Downing v Peterborough & Stamford Hospitals NHS Foundation Trust [2014] EWHC 4216 (QB)

Case No HQ11X01841

[2014] EWHC 4216 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

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

Date 12 December 2014

Before

SIR DAVID EADY

Sitting as a High Court Judge

Between

RICHARD PETER DOWNINGClaimant

PETERBOROUGH & STAMFORD HOSPITALS NHS FOUNDATION TRUSTDefendant

Harry Trusted and Benjamin Bradley (instructed by Scott Moncrieff) for Claimant

Martin Porter QC (instructed by Kennedys Law LLP) for Defendant

Hearing Hearing dates: 21, 22, 23 and 24 October and 2 December 2014

Judgment

Sir David Eady:

Introduction

[1]The Claimant, now aged 43, claims in respect of what counsel has characterised as the “catastrophic” consequences of an operation carried out on 13 November 2006 in the Defendant’s hospital with the intention of ameliorating his loud snoring. It made no difference to that condition and later investigations appear to establish that it could not have achieved that purpose in any event. A compromise has been reached on liability and causation whereby the Claimant is to receive 63% of the damages that are to be awarded on the assumption that he has succeeded on both issues (without any admissions being made).

[2]Prior to the operation, the Claimant had been a warrant officer (class 2) in the Army Air Corps and had very good prospects of further promotion and indeed, in due course, of being commissioned. The likelihood is that he would have retired from the army at the age of 50 or, possibly, at 55 if he progressed to the rank of major and obtained a regular (as opposed to intermediate) late entry commission. There would, in either event, then have been a good chance that he would have obtained a responsible and reasonably well paid post in civilian life. He had been classified as an “outstanding” warrant officer and was spoken of in glowing terms in the evidence of the military witnesses, whose evidence was admitted without challenge.

[3]Unfortunately, following that surgery he suffered an infection which led to reactive arthritis and eventually to a disabling pain disorder. He was unable to return to his duties and he was, ultimately, discharged on medical grounds on 9 August 2010. It is said, and the evidence appears to confirm, that he is unlikely ever to work again. He has been described as having been for long periods effectively a “prisoner” in his home and has been for the last eight years unable to participate in everyday household and family activities. The scope for any social life has also been severely restricted.

The centrality of prognosis

[4]Counsel are agreed that the principal issue for the court now to resolve is the extent to which there is likely to be any significant improvement in the Claimant’s condition, whether following the resolution of this litigation or at all. It seemed at the beginning of the trial that there was significant divergence between the medical experts on prognosis and, although the areas of disagreement narrowed somewhat in the course of the hearing, there remain differences of emphasis. This is the first issue that needs to be addressed, since it underlies the considerable gulf between the parties as to the appropriate level of compensation required.

[5]Two important points need to be highlighted at the outset. First, it is no part of the Defendant’s case that the Claimant has been malingering or seeking consciously to exaggerate any part of his claim. Secondly, on the contrary, it is accepted that he has always been very keen to get better, so far as possible, and willing to co-operate fully with any medical advice given. I heard evidence from the Claimant and his wife, who described herself as having been transformed within a very short space of time from a partner to a carer. She also said that she was in many respects in the position of a single parent so far as child care is concerned. She is clearly a remarkable woman and has been able to sustain the family over many years and under very demanding circumstances. Certainly, both were credible and reliable witnesses.

[6]The medical experts acknowledge that it is highly relevant to any prognosis that the pain disorder has become “entrenched” over the intervening period. For example, the psychiatrists (Dr Spencer for the Claimant and Dr Jackson for the Defendant) noted in their joint report that “… we have significant concerns about this Claimant’s prognosis, due to the length of time over which entrenchment has taken place (it is now some eight years since the index event). This is unfortunately likely to impact upon the extent to which he can be expected to respond to treatment …”

[7]A particular feature of this case has been the interdependence of the medical experts (two each in respect of psychiatry, rheumatology and pain management). The Claimant’s symptoms are plainly linked and yet each of the experts was keen to qualify his remarks by emphasising that he deferred to the experts in the other medical fields. It is, however, in the nature of the Claimant’s overall condition that those symptoms cannot neatly be compartmentalised or treated in isolation. Such factors as continuing physical pain, the prospect (if any) of physical recovery and the recurrence of depression are obviously likely to interact.

