Edwards v Martin [2010] EWHC 570 (QB)

Case No 6SQ94619[2010] EWHC 570 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue MANCHESTER DISTRICT REGISTRY, Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/03/2010
Before
MR JUSTICE DAVID CLARKE
Between
SIMON EDWARDSClaimantSTUART MARTINDefendant
Mr Winston Hunter QC (instructed by Irwin Mitchell LLP) for ClaimantMr Julian Picton (instructed by Beachcrofts LLP) for DefendantHearing Hearing dates: 30 November – 4 December 2009and 17 December 2009
Judgment

Introduction

[1]In June 2003 the Claimant, Simon Edwards, was a 34-year old man in good health and in regular employment as a heavy goods vehicle driver involved in vehicle recovery. He was in a relationship with his partner Julia Grint, with whom he had a daughter Olivia, then aged 7 months. He had an active life with recreations which included not only golf but also water-skiing. He is a native of Alsager, near Stoke-on-Trent, and has always lived there.[2]On 5 June 2003 the Claimant was involved in a road traffic accident and sustained a severe and life-threatening head injury. Though he has made a good physical recovery so that the residual physical disabilities are minor, it is common ground that there was a very severe traumatic brain injury which has resulted in a permanent loss of cognitive functioning and permanent emotional and behavioural problems, properly diagnosed as an organic personality disorder. He is now aged 41.[3]Liability for the accident has been admitted, subject to a deduction of 15% for the risk of a finding of contributory negligence for failure to wear a seat belt, previously approved by the Court. I am therefore concerned with the assessment of damages only. All the figures presented to me in argument, and those contained in this judgment, are figures on full liability, to which the agreed discount will be applied.[4]I have been provided with voluminous documentary material, immaculately presented, and many aspects of the claim remain to be resolved. I have been greatly assisted by extensive written opening and closing submissions from both counsel. I heard evidence over five full days between 30 November and 4 December 2009. The following witnesses gave oral evidence: i) Lay evidence: Mr and Mrs Edwards (parents); Julia Grint (former partner); Helen Raftery (sister), all called on behalf of the Claimant, who did not give oral evidence himself; ii) Case manager : Maria Jones; iii) Consultant neuropsychiatrists: Dr Scheepers (on behalf of Claimant), Dr Jacobson (Defendant); iv) Consultant neuropsychologists: Dr Ghadiali (Claimant); Dr Parker (Defendant); v) As to life expectancy: Mr Patel (actuary, for Claimant); Dr Walker (consultant physician, for Defendant); vi) Care experts: Ms Kirby (Claimant); Ms Turner (Defendant). It was not necessary to hear oral evidence from the consultant neurologists Dr Corston and Dr Boddie, whose joint statement disclosed no significant disagreement. I was also provided with very extensive surveillance material obtained on behalf of the Defendant. I have read the surveillance reports and have viewed parts of the DVD footage, including that obtained in July and August 2009 which was particularly relied on.[5]Closing oral submissions were made on 17 December. These submissions included detailed chronologies of events since the accident, and in the light of some of the important issues it is necessary to include a core chronology in this judgment. Chronology i). 5 June 2003 The accident. ii). 15 June 2003 Claimant discharged from hospital and returns home to the family home, then Lady Farm Bungalow. iii). 1 December 2003 Claimant returns to work with KC Autos. iv). 5 April 2005 Driving licence revoked; Claimant ceases work (and has not worked since). v). October 2005 The family moves to 10 Chestnut Drive, a property bought in the joint names of Claimant and Julia Grint. vi). 20 December 2005 An experienced case manager, Maria Jones, is appointed (jointly instructed by the Claimant’s solicitors and the Defendant’s insurers) to assess the Claimant’s needs and supervise his rehabilitation. vii). 4 August 2006 The Claimant’s sister, Helen Raftery, is appointed (through the Prestige Nursing Agency) as the Claimant’s support worker, the Claimant having objected to the appointment of a stranger to this role. Mrs Raftery starts work on 25 September 2006 on the basis of working 20 hours per week. viii). September 2007 The Claimant’s father is appointed as litigation friend, and a financial Deputy is appointed. ix). October 2007 The Claimant’s name is removed from the deeds to 10 Chestnut Avenue which becomes solely owned by Julia Grint. x). February 2008 Insurers withdraw instructions from Maria Jones as jointly-instructed case manager; she continues in this role on instructions of Claimant’s solicitors only. xi). 12 May 2008 Mrs Raftery’s paid hours are reduced to 10 hours per week. xii). 22 July 2008 Claimant’s driving licence is reinstated following a DVLA driving assessment. xiii). 11 October 2008 Claimant leaves 10 Chestnut Avenue, his relationship with Ms Grint having broken down, and goes to live at his parents’ home. xiv). 16 December 2008 A new support worker, Marina Bruce, is appointed in addition to Helen Raftery, to do 10 hours per week. xv). 19 December 2008 Claimant purchases his new home, 54 College Road. xvi). 16 January 2009 Helen Raftery ceases as support worker and Marina Bruce’s hours are increased to 20 hours per week. xvii). February 2009 Claimant moves in to 54 College Road. xviii). June 2009 Glynis Kenny succeeds Maria Jones as case manager.

