Tate v Ryder Holdings Ltd & Anor [2014] EWHC 4256 (QB)

Case No OMA90169[2014] EWHC 4256 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Date 16/12/2014
LIVERPOOL DISTRICT REGISTRY
Liverpool Civil and Family Court Hearing Centre
35 Vernon Street Liverpool Merseyside L2 2BX
Before
MR JUSTICE KENNETH PARKER
Between
PAUL TATEClaimant(a Protected Party, by his Litigation FriendClaimantTHE OFFICIAL SOLICITOR)ClaimantRYDER HOLDINGS LIMITED and ANOTHERDefendants
Christopher Melton QC and Peter Burns(instructed by Fentons (part of Slater & Gordon (UK) LLP) for ClaimantWilliam Featherby QC and Mr David Kenny (instructed by Berrymans Lace Mawer LLP) for DefendantsHearing Hearing dates: 10th June-18th June 2014
Judgment
[1]The Claimant was born on 20 June 1990. He is a protected party for whom the Official Solicitor has been appointed to act as litigation friend. On 15 August 2001, when he was 11 years old, he was knocked down by a bus causing a severe brain injury. He also suffered a fractured right pelvis and a contused lung. These two latter injuries healed promptly and completely.[2]The Court has previously approved a 70-30 apportionment of liability in the Claimant’s favour. The award of damages will be administered by a professional deputy, under the supervision of the Court of Protection. It is agreed that the Claimant is and always will be a protected beneficiary. Miss Natasha Molloy is the current deputy.[3]The Claimant has a 4 year old daughter, Myah, by an ex-girlfriend, Missy. Myah was born in December 2009. She now lives with her mother. Until recently she was looked after by the Claimant’s sister Gemma and his grandmother, Jennifer.

The Nature of the Injury

[4]The Claimant suffered a severe head injury, as shown by both clinical and radiological criteria. He suffered a fracture to the base of the skull and contusion to both temporal lobes. He suffered from double vision initially but this has since settled. He has been left with some mild hearing loss.[5]The Claimant has complex cognitive and socio-behavioural problems that render him a vulnerable adult. He cannot live independently and his needs are best met by a 24 hour care package. He had benign rolandic epilepsy before the accident and he had some further seizures in the immediate aftermath of the accident. He is at increased risk of epilepsy. The lifetime risk of recurrence is now about of 2-3%. Absent the accident it would have been half that risk.[6]It is also agreed between the neurological experts that the Claimant’s life expectancy is slightly impaired. According to Professor Barnes, the impairment is by 2-3 years. According to Dr Schady, the reduction is of 5 years. A reduction of 3.75 years, giving a multiplier of 30.35, is appropriate.