[8]Having cited the psychiatrists, I should refer also to the joint observations of the rheumatologists (Dr Armstrong for the Claimant and Dr Merry for the defendant). They reaffirmed a comment originally made by Dr Merry in his report of 13 April 2014:

“The Claimant’s long term prognosis for his arthritis is very poor. I do not expect that he is going to improve from his current situation significantly. In addition, chronic pain syndrome/fibromyalgia is notoriously resistant to treatment and again I think the long term prognosis for recovery from this is poor. He has severe disability and I am of the opinion that he will never be able to work again. I think that he will have a life long disability …”

[9]The pain experts are Dr Munglani, for the Claimant, and Dr Valentine for the Defendant. They agreed in their joint statement of 5 September that the Claimant presented with severe chronic pain associated with considerable psychosocial dysfunction. They were of the view that the only clearly identifiable biomedical basis for the onset of pain was the episode of reactive arthritis in 2006-2007. They referred, however, to “ongoing sufferance of widespread pain entrenchment in the absence of any ongoing biomedical mechanism” (my emphasis). Yet it is important to note that they defer to the expertise of the rheumatism experts in this field. Dr Merry confirmed in the witness box that there are underlying arthritic problems, for which the Claimant has been prescribed drugs throughout. These may well be suppressing or masking some or all of the symptoms of arthritis (which is presumably their main function). He also cited persistent pain in the heels as being a possible indicator. Meanwhile, he remains under the care of Ipswich Hospital specifically for arthritis. When Dr Merry and Dr Armstrong were asked to clarify whether their very poor prognosis related to arthritis or to the chronic pain syndrome, they responded that it related to both (although the pain syndrome was predominant at that time).

[10]In those circumstances, it would not be right to accept that the joint assumption of the pain experts, as quoted above, is correct; that is to say, that there is no “ongoing biomedical mechanism”. Nor can I assume, as did Dr Munglani (at paragraph 10), that “the physical factors have resolved and the psychological/psychiatric consequences of the index event have maintained the pain state”. Dr Munglani was of the opinion that the best treatment “will involve a significant psychological/psychiatric component … and the ultimate prognosis will lie in the psychological/ psychiatric domain”. (It is perhaps ironic that when the Claimant made himself available earlier this year for a recommended pain management programme (“PMP”) with Real Health he was rejected for the course because of his lack of physical independence, as emerges from their letter of 7 May.)

[11]At all events, by the time he went into the witness box, Dr Munglani had changed his view. He sought to explain why he had done so, but it is quite clear that he had especially been affected by the evidence, on the previous day, from Dr Merry in relation to the Claimant’s heels and, more generally, his attribution of the pain, at least to a significant extent, to ongoing physical causes rather than simply to psychological factors. Also, the scales had apparently fallen from his eyes on reading Dr Spencer’s report (although this was dated as early as 19 February 2014). He realised that the Claimant had not been as psychologically robust as he had previously thought. He had, it seems, been impressed by his relatively cheery demeanour at his own consultation but he had now concluded, as he put it, that he had just been “putting on a brave face”. This was an instance of one expert deferring, albeit rather late in the day, to the expertise of two experts in different fields.

[12]Mr Porter QC, in closing, did not ask me to reject Dr Munglani’s latest opinion on prognosis as being dishonest, but he clearly wished me to be guided by his earlier stance on these matters. It is not for me speculate on how Dr Munglani came to change his mind, at the eleventh hour, and to take an altogether more cautious and pessimistic view on prognosis, but I am quite satisfied that it is more rational, rigorous and evidence based than the earlier rather vague comments (cited above).

[13]In so far as the experts are in difficulty in identifying the true nature and causation of the Claimant’s chronic pain, they are correspondingly at a disadvantage in making a realistic prognosis for the court to rely upon when making an assessment as to his future needs on a balance of probabilities. I was wary of relying upon any “breezy” conclusions based on the proposition that, since the Claimant’s chronic pain should be accounted for in largely psychological terms, therefore the cloud will lift once the litigation is resolved (on whatever basis). That prospect has now faded into the background as the pain experts’ underlying premise in their joint report has now been (correctly) abandoned.

[14]Dr Valentine had pointed to literature which deals with improvements that have apparently occurred to the symptoms of some claimants once their legal claims have resolved. I am much more concerned with assessing these unique circumstances, in the light of the specific evidence before me, than with generalities, or with trying to draw analogies with other cases in respect of which I am not familiar with the full facts. The reference to general statistics does not assist me to deal with these particular circumstances, which have plainly confronted each and every one of the experts with considerable difficulty. In my view, none of them has been able to come up with a wholly convincing appraisal of the Claimant’s admittedly chronic pain – whether past, present or future. That is not a criticism. I am sure that they have all done their best. But, whatever may be the true explanation, I have to confront the reality of the continuing disability, on the basis of his present needs, unless I am persuaded, on a balance of probabilities, that there is going to be significant change or improvement.

