Older Cases
The Claimant was born on the 10th September 1968 and so was 33 at the date of the accident on the 27th July 2002. He sustained a severe brain injury, and his claim was tried before Judge Foster QC. The judgment is interesting for a number of reasons.
The Claimant's wife had looked after him since the accident, and was at the end of her tether. The judge accepted Mrs Sargent's estimate of the amount of care which had been rendered, but discounted it by only 10% (the Housecroft v Burnett discount) because it was particularly frustrating work spread over 24 hours every day.
In relation to future care, he rejected the argument put forward by the defence expert, Cathy Johnson, that Mrs Tomlinson should be involved in future care, describing her position as neither logical nor sensible, and not in accordance with the expert medical evidence or the treating clinicians. The judge therefore adopted the 24 hour care regime put forward by Maggie Sargent, using her costings.
An interesting finale to the judgment is the issue of capacity. The judge acknowledged that he was the lone voice doubting whether the Claimant had capacity. He considered the law, and the expert evidence (which nowadays is usually hampered, I think, by Masterman -Lister) and was forced to decide, despite his grave doubts, that the Claimant had capacity.
1. Miss Kirsty Dallow was born on the 31st January 1983 and so is now 24. She was injured catastrophically at birth by the negligence of the Defendant.
2. The trial was to be on quantum only. The Defendant made a Part 36 offer of £1,825,000, plus periodical payments of £160,000 a year, about a month before trial. The Claimant, through her litigation friend, accepted that offer, and the settlement was approved by Mrs Justice Cox on the 12th March 2007. The capitalised value of that offer is about £5.6 million.
3. The Claimant suffers from cerebral palsy, which causes her significant physical and mental disability. She can walk in a clumsy fashion, for a short distance, and can undertake standing transfers with the help of carers. She has marked involuntary movements of her arms, and therefore very little ability to use her hands and arms for functional purposes, for example feeding herself. She cannot verbalise to any significant degree, although she can say some words. However, her understanding is good, within the limitation that her understanding is at the level of a six year old, and her family and carers can communicate with her.
4. It was agreed between the legal advisers that
1 the Claimant's life expectancy is to age 60
2 the Claimant should offer the Defendant a suitable undertaking to make sure that there is no double recovery ie that, following the settlement, the Claimant cannot obtain care or accommodation payments from the local authority without accounting for them to the Defendant.
5. On the evidence, it was agreed that
1 Kirstie will never be capable of competitive, paid employment
2 she will never have capacity to manage her affairs
3 the current family home is unsuitable
4 the house which had been bought on her behalf was bought at a reasonable price, and was and is suitable for adaptation.
6. It was agreed that, at least at some times during a 24 hour period, Kirstie needs two carers (Dr Rosenbloom). Professor Barnes said that there needs to be an overnight sleeper, coupled with two carers, with some overlap being taken into account, but that because Kirstie is reasonably confident with standing transfers with one person, she does not need two carers for all her waking hours. Mrs Sargent costed for 24 hour care at the rates quoted by CPA. Ms Lawrence, for the Defendant, used "local rates paid to carers in the Oswestry area", and costed for a package of 14 hours a day, plus an overlap of one hour morning and evening, plus an additional four hours a day for a second carer, producing a figures of £90,529 (costing 1). As an alternative, she used the rates she says are quoted by CPA, which gives a figure of £103,328 (costing 2).
7. The Schedule claimed about £4.4 million for future care, whereas the Counter-schedule put the figure at between £850,000 and about £1 million. Almost every aspect of the care claim was put in issue.
. It was obvious that, if we lost the care issue, the claim would plummet in value, and there would be a costs risk.
. There was an additional issue, raised by Ms Lawrence, which was whether Kirstie will live in a group home. Various places were mentioned by Ms Lawrence, but the family view was firmly against that option, which Ms Lawrence says would cost about £110,000. I felt confident that that suggestion would not prevail.
. Although the Defendant's Part 36 offer did not include this, the Defendant agreed that the indexation of periodical payments could await the outcome of Thompstone. We considered that carefully, because it has obvious advantages, and initially advised the Claimant's litigation friend, Mrs Edwards, to adopt that course. However, following discussion with the financial adviser, Mr Gunn (whose partner, Mr Cropper, was the Claimant's expert in Thompstone), and consultation between the legal advisers, we all agreed that in this particular case it would be advisable to achieve final closure, and we advised the litigation friend that, in the particular circumstances of this case, it would be appropriate to abandon the link to Thompstone, even though that meant linking to RPI. It is perhaps worth remembering that the outcome of Thompstone in the House of Lords is far from certain.
15th March 2007
BILL BRAITHWAITE Q.C.
Substitution of first care expert by second
Appeal of plainly wrong decision of district judge
1. The Claimant was born in 1966 and so was 35 at the date of the accident in 2001. He is now 39.
2. Judgment was entered in 2005.
3. The Claimant instructed a care expert before the issue of proceedings, having obtained the defence insurers' approval under the protocol. That expert estimated the annual cost of care for the Claimant, who is tetraplegic. Concern was expressed whether that annual cost would be sufficient, and so a second opinion was obtained. The second expert estimated the annual cost at £50,000 a year more than the first expert. Permission was therefore sought from the district judge for the second expert to be the Claimant's expert. The district judge refused that application, saying that there was no material to indicate that the first expert was wrong. We regarded that decision as perverse, as it clearly was, and so appealed.
4. The Defendant insisted on resisting the appeal, no doubt because the effect of the second expert's evidence, if accepted, would be to increase the claim by over £1 million. They could and should have realised that the district judge's decision was plainly unjust, but they sought to take advantage of a poor quality judge's decision, and so to deprive the Claimant of the right to argue for a fair assessment of his future needs. The Claimant's costs of appeal were over £10,000, money wasted by the insurers and their legal advisers.
5. Mr Justice McKinnon agreed that the decision was plainly wrong, and unjust, and so set it aside, giving the Claimant permission to rely on the second expert.
16 November 2005
BILL BRAITHWAITE Q.C.
Exchange Chambers
Liverpool and Manchester
RTA
Case tried on quantum
Award £4.1 million
Issue of how to provide 24/7 care – resident or shift
Hydrotherapy pool at £235,000
JUDGMENT SCHEDULE OF PAST AND FUTURE LOSS AND EXPENSE
GENERAL MATTERS
Accident date: 28th September 1999
Claimant’s date of birth: 4th January 1950
Age then: 49
Age now: 55 year 272 days
Claim Form: 5th April 2002
Liability Judgment: 15th May 2003
Valuation Judgment: 10th June 2005
Life expectancy: Age 75
Final Hearing: 3rd October 2005
PREAMBLE
This Schedule follows the judgment figures set out in the judgment of HHJ Taylor, dated the 10th June 2005 and, in particular, the Schedule annexed thereto.
The Learned Judge held that the Claimant’s Life Expectancy is to age 75.
The Learned Judge found that, but for the accident, the Claimant is likely to have retired from her work as a Schoolteacher at age 62.5 years.
Multipliers have been calculated utilising the Ogden Tables, 5th Edition, at a discount rate of 2.5% and applying, where appropriate, contingency discounts and discounts for accelerated receipt.
Interest rates have been calculated with the assistance of Personal Injury Toolkit Calculator.
Interest on damages for pain, suffering and loss of amenities has been calculated at 2% per annum from the date of service of the Claim Form to the 3rd October 2005, namely 7%.
Interest on all past losses has been calculated at one half the special investment account rate from the date of accident to the 3rd October 2005, namely 19.23%.
The Trial Schedule calculated all past losses to the 18th April 2005. Therefore, additional losses have been calculated for the period between that date and the 3rd October 2005, namely 168 days; 24 weeks. Those additional losses are identified in bold italics in this Schedule.
PAIN, SUFFERING AND LOSS OF AMENITIES
1. Damages were agreed at £185,000.00
2. The Claimant claims interest upon the above damages at 7%, namely:
£12,950.00
PAST LOSSES
EARNINGS
3. Past loss of earnings was agreed at £130,000.00
For the period between the 18th April 2005 and the 3rd October 2005, the Claimant claims a gross salary of £45,209 from which deductions for pension (6%) and travel (£1,560pa) have been taken, producing a figure of £40,936.46 before tax. Applying the Personal Injury Toolkit Calculator for the year 2005/2006 produces a net salary of £29,455, £566.44 per week.
Therefore, the additional loss claimed is £13,594.56
CARE
4. Past family care amounts to £14,173.00
Additional family care is claimed at the rate of £18.27 per week for the period between the 18th April 2005 and the 3rd October 2005 before applying a Housecroft deduction of 20%. Therefore, the total additional loss is £350.78
5. Past professional care was awarded at £282,674.87. To that sum is to be added £12,693.19, which must be reimbursed to North Yorkshire County Council. The figure of £82,659.19 must be deducted in respect of past PCT funding, producing a loss of £212,708.87
Additional professional care costs are claimed between the 18th April 2005 and the 3rd October 2005 at an average rate of £202.60 for Care Company Costs and £1,531.40 in wages per week (based upon the figures set out at paragraph 9(vii) of the Trial Schedule), producing a weekly sum of £1,734. Therefore, total further losses for this period amount to £41,616.00
CASE MANAGEMENT
6. Past case management of £25,000 was awarded, together with costs of JSP at £2,015. Therefore, total losses under this head amount to
£27,015.00
The Learned Judge valued the services of Graham Allman(the Claimant’s brother in law, acting as de facto payroll manager) at something in the region of £5,000 pa, £96 per week. Therefore, between the 18th April 2005 and the 3rd October 2005 additional losses are claimed in the sum of
£2,304.00
THERAPIES
7. Past therapies were awarded in the sum of £4,719.00
MISCELLANEOUS
8. Past miscellaneous costs were awarded in the sum of £32,113.13
GARDENING/DIY
9. Past gardening and DIY costs were awarded in the sum of
£6,840.00
The Learned Judge valued this head of damage at £3,500 pa, £67.30 per week. Therefore, the additional costs between the 18th April 2005 and the 3rd October 2005 amount to £1,615.20
GENERAL EXPENSES
10. General expenses were awarded in the sum of £2,750.00
TRANSPORT
11. Past transport costs were awarded at £29,406.00
INTEREST
12. Interest is claimed on all past losses at one half the special investment account rate, namely 19.23%. Total past losses amount to £519,205. Therefore, interest is claimed in the sum of £99,843.00
SUMMARY
Earnings: £130,000
Post trial Earnings: £13,595
Family care: £14,173
Post trial Family care: £351
Professional care: £212,708
Post trial Professional care: £41,616
Case management: £27,015
Post trial case management: £2,304
Therapies: £4,719
Miscellaneous: £32,113
Gardening/DIY: £6,840
Post trial Gardening/DIY: £1,615
General expenses: £2,750
Transport: £29,406
Interest: £99,843
TOTAL: £619,049.00
FUTURE LOSSES
EARNINGS
13&16.The Learned Judge held that the Claimant would have retired at age 62.5 years at a gross annual salary of £45,209. Deductions have been made for pension (6%) and travel (£1500), giving a pre-tax income of £43,709. Utilising the Personal Injury Toolkit Calculator for the tax year 2005/2006, the appropriate multiplicand is £29,490 net.
Extrapolating the multiplier from Tables 8 and 10 of the Ogden Tables and applying a contingency deduction of 0.89 produces an appropriate multiplier for a women aged 55 years 272 days of 5.45.
Therefore, total future loss of earnings amounts to £160,720.50
14 Loss of congenial employment was awarded in the sum of
£5,000.00
PENSION
17. The Claimant has incurred a loss of pension. But for her accident, she would have worked to age 62.5. The following facts are relevant:
(i) The Claimant would have received a lump sum payment of £70,356.50 upon retirement (43/80 of a final salary of £45,209 gross per annum x 3).
(ii) In fact, she received £39,887.51.
(iii) The Claimant would have received an annual pension of £24,300 gross, £20,240 net upon retirement;
(iv) In fact, the Claimant receives £13,295.84 gross, £10,715 net.
The Claimant’s loss of lump sum pension is calculated in accordance with the case of Longden v. British Coal as follows:
(i) Normal retirement age – 62.5
(ii) Lump sum at 62.5 - £70,356;
(iii) Lump sum actually received - £39,887;
(iv) Age upon receipt – 50 years 9 months;
(v) Discount factor for acceleration – 0.7482
(vi) Therefore, present value of a lump sum of £70,356 due at age 62.5 is £52,640.36;
(vii) Claimant’s life multiplier from age 50 years 9 months to age 75 – 18.25;
(viii) Multiplier to retirement from age 50 years 9 months – 10.20;
(ix) Longden factor = 18.25 – 10.20 ÷ 18.25 = 0.4411;
(x) Lump sum loss is therefore £52,640.36 – (£39,887 x 0.4411);
(xi) Therefore, lump sum loss is £52,344 - £17,594 = £35,046.00
(xii) A further judicial discount of 5% is permitted to reflect the facts of this case and is taken into account in the Auty calculation below.