Background

[7]The Claimant and his extended family are from West Yorkshire and he has lived there for most of his life. He and his sister were placed on the child protection register at a very early age because of parental inadequacy. He had problems with his educational development. In 1998, he was placed in a long-term foster placement with his aunt. As a young child, he was referred for formal assessment, and psychological and medical reports were obtained with a view to preparing a Statement of Special Educational Needs. He was described variously in the pre-accident records as having been happy, friendly, engaging, popular and keen to please. However, his language and problem solving skills were poor. His test results were consistently within the range of pupils with moderate learning difficulties. He was working towards Level 1 whereas the national average for a 7 year old child would be level 2. He was provided with ten hours of additional support. A review in May 2001, when he was 10, nearly 11, noted problems with concentration, vulnerability, the acquisition of new skills and memory, although treatment for his epilepsy may have contributed to the last of these. His SATS results showed that he was now attaining level 2 in English, Maths and Science, which was below the expected attainment for his age. He still got on well with his teachers and his peers. He was about 3-5 years academically behind his peers.[8]Immediately following the accident, hospital records show that the Claimant’s Glasgow Coma Scale/Score was 5/15 in the ambulance and 6/15 following admission, which would classify his brain injury as severe. He was bleeding from the ear and nose; the skull base fracture involved the occipital bone and the foramen magnum; both temporal lobes were bruised (the right worse than the left) and he had cerebral oedema. He also had multiple bruises over his arms and chest. He was rendered deeply unconscious. He was intubated, ventilated and sedated. An intracranial pressure monitor was inserted. By 17 August, his pupils were still unresponsive. He was fed through a naso-gastric tube and his bladder was drained with a catheter. He was on the paediatric intensive care unit until 30th August 2001, when he was transferred to the general ward. As his levels of consciousness rose in September, there were periods of agitation that caused problems with rehabilitation. By the end of September, he was mobile in a wheelchair and had begun to regain his speech. He was discharged home to the care of his aunt in October that year. At the time of discharge, he had some loss of co-ordination of his arms and legs. He lived with his aunt for some time before moving to live with his grandmother.[9]He gradually integrated into school. In November 2001, when he was attending part time, it was reported that:
“New problems have emerged. His learning difficulties are still as pronounced but his weakness in concentration, memory and retention are more noticeable. He has shown himself to be more aggressive (although not malicious) and he is very impulsive. Paul needs to be supervised at all times to avoid any knocks and over excitement until the Consultant has indicated it is safe to allow him full independence.”
[10]He was confabulating in a way he had not done previously. By February 2002, he was able to attend full time but required a support assistant throughout the day. By May 2002 it was reported that weaknesses in concentration, memory and retention were more noticeable. He was ‘more aggressive’ and very impulsive.[11]School reports continue to make reference to his distractibility, being easily led, and to inappropriate behaviour in class from 2003 until 2006, when he left. He was excluded from school for four days. At the end of year 9 (when he was just 14) he had not progressed in Maths or English but he did achieve level 3 in science. In January 2005, Dr Murdoch-Eaton reviewed the Claimant in the child and adolescent unit. She noted that he was easily tired and when tired appeared to have occasional outbursts of aggression and frustration. It was noted that he was still “a vulnerable young boy with impulsivity. He is quite easily led and has quite a lack of danger awareness”. It was felt that he was likely to need “quite considerable support for the rest of his life”. He was discharged from further follow up. He participated in work experience in a Tesco store in years 10 and 11 (ages 15-16). He then achieved the lowest G grade in the only GCSE examinations he sat.[12]By 2008, when the Claimant was 19, his grandmother was unable to cope with his unruly behaviour and the Local Authority began to seek accommodation in supported lodgings. Finally, on 11 Ju1y 2009 the local authority arranged his emergency admission to the Glenholme Residential Respite Unit in Halifax. The Claimant had a very difficult time there. He spent most of his time isolated in his bedroom. He acquired some modest improvement in his life skills but there were many problems with alcohol and drugs and with being taken advantage of by others.[13]From Glenholme, the Claimant moved on 15 March 2010 to Heath Lea, a unit managed by a company called Creative Support, also in Halifax. Three support workers provided 24 hour support to the Claimant and one other resident. They observed that he was very vulnerable and easily led astray. They tried to teach him some independence skills but he could not be trusted, for example, to cook things on his own. When they took him on a holiday organised by the case manager, away from malign local influences, he was apparently pleasant company. His time at Heath Lea was punctuated by repeated episodes of drunken and criminal behaviour. On more than one occasion he was suspected of taking drugs. On one occasion, a support worker had to lock herself in her office as she was fearful for her own safety.