AC v Farooq & Anor [2012] EWHC 1484 (QB)

Case No HQ 07 X02346[2012] EWHC 1484 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30th July 2012
Before
MR JUSTICE KING
Between
A C (A protected Party and b y h er Litigation Friend, the Official Solicitor)ClaimantOmar Farooq (1)DefendantsThe Motor Insurers Bureau (2)Defendant
Mr Gerard McDermott QC and Ms Cara Guthrie (instructed by Stewarts Law LLP)) for ClaimantMr William Featherby QC (instructed by Keoghs Solicitors) for Second DefendantHearing Hearing dates: 28 March - 1 April 2011, 19 April 2011, 19 July 2011, 1 June 2012, 30 July 2012
Judgment
[1]The Claimant was born on the 21st November 1963. She is now aged 48. She is a protected party within the meaning of CPR Part 21, that is to say a party who lacks capacity within the meaning of the Mental Capacity Act 2005 to conduct the proceedings. She accordingly sues by her litigation friend, the Official Solicitor. In addition, on the unanimous opinion of the medical experts whose evidence is before this court, she is a protected beneficiary within the meaning of the same Part, that is to say she lacks capacity within the meaning of the 2005 Act to manage and control any money recovered by her in these proceedings. (See for example the joint statement of the neurologists at paragraph 10: “She lacks mental capacity to manage her finances, affairs and litigation within the meaning of the Mental Capacity Act 2005”). Given the issues which have arisen before me, it is worth stating at the outset what is meant by lack of capacity under the 2005 Act. Under section 2 (1) a person lacks capacity in relation to a matter if at the material time they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.[2]By these proceedings the Claimant seeks damages for personal injuries and consequential losses sustained in a road traffic accident on the 8th September 2004 when she was 40. I accept that there is unchallenged evidence from the Claimant’s husband, BC that prior to the accident the Claimant was a vibrant strong willed personality who enjoyed the company of others and working within and outside the home. She was good at ‘multi-tasking’ and was prone to spontaneity of action.[3]Liability has been admitted. Moreover, subject to the approval of the court, the parties have agreed to settle the Claimant’s claim for all heads of past and future loss other than future care and case management, for a lump sum of £1.6m.[4]Accordingly this court in this judgment is concerned only with the assessment of damages for future care and case management. The parties are agreed that the final determination of my award will require further submissions of the parties made in the light of my findings in this judgment. I am proceeding on the basis that this is a case which calls for the award of periodical payments in respect of these heads of loss but that the exact form of any order must await such further submissions. For my part, subject to any further submissions, this is a case where a periodical payments order would be appropriate.[5]The essential issues with which the court has been concerned fall into three categories.[6]The first concern the court’s assessment of the current level of the Claimant’s disability, what as a result are her reasonable support needs, and what level of care and case management is required to meet those reasonable needs. There are the not unusual disputes as to costings, including how to cost any gratuitous care provided by BC.[7]I accept that the correct question to be addressed in this context is “what is required to meet the Claimant’s reasonable needs?” I accept that the Claimant is entitled to damages to meet her reasonable support needs arising from her injury for the rest of her life, and as far as possible to give her the quality of life which she would have had but for the accident. I also accept the proposition that where there are a range of ‘reasonable options’ to meet the Claimant’s needs, the question is not in the first instance whether some other provision is reasonable, but whether the provision chosen or claimed for on behalf of the Claimant is reasonable (see Rialas v Mitchell, The Times 17 July 1984, per Stephenson J at pp 24-6; Sowden v Lodge [2004] EWCA Civ 1370. [2005]1 WLR 2129).[8]The second is whether there is any prospect of improvement in the Claimant’s condition leading to a lessening of those needs and a consequential reduction in the level of care and case management which would otherwise be appropriate.[9]There are then two interlinked discrete issues, whatever the decision of the court, as to what the reasonable needs are and how they should be met as a matter of principle as to(i) whether the Claimant on the balance of probabilities will accept any sort of care package involving professional input and(ii) as to what the continuing role of the Claimant’s husband, BC, is likely to be in the provision of her care.[10]As to (i), the court heard compelling evidence from the current case manager, Angela Kerr, which I entirely accept, as to the control and influence which BC has exerted over the Claimant over several years, frustrating attempts at rehabilitation and the introduction of support workers. BC's own evidence, although denying allegations of deliberate obstruction of these attempts, attested to the conflicting nature of his relationship over the years with the professionals appointed to support his wife. In particular the Deputy, the case manager and the support workers.[11]As to (ii), the recent evidence of BC is that he intends to leave the Claimant, albeit he does not wish a divorce. He has been living with the Claimant for some 25 years. They have a son, CC, born in May 1990, now aged 21. Prior to the accident BC was working as an automation engineer and was, he says, away a lot on business, often in Germany and Ireland. After the accident he gave up work and in the summer of 2008 he married the Claimant. He gave up work to devote his time to looking after the Claimant which he and CC have done, he says, more or less single handed ever since, with the consequential destruction of his own independent personal life. He says that the Claimant has never been left alone in the house, even at night. He describes himself as having become the Claimant’s support worker and carer instead of partner. He says he only married the Claimant ‘out of necessity’ – to provide her with protection as next of kin. ‘I will always love AC’ he said to the court but ‘I‘m not in love with her anymore’. To quote further from his evidence to the court ‘I do not feel I should stay with somebody out of a duty of care’. He now says that he would like to return to work, or start travelling. He spoke of wanting to return to college to learn how to restore classic cars as a hobby. He told Ms Johnson, the Claimant’s care expert, during her visit in January 2010 that he wanted to return to studying or working although according to Ms Johnson, he was talking about not being able to return to his previous employment having lost too much time and having not kept up with developments. In October 2010 he told her that he had been offered a job.[12]Whether he stays or not, BC says he does not want to be the Claimant’s carer any more, he wants to reduce the Claimant’s dependency upon him and to go back to ‘having a life’.[13]Originally the family were living in a detached 2 storey house in Robin Close in a modern housing estate in Stoke on Trent. This property was wholly unsuitable for the Claimant so they found a new 3 storey house in 2009, a rented property, which BC said provides the right physical environment for her, being in a village, Betley, outside the town and convenient for Keele University now attended by CC. This change of accommodation has proved beneficial to the Claimant’s general well being, and in particular her sleep pattern is less disturbed than it was. CC in his evidence spoke of ‘there being a marked improvement all round with Mum, she is happier, sleeping better’ although BC says that she still requires 24 hour care. Notwithstanding the history of difficulties in introducing support workers, BC says he is now ‘all in favour of support workers’ so long as they are introduced at a pace his wife is comfortable with.[14]The credibility of BC's evidence with regard both to his willingness to accept outside support and his intention to leave, which evidence included a disclosure first made in his witness statement of February 2011 that he has been conducting an affair with an unidentified married lady in Cheshire, (unnamed other than by her first name ‘Christine’), is strongly challenged by the Defendant. The evidence of the case manager, Ms Kerr, was that in October 2010 BC told her that he wanted to go back to work and ‘wanted the care situation sorted out’ and at the end of December 2010, that he seemed to Ms Kerr to be at the ‘point of breakdown’ saying that he was not sure what to do for the best, he didn’t know how long he could go on, and ‘commenting that he might leave AC’. The Defendant contends that none of this was a genuine expression of mindset or intention being inconsistent with his previous expressions of commitment to his wife’s care but simply reflects an intent to maximise damages.

The nature and extent of the Claimant’s injury and disability

[15]It is not in dispute that the Claimant suffered a severe traumatic brain injury, (a ‘severe concussive head injury’ to quote Professor Neary). This has resulted in permanent brain damage as evidenced by a very long post traumatic amnesia, her initial deep impairment of conscious level, and the results of her brain imaging. The Claimant initially lost consciousness and did not recover her senses for several weeks. She had a Glasgow coma score of 3, a skull fracture, required ventilation and sustained a brain haemorrhage. The agreed neurological expert opinion (Professor Neary for the Claimant; Dr Schady for the Defendant) is that permanent brain damage is confirmed by the CT brain scan of 11th September 2006 revealing a significant degree of atrophy (shrinkage) of the left frontal and temporal lobes.[16]It is equally not in dispute that such brain damage would be expected to give rise to and has indeed given rise to both physical and mental deficits. The true extent of those deficits, in particular those cognitive, is however very much in issue. Mr Featherby QC, on behalf of the Defendants, invites the court to find that the Claimant has failed to prove that she has suffered more than the very minimal expected physical and cognitive deficits and to assess her reasonable needs and to her award compensation on this minimal basis. To do otherwise he contends would be to embark upon impermissible speculation.

The physical deficit

[17]As to the physical, the Claimant undoubtedly has suffered and continues to suffer a mild weakness of the right side, with a degree of impaired balance and loss of smell (the agreed opinion of the neurologists), although I accept, as urged by Mr Featherby, that in a case where the credibility of the Claimant’s symptoms on presentation to experts is in issue, the Court has to be alive to the distinction between those which are capable of confirmation by objective clinical signs and those which are based upon subjective reporting. Mr Featherby goes as far as to submit that if, as he contends, the Claimant has been wilfully exaggerating her cognitive presentation (as to which see below), it must be likely that she has been similarly exaggerating her physical presentation.[18]In his report of January 2010, based on a contemporaneous examination, Professor Neary listed the following physical deficits found on examination: Cranial Nerves: she had an expressionless face and her speech was slow and quiet. She was unaware of the odour of cloves indicating anosmia; on this occasion there was no evidence of visual inattention. She could produce an effective cough. Motor System: she moved slowly and there was some rigidity (probably related to her medication). There was weakness of the right arm and also an apparent weakness of the left arm and both legs due to lack of voluntary exertion. Reflexes: tendon jerk exaggerated on the right. Sensation: pinprick was reduced in the right arm. Co-ordination: she walked slowly without arm swinging and with a pronounced limp of the right leg.[19]In response to Mr Featherby’s questions about these findings, Professor Neary identified the anosmia, the right sided weakness and the exaggerated tendon jerks as objective clinical signs; others depended upon the accuracy of the reporting (although he also said that the expressionless face was a neurological sign which would be hard to put on convincingly).[20]The court is asked by the Defendant to reject as unlikely that the Claimant’s walking ability and problems in balance are as severe as reported, such that she needed a handrail on the stairs and ‘emergency’ use of wheelchair. In the round the Defendant invites the court to find that the Claimant will be left only with some right sided weakness (i.e. a partial hemiplegia) which will limit her walking speed and distance, though not to the extent that she will require special aids or transport. It is said to be highly unlikely that the Claimant needs assistance on the stairs given that she and BC have chosen to live (to quote Mr Featherby’s closing submission) ‘in a three storey house built upon a pronounced slope’.