[15]It is quite clear, moreover, that thinking has changed over the last few decades as to the significance of resolving litigation. Where there have been improvements, this is sometimes explained by reference to “closure” and/or the supposed removal of a sense of injustice. But nowadays it is thought to be important to analyse individual circumstances, such as for example the breakdown between those claimants who, upon the resolution of their legal claims, find themselves with good job prospects and those who do not. It is hardly surprising that those who are employable tend to cheer up rather more than those who are not. It all depends on the facts of the particular case. As Robert D Goldney concluded with no little bathos, in his article “Not Cured by Verdict” nearly 30 years ago, “The challenge remains to delineate who will, and who will not improve following the settlement of litigation”. That is one of my tasks in this case.

[16]In any event, “closure” is a vague concept and it provides no solid basis on which I would be prepared to conclude that this Claimant’s disability or his chronic pain will, sooner or later, significantly reduce on the handing down of judgment. Nor do I see that any sense of “injustice” (on which he was not invited to give any evidence in cross-examination) would be reduced by an outcome such as that for which the Defendant contends, and which would leave his claim (at least in his eyes) significantly undervalued. Whether any sense of injustice is or is not removed may well depend on the outcome of the litigation – not on the mere fact of its coming to an end. This Claimant’s sense of injustice relates to such matters as the fact that he was advised to undergo a pointless operation, which led to his suffering constant pain, the loss of an enjoyable and rewarding career and the fundamental upheaval of his happy family life. Money is never going to compensate adequately for that. Nothing is going to remove that sense of injustice.

[17]There is some reason to hope that the Claimant may achieve some improvement as and when he is able to take advantage of a course of treatment (such as a PMP), perhaps at the Royal National Hospital for Rheumatic Diseases. Both Dr Munglani and Dr Valentine have mentioned this as a possible worthwhile course of action – despite their original premise that there is no longer any physical or biomedical aetiology. There would be considerable delay in arranging such a course, and correspondingly any improvement would be at least a year or two into the future. In any event, the chances of substantial success are modest, to say the least. It needs to be borne in mind, in particular, that past attempts as an out-patient in the pain management clinic at Ipswich have yielded little success. Dr Valentine took a stab at evaluating the chances and thought that, if there was a good psychological/psychiatric prognosis, the Claimant had a roughly 70% chance of some improvement (perhaps 30% or even more). What that would mean in practical terms is by no means easy to assess. No one suggests, however, with any confidence that the Claimant could expect to be fit for employment, or even totally free of the need for a wheel chair. It was made clear also that pain is bound to continue notwithstanding treatment, although there may be temporary relief. It is to be noted, by the way, that Dr Valentine’s proviso (about a specifically psychological prognosis) is another illustration of the attempts to compartmentalise symptoms, when that would be in this case an artificial exercise.

[18]As Dr Spencer emphasised, and as seems obvious, there is a link between pain and depression. One cannot realistically make assessments about the Claimant’s prognosis in isolated departments. If pain continues, it will be likely to impact upon psychological wellbeing. He, like Dr Munglani, placed some weight on Dr Merry’s evidence of continuing arthritic pain because that factor naturally tends to confirm that the Claimant’s future treatment and prognosis cannot be determined solely by reference to his psychological state. Dr Spencer said that in circumstances such as these there is bound to be a “vicious circle”, with pain and depression inevitably linked.

[19]As for the Defendant’s psychiatric expert, Dr Jackson, I found his evidence surprising (and I doubt that I was alone in this respect). On going into the witness box, he sought to resile from the joint statement in a number of respects and chose to attack the Claimant on grounds that he had not even touched upon in his written material. It was noteworthy that he had not offered a prognosis in his earlier report – presumably because he felt unable to do so. Yet he now offered the view that the resolution of the litigation would have a “profound” effect on the Claimant and might well mean that no further anti-depressant treatment would be required. His original view was that it would be needed indefinitely, and at least for several years. He was at a loss to explain why none of this had been mentioned before. Furthermore, he expressed himself surprised that the Claimant had made no effort to retrain for fresh employment. Yet again, this had been wholly unexplained or in any way heralded in his written evidence. He even said that his observation of the Claimant in the witness box had led him to conclude that he was not suffering from any significant depressive disorder – despite his earlier prediction that he would need to continue with anti-depressants for some time to come.