[14]Neither of these two units was designed to meet the needs of patients with acquired brain injury and nor were any of the staff trained to do so. The Claimant remained at Heath Lea until 23 January 2012 when he was admitted to a specialist brain injury unit known as Transitional Rehabilitation Unit (TRU) in Haydock, Merseyside, across the Pennines, some 60 miles to the west of Halifax.[15]The Claimant was assessed for admission to TRU in August 2010 by Dr Jackson, Clinical Neuropsychologist. He found an array of cognitive impairments and socio-behavioural problems that were severely limiting the Claimant’s independence as well as his safety in the community. He listed difficulties in the following areas; memory, concentration, problem-solving, consequential thinking, self-monitoring, attention, initiation, impulsivity, planning and organisation. The Claimant was re-assessed for TRU in October 2011. He was keen to move there because he wanted to be involved in the vocational workshops, such as woodwork and car mechanics. This facility was recommended by Dr Hunter and his then case manager, Mrs Hallam. He was finally admitted on 23 January 2012, on a self-funding basis. The comprehensive assessment carried out over the course of eight sessions at TRU demonstrated a similar pattern of results to those obtained by Dr Hunter.[16]The Claimant settled into his rehabilitation programme. Shortly thereafter, criminal charges against him were dropped. He seemed to respond positively to the daily structured activities, and the placement achieved some limited success. However, the Claimant was homesick and began to abscond. In June 2012, a neuropsychiatrist at TRU decided that the Claimant lacked the mental capacity to make decisions as to residence and treatment and recommended the involvement of the Court of Protection. An order was made directing the Claimant to live at TRU and empowering the police to return him there should he leave. He was assessed for the transition from TRU’s Ashton Cross unit to a local semi-detached house with a view to ‘independent’ living with support and supervision. He was four weeks into that eight-week assessment when his behaviour deteriorated. The Claimant absconded and committed a number of offences. In November 2012, the Claimant was transferred from Ashton House to the more secure Lyme House.[17]His departure from TRU was confirmed on 14 December 2012 when, at a further hearing, it was decided that it was no longer in the Claimant’s best interests to reside at TRU and it fell then to his local authority, Calderdale, to assess his needs. It was reasonable for the claimant to have been placed at TRU and the associated costs are recoverable. He was again transferred back to the Glenholme Respite Unit in Halifax.[18]The Claimant was then under a new social worker, Mr Paul McCormick. Mrs Hallam believed that in the longer term the Claimant should live in his own accommodation with strong support from agency support workers. However, no private funds were available. Mr McCormick arranged for the Claimant to be placed by the Local Authority in a fourth unit, Ashfield House, Cedar Road, Huddersfield, West Yorkshire, about ten miles from Halifax. This is a privately run unit operated by a company called Woodleigh Care. The accommodation is for six residents of whom four live in the communal area and two in attached self contained flats.[19]After a fight and some criminal damage to the property on the day of admission on 25 January 2013, the Claimant initially settled well. Mrs Hallam thought that he had begun to appreciate the need to live by the rules. He probably benefitted from the initially limited contact with family and associates. The support programme, with which he was engaging well, included evening college attendance on Tuesdays, some sporting activity and a once weekly vocational placement in a bakery. At weekends he was visiting his grandparents. The hope was that he might be able to make the transition from living in the communal flat to living in a self contained flat.[20]At the beginning of April 2013, it was decided that the Claimant could be allowed to go out into the community for two hours a week without support. On the second occasion when this was allowed, the Claimant returned to the unit drunk. Things thereafter worsened and there was a resumption of his old associations and behaviours during May and June. This behaviour also involved unsafe sexual behaviours. A contract was made whereby the Claimant was allowed to return home at weekends provided he participated during the week.[21]The unit manager at Ashfield House described the general deterioration of the Claimant’s condition over the 12 months preceding the trial. He was regularly involved in disturbances with the police, he did not engage with the staff for substantial periods and he refused to have support except for medical appointments. His behaviour impacted negatively on other residents. He was often drunk and spent all his money on alcohol or drugs. In the interests of the wellbeing of the other residents he had to be removed.[22]In January 2014 he was arrested by the police for drunkenness. At the end of that month he absconded, apparently owing money to a drug dealer. On 21 February threatening messages were left on his mobile phone, almost certainly from drug dealers or their associates. In March 2014 he was arrested for possession of an imitation firearm with intent to cause fear and violence. He was bailed on curfew. He said that he had believed the firearm to be real and was unable to see any problem with regard to waving a gun around in a public place. On 28 March 2014 he was moved to the Ashdale Unit at Calderdale Royal Hospital but he absconded on 30 March 2014. He was then detained at the secure psychiatric intensive care unit on 1st April 2014 only to be discharged by a tribunal on 8 April. The notes confirmed his poor impulse control. The new case manager, Mrs Roberts, met the Claimant and Mr McCormick on 17 April 2014. A bed was eventually found for him back at Glenholme.