The Claimant’s total claim for pension loss is calculated in accordance with the case of Auty v British Coal as follows:
(i) Claimant’s age at trial – 55 years 272 days;
(ii) Normal retirement age – 62.5;
(iii) Net annual pension loss is £20,240 - £10,715 = £9,525;
(iv) Lump sum loss - £35,046;
(v) Claimant’s life expectancy after age 62.5 – 12.5 years;
(vi) Appropriate multiplier for above period – 10.75;
(vii) Annual pension loss after retirement: £9,525 x 10.75 = £102,393.75;
(viii) Total annual and lump sum loss = £137,440;
(ix) Discount for accelerated receipt (6 years 275 days) = 0.8572;
(x) Loss after accelerated receipt deduction = £117,814;
(xi) Less further judicial discount at 5%, giving a total loss of lump sum and annual pension of £111,923.00
LOST YEARS PENSION
However, the Claimant’s life expectancy has been shortened. But for her accident, as at the date of hearing, the Claimant’s life expectancy would be to age 86.4 years. In fact, she will live to only age 75, a reduction of 11.4 years. Therefore, the Claimant claims a loss of pension during these “lost years” in accordance with the principles of the case of Phipps v. Brooks Dry Cleaners ((1996) PIQR Q100). In the “lost years,” pension is claimed as follows:-
(i) Annual net pension loss - £9,525;
(ii) Multiplier for a fixed period of 11.4 years = 9.93;
(iii) Therefore, loss over the “lost years” = £94,583.25;
(iv) 50% of the above represents the “available surplus”, namely £47,291.62;
(v) Discount for accelerated receipt of 19 years 93 days – 0.6217;
(vi) Loss - £29,401;
(vii) Further contingency discount to represent the uncertainties of life – 5%;
(viii) “Lost years” pension is claimed in the sum of £27,931.00
CARE
18. The Learned Judge awarded costs of care to age 70 at £108,302 pa.
The appropriate multiplier to age 70 from age 55 years 272 days is 12.02.
Therefore, costs of care during this period amount to £1,301,790.00
During the final 5 years of the Claimant’s life, the Learned Judge held that care costs would amount to £124,481.
The appropriate multiplier for this period, taking account of accelerated receipt, is 15.33 – 12.35 = 3.31.
Therefore, costs of care during this period amount to £412,032.00
The Learned Judge awarded an annual contingency sum of £1,000 to which the appropriate life multiplier of 15.33 is to be allowed, producing a loss of £15,330.00
In the event that PPOs are ordered, the relevant annual sums will be:
(i) To age 70, to include the contingency sum of £1,000pa, £109,302;
(ii) From age 70, £125,481.
CASE MANAGEMENT
19. The Learned Judge awarded set up costs of £650.
The Learned Judge awarded annual costs of £2,539.20 to which is to be applied the life multiplier of 15.33, producing losses of £38,926.00
WHEELCHAIRS
The Learned Judge awarded capital costs under this head of
£27,837.00
The Learned Judge awarded annual costs of £8,242.10 to which is to be applied the life multiplier of 15.33, producing a loss of £126,351.00
HOLIDAYS
21. The Learned Judge awarded £6,000pa, to which is to be applied the life multiplier of 15.33, producing total losses of £91,980.00
GARDENING/DIY
22. The Learned Judge awarded £3,500pa under this head, to which is to be applied the life multiplier of 15.33 producing total losses of
£53,655.00
TRANSPORT
23. The Learned Judge awarded £4,750pa under this head, to which is to be applied the life multiplier of 15.33, producing total losses of
£72,818.00
PHYSIOTHERAPY
24. The Learned Judge permitted £7,500 pa for the first 2 years of physiotherapy, to which is to be applied the appropriate multiplier of 1.95, producing a loss of £14,625.
Thereafter, the Learned Judge allowed £3,250pa, to which is to applied the appropriate multiplier of 13.38, producing total losses of £43,485.
The Learned Judge allowed £4,500 by way of capital costs of physiotherapy equipment.
The Learned Judge allowed £916.16 pa for annual costs of physiotherapy equipment, to which is to be applied the life multiplier of 15.33, producing a total loss of £14,044.73.
Therefore, total costs of physiotherapy amount to £69,530.00
HOUSING
25. In accordance with the Learned Judge’s findings on housing, the following costs have been awarded:
Roberts element - £1,112.50 x 15.33 = £17,054.63
Adaptations - £257,297.75 less non-qualifying expenditure of £32,020 and betterment of £36,500 = £188,777.75
(The question of VAT on non-qualifying fees is unknown).
Fees and VAT - £46,523.
Legal Fees - £3,433.
Agents commission - £2,027.
Surveyor’s fee - £511.
Fitting out - £4,000.
Annual replacement costs - £325 x 15.33 = £4,982.25.
Carer’s furniture - £3,500.
Alternative accommodation - £10,193.
Additional running costs - £5,618 x 15.33 = £86,123.94
Air conditioning, inclusive of fees and VAT - £7,905.
Electric garage door, inclusive fees and VAT - £3,210.
TOTAL £378,241.00
HYDROTHERAPY POOL
26. The Learned Judge awarded costs of installation of the pool, including VAT, in the sum of £156,275 from which is to be deducted £30,000 by way of betterment, producing a loss of £126,275.
The Learned Judge permitted fees relating to the pool in the sum of £24,616.
The Learned Judge permitted annual running costs at £5,500, to which it to be applied the life multiplier of 15.33, producing a total loss of £84,315.
Therefore, total hydrotherapy costs amount to £235,206.00
ASSISTIVE TECHNOLOGY
27. The Learned Judge permitted the costs of environment control at £17,500.
The Learned Judge permitted renewal costs of the above on a 10 year cycle at £1,750 pa, to which is to be applied the life multiplier of 15.33, producing total losses of £26,828.
The Learned Judge allowed for the costs of a page turner in the sum of £2,000.
The Learned Judge allowed for replacement costs of the above on a 10 year cycle at £200pa, to which is to be applied the life multiplier of 15.33, reducing total losses of £3,066.
The Learned Judge permitted for additional IT costs at £1000.
The Learned Judge permitted for annual costs of the above at £2,000pa, to which is to be applied the life multiplier of 14.33, producing total losses of £30,660.
Therefore, total costs of assistive technology amount to
£81,053.00
OCCUPATIONAL THERAPY
28. The Learned Judge allowed for capital costs of £4,500.
The Learned Judge permitted annual costs and replacements at £5,000, to which is to be applied the life multiplier of 15.33, producing total losses of £76,650.
Therefore, total OT costs amount to £81,150.00
INTERIM PAYMENTS
The Claimant will give credit for interim payments as set out below, together with interest on those payments at the full rate from the date the payment was received.
Credit is given for interim payments as follows:-
(i) £10,000 on the 29th June 2000, together with interest at 33.19%, namely £3,319;
(ii) £549.31 on the 31st October 2000, together with interest at 30.81%, namely £169.24;
(iii) £20,000 on the 30th November 2000, together with interest at 30.23%, namely £6,046;
(iv) £25,000 on the 25th June 2001, together with interest at 26.26%, namely £6,565;
(v) £250,000 on the 2nd June 2003, together with interest at 14.04%, namely £35,100;
(vi) £400,000 on the 14th September 2004, together with interest at 6.31%, namely £25,240;
(vii) £200,000 on the 6th September 2005, together with interest at 0.44%, namely £880;
(viii) Total interim payments amount to £905,549.31 and interest to £77,319.24, producing total credit of £982,868.60
SUMMARY
Pain, suffering and loss of amenities: £185,000
Interest on above: £12,950
Past Earnings: £130,000
Past Family care: £14,173
Past Professional care: £212,708
Past Case management: £25,000
JSP £2,015
Past Therapies: £4,719
Past Miscellaneous: £32,113
Past Gardening/DIY: £6,840
Past General expenses: £2,750
Past Transport: £29,406
Past Additional post-trial: £59,481
Interest: £99,843
Future earnings: £160,721
Congenial employment: £5,000
Pension: £111,923
Lost years pension: £27,931
Care to 70: £1,301,790
Care from 70: £412,032
Care contingency: £15,330
Case management set up: £650
Case management annual: £38,926
OT Capital: £27,837
OT Annual: £126,351
Holidays: £91,980
Gardening/DIY £53,655
Transport: £72,818
Physiotherapy: £58,110
Physiotherapy equipment: £18,545
Housing: £378,241
Hydrotherapy: £235,206
Assistive technology: £81,053
OT: £81,150
TOTAL: £4,116,248.00
Interim payments together with interest amount to £982,868.60.
Therefore, the Claimant’s net award is £3,133,379.00
If, and insofar as, may be appropriate, annual figures provided under individual heads of damage can be applied to Periodical Payment Orders.
WILLIAM WALDRON
Dated 2005
1. Mr Stuart Parry was born on the 30th April 1967 and so was almost 33 at the date of the accident on the 7th April 2000. He was 37 at the date of the trial of his damages claim in January and February 2005.
LIABILITY
2. Judgment was entered for 85%.
QUANTUM
3. The Claimant sustained a severe brain injury, a severe mid-thoracic spinal cord injury leading to T6 motor and sensory complete paraplegia, together with significant injuries to the chest, leg, shoulder, cheek, cervical spine, hands and brachial plexus. He has made a complete or moderate recovery from all injuries except the thoracic spine and brain, but the upper limb injuries have some impact on ability to move and transfer, exaggerating the effects of the paralysis. Mr Parry needs help with all transfers, and needs 24 hour care. His long-term partner left him in September 2004 as a result of the stresses imposed by the injury and disability. Since mid 2004, the Claimant has been able to employ a case manager, who has arranged a care package; this has allowed him to expand his horizons, and start to achieve a quality of life which he feels has been denied to him since the accident; "Getting out and about again in the last six months has been like coming out of prison".
4. The spinal cord injuries and effects were described in reports by Mr Brian Gardner. There was no defence medical evidence.
5. The brain injury was dealt with by Professor Wood and Dr Skelton-Robinson in their reports. They were in almost complete agreement, that this was a severe injury which had caused weaknesses affecting reason, speed and accuracy of information processing, verbal and non-verbal recall memory, and minor weaknesses relating to the frontal lobes. There was some difference on test results, but Professor Wood considered that the variation was not particularly significant, although it might reflect changes in the Claimant's mood and temperament, and the impact of psychological distress. There was an apparent difference between the experts as to the cause of Mr Parry's irritability and outbursts of temper, but this was resolved in the joint statement. We submitted that this aspect of the case did not justify the experts being called to give oral evidence, and we invited the Court to deal with the issue on the written reports and joint statement.
6. There is an increased risk of epilepsy but, if it were to develop, the Claimant would be protected by the care package which we submitted is appropriate; therefore provisional damages would not be suitable.
7. There were two major issues identified at trial; first, whether the Claimant's present house is capable of being made satisfactory for him and, secondly, the extent and cost of the 24 hour care package. There was also some dispute also about the suggested career path for the Claimant.
Accommodation
8. Mr Parry lives in a small, detached, two-bedroomed house which has been extended to provide a ground floor bedroom and shower room. Mr Valentine, the Claimant's expert, explained in detail why that house is inappropriate in several respects, many of which appeared to be agreed in theory by the defence expert, Mr Cowan. An additional consideration for the Court was that the Claimant cannot access parts of his house.
9. It was our contention that Mr Cowan was unable to provide a workable scheme for the present house. There were some parts of his own recommendations which could not be accommodated in this house. Also, he acknowledged that the presence (or reasonable contemplation?) of children would render this house unsuitable.
10. An incidental issue was that, since his partner left, Mr Parry no longer felt comfortable in this house; he and his partner bought it together in 1995.
11. There were some features of Mr Cowan's report which we submitted were inappropriate. Our submissions were that, first, the use of the Halifax Housing Index is not an accurate guide to property values in this type of situation and climate. Secondly, he had not addressed vehicular access, or access to the bedrooms. Thirdly, he appeared not to have considered a night sleeper. Fourthly, he appeared to have relied on casual information to found his valuation of a building site. Fifthly, he had given no written consideration to the obvious possibility of purchasing a bungalow and adapting it. Sixthly, he had deducted the full value of the present house in the Roberts v Johnstone calculation, instead of only half.
12. Mr Cowan had not visited since December 2002.
13. The experts produced an exceptionally helpful joint statement in which they set out the three relevant options, namely a new bungalow, adapting the present house, or building a new one. They agreed that there were no plots currently available (there was an incidental issue about the area in which the Claimant would like to live). The real issue for the Court was therefore whether Mr Parry should reasonably remain in his present house, which depended on whether it could realistically be extended and adapted to give suitable living space. If not, the experts differed as to the cost of a bungalow (Mr Cowan put forward a figure of £300,000 without, we submitted, any supporting evidence), and as to the cost of adapting it (£104,700 against £75,199). On the new-build option, the difference between the experts was as to the floor area needed by a person in a wheelchair, which took us back to the question of the present house. If Mr Valentine was correct in his assertions, it followed that the reasonable solution would be to buy a bungalow and adapt it as he described.
14. Mr Cowan concluded that the Claimant's present cottage could be adapted to meet his requirements, and it should not be necessary for him to move to an alternative property. As the judge said in his judgment, that conclusion was ultimately agreed to be totally unsustainable.
15. The judge therefore had to decide between conversion of an alternative property, or new build (Mr Cowan's alternative suggestion). The judge was satisfied that "the obtaining of a suitable plot of land in a suitable location is purely speculative, as is its likely cost".
Care
16. The joint statement by the care experts agreed that 24 hour care is necessary, but Mrs Grindley, the defence expert, strongly disagreed Mrs Sargent's rates; she asserted that it is appropriate to pay a daily rate rather than an hourly one.
17. The position at trial was that Mr Parry had a care package arranged and managed by an agency, CPA. This had been developing since mid 2004, before his partner left, and the development had been accelerated since then. It was clear, in our submission, that, sad though the departure must have been, it had allowed the Claimant to develop his life so that his physical and mental condition had improved. Previously, he arranged his life round his partner, not going out, not eating, and not looking after his physical and mental health. Mrs Grindley said, in the joint statement, that she noted that Mr Parry could cope for long periods on his own in the house when he was living with his partner, although "this was not necessarily beneficial".
18. A strong impression of the value of good quality care came from phrases used by the Claimant in his statement:
1 "This has resulted in a tremendous improvement in my quality of life"
2 "I regularly go out for meals with my carers"
3 "I now regularly socialise with my friend Ken"
4 "The last six months have been a dramatic improvement in my quality of life. I don't want to kill myself any more. I feel as if I have a future. I don't feel like a worthless human being now. I feel I have something to give to other people and to society now.".