The mental deficit

[21]As to mental deficits, the Claimant developed a psychotic reaction which has been brought under control with appropriate medication. It is however the extent of the cognitive and behavioural deficits suffered and continued to be suffered by the Claimant which has been the contentious issue. It is not in dispute that the frontal lobe damage undoubtedly sustained would be expected to give rise to that of which the Claimant has complained over the years since the accident, summarised by Professor Neary as poor powers of attention, concentration, memory, word finding and a “behavioural disturbance corresponding to a dysexecutive syndrome”. He described the expected sequellae would be problems with daily living, making decisions about herself, managing her own affairs and finances.[22]Mr Featherby however contends that by reason of the Claimant’s invalid presentations to the medico-legal experts the court should find that she has proved only that she has minimal cognitive defects, leaving the Claimant able to converse and understand much of what is going on around her.[23]The controversy has arisen because of the inability of the relevant specialists (the neuropsychologists, Dr Neil Brooks for the Claimant, Dr Helen Parker for the Defendants) to measure by neuro-psychological psychometric testing, that which is normally capable of being assessed by such methods, namely the precise magnitude of the neuropsychological deficit. Although there is no pleaded case that the Claimant has consciously fabricated her symptoms and hence to be labelled a “malingerer”, both experts agree there was, during their respective examinations, evidence of “marked symptom exaggeration” and this has rendered the testing impossible. It is put in the joint report in these terms:
‘2. We agree that an injury of the severity suffered by AC is very likely to result in significant cognitive and behavioural difficulties. We note that she had suffered a serious mental health problem (paranoid disorder) after the index accident but defer to psychiatric colleagues here… 3. We agree that full neuropsychological assessment was impossible and that on the assessments which both experts carried out there was evidence of marked symptom exaggeration so much so that neither expert was able to obtain a valid indication of her actual level of neuropsychological functioning’
[24]The extent of the problems encountered by the experts in assessing the degree of impairment is exemplified by the examinations of the Claimant carried out by Dr Brooks, first in September 2006 and then in January 2010, described in his two contemporaneous reports. In his 2006 report at paragraph 9.3 Dr Brooks described a feature of the Claimant’s performance which had greatly concerned him. He had attempted to administer a test of effort (a ‘symptom validity test’) which involved learning word pairs. The Claimant said that she could not read the words so they were read to her. Dr Brooks them attempted to test her memory by “forced choice recognition” in which two words are seen, one of which had been in the original word list and the patient has to identify the one seen before. Dr Brooks continued:
‘AC again said that she could not read the words and that she had no idea which word she had seen before, so I read them to her and asked her simply to guess which word might have been in the original list. A purely random response involving simply guessing would result more or less in 50% success rate. In fact Ms C was correct on only 7 of the 40 items, giving her an 18% success rate. This is not only far below the random level but it is a score that by chance alone has a one in 50,000 chance of appearing’
. This profile being well below the result which the Claimant would have attained had she simply guessed, suggested to Dr Brooks that the Claimant ‘knew the correct answer but had willingly chosen the incorrect answer’ (see report of 2010 at paragraph 9.3).[25]In his 2010 report Dr Brooks, at paragraph 9, commented upon the results of the formal neuropsychological examinations carried out on both occasions each of which had given rise to similar doubts as to their validity. On both occasions when administering what is termed a BNI Neuropsychological Screen which seeks to assess speech and language functions, orientation, attention/concentration, visuo-spatial and visual problem solving and memory, the Claimant delivered an exceptionally low score and on every or virtually every test on which the score was dependent upon cognitive effort, the Claimant scored zero. Further, on the administration of two other symptom validity tests the Claimant’s performance is described as being characterised by a ‘positional basis’ (on the test based on pictures which demands the choosing of one of two pictures presented one above, the Claimant in all but five out of 150 chose the lower item) which according to Dr Brooks ‘is a clearly invalid approach and her performance was far below the threshold which the test designers advise “indicates the possibility of malingering”’.[26]Dr Brooks’ conclusion in his report of January 2010 was that the Claimant was suffering from “malingered neurocognitive dysfunction” (MND) – the intentional exaggeration or fabrication of symptoms for concrete gain, a diagnosis proposed by the paper of Slick et al (1999) which was produced at court. However, later into his evidence, Dr Brooks said he ‘tended to favour’ a finding of factitious disorder – where symptoms are feigned in order to adopt a sick role or to get attention – saying this was his ‘clinical intuition’ although acknowledging the bar on such a diagnosis in the recognised diagnostic manual (DSM) if, as in the present case, there were a possibility of concrete gain. Moreover his evidence was (although he did not suggest this was necessarily this case although it might be) that this type of behaviour could take on a life of its own and the exaggeration of symptoms can become unconscious and can become a psychiatric disorder in its own right.[27]The problem in assessing the true extent of the Claimant’s cognitive and behavioural disability, can be further seen from i) Dr Brooks’ reaction to the Bucknall Hospital records of the Claimant’s consultations with her treating neuropsychiatrist, Dr Scheepers. ii) The reaction of both himself and Dr Parker to DVD evidence (and indeed that of Dr El-Assra, the Defendant’s expert psychiatrist), of physiotherapy sessions in which the Claimant can be seen and heard participating.

The Dr Scheepers consultations

[28]In March 2010 Dr Scheepers had written to the Claimant’s GP that “[AC] has moved to a new rented home which she finds very pleasant and amenable … from a purely neuropsychiatric perspective, whilst I accept that she can get extremely agitated over the litigation, she is a lot more assertive, less confused and able to have a lively debate. She is also able to listen to reason and she accepts my advice on occasions”. In the subsequent December he had written: “This patient remains very preoccupied with her personal injury claim and various gripes about the people who are helping her to sort it out, whether legal or clinical. Despite this she seems to be alright, it will certainly be a relief when it is all finally over. She told me about the fact that she has been on holiday recently in Florida, although she could not really tell me what she did apart from the fact that she went to the beach”.[29]Dr Brooks (letter 22nd December 2010) considered that ‘the broad flavour’ of the consultations with Dr Scheepers was that the Claimant seemed ‘cognitively brighter, more alert and generally more amenable’ which was a picture ‘entirely different’ from that which he had observed on the occasions when he had seen the Claimant whom he had described as “passive initiating very little conversation or spontaneous social reaction, with her most frequent response being “I don’t know” and this ‘reinforces my view that the clinical picture which AC has presented to me has not been an accurate reflection of her actual cognitive abilities or emotional status’.[30]This said, Mr McDermott QC highlighted in cross-examination of the Defendant’s experts (in particular the neuropsychiatrist Dr El-Assra, Dr Parker not being called) other extracts from the records of Dr Scheepers’ consultations supporting the genuineness of the Claimant’s cognitive and behavioural disabilities even if the exact measure were not possible. So, for example, in May 2009 Dr Scheepers was reporting that although the Claimant was appearing to make progress ‘she still has very significant cognitive problems which is a hindrance in as much as she cannot remember many things from session to session’ Previously in November 2005 he had reported her problems with word finding problem solving and planning, dysexecutive symptoms, altered social functioning with emotional liability, poor social judgment with perseverations and limited insight into her abilities.[31]As against that however, support for a factitious element in her behaviour is confirmed by Dr Scheepers recording in December 2008 that ‘the threat of residential rehabilitation has resulted in a quite significant improvement’ with the Claimant being more communicative and animated.Dr Scheepers refers back in this report to a recent ‘best interest’ meeting where it had been agreed by the treating clinicians that the Claimant did require rehabilitation but that she ‘lacked capacity to make that decision herself’, and hence it had been agreed that ‘failure to engage with community rehabilitation left the only alternative of residential rehabilitation and considering AC has always been vehemently opposed to this it was likely that an application to the Court might be required’.

The DVD Evidence

[32]This was evidence of physiotherapy sessions recorded in January 2007, July 2008 with an audio channel and on 28th August (no year given) with no audio. The supplemental joint statement from Dr Brooks and Dr Parker states that this evidence showed the Claimant ‘performed better while observed on the DVD than when she had been examined formally by either expert’. Dr Brooks himself in a letter of the 13th October 2010 described the Claimant on the DVD as interacting socially in a perfectly appropriate manner and as being apparently able from time to time to recall information from previous days while chatting with the physiotherapist although on one occasion she did appear to have memory difficulties in not being able to recall the intended degree course of her son. She appears, says Dr Brooks, much more animated lively and chatty than she had been with him. Nor had she with him been able to show recall (whether accurate or not) from previous days.[33]Again, this said, Mr McDermott made the point in his closing submissions that these DVDs do not show the Claimant behaving normally, and with that I would agree from my own viewing. I accept that they show her moving very slowly, denying feeling in her right side and not moving her right arm voluntarily. He made the further point that although they show the Claimant responding to conversation, the topics were relatively limited and the Claimant is not seen to initiate conversation. Mr McDermott conceded that the Claimant is seen to smile and laugh appropriately when engaged by the physiotherapist, demonstrating he said, that ‘she has retained the capacity for enjoyment’ but submitted that nonetheless the DVDs are ‘necessarily limited in what they show’ as ‘the Claimant is only seen in a familiar clinical setting responding to instructions and interacting with someone she knows well’.[34]I for myself would not disagree with Mr McDermott’s analysis of the evidential worth of the DVDs, save that they are part of an overall picture emerging from the totality of the expert evidence that to the litigation experts the Claimant has consistently presented with exaggerated cognitive symptoms. And indeed the evidence of Professor Neary, the Claimant’s own expert neurologist, in his letter of 30th March 2010 and confirmed in his oral evidence, was that this reported exaggeration of the Claimant’s cognitive and behavioural problems had been reflected in his own observations of the Claimant’s physical neurological state. He on examination had found apparent weakness of the left arm and the left leg which could only be attributable to ‘lack of voluntary exertion and was not due to any deficit in the nervous system’.[35]Furthermore it was in this letter that Professor Neary wrote a passage relied upon by the Defendant as demonstrating there are no minimum cognitive sequellae: “The findings on the brain scan would be in keeping with an individual with impairments in powers of attention, concentration, memory, word-finding, and executive function. However the magnitude of these deficits cannot be estimated because of the exaggeration of cognitive impairment akin to the exaggeration of neurological dysfunction which I have observed on sequential neurological examination”.[36]I also note that Professor Neary himself recorded under ‘mental state’ in his January 2010 report that while the Claimant spoke slowly in a sensible manner with coherent responses, appreciating good humoured jokes and smiling appropriately, she had not known the date or month speculating that the year was either 2010 or 2011, had not known the name of the hospital or the examiner; and in response to simple tests of comprehension had replied ‘don’t know’ and had been unable to name parts of objects with an element of perseveration.[37]Professor Neary thus himself accepted that in presentation to him there had been a functional overlay ‘i.e. an exaggeration of her physical neurological deficits’.[38]I should record a further consistent theme in the expert evidence that this overlay is to be related to what Professor Neary described as the ‘controlling influence’ of the Claimant’s husband BC. The Claimant’s own opening submissions (paragraph 5) referred to a ‘consensus among the medical experts that at least part of the [Claimant’s] present state results from the complex and abnormal family dynamics and in particular the very high level of dependency between the [Claimant] and her husband.’ Dr Schady, the Defendant’s neurologist, described (in his report of August 2010) the Claimant having developed an ‘illness behaviour’ which was ‘in part promoted by her partner, to an extent that she now truly believes herself to have a major disability’. The experts have understandably been influenced in this view by the evidence they had read from Jane Bennett, the Deputy, and Angela Kerr, the case manager – again confirmed in oral evidence by Angela Kerr – of that which Professor Neary described, in a description adopted above by this court, as the ‘control and influence which BC has exerted over the Claimant, frustrating attempts at rehabilitation and the introduction of support workers’.[39]Dr Rose and Dr El-Assra in their joint neuro-psychiatric report, although both agreeing (at paragraph 5) that the Claimant has shown symptoms and signs of an Organic Personality Disorder (frontal lobe syndrome), say at paragraph 5 that ‘her present state is not wholly explained by her organic brain damage. There are significant emotional and motivational factors contributing to her presentation. At least part of this problem results from complex and abnormal family dynamics’. They disagree however whether there are any ‘conscious mechanisms to account for this as well’. Dr El-Assra (as confirmed in oral evidence) thought there were, although I stress the qualification ‘as well’ and record also that under cross-examination Dr El-Assra conceded that it would be difficult to say whether behaviour was volitional in a person such as the Claimant with impaired capacity.[40]Nonetheless this opinion of Dr El-Assra would be consistent with Dr Brooks’ diagnosis of MND, which Dr Brooks conceded in oral evidence depends on a finding of an intentional exaggeration or fabrication. Somewhat contradictorily, Dr Brooks in the same breath as reporting that diagnosis, did state that ‘in making this diagnosis I make no inference about intention or motivation, particularly about whether or not AC is intentionally and knowingly producing a poor performance’, but Dr Brooks did concede in oral evidence that this was a contradiction which he could not maintain, albeit also saying that he was genuinely uncertain about what was causing and maintaining the symptomology. Dr El-Assra’s opinion would however be equally consistent with a finding of a factitious disorder.[41]Dr Rose thought otherwise. Dr Rose was not however a convincing witness on this particular aspect. I observe that he has wide experience over 30 years in the management of persons with behavioural problems arising out of brain injury from work at St Andrew's Hospital amongst others, but he has no formal qualification in psychiatry. He describes himself as a ‘consultant in neuropsychiatric rehabilitation’. In his reports he appeared to be making no concessions to his view that any dependent role adopted by the Claimant was the result of the complex organically placed brain damage and (as repeated in the joint report) that the Claimant had no ability to co-operate with any expert assessment. In his second report he said he did not think the Claimant had any significant degree of control over her behaviour and her ability to choose how to react or behave was probably minimal to non existent. In his oral evidence however he gave me the impression that he had shut his mind to and was reluctant to contemplate the possibility that the Claimant had in part been consciously – for whatever reason – exaggerating her cognitive deficits on any expert examination, for fear on his part of the label ‘malingerer’ being attached to the Claimant. This reluctance was exemplified under cross-examination over the contents of his letter of the 1st February 2011 in which he said:
“I am not prepared to go down the route of declaring that she malingers, because I do not think that malingering is a medical diagnosis. If AC is to be judged to be malingering without doubt then the underlying reason may be more related to the family dynamics than monetary gain. There is abundant evidence to indicate that AC's partner has been unable to act in her best interests (as far as the clinicians and experts have been able to understand the situation) …. The furthest I am prepared to go is to state that I do not understand aspects of AC's behaviour. I think that in order to do that one would have to live with her and her family and observe at first hand the undoubtedly numerous stresses and strains that exist in that household.”