Preliminary Issues

[23]Perhaps the central issue dividing the parties before the trial began was the correct classification of the Claimant’s condition. The neurologists agreed that the head injury was severe. They also agreed that he has problems with language, attention, concentration and memory, and with executive function. He manifests behavioural disturbance in the form of disinhibition and immaturity. There was no dispute that the Claimant suffers from a severe personality disorder.[24]The Claimant’s case was, and remains, that he suffers from an organic personality disorder caused by his brain injury. At trial Professor Maden supported that diagnosis. The pre-morbid moderate learning disability was no more than a borderline/mild mental retardation, and the pre-morbid emotional and behavioural problems were moderate. As recorded in the joint statement:
“Professor Maden does not believe that the behavioural and emotional problems shown before the accident, in an 11 year-old child with learning difficulties, were such as to indicate that he was likely to develop a severe personality disorder. He believes there is considerable uncertainty about the life course of any 11 year-old and the uncertainty is greater when there are learning disabilities, which can be seen as delaying maturation.”
[25]By contrast Professor Rix, on behalf of the Defendant, concluded that the Claimant’s condition was socially determined, that is, he had a dissocial personality disorder that he would have had in the absence of the injuries that he sustained in the accident. Such a personality disorder is more properly seen as a syndrome or cluster of symptoms rather than a disease, as it has no established underlying pathology or causes. Professor Rix acknowledged that insofar as other experts (Professor Barnes, Dr Schady and Dr Hunter) attributed some impairment to the head injury, that evidence supported Professor Maden’s diagnosis, but he would in that event conclude that the Claimant’s condition resulted from a combination of organic/dissocial personality disorder. Professor Rix also accepted that references to disinhibition, increased aggression and impulsivity in 2001, 2002 and 2005 suggested that the brain injury was having an impact, but he maintained that since that time the Claimant’s condition had developed as it would in any event have done.[26]This issue was resolved at trial. In cross-examination Professor Rix was taken extensively through a detailed chronology of the Claimant’s life history, backed by voluminous written reports and records. With the benefit of that chronology and material, Professor Rix unequivocally accepted that Professor Maden had made the correct diagnosis of the Claimant’s condition, namely, an organic personality disorder caused by the brain injury.[27]The volte face of Professor Rix in the witness box took away a major plank in the Defendant’s case, but William Featherby QC, on behalf of the Defendant, had a secondary, or alternative, line of defence. This can perhaps be best summarised in terms of paragraph 7 of his closing submissions:
“The Claimant would have lived a life of irregular, menial employment and unstable, probably chaotic, relationships. He would not have sought recreation or relaxation other than with family and friends, and those he mixed with would all have been (as they are) bad, substance-abusing influences. His “pro-sociality”, or anxiety to please, compounded by vulnerability and poor resistance to temptation would have overlaid an already challenged life with substance abuse and petty criminality.”
[28]If, Mr Featherby submitted, the Court believed that there was a significant risk that the 11 year-old boy in this case would have gone on in any event to lead the life depicted in this bleak portrait, it would be right in law to discount appropriately any award of compensation: as to the past, because the nature and quality of the Claimant’s life would depend “in large measure on the actions of others, namely his friends and family” (cf Doyle v Wallace [1998] PIQR Q146; Gregg v Scott [2005] 2 AC 176, particularly [83], by Lord Hoffmann); as to the future, the balance of probabilities played no part in assessing future risks and chances, and the prospect of the Claimant’s life being “on the straight and narrow should be discounted for the risks and chances that it would not”.