[20]Up to that point, no one had suggested that the Claimant was other than highly motivated to improve his quality of life, for the sake of himself and his family, or that he was in any way less than genuine in his presentation of symptoms. Certainly, as I have said, no one accused him of malingering. As to motivation, however, it is important to note the written evidence of the consultant physician, Dr Almond, that he has been adversely affected in this respect by the considerable quantity of drugs he has been prescribed over the years. He pointed out that, in particular, amitriptyline and opiates are bound to have curtailed both motivation and physical capacity. This was not addressed at all by Dr Jackson. I am afraid that I came to the conclusion that I could attach no weight to his evidence (save where independently supported). He seemed to manifest a degree of truculence and hostility towards the Claimant and thus to lack the necessary independence.

[21]Against this background, one could hardly conclude with any confidence that Dr Valentine’s proviso can be fulfilled (i.e. “a good psychological/psychiatric prognosis”). Nevertheless, as I have recognised already, some benefit may be gained from a PMP or similar course of treatment. (There would be a psychiatric element within such a course.) It is worth trying and some modest discount needs to be allowed in that respect when arriving at a figure for general damages for pain, suffering and loss of amenity.

My conclusions on prognosis

[22]Given the lack of clear and positive evidence from any of the experts, and the tendency of at least some of them to qualify and back track from the recent joint statements, I must state my own conclusions as to prognosis, on a conservative basis, and primarily in the light of what is known to have happened in the past and of my own assessment of the evidence as to the Claimant’s present state.

[23]Nothing has persuaded me that the proposed course of treatment is likely, on a balance of probability, to bring about any significant long term improvement, still less a cure, so far as concerns his mobility, pain and tendency towards depression. Specifically, I see no reason to suppose that he is going to become free of his partial wheel chair dependence. This was realistically acknowledged by the experts who gave evidence. The position appears to be that he struggles to avoid using the “contraption” for so long as he can but on “bad days”, which occur roughly speaking about once a week, he has to resort to its use about the house. He also needs it outside the house if he is going otherwise to need to walk for more than (again roughly) 20 yards. Nor do I see any prospect of his resuming any paid employment in the foreseeable future. He is likely also to remain for the long term on a drugs regime (although the prescription of the various elements may vary from time to time). Thus, in the light of the evidence, I am reluctantly driven to the conclusion that the only realistic prognosis is a pessimistic one. Accordingly, he is almost certainly going to have to pursue a similar lifestyle to that he has undergone for the last few years (things appear to have stabilised approximately four years ago). Future needs, therefore, will have to be assessed by reference to that starting point. My conclusion in this context seems to me to be quite consistent with the expert evidence as it now stands.

[24]The contrast with his previous personality, physical capacity and positive lifestyle could hardly be greater. He and his wife have stoically faced a fundamental reversal of fortunes which would have tested many relationships to destruction, but thanks mainly to Mrs Downing’s strength of character the family structure remains largely intact. I am quite satisfied that they have given the court a realistic and clear picture of their daily lives.

[25]I now need to address the various heads of damage identified in the schedules. Counsel recognise that, once my rulings on issues of principle have been given, it will be necessary for them in some instances to calculate the financial consequences for particular items.

Pain, suffering and loss of amenity

[26]Counsel both referred to the Judicial College guidelines, although recognising that there is no very close analogy between any of the listed conditions and this Claimant’s particular combination of symptoms. Reference was made both to chronic pain brackets and also to instances of compensation for incomplete paraplegia. Particular settlements were cited, including Reynard v Exquisite Cuisine Ltd (a Court of Session case in 2005), X v West Middlesex NHS Trust (2014) and Aldred v Western Sussex Hospitals NHS Trust (2012). I concluded that a fair figure for general damages would be £93,000.

Accommodation

[27]There is a large claim for future accommodation costs (totalling £672,183), which is based primarily upon wheel chair dependence. Although that dependence is not total, and a wheel chair is only required on a minority of days, the fact remains the accommodation needs to be reasonably compatible with such use. Premises either are so compatible or they are not. My initial impression was that this head of claim is disproportionate and excessive, but in the end I decided that, just because the Claimant is only partially dependent, it should not necessarily follow that the home need not be wholly compatible. There are a number of particular matters to which attention was drawn by Ms Sexton (the Claimant’s care expert) and by Ms Minton (his accommodation expert). The claim was denied on the basis that his condition would improve to such an extent that his present bungalow will suffice for his needs, but my determination on prognosis renders that untenable. The Defendant called a care expert (Mrs Thorpe) but chose not to match Ms Minton’s report with any such expert evidence of its own. This does not mean, however, that her report must be accepted unquestioningly. She put in some material simply by the press of a button on her word processor which produced a standard list of aids or improvements. This was to show, she said, what a range was available and it was up to the court to decide how much of it to include. It certainly cannot be assumed, therefore, that she was expressing a professional opinion that this Claimant had need of everything she listed.