The Claimant’s injury and its consequences

[6]The Claimant was admitted to hospital unconscious and suffered prolonged post-traumatic amnesia. He was initially detained in hospital for 12 days, but required readmission on 4 August and suffered a generalised tonic fit two or three days later. (This was an isolated incident suggestive of post-traumatic epilepsy; there has been no repeat). Importantly, MRI scanning revealed significant organic brain damage, in the form of multiple foci of signal loss throughout the cerebral hemispheres. This organic brain damage is permanent and is agreed to be responsible for the cognitive and behavioural impairments and personality disorder which the Claimant has since displayed.[7]It is common ground that the head injury was severe even though it has not resulted in any continuing neurological impairment. The neuropsychiatric effects of the injury are multiple, but there is a significant issue as to how severe they are; my conclusions on their severity will assist in resolving the most important areas of dispute, which are the issues of future care, capacity and residual employability. The effects include memory loss; fatigue, inertia and lack of motivation; irritability and temper; rigid and at times obsessive thinking; total loss of libido; depression and phobic anxiety. It is accepted that the organic brain damage has led to a marked personality change.[8]The best evidence of the Claimant’s day-to-day condition between the date of the accident and October 2008 came from his then partner Ms Grint, who is herself a community psychiatric nurse. Until the appointment of Mrs Raftery as paid support worker, Ms Grint took effective sole charge of the Claimant and cared for him. I am urged to treat her evidence with caution, primarily because of the conflict of interest arising from ongoing financial and contact issues between her and the Claimant, which is said to be an incentive to her to depict the Claimant’s behavioural and personality problems in the worst possible light. I recognise the argument, but I considered that she gave evidence in a measured and reasonably objective way and the substance of her evidence is substantially consistent with the contemporaneous documentary material. I recognise the burden which she had to carry, particularly in the first few months before the Claimant returned to work, whilst herself continuing in her responsible employment and bringing up a young child. I shall return later to the issues arising from the breakdown of her relationship with the Claimant, but I say at once that I do not consider her attitude towards his contact with Olivia to have been at any time unreasonable. (My acceptance of her evidence does not, needless to say, include her assertion that she had to provide 24-hour care in the early stages of the Claimant’s recovery, but I have no difficulty in accepting that she had to be “there for him” at all times. I received an email from her after the hearing, adding emphasis to the evidence she had given, but the valuation of past care had by then been agreed between counsel and I have not had regard to it.)[9]It is clear from the contemporaneous material, particularly the periodic key worker reports prepared by Maria Jones, that the relationship between the Claimant and Ms Grint had deteriorated long before the eventual separation in October 2008. I am satisfied (and this was not seriously disputed) that the deterioration and breakdown of the relationship was caused by the Claimant’s organic personality change. By March 2007 Ms Jones was recommending that the Claimant should leave the family home and live separately. Throughout that year the problems worsened, with constant arguments over money and increased difficulties arising from the Claimant’s irritability, forgetfulness and inability to handle money, though this was alleviated when a financial Deputy was appointed to take charge of his finances.[10]In early 2008 Ms Grint had a plan, or at least an idea, to move away with Olivia to live in Kent, leaving 10 Chestnut Drive to the Claimant. This prospect, potentially depriving him of regular contact with Olivia, caused him great distress. Ms Jones made efforts to engage a male support worker to supplement the services provided by the Claimant’s sister, but was unable to achieve this.[11]The deteriorating relationship continued throughout most of 2008. The Claimant had slept in a separate bedroom from February. On 11 October 2008 Ms Grint required him to leave the house for good. A factor in the eventual breakdown was a dispute over the circumstances in which his name had been removed from the deeds of the house, a point to which I shall return when considering the Claimant’s capacity to handle his affairs.[12]The Claimant then lived with his parents for nearly four months. The parents’ evidence, taken as a whole, provides a valuable snapshot of his condition during this period. Mr Keith Edwards’s statement dated 18 October 2008, prepared within days of the Claimant’s arrival in the household, contained an optimistic picture of his improving condition and increasing independence, but within a short time Mr Edwards became aware of the true picture, setting it out in his next statement dated 12 February 2009. It was clearly a difficult period for both parents and son. The Claimant was emotionless, selfish and irritable, did nothing to help in the house, was repeatedly angry and argumentative and became readily agitated if his routines were interfered with. He showed rigid thinking, being obsessive about one thing at a time. Although he had been obsessively anxious to regain his driving licence, this having been encouraged and facilitated by the case manager and support worker, he had no continuing interest in driving and now became obsessed with preparing his new house but acting quite inappropriately in relation to it.[13]Mr and Mrs Edwards recognised that they had their son living with them at a particularly bad time, his relationship with Ms Grint having just ended in some acrimony, with issues over his contact with Olivia and with this litigation unresolved. I found their evidence balanced, valuable and reliable, as was that of Mrs Raftery.[14]I am satisfied that the Claimant has made significant improvement since he has been living in his new house. The arrival of a more professional support worker has contributed to this improvement, though it remains the Defendant’s case that the Claimant’s rehabilitation is not being advanced sufficiently by goal-setting challenges. A routine of short but frequent access visits by Olivia has been established and is working satisfactorily, though an unresolved issue remains as to overnight stays.[15]There is an important issue between the parties as to the Claimant’s reliability in the presentation of his symptoms; it is asserted that he exaggerates them. This assertion is founded primarily on the evidence of Dr Parker, itself based primarily on the neuropsychological tests conducted by her on the Claimant, but also to some degree on the surveillance material which is said to show him engaged in various activities inconsistent with his claimed disability.[16]I am satisfied that there has been no conscious exaggeration on the Claimant’s part. He has shown little or no interest in this litigation at any time. There is specific evidence of his lack of interest in, and carelessness with, his financial affairs; such matters cause him stress, from which it is his instinct to escape. In the early stages he was keen to return to work, and did so much too soon in the opinion of not only Ms Grint but also, significantly, Dr Scheepers. For a long time he lacked insight into the extent of the effects of his injury upon his life and relationships. From the early medical reports it appears that he tended to minimise his problems, or to be unaware of them.[17]Dr Jacobson’s series of reports shows that his view of the Claimant’s reliability altered as he received more information. At the time of his first joint report with Dr Scheepers in December 2007, he drew attention to the surveillance material as undermining the severity of the difficulties described by Ms Grint in particular and expressed the view that the Claimant was unreliable. By 2009 Dr Jacobson’s view had changed. He had not previously been aware of the extent of the relationship difficulties and other problems facing the Claimant at the time of his earlier reports. When he interviewed the Claimant and reviewed the case at length in April 2009 he did not consider there was conscious exaggeration by him, but concluded that Ms Grint’s descriptions of the difficulties had been overstated in the context of the breakdown of the relationship. He considered the Claimant’s own account of his difficulties was genuine. Though the later 2009 surveillance evidence, reviewed on 22 September, gave Dr Jacobson a fuller picture of the Claimant’s activities, he did not resile from his view that the Claimant himself is genuine, and he confirmed this in oral evidence before me.[18]As to the surveillance material itself, I accept the submission of Mr Hunter that it does nothing to undermine the main thrust of the Claimant’s case that the neuropsychiatric outcome of his head injury has been severe. It does show him carrying out some normal activities away from his home, including shopping in local shops and playing golf, with no evident impairment. It demonstrates that he can perform these activities without needing carer support or supervision. Golf had been one of his pre-accident activities, and a number of his golfing friends have maintained their friendship with him. On the question of golf, the Defendant has also attached some importance to the fact that the Claimant was able to take a golfing break in Ireland with this group of friends, but he played no real part in the arrangements for this trip. There are repeated references in the case manager’s reports to the importance of maintaining his social contacts and the goal of achieving social integration, and golf has played its part in the efforts made to achieve this goal.[19]Particular attention has been drawn to the surveillance footage of 18 August showing the Claimant walking to the nearby park with three children, playing football and supervising the children on the swings. He is seen doing these things in a relaxed and entirely normal manner. In fact the children were Olivia and her two cousins, the children of Mrs Raftery. The Claimant and Olivia knew them well. Mrs Raftery, who had been his support worker and had done much to rehabilitate him under the case manager’s supervision, including the setting of goals and maintaining his family relationships, trusted him to be in charge of her children for limited periods. She told me that she would not trust him to drive her children, nor did she think him fit to have charge of Olivia overnight. It is to her credit, and indeed to that of Ms Grint, that the Claimant and Olivia are able to maintain contact with the Raftery children in this way. This tells me nothing about the Claimant’s general condition, apart from confirming that daily care and close support are not required.[20]As to Dr Parker’s reliance on the effort testing within the psychometric tests, I have considered her evidence alongside that of Dr Ghadiali, reminding myself that she stands alone in expressing the view that the Claimant consciously exaggerates his disability and does so on the strength of the psychometric tests alone.[21]Dr Parker’s evidence is that there is no genuine neuropsychological reason which can explain the Claimant’s performance on some of the tests which were applied by her and others. The sequence of tests and a summary of their outcomes are helpfully tabulated in Mr Picton’s written submissions. In particular, on a number of occasions the Claimant performed more poorly on tests of recognition memory than on tests of free recall, an abnormal finding in a case of genuine disability in this area. On two occasions, on a measure of visual memory, he performed at “below chance” levels, which (to Dr Parker) indicates knowledge of the correct response in order to answer incorrectly. She also draws attention to elements of the tests in which the Claimant’s performance deteriorated between one occasion of testing and the next, when there could be no organic reason for such a decline.[22]Dr Ghadiali was challenged at length in a sustained cross-examination based on Dr Parker’s views. He did not accept that a finding of deliberate exaggeration can be justified on the strength of psychometric testing alone. He stressed the importance of taking into account the lay evidence and other professionals’ evidence as to the nature and extent of the disability. There can be other explanations for inconsistencies in the results of psychometric tests. Whilst deliberate underperformance may be an explanation for some of the test results, he would rule it out in this case; the Claimant did not underperform in all the tests, and it would be highly unlikely that a person who is deliberately exaggerating would perform normally in tests of verbal memory as he did. He cooperated fully on all the other tests which were applied, not knowing what they were designed to measure, and in Dr Ghadiali’s view the idea that he was deliberately underperforming is implausible. Some of the inconsistencies arose from episodes of depression which the Claimant was suffering at the time of the tests, a factor to which I do not think Dr Parker gave any weight. I accept the substance of Dr Ghadiali’s evidence.[23]In reaching this conclusion, that this is not a case of deliberate exaggeration to maximise his claim, I am fortified by the consistency of the contemporaneous accounts of the Claimant’s functioning, contained in the reports of the case manager and of Dr Stewart. Furthermore, the Claimant has shown, and in my view has, little interest in the progress of this litigation, and was much relieved when the responsibility for it was removed from him.[24]In the light of these general conclusions I turn to the individual heads of damage which I have to determine.