[29]In support of this contention Mr Featherby marshalled a formidable case, focussing on the Claimant’s family, his material circumstances and his innate intelligence and personality. The Claimant’s father was a violent and serious sexual offender, who had spent long periods in prison. His mother was an alcoholic, who did not work, had committed petty crimes and had attempted suicide. There was evidence that his sister (or half sister) was feckless and possibly dishonest. A cousin (Ben S) was referred to sporadically throughout the trial, as a heavy drinker and somewhat unsavoury individual, to whom the Claimant was attracted and whose influence appears to have been in no way beneficial. Other cousins had similar problems with drink and prohibited drugs. Little was known about the Claimant’s grandparents and aunts. The family was a relatively tight, cross-involved network. None of the family group was called to give evidence, and I accept Mr Featherby’s point that, if any of them had appeared, it is very unlikely, given what was known about them, that the family picture that would have emerged would have had any attractive features.[30]As to material circumstances, there was no evidence that any living, adult relative of the Claimant had been in paid employment, and his childhood was impoverished and benefits-dependent. As to intelligence and personality, the assessments in respect of special educational needs, even taking account of their role in securing funding, revealed a boy who had significant learning difficulties, delayed language skills, poor concentration, weak memory and who was easily led. His attendance record at school until the year before the accident had been very unsatisfactory. In the light of this evidence it was submitted that the Claimant as an adult in any event would have had no qualifications, would have had great difficulty in obtaining and retaining employment (and then only at a minimum-wage), and would have been vulnerable, especially to alcohol and drugs.[31]Although I see considerable force in the above points, I cannot in the final analysis accept Mr Featherby’s basic submission, for the following reasons.[32]First, it is clear from the expert evidence in this case that, by reason of the organic brain injury the Claimant lacks capacity, within the meaning of the Mental Capacity Act 2005, in important respects. He lacks capacity to decide for himself where to live, how to choose what care, support and rehabilitation he appropriately needs, and whether to take alcohol or drugs. The Claimant’s condition, resulting from the organic brain injury, can only reasonably be treated by a regime of 24-hour personalised care. The experts agree on that issue. It will be necessary to reinforce consistently and constantly appropriate responses, boundaries and behaviour in the hope that he might eventually internalise some of the controls on his behaviour. Furthermore, there is no dispute that such a regime will need to be continued indefinitely, even if there might be some attenuation of his personality disorder in middle age. In my judgment, the need for such 24-hour personalised care arises directly only by reason of the organic brain injury. It would, therefore, be wrong in principle to discount the amount of damages required to provide such care in the light of an alleged risk as to how his life might have turned out if he had not suffered the organic brain injury.[33]Secondly, it seems to me extraordinarily difficult in any event to evaluate in any acceptable or convincing way how this particular Claimant, aged only 11 at the time that he sustained this devastating organic brain injury, would have developed, and what the nature and quality of his life might have been. I accept that he faced formidable difficulties, but Mr Featherby’s scenario is exceptionally bleak and pessimistic, and his submission invites me to speculate on a highly sensitive issue, where my speculation could be quite wrong and seriously unfair to his Claimant. This problem is not unique to me, for the experts also struggled to come to any reasonably firm conclusions. For example, Professor Maden considered that the Claimant’s problems would have required assistance in the areas of literacy and dealing with bureaucracy, and he was unwilling to speculate further. Dr Schady considered that if the injury had not occurred, his behaviour might have led to “altercations and problems with the law”. If he had misused alcohol and drugs, as was likely, the substance misuse services might have become involved. He might have seen a psychologist or psychiatrist with a view to assessing and correcting the sources of his offending conduct. However, all this seems to me highly speculative and, as I have already noted, is very far from the 24-hour support and care that the Claimant now requires by reason of the organic brain injury.