19. Mrs Grindley costed care to age 55 at £19,945 a year, compared to Mrs Sargent's £97,968. Although she accepted by trial that 24 hour care was desirable, she did not cost for it. She said in the joint statement that she "refers to Able Community Care to provide a costing assessment for a residential carer to be paid on a daily rate". We challenged the admissibility of that approach, submitting that it is the duty of an assessing expert to bring her expertise to bear on issues such as this, not simply to seek to delegate to an organisation, hundreds of miles from the Claimant, which had not assessed the Claimant.
20. The experts disagreed as to the need for a second carer when Mr Parry is about 55, or older. Mr Gardner described the upper limb problems, and considered that the need for a second carer to turn the Claimant, and to help him to transfer, should be considered by a risk assessment. He felt that the risk assessor should take into account mild weakness of the left arm, pain in the left hand, poor truncal balance, spasms, and impaired concentration and a tendency to lose sequencing. Mrs Sargent, the Claimant's care expert, thought that the Claimant clearly would need increasing care, and she costed for six extra hours of care a day. Mrs Grindley recited in the joint statement Mr Gardner's opinion that two carers may be necessary from 55, and "notes this is a possibility rather than an assertion". The judge decided (wrongly, in my opinion) that therapy and equipment, coupled with the positive effect which future care will have on the Claimant's approach to life, will diminish the possibility of adding to the current care package, and he decided that the future cost of care should be based on current costs. He preferred the evidence of Mrs Sargent to that of Mrs Grindley on the issue of the correct current cost of care. He said that Mrs Grindley's contention that a fixed daily/weekly rate could be negotiated with either CPA or another care provider at a considerably lower cost than the current care provision failed to give proper weight to the extent of the care the Claimant requires now that this partner is no longer assisting. She gave too much weight to the fact that the Claimant managed in what was a very inadequate care setting (when the Claimant was reliant upon his partner, whom he knew was having an affair, but whom he could not separate from due to his need for care).
Earnings
21. Mr Parry's claim was based on the prediction that he would have been promoted to farm manager within about a year of the date of the accident, and then to area manager. It was our contention that the Claimant probably would have achieved promotion to area manager.
Award
22. The total award was £3,598,261, from which 15% had to be deducted, leaving £3,058,521, made up as follows.
Pain, suffering and loss of amenity 165,000
interest 3,461
Past loss 168,142
interest 20,359
Future loss 3,241,297
1 July 2005
BILL BRAITHWAITE Q.C.
Application for interim payment
Defence arguments
Award of £265,000
1. Sam Downing was born on the 17th September 1988 and so was 10 at the date of the accident on the 28th April 1999.
2. Liability was agreed at 50% (in a round table consultation with silks either side).
3. An application for an interim payment was heard by His Honour Judge MacDuff QC in February 2004. The Claimant sought £250,000 to £300,000, whereas the Defendant conceded only £25,000.
4. The Claimant lives with his parents, who have provided all the care needed by him since the date of the accident; "... the parents are a remarkable couple who have devoted themselves to making the necessary provision for their son". The family home in the Midlands is entirely unsuitable, and the family have decided to move back to Shetland, where they will build a bungalow for Sam and the family. Initially, it seemed that the Defendant would contend that this decision was unreasonable, but that argument was not pursued.
5. Judge MacDuff emphasised that, subject to quantification, the money was the Claimant's, to do with as he pleases (Stringman v McCardle [1994] 1 WLR 1653); "Prima facie ... the court can and should allow him to have as much of his money as he wants, provided that the interim amount does not exceed the final award". It was suggested on behalf of the Claimant that the final award would be well in excess of £1 million (half a million with the 50% compromise), but "within the evidence produced by the Defendant , no valuation at all has been suggested".
6. The defence case had two main thrusts, although most available arguments were pursued or canvassed. First, reliance was placed on Campbell v Mylchreest (unreported Court of Appeal 23/1/98), that the court should have in mind whether an interim payment would enable the financing of expenditure which, once undertaken, would disturb the fair balance (level playing field) between the parties. The judge noted the remarks in Campbell that "the level playing field argument can never be an absolute bar to an interim payment ... only a factor for the judge to have in mind when exercising his discretion". The defence argument centred mainly on their fear of a "Rolls Royce" care regime, and less on the bungalow. Interestingly, the judge felt that the fact that this was a 50% recovery weighed against this argument, because the Claimant would be unwise and unwilling to expend large sums on professional carers, knowing that he would recover only 50% of the cost; this is the reverse of the argument often put forward by defendants, that, because the recovery is only 50%, the claimant will not in fact spend it on a good care regime.
7. The Defendant argued that the final award for the increased cost of housing is likely to be small, or even nil.
8. The second main argument was that, at trial, a judge might be persuaded to award little or nothing for future care, relying on Sowden v Lodge and Crookdake v Drury (see the article on my web site). The defence argument is always (as it was here) that, because the State is under a duty to provide care without cost to the claimant, therefore the claimant will be cared for in that way, and there will be no cost to him or her. I have seen this point succeed once (but only once), where the claimant really was being looked after by the local primary care trust, with sufficient, good quality care. The judge said: "It is trite law to state that the Claimant is entitled, if he reasonably so chooses, to employ privately paid carers ... He cannot be required to be dependent upon state provision of care or NHS medical services." He thought it would be rare for a claimant to be obliged to accept state-provided care. The judge commented on the detailed provisional assessment of the value of the claim presented by junior counsel on behalf of the Claimant, which was based on the evidence of the Defendant's care expert.
9. The Defendant canvassed the possibility that the Claimant's status as a patient might be challenged, but the judge considered that such a challenge was unlikely to succeed.
2 March 2004
BILL BRAITHWAITE Q.C. (who did not appear on this application) and PHILIP GREGORY are instructed by VINCENT OAKLEY, neurolawyer and solicitor.
C5/6 tetraplegia
Cost of adapting mother’s home (with whom the Claimant did not live)
Two further moves of home later in life
Female aged 22 at accident and 26 at settlement.
Life expectancy reduced to age 76.5.
The claim was settled at a round table consultation in 2003 (silks on either side, without mediation) for a total of £3.8 million. The figures below were not agreed by the defence, but may represent a realistic assessment of a likely award, although they might be slightly cautious.
PAIN, SUFFERING AND LOSS OF AMENITY
Motor and sensory incomplete tetraplegia at C5 and C6
175,000
PAST LOSS
Earnings
The claimant was just starting out on a design career and, as always with young people, there was an issue as to how much she would have achieved.
70,000
Care and case management
100,000
Accommodation - including the cost of adapting her mother’s home (£31,000) - cost of bungalow £302,000 - adaptations £174,000 - miscellaneous
230,000
FUTURE LOSS
Earnings
This was calculated on the basis that the claimant probably would have remained in salaried employment to about the end of 2004, following which she would have started her own freelance and consultancy business. We argued for an average of £64,000 gross, £43,000 net, for her business earnings throughout her working life. Hardly any residual earning capacity was conceded. However, a substantial discount was made for uncertainties, leaving a figure of:
600,000
Care and case management
£43,000 a year, plus extra when the claimant has children, and in the last 10 years of her life
1,500,000
Accommodation
Running costs - two further moves to accommodate children and old age (the first move into a bungalow costing £450,000, with similar adaptation and miscellaneous costs)
300,000
Equipment
150,000
Technology
50,000
Transport
200,000
Medical review
100,000
Physiotherapy
75,000
Holidays
150,000
One November evening in 1999, Max Burt was driving home after work. He was a successful young man, with an exciting life ahead of him. He drove across green traffic lights, and was hit at speed by a fire appliance crossing a red light far too fast. He was injured catastrophically. His claim came for trial in November 2002, before His Honour Judge Pryor Q.C., sitting in London.
Despite the fact that the fire appliance had gone through red lights, and despite the driver's conviction of careless driving, primary liability remained in issue. Contributory negligence was alleged against the Claimant, and the apportionment was hotly contested.
The Claimant was travelling along a one way street in London; there were four lanes in his direction. He had no recollection of the accident, due to the severity of his injuries, but it was possible to reconstruct what had happened. He was in a new style, left hand drive, VW Beetle and, according to one witness, he was trying to pick up speed wherever he could and was lane-swapping in order to do so. He was driving along the fourth lane approaching the lights, that is the one on the right. Traffic in the other three lanes had stopped, so that the Claimant's view to his left may have been limited by other vehicles, such as black cabs and white vans. Mr Burt did not notice or realise that traffic in the other three lanes had stopped, and so he did not ask himself why it was stationary; he just drove across the green light.
The police had carried out extensive tests using the fire engine, to see what speed it must have been doing when it hit the Beetle amidships. Unfortunately, that evidence was complicated by an apparently unreliable forensic scientist interpretation, but the effect was to show that the fire appliance could not have been going as slowly as alleged by the driver and his crewman.
Each side called a reconstruction expert. They differed significantly as to the speed of the fire appliance as it entered the junction, the defence expert, Dr Ninham putting the speed comparatively low. The judge said this about his evidence: "Dr Ninham's failure to consider it (ie the overtravel of the fire appliance after the impact) further, even as a check on other perhaps less reliable methods of assessing speed, casts doubt on the rest of his evidence and on the conclusions he expressed.".
The judge decided that the fire appliance was travelling at about 30 mph at the time of the collision, possibly a little faster, unlikely to have been any slower, having been doing more than 30 as it approached the junction. The driver's account that he reduced his speed by 10 or 15 mph as he approached the junction "must be an exaggeration". Neither the driver nor the crewman saw Mr Burt's car in the fourth lane at any time before the collision, although they did see that the traffic had stopped in the other three lanes. The driver made an unjustified assumption that all the traffic he was likely to encounter was giving way to him, and he did not give himself any opportunity to deal with the problem which might arise if his assumption was wrong.
The judge said that Mr Burt was driving in a pushy manner, and saw an opportunity in the fourth lane to get past the traffic in front of him; he entered the junction at about 30 mph without pausing to consider why the traffic on his left had stopped. He may, possibly, have heard a fire engine's siren, but if so it is possible that he attributed it to a fire engine which had already passed, and he did not pause to consider whether there might be another one in the near vicinity. He should have noticed that the other three lanes had stopped for no obvious reason, and should have taken enough care to find out what the reason might be before overtaking the stationary cars. If he had done so, he would have become aware of the fire appliance.
The judge was invited to consider various cases, the most recent being Purdue v Devon Fire and Rescue Service (the Court of Appeal judgment was delivered after submissions in our case had finished, but before judgment was delivered in our case; counsel agreed that we should put our submissions on that case into writing, submit them to each other, and then submit them to the judge. We felt that it would be inappropriate that he should reach his decision in ignorance of a recent, relevant Court of Appeal decision).
The judge apportioned liability equally, which I think is wrong. In my opinion, the blame to be attached to the drivers differs significantly. The driver of the fire appliance knew that he was entering a junction against a red light, and that therefore the lights for the traffic going across the junction were green. He drove over the red light at 30 mph, or more, having slowed insufficiently or not at all. He made an obviously dangerous assumption, namely that the empty fourth lane would not contain a car crossing the junction. Those actions were deliberate, and contrary to the guidelines issued by his employers. On the other hand, Mr Burt failed momentarily to realise that the traffic on his left had stopped, and so failed to slow down and find out why; effectively one moment's lack of caution.
Unfortunately, appeals are always risky, especially to claimants who have the spectre of losing their finding of primary liability. Mr Burt therefore decided not to appeal.
Most personal injury cases never come to trial, and so defective experts are never found out. If my experience is representative, which it may well not be because I am so narrowly specialised (claimants' brain and spine only), it suggests that there are many poor quality "experts" writing reports for claimants and defendants which may appear respectable, and which may put the opponents off, but which are in reality misleading.
In my opinion, lawyers for both claimants and defendants should still be careful of the apparently respectable expert on the other side. It is so easy to be daunted or dissuaded by firm opinions given by such experts, but part of the expertise of personal injury litigation is to know the experts, and to perceive when they are not giving respectable opinions. Personal injury litigators now commonly keep databases of experts, gathering together their own personal experience, and this may be symptomatic of the continuing worry that nothing has really changed since 1999.
BILL BRAITHWAITE Q.C., who specialises in catastrophic brain and spine injury, was instructed by Sally Moore of Leigh Day & Co.
24 February 2003
Negligent failure to diagnose a blocked shunt
Brain damage and blindness
Local authority's legal obligation to provide care
Christopher C** was born in 1988 and so was about 2 years 9 months old at the date of the hospital's negligence in May and June 1991. He is now 14. His claim came for trial on quantum only in March 2003.
INTRODUCTION
The Claimant was a full-term, normal delivery, but a week after his birth he developed the sudden onset of epileptic fits. He was admitted to hospital, where investigations revealed that he had suffered an intra-ventricular haemorrhage, resulting in hydrocephalus (an abnormal increase in the amount of cerebro-spinal fluid in the ventricles of the brain). This was treated by the insertion of a ventriculo-peritoneal shunt, following which he made good progress, and was discharged home in October 1988. However, during the next two years he was noted to be of small stature, and he failed to thrive. It is agreed that, by the time of the Defendants' negligence in May and June 1991, the Claimant was showing a degree of developmental delay which would place him within the range that would indicate a moderate degree of learning disability; he was tested five times between birth and the negligence, and it is agreed that he was not showing evidence of severe impairment. He was not blind, nor did he have any significant visual impairment.
Christopher's shunt became blocked, and the Defendants negligently failed to diagnose the blockage for 27 days. It was agreed that, during that time, the intracranial pressure was either rising or high, and one of the issues was whether that pressure within the skull was likely to have caused damage to the brain.
It was agreed that Christopher's learning difficulties are now severe and complex, which is significantly worse than pre-negligence testing suggested he would attain. There was a major issue as to the predictive value of such developmental testing, discussed below.