[28]The Claimant now has the use of an adapted en suite shower room. On one of his wheel chair days, he can enter the room but then needs his wife to remove it so as to give him room to move. He cannot have a bath because it is not accessible to him. Mr Porter says that he should, therefore, manage without taking a bath ever again and make do with a shower (as many able bodied people do nowadays from choice). A bath, he says, should be regarded as an “over the top” luxury item along with the hoist that would need to accompany it. Ms Minton confirmed that the Claimant’s preference, prior to the onset of arthritis, was for a bath rather than a shower. That does not seem unreasonable but, taken by itself, would hardly justify moving house. This is not, however, the only problem.

[29]The kitchen does not appear to accord with modern standards of safety and hygiene. I understood Mrs Thorpe and Mrs Sexton to be agreed that it is just too small for the Claimant’s needs. Ms Minton set out a list of desirable changes in her report at pages 9-11, over which there could be minor quibbles of detail, but which appeared to give a fair summary. The Claimant needs to access storage cupboards and requires room to be able to sit at any work surface in order to perform tasks with both hands. If forced to stand, for lack of room, he would for much of the time be using his walking stick and thus only have one hand free for his tasks. Mr Porter suggested that if it was one of his “bad days”, he probably would not feel like doing anything in the kitchen any way, and would either be staying in bed or sitting about in his wheel chair. That seems a little harsh.

[30]Further practical difficulty is caused by the narrow width of the central corridor, which has led to plaster and wood being chipped by attempts to manoeuvre the wheel chair in a confined space.

[31]Another factor is the supposed need for a spare bedroom for visitors, which Mr Porter characterises as an unnecessary. He says there is no more a requirement for this family to have such a facility than for anyone else. I see the force, however, of the argument that their social life is severely restricted at the moment. Accordingly, the only realistic means of continuing friendships and family contact is to have people come to stay (in the case of those living at a distance). The Claimant can drive considerable distances, with suitable breaks, but he cannot conveniently stay elsewhere because of his physical restrictions and the need to have a wheel chair.

[32]Finally, it became necessary to use a conservatory extension as the family living space. This is not suitable because of the escape of heat through the glass in winter and excessive heat in the spring and summer. (What had previously been the living area had to be used, following alterations for access, as a bedroom and/or study.) Sometimes, I was told, the conservatory had also to be used by Mrs Downing as sleeping accommodation during nights when she is disturbed by the Claimant’s night time movements. A spare bedroom would clearly be better for Mrs Downing as and when she needs to make such a temporary move during the night.

[33]The cumulative effect of these problems seems to me to go beyond minor inconvenience and persuades me that, expensive as it undoubtedly is, the claim in respect of future accommodation is in general terms well founded. The calculation of the sums claimed includes such items as adaptation costs (less betterment value), additional floor coverings and curtains (wholly disputed), the expenses associated with moving (including reconversion costs to render the current property saleable to a non-disabled purchaser), a figure for loss of capital/ Roberts v Johnstone, additional council tax (agreed), and the future replacement or adaptation costs of the initial property adaptations that are going to be required to meet the Claimant’s current needs. I am not persuaded of the need to include carpets and curtains, as to which I believe nothing was said in the course of the hearing. Also, I regard £435,000 as a more reasonable figure in respect of the purchase of a new property. Otherwise, I consider the Claimant’s figures based on Ms Minton’s report to be fair and reasonable.

[34]As to the past, the army organised some improvements shortly after the Claimant first became disabled. The sum now claimed in respect of past adaptations to the family home is £50,274, which I consider that he is in principle entitled to recover. The Defendant disputes certain items and, in particular, the cost of the conservatory because it is said that it would have added value to the property. The figure claimed for that is £25,467. I cannot accept that this would account for a precisely corresponding increase in value, although it would no doubt have added something. I consider that a total award of £36,500 would be appropriate for past accommodation costs.