Future Care

[34]The Claimant, though he lacks capacity to make appropriate decisions, has consistently indicated that he wishes to live in his own property, and to live where he has access to his family. A balance has to be struck in this case between restricting the Claimant’s opportunities to expose himself to negative influences and providing a regime that increases the extent of compliance (so reducing the risk of negative influences). The evidence suggests that the Claimant has tended to respond acceptably when carefully supervised in an appropriate setting. Any future residential accommodation must be such as to provide specialist care for individuals with challenging behaviour. Without the facility of such intensive support, it is accepted that the Claimant would be exposed to real risks and dangers resulting in regular admissions to mental health units and even prison.[35]On this aspect I found Mrs Chiwandire an impressive witness. She did not seem to underestimate the challenges presented by the Claimant’s condition and propensities, but did believe on a rational basis, drawing on past experience, that appropriate residential accommodation could, for the immediate future, be found, and that there was a good prospect that the Claimant would respond positively to such an environment. Until relatively recent events, Ashfield House had been considered an appropriate solution. She now considered that Robinson House at Highbank Priory in Bury could provide the answer. The annual cost would be £131,040 for the placement. She also believed, and I accept, that the Claimant would require additional one-to-one support, at an annual cost of £48,048, a total cost, therefore, of £180,000. The Defendant’s care expert, Mr Beacock, referred to Stockton Hall, which had an annual cost of about £173,000. It may be that Robinson House itself would not be the ideal placement (Mr Beacock said in evidence that it had the appearance and atmosphere of a hospital), but, if that were the case, it is likely that a less hospitalised facility, offering the requisite care and support, could be found at broadly the cost identified above.[36]In my view, there will be periods when the Claimant will be able, with appropriate support, to live in his own home (see further below). Accommodation at home with support would be £157,912. In addition I am satisfied, particularly in the light of more recent events, that there would be periods (about four weeks a year) when a second carer would be needed, at an extra annual cost of £11,897, producing, therefore, a total cost of £169,809, reasonably close to the figure (see above) for residential accommodation. There will also be equipment costs when the Claimant is in his own home, an aggregate of £54,891.64, that needs to be suitably reduced to take account of the time that the Claimant would be likely to live in his own accommodation (see below) and additional rental costs of £1,800 per annum (to accommodate the carers) for such period.[37]The matter would be relatively straightforward if it was safe to proceed on the footing that the Claimant, for the rest of his life, would either be in appropriate residential accommodation (akin to Robinson House) or in his own home. However, for reasons already explained, that is not a safe assumption. It is common ground that there will be periods when there is likely to be a loss of liberty, either by virtue of the Mental Health Act 1983, or when in custody. If detained under the latter Act, the Claimant could be transferred to a private hospital (the Priory was mentioned) and the costs would likely be the same. As to imprisonment, Mr Christopher Melton QC, on behalf of the Claimant, submitted that there should be no reduction on this account. In the Claimant’s case, custody would in any event be a last resort, if the Claimant’s offending did deteriorate towards violence, and the risk of offending would in any event be much reduced with the benefit of a well-funded and well-implemented care package.[38]This is a difficult and uncertain issue. Notwithstanding Mr Melton’s points, I believe that I could not fairly discount in this case a significant risk that the Claimant might in the future by held in custody for criminal offences. Ignoring that factor, I would have struck a figure of £175,000 for the annual cost of future care, representing an average of the figures in paragraphs 35 and 36 above for residential accommodation and accommodation in the Claimant’s own home. I shall reduce that figure marginally to £170,000 per annum, to reflect in what I acknowledge can only be a rough-and-ready way, the non-negligible risk of periods in custody.[39]The second problem is even more difficult. Mr Featherby contended that the weight of the evidence in this case showed at least a very substantial risk that the Claimant simply would not comply with any care regime, whether that be accommodation in a facility akin to Robinson House (without the putative hospital environment) or with support in his own home. There had been two serious previous attempts to rehabilitate the Claimant residentially, TRU and Ashfield House. Both had been selected after meetings and discussions between the carers and others responsible for the Claimant. That is undeniable. Mr Featherby contended that there could be no optimism, let alone confidence, that any future carefully thought-through selection would be any more successful:
“It would be TRU without the bail conditions; the Claimant would hate it and abscond.”
[40]As to accommodation in his own home, there were also substantial risks that the regime would either not work at all, or would break down. The support workers would have no power physically to detain the Claimant. The Claimant might not admit the support workers, or might ask them to leave, and he might in effect simply go his own way, mixing with undesirable elements and falling into drug and alcohol abuse. However skilled the support, all that could be done would be to put proposals to the Claimant that he would be free to reject if they did not accord with his own inclinations.[41]As I stated above, Mrs Chiwandire was an impressive witness, but even she struggled when Mr Featherby put to her a number of detailed scenarios tending to show how challenging it would be to achieve a reasonable level of compliance by this Claimant for any regime that, objectively considered, was for his own welfare and development, but that he himself might not perceive in those terms or might subordinate to other preferred objectives.[42]It appears to me that a fair balance has to be struck on this difficult issue. On the one hand I see force in Mr Melton’s submission that by reason of his injury the Claimant lacks capacity to make the relevant choices, and that it would be harsh and unjust to proceed on the basis that the care regime which he needs would simply fail because he would make inappropriate choices. On the other hand, in fairness to the Defendant, it would be unprincipled to require payment of compensation as if the significant risks identified by Mr Featherby could simply be ignored. I believe that the only equitable solution, to do justice to both parties, is to discount the amount of compensation for future care to reflect the significant risk of non-compliance. In my view, a discount of 20 per cent is fair and proportionate in all the circumstances, including the factor that some continuing engagement of the regime would likely be necessary for at least part of any period of non-compliance.[43]The Claimant intends to fund future care privately and has claimed the cost of private provision. He does not have to justify that choice (Peters v East Midlands Strategic Health Authority & Anr [2009] EWCA Civ 145, by Dyson LJ at paragraph 53), but, for the avoidance of doubt, the choice is reasonably justifiable in this case. Nor is this a case, in the circumstances already described, where the Defendant has shown that the Claimant would reasonably be able to rely on local authority provision and would incur no loss by reason of such reliance.[44]I now turn to other heads of claim.