The Claimant is now blind, undoubtedly caused by the negligence; he has a mild lower limb spasticity, more marked on the left than the right; and he has epilepsy, controlled by medication. Blindness has a major effect on a child's development, and it was agreed by all experts that Christopher is significantly worse than he would have been had the negligence not occurred, although it was apparently suggested by the defence experts that Christopher's needs are no more extensive than they would have been had the negligence not occurred.
The major issue in the case was how Christopher would have developed had the Defendants not been negligent.
It was our contention that the negligence certainly caused the blindness, and that blindness must have had, and will continue to have, a major effect on Christopher's development. It was our secondary submission that this was a prolonged period of high or rising intracranial pressure, which was either possibly or probably going to cause brain damage. We submitted that it probably caused diffuse damage.
NEUROLOGISTS
The neurologists agreed that acquired visual loss will greatly exacerbate learning difficulties in a child who already had evidence of developmental delay (my emphasis). They agreed, in their joint statement, that the Claimant would have had a degree of independent living skills, but would have required 24 hour adult supervision. Our expert let us down badly on this issue. It was apparently always her opinion that the Claimant would have managed either in the community with significant help, or in a Home Farm Trust/Scope type home, whereas now he will need a Vision Homes type home, but this did not appear to be what was agreed with the other expert.
The neurologists also agreed that 60% to 70% of Christopher's total impairment was caused by the neonatal injury, 30% is accounted for by the loss of vision, and less than 10% represents additional damage to the brain in 1991. We could only accept that assessment if the effect of it was that Christopher's needs have been changed so significantly that he now requires a different type of management.
The defence expert was very much against the suggestion that a month of raised intracranial pressure had caused brain damage, although he acknowledged that it was a possibility; our expert believed that some extra brain damage was caused.
NEUROSURGEONS
They agreed that blindness would have the effect of exacerbating the effects of Christopher's pre-existing learning difficulties, and that blindness will increase the level of care and supervision which Christopher will require, both as a child and as an adult.
The Claimant's expert considered that the prolonged period of raised intracranial pressure would have caused diffuse organic brain damage, whereas the defence expert felt that it caused no organic brain damage.
RADIOLOGY
The defence radiologist appeared to identify damage caused by the failure to relieve the pressure in 1991.
PSYCHOLOGISTS
They disagreed fundamentally about Christopher's development had the negligence not occurred; our expert considered that, without the influence of blindness, the Claimant would have been capable of semi-independence and the possibility of employment, whereas the defence expert thought that the difficulties would have fallen within the severe range, and that therefore he would have required a supported living environment as an adult, and would not have been employable.
DEVELOPMENTAL TESTING
There was no doubt that the pre-negligence testing showed that Christopher was only moderately disabled, and the defence position had to be that those results were misleading. We had some independent authority to suggest the contrary.
There was therefore an issue whether developmental testing of young children has predictive value, generally and in the instant case; coupled with that general issue was the question whether the predictive value of such tests is greater in the case of children who are developmentally disabled at the time of testing. The neurologists had agreed that although developmental assessment tools at this age will identify children who are functioning outside the normal range, their predictive validity for later function is poor, particularly in children who have already demonstrable brain injury. We did not accept that conclusion. We submitted that it may be outwith the area of expertise of those experts; and that it is contrary to our psychologist's opinion, supported by independent authority.
OPHTHALMIC SURGEONS
They agree that the negligence caused the blindness.
The Claimant's expert described the sudden, total loss of vision as an absolutely unmitigated disaster, not only in developmental terms, but also because of the considerable extra care which Christopher will now need for the rest of his life.
SCOLIOSIS
Christopher developed scoliosis, but the negligence did not cause the scoliosis.
MICROCEPHALY
There was an issue whether Christopher suffers from microcephaly (abnormal smallness of the head in relation to the size of the rest of the body). This was apparently agreed by the neurologists (the Claimant's neurologist appeared to agree, but then pointed out that head circumference was more in line with body growth when Christopher was young, and that his current head size may not be very inappropriate for his height and weight), but not by the Claimant's neurosurgeon. According to the defence neurosurgeon, the implication of poor head growth is that the brain was growing inadequately, and poor physical growth of the brain in the first two years of life is a marker of future disabilities of cerebral origin. It is the fact that Christopher achieved his moderate assessments despite his small head, and there was an issue whether the head size is a family trait
LIFE EXPECTANCY
Life expectancy was a separate issue. The Claimant's neurologist asserted that Christopher was likely to live to beyond the age of 60, whereas the defence expert considered that Christopher would live to about the age of 55 to 60. Professor Strauss, an American statistician instructed by the Defendants, gave an opinion based on various reports, and concluded that Christopher probably will live to the age of 57.4. He took account in his calculations of various matters, some of which seemed to be inappropriate. We had detailed criticism of his statistical methods, but in the event the defendants agreed two days before trial that life expectancy would be to age 60.
ACCOMMODATION
The claim was for the cost of adaptations rendered necessary by the blindness, and for increased running costs.
CARE
Our submissions on pre-negligence care were as follows:
1 At best, Christopher would have developed so that he could live with his parents, or in his own small home nearby, with family or outside help on either a daily or weekly basis.
2 At worst, he could not have managed in his own home, but could have lived with his parents, until they were of an age at which they were no longer able to look after him. At that stage, or earlier if that had suited the family, he would have been suitable for a Home Farm Trust/Scope/Care Establishments type of residential home.
They agreed that Vision Homes would be appropriate, costing about £70,000, compared to the costs of Scope, Care Establishments or Home Farm Trust (average £31,200).
The experts deal with state funding in their joint statement, but there was no adequate evidence to show that such funding would be available, or that the Claimant's parents would choose to pursue public funding rather than making their own choices and decisions. This is a very current topic at the moment, and defendants usually quote three cases (Firth, Bell and Ryan) in support of the argument that, because the local authority is legally obliged to provide appropriate accommodation and care for a disabled person, therefore a claimant cannot recover the cost of private care. In my opinion, those cases do not support that proposition; their reasoning is that, if a person is receiving care from a local authority, the authority cannot recover the cost of that care from damages held on behalf of the patient in the Court of Protection.
INVESTMENT COSTS
This is a controversial area, both as to the law and in relation to the facts. It is a claim which is being made more frequently nowadays, and I think it will become accepted eventually. At the moment there is considerable judicial resistance to the concept (although there is a decision in support noted in Kemp). It was particularly interesting that the defence accountant had set out a table which showed that, using the Court of Protection panel structure, there was a shortfall of over £100,000, when compared both with our accountant's figures, and with the defence accountant's figures based on the private client rates taken from the Court of Protection panel brokers.
COURT OF PROTECTION AND RECEIVER
Agreed.
SETTLEMENT
Various offers were made (including one which had the threat attached that, if it was not accepted, significantly less would be paid into court). One offer was for £500,000, with an "indemnity" against future care costs. Two days before trial (listed for eight days), the offer was increased to £850,000 (without an indemnity, which seemed to me to be worthless), and that was increased to £900,000 on the afternoon of the day before trial.
The judge approved settlement in that sum. Although he did not approve any specific figures, the following give some idea of how we assessed the major elements of the claim.
Pain, suffering and loss of amenity £175,000
Parents' past and future care £50,000
Future residential care £700,000
Accommodation £40,000
Court of Protection and receiver £50,000
19 March 2003
Claimant's Part 36 offer at 95%
Court of Appeal decision 21/3/02
For some time now, personal injury practitioners have been wondering whether it is possible or sensible for claimants to make Part 36 offers at 100%, or 99.9%, or at a similar level. The problem first came to my attention when I fought a case for a claimant in which failure to wear conspicuous clothing and a helmet were alleged to amount to contributory negligence. We felt that we would win those arguments, and we did. We had been sufficiently confident to offer to accept 100% and, when the judge made that award, we asked for indemnity costs. The defence argued that we had not done better than our offer, and therefore the provisions of Part 36 did not apply. The judge decided in our favour, and the defendant appealed. Unfortunately, because the amount of money involved was too small, the appeal was compromised.
The next opportunity came in Huck v Robson, Court of Appeal, 21st March 2002. The Claimant was driving along a narrow country road. She saw an oncoming car, so pulled into her side and stopped; the Defendant came round the bend too fast in the opposite direction, braked, skidded, and collided with the Claimant's car. On that basis the Claimant was bound to recover 100%. However, the Defendant's account was different; he said that they both came round the corner, saw the other, braked and skidded into each other. If that was correct, apportionment would be 50/50.
The Claimant was confident that her version was correct, but was prepared to accept a small discount for early settlement, and so offered to take 95% before proceedings were commenced. The defence solicitors responded with 50/50. The case went to trial, and the Claimant succeeded in full. The judge rejected the claim for indemnity costs, saying that the offer of 95% was derisory and meaningless, because he had never known a judge to apportion liability 95/5, and therefore the prediction of that result by the Claimant's lawyers was unrealistic and "nonsensical". The offer "was not an offer of anything". He completely failed to understand that the offer was not intended to be a prediction of the result, but was a commercial assessment of the value of an early settlement. When he was told that he was bound to award indemnity costs unless it would be unjust, he immediately, and without reflection, said that it would be.
We failed to get permission to appeal when we applied on paper, and only succeeded when oral representations were made.
Part 36.10 provides that, if a person makes an offer to settle before proceedings are begun, the court will take that offer into account when making any order as to costs. Under Part 36.21, where at trial a defendant is held liable for more than the proposals in the claimant's Part 36 offer, or where the judgment against the defendant is more advantageous to the claimant, the court may make the special costs and interest orders. The court will make the orders unless it considers it unjust to do so and, in considering whether it is unjust, the court will take into account all the circumstances of the case, including the terms of the offer, the stage when it was made, the information available at that time, and the conduct of the parties.
Part 44 deals with costs more generally. In deciding what costs order to make, the court must have regard to all the circumstances, including conduct, success, and an offer to settle, whether or not made in accordance with Part 36.
The Defendant's first argument was that the offer was not a Part 36 offer because it was made before proceedings were commenced, and that therefore the provisions of 36.21 did not apply. The court, not surprisingly, rejected this submission, saying that there was no logical reason to distinguish pre-proceedings offers from ones made after the action has been started. Indeed, there are very good reasons why the consequences should be the same.
The Defendant next argued that, in order to qualify as a Part 36 offer, the offer must be a genuine and realistic attempt to agree, and that an offer which the defendant is bound to refuse does not meet that requirement. The Court of Appeal accepted that the crucial question for a trial judge was whether it was unjust to award a claimant indemnity cost despite the fact that she had beaten her offer. Oddly though, only two of the judges saw the force of the argument that an offer of 95% is not a prediction of the result, but is an offer of a discount for early settlement. Still, two was enough for us to win.
There is a clear warning contained in the judgment. If it is self-evident that the offer was merely a tactical step designed to secure the benefit of the incentives provided by Part 36, for example an offer at 99.9%, the judge would have a discretion to refuse indemnity costs. That comment seems to me to mean that claimants with strong cases might be well-advised not to make a Part 36 offer; I cannot imagine giving up 5% or 10% of a claim worth several million pounds simply to achieve a quick settlement. On the other hand, an early offer in big cases can concentrate defendants' minds wonderfully well, and the threat of indemnity costs and interest can be sufficient to make them see sense. If claimants are discouraged from offering to take 99% or thereabouts, as they are by this judgment, a small proportion of large cases might not settle early. A discount of 1% on £5 million amounts to £50,000, which is a pretty good discount for admitting liability in a case which you are bound to lose, but that opportunity will probably now be denied to defendants.
A subsidiary point was that the judge had not made any reference to having considered the matters set out in 36.21(5). Although this is not obligatory, it "may well be a counsel of prudence".
Very severe brain damage
Settlement approved at £3.65 million
Note: the figures set out below were what we felt should be achieved at trial; they were not agreed by the defence. The judge approved the overall settlement figure.
1. TJ was born in 1985 and so was 8 at the date of the accident in1994. He is now 16.
LIABILITY
2. Judgment was entered in 1999.
QUANTUM - Pain, suffering and loss of amenity
3. The Claimant sustained a very severe brain injury which has affected every aspect of his life; he will never be able to live independently, or work. Additional effects of major importance are reduced mobility, the inability to speak easily, and visual defects which will severely compromise his ability to function as an independent human being, and are so severe that he would need help with the simplest of tasks.
4. There was a fundamental difference between the parties in relation to damages for pain, suffering and loss of amenity; the defence figure was £125,000, whereas we contended that an appropriate award would be £185,000. The Defendant relied on the wording of the JSB Guidelines to suggest that this was only a moderately severe brain injury, but we suggested that it is difficult to imagine worse results, particularly bearing in mind the Claimant's youth when injured. It was agreed that the Claimant will deteriorate in middle age, either for orthopaedic reasons, or because of premature cerebral ageing. He will always be incapable of managing his affairs.
5. Life expectancy was agreed at a reduction of 6 years.
6. The figure would have been agreed, had the case proceeded, at £175,000.
QUANTUM - financial loss
7. It was accepted by the Defendant's paediatric neurologist that T should be able to live in his own home with the appropriate level of care, and the Claimant's neurosurgeon felt that it would be preferable. The family have moved into a bungalow (after much heart searching by Mr and Mrs J, who were very happy and well-suited where they were), which is intended to be T's home for the rest of his life. Their choice was approved by the joint architect. T has a ground floor bedroom with suitable ensuite facilities, and an adjacent carer's room.
8. The major issue appeared to be the method of calculating the cost of the 24 hour care which T will always need. The Claimant's care expert calculated on the basis that the care will be bought at an hourly rate, as is done at present by direct employment of the carers, whereas the defence expert asserted that the care could be provided by an agency at considerably less cost (even though the family had tried agencies without success).
9. At a very late stage, in fact at midday on the morning of trial, it was revealed that the defence expert agreed that direct employment was agreed, and all that was left was an issue as to the cost of providing the care needed. We estimated that at £2.2 million.