Court’s conclusion on the extent of the Claimant’s disability

[42]In the light of the above expert evidence, my conclusions on the extent of disability are as follows

Is the Claimant a malingerer?

[43]As already indicated, it is no part of the pleaded case that the Claimant is a malingerer or has presented a fraudulent claim in the sense of her deliberately exaggerating or fabricating her symptoms and disability for financial gain, that is to say for the purpose of maximising damages and I am not prepared in these circumstances to approach the evidence of the Claimant’s disability on this basis. Moreover the charge that the Claimant has been behaving so as to maximise damages is difficult to reconcile with the recurrent theme in the evidence of the Claimant being reluctant to accept consistent paid care. The most it seems to me which can be gained from the expert evidence is that the Claimant’s presentation at the respective examinations should not be taken to reflect the level of the Claimant’s disabilities outside the examination room; that the expert evidence in this case ( in particular the neuropsychological evidence) cannot assist the court on the extent of the cognitive dysfunction and this must be equally so in respect of any physical disability insofar as it has not been confirmed by objective clinical findings.[44]However the evidence in my judgment was all one way, that the Claimant does have both genuine physical deficit and genuine cognitive dysfunction to some degree, by reason of the known frontal lobe damage. I have already set out the joint reports on this issue of neuropsychiatrists and the neuropsychologists. The neurologists similarly jointly wrote that ‘mentally she has been left with poor powers of concentration and memory and she has undergone a personality change indicative of a frontal lobe syndrome’ (report paragraph 5) and acknowledged (in paragraph 6) that ‘the neurological and neuropsychological opinion is unanimous in accepting that she does have impaired neurological and neuropsychological function’ (the emphasis is the emphasis of the court) (although agreeing that ‘there is an element of exaggeration of her apparent degree of disability and this is chiefly related to the relationship between the Claimant and her husband’). Dr Schady said expressly that he thought it likely that the Claimant did have problems with cognition, the difficulty being to distinguish between those which were organic and those which were not. Even Dr El-Assra said he was not surprised by Dr Scheepers’ findings of marked dysexecutive symptoms and problems with problem solving and planning, his point being that the Claimant appeared to be capable of more interaction and more spontaneous behaviour and that she could perform better independently than had so far been seen. He further conceded (echoing evidence given by Dr Schady) that it was not possible to assess or measure the extent of the non–organic disorder and that he could not put a percentage on the proportion of the Claimant’s symptoms which were non–organic.[45]In these circumstances I would accept the Claimant’s submission (citing Telles v South West SHA [2008] EWHC 292 (QB)) that it is not possible to separate the organic cognitive impairment from any non-organic impairment and the Claimant is entitled in law to recover as against the Defendant for her reasonable needs flowing from both (once the court, as it has, has excluded malingering for financial gain).[46]The task for the court however is still to assess what the overall impairment of the Claimant is and what scope for improvement exists and it is to these questions I now turn.

The physical disability

[47]As indicated, it is agreed that the Claimant has a mild weakness of the right side, with a degree of impaired balance and loss of smell. I accept Mr Featherby’s submission that this disability cannot currently be so severe as to require the use of a wheelchair or to mean that that she is in any real difficulty when negotiating stairs but I reach this conclusion not so much by reason of my drawing adverse inferences against the Claimant’s honesty in her reporting problems to the experts, but by reason of the lack of evidence of anything untoward ever coming to pass notwithstanding the decision to move to a new home in a three storey house. Moreover, on the question of improvement, I record at once Dr Schady’s opinion that the Claimant’s right side weakness and gait problems will become worse with the effects of ageing. The cognitive disability[48]I turn to