Loss of earnings

[35]The Claimant relied upon the evidence of Mr Nicholas Rynn and the Defendant on that of Mrs Jan Walters. Both were impressive and reliable witnesses. It would be inappropriate to make all assumptions about his promotion prospects in the Claimant’s favour, especially in view of cost cutting in the armed services in recent years, which has meant for example that there have been fewer opportunities for commissioning from the ranks, as the figures produced clearly demonstrate. It is quite possible that he would have ultimately proceeded to the rank of major, and been able to retire at the age of 55, but the court must allow for risks by making a suitable discount: see Herring v Ministry of Defence

[2003] EWCA Civ 528

, at [23]-[26]. I think that the likelihood is that the Claimant would have been promoted to the rank of warrant officer (class 1) in about 2009, and achieved an intermediate late entry commission (in April 2012 according to Mr Rynn). I believe the evidence also points towards his retiring at the age of 50 with the rank of captain (as predicted by Colonel Turner in his witness statement on which the Claimant also relied). I recognise that in addition to salary the Claimant would have received operational allowances (as broadly agreed) and longer separation allowances. These are addressed in Mr Rynn’s report also.

[36]Thereafter, I believe, in the light of the very positive assessments of his qualities and experience by all relevant witnesses, that the Claimant would have obtained a responsible post in the private sector starting at a salary of £40,000 to £45,000 and, in due course (say by the age of 55), have achieved an income in the range of £57,000 to £60,000 before tax. These figures are not in themselves controversial. I think it reasonable to assume that he would have worked to the age of 68 (rather than 70).

Loss of pension

[37]Mr Porter told me that there was no dissent from the approach of Mr Rynn in his report at pages 28-29. The appropriate figures can no doubt be calculated in the light of my conclusions on the Claimant’s career prospects.

Continuity of Education Allowance

[38]I am afraid that I must disallow the claim for a continuity of education allowance (CEA). The Claimant and Mrs Downing had an aspiration to send their boys to an independent boarding school and, if he had been able to continue his career in the army, the CEA would have given the opportunity to do so. There is little direct authority on this matter, although I was referred to the decision of Mr Andrew Collender QC, in Morgan vMinistry of Defence

[2002] EWHC 2072 (QB)

, at [67]-[69]. He referred (as did counsel) to the CEA scheme as a “perk”. It is tempting to regard the loss of this opportunity simply as something attributable to the ex hypothesi tortious conduct and which thus falls to be compensated. I believe, however, that the proper analysis is to regard it as a benefit available to guard against a particular contingency; namely, the disruption to a child’s education arising from the parent’s military postings. Since that contingency cannot now arise, compensation is not called for.

Past and future care

[39]After the first draft of this judgment was submitted to counsel for their comments in the usual way, new information came to light which put a different complexion on the claim for past care. Counsel had already requested the opportunity for further oral argument to deal with other matters, which took place on 3 December. It had by then emerged that the Claimant had been in receipt of payments of which we had all been unaware at the time of the trial. The evidence already showed that direct payments have been made by the local authority to Mrs Downing (equating to 14 hours per week) to assist her in caring for the Claimant and, subject to any legislative changes, it seemed likely that in practice that they would continue. I had ruled in the draft judgment that, if they were to continue into the future, then credit should be given in relation to such payments (as well as those in the past) in order to avoid double recovery. It then emerged that the Claimant had additionally been in receipt of an enhanced payment covering 12 hours a week paid at £17 per hour. It is now accepted in the light of this new information that there must be a nil award in respect of past care. It follows from this, says Mr Trusted, that there will be no damages from which to deduct CRU benefit received.

[40]Another recent development is that Suffolk County Council has indicated that any future direct payments will be subjected to a means test. The Claimant is now of the view that his receipt of the damages from this litigation may, in those changed circumstances, preclude or significantly reduce any further direct payments. The draft judgment had proceeded on the basis of the information then before the court. I had been told that he was likely to receive direct payments in the future, broadly corresponding to those received by Mrs Downing in the past. In principle, of course, it is right that an injured claimant is not required to rely upon public funds where he can have resort to a relevant tortfeasor: see e.g. Peters v East Midlands Health Authority

[2009] EWCA Civ 145

. Yet, if in fact such payments did continue to be made, credit would have to be given. That is why I ruled on that hypothetical basis. As matters now stand, Mr Trusted has indicated that the Claimant would like to give a Peters undertaking to the effect that he will not seek direct payments from any local authority. That will, of course, eliminate any risk of double recovery. Mr Porter says that it is too late for such a change of position. But my earlier ruling was based on a hypothesis that is no longer valid. There will, if I accept the proffered undertaking, be no local authority payments and therefore no risk of double recovery. It seems to me sensible to proceed on that basis, so as to reflect the latest information. Mr Trusted submits that there should be an award in respect of future care but without credit being given for any future local authority payments (since there will be none).