10. There was a significant difference in the valuations of future loss of earnings. We suggested using teachers' earnings as a basis, subject to the argument that the Claimant would have earned more than his father, who is a teacher; this depended on the evidence of the parents, whom we put forward as people of integrity who were qualified to give a realistic estimate of how their child would have achieved had he not been deprived of the opportunity by the Defendant's negligence. We emphasised that, by selecting teaching as a guide, we deliberately reduced the level of this claim, in the sense that it would have been possible to assert that T would have gone into one of the other professions (eg doctor or lawyer, where earnings are arguably significantly higher than in teaching). The Defendant argued in the Counter-schedule that a low average should be taken, and that retirement at 55 was a realistic option. The claim was put at £621,000 in the Schedule, which we reduced to £500,000 for settlement.
11. There were various other heads of claim, one interesting one being that we separated the father's time spent on caring for his son from time spent administering his affairs, which in turn was treated differently from time spent dealing with the Court of Protection (which he said was extremely difficult). There was a claim for the cost of attending a brain injury conference, suggested by the case manager, which we expected to win, and for music therapy, and for the cost of insuring the parents' lives and health against the difference in the cost of family and professional care.
12. The final settlement, offered after the case had been opened, was £3.65 million.
13 June 2002
BILL BRAITHWAITE Q.C.
Court of Appeal decision
1. Charles Beattie was 17 when he was injured catastrophically in a car crash. His claim for damages was settled in 1992 for £1.6 million. Because he was and is a patient, the Court of Protection was involved, and most of the settlement (about £1 million) was put into a structured settlement, with only £100,000 being put into a contingency fund in the Court of Protection, the remainder having been used by the family to buy and equip a house. The agreement for the structured settlement provided that about £5,000 a month should be paid for a minimum of ten years, subject to increases according to the Retail Prices Index (which have now taken the monthly figure to over £6,000), together with about £10,000 every three years (again index-linked). In 1999 a Social Security Commissioner decided on appeal that the Claimant was not entitled to income support because at all material times from the time of the settlement his income under the structured settlement exceeded his “applicable amount“ (section 124(1) of the Social Security Contributions and Benefits Act 1992). That decision was appealed to the Court of Appeal, which gave judgment on the 9th April 2001.
2. It was common ground between the parties, and accepted by the Court of Appeal, that the capital in the contingency fund was to be disregarded, due to the relevant regulations, but that the income did count as the Claimant's income. The appeal was in relation to the income from the structure: regulation 46 of the Income Support (General) Regulations 1987.
3. The issue was whether the Claimant's income exceeded the applicable amount. Part V of the Regulations makes provision for the calculation of income for the purposes of section 124(1) of the Act. Regulation 40(1) provides that the income of a claimant which does not consist of earnings ... shall ... be his gross income, together with any capital treated as income under regulation 41. Regulation 41 is headed “Capital Treated as Income“ and provides that any capital payable by instalments shall be treated as income. Paragraph 2 of that regulation provides that “Any payment received under an annuity shall be treated as income“. Regulation 42(2) provides that “Except in the case of a trust derived from a payment made in consequence of a personal injury, income which would become payable to the claimant upon application being made but which has not been acquired by him shall be treated as possessed by him but only from the date on which it would be so acquired“.
4. The argument for the Claimant was that his situation should not be treated simply as a contract between the Claimant and the insurer, attracting the operation of regulation 41, because the contract was under the supervision of the Court of Protection, and therefore a broad (purposive?) view should be taken of the arrangement, thus bringing into effect the provisions of regulation 42, which might exclude arrangements such as this. The argument was that, if the money had not been used to purchase a structured settlement, but had instead been used to create a trust, or had simply remained in the Court of Protection, it would not have caused income support to be stopped.
5. The Court of Appeal rejected that line of argument, and decided that the use of the word “annuity“ in regulation 41was decisive. Therefore the income of £6,000 a month has to be taken into account, and Income Support is not payable. Because that can be a gateway benefit in some circumstances, this decision is one which must be considered in the final settlement of a personal injury action.
30 May 2001Diving tetraplegic recovers compensation in the Court of Appeal
INTRODUCTION
John Tomlinson was 18 when he broke his neck diving into the lake at Brereton Heath Park, near Congleton in Cheshire. He brought a claim against the owners and occupiers, Congleton Borough Council, and against the managers of the site, Cheshire County Council. His case came on for trial in March 2001 before Mr Justice Jack, only a week after Darby v National Trust was reported in The Times. What bad luck for the Claimant! The judge dismissed his claim, effectively relying on Darby, bolstered up by Ratcliff v McConnell [1999] 1 W.L.R. 670. We appealed, arguing that, although a superficial reading of Darby seemed to prevent the Claimant from recovering, that was not a correct analysis of the true legal position under the Occupiers Liability Act. We won, by two to one in the Court of Appeal. This decision may be of fundamental importance, because it might stop the tide turning further against people who are injured catastrophically by doing things which can be categorised as "foolish" or "rash".
The accident happened in a lake which had been a sand quarry, 40 feet deep at its deepest. It is an extremely popular venue, being managed as a tourist attraction for up to 160,000 visitors a year. There were signs prohibiting swimming because of dangerous water, but they had little or no effect. A scheme had been developed to landscape and plant the sandy shores with reeds and shrubs, in order to prevent people from swimming, but the modest cost of doing that was too much for the local authority.
Mr Tomlinson went into the water to cool off, on a hot bank holiday Saturday, just as he had done on many occasions before, as had his friends and many other visitors. He walked or ran in up to about mid-thigh level, and then dived or plunged head first into the water. He hit his head on something, probably the sandy bottom, and broke his neck at C5.
THE LAW
His case was brought under the Occupiers Liability Act 1984, because the signs prohibiting swimming were thought to mean that he became a trespasser from the moment he started to dive. The trial judge held that there was nothing about the lake which made it any more dangerous than any other ordinary stretch of open water in England (this arising from Darby), and that the danger and risk of injury from diving in the lake where it was shallow were obvious. He said that, on the basis of Darby, "that is really the end of the matter", because an occupier is not under a duty to warn against a risk which is obvious, and that the signs were reasonable and sufficient steps to give warning of the danger and to discourage people from incurring the risk (even though they were acknowledged to be ineffective).
We argued that the duty was to do what was practicable to prevent the occurrence of accidents, not merely to warn people that they might occur.
The Court of Appeal reviewed the authorities of Staples v West Dorset District Council [1995] P.I.Q.R. 439, Whyte v Redland Aggregates Ltd (unreported, 27th November 1997), Ratcliff v McConnell [1999] 1 W.L.R. 670, Bartrum v Hepworth Minerals & Chemicals Ltd (unreported, 29th October 1999) and Darby v National Trust, Scott v Associated British Ports (unreported, 22nd November 2000, Jebson v Ministry of Defence [2000] 1 W.L.R. 2055, and Jolley v Sutton London Borough Council [2000] 1 W.L.R. 1082. They then traced the development of the law from Addie v Dumbreck [1929] A.C. 358, through Herrington v British Rail [1972] A.C. 877, including the Law Commission's report in 1976.
THE COURT OF APPEAL'S VIEW
Lord Justice Ward, giving the leading judgment, said that it is essential to use the Occupiers Liability Act as a template for judgment in each and every case. Interestingly, he said: "I do not wish to suggest that the decisions in the cases I have recited are wrong but I have found it useful to warn myself that a finding that a risk was obvious is a statement of a conclusion, not the application of a principle. For the principle one must look to the Act. It is a staged process.". That is precisely what we were arguing for, and it is important to consider all diving cases in that manner.
The first stage under section 1(1) is to identify the risk and the danger. There was a risk of injury through drowning because of the dangers, among others, of the effect of cold water, being caught in weed, being stuck in the mud or plunging unexpectedly into deep water. There was the risk of injury through diving because of the dangers of diving too steeply in shallow water or into an obstruction. There may have been risks of other injury from other dangers eg Weil's disease.
The next stage is to determine whether or not a duty was owed by the occupier, which depends solely on whether the three criteria of section 1(3) are satisfied. The first is whether the occupier was aware of the danger. In our case that was beyond question, because there was a history of problems going back to 1983, when there was a memo "The risk of a fatality to swimmers was stressed and agreed by all.". Ten years later: "The site has a history of near drownings.". The second criterion is whether the occupier knows or has reasonable grounds to believe that the other person is in the vicinity of the danger, which could not be in dispute. The third, crucial, criterion is whether the risk was one against which, in all the circumstances of the case, the occupiers might reasonably be expected to offer the trespasser some protection. Lord Justice Ward emphasised that the question is not whether reasonable protection is to be expected, because to frame the question that way fails to distinguish between the establishing of the duty under section 1(3) and the standard of care necessary to satisfy the duty which is provided by section 1(4); "these are distinct and separate requirements". It is important to note the phrase in section 1(3)(c) "in all the circumstances of the case", because it highlights Lord Steyn's observation in Jolley that these cases are "inevitably very fact-sensitive".
Returning to Mr Tomlinson's case, the lake was a magnet to the public, and the sandy beaches were an invitation to swim. When account is taken of the gravity of the risk of injury, and the failure of the warning signs to curtail the activity, it was held that the occupiers were under a duty to the Claimant. Once that has been established, it is then necessary to consider the duty owed to the individual claimant, as distinct from the claimant as a member of a class. The history of the danger and of the exposure to it drove the local authority to the conclusion that warnings were not working; they were inviting public use of this amenity knowing that the water was a siren call strong enough to turn stout men's minds. Therefore the signs prohibiting swimming were not enough to discharge the duty (see section 1(5)). The Court of Appeal held that the occupiers were under a duty to the claimant to carry out the landscaping and planting which had been recommended in internal minutes of the local authority, and that they were in breach of duty in failing to do so.
The Court of Appeal rejected the argument that the Claimant had voluntarily accepted the risk.
It may be worth noting for the future that Lord Justice Ward expressed a reservation whether the signs saying "No swimming - dangerous water" turned an otherwise lawful visitor into a trespasser.
The trial judge had made a finding that, if he was wrong about primary liability, he would have apportioned blame two thirds against the Claimant. I considered that to be quite wrong, based on his fundamentally mistaken view of the law and the real duty owed by the occupiers. Lord Justice Ward agreed with me, saying that he would have held that they were equally to blame, but that, as the other two members of the court agreed with the trial judge, he would not disagree.
14 March 2002
There have been two recent cases in the Court of Appeal which may be important to personal injury practitioners.
On the 14th March 2002, they gave judgment in favour of a claimant who had lost his claim for damages arising out of his dive into a lake in a country park. The judge who tried the action dismissed the claim because he felt guided by the recent case of Darby v National Trust. The Court of Appeal reversed that conclusion, thus allowing the claimant to recover compensation. Perhaps the most significant point is the Court of Appeal's emphasis that these cases are "fact sensitive" (that phrase coming from Lord Steyn in Jolley).
On the 21st March 2002, the Court of Appeal gave guidance on a problem which has been troubling claimants' lawyers for some time. When you decide to make a Part 36 offer on liability only, is it acceptable to offer to accept 100%, or 99.9% or 99%, on the basis that you have an overwhelmingly strong case, and the defendant should admit liability? The actual percentage in question was 95%, and the trial judge had dismissed the claim for indemnity costs out of hand, saying that no court would ever apportion liability between two drivers (this case involved a crash on a narrow country road) 95/5. That, of course, demonstrated a complete misunderstanding of the whole process of valuing the risk of an adverse finding, and then applying that risk to the level of deduction. The Court of Appeal allowed the appeal, confirming that a 95% Part 36 offer, in the right circumstances, will be effective to entitle you to indemnity costs.
21 March 2002
Bill Braithwaite Q.C.
Damages assessed at £2.7 million
1. Miss Theresa Farr was born on the 8th April 1978 and so was 16 at the date of the accident on the 28th June 1994. She was 23 at the time of her trial before Mr Justice Nelson in November 2001.
LIABILITY
2. The Claimant was injured in a car crash in 1994. Judgment was entered on the 31st July 2000.
QUANTUM - Pain, suffering and loss of amenity
3. Miss Theresa Farr sustained a very severe brain injury, as a result of which she is unable to live independently, or work; she needs guidance, supervision and prompting for all daily activities. She is only safe to be left alone for brief periods of time, and she needs constant help for organisation, planning, keeping a diary, and reminders to look at her diary. She has major cognitive problems, particularly with regard to memory. She also has a significant visual defect which interferes with her life.
Damages were agreed at £120,000 inclusive of interest.
QUANTUM - Financial loss
Past rehabilitation
6. The Claimant was a resident at the Transitional Rehabilitation Unit from October 1995 to May 1997, following which she attended on a number of days a week. The Defendant argued that the period over which the Claimant was resident at TRU, and the level of charges, were excessive. This suggestion arose out of the view of the neuropsychologists, that TRU should have clear goals if they wish to continue rehabilitation; however, the agreed care experts' report seemed to accept that TRU were providing care, as distinct from positive rehabilitation. The judge rejected the submission that TRU had been efficient and had overcharged. He awarded £266,791.
Past care
We argued on behalf of the Claimant that the care given by the family was of such a high standard that there should not be a Housecroft v Burnett discount, citing Evans v Pontypridd Roofing 2001, in which the Court of Appeal held that there is no conventional discount because each case depends on its own facts. The judge decided that a 20% discount was appropriate, and awarded £57,196.
Future loss of earnings
The claim was presented on the basis that the Claimant would have re-sat exams, gone to art school, and then worked as a commercial artist or graphic designer; the alternative of teachers' earnings was given. The Counter-schedule asserted that the Claimant's approach did not face the reality of the evidence, namely that she had low grades at GCSE, and was no better at art than other young people. The Defendant suggested that the claim should be calculated instead on the basis of the average female manual earnings figure from the New Earnings Survey. The difference was between £392 a week as an artist, £350 as a teacher, and £184 from the NES.