The cognitive disability

[49]The medical experts are all agreed that the Claimant i) lacks capacity to manage her financial affairs or her litigation within the meaning of the Mental Capacity Act 2005. See the opening of this judgment. Albeit in closing submission, Mr Featherby sought to cast doubt upon this, I do not consider it is open to the court to do so, given the agreed position of the experts and the pleaded cases of both parties. ii) is unemployable on the open market; and iii) importantly for present purposes, is not capable of living independently.[50]Thus in the respective joint reports one reads ‘She requires daily supervision because of her behavioural disturbance' (Neurologists para 11)’; ‘Ms Cooper will remain with a degree of dependence which would not otherwise have been the case for the rest of her life’ (the joint neuropsychiatric report paragraph 8); ‘We agree that [the Claimant] is not capable of independent living’ (the neuropsychologists at para 7).[51]Moreover there was compelling evidence from Dr Brooks which I would accept, that not all of the expected sequellae of frontal lobe damage is capable of being assessed by neuropsychological psychometric testing as distinct from observation in daily life. He divided these sequellae into three general areas; the first relating to executive dysfunction – the area of planning, decision making, multitasking, including deficits in memory or speech. These he said were capable of being assessed by such testing together with observations. The other two were not. These were those dealing with instinctual drives (behavioural problems including disinhibition, a reduced ability to assess the impact of ones actions on others, reduced insight ), together with those relating to “get up and go” – the ability to be interested in something, to be self driven, with typical deficits being reduced motivation and drive and reduced powers of concentration.[52]With this in mind I would accept the Claimant’s submission that it is legitimate for the court to look at the evidence given by those who have been in a position to observe the Claimant on a daily basis, namely that given by BC and their son CC. Mr McDermott makes a valid point when he says that the honesty or reliability of their evidence on these aspects was not challenged and I would agree that it is unlikely that the Claimant has been consciously exaggerating her symptoms to her family for monetary gain, especially as there is evidence that she presents as less impaired in the absence of her husband (Dr Scheepers letter of 26th November 2009 “I continue to see an improvement in her confidence and her capacity to hold a meaningful conversation, this is possibly because I am seeing her on her own…”). It is far more likely in my judgment that insofar as there is any ‘exaggeration’ in the presentation to the family that this is the result of a factitious disorder or behaviour illness of the sort identified by Dr Schady and in the preferred diagnosis of Dr Brooks.[53]I turn then to consider that which was the largely unchallenged evidence, of BC and CC on how the Claimant has been presenting to them.[54]BC spoke of the following (to adopt the list prepared by the Claimant which I accept reflects the evidence): a very fragmented memory; an incapacity to look after herself; only limited ability to carry out tasks for herself, e.g. washing her face, brushing her teeth; an inability to make a meal for herself; a requirement that the Claimant be supervised on the stairs; disturbed nights albeit improved since moving to the new house; that he and CC never felt able to leave her alone; that they would be extremely uncomfortable if she were to go outside unaccompanied; that she had no sense of danger, giving as an example an occasion in Robin Close where the Claimant turned on the gas hob but did not ignite the gas; that the Claimant had no road sense; a capacity in the Claimant to make a cup of tea but only with supervision to ensure that she did not overfill the kettle and that it is in the right position; that she needed help to put on her t shirt and to brush her hair; that although he tried to involve the Claimant with the housework, she could not hoover, dust or load the washing machine; that he encouraged her to help make beds; that she can use the computer programme by herself; that he encourages the Claimant to get the ingredients to make a sandwich for lunch; that she rarely watched TV; that she required assistance and supervision with bathing (he washes her back and legs). CC spoke of his mother’s memory problems, her very bad temper and her passivity – he spoke of her being content to spend hours sitting, looking out of the window.[55]I say this evidence was unchallenged by Mr Featherby because he did not expressly suggest that that which was being said in these regards was untrue. The most he elicited – although an important point – was that there had been no concrete examples of the Claimant actually coming to any danger absent supervision, rather than the two examples of what might have happened but did not. That is to say the occasion in the Robin Close kitchen when the gas was turned on but not ignited and the occasion more recently when the Claimant had been discovered to have made her way down the stairs in the middle of the night, albeit without mishap.[56]Rather in this context Mr Featherby concentrated on questioning BC as to the nature and length of time of the daily physical input of BC in the care of the Claimant during the typical day which Mr Featherby usefully summarised in his closing submissions in these terms: 6.00am, supervision on the stairs (5 minutes); 6.45am breakfast, help with cereal or yoghurt, making a cup of tea (3 minutes); 7.30am, washing, dressing (10 minutes); 12.30pm, (helping Claimant make a sandwich ( 20 minutes ); 4pm, prompting Claimant to have or make tea (10 minutes); 7.30pm, bathing or hair washing, preparing for bed (45 minutes); 8.15 pm, medication (estimated at 5 minutes ).[57]This may be highly relevant to any court’s assessment of what the Claimant’s personal care needs are but these answers did not assist the court in assessing the true extent of the Claimant’s physical and cognitive deficits.[58]In the round I am prepared to accept that the picture painted by BC and CC is an accurate one, subject only to certain caveats I have concerning the degree of risk if the Claimant were left on her own. Even if there has been exaggeration in the Claimant’s presentation to the experts I find that the evidence is compelling that:- - the Claimant does have genuine significant memory problems. CC's oral evidence was that his mother’s memory was ‘poor at best ‘ and had not changed from the description given in his witness statement of a year earlier which was to the effect that the Claimant could not really remember anything of her life before the accident including his own birth and that her short term memory was patchy (‘If you ask her in the evening what she has done during the day, she can recall some things, but she struggles with a lot of the detail‘) ; - that she does have executive problems as evidenced by her difficulties with decision making over what to wear and what to eat, and with planning her day; - that she does have mental slowness; - that she has a very bad temper and has in the past appeared depressed on a regular basis (as particularly evidenced in the testimony of CC) although his evidence was that this had improved. - that she cannot look after herself, requiring supervision and prompting for the activities of daily living, being very passive without the apparent ability to initiate anything. Thus she has to be motivated to get off the sofa or to do her exercises; and she needs to be prompted and helped to make a meal assist with housework and so forth. Nothing in the recorded observations of Dr Scheepers or on the DVDs contradicts this, in my judgment. She may outside the family present as more communicative and animated but there is no suggestion that she is or has become an initiator.[59]On this last aspect of her cognitive deficit, there was not only the evidence of the family but also that of Ms Kerr, the case manager in place since 2008, whose evidence on this aspect I see no reason to reject. She over the years had had regular contact with the Claimant in her home on monthly or bimonthly visits of up to 3 hours, albeit of late her contact had been reduced owing to the attitude of BC who had taken his own initiative in seeking out and employing a support worker agency.[60]Ms Kerr’s evidence was that the Claimant was a typical brain injured person with frontal lobe difficulties and although she conceded that she had found it ‘difficult to get a clear picture of the Claimant’s needs’ as recorded in her case management notes for August 2010, she gave a clear picture of the current ‘lack of drive’ deficit in the Claimant when describing the assistance which Ms Kerr would hope any support worker would provide for the Claimant. She spoke of their enabling the Claimant to do things for herself, focussing on things she could do rather than those she could not. She gave examples of the support worker supervising the Claimant to cook, wash and dress, to put on make-up, to choose her own clothes, to draw up a shopping list, to go to the shops, to select items from the list, and to put the shopping away at home. When asked what would be the position when the Claimant had learnt all this, Ms Kerr gave a telling reply in my judgment to the effect that the Claimant would never do things for herself unprompted and would need someone to guide her and give her structure, which ties in with the unanimous opinion of the medical experts that the Claimant is not capable of independent living:
“The difficulty for AC, I do not think that she would ever retain that information. She would not learn to do it without a prompt. So she is someone that would need someone there to guide her within the structure of doing certain activities … she would never do things for herself unprompted; I do not see that.”
[61]My only caveats are these. I am not persuaded that there has been any incident where Claimant has been shown to have been in any personal danger other than the two examples already referred to where nothing in fact happened. The evidence that the Claimant has no sense of danger, no road sense, and was in a condition whereby she could not go outside the home unaccompanied or could not be left alone in the house for fear of mishap, and had always to be supervised on the stairs otherwise she might fall was not strong. True it was asserted by BC (and to an extent by CC) and her walking ability and balance is, I accept, impaired to a degree, but apart from those two examples, no other example was given of the Claimant ever coming to any mishap, albeit there was evidence that the Claimant had over the years been left alone in her part of the house and there was evidence relied on by the Claimant herself, that on occasion the Claimant would wake at night to go to the lavatory or to go downstairs to make a cup of tea.[62]The most it seems to be that can be said is that there must always be a risk that because of the Claimant’s cognitive deficit, she will be unable to deal with an emergency if left alone, that ex hypothesi (by virtue of her frontal lobe injury) she is vulnerable but, as already indicated, I do accept the force of Mr Featherby’s submission that it is unlikely that the Claimant is, for example, in real risk when negotiating the stairs by herself given the decision made to move into a 3 storey house and her impaired mobility is not so severe as to require for example a wheelchair.[63]Moreover I observe that Ms Johnson, the Claimant’s own care expert, reported (final report paragraph 9.2.2) that ‘She does not initiate activities and does not act impulsively which suggest that while she needs support to initiate activities of daily living, to enable her to access social activities and to prompt her to participate in activities … she can be left unattended for short periods of time i.e. does not need someone with her at all times’ …. (the Claimant) can I feel, be and probably is, safely left on her own for short periods of time while her husband goes to the local shops or if he is occupied elsewhere in the home. By ‘short periods of time;’ Ms Johnson explained she meant periods of 15 – 20 minutes, perhaps up to a maximum of one hour.[64]The danger of the Claimant being left to live alone lies not so much in the likelihood of her putting herself in danger through ignorance of sources of danger (although, I repeat, I accept there must always be a risk of her being unable to cope with a sudden emergency) but more in my judgment on the evidence, in very real risk to her general well being through her inability to look after herself, i.e. her lack of capacity for independent living.[65]I should also record that the Claimant did go on holiday to Florida in the summer of 2010 with BC and their son, (and without any support worker) which on all the evidence was (to quote the terms in which it was reported by BC to Ms Johnson) ‘very successful’. In particular ‘CC had taken (the Claimant) into the pool in the villa they rented‘.

Scope for improvement?

[66]I have no doubt that there is likely to be some improvement in the Claimant’s condition but it is always to be borne in mind that the relevance of this issue is to the question at the heart of the litigation before me, namely what level of care and case management support does the Claimant require arising out of her disability. Hence on the issue of improvement, the question is as to whether there will be improvement sufficient to permit a material reduction in the level of support otherwise required by the Claimant. On behalf of the ClaimantMr McDermott accepted that there may be an improvement in behaviour and some limited improvement in the level of her functional independence in the sense of being able to achieve more, but contended that it is very unlikely that there will be improvement sufficient to permit a material reduction in support.[67]Two particular aspects in the scope for improvement emerged in the evidence.[68]First, such improvement once the litigation has ended. That this would occur was the express joint view of the neurologists (‘It is agreed there is an element of exaggeration of her apparent degree of disability and this is chiefly related to the relationship between the Claimant and her husband. Accordingly it is thought that there will be improvement in her neurological and neuropsychological state after the litigation has ended’). It is of note that in Dr Scheepers' records there is a persistent theme of the Claimant raising with him her personal injury claim with which she appeared pre-occupied. Thus for example the following observations appear:
‘I reviewed (the Claimant) …on 20 August 2009. She was looking very well and we managed to have a very friendly conversation. At times she became angry and irate and clearly matters relating to her compensation claim continue to cause her problems;’ (referable to the review of 26 November 2009) ‘she remains preoccupied with her personal injury claim and in particular with her Financial deputy and the Court of Protection. I know that this has continued to cause her considerable irritation because she ideally wants to have control of her life again. I think I have successfully established a relationship with her divorced from the litigation process’; and (referable to 27 September 2010) ‘(the Claimant) remains very preoccupied with her personal injury claim and various gripes about the people who are helping to sort it out whether legal or clinical.’
[69]However, I am equally clear that such improvement will be limited to behavioural problems, especially those with a factitious element (the non organic problems) rather than anything that can be attributed directly to the frontal lobe damage. This is because it is not disputed that there cannot be any improvement in the brain function arising out of that damage. Dr Schady himself said in evidence that her organic neurocognitive difficulties with memory and cognition were likely to become more prominent as she ages because she has lost some cerebral reserve. That it will be limited to behavioural problems is expressly stated in Professor Neary’s report of January 2010 (‘there will be no recovery of brain function in the future but with her current community rehabilitation which is acceptable to her there ought to be some behavioural improvement especially when litigation has been settled‘) and this evidence I accept. What that degree of improvement is likely to be is impossible to evaluate with any certainty, particularly as I have not been able to accept that any exaggeration of symptoms on the part of the Claimant has been to maximise damages for financial gain. Dr El-Assra’s evidence (although said by Mr McDermott to be confusing) was in effect that any improvement would be limited to that arising from the removal of the stress of litigation and his view that any ‘conscious ‘ element would end with the litigation.[70]In addition, the court will have to factor in the scope for improvement if BC were to leave the Claimant and cease to be living in the household (as contended for on behalf of the Claimant) given the compelling evidence to which I have already referred of the causative effect on the Claimant’s current state of ‘abnormal family dynamics’ and the relationship between the Claimant and BC giving rise to her high level of dependency. However, as Dr Brooks said, whether the departure of BC would lead to sustained improvement would depend on whether he withdrew completely or continued to maintain some level of involvement. Dr Parker, in her report upon which the Claimant is entitled to rely, said that although she would anticipate an improvement if BC were to leave, she was unable to state to what extent improvement would occur. However she would anticipate that the establishment of a consistent support regime would allow for a structured day and support workers to work in a consistent manner on increasing independence which would lead to an improvement in functional ability. Were, however, BC to leave and then return, his return could lead to a deterioration in the Claimant’s presentation and functional abilities.[71]I will postpone giving my final conclusions on this issue of improvement until I have considered the issue of the likelihood of the Claimant accepting any professional input with the interlinked issue of the likelihood of BC remaining and being available to provide support, and I will then consider it in my overall consideration of the issue of what the Claimant reasonably requires by way of support

Will commercial care in put be accepted?