Pain, suffering and loss of amenity

[25]Counsel helpfully addressed me by reference to the current edition of the Judicial Studies Board’s guidelines. The case does not fall within the upper categories of “very severe” or “moderately severe” brain injury, as described in the guideline. It clearly falls within the “moderate brain damage” category where the degree of dependence on others is markedly lower than in the upper categories. I do not accept that it falls within the upper level in this category. There is personality change but no more than modest intellectual deficit. But the personality change is sufficiently severe and multi-faceted that an award towards the upper range of the second level is appropriate.[26]Before assessing damages I must consider whether a provisional damages award is appropriate, leaving aside the remaining risk of epilepsy, having regard to the neurologists’ agreed evidence on this topic. Their joint view is that this risk remains elevated above that of the normal population for the first ten years after the accident. Dr Corston gave some details in his report of 8 November 2004, with which Dr Boddie now agrees; the risk was 8% until four years after the accident and then dropped to 6%, remaining at this level until the ninth year then dropping within the tenth year to that of the general population, namely 0.5%. It is not suggested that the occurrence of the tonic fit in August 2003, some two months after the accident, plays any part in enhancing this risk.[27]It seems to me that though this evidence was based on widely accepted statistics, the reality must be that the risk of epilepsy has been progressively reducing over the years. Unlike many cases of serious head injury, there is no ongoing neurological abnormality. The Claimant has not been troubled by headaches since about a year after his accident. Mr Hunter was of course obliged to remind me of the requirement to consider the issue of provisional damages, but did not press me to take this course when so much of the at-risk period has already passed. I take note of the JSB guideline which expressly contemplates cases in which, despite there being some risk of epilepsy, a provisional damages order will not necessarily be made.[28]In the light of these considerations I do not make a provisional damages award but will assess general damages on the basis that the residual small risk of epilepsy is taken into consideration. The figure is £90,000. SPECIAL DAMAGES Loss of earnings to date

SPECIAL DAMAGES

[29]The Claimant has not worked since April 2005. Though the Defendant has voiced some criticism of the failure of the case manager to get him back into some form of employment as his condition has stabilised, it is not argued that any deduction should be made for residual employability to date. The only issue between the parties arises from the dearth of up-to-date information about the pay rises which he would have received in 2008 and 2009. It has, surprisingly, not been possible to obtain such information from the Claimant’s former employers KC Autos. The difference between the parties is some £2,000, though I recognise that the point has greater significance in relation to the figure for future loss of earnings.[30]I am satisfied that against the background of annual increases having been awarded to the Claimant’s comparators throughout the years since the accident, it is proper to infer that moderate rises would have continued. Accordingly I accept the Claimant’s figure of £138,283.82.

Past miscellaneous expenses

[31]A modest sum is claimed, and the parties have compromised it at £750.