The Court had to decide what weight to attach to the statements which painted a picture of an enthusiastic girl who was developing an interest in art, and who probably had the character to succeed in a career. Her art teacher described her as above average in her group, and emphasised that, even though Theresa was not particularly gifted academically, she had the potential to develop her skills and to pursue a career in art; in fact it was the teacher who broached the subject with the Claimant. Agreed at £280,000.
Future care
The Claimant had bought a new home, with her mother and step father, and is now settled there; it comprises an old farm with a converted outbuilding or cottage close by. She still attends TRU three days a week, and has 24 hour care. The experts started from the agreed position that the Claimant currently received 24 hour care, and they agreed to work on the premise that the current input from TRU is essentially a long-term care regime. The judge awarded £1,798,162, plus £77,500 for case management.
NOTES
The payment into court was £1.4 million.
BILL BRAITHWAITE Q.C.
Exchange Chambers
Liverpool and Manchester
I have just finished one of the worst-defended cases I have ever seen.
I represented a woman of 48 who lost both legs, one arm and her husband in a car crash caused by the dangerous driving of an off-duty police officer (he got four years' imprisonment). She was discharged from hospital into her own home, which had eight steps up to the front door, and was on five floors: not surprisingly she couldn't manage, even with the help of her two children aged eleven and thirteen, and a young female family friend, and so the local authority re-housed her in a guest house where she had to eat all her meals in the public bar (with no legs and only one hand). That was too expensive, and so she was sent to a difficult housing estate where the whole family was unhappy, and she could not access the bathroom.
You might think that this sequence of events would arouse the sympathy of any insurer, but Pegasus Motor Policies at Lloyds, the insurers responsible, took an entirely different view. They would not admit liability (the Defendant blamed the driver he was overtaking when he crashed head-on [on the wrong side of the road] into Mrs Westmoquette's car), and they did nothing to help the Plaintiff in her plight.
I wonder if any of you have wondered how to get summary judgment and an interim payment when you cannot get the police report? The Plaintiff had no recollection of the accident, and therefore all we knew was the location of the accident. It really isn't easy, and the temptation is enormous to tell the client that she must wait until the Defendant has been prosecuted - after all, that is what usually happens.
After such a catastrophe, Mrs Westmoquette's first stroke of luck came in her choice of solicitor. I don't know how she managed it, but she chose a highly specialised personal injury solicitor with real experience and, above all, humanity and compassion - Tony Goff of George Ide, Phillips in Chichester. He would not tolerate an eighteen month wait while the Defendant was prosecuted and the police report became available, and so he ferreted round until he got enough information to demonstrate that there was no defence to a civil claim (and none to the criminal charge either!). The defence resisted our application vigorously, but we were awarded an interim payment of £100,000 so that the Plaintiff could buy a bungalow, the Master making it clear that he intended to award a further sum for adaptations when necessary. The defence offered no help in the selection of a suitable bungalow, even though the process of viewing was almost impossible for the Plaintiff. They gave us a second substantial payment, but resisted our application for a third, which was necessary to finish the work to the bungalow.
Whilst this skirmishing was going on, Mrs Westmoquette's solicitor was preparing the case for trial, tolerating no delay from the defence, and we were listed for a five day hearing (on quantum only - liability was admitted when the Defendant got four years) in March 1998. The defence paid £910,000 into court three weeks before trial (leaving it until the very last moment), and then opened negotiations in the week before. Their position, clearly stated without apparent embarrassment, was that they would offer a structured settlement to the Plaintiff if we could agree damages, but surprisingly if we went to trial they would not allow the Plaintiff to have a structure. At 9.15 a.m. on the day before trial they offered £1,050,000, telling us that the offer would be withdrawn if not accepted by 4.30 pm that day. I haven't mentioned yet that the Plaintiff also suffered extensive burns, terrible facial injuries leaving awful scarring, damage to her jaw, and some brain damage. The pressures on her and her family were so terrible that the friend who was helping to look after them had earlier attempted suicide. Thankfully, Mrs Westmoquette is a person of enormous courage, strength and determination, and she was able to withstand the pressure, and face the prospect of having to spend all week in London having every aspect of her claim scrutinised by a team which apparently was lacking in compassion and perception.
She knew by then that she was in for a grilling, because none of our significant experts were agreed, nor were any of our figures.
So we came to trial. The first problem was that Mrs Westmoquette could not get into the bathroom in her specially-selected, wheelchair-friendly hotel: they had to take off the door and the frame, which took five hours. The next difficulty was that all the conference rooms in the court building were "booked", and so we had to cram into the first aid room.
We had a first class team of experts, all of whom, I believe, are independent, impartial, and truly expert: Dr Saadah (consultant in rehabilitation following amputation, and the treating doctor) Hugh Spencely (architect), Maggie Sargent (nurse), Julia Ho (occupational therapist), and Neil Brooks (neuro-psychologist) were the main ones. On the other hand, the defence surveyor was very critical of the selection of the bungalow, and the design of the adaptations, and he asserted that the finished job could and should have been done for at least £100,000 less than the actual cost. However, under cross-examination he admitted that the purchase and adaptation of the bungalow had been done "on the best advice (Hugh Spencely's) and in the best way possible". Similarly, the defence occupational therapist completely changed her assessment of the Plaintiff's equipment needs, and completely altered the care package originally suggested by her.
The total award was just over £1,500,000.
It was ironic and deeply disappointing that, only the week before this trial, I had written an article suggesting that decent, specialist personal injury practitioners for plaintiffs and defendants probably could manage these catastrophic cases without the courts, because we could and should be able to resolve most of the issues. What an awful reminder for me of just how badly these cases can be managed. Two highlights give some of the flavour of what the Plaintiff had to tolerate: first, it was suggested to her that, to offset against increased clothing costs, she would no longer have to buy tights; secondly, we spent some time listening to the suggestion that, if she wanted to change her shoes (for example, from indoor to outdoor, or morning to evening), she should take her legs off rather than incur the expense of a long-handled shoe horn costing £5.89 (remember that she has only one hand, and the legs are difficult to put on and take off).
Although the end result was wonderful, and although it cost Pegasus a huge amount compared to the cost of an early, sympathetic settlement, and although I have been up-lifted by contact with Margaret Westmoquette, the experience had a profoundly dispiriting side for me. How can we possibly hope to improve our system of managing substantial personal injury claims whilst this approach is tolerated?
| Pain, suffering and loss of amenity: | £115,000 |
| Interest on PSLA: | £4,326 |
| Past loss of earnings: | £36,598 |
| Past care: | £17,925 |
| Past Equipment: | £20,512 |
| Past motoring expenses: | £3,141 |
| Past therapies: | £70.00 |
| Past housing: | £120,996 |
| Past travel: | £4,890 |
| Total past losses inclusive of interest: | £222,628 |
| Future loss of earnings: | £106,650 |
| Future care: | £351,950 |
| Future aids: | £186,078 |
| Future motoring expenses: | £119,660 |
| Future therapies: | £191,444 |
| Future housing: | £41,510 |
| Future technical aids: | £122,530 |
| Future pension: | £11,479 |
| Future Financial advice: | £64,504 |
| TOTAL | £1,537,759 |
NOTE: This award was increased to about £1.8 million to reflect the decision in Wells, Thomas and Page.
The plaintiff slipped at work and fell, hitting his head. He was unconscious for two or three minutes, taken to hospital and discharged the same day. There was no recording of his score on the Glasgow Coma Scale, and the best estimate of his Post Traumatic Amnesia was that it was up to 20 minutes. He returned to work the following day, although he had to go back to hospital because he could not manage. He did not then work for a few months, but later obtained a job as a garage attendant which he kept for over three years (possibly because members of his family worked in the same garage, and were able to protect him from some of the difficulties of life).
On any account, this looked like so-called "minor brain injury" (in America they tend to disapprove of the word "minor", and describe this type of injury as "subtle"). Whatever one calls it, the nature of the injury would have tended to indicate in the early stages that this was unlikely to be a substantial claim.
However, some years after the accident the plaintiff developed some form of absences, loss of consciousness or fitting, which was eventually diagnosed tentatively, after several years, as probably being due to epilepsy. In addition, he always complained of left-sided weakness (hemi-paresis?).
There was a substantial issue between medical experts as to whether the epilepsy (assuming it was epilepsy) was caused by the accident, the onset having apparently been so late, and whether other problems (personality, cognitive and behavioural) were also the result of this minor brain injury. There was a prevalent medical view that it would be difficult to attribute all these problems to such a minor accident, although the other side of that particular coin was that the plaintiff had been perfectly alright beforehand.
A subsidiary issue was whether the plaintiff was a patient within the meaning of the Mental Health Act. This issue had to be tried (what is called a "capacity hearing"), and the judge decided that the plaintiff was indeed a patient. This does raise a nasty little problem for plaintiffs' lawyers, because on the one hand they have a duty to the court to present what they believe to be sensible and respectable medical opinion, but on the other hand they represent the plaintiff, and the result of such opinion will be that he is deprived of the ability to manage his own affairs. We decided that we would have to tread delicately along that difficult path, and so we presented the evidence neutrally to the judge. The compelling aspect of our evidence was that we had selected the treating neuro-psychiatrist, the treating neuro-psychologist and the treating neurological social worker, all of whom had several years experience of this plaintiff.
The result of the capacity hearing was that the plaintiff was declared to be a patient; the defendants therefore had to re-consider their payment into court in order to allow for the costs of the Court of Protection, and they increased their offer.
The plaintiff's legal advisers were then presented with another difficult problem. Both the plaintiff and his next friend were keen to accept the money on offer, even though it was against our advice. We had to act on the next friend's instructions, and seek the judge's approval, but of course we had to make it clear to him that we had advised against settlement at this level. Because of the increase on the payment into court, and because there was an outstanding issue about contributory negligence, the judge felt able in the end to express his approval, and so bring the action to a close in a way which satisfied the plaintiff.
I am reporting this case because the final award was £445,000 for an apparently minor brain injury. No wonder the Americans tend not to like that word, because it really is so misleading. Practitioners representing plaintiffs who have suffered injuries to the head should always be aware that there may be a significant injury to the brain which can have a disastrous effect on someone's life.
BILL BRAITHWAITE Q.C. and GERARD MARTIN were instructed by Amjed Malik of Goldwaters, Newcastle upon Tyne.
On the 3rd December 1990, Captain Nigel Laughton, who was born on the 12th October 1965 and so was then 25, was doing the last three quarters of an hour of helicopter training on one of his Army courses. For some reason which seems never even to have been discussed publicly, let alone explained, the instructor decided that they would practise an engine-off landing from 550 feet: apparently it is perfectly possible to land without the engine, but only if you do it from about three times that height. Without warning he cut the engine, whereupon the helicopter plummeted to the ground, destroying itself (how many millions of pounds wasted?) and causing serious injury to Captain Laughton's back. Liability was admitted, and the assessment of damages was heard on the 16th and 17th April 1996 in the High Court in London.
PAIN, SUFFERING AND LOSS OF AMENITY
Surprisingly, the instructor was not injured significantly, but Nigel Laughton sustained a serious soft tissue injury to his back at the disc between the 4th and 5th lumbar vertebrae. He was off work for a very short time, partly because he was driven to get back by the effects of Post Traumatic Stress Disorder, and he then struggled on for about three years coping with back pain. It got too much for him in the end, and he underwent a fairly new procedure called a Graf ligament stabilisation procedure (similar to a fusion, but not as rigid). That did not cure the pain, and he was discharged form the Army four years after the accident. He has continuous pain, which has effectively curtailed all his sports, and he is now reduced to watching and coaching (although characteristically he has become one of the best qualified cricket coaches in the country). He needs special chairs, and has to manage his daily activities so that he does not pay for excessive exertion by days of pain. He takes painkillers, uses a Transcutaneous Electronic Nerve Stimulator, and has frequent therapies (physio, reflexology, aromatherapy, acupuncture).
Not surprisingly, he developed P.T.S.D. (very well described in the agreed report by Dr Gordon Turnbull at Ticehurst), which made him obsessive, caused difficulty in temper control, and affected his personal relationships. Although he had pretty well recovered by the time of trial, the judge found that he was still vulnerable and that the prognosis was guarded.
The award for pain, suffering and loss of amenity was £35,000.
LOSS OF CONGENIAL EMPLOYMENT
£7,500 for the loss of a lifetime's career.
LOSS OF EARNINGS
Nigel Laughton had excelled in sport at school, and in the Army: he had captained all the relevant teams for several years, had played at junior Wimbledon, and was the captain of the Army cricket team in Germany. He comes from "a traditional service family", and joined the Army when he was young. At the time of the accident he was seconded to the Army Air Corps from the Black Watch, and he had just been accepted for a regular commission. Our case was that he was an exceptional young man who would definitely have risen to Brigadier at the age of 45, and who might have achieved General when he was 55 (there are four full Generals, 45 Major Generals, and 125 Brigadiers altogether): failing promotion to General, we argued that he would have left the Army with a wonderful track record, and would have been in demand in civilian life. The Army took a predictably unsympathetic view of someone whose life they had destroyed by the most crass carelessness (incidentally, as far as we know, the instructor is still instructing). First, they argued that he would have left the Army shortly after the date of the accident, ignoring the fact that they had just selected him for a regular commission. When that failed to deter his legal advisers, they then set about trying to show that he was an entirely average young man who would not have risen beyond the rank of Colonel, and would not have been able to find work when he left the Army. They were helped in this attempt by the fact that they were unable to find the results of a recent selection process in which the Plaintiff had come nearly top. The judge held that the Plaintiff had "an excellent career potential", and he was impressed by the evidence we had obtained from all ranks of Army personnel (from Major General Sir Somebody, covering most ranks to Warrant Officer Class 2). He said: "The Plaintiff fitted into service life perfectly, having an aptitude for leadership and an enjoyment of the community and family of the army....He shone in everything he attempted....(he) had very strong motivation to get to the top of his chosen profession.". He concluded that the Plaintiff would have reached Brigadier by 45 (although he then found that he was not satisfied that he would have worked beyond 55, which I found surprising).