[72]It is of course trite law that damages are not available to fund a care regime which is unlikely to be set up. The Claimant cannot recover future expenses which she is unlikely to incur.[73]As already indicated there is a history detailed in the evidence of Angela Kerr of the case manager being unable to introduce support workers on any consistent basis, of BC himself taking over the role of finding support worker provision ‘acceptable to his wife’ and of the Claimant and BC rejecting carers and support workers, although the evidence is compelling that the initiative for such rejection has come consistently from BC rather than the Claimant herself.[74]Mr Featherby understandably emphasised the failed attempts to set up a consistent care regime since the Claimant moved into the new house in December 2009 and the apparent lack of co-operation from BC in particular in facilitating such a regime. Angela Kerr was taken through the history in the course of her evidence. Thus in March 2010 Ms Kerr was planning to introduce a support worker, Sam Milne, to work one day and night a week ‘building on this as tolerated' by the Claimant and BC. Ms Kerr introduced her to them but although ‘Ann appeared to get on with her’ BC, rejected him because he thought a local care agency would be a better option. It would appear Miss Milne never started. BC himself contacted an agency, ANA, but rejected the staff they proposed on the grounds of age (‘two elderly ladies’). Ms Kerr spoke of BC telling her that AC (the Claimant) would not allow care staff to be introduced until a replacement car had been sorted. Subsequently, again according to Ms Kerr, BC stopped all therapy and prevented carers being introduced until money was given to equip an annexe as a ‘carers room‘, with a similar suspension of therapy being allegedly imposed until a holiday was sorted out. There is then a complicated history of BC introducing an ‘acquaintance‘, Jill Moss, as a potential carer for the Claimant whom he engaged directly, rejecting the case manager’s advice of a need for CRB checks and for a formal contract of employment. Jill Moss appears to have been involved on and off between June and November 2010, although part of the time was there on a voluntary basis, before finally leaving for reasons which are not entirely clear. BC spoke of ‘personal reasons’ although elsewhere in his evidence referred to tax problems. I say however it was ‘on and off’ since the evidence is that when Ms Johnson, the Claimant’s care expert, visited in October 2010 there was no support being provided. Meanwhile in June 2010 BC was trying to involve another agency (Pulse) and also in July 2010 placed an advertisement in a local newspaper and on an internet website purportedly to find carers in addition to Jill Moss. These attempts were not successful. BC explained that Pulse promised a great deal but failed to deliver. A lady from Manchester had had problems with paperwork while a Nigerian lady had been unable to speak very good English. One person who responded to the advertisement and became employed by Pulse did it seems prove acceptable for a short time in August 2010. This was Amy Pawezoswski but (to quote the words of Ms Kerr) ‘after a couple of months AC decided that she no longer wanted Amy because she talked too much’.[75]By the time of the court hearing in March 2011, the evidence was that there was another agency engaged by BC (Jane Lewis Healthcare) who were being successful in putting support workers in place but as this had been in place for such a short time – only a matter of weeks - I would accept no reliable conclusions can be drawn from that particular provision in itself, viewed in isolation. There was information provided late on into the hearing from Ms Johnson based upon her speaking to this agency that although it was apparently going well with the Claimant there had been a concern about BC and his behaviour towards the support workers.[76]Further, the evidence of Ms Kerr concerning the position over recent weeks only went to confirm the tendency of BC to take over part of the role of case manager himself, taking it upon himself to engage the agency workers and keeping the appointed case manager (Ms Kerr) out of the picture. To quote Ms Kerr’s exact words in oral evidence on this topic:
“BC is taking control of the situation … whilst he is keeping me informed he is keeping me out of the picture at the moment. I would not challenge that. I would step back and then look to come back in …my present level of intervention is about 4 hours a month …I am looking to keeping everyone ….informed and observing what is happening through emails).”
[77]Moreover it is right that I record the joint opinion of the care experts ( at joint report paragraph 2.2 ) that:
“We agree that [the Claimant] will benefit from external commercial support … However we are uncertain as to whether such support will be utilised given that no support or care has been provided consistently and effectively for AC at any point in the past few years. We agree that support workers have been appointed and introduced successfully but they have been rejected often very quickly by both BC and AC although at times it has seemed that AC has engaged with these support workers” (the emphasis is the emphasis of the court). And the particular opinion expressed by Ms Johnson in her report of October 2010 at paragraph 9.2.1 stressing the particular influence of BC in the difficulties experienced to date in the introduction of outside support: “However [the Claimant] still refers constantly to BC for his opinion and continues to depend upon him on a day to day basis, and indeed on a task by task basis. It is clear that Ms Kerr has not been able to introduce and maintain the support team she has planned but this is not a criticism of Ms Kerr. It is clear from the evidence of other case managers involved that BC has been a negative influence on the provision of support unless that support has been found by himself. However AC appears to respond well to support workers that she likes and trusts … My concern is that although I have recommended high levels of support, both now and in the future, it is difficult to predict that this support will actually be used, given the experience of the last few years. Whilst I note comments made by Mr Yearsley with regard to difficulties that he has experienced working with other professionals, nevertheless providing support does involve the co-operation of family members, and needs a close working relationship between the case manager, family members and support workers in order to succeed. I therefore feel that whilst AC will benefit from support worker intervention on a consistent and continuing basis, the problems of providing such support, to the satisfaction of her partner, are likely to continue to lead to difficulties in actually implementing care, and have led to failure on a number of occasions.”
[78]Mr Featherby also reminded me of Ms Kerr’s evidence in her witness statement of March 2011 (albeit in the context of her evidence that BC at the end of the previous December was ‘commenting that he might leave AC), that AC had ‘openly acknowledged that having people in his home openly caused him stress’ and ‘he didn’t know whether he could cope with it‘. He apparently told Ms Johnson on her visit in January 2010 that he felt ‘it was like being invaded’ when therapists came to the old property.[79]On the other hand, this all said, the evidence of late is that since the move to the new and more spacious property, BC has made concerted efforts to find support workers he considers suitable (his approaches to ANA, Pulse, and more recent engagement of the Jane Lewis agency; his engagement of Jill Moss; his placing of advertisements) which I would regard as an implicit acknowledgement that he accepts the need for such outside support. Further, whatever may be the position as to the truth of his intention to leave the home altogether (as to which see below) I am satisfied that he was telling the truth when he said he was growing weary of looking after his wife full time after so many years and has begun to appreciate more than perhaps he did in the past, the benefit not only to his wife but also to himself of support worker provision. I bear in mind also the evidence (relied on in part by Mr Featherby in support of the unlikelihood that BC will leave) that BC is in poor orthopaedic and other health. BC is some 53 years of age. He walks with a limp; he has a hernia; he suffers from chronic Crohn’s disease with consequential bouts of abdominal pain.[80]In addition, Ms Kerr, although conceding that if BC stayed, he would continue to find fault with support workers, and that this was a difficult case in terms of bedding in a support regime and that there had obviously been gaps in outside support provision, gave oral evidence that the trend was ‘more towards the staff staying longer and there are gaps but the gaps are getting smaller‘. She made the point that although there was an inherent risk of the problems of support worker rejection recurring, it did depend on the ‘skills of the people involved with the Claimant and BC and that an agency with a big pool of staff – such as the Jane Lewis agency – would have the capacity to quickly find another support worker to replace one with whom BC might fall out.[81]My conclusion in the light of all these considerations is that even if BC remains in the house, it would be wrong to approach my findings on what the Claimant can recover by way of damages to meet her reasonable support needs, on the basis that any outside support is always likely to be rejected and not utilised by the Claimant. Not only do I consider that it is unlikely that BC, even if he stays, will always be ready and willing and able to provide the entirety of the support which the Claimant requires, but it has always to be remembered that the issue under consideration is whether such outside commercial support is likely to be rejected by the Claimant, rather than whether this is likely to be rejected by BC. Mr McDermott made a valid point when submitting that the Claimant probably does not have capacity to make decisions about her care and if therefore there is a dispute between professionals in the Claimant’s life and BC, it would be open to one of the disputing parties to make an application to the Court of Protection to make decisions on behalf of the Claimant in her best interests. It would, I accept, be open to that court to make orders requiring BC to permit support workers to enter their home and work with the Claimant and for BC to leave the house for periods during the day to facilitate the provision of such support.[82]Put another away, I am satisfied that the Claimant, if left without the influence of BC, is not likely to reject outside support suitably introduced into her life and that any damages awarded to her should not be reduced because of the risks that BC may continue to put obstacles in the way of the maintenance of a consistent commercially provided support regime which would otherwise be the appropriate way of meeting the Claimant’s reasonable support needs, leaving the Claimant dependent upon her husband who may or may not be willing and able himself to supply those needs. Certainly the court cannot properly approach the question of how the Claimant’s reasonable needs are to be met, on the basis that BC will always be and has always to be the provider of those needs to the exclusion of all other provision for that would render the Claimant a hostage to fortune. But furthermore, I am equally satisfied on the balance of probabilities that BC himself will, for the reasons I have already given, over time become more and more receptive of outside support, even if he stays. See paragraph 79 above.[83]My overall conclusion is that even if BC stays with the Claimant, the required agency support worker input (as to which see below) as distinct from that to be provided by BC will be accepted by the Claimant, albeit in the circumstances that the amount of that input may have to be introduced on a gradual basis and albeit with a high turnover of staff and some gaps in provision. How all this translates into the court’s final conclusions on the model of care which should be adopted in order to meet the Claimant’s reasonable support needs will become clear when I give my findings on those needs.

The likelihood of BC leaving

[84]I have not found this an easy question to resolve.[85]Mr McDermott, on behalf of the Claimant, asks the court to accept as genuine the evidence of BC that he intends to leave, for the reasons BC gave, summarised at the beginning of this judgment. I would accept that the fact he chose to marry the Claimant in August 2008 in full knowledge of the extent of the Claimant’s injury, cannot be decisive against him since there is evidence (as already identified in the records from Dr Scheepers) that in 2008 there was a very real risk that the Court of Protection might be invited to compel the Claimant to do that which she did not want to do, namely to attend residential rehabilitation. I would accept that it may well be that one of BC's motivations in marrying was to enable him to be in a better position to resist such application and to make decisions on the Claimant’s behalf as her next of kin. I further accept BC's evidence that since the accident the physical side of the marriage has disappeared.[86]On the other hand I did not find his evidence in relation to his determination to go back to work or to his alleged liaison with ‘Christine' convincing. He has not worked since 2004. On his own admission he had not kept himself up to date with advances in the area of automation engineering (his pre-accident work) and notwithstanding his attempts to convince the court to the contrary, he has done little or nothing to date about getting a job or undertaking retraining. I would accept Mr Featherby’s submission that the reality is that if BC left, he would find it very difficult to support himself. The opening submission of McDermott on behalf of the Claimant that the evidence suggests that BC's disruptive behaviour as regards the introduction of outside support ‘has been motivated at least in part by his desire for an income stream, a large house, a Range Rover, and not by devotion to [the Claimant]’ is of course a two edged sword. I have no doubt that BC would find it very difficult if he left to replace the income stream he is currently enjoying by reason of the payments he is receiving from the Deputy for his care and support for the Claimant, said to be about £2,000 per month and of course whether he continues to provide that level of support or not, his continuing to be with the Claimant will ensure a roof over his head in congenial accommodation and surroundings. Moreover, it must be significant that up until shortly before the trial, BC‘s professed intention was to stay with the Claimant. See his first witness statement of March 2010 in which notwithstanding his detailed history and account of the difficulties caused to their relationship by the Claimant’s disabilities, and an account of the impact it all has had on his own mental state (speaking of mood swings, frustration, anger and depression) and albeit saying (paragraph 231) ‘I have now essentially becomeACs support worker and carer instead of her partner. I do not want to be her carer anymore’, he was still saying (paragraph 232) ‘my relationship with AC will survive out of loyalty and love.It feels to me that my role in life is to protect her'.[87]The only thing in reality which has allegedly happened since that first statement was made to change his mind in this regard is his asserted relationship with ‘Christine’, said to be a married lady with children. However I just did not believe him on this matter. His evidence under cross examination lacked credible detail and was defensive, patently anticipating in the course of cross examination the question as to how he could spend the necessary time away from home if, as he asserted, he did not feel he could leave the Claimant on her own. Even making due allowances for his response that he always ensured CC was at home and for a perhaps natural reluctance to give details of his alleged affair with Christine, I reject his evidence on this particular topic. In any event, as Mr Featherby submitted, there is no evidence that ‘Christine’ wants to leave her husband and children and set up home with BC.[88]My considered conclusion is that it is unlikely that BC will leave in the foreseeable future. That said however I equally have no doubt for the reasons already set out when considering the issue of the acceptance of outside commercial care, it is unlikely that he will continue indefinitely to provide the extent of support he currently is. I accept his recent evidence to this extent, namely he is becoming increasingly frustrated with his role as the principal carer for his wife and does not want to continue indefinitely being her sole carer. As already indicated, he is not himself in the best of health and I consider that it is likely that he will become more and more receptive of outside support. The impression he gave to Angela Kerr at the end of December 2010 of being at a ‘point of breakdown’ was not wholly manufactured in my judgment. Moreover as already stated I do not in any event consider it a proper approach in this case for the court by its award of damages to insist that the Claimant, who on the evidence herself lacks capacity to make decisions on her care for herself, must always have to look to her husband as her principal carer.