General Damages for Pain, Suffering and Loss of Amenity

[45]The parties appear to agree that the Claimant’s injuries fall within “moderate brain damage” according to the Judicial College Guidelines, with a range from £110,300 to £161,000. Given the evidence earlier referred to concerning the nature and effect of the injuries, I believe that an appropriate amount is £140,000.

Loss of Earnings

[46]The Claimant accepts that his likely career path and earnings but for the accident involves consideration of the choices of others and needs to be addressed on a “loss of chance basis” (Doyle v Wallace). Both parties are content that a multiplier/multiplicand approach is applied.[47]The Claimant proposes that it would be appropriate to take an average of the Annual Survey of Hours and Earnings median earnings in the Yorkshire and the Humber region (male full time workers) for the following occupational classifications: refuse & salvage occupations £18,866; shelf filler £16,071; hospital porter £14,903; average for elementary occupations £18,504. The average of the above classifications is £17,086 gross or £14,437 net per annum. That average is only about £2,500 per annum greater than the current minimum wage. The Defendant, consistent with its position already adumbrated but rejected, submitted that the Claimant would never have earned more than he in fact (after the injuries) earned at Tesco (that is, £8,190 per annum). I accept that the figure of £14,437 is appropriate and, given the Claimant’s disabilities and vulnerability, I discount that figure by 33 per cent. This falls to be allowed from January 2010. I am unwilling to speculate as to possible future retirement ages, and I take a multiplier of 26.49 to reflect retirement at 68. Credit for residual earnings is most uncertain in this case, because it is unclear whether the Claimant will ever succeed in obtaining steady remunerative employment in the open labour market. I believe that it is unrealistic to assume lifetime net earnings greater than £35,000, to which £2000 for occasional work after January 2010 should be added.