Again typically, the Plaintiff had started a new career. He had started a geography degree at Oxford, and intended to go into teaching, in either the public or private sector. We predicted that he would rise to being a headmaster (that being consistent with our case that he was, and is, an exceptional young man who was likely to excel in whatever he put his mind to).
The total past loss was £32,000, and the future loss was £268,366.
THE MULTIPLIERS
Imagine our surprise when we were told, the day before the trial, that we were listed before the judge who had been the first to adopt the multiplier discount rate for which one of us has been arguing ever since he took silk! The arguments are now well-rehearsed, and so we won't repeat them here (they appeared in David Kemp's and Bill Braithwaite's articles in Quantum over the last few months). This judge took an enormous step forward, by saying: "No evidence has been addressed before me, as to the actual return given the conventional approach based upon a 4.5% discount figure. I have available before me the precise tool whereby compensation can be accurately assessed using the Ogden tables as a guide. I see no compelling reason why I should not apply them in this case. I agree with the reasoning of Dyson J, in the passage cited above." So, for the first time the point was won without evidence, which is exactly what Bill Braithwaite has been urging for some time. The judge used a discount rate of 3%. Unfortunately, of course, that approach has been overtaken, at least for the time being, by the Court of Appeal decision in Wells, Thomas and Page, in which a multiplier discount rate of 4.5% was said still to be appropriate.
| Pain, suffering and loss of amenity: | £35,000 |
| Loss of congenial employment: | £7,500 |
| Loss to trial: | £47,250 |
| Future loss of earnings: | £268,366 |
| Future medical care and therapy: | £34,800 |
| Additional housing costs: | £20,000 |
| Loss of other army benefits: | £11,400 |
| Loss of pension : | £83,710 |
| Plus interest | |
| TOTAL AWARD: | £521,328 |
That award has now been reduced to take account of the Court of Appeal decision, bearing in mind the obvious risk that the Plaintiffs in Wells, Thomas and Page will appeal to the House of Lords, and succeed.
NOTES FOR PRACTITIONERS
The Defendants made no approach until a few weeks before trial, when they made their only offer, of £250,000.
They did not pay that sum, or any, into court.
They made our lives easy by failing to put forward realistic offers.
As so often happens, when plaintiffs are forced to fight, they do better than they would have settled for, and far better than defendants ever seem to contemplate.
The Defendants' position was made more difficult by their failure to serve evidence in accordance with the directions order, and then seeking leave at trial (not even bothering to apply to the Master a couple of weeks earlier) to call evidence from a personnel officer to show that the Plaintiff was average. We resisted their application on the basis that they had given no reason for their default, and it was not fair on the Plaintiff because, although it is always said that his position can be protected by an adjournment, the reality is that plaintiffs are usually desperate to get their case over, and will not readily agree to it going off for an unspecified number of months.
BILL BRAITHWAITE Q.C. was instructed by Geraldine McCool of Leigh Day & Co.
Jason Rogers was born on the 22nd June 1973 and so was 17 when he was assaulted on the 20th April 1991. He is now 23.
Liability was accepted.
Jason sustained severe brain damage. His neurosurgeon did not expect a good outcome, and sadly that prognosis has been realised. The severity of the injury was emphasised by the neurosurgeon, who said "... it would probably have been better if he had been killed ...", and "I think he is going to require permanent institutional care in the next 5 years for the rest of his life ...". This view was repeated in 1994: "I really feel most strongly that Jason is getting to the stage where he is going to have to go into some form of institutional care.", and at the end of that year he thought "that, far from being better, Jason, if anything, is worse than he was.". In his final report he concluded that the Applicant needed a next friend and the help of the Court of Protection: an order was made appointing the Public Trustee as Receiver. The neurosurgeon eventually supported the notion of care in the community, and felt that the suggestion of institutional care (which is actually far more expensive) was of genuine concern to Jason, and would be cruel.
Our neuro-psychological report, by Dr Neil Brooks, gave a good description of the Applicant's behaviour, which was amplified by the Applicant's mother. Dr Brooks said that Jason will never be able to work or look after himself, and he suggested a care and case management regime which we adopted.
Those opinions gave a good impression of the effect of the injury on the Applicant.
It was our submission that the following cases in Kemp would be helpful in assessing pain, suffering and loss of amenity:-| Ellis v Denton C2-002 | £70,000 now £91,412 |
| Narroway v Pendleton C2-003/1 | £85,000 now £90,271. |
We submitted that an appropriate award of general damages for pain, suffering and loss of amenity would be in the region of £90,000. The Board agreed.
Turning to the financial claim, and dealing first with past loss of earnings, the issue for the Board was whether the Applicant would have achieved the career progression as a semi-skilled fitter which was predicted by our accountants, or whether there were some negative factors to be taken into account (query solvent abuse). We suggested that one approach to reflect this point would be to deduct, say, the last one or two years' net earnings on the basis that Jason might not have been in full-time work between the assault and the hearing. That produced a figure in the region of £20,000 to £25,000 instead of the claimed £28,982, and the Board awarded £22,500.
The worth of past care was calculated by Cathy Johnson. The strain on Jason's parents had obviously been substantial, and the figure selected by the Board was £65,000.
So far as future loss of earnings was concerned, there were two major issues, namely the use of a 3% discount rate in the selection of the multiplier, and the assumption that the Applicant would have worked full-time for his entire life. The discount rate argument is currently being decided by the Court of Appeal (decision expected in October). The alternative, traditional rate is 4.5%, and I had the relevant figures available. However, the Chairman of the Board assured me that they used really traditional multipliers, not based on actuarial tables, and the figures he had in mind were 16 and 18. We suggested that, if the Board thought that the Applicant's prospects of work were worse than average, they could consider reducing the multiplier slightly. Because they preferred the non-actuarial approach, this was not relevant. The award was £160,000.
Future care requirements were set out and costed by Dr Brooks. There was the same multiplier issue. The Board assessed the appropriate figure as £400,000.
The claim for transport was for 3,000 extra miles a year in the sort of car which the Applicant would have had in any event: at 32.4p per mile, that would amount to £972 pa, or £24,668 in total, which was allowed at £25,000.
The applicant is capable of going to the same places on holiday as he would have done had he not been injured, and the extra cost was for taking carers with him: it probably would need two carers to accompany Jason, and therefore the cost would be substantial. The award was £35,000.
The accommodation claim depended on the Board's view whether there would be any extra cost involved in buying a house across the road from his parents, or whether that is the sort of house which the Applicant would have bought in any event. They thought that there would be some extra cost, based on our Roberts v Johnstone calculations, and decided on £16,000.
The Court of Protection costs were calculated with the Public Trustee as the Receiver, and the annual figure was over £4,000. This element was adjourned pending the Applicant's decision (by the Public Trustee) whether to take his damages by structured settlement.
| AWARD (excluding Court of Protection) | £925,000 |
| Less benefits | (£111,624) |
| TOTAL | £813,376 |
BILL BRAITHWAITE Q.C., instructed by Jeremy Taylor and Christine Campbell of Wace Morgan, Shrewsbury.
Trial before McKINNON J. At Carlisle 26th, 27th January and 1st February 1993
CASE REPORT
The Plaintiff was born on the 31st July 1956 and so was 30 at the date of the accident on the 18th May 1987.
His legs were crushed by a small industrial locomotive, during the course of his employment as a labourer at the Defendants' peat works. Liability was admitted.
The Plaintiff sustained compound fractures of both tibia and fibula, with various associated injuries, particularly to both knee joints. He was an in-patient for six months, and he then underwent further operations in August 1988, September 1989 and October 1990. He was wheelchair dependent until about 19 months after the accident, and there was severe residual pain in both legs and knees, which restricted the Plaintiff's walking ability to about 200 yards at the best. There were various other residual disabilities in relation to the legs which had effectively crippled the Plaintiff. He was expected to have to use a wheelchair for outdoor use within about one to four years, and thereafter for general use. Total replacement of both knee joints was expected to be necessary, probably not before the end of the 1990s.
In addition, the Plaintiff was severely incapacitated mentally. He was suffering from a mild to moderate degree of clinical depression, with phobic anxiety symptoms in the form of fear of traffic in the road, fear of walking in public because of the risk of falling, and because of the worry of drawing attention to himself. He had been unable to make the psychological adjustment to the physical pain resulting from his injuries, and he had withdrawn and isolated himself from the outside world. There was little prospect of any recovery from these psychological complications, and the Plaintiff was likely to remain dependant on others for his daily bodily, physical and social needs.
The Plaintiff was not expected to resume any form of gainful employment.
The Plaintiff's case and the Judge's findings were as follows:-
PAIN, SUFFERING AND LOSS OF AMENITYThis was almost as bad a case of broken legs as is likely to occur. It was worse than many bilateral amputations, in that there was severe continuing pain, and a very substantial psychological disability |
50,000 |
|||
LOSS OF EARNINGS TO DATE |
15,534 | |||
FUTURE LOSS OF EARNINGS
|
85,440 |
|||
CARE TO TRIALMother's and sister's care |
37,320 |
|||
FUTURE CARE
|
17,432 353,625 |
|||
HOLIDAYS
|
4,700 1451 22,845 |
|||
DECORATION AND D.I.Y.
|
2,012 5,950 |
|||
OCCUPATIONAL THERAPY
|
4,336 6,591 |
|||
MISCELLANEOUS EXPENSES
|
500 1,700 |
|||
ACCOMMODATION
|
9,520 34,767 4,025 11,900 |
|||
OUT OF POCKET EXPENSES |
573 | |||
BENEFITS RECEIVEDThis was a pre-Social Security Act 1989 case, and therefore the old law
applied. |
||||
TOTALS:Award exclusive of interest |
668,770 22,291 £690,989 (£726,832) |
| Pain, suffering and loss of amenity interest Past Loss Wife's loss of earnings and care Loss of earnings Salary paid Loss on share savings scheme Travel (at 30p per mile) and miscellaneous interest (having first deducted C.R.U.) Future Loss Care (multiplier 14) Loss of earnings (multiplier 10) Pension Accommodation Aids and equipment Holidays, and all additional costs of running the house |
£120,000 £10,860 £63,080 £88,499 £7,878 £435 £12,881 £29,223 £263,676 £231,666 £15,068 £41,135 £8,500 £29,750 £956,303 (less C.R.U. of £70,990) |
CYCLISTS' HELMETS AND CLOTHING
CASE REPORT
Mr Brian Williams was born on the 1st March 1950 and so was 46 when he was grievously injured in a road traffic accident on the 7th July 1996. His case came on for trial of liability on the 22nd October 1999, and raised some interesting points which practitioners might find of value.
Mr Williams was cycling along a fairly minor country road in North Wales when the Defendant drove her car along an even more minor road, up to the junction with the road Mr Williams was on, and drove straight out without stopping, directly in Mr Williams' path. Sadly, when he then collided with the Defendant's car, he was thrown over the car onto the road, sustaining extremely severe brain damage. The Claimant had no recollection of the accident, but by the most enormous good fortune there was an independent witness who was able to negative the Defendant's denial of careless driving, coupled with her accusation that the Claimant was himself negligent by riding too fast, with his head down and not looking where he was going, and failing to see her approaching the junction.
However, the two major allegations of contributory negligence were that the Claimant failed to wear a cycle helmet, and failed to wear fluorescent or conspicuous clothing. Each side obtained expert evidence, which was served in the early part of 1999 pursuant to the directions order. The Claimant relied on Dr Nigel Mills, who has vast experience in helmets, having been, amongst other things, the chairman of the British Standards Institution committee for motorcycle helmets in January 1994, and a member of the umbrella committee which oversees all helmet committees. He concluded that
there is no legal requirement to wear a helmet
the site of the impact on the right side of the face would not have been protected by a helmet
helmets are less effective when a cyclist hits a vehicle than when he simply hits the road, and helmets do not eliminate injury
serious brain injury is quite common when cyclists are hit a glancing blow by a vehicle, as distinct from a direct collision
the Claimant's head injury was due to the right side of his face hitting the road, and a helmet would not have reduced his injuries
a report in 1994 found that most cyclist do not wear helmets.
The Defendant obtained a report from Mr Kevin Clinton, a project manager in the road safety department of the Royal Society for the Prevention of Accidents. His report extended to 26 pages, dealing with a good deal of background history in relation to helmets and cycling clothing, and might have been thought to support the allegation that it was negligent in 1996 not to wear a helmet when cycling, and that it was also negligent to wear inconspicuous clothing.
In June 1999 the Defendant's solicitors offered to settle the claim (which is likely to be very substantial) at 80% of full liability, on the basis that the Claimant was himself 20% to blame. We rejected that offer, and it was followed by a Part 36 offer, in August 1999, that the Defendant should accept 90%, the Claimant being responsible to the extent of 10%. That offer also was rejected.
So far, this is just another history of "negotiations", but it is worth remembering that both cyclists' helmets and cyclists' clothing are potentially contentious and difficult issues, and many people might be persuaded to settle (particularly bearing in mind the financial pressures on privately paying clients involved in substantial litigation).
Two days before trial, in a skeleton argument which was not received by anyone on the Claimant's side until the morning of trial, the Defendant abandoned the allegation of failure to wear conspicuous clothing. At 10.25am on the morning of trial, the Judge having expressed the view that he wanted to start promptly at 10.30, the Defendant abandoned the helmet issue.
The Judge (His Honour Judge Rodgers Q.C., sitting as a Deputy High Court Judge) commented that it was not surprising that those allegations should be abandoned, but I expect the Claimant's wife, his litigation friend, was surprised. Perhaps she did not realise that brinkmanship operated to such an extent in litigation concerning the destruction of a man's life.