What does the Claimant reasonably require in the way of support?

[89]I turn then to consider what the Claimant reasonably requires in the way of care and support to meet her needs resulting from her disability as I found it to be (see paragraphs 42-65 above). In reality this in my judgment is primarily a ‘support and enabling’ case rather than a ‘care’ case by which I mean although the Claimant obviously needs some direct care provision in the sense of physical input as identified by Mr Featherby in his cross examination of BC, the principal need is for supervision and support of someone who is by common agreement of the experts – even allowing for the invalid presentations to them - incapable of independent living.[90]I turn first to summarise the opinions of the medical experts. Although all medical experts (save possibly Dr El-Assra) defer to the case manager and the care experts to as to the extent of the support required and how it should be delivered, they were in oral evidence asked to expand on their unanimous respective opinions that the Claimant is not capable of living independently (save for Dr Parker whom the Defendants did not call). I accept the analysis set out in the Claimant’s closing submissions with one caveat with regard to Dr Schady. Thus I accept: - Professor Neary identified the need for supervisory care and said that the Claimant would fall into a state of personal neglect if she did not have someone living with her. This was not challenged in cross-examination; - Dr Brooks said that he was unable to imagine the Claimant living alone and that she needed a support worker to introduce a gradually increasing regime of productive and rewarding activities; without support he sees the risk of deterioration with the Claimant developing low morale and depression; left entirely on her own she would be at serious risk and there would be issues of vulnerability. Again this was not challenged; - Dr Brooks explained that by the Claimant not being able to live independently, he meant that she could not get through life by herself without supervision or prompting; - Dr Rose identified the Claimant’s need for an externally applied structure and a support programme to plan her day to develop as much independence as possible and to develop worthwhile skills in order to achieve her potential; it would improve her worth and self esteem if she were able to do basic activities such as choosing her clothes, being involved in household activities and doing most pleasurable activities. He endorsed Ms Johnson’s (the Claimant’s care expert) recommendation for 24 hour care in the event BC leaves. - Dr El-Assra said he did not think that 24 hour care was required and that an illness behaviour or factitious disorder would be reinforced by the provision of too much care and would be counter productive. He said that the provision of night care was about risk management but there was no evidence to suggest she was at risk at night. He did however agree that the Claimant needs support and enablers in order for instance to get into the car and go to Tescos and to go swimming; He said the Claimant needs someone to talk to, someone to help her get dressed, to have lunch, to go to bed and to go shopping. He agreed that she would need help with initiation, planning and driving and accepted that he did not know whether the Claimant would be able to cope with an emergency as this had not been tested.However, he did not think the Claimant needed support for as much as 12 hours during the day or a night keeper.[91]The caveats I add to this analysis of the medical experts on this issue of the extent of the required support, is that i) Dr Schady in his written report of 2nd August 2010 also cautioned against making excessive care provision in these terms: “… it is more likely she has developed illness behaviour in part promoted by her partner, to an extent that she now truly believes herself to have a major disability. Having said that, this should not be reinforced by providing an inappropriate amount of care. The suggestions in the Pulse report would in my view be counterproductive. They would promote dependence and undermine her motivation to do more for herself.It is important to note that at least some of the rationale for offering such a comprehensive support package is the alleged risk of falling associated with her physical disablement. Since this is factitious, the suggested level of support is unwarranted.” ii) the joint statement of the neuropsychologists cautioned against ‘inappropriate care ‘inappropriate care (both in nature and intensity) is likely to maintain and promote any disability which (the Claimant) has’;

The care experts

[92]I turn to the evidence of the care experts on this question. In doing so I record Mr Featherby’s health warning in final submission that ‘if the presentation to the care experts is tainted by the same exaggeration as that to the medico- legal experts (which it must be) the care experts’ assessments must be correspondingly suspect and unreliable’.[93]Both care experts agreed that the Claimant was a ‘difficult case in which to predict and cost the future care requirement (joint report paragraph 2.1). Ms Johnson for the Claimant expressly conceded in her final report that the Claimant’s ‘level of care needs remain unclear' (see again paragraph 9.2.2 quoted above) ... Ms Johnson in particular expressly acknowledged in her report that she had assessed and costed support based upon the Claimant’s presentation ‘over the number of visits that I have made to AC,during which time I must note that AC has said very little and most of the conversation and information has been given by BC'.[94]This said both agreed that in principle the Claimant would benefit from the input of support workers to engage with her, motivate her and help her live as normal life as possible (joint report paragraph 2.2: we agree that she will benefit from external, commercial support in order to increase her social contacts, to provide respite for her family and to increase her independent living skills).[95]Moreover, they were both in agreement that in principle if BC were no longer available AC would require ‘full time care and support’ that is to say 24 hour support with some one on call at all times although they disagreed as to the model of care provision in this event, Miss Gough contending for the involvement of a residential care/housekeeper from Able Care community, (a contention subsequently abandoned by Mr Featherby on behalf of the Defendant, assuming, contrary to his primary position, that a 24 hour regime were required in these circumstances), with Ms Johnson maintaining support on a direct employment hourly basis with a sleep in support worker and a contingency of 6 weeks input for waking night care. Miss Gough in her final report expressed the need for 24 hour care in these terms: “ShouldBC Not Be Available Should the court consider that AC cannot maintain a safe environment when living on her own, the maximum she would require is that of a resident care/housekeeper. It is probable that she would require support to accompany her on outings, prompt and encourage her in her daily living activities, ensures she maintains safety in the kitchen, prepares herself nutritional meals, maintains the home ,and has assistance with managing correspondence etc.’[96]In the joint report the two experts expressed their agreement thus :
“2.11. We agree that if BC were not available, then AC would need fulltime care and support but have costed this in different ways.”
[97]I agree with Mr McDermott that implicit in this agreement, is an acceptance by Miss Gough (as well as Ms Johnson) that the Claimant needs someone available to her most (if not all) of the day and someone on call and available to attend to the Claimant overnight. Both experts agree in other words that the Claimant cannot be left alone for any significant period and cannot be left alone overnight. Mr McDermott drew the court‘s attention to what he submitted was a telling comment of Miss Gough in the joint OT statement that the Claimant ‘will generally have someone with her ‘.[98]The battle lines between the rival care experts was at its starkest when considering the Claimant’s need on the assumption that BC remains in the home and remains available to provide part of the required support. However both agreed that what the Claimant required in these circumstances was a combination of agency support workers, case management and gratuitous care provided by BC. Further although costings based on agency rates are inevitably higher than those for direct employment, there was no dispute that an agency regime was appropriate in this case given the problems to date in establishing a support regime. As Ms Johnson explained, using an agency would reduce the risks of employment disputes and the costs involved in any regular turnover of support workers. And again both agreed that while BC was in the home providing night time cover, there should be no provision for overnight support.[99]On the assumption that outside support would be accepted, Miss Gough’s final report recommended the introduction of a support worker for six hours a day five days a week only (weekend support is excluded) to take the Claimant through the activities recommended by the therapists and to give the Claimant a varied quality of life with a practical application of activities within the home and social activities outside, but this level of support would be needed only for a limited period and Miss Gough would expect it to be reduced until the Claimant reaches what Miss Gough anticipated would be her ‘optimal level’ of ‘independent living’ when and thereafter the support would be for the purposes of ‘monitoring’ the Claimant only. Thus her proposal was for support worker input for 30 hours per week for the first year only, followed by 24 hours per week in the second year, 18 hours in the third year and thereafter 14 hours per week. In addition she would throughout allow some additional support from BC himself which she assessed at a very low figure of 2 hours a day. Miss Gough justified this low figure in her report on the basis that ‘it was unclear as to his wife’s cognitive impairment as to the amount of prompting that is needed ‘.[100]As regards case management, required as she put it to monitor the Claimant and make appropriate changes and referrals to maintain the Claimant’s well being and quality of life, she assessed the need for the first two years at an average of eight hours a month (at £85 per hour) thereafter reducing for subsequent years to six hours a month, with in both instances a provision for travelling and mileage based on 12 visits a year with 2 hours travelling per visit at £42.50 per hour and 60 miles per visit at 55 pence per mile. This provision amounts to £9,576.00 per annum and £7,576.00 respectively.[101]If the support requirement were to be assessed on the basis that it were entirely to be provided by BC's gratuitous care Miss Gough made even lesser provision. Although she assessed BC's current support at 8 hours per day (‘for practical and emotional support‘) she reduced the future provision on the basis of the medical opinion that there would be improvement on the conclusion of the litigation and did so on an ever decreasing basis, namely five hours a day for the first year, three hours a day for the next two years, thereafter reducing to two years ‘depending on the degree of prompting that she requires‘.[102]Ms Johnson‘s assessment in contrast was in effect for a 24 hour regime of care and support provided on a consistent and continuous basis, whether BC remained or not. As already set out, she accepted that that the Claimant could be left unattended for short periods, up to one hour maximum, and accepted that the Claimant did not need someone in her presence for 24 hours but said she needed someone around or someone who was going to be around within a short period. As she put in her final report, (para 9.2.2), the times when currently the Claimant was being safely left on her own were not significant when considering her long terms needs and she considered that BC's input could not easily be replaced without providing care over 24 hours each day. In her oral evidence Ms Johnson likened the Claimant to a 3-4 year old who needed to be supervised and occupied.[103]Ms Johnson saw no scope for the overall reduction in the Claimant’s support needs. Although she hoped that support worker input could work in a limited way to improve the Claimant’s independence in activities of daily living, she did not believe that any improvements would lead to a reduction in the required support. To quote the joint report, Ms Johnson ‘considers that AC's problems are now so entrenched that it is highly unlikely that her functioning will improve significantly through rehabilitation’.[104]Provided BC remained at home to provide overnight care, Miss Johnson’s assessment was that the Claimant needed 15 hours support per 24 hour period which would either be provided exclusively by BC (Scenario Number One ) or assuming outside support be accepted, she would provide for by an introductory phase of outside support averaging 35 hours per week over the years in which the phase is utilised, an average of five hours per day (although with allowance for flexible introduction of ever increasing support hours over the years in which the introductory phase is maintained so as to realise this average) and 10 hours per day from BC. This is Scenario Number Two. Her assessment however allowed for a time when the introduction of support workers has proved successful, so that the support can be increased further to 64 hours week, made up of 8 hours per day, 7 days a week, with another 8 hours for evening activities with a consequential reduction in BC's support to 7 hours per day (Scenario Number Three). This would in her view be in the interests of both Claimant and BC and would for example allow for BC to return to work if he wished.[105]Her assessments in both instances allowed for 7 weeks contingency for holidays and possible sickness providing in effect 24 hour outside cover. She explained how her assessment was based upon a calculation of support worker provision for 14 hours per day plus ‘a sleep in to cover for respite for Mr Yearsley, holiday cover should the Claimant and Mr Yearsley go on holiday and to allow for cover should the Claimant become physically ill’.Ms Johnson also allowed for an annual sum (put at £2,600) for the cost of the support worker accompanying the Claimant to activities, the leisure centre, a café or a restaurant and so forth.[106]Ms Johnson’s provision for case management was throughout for 8 hours per month, (at £93.50 per hour) with 3 hours per month travel time (at £55 per hour) and 150 miles per month travel costs (at 55 pence per mile) with a contingency of 12 hours per year for unforeseen crises (a total of £13,068 per annum). She justified this assessment on the basis that the Claimant needed a reasonable level of case management both to protect her and to meet her needs. She considered that such case management should be as active as possible. The case manager should visit the Claimant regularly, would supervise the support workers, arrange their training and would also spend time on planning and assessment, liaising with therapists, clinicians and the financial deputy.