Court of Protection and Deputyship

[48]The Defendant agrees the charges of Messrs Wrigleys, who initially acted as the Claimant’s Court of Protection Deputy until October 2011, namely, £25,080.17. Natasha Molloy of Fentons Solicitors (part of Salter & Gordon (UK) LLP) took over in October 2011. The Defendant agrees only the first two items of Fentons’ charges, amounting to £18,026.78, being amounts assessed by the Court.[49]The assessed fees in the year December 2011 – December 2012 were £15,886, 90 per cent of Fentons’ bill of charges. Natasha Molloy gave evidence that she was presently incurring costs of £21,600 per annum on the deputyship. My difficulty is that that amount has not been assessed by the Court and substantially exceeds the assessed amount of £15,886 referred to above. The Claimant submits that I should simply assume that the Court will allow an assessed amount of 90 per cent of £21,600 (that is, £19,440). Given the amounts in question, I am unable to adopt that approach. I am prepared to accept, in the light of Ms Molloy’s evidence, that the costs have probably risen, but I see no proper basis in the circumstances for allowing more than £14,000 plus VAT per annum in respect of professional fees for the period after December 2012. In addition I allow a further £2,380 p.a to cover the annual supervision fee (£320 p.a), the deputy insurance bond (£400)p.a, the SCCO assessment fee (£220 p.a) and cost drafting (£1,200+VAT). In respect of the charges for the deprivation of liberty application, I allow the assessed amount of £36,974, together with disbursements of £512, that is, a total of £37,486.50.[50]Further anticipated costs are claimed in respect of deputy replacement (£8,288), statutory wills (£13,148), pre-nuptial agreement, and further applications in respect of best interests/deprivation of liberty (£238,060). In my view, there is a considerable degree of speculation in these claims. I accept that a reasonable amount should be allowed to meet uncertain contingencies of the nature indicated, and I assess an amount of £100,000 for that purpose.

Past Gratuitous Care

[51]Mrs Chiwandire in her updated rehabilitation cost report dated 31 May 2013 estimated the extent of past gratuitous care. In essence she relied on what others had told her about the time actually spent on care and applied a cash value to that time at commercial rates. Mr Featherby submits that I should disregard that evidence because I did not hear directly from those who were asserting to Mrs Chiwandire that they had provided the care in question. There is plainly some force in that submission. On the other hand, Mrs Chiwandire is very experienced in this field, and she struck me as a shrewd assessor of what she had been told who would not necessarily accept uncritically what her informants represented to her. She was pressed in cross-examination as to the sources of her information and its reliability, but she credibly maintained her position that the information could safely be relied on and the estimate was realistic.[52]I believe that in all the circumstances I should nonetheless take a conservative figure for past gratuitous care, at a commercial rate, of £50,000, which then needs to be discounted by 25 per cent.

Case Management

[53]Past case management costs are agreed at £57,044 to January 2014.[54]As to future costs of case management the pleaded case, supported by the evidence of Mrs Chiwandire, was that they would be £15,776 per annum for two years and then £13,412 per annum. However, in the light of recent deterioration in the Claimant’s conduct and response to remedial measures, she believed that for a period of at least five years the level of case management would be intensified and costs would be higher. However, it is important to ensure that these costs, which are already relatively high, are kept proportionate to the Claimant’s expected real needs. With that in mind, it seems to me that a sum of £20,000 per annum is appropriate for the next five years, followed by £13,412 thereafter.

Holidays

[55]It is accepted that the Claimant would now require support workers to accompany him on holidays. It seems to me that it would be fair and reasonable to allow for one two-week annual foreign holiday with support workers, at a cost of £2,900. That amount would then be capitalised at the appropriate multiplier, allowing for periods of non-compliance with the care package that would be in place.

Treatment and Therapy

[56]The Defendant contends that no separate provision is necessary for occupational therapy and treatment. I accept in principle Mrs Chiwandire’s evidence that in this case such extra support would reasonably be required but I am again very concerned about the extent to which the Claimant would co-operate with any such program and the amount claimed of £2,820 per annum seems to me disproportionate. I shall allow a total of £25,000 under this heading to reflect the considerable uncertainty.

DIY and Gardening

[57]There is considerable uncertainty as to whether the Claimant would in any event have engaged in these activities, as to whether he would, even with support, engage in such activities in the future, and as to the extent of additional support required. Given these uncertainties, no more than a total amount of £15,000 would be justified.

Conclusion

[58]It can be seen that this is an unusual and far from straightforward claim. I have sought to resolve the issues outstanding between the parties in a way that should facilitate the settling of a final order.