[41]In the draft, I included certain elements of loss to take account of past care. Since it is now accepted that this would not be appropriate, in light of the total amount of direct payments received (amounting to more than £18,000 a year), I have now deleted them.

[42]I turn to future care. Mr Trusted had divided the time into three phases. Phase 1 covers the period from October 2014 to age 50, Phase 2 extends from age 50 to 75, and Phase 3 to the end of life. Private care provision has been included with a view to relieving Mrs Downing of her specifically care duties and her becoming once again primarily a partner rather than the principal carer. Mrs Sexton also recommends “buddy” care, so as to enable the Claimant to re-engage to some extent with society and to resume some of his interests. This proposal may well assist him not only physically but also mentally and emotionally. Allowance has been made for a reduction in respect of periods of active service (£16,853). The number of hours claimed seems to be reasonable. Accordingly, the total figure for future care comes to £343,650.

[43]The Defendant allows nothing, because it is not accepted that there will be any future care requirement. I am quite satisfied, in view of the prognosis, that there will indeed be an ongoing need for future care.

[44]There was a dispute as to standard or aggregated rates. I was in this context referred to the judgment of Field J in Noble v Owens

[2008] EWHC 359 (QB)

, at [76]-[77]. I consider that a similar approach is appropriate here.

Case management

[45]There is a claim for case management put at £150,238. This seems excessive in view of the fact that there was fortunately no impairment to the Claimant’s mental faculties and that he had proved to be a more than competent administrator at work. I do, however, accept that he will reasonably require some assistance initially in arranging his affairs. I find the approach of Mrs Thorpe more reliable and will allow £12,000 to cover the period of five years.

Medical costs

[46]I will allow the figure of £761 in respect of past medical costs, as claimed. I also accept the need for occupational therapy at £3,000 and for chiropody services at £7,000. I have already made clear that the Claimant should have the opportunity to benefit, if he can, from a course of chronic pain rehabilitation as an in-patient. I do not accept that it is necessary to have two such courses and accept the recommendation of Dr Valentine in this respect. I assess this at £29,000. I also accept, in accordance with the evidence of Dr Spencer, that a course of cognitive behavioural therapy would be appropriate. I agree too that allowance should be made for psychiatric contingencies. I therefore include a further £9,000 to cover these items.

Aids and equipment

[47]I will allow £5,225, as claimed, for past aids and equipment. I was told by counsel that the parties were also agreed as to the cost of future aids and equipment, all of which seem to me to reflect reasonable requirements.

Transport

[48]The claim for past transport costs covers medical appointments and seems reasonable at £6,000. Mrs Sexton supported a substantial claim for future transport in addition. This consisted partly of future travel to appointments and partly of the cost of acquiring an adapted vehicle needing additional maintenance over the years. Although the Claimant himself had not given any evidence about this while in the witness box, I indicated in the draft judgment that I had concluded, on the basis of what Mrs Sexton had said, that a fair and reasonable figure to cover these items would be £35,000. This was another matter raised by Mr Porter on 3 December. There had been a flurry of activity during closing speeches and a new schedule was put before me by Mr Trusted which I compared with the counter-schedule when making my assessments. I did not realise that Mr Porter had not agreed to the admission of this new schedule, which had gone in without any permission being sought for amendment. By the time the new version was placed before him, and before the court, Mr Porter’s experts had gone and he had no opportunity to discuss the new formulation. I accept that he is entitled to take that point and I will therefore confine this head of damage to the maximum pleaded (which was £19,418).

Miscellaneous and Household Expenditure

[49]There is a total claim of £40,614 in respect of past miscellaneous and household costs, much of which is under challenge. I accept that there was a need for additional gardening and domestic services, which would have been unnecessary but for the Claimant’s state of health. I consider that £3,250 would adequately reflect this. I am unpersuaded as to the need to include a sum for grocery deliveries. A claim for ironing services is reasonable in principle, having regard to this particular Claimant’s previous role, although £10,906 seems disproportionate. I will allow £6,000.

[50]I accept that additional expenditure will have been incurred for window cleaning at £ 1144, but am not persuaded that it is appropriate to include a sum for refuse disposal.