The Defendant’s abandonment of Miss Gough

[107]In final submission, relying on the health warning already identified, Mr Featherby no longer sought to rely upon even his own care expert evidence, namely that of Miss Gough. He in effect abandoned her evidence. This is particularly so with regard to her agreement that in the event of BC not being available, the Claimant would need full time 24 hour care and support, with someone on-call at all time.[108]Mr Featherby’s final position was that this 24 hour assessment had been based on a misapprehension that the Claimant needed constant attendance to keep her from mishap when the evidence did not support such a recommendation. His submission was that there was no justification to provide the Claimant with night support, be it waking or sleeping attendance. The information before the court he says is now much fuller than was before the care experts. Mr Featherby has in effect provided his own formulation on what is required based on what he says is the evidence of what is required to meet the personal care needs of the Claimant, and her needs for housework, prompting and entertaining, and being accompanied to therapies. He adopted a highly analytical approach to the evidence, relying not only on the effect of BC's evidence of his daily physical input, but also submitting that the Claimant already had a busy week with (according to Ms Johnson’s description in her final report): weekly sessions of occupational therapy (over two hours on a Monday); physiotherapy (Fridays); dietician (Fridays); shopping trip and ‘ride out in car' (Saturdays); ‘meal out with family’ (Sundays); that the Claimant suffered from fatigue and already according to BC, spent the mornings on her computer and liked in the afternoons to sit watching the cows out of the window; and that in any event apart from hydrotherapy, all therapies were now being provided at home. In other words the thrust of Mr Featherby’s final submission was to query the need for more than a relatively modest amount of daily support whatever the source.[109]This is all in the context of Mr Featherby’s overall submission that this claim is speculative, the claimed for needs have not been proven, and compensation should be awarded on the basis on the minimum sequellae accepted by the medical evidence as a possible consequence of the injury.[110]As regards the Defendant’s case on support, if assessed on the basis that outside care would be rejected, Mr Featherby did not seek to maintain Miss Gough’s very limited provision. He would allow some 45 hours per week, gratuitously to be provided by BC, made up of some 10 ½ hours personal care (based on the physical input evidence elicited from BC), some 17 ½ hours for house work, 5 hours for prompting and entertainment and 9 hours accompany to therapies (all costed at a commercial rate for this kind of support, said to be £7.11 per hour without discount for gratuitous provision unless the court were to find more extensive BC services). A very modest uplift might be justifiable to these figure to reflect the unlikely contingency that BC might leave or the equally unlikely contingency that he might voluntarily withdraw his care or become unable through old age or infirmity to provide care any longer[111]If BC and the Claimant are not living in the same household, the care requirement Mr Featherby submitted should be assessed at no more than outside support for 6 hours a day, split into two sessions of three hours morning and evening to provide for the Claimant’s personal needs, her meals and snacks plus two further three hour sessions a week (Monday to Friday) to take the Claimant out or to provide other stimulation or entertainment, together with 2 hours a day or 14 hours a week for cleaners.[112]Again as to case management, Mr Featherby submitted the evidence justified only a modest provision, contending that with the litigation out of the way, the demands on the time of the Claimant’s case managers was likely to diminish. He submitted that it is BC who is likely to continue to carry out the bulk of the ‘case management’(arranging accommodation, transport, therapies, cleaners and subject to their being accepted, support workers) in the way he had done over the past year, leading to Ms Kerr ‘taking a back seat of late’, albeit it was accepted that some professional liaison with the Deputy would be required. Mr Featherby’s formulation of a reasonable regime of case management was that of 6 hours a month attributable to BC together with two hours a month attributable to Ms Kerr plus two hours travel. His professional case management formulation if BC were not available, is put at 4 hours a month with two hours travel. This reduction is justified on the grounds that if BC is no longer there, the Claimant will be a lot easier to manage.

The court’s final conclusions

[113]Ultimately the question of what is reasonably required by way of care and support to meet the reasonable needs of the Claimant arising from the injury sustained as a result of the Defendant’s wrongdoing, the model of care of to be adopted, and how it is to be costed, must be a jury question for the court having regard of course to the evidence before the court. I do not accept that those needs on the evidence remain unproven or speculative. Nor do I accept that the material extent of the Claimant’s injury remains unproven or speculative, by which I mean material for the purposes of determining what is in issue before me, that is material for the purposes of assessing her reasonable needs and the reasonable level of support which is requires. I consider the court is able on the evidence to make proper findings on the balance of probabilities on all these issues.[114]Notwithstanding, I have accepted that there has been obvious exaggeration of symptoms in presentation to the medico-legal experts as to that part of the Claimant’s cognitive deficit capable of being assessed by testing (defects in executive dysfunction relating to memory, planning and decision making) and to a degree even in relation to her physical deficit (see again the evidence of Professor Neary), and even if there is some continuing exaggeration in the presence of her family, the fact remains that the Claimant on the evidence has sustained a permanent front lobe injury to her brain of some severity and by reason thereof in the unanimous opinion of all experts, even allowing for the exaggeration referred to, is incapable of independent living. There is no pleaded case that the Claimant on that question (whether by reason of her injury she is incapable of independent living) has put forward a false claim and none of the expert evidence has suggested that the court is dealing with a malingerer who is quite capable of independently looking after herself.[115]Even if as Dr El-Assra opined (by reference to the DVDs and the presentation to Dr Scheepers) the Claimant is currently capable of more interaction, more spontaneous behaviour and better able to perform independently than had hitherto been presented to the medico-legal experts, and even if, as I have accepted, it is likely there will be some improvement in her condition once the litigation is ended relating to her functional independence (that is her ability to achieve more by herself), especially if contrary to my assessment of the likelihoods in this case, BC were, by leaving, to cease to be an influence over her, the Claimant will on the evidence always be incapable of independent living. I accept Dr Schady’s evidence that not only can there be no further improvement in brain function but that the Claimant’s organic neurocognitive difficulties with memory and cognition - which on the unchallenged evidence of both BC and CC I have accepted do exist to a significant degree - are likely to become prominent as she ages because she has lost some cerebral reserve and her right sided weakness and moreover her gait problems, currently described as ‘mild’ will become worse with the effects of aging.[116]I accept on Dr Brooks’ evidence, and indeed on the overall thrust of the entire expert evidence called before me, that by finding the Claimant is permanently incapable of independent living the court is finding that the Claimant will always be in the position whereby she cannot get through life by herself without supervision and prompting for the activities of daily living and will never be in a position whereby the need for supervision and prompting, and the need in principle for an externally applied programme of structure and support, will disappear. I found Professor Neary’s, again unchallenged evidence, compelling when he said that the Claimant would fall into a state of personal neglect if she did not have someone living with her as I didthe evidence ofDr Brooks that he was unable to imagine the Claimant without support and that left entirelyon her own the Claimant would be at serious risk of developing low morale and depression and there would be issues of vulnerability.[117]In the round, I find that there will always be a continuing need in this case for daily support, with an emphasis on a consistent programme giving structure to the Claimant’s life, to keep the Claimant safe as far as this is necessary (on this see below), to attend to her needs as necessary, to keep her company, to motivate her, to enable her to do as much as she can for herself and in the round to permit her to have a good quality of life. These were all aspects of her need which both care experts accepted currently existed.[118]Mr Featherby referred me to authority on the issue of the assessment of gratuitous care, to the effect that damages are not available for the provision of companionship as distinct from the provision of essential personal services but the rationale underlying such a principle, namely that there is normally no identifiable need for such company flowing from the injury itself, can have no application in my judgment where that need does flow from the effects of the frontal lobe injury. I agree with Mr McDermott that the emphasis put by Mr Featherby upon an analysis of the minutes of direct physical input from BC fails to recognise the Claimant’s need for supervision and prompting throughout the day.[119]Further I find that whatever improvement may occur in the Claimant’s non organic condition, it is unlikely that the level of support requited will ever diminish. Given the permanence of the frontal lobe injury, I can see no basis on the evidence, as suggested by Miss Gough, that an ‘optimal‘ level of independent living will be reached and will be capable of being independently maintained without the previous level of support, with a need only for a modest element of ‘monitoring'. Even Miss Gough acknowledged in oral evidence that her provision of support decreasing to only 2 hours per day was ‘woefully low' and not sustainable in the light of the medical evidence. The unchallenged (on this aspect) evidence of those who have had first hand experience of dealing with the Claimant (BC, CC, Angela Kerr) justifies the finding that the Claimant is unlikely to retain that which she has learned unprompted and unsupervised.

Need for constant attendance ?