Past gratuitous care

[32]With the assistance of their respective care experts the parties have very helpfully agreed the notional value of this element, on the basis that the care was provided commercially, at £50,000. To this figure a discount must be applied, pursuant to Housecroft v Burnett and other cases, to remove the commercial profit element from this figure. After some discussion the parties agreed that 25% is appropriate. Accordingly the net figure here is £37,500.

Past care and case management

[33]The sum claimed under this head is £67,258.72, representing the sums actually expended on the care and case management services performed by Maria Jones (since she ceased to be jointly instructed), Helen Raftery, Marina Bruce and now Glynis Kenny. The Defendant’s position is that the amount of care and support worker input has been excessive and unnecessary; thus the sum claimed was challenged on the basis of the Claimant’s failure to mitigate his loss. Having heard the evidence, the Defendant does not now pursue that argument, recognising that the care has been provided and the money expended in reliance on expert advice (however wrong). This was sensible and realistic, and I therefore adopt the full figure claimed.

Court of Protection

[34]The sum claimed here is £28,956.48, being agreed as the amount actually incurred to 4 December 2009 arising from the proceedings before the Court of Protection and the appointment of the Financial Deputy. This claim is challenged on the basis that the Claimant did not in fact lack capacity within the meaning of the Mental Capacity Act 2005 and that the appointment was therefore not necessary and the expense improperly incurred. Alternatively, it is argued that even if a litigation friend was necessary, a financial deputy was not; the question of capacity is a borderline one in this case and the appointment of a financial deputy was not necessary.[35]Mr Hunter submits that even if, on my findings, the Claimant does not lack capacity, the sums were properly spent on expert advice and with the imprimatur of the Court of Protection, and are recoverable in any event. I do not need to deal specifically with this issue because of my conclusion on the issue of capacity with which I shall deal separately. At this stage it is sufficient to say that I am satisfied that the sum claimed was properly incurred and is recoverable.

Accommodation

[36]The claim here is £33,186.69, which is unchallenged (subject to the argument that a deduction should be made for the risk that the Claimant’s relationship with Ms Grint would have foundered by now) as the appropriate figure as a Roberts v Johnstone calculation of the expenses incurred in the purchase and furnishing of the Claimant’s property 54 College Road. Two issues arise here, one of law and one of factual causation.[37]On the factual point, I have already indicated my acceptance that the breakdown of the relationship between the Claimant and Ms Grint was directly caused by the consequences of the Claimant’s injuries sustained in the accident. I did not understand any of the experts called by the Defendant to suggest otherwise. I am further satisfied, principally because of the clear evidence of the devotion of both parents to Olivia, that the relationship would have lasted at least until the present time, so that no deduction falls to be made for any risk that they would no longer be together. It is therefore not necessary for me to deal with Mr Hunter’s further point of principle, that such a deduction against past loss would be improper in any event.[38]Mr Picton asks me to distinguish this case from those in which the need for new accommodation arises from the Claimant’s physical disabilities, so that (for example) special equipment and/or a bungalow are required. The Claimant has no such disabilities and needs no such special accommodation or equipment arising from his injuries. Since the award to be made arises from the need for such assistance in daily living, no award should be made in the absence of such need. The Claimant’s separation from his partner, and his consequent need to obtain alternative accommodation for himself, are not reasonably foreseeable consequences of the Defendant’s tort. No direct authority was cited to me in support of this proposition.[39]Mr Hunter’s response is that it is entirely foreseeable that injuries of this sort may put such a strain on an existing relationship as to cause it to break down so that the parties have no alternative to living apart. This situation arose directly from the organic personality disorder and consequent behavioural difficulties. It is not necessary for the tortfeasor to foresee the precise manner in which loss will be sustained.[40]Mr Hunter relies on the decision of Owen J in Crookdake v Drury [2003] EWCA Civ 1938. In that case the Claimant, a married man with a wife and family, sustained a head injury causing consequences which were much more serious than in the present case, so that he required constant care. At the time of the trial he was in residential accommodation with 24-hour care, but it became common ground that this was unsuitable for his particular needs. Nor was it practicable for him to return to live with his wife and family. Accordingly the claim included the cost of purchase, furnishing and running of a new home for him with 24-hour care. The accommodation claim was calculated on Roberts v Johnston principles; the care element was mathematically agreed, subject to the argument of principle. There was no requirement for special equipment or adaptation, though I notice that the Claimant did suffer from some unsteadiness on his feet because of disturbance of visual perception and it may be that this problem led his advisers to contemplate a bungalow rather than a house with stairs.[41]The primary issue in that case arose from the Defendant’s argument, advanced by Mr Hunter QC, in relation to the statutory obligations of the local authority for the accommodation of disabled people living within its area. That issue does not arise here. He submits, however, that this case is an example of recovery of the cost of a second property, additional to that occupied by the Claimant’s wife and family, for foreseeable reasons directly consequent on the injuries sustained in the accident.[42]Mr Picton submits that Crookdake provides no support to the Claimant in the present case. He argues that the need for that second property arises directly from the nature of the Claimant’s injuries and his consequent need for 24-hour care; thus the case was on all fours with the Housecroft principle because the head injury made it necessary that he be accommodated in a particular way. On the other hand, in the present case the need for an additional property arose from the breakdown of the relationship, making it too remote.[43]I consider this takes too narrow a view. In each case, the psychiatric effects of the Claimant’s head injury have made it impracticable for him to continue to live with his family. Such a situation was reasonably foreseeable as a consequence of an injury such as this. The sum claimed is recoverable.