[51]I understand that the need for electricity and water services will have increased as a result of the Claimant’s requirements. I assess the former at £4,500 and the latter at £400.

[52]It seems reasonable to me to include the costs of the wood burning stove because of the need to heat the conservatory.

[53]I am not persuaded that any sum should be added for additional clothing or to cover military insurance charges prior to discharge.

[54]I turn to the future miscellaneous costs. As to holidays, I believe that the Defendant’s approach is the more reasonable and will allow £25,000.

[55]The claim in respect of gardening, DIY and housing maintenance is put at £6,054 per annum. I believe this to be rather high, given the size of property contemplated, and will instead allow £4,000.

[56]I again disallow grocery deliveries and refuse disposal. I will, however, accept the items for ironing, which I assess at £14,000, and for window cleaning, which seems reasonable at £3,655.

[57]I also accept that additional electricity and water will be consumed by reason of the Claimant’s additional needs and assess the former at £17,000 and the latter at £100.

Conclusion

[58]I hope that I have now ruled on the issues requiring to be resolved, some specifically and others in terms of general principle, and that this will enable the necessary calculations to be carried out.

Consequential orders

[59]Counsel took the opportunity on 3 December to make submissions on what should be the consequences of my rulings. Mr Trusted referred to the new regime introduced in April 2013 in CPR 36.14. It is now clear that the judgment against the Defendant is “at least as advantageous to the claimant” as the proposals made in his Part 36 offer of 26 September. He then offered to accept £1.2 m (inclusive of interest) plus costs. The damages I have awarded amount to £1,508,524 (after deducting the agreed 37%). Mr Trusted therefore asks first, in accordance with CPR 36.14(3)(b) and (c), for costs to be awarded on the indemnity basis from the relevant date and for interest on those costs at a rate not exceeding 10% above base rate. The court is obliged to make such an order unless it considers it “unjust” to do so.

[60]Mr Porter referred to the indemnity costs provision as “punitive” in character. In one sense he is right, but one must be careful in the use of language in this context. It is quite clear that this rule, which obviously has legislative sanction, was not intended to “punish” only conduct which is deemed in some way morally reprehensible or which was in breach of a rule or statutory requirement. A decision was taken, as a matter of public policy, to impose sanctions in order to encourage and facilitate the settlement of litigation and, correspondingly, to avoid parties incurring the costs involved in going to trial and also to save court time. Indemnity costs are, therefore, bound sometimes to be payable under CPR 36.14(3)(b) because an assessment of the merits proves not to have been justified or simply because an informed guess as to the outcome turns out to be wrong.

[61]It is elementary that a judge who is asked to depart from the norm, on the ground that it would be “unjust” not to do so, should not be tempted to make an exception merely because he or she thinks the regime itself harsh or unjust. There must be something about the particular circumstances of the case which takes it out of the norm. Naturally, one cannot define exhaustively what those circumstances might be. Each case will turn upon its own facts. Some very general guidance is given in CPR 36.14(4). Not surprisingly, the court will take all the circumstances into account including the terms of the offer, the stage when it was made, the information available to the parties at that time, and “the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the offer to be made or evaluated”.

[62]One could imagine that a court might well think it “unjust” to order indemnity costs if the individual defendant has rejected a Part 36 offer on the basis of inaccurate information through no fault of his own and, especially, where he has been misled by the claimant or his advisers through (say) non-disclosure of a material fact or document. In this case, Mr Porter invites me not to award costs on the indemnity basis because one of the experts (Dr Munglani) appeared in the witness box to take a less optimistic view of the Claimant’s prospects of recovery than that expressed in earlier written evidence: see paragraph [11] above. (The Defendant’s psychiatrist, on the other hand, seemed to have changed his view in the opposite direction: see paragraph [19] above.) The experts in this case were all somewhat tentative and cautious as to the chances of significant improvement. I believe that there is nothing here to justify a departure from the presumption in favour of indemnity costs. The Defendant’s advisers made a particular judgment call which turned out (at least at first instance) to have been wrong. Such an award does not carry with it any implied criticism of their professional skill or of their conduct. It is just one of the consequences imposed by the rules. I rule, accordingly, that costs should be assessed from the relevant date on the indemnity basis and, further, that there should be interest on those costs at 10% above base rate under CPR 36.14(3)(c).

[63]There is also provision in CPR 36.14(3)(d) for an additional sum, not exceeding at the moment £75,000, to be paid in accordance with a sliding scale there set out. I cannot see any reason why, under this new regime, the Claimant should not receive the maximum figure.