[120]The real issue on the evidence in my judgment is whether the Claimant requires that support (whatever its source) to be available at all times throughout the day and night. In other words does she require constant attendance. Mr McDermott understandably building on the joint opinion of the care experts that the Claimant does require a 24 hour regime in the event BC is taken out of account, submits that the court is bound to find given the permanence of the frontal lobe injury, that the Claimant needs someone available to her most (if not all) of the day and someone on call and available to attend to the Claimant overnight. In other words that the Claimant cannot be left alone for any significant period and cannot be left alone overnight. The court was reminded of the approach adopted by the court of appeal in Evans v Pontypridd Roofing Limited [2002] P.I.Q.R.Q5 where (at page 9) May LJ observed that any determination of the care services required consequent upon the Claimant’s injuries do not have to be limited in every case to a ‘stop watch calculation of actual physical assistance’ and a person’s condition may be ‘so severe that the presence of a full time carer really is necessary to provide whatever assistance is necessary at whatever time unpredictably it is required’ (although again the court cautioned against being misled into findings that a gratuitous carer is undertaking full time care simply because they are for other reasons there for most of the time).[121]Ultimately I have concluded that I cannot be satisfied on the evidence that the Claimant’s physical and mental deficit is so severe that she does need such constant attendance, at least during the day. This is where the unreliability of the Claimant’s presentation to the medico-legal experts and the Claimant’s likely illness disorder (to the extent that ‘she now truly believes she has a major disability’ per Dr Schady) does become relevant. At the heart of Mr McDermott’s submission for constant attendance is that the court should find that the Claimant is always on risk of mishap and her safety is at risk if it were otherwise. However as I have already indicated, I do not consider the evidence justifies such a conclusion (see paragraphs 61-64 above). The fact is the Claimant has on occasion been left safely on her own over the years (even if this be only that she has been left alone in her part of the house) without mishap, and may well (notwithstanding BC's evidence to the contrary) have been left alone completely without mishap, albeit for short periods while for example BC has gone out shopping (and as already indicated, Ms Johnson herself thought that this was not an unsafe scenario).[122]Of course I accept the court has to take on board the vulnerability of the Claimant with the cognitive deficit she does have, whatever its extent, and the risk (although as yet unmaterialised) of her being unable to cope with an unforeseen emergency. Equally I am firmly of the view for the reasons given by Professor Neary and Dr Brooks in particular, that the Claimant should never be left ‘entirely’ on her own in the sense of being expected to live alone (which is very relevant to the assessment of the required regime on the hypothesis that BC and the Claimant were to separate completely) but ensuring that the Claimant is always living with another person in the same household does not inevitably carry the requirement that there is always somebody in constant attendance upon the Claimant.[123]Moreover I do find substance in the caution reflected not only in the evidence of Dr Schady but also in the joint evidence of the neuropyschologists to which I have already referred, against the provision of counterproductive excessive care which is likely to maintain and promote the Claimant’s factitious beliefs and promote her dependence rather than motivate her to do more for herself.[124]On the other hand considerations of the Claimant’s vulnerability and need not to be left entirely on her own, have led me to the to conclusion that she will always need someone with her overnight on a sleep-in basis, subject always to a contingency for waking night cover in the event the Claimant were, as Ms Johnson put it, ill or particularly anxious.

The number of support hours required and from what source

[125]Doing the best I can to reflect my assessment of the Claimant’s reasonably required support needs consequent upon her injury as I have found it to be, I conclude that while BC is available to provide overnight cover, the Claimant reasonably requires 10 hours daily support (from whatever source it is provided), rather than the 15 advocated by Ms Johnson which is premised upon the proposition which I have not accepted that the Claimant can never safely be left alone for any significant period, or the much lesser provision advocated by Miss Gough which underestimated in my judgment the ongoing need for ‘supervision and enabling’, and rather than Mr Featherby’s formulation which in my judgment is based upon an over analytical dissection of the evidence.[126]In principle what the Claimant’s needs reasonably require is that that daily support should be provided by outside agency support workers trained to provide the structured programme so obviously required rather than reliance upon the unpredictable provision provided by the gratuitous care of BC. However I accept that for the foreseeable future based on my finding that BC is unlikely to leave, part of that provision will on the balance of probability be provided by BC himself. However, for the reasons I have already explained, I consider that the likelihood will be that this will be on an ever decreasing basis. As already indicated, I propose to proceed on the basis that although the commercially provided outside support may have to be introduced on a gradual basis with a high turnover of staff and some gaps in provision, the Claimant will in time accept a preponderance of outside worker support. The optimum required outside provision in my judgment is and in time will likely to be that set out by Ms Johnson in her scenario three, namely 64 hours per week with the support being provided by Mr Yearsley being reduced to 2 hours per day and subject to the need to provide for contingencies referred to by Ms Johnson (extra cover to provide for the Claimant’s illness and holidays).[127]Although I have found that the Claimant does not require a 24 hour regime, I would allow the contingency provision to be on such a basis and even though there is some force in Mr Featherby’s submission that based on experience to date the likelihoods in the foreseeable future are against the Claimant and BC taking a support worker with them when they go on holiday (see again the Florida holiday). In other words I would accept the 7 week contingency provision of Ms Johnson since the fact that it may in the event be an overprovision in any given year, will also allow for the risk that such a regime may in fact become necessary were the Claimant’s condition to deteriorate or BC were to become unable to provide his input. It will also allow for the risk that, contrary to my findings of what is likely, BC were to leave and would allow for the building up of a sinking fund to cover that eventuality. For similar reasons I will allow in full the annual activities allowance.[128]If the Claimant were ever in the position that BC had left the home or were unable for some other reason to provide night cover, then I would still assess the need at 10 hours of daily support but with provision for the overnight cover which I have already set out (see paragraph 124 above). I do not propose however to make an award expressly on this hypothesis since its likelihood of it occurring is in my judgment remote and the risk of it occurring can fairly be reflected in the contingency allowances referable to the other scenarios.

Case management

[129]As to case management, the court will have to make a jury assessment to reflect the risk that initially it will still be BC who will be the principal manager as contended by Mr Featherby but that gradually over time he will accept - or may be compelled by the court to accept - the input from the professional case manager. In principle however I would accept the case management approach and costings put forward by Ms Johnson, which total just over £13,000 (£13,068.00). As between Ms Johnson and Miss Gough, Ms Johnson has had the greater hands on experience of working with and acting as case manger for brain injured people and on the question of case management needs I found her evidence, which I have already summarised, the more compelling. What I propose to do however is to explain how in principle based on my findings the award for future care and support should be made up before factoring in the provision for case management.

Costings

[130]As the costings of outside agency support, I agree with Mr McDermott that the appropriate figures should be those on the evidence which are charged by the Pulse agency although these are higher than those used by Ms Johnson in the costings set out in her final report. They are the figures which Miss Gough herself produced and I seen no rational basis for denying the Claimant the benefit of them.[131]As regards the costing of BC's gratuitous care, I would use the £7.11 hourly rate which Ms Johnson herself used which appears to me to be sufficient to enable the Claimant to give reasonable recompense to her husband for his support services. I would not discount it any further to reflect the fact BC will not himself be liable to tax and national insurance since the figure itself represents compromise over what is the appropriate commercial rate. Mr McDermott argued for a higher rate in respect of any period when Mr Yearsley is providing all the Claimant’s care and support needs being the £10.00 hourly rate which Ms Johnson said was the appropriate commercial rate for the direct employment of support workers (and which Miss Gough agreed was not unreasonable). This was on the ground that the Deputy should be invited to undertake to employ BC on a PAYE basis thus allowing flexibility to employ someone else in his place if and when the need arose. In my judgment this is to over complicate matters. As it is, and as will be seen, my considered solution is to make a jury award which best reflects and factors in the court’s assessment as to the likely periods when BC will be the sole provider, the gradual introduction of an ever increasing level of outside support with the inevitable likely hiccups along the way with a higher than usual turnover of staff and some gaps in provision when outside support is rejected, leading ultimately to the optimum level of external support provision representing 64 hours a week with two hours a day being provided by BC. As have said I do not propose however to make an award expressly on the hypothesis that BC and the Claimant will separate since the likelihood of it occurring is in my judgment remote and the risk of it occurring can fairly be reflected in the contingency allowances referable to the other scenarios.

The Court’s award in principle

[132]The mathematical calculations emerge as follows for each of the three scenarios which in my judgment have to be accommodated in the overall compromise I have explained will be the basis of my award.

Scenario one: BC providing the entirety of care and support

[133]I calculate this on the basis of a provision of 10 hours a day at £7.11 per hour i.e. £71.10 per day seven days a week 52 weeks a year, a total per annum of £25,951.50. To this I would add provision for case management of £5,130 per annum. This is the modest case management provision advocated by Mr Featherby. I add it at this modest level to reflect the likelihood that initially BC as during current times will insist on taking the lead role and the professional case manager will be taking a back seat as Ms Kerr she herself had been taken in the weeks leading up to the hearing of this action. Nor would I add any annual activities allowance since this can only be justified in my judgment as an extra allowance based on support worker involvement. Thus the total under this scenario number one is £31,081.50.

Scenario two : Outside support totalling 35 hours per week

[134]This scenario allows for 35 hour outside support 5 hours per day, with BC providing gratuitously the further 5 hours to make up the requisite 10 hours, to which I would add Ms Johnson’s 7 week contingency allowance, the annual activities allowance and her case management provision, for the reasons I have already explained. The figure I reach for overall cost of this package is that contended for by Mr McDermott for his version of this scenario save that the provision for the gratuitous care of BC is halved (Mr McDermott’s 10 hours is reduced to 5) so as to come down to £12,975.75. The total cost is accordingly £79,970.27 per annum. I attach an annex to this judgment to set out precisely how this figure is reached.[135]This scenario allows for the bulk of the required daily support provision to be outside support with only two hours being provided by BC to which again I would add Ms Johnson’s 7 week contingency allowance, the annual activities allowance and her case management provision, for the reasons I have already explained. Again the figure I have reached for this overall provision is that contended for by Mr McDermott for his version of this scenario save that the gratuitous care of BC, to be assessed in my judgment at two hours a day, comes in at an annual sum of £5,190.30. This makes a total annual cost of £99,545.66, per annum. Again, the details of the calculation appear in the annex.

Overall conclusion

[136]The question then becomes how to fix an award based on these three scenarios which takes into account the factors I have already identified, namely the likely periods when BC will be the sole provider, the gradual introduction of an ever increasing level of outside support with the inevitable likely hiccups along the way with a higher than usual turnover of staff and some gaps in provision, leading ultimately to the optimum level of external support provision representing 64 hours a week with two hours a day being provided by BC, and bearing in mind also that within the latter two scenarios I have factored in the risk that BC may one day either leave or be quite incapable of being able to provider any support or overnight cover, without the need in my judgment to cost a scenario based expressly on this hypothesis.[137]The answer to this question is supremely a jury question. Inevitably it is necessary to use a relatively broad brush . My considered answer is to allow in present day values for an initial period of five years an annual sum of £55,000 which is the approximate midway figure between scenario one and two. Thereafter for a further five years to allow an annual sum of £90,000 which is the approximate midway figure between scenario two and three and thereafter to allow £99,550 for the rest of the Claimant’s life which is scenario three, (rounded up).

Life expectancy : multipliers

[138]How this translates into a periodical payments order will have to be a matter for further submissions. If either party wishes to contend in the light of this judgment that a periodical payments order is not appropriate, then I will also hear further submissions on life expectancy and multipliers necessary to convert my conclusions into a lump sum award but I stress my present view that this is a case where periodical payments is the appropriate way to award compensation for care and case management.