Costs of Family Court proceedings

[44]The Claimant includes a claim for £5,700 in respect of the disputed proceedings relating to his contact with Olivia. This claim is challenged as being even more remote than the accommodation claim, but in my judgment it likewise arose as a foreseeable consequence of the breakdown of the relationship. Mr Picton argues that the proceedings, or at least the contested element of them, have been occasioned by Ms Grint’s unreasonableness, which the Defendant should not be required to underwrite. That might have been a tenable argument, as a break in the chain of causation, had I taken such a view of Ms Grint; but I do not. The Claimant has sought to pursue a claim for staying in contact. The fact that he pursues it is itself a manifestation of his rigid thinking and lack of insight into his condition, both arising from the condition itself. Ms Grint resists it, on what I consider to be entirely reasonable grounds at Olivia’s present age. In my judgment this sum is recoverable; it is not argued that there should be any element of future loss in this respect. FUTURE LOSSES Future loss of earnings

FUTURE LOSSES

[45]The claim is advanced on the footing that the Claimant will never be able to return to remunerative employment. His employability, at best, will be limited to sheltered therapeutic employment producing little if any net income. The claim, as now presented, is based on an annual net multiplicand of £23,646.90 and a working life multiplier of 16.6. This would produce a total loss of £392,538.58, but the claim is reduced by £25,000 to make small allowance for residual therapeutic part-time employment at a rate of £5,000 p.a. with a 5-year multiplier.[46]As to the multiplicand, the only issue arises from the dispute over pay rises in 2008 and 2009 which I have considered earlier. I adopt the Claimant’s figure.[47]The Claimant’s multiplier is based on a notional working life to the age of 67½. The Defendant argues for a multiplier of 15.37, based on working to 65. The Claimant argues that the courts are moving away from the assumption that retirement at 65 is the norm, in keeping with the Government White Paper on the age of future state pension entitlement. I am aware, however, that in many occupations it remains common to take earlier retirement. I am not prepared to go so far as to assume a working life to 67½, and propose to adopt a working life multiplier of 16, which would produce a total loss figure of £378,350.[48]The real issue is as to the Claimant’s future employability. The issue narrowed somewhat in the course of the hearing. It is no longer disputed that the Claimant is to be regarded as a disabled person for the purposes of disability discrimination legislation. Furthermore, the evidence called by the Defendant would not support an argument that the Claimant is or will ever be fit for remunerative employment on a full-time basis; only part-time work is contended for.[49]It is submitted on behalf of the Defendant that the preponderance of expert evidence strongly favours the view that the Claimant will be able to undertake remunerative part-time work in the future. His general condition and well-being have improved since he moved into his own home. The assessments of his close family members as to his ability to work are unduly pessimistic. With professional encouragement and the setting of realistic goals, he will be fit for part-time work. The Defendant argues for a residual net earning capacity in the region of £10,000 per annum.[50]A number of specific suggestions are made. With the Claimant’s re-acquired driving qualification he could drive a van on local deliveries, something which at one stage he expressed an interest in doing. He had worked in the family butchery business and retained an interest in work in that field. He would be the more able to undertake such work once his present particular causes of stress were resolved, namely the present litigation and the ongoing issues. I was not, however, provided with any evidence as to the availability of suitable work, whether full- or part-time, within realistic reach of the Alsager area.[51]The Defendant places strong reliance on the Claimant’s return to work 6 months after the accident and his ability to maintain that employment for some 16 months. This was mainly part-time and included no overtime or extra duties of the sort he had undertaken previously. It included some driving of HGVs and recovery of vehicles, but this gave rise to difficulties so that he was thereafter restricted to the depot to which he was unsuited. Eventually he lost his job after the revocation of his driving licence. The family evidence and the contemporaneous medical records show that his return to work was premature and ill-advised and may have done more harm than good. Both he and his employers were unaware of the extent of his difficulties when he returned to work, and I think it is clear that he lasted as long as 16 months only because his understanding employers persisted with him despite the problems of which they quickly became aware.[52]I am satisfied that the Claimant will never be fit to return to a driving job. His 2008 driving assessment shows that he is road-aware and capable of the physical task of driving under direct supervision, but his personality disorder, rigid thinking and susceptibility to stress in difficult situations would in my view disable him from such employment.[53]On the other hand, on the evidence as a whole I do not consider the Claimant will remain unfit for all remunerative employment for the rest of his normal working lifetime. He has shown that regularity and routine are important to him. The routine of a regular part-time job, albeit a relatively stress-free one such as labouring or cleaning, would be of benefit to his rehabilitation as well as producing income. His status as a disabled person, now acknowledged by the Defendant, will not be a hindrance to obtaining such employment in the future. His rehabilitation has come a long way, with the input of an experienced case manager. The case manager input will continue. He will continue to require substantial motivation and will not be left alone to find himself such employment. I found the evidence of Dr Jacobson on this issue realistic and convincing, and I accept it.[54]I recognise the paucity of evidence of available remunerative employment. There is scant evidence even as to therapeutic employment which might be available for him. Ms Turner, the care expert called by the Defendant, suggested employment opportunities through Remploy and Rehab UK, but it did not appear that any enquiries had been made into these possibilities, let alone any assessments of their suitability for the Claimant’s particular problems. Dr Ghadiali was questioned about Remploy and Rehab UK and expressed reservations about them in the context of this case. Ms Turner accepted, furthermore, that substantial further rehabilitation and continuing support would be needed for assessment and placement into such employment, the cost of which she estimated at £3,000-4,000. This passage of evidence led me to conclude that the prospects for early re-employment in any form are remote.[55]On the other hand, once the litigation is concluded, and with focused professional support of high quality (albeit at a reduced number of hours), I cannot regard the Claimant as permanently unemployable. The defects in his cognitive abilities, executive functioning and memory are considered mild. The behavioural and personality problems are more severe but not such as to rule out future part-time routine work. This accords with the views of Dr Ghadiali, whose evidence I have substantially accepted on other issues.[56]In his second joint report with Dr Parker, Dr Ghadiali said this:
“In Dr Ghadiali’s opinion Mr Edwards will probably be capable of employment although this is likely to be at a simple routine level on a part time basis where there is no responsibility, in a sympathetic environment. In reality, he is likely to have difficulties in maintaining employment over lengthy periods of time. His employment history is likely to be characterised by short periods of part time, simple work at a low level punctuated by periods of inactivity and unemployment. He will have difficulties in finding and maintaining employment in the absence of support from a case manager. He will require a period of vocational rehabilitation”
[57]Dr Ghadiali adhered to this view in his oral evidence, whilst emphasising that the Claimant will need lifelong vocational support for maintaining employments and finding new ones when necessary. Doing the best I can, I conclude that the Claimant will have an earning capacity of some £8-10,000 p.a. net for a significant proportion of his normal working lifetime.[58]It is inevitable that setbacks will occur and that there will be substantial employment breaks and difficulties in finding new jobs within his capability. Furthermore, the older he becomes the more difficult it will be to keep him in even routine part-time work. These contingencies are to be reflected in the reduced multiplier to be applied to the residual earning capacity which I have assessed, that multiplier to be calculated in accordance with the Sixth Edition of the Ogden Tables. Counsel, to whom I am particularly grateful for their assistance in this part of the exercise, have been able to agree that the proper multiplier is 3.68, to be applied to a multiplicand of £9,000. Accordingly the proper deduction for residual earning capacity is £33,120, which I deduct from the base figure of £378,350, resulting in a net future loss of earnings figure of £345,230.

