claimant into trouble. Other features mentioned such as a walk-in shower are likely to add only marginally to the price. I do not accept that these additional features justify a differential of £100,000. Doing the best I can on the basis indicated above, I would estimate the differential at £50,000. I will ask the parties to agree a Roberts v Johnstone calculation on that basis, to include stamp duty on the difference. The Claimant also sought £1,500 by way of solicitor’s costs. However, I was not persuaded that the conveyancing costs for the more valuable property would be more than those for the property which the Claimant would hypothetically have bought in any event.[124]In his closing submissions Mr Walker contended that the Claimant would be entitled to Housing Benefit and Council Tax relief, for which he was obliged to give credit. He referred to Clenshaw v Tanner [2002] EWCA Civ 1848. That seems to me right in principle; but I was given no figures of any kind, and I do not see how I can be expected to guess the amount of discount falling to be made. (6). Miscellaneous[125]Five items are claimed for under this head, giving a total claim of £147,990. I take them in turn.[126]Membership of gym. This extends into the future the claim for past loss considered at para. 83 above. I consider it unlikely that the Claimant, given his lifestyle and likely level of earnings, would have joined a gym such as the David Lloyd Centre or employed a fitness instructor or personal trainer. I also consider it likely, and beneficial in view of his condition, that he will continue to belong to a gym and use an instructor for some years to come. But that is not certain, and I certainly do not accept that he will do so for the rest of his life. The Claimant recognises the latter point, to a limited extent, by suggesting a reduced multiplier of 25; but in my view that wholly under-estimates the chances that, for a variety of reasons, this expenditure may not be incurred. I will allow a multiplier of 10. That gives a figure of £13,380.[127]Additional heating and electricity costs. This item has now been agreed in the sum of £9,170.[128]Additional cost of telephone calls. The basis for this claim is, again, the allegation that the Claimant makes an abnormally large number of telephone calls. This is quantified at £600 p.a., giving a total claim of £17,250. I accept of course the difficulty of precise quantification, but I have been given no explanation whatever of how this figure was arrived at; and it is likely, if indeed it is not possible now, to obtain landline and/or mobile phone tariffs which allow a very large number of calls for a fixed price. While I accept that there may be a small loss under this head, in the absence of any proof, or any useful information from which I could make an estimate, I am not prepared to pluck a figure from the air.[129]Ironing assistance. £34,500 is claimed under this head. I have already referred to the paucity of evidence on this loss. For the future, I see no reason why the cleaner in respect of whose cost an award is being made (see para. 130 below) should not be expected to do some ironing, and I do not see why the ironing necessary for a single man cannot be done in the time claimed under that head.[130]Cleaning assistance. The Claimant pleads that he will “have to pay external cleaners to help maintain his house” and claims at a rate of £140 per month, giving an overall claim of £48,300. I can find in the evidence no support for the specific figure claimed and I have been given no evidence about rates for cleaners in the Portsmouth area; but assuming a figure of £7 per hour, which seems unlikely to be far wrong, that amounts to 20 hours per month, i.e. between four and five hours per week. I can accept that as a reasonable estimate of the hours of cleaning work (including ironing) which the Claimant (or others with whom he lived) would have been capable of doing but for the accident and which he cannot now do and it would be inappropriate to expect the support workers to do. (7). DIY and Decorating[131]£18,113 is agreed in respect of this item. (8). Holidays[132]It is common ground that when the Claimant goes on holiday he needs to be accompanied by a carer. This will involve additional costs both because the carer will work longer hours than ordinarily and because of the additional fares, insurance, accommodation and assistance attributable to him or her. Ms. Clark-Wilson estimates the cost at £500 per week and Mr. Blackshaw at £400. Ms. Clark-Wilson allows for four weeks and Mr. Blackshaw for two. I regard £500 per week as the more reasonable estimate, for the reasons given by Ms Clark-Wilson in the joint statement; but I do not believe that more than three weeks’ worth of holiday (whether taken as three complete weeks or, say, two weeks and the occasional week-end) represents the amount of holiday that the Claimant would have taken but for the accident. That gives a multiplicand of £1,500. The Defendant submits that a lower than whole-life multiplier is appropriate since it is not realistic to regard the Claimant as having suffered such a loss in regard to the last years of his life. That seems to me correct and I will therefore apply a multiplier of 25.75, giving an overall figure of £38,625. (9). Loss of earnings[133]Both parties proceed on the basis that the Claimant would but for the accident have worked in the construction industry for the rest of his working life. I have found in relation to the claim for past loss that he would by the date of assessment have achieved a position that would produce, if he were earning for a full year, net earnings of £19,345 (being the 2008 equivalent of the 2006 figure referred to at para. 103 above).[134]As to the multiplier, I did not find the parties’ pleadings or submissions particularly clear. However, as I understand the final position, it is common ground that the appropriate prima facie multiplier to age 65, based on table 9 in the Ogden tables, is 24.01, and that I should then apply one of the discounts there set out which attempt to reflect, to a limited extent, claimants’ particular circumstances. Mr. Wilby proposes a discount of 0.89, which would result in a multiplier of 21.36, and Mr. Walker one of 0.82, which would give a multiplier of 19.68. The difference between the two discounts is whether the Claimant was employed or unemployed at the date of assessment. In the Claimant’s case it seems to me artificial to make everything depend on that factor. The kind of work that he was doing was of its nature intermittent, and, though no doubt an eager worker could contrive to be in work most of the time, the evidence was that over the year or two before the accident the Claimant was in and out of work a good deal. It would be wrong if the size of the multiplier depended on the accident of whether he happened to be in or out of the work on the day of the injury (as to which the evidence is in any event not entirely clear). What is needed is an overall, inevitably very broad-brush, discount to reflect all the contingencies (other than those taken into account in the primary table) which might lead to the Claimant not earning at the full rate throughout the full period. In my judgment the Claimant’s pre-accident history, as summarised at para. 6 above, means that the risk was in his case significantly greater than average. For that reason I prefer the greater discount adopted by the Defendant.[135]On that basis I award damages under this head of £380,709.60 (being £19,345 x 19.68). (10). Court of Protection Costs[136]This item is agreed in the sum of £321,003.

Conclusion

[137]I will make an order for a PPO on the basis decided at paras. 114 and 117 above. The balance of the Claimant’s case will be met by a lump sum, the precise amount of which can be calculated by the parties on the basis of this judgment. I should say for the record that to the extent that that sum is based on matters agreed between the parties I approve the resulting amounts under CPR 21.[138]At the hearing on 13 February the Claimant sought permission to appeal. I have considered the draft grounds of appeal submitted by Mr Wilby; but the aspects of my decision which he seeks to challenge are all matters of fact or assessment on which I do not believe that there is a realistic prospect of success on appeal. I refuse permission.

Cited in 2 later judgments