Future care and case management

[59]On this topic also, the issues narrowed to some extent in the course of the hearing, but a wide gulf remains. The claim is advanced on the footing that the Claimant has a lifelong need for a carer or support worker and for a case manager. Primarily on the evidence of Dr Scheepers and Ms Kirby, he argues for 20 hours per week of support worker input for life, and for 100 hours for the first year of case manager input, reducing to 80 hours thereafter. The Defendant argues that this is excessive and unnecessary, and would lead to the Claimant’s continuing dependency on others when he can and should do much more for himself. The pre-existing regime has been sub-optimal in a number of ways, particularly in that it has failed to promote the Claimant’s rehabilitation by the setting of challenging goals and by proper follow-up. It is recognised by the Defendant that, on the evidence, the Claimant will have setbacks and relapses when he will need support and assistance, but these can be covered by a lump sum contingency figure rather than a sum calculated on a full multiplier basis. On the evidence of Ms Turner, the Defendant contends that weekly support worker costs should be limited to a date 6 months after trial, at 10 hours per week, and that a case manager will also no longer be necessary.[60]In their second joint statement dated 13 July 2009 , Dr Scheepers and Dr Jacobson said this:
“The Experts accept that they are approaching the matter from different philosophical standpoints. In Dr Scheepers’ opinion the purpose of care and support is to prevent deterioration and to maintain quality of life. In Dr Jacobson’s opinion the necessary and appropriate level of treatment and support is principally determined by current needs and should be increased if and when problems arise and decreased as independence improves.”
[61]This is of course not a case in which the Claimant has nursing needs as in the case of those with serious physical disabilities, just as he does not need special aids or single storey accommodation. For this reason, the term “support worker” rather than “carer” was used throughout the hearing. The support worker’s real role is, and should be, that of an enabler. The Claimant’s problems and limitations arise from his psychiatric and psychological disability. I am satisfied that without significant help and support he would have, to use the words of Dr Scheepers, a severely impoverished quality of life. Furthermore, the regular support which he has received has enabled him to make the improvements which all the experts recognise. Mrs Raftery, as the Claimant’s sister and a person without prior training or experience as a support worker for head-injury patients, understandably had her limitations, but she filled a gap which could not otherwise be filled and did so to the best of her ability. I was also impressed by Ms Maria Jones, on whose contemporaneous reports I have placed substantial weight in arriving at my general conclusions. But it is also clear, and became effectively common ground, that it is not the quantity but the quality of the support which is crucial to his quality of life and optimal functioning.[62]In response to the submission that the Claimant has not been set sufficiently challenging goals and that there has not been adequate monitoring and follow-up, Mr Hunter has prepared a detailed analysis of the relevant entries in the records and reports of the case manager and treating neuropsychologist. I am satisfied that, within the limitations arising from the Claimant’s condition and from having his untrained sister as his support worker, this aspect of his rehabilitation was properly tackled and that these criticisms are unfounded.[63]The principle which I must apply is to endeavour to place the Claimant, as far as reasonably possible, into the position he would have been in but for the injuries he sustained as a result of the tort. I interpret the word “need” in this wider context rather than in the narrower context which might justify the withdrawal of regular weekly support and case manager input. Just as I am satisfied that the Claimant would be unable to manage his financial affairs, I am satisfied that to maintain a reasonable quality of life he needs regular professional support.[64]Mr Picton draws attention to the different views expressed at different times by Ms Kirby as to the number of weekly hours of support worker input which the Claimant requires. In particular, the increase in her estimate from 10 to 20 hours per week is nowhere clearly explained. In the light of all the material before me and the evidence of the neuropsychiatrists and care experts in particular, and in the light of the improvements which the Claimant has made and the further improvement to be expected as some of the present stresses on him recede, I consider that long term paid support at 10 hours per week and case management at 80 hours per annum represents a proper level of compensation and does not risk exceeding what is justifiable to supply his proper need. It must be remembered that the Claimant will continue to receive periodic assessment and treatment by the treating neuropsychologist Dr Stewart, whose reports have also been of great assistance, and to be periodically reviewed by a neuropsychiatrist. I will, however, award, for the first year from the date of this judgment, paid support at 20 hours per week and case management at 100 hours for the year.[65]I am not deterred from this conclusion by the evidence about the short periods when the Claimant was without a support worker, for example when Marina Bruce was off work sick. He was able to get by, but any prolongation of her absences would have brought about the impoverishment of his life which she is there to prevent. In one of the periods, it is clear that the case manager’s input correspondingly increased.[66]I do not add a separate figure for increased support in the event of future relapses. My assessment of 10 hours per week is intended to encompass this eventuality. The case manager, no doubt taking into account the views of the support worker and the Claimant himself, may well reduce the support hours when the Claimant remains well and settled, increasing them at other times.[67]A subsidiary issue is whether this sum should be calculated on the basis that the support worker continues to be supplied through a nursing agency or by direct employment via the case manager. I accept Ms Kirby’s evidence that the former method is preferable and reasonable. It provides a wider potential pool of support workers from whom to choose, and may make it is easier to find a suitable man to perform the role.

Multiplier (whole life)

[68]Two discrete points arise here. The first is whether the multiplier should be taken directly from the Ogden tables, or whether it should be reduced in the light of the evidence of Dr Bryan Walker, relied on by the Defendant. The second is whether the Claimant may in the future form a new relationship and acquire a new partner so that the need for paid support will fall away.[69]The neurologists agree that the head injury gives rise to no reduction in the Claimant’s expectation of life. The Defendant’s contention, however, is that because the Claimant is a smoker and because he has some recurring episodes of depressive illness as one of the consequence of his injury, his expectation of life is reduced below that of the general population. Taking the wording of the Introduction to the Ogden Tables, is there “clear evidence to support the view that he is atypical and will enjoy a longer or shorter expectation of life”?[70]Dr Walker, a highly experienced consultant physician, bases his evidence on the methods used by life insurers to assess expectation of life when calculating risk and quoting premiums. This is known as the DEALE methodology. This approach is criticised by the Claimant’s expert on this topic, Mr Patel, a leading actuary. He argues that to use the DEALE methodology, which has been developed for a wholly different purpose from that of assessing damages for personal injury, produces a result which can result in unfairness to a claimant. It would take bad lifestyle risks into account against a claimant whilst not placing any weight on factors which might favour him. The Ogden tables work in personal injury litigation by comparing an injured claimant with the general population, which includes smokers and non-smokers and includes people with and without depressive illnesses.[71]In the present case, the Claimant is not in any way atypical. On the evidence, he was a non-smoker before the accident but has unfortunately developed a smoking habit at some time since then. It is a moderate habit, though sufficient to have a significant effect on a life insurer’s assessment of risk for the purpose of calculating premiums. Likewise, the recurrent depressive episodes do not, on the evidence in this case, give rise of themselves to a significant increased risk to his life.[72]I accept the argument of Mr Hunter, based on the evidence of Mr Patel. It is telling that no authority is relied on by Mr Picton to support Dr Walker’s approach, yet this case is not of an unusual kind. I do not accept the submission that I should accept Dr Walker’s evidence on the ground that this is a medical question, and thus not one for Mr Patel. It seems to me to be essentially a statistical question, one which I should approach on entirely conventional lines.[73]On the second question, I shall make no discount for the possibility of the Claimant forming a future relationship, removing the need for paid support. The evidence shows that he had other relationships before he and Miss Grint came together, as indeed had she. But the effects of his head injury are substantial and lasting. His lack of initiative and drive, his selfishness, moodiness and irritability, all consequent upon his head injury, combine to render it most improbable that he will acquire another partner. Of course, the loss of his libido and his lack of any apparent interest in women are important factors leading me to this conclusion.[74]I therefore adopt the standard multiplier to this element of the claim, namely 25.42 which is the figure appropriate to his age.

Future Accomodation costs and DIY

[75]Before I turn to the figures, a somewhat similar point arises here as to the multiplier to be applied. I have previously accepted that the breakdown of the Claimant’s relationship with Ms Grint was caused by the effects of his head injury, that it would otherwise have lasted at least until now, and that his need for alternative accommodation away from her and Olivia is therefore recoverable. It remains necessary, in the context of future accommodation costs, to consider the evidence as to what would have occurred in the future.[76]Mr Picton relied on various items of evidence to support the view that this was not a relationship which would have lasted. Ms Grint had a number of failed relationships behind her. The Claimant’s relationship with her was not of long standing; it began not long before Olivia was conceived in early 2002, some 18 months before the accident when the Claimant was already 33. His parents had their doubts about her. Mrs Raftery said in her statement that she felt the couple were not getting on well when they moved to Lady Farm Bungalow, where they were living by the time of the accident.[77]Some further light was shed on this in oral evidence, though the questioning was sensitive and the answers somewhat guarded, Ms Grint being present in court. Mrs Edwards explained that though both families were long-standing natives of Alsager, the Grint family were well-known and prominent whilst the Edwards family were quieter, more modest and retiring.[78]I conclude that in the light of these factors there would have been some risk of the relationship not lasting indefinitely. But I do not unduly exaggerate that risk. As at the time of the accident the omens seemed good. On all the evidence the couple were happy together, shared the joy of their young baby and might have had more. If there were some tensions between their respective parents, this is little different from the experience of many couples. I might add, though this is rightly not a point taken by the Defendant, that I attach no significance in this context to the fact that the couple had evidently chosen to remain unmarried.[79]I propose to reduce the multiplier for this element of the claim to 20, to give effect to this conclusion.[80]The total annual costs are claimed at £4,425. This comprises three elements. The first is £2,125, calculated (on a Roberts v Johnstone basis) as the continuing cost of the property itself. The second is £1,500 to represent half the running costs of the separate property, halved because the Claimant would have shared the running costs of his home had the couple remained together. The third is £800 for DIY services.[81]The first of these is disputed in principle, an issue which I have resolved against the Defendant. As to the running costs, the calculation is derived from the Claimant’s monthly budget maintained by his financial deputy and I accept that these, including the “Sky TV” element which was submitted to be excessive, are all proper figures. I believe that the Claimant, with guidance and support from his enabler, will be capable in the future of carrying out some of the simpler home maintenance tasks, which will be helpful to his continued rehabilitation through the achievement of proper goals, and I reduce the DIY element to £500 per annum.

Therapies

[82]To date the Claimant has been treated within the National Health Service at no cost to himself. He receives ongoing treatment from the treating neuropsychologist, Dr Stewart, with periodic reviews by the neuropsychiatrist, Dr El-Nimr. I am satisfied, and have taken this into account in assessing his need for ongoing support, that he will continue indefinitely to require and to receive such specialist treatment and reviews, provided by them or other equivalent specialists.[83]The claim is advanced to cover the prospect that he will not, or may not, continue to receive all that he needs under the NHS. As set out in Mr Hunter’s final submissions, the claim (which had not featured as a discrete item in the Claimant’s initial Schedule and opening submissions) is estimated at £20,000. I found the calculation confusing; having sought clarification, it became clearer that it arises from the likelihood of depressive episodes or other crises and setbacks in his condition which will require treatment over and above that which will be provided under the NHS. Mr Picton rightly reminds me that there is no evidence to support the view that there is any risk of the existing level of NHS treatment being withdrawn, and no clear evidence that NHS would not provide the necessary increased treatment to deal with such crises and setbacks.[84]I was left with the feeling that all those who gave estimates of the number of extra treatment sessions which might be required in the future, were doing little more than plucking figures from the air. I am satisfied that a modest award should be made for this element, but the uncertainties are such that I prefer to be cautious and award £5,000 under this head.

Holidays

[85]This claim is advanced on the basis that the Claimant, who enjoyed holidays at home and abroad before his accident, is entitled to continue to do so at a reasonable level of frequency and comfort. He cannot travel on holiday without a support worker or friend to accompany him, the cost of which is calculated at £800 per week, so that to allow for an annual fortnight’s holiday the claim is £1,600 per annum. The figure of £800 per week, as a pure figure, is not challenged.[86]The Claimant has had a number of recent short holiday breaks without special expenditure. He has travelled to Ireland with friends for a golfing weekend. He has travelled to Lincolnshire by train to stay with relatives. Before his separation from Ms Grint he stayed in her family’s caravan in North Wales, travelling there by train with Olivia. Despite his ability to do these things, I am satisfied that he cannot plan and make such journeys entirely alone, and that this inability arises directly from the consequences of his head injury. The travelling was all arranged for him. On the occasion when he travelled to Wales with Olivia but no accompanying adult, he was taken to the train and met at the other end of his journey. I am satisfied that it is impracticable and would be unwise for him to take, or to attempt to take, a holiday alone in unfamiliar surroundings.[87]He has, however, shown no wish to do so, nor any interest in travelling far from his familiar surroundings in Alsager. This lack of interest is itself a function of his disability. The reality is that he would now only go away on holiday if and when his case manager and support worker made the arrangements and pushed him into it.[88]I have therefore considered whether I should make no award at all under this head, as Mr Picton has urged. I have also considered the judgment of Lloyd Jones J in A v Powys [2007] EWHC 2996, in which he made clear that his substantial award (in a case where the Claimant required three carers to travel with her) was based on a specific finding that she would still take holidays of the same frequency and duration as before.[89]Again I consider, however, that some allowance should be made because taking some holidays and widening his horizons will be a valuable tool in his continued rehabilitation. If, as I anticipate, the arrangements are made for him and a suitable supporter or friend accompanies him, he will not refuse to go. He can properly be said to have, in the wide sense, a need for future holidays, though not necessarily abroad.[90]Doing the best I can, I award £10,000 for this element of the claim.

Capacity and Court of Protection Costs

[91]The Defendant contends that the Claimant does not lack, and has at no stage lacked, capacity within the meaning of the Mental Capacity Act 2005. Thus, the Court of Protection costs associated with the appointment of a Financial Deputy, and the costs of that Deputy, are not recoverable. [As explained in paragraphs [32] and [33], these costs to date are effectively conceded without prejudice to the Defendant’s argument as to the future].[92]The relevant sections of the Act are as follows:
“1. The principles (1) The following principles apply for the purposes of this Act. (2) A person must be assumed to have capacity unless it is established that he lacks capacity. (3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. (5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. (6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. 2. People who lack capacity (1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. (2) It does not matter whether the impairment or disturbance is permanent or temporary. (3) A lack of capacity cannot be established merely by reference to (a) A person’s age or appearance, (b) A condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. (4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities. 3. Inability to make decisions (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable – (a) To understand the information relevant to the decision, (b) To retain that information, (c) To use or weigh that information as part of the process of making the decision, or (d) To communicate his decision (whether by talking, using sign language or any other means). (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of – (a) Deciding one way or another, or (b) Failing to make the decision.”
[93]Reading these sections as a whole, it is clear that there is a strong presumption against a finding of lack of capacity, not only in the presumption itself (s1(2)) but in the wording as a whole. This is apparent, for example, from s 1(4), and particularly s 1(6) which is designed to give protection to an individual from too hasty a finding of incapacity. As regards inability to make decisions, s 3 makes further provisions to this end. The scheme of the Act is to maintain individual freedom and independence wherever possible, yet in the present context it is those acting for the Claimant who argue for the finding of incapacity, for obvious reasons.[94]Mr Picton emphasises the presumption in favour of capacity; the fact that any judgment on the issue must be time-specific and issue-specific; and the views of even the Claimant’s experts who consider this a borderline decision. Mr Hunter, whilst arguing that the Claimant clearly lacks capacity for making decisions in relation to his own financial affairs, particularly for handling a substantial sum of damages intended to provide him with long-term financial security, recognises that the earlier determination by the Court of Protection (based on the advice available at that time) does not determine the issue which now faces me.[95]I am satisfied that the Claimant’s condition renders him unfit to make more than the most simple and low-level decisions about his financial affairs. There is general evidence not only about his carelessness and lack of awareness in handling his small weekly budget before the appointment of a Deputy, but also about the relief from stress which that appointment brought. Even though he has referred to the Deputy as a “she devil”, I have no doubt he needs and will continue to need her services. He was quite unable to keep within a simple budget. His family thought Ms Grint took advantage of him and was getting more than the £35 per week which he was required to pay for Olivia; I make no finding on this, but their concern was genuinely felt.[96]I attach some, but limited, significance to what were called the new bicycle incident and the Sainsburys’ bill incident, one of which indicated profligacy and the other confusion. Nor does the “mowing” incident, documented in the care log, take the matter far, though it does tend to confirm the Claimant’s unawareness of the value of money. I attach much more importance to the circumstances in which he was removed from joint ownership of the property 10 Chestnut Avenue.[97]Mr Picton argues that this episode should not be given undue weight. He submits that it was not necessarily a real disadvantage for the Claimant to be relieved of his share of the property, since he had made no contribution to its purchase and had not necessarily acquired any equitable interest in it. In other words, even if properly advised he might have agreed to it.[98]I reject this argument. Even if (which I doubt) there was no real benefit for the Claimant in his continued joint ownership of the property, what carries weight is the fact that he signed away his interest without either seeking professional advice or mentioning the matter to his parents, sister or support worker. I do not believe he had any idea of the importance of what he did. This is particularly significant because of the timing. The transaction took place within a month after the appointment of the Deputy to take charge of his financial affairs, an event which the Claimant welcomed and which brought him significant relief from stress. Yet the Deputy remained unaware of it until much later, then promptly taking the necessary formal step to protect his interest.[99]It is further argued that even if I make this finding, I should discount from the full amount of future loss on the basis that with further improvement in his level of disability he will no longer lack capacity within the meaning of the Act. I do not accept this. The relevant lack of capacity relates to his ability to handle a substantial sum of money, and to make important decisions in relation to it. I am satisfied on the evidence that this is a permanent state of affairs.[100]I accordingly award the full amount claimed under this head, and am grateful to the relevant experts for working out an agreed annual figure.

Conclusion

[101]Having distributed this judgment in draft, counsel have been able to agree all the outstanding figures in the light of my conclusions. Their calculation is annexed to this judgment. On a full liability basis, inclusive of appropriate interest, the total figure is £1,574,127.80. 85% of this sum is £1,338,008.63, but afurther adjustment will be required to reflect the effect of interim payments received and interest on interim damages and any deductible CRU benefits. This adjustment will be incorporated in the final order to be agreed between the parties following the handing down of this judgment.

Cited in 1 later judgment