In addition to the issue whether it was negligent in 1996 to fail to wear a helmet, there was also a causation point: Dr Mills said that a helmet would not have protected the Claimant from the injuries which he sustained. The Defence argument was that Dr Mills was not qualified to express an opinion on this point, and that there would need to be a detailed explanation of precisely how the brain injury was caused.
There must be many cases in which cyclists are blamed for failing to wear a helmet, and failing to wear conspicuous clothing, and therefore it may be worthwhile for practitioners to know that even a detailed report from the Royal Society for the Prevention of Accidents will not necessarily be sufficient to win the point.
Another point of practice arose. When we had won the trial on the only remaining issue, namely failure by the Claimant to look where he was going, we asked for indemnity costs, because we had responded to the Defendant's Part 36 offer by writing in reply "by way of counteroffer under Part 36", proposing that the Defendants submit to interlocutory judgment. In other words, we felt that the Claimant should recover 100% of his damages. The Judge having decided that our view was correct, we submitted that he had power to make an award for indemnity costs. The Defence argument was that, in order to come within the jurisdiction of rule 36.21, you had to do better than your offer (because the rule starts "This rule applies where at trial - (a) a defendant is held liable for more; or (b) the judgment against a defendant is more advantageous to the claimant, than the proposals contained in a claimant's Part 36 offer), and because we had got precisely what we offered to take, we had not done better, and therefore the Judge did not have jurisdiction to award indemnity costs. Although the argument was never put in quite this way, it followed that, if we had offered to accept 99.9% recurring, the Judge did have jurisdiction, but because we had (sensibly, in my opinion) asked for 100%, therefore the Court was powerless. The Judge rejected that contention. As a matter of interest, it was also submitted that the abandonment by the defence of the helmet and clothing points at the very last minute, having assured the judge at the case management conference that the helmet point was a live issue only 5 weeks earlier, amounted to conduct which entitled the Judge to make an award of indemnity costs. The Judge rejected that submission, and held that the Defendant was entitled to conduct her defence on the basis that, even though they abandoned the helmet and clothing points, nevertheless there was still an issue as to whether the Claimant was looking where he was going. The Defendant asked for, but was refused permission to appeal.
26 October 1999
BILL BRAITHWAITE Q.C.
On 30th July 1999 Mrs Justice Hale gave judgment for the Claimant for £1,418,282, having spent 3 days hearing evidence on quantum.
The Claimant, who was born on 22nd November 1972 and so was 21 at the date of the road traffic accident on 17th June 1994, and was 26 at trial, suffered a very severe brain injury. His post-traumatic amnesia was about 4-5 weeks. There was no appreciable long term impairment of his physical abilities, or even his general intelligence, but, as his mother said: "If you spend a whole day in Scott's company, you see what's wrong with him. I'm having to get to know Scott again and I find it hard.". She gave vivid illustrations of his impulsivity and behavioural difficulties, and his problems in sustaining relationships even with his own family (he had effectively alienated his sisters). About a year after the accident, there were persisting impairments of cognitive functioning, especially short term memory, quite significant emotional and personality problems, moderate depression and severe anxiety, increased irritability, explosive temperament, a lack of pre-accident control, but quite a reasonable degree of insight. Specialist rehabilitation was recommended, and the Claimant went to the Transitional Rehabilitation Unit (TRU) in 1995. He has remained there ever since, and the Judge decided that that was an appropriate placement. At the time of trial, he had graduated (through a failed attempt at independent living, and two attempted suicides) to living in a four person cooperative living house owned by TRU, where 24 hour cover was provided. In addition, he had a work placement in the TRU workshop, and one to one support of coaches for 10-15 hours a week.
General damages for pain, suffering and loss of amenity were agreed at £85,000.00.
The first interesting issue which arose at trial was whether the Defendants should be permitted to adduce the evidence of a care expert whose report was disclosed 4 weeks before trial, even though it had been available to the defence for 6 months before that. The application to call this witness had to be viewed in the light of the defence having abandoned their neurologist just before trial, and having obtained psychiatric evidence which they never disclosed, and care evidence from a different expert whom they abandoned late in the day. The Judge decided that, when the Claimant's legal advisers considered whether to instruct a separate care expert, it was reasonable for them to draw the inference that, because the second care expert's report had not been disclosed, the defence were not relying on that witness. The Judge accepted that, had we known that the Defendants were proposing to rely upon that care expert, we certainly would have considered getting our own care report, and probably would not have taken the risk of doing without one. The Judge emphasised the overriding objective that cases should be dealt with "justly", and considered Mortgage Corporation v Sandoes The Times, 27.12.96, and Mealey Horgan Corp. v Horgan The Times, 6.7.99. She concluded that, although we accepted that the Defendants were not deliberately taking a tactical advantage, but that late disclosure had undoubtedly put us at some disadvantage, nevertheless she would allow the witness to be called. Possibly the main reason why she came to that conclusion was that the evidence of the second care expert was "unlikely to weigh heavily against the more expert views available on each side" (i.e. from the medically qualified experts, and those experienced in long term management of patients following brain injury). She felt that, where it is clear that a party has adopted a selective approach to the evidence of the experts consulted, it must be open to the Court to take that into account in considering what weight to attach to the opinions of those experts whose evidence is adduced.
The real issue between the parties was whether the placement at TRU was appropriate for the rest of the Claimant's life, and whether he should leave his work placement at TRU and find work elsewhere, possibly with Remploy. The Claimant's experts were Doctor Jackson, the Clinical Director of TRU, (whom the Judge described as "an impressive witness. He was sensible and down to earth. He has a personal interest (and indirectly a financial interest as Director of TRU) but he knows Scott better than any of the other experts. He has seen him over time, unlike others who have only seen a snap shot. All the other witnesses speak very highly of Doctor Jackson and of the unit which he has developed, which is one of the best if not the best in the country. He is thoroughly committed to the goals of maximising his client's independence and integration into ordinary life, but he has also made a realistic assessment of the prospects in this case"), Doctor Rose, described as "highly experienced in neuro-psychiatric rehabilitation", and Doctor Ghadiali, neuro-psychologist. On the other hand, the defence expert, Doctor Scheepers considered that "the level of supervision and support required by Mr Jenkins will gradually diminish with time" and "indeed it is unlikely that he will continue to accept the level of support recommended". Doctor Scheepers raised the possibility of marriage in his report (suggesting inferentially that marriage would reduce the amount of care required), but in evidence he accepted that research suggests that this is highly unlikely. In the end, Doctor Scheepers explained that what appeared in his report to be opinions about the future were in fact simply suggestions for clinical discussion, and not predictions of what probably could be achieved. The Judge said that, in that way, his evidence was entirely different from that of the Claimant's experts, who were drawing on a wealth of experience to make predictions as to what it was likely that Mr Jenkins would need in the future. She concluded that, when the defence witnesses' evidence was judged against that of Doctor Jackson, Doctor Ghadiali and Doctor Rose, all of whom have extensive experience in attempts to rehabilitate brain injured people and were attempting to make realistic predictions, the latter is much more compelling.
Another area of real interest was the deductions to be made from the award, in accordance with Lim Poh Choo. Without going into the precise detail of how the TRU charges were made up, perhaps the most important point to note is that, when deducting the "domestic element" from the final award, it is important to distinguish between the pre-accident domestic element and the post-accident domestic element. Reading the speech of Lord Scarman in that case, set out in Kemp at 10-023, it might be thought that it is the pre-accident domestic element which ought to be deducted, namely the amount which the Claimant would have spent out of his earnings on maintaining himself and his family, had he not been injured. However, it does seem to be the case that what should be deducted is the domestic element of the present (i.e. post-accident) cost of care.
Finally, we argued for the Claimant that the multipliers should be calculated on a discount rate of 2%, and relied on the newspaper report in The Times of the 3rd May 1999, now also to be read in the current edition of Quantum, the Kemp & Kemp service. The Judge did not believe that I seriously expected her to adopt my invitation, however tempting it may be, giving as her reason that the majority of their Lordships in Wells considered that any future changes should be determined by the Lord Chancellor, and that, only if there were a dramatic change in economic conditions, should the Courts act on their own initiative. She said that it did not seem to her that any such dramatic change had yet taken place. I have to say that I would disagree, and it is quite clear from reading the article by Sir Michael Ogden in Quantum, that he also would disagree, as apparently would the Government actuary, who is one of the members of the Ogden Working Party.
BILL BRAITHWAITE Q.C. and NICHOLAS WOODWARD were instructed by Keith Jones of E. A. Harris & Co of Shotton.
On 9th May 1992, Mr Bill Davies, who was born on 23rd November 1963 and so was 28, was injured severely in a road traffic accident. His claim for damages was tried by Mr Justice McKinnon in March 1999, and judgment was given on 28th April.
The Plaintiff sustained a serious brain injury, a compound displacement of the left knee, the rupture of a ligament in the right knee, a fracture of the collar bone, and numerous grazes. He underwent 5 operations to the left knee, the last being total replacement. Before the accident the Plaintiff was a sports fanatic: he used to run every evening and play squash once or twice a week - most importantly, he played county standard rugby, and had been invited to join the squad of one of the well known rugby league clubs. As the Judge said: "That was big time rugby". Naturally, the leg injury deprived the Plaintiff of all that, and by doing so destroyed a significant part of his life. In addition, the combination of physical and brain injuries effectively destroyed the Plaintiff's ability to work as an agricultural engineer. He had run his own business for a few years before the accident, having previously been trained and employed in the locality. He returned to his business in early 1994, but found it extremely difficult to play anything but a very minor part. In addition to the intellectual effect of the brain injury, he had suffered a personality change, the effect being to change him from a placid and happy-go-lucky person into someone who is now irritable, bad tempered and aggressive, with a tendency to lose his temper with very little provocation. He felt intensely frustrated and unhappy over his inability to carry out simple activities, and was constantly sad and tearful. He has severe headaches at least twice a week, is forgetful, and suffers constant pain in the left leg.
Very late in the day, the defence solicitors disclosed six videos taken of the Plaintiff between 1994 and 1999. They submitted that those videos, coupled with other evidence in the case, demonstrated that the Plaintiff was consciously exaggerating the extent of his disability, did not need any care or equipment, was working, and had a residual earning capacity similar to before the accident. In addition, they asserted that the failure of his business (because of his brain injury the business lost money and eventually went bust) was not as a result of his injuries. The defence case, maintained throughout trial, was that the Plaintiff was being dishonest. The Judge found that, with the exception of Mr Pringle, an orthopaedic surgeon, no one suggested that the Plaintiff was indeed dishonest, and the Judge rejected Mr Pringle's views. He accepted the evidence of Doctor Ghadiali (neuro-psychologist) and Professor MacCulloch (forensic psychiatrist) as "wholly compelling and convincing evidence". The Judge said: "Having seen the Plaintiff, his wife, his parents, his friends and former colleagues, I go so far as to say that I have no doubt that the Plaintiff is a genuine and honest person who is not a malingerer and who has not exaggerated his complaints. ... Mr Braithwaite submitted that, after the serious attack upon his client's character, his client was entitled to have his character returned to him and for me to include in this judgment a clear finding to that effect. I fully accept that submission. ... I find that the Plaintiff is an honest, decent and respectable person who has remained so throughout the great trial that he has had to endure ever since his most unfortunate accident. For him, that is a trial which will continue for the rest of his life".
The Judge awarded the following figures:
| Pain, suffering and loss of amenity: | £50,000 |
Interest: |
£10,375 |
| Past Losses: | |
| Earnings: | £72,000 |
Losses sustained in the business before it collapsed: |
£35,000 |
Care (29% Housecroft v Burnett deduction): |
£20,049 |
Transport (25p per mile): |
£10,192 |
Private medical expenses: |
£18,781 |
| Total past loss: | £157,646 |
Interest: |
£44,352 |
| Future Losses: | |
Multipliers of 17 for work and 24 for life |
|
Earnings: |
£220,000 |
Care: |
£47,479 |
Transport for physiotherapy |
£6,720 |
Equipment: |
£35,050 |
Electricity/heating: |
|
DIY/Gardening: |
£20,000 |
Replacement knees: |
£10,539 |
| Total future losses: | £343,548 |
| Total Award: | £607,522 |
Notes for Practitioners:-
The payment into Court was £250,000.00.
No offer was made at the start of the trial.
After 4 days, an offer of £450,000 was made.
The allegation of dishonesty was never withdrawn, despite the fact that it had no respectable evidential support.
The Plaintiff recovered about £200,000 more than he probably would have accepted by way of settlement, but had to go through a most unpleasant trial to achieve that result.
BILL BRAITHWAITE Q.C. was instructed by George McLoughlin of Linskills.
Judgment of the Court of Appeal (Henry L.J. & Hidden J) on 12th February 1999
CASE REPORT
The Plaintiffs, who live in Australia, were injured in a car crash whilst on a trip to England. Mr O'Hara's whiplash injury turned out to be one of those more serious ones which has prolonged and serious effects, and he continued to undergo treatment for some years: the accident happened in 1993 and he underwent a spinal fusion in 1997. In 1996 the defence solicitors were pressing for information on the claim for financial loss, and were asking for a "fully pleaded" Schedule setting out that loss. It may be worth noting that, at this stage, there had been no exchange of lay evidence, medical evidence or non-medical evidence. The Plaintiffs' solicitors told the Defence solicitors that they were waiting for information from the Australian lawyers, and in May 1997 they told them that they were having considerable difficulty in obtaining medical and special damage information from Australia. Some documents were served in May 1997, but they were incomplete. In July 1997 the defence solicitors asked for a detailed Schedule within 6 weeks, which was not forthcoming, and so in September they sought an order for a fully pleaded Schedule giving full particulars of all items claimed, to be served within 21 days. The Plaintiffs' solicitors consented to an order that a full Schedule should be served by the 3rd November 1997.
The Court of Appeal held that, realistically, the 3rd November was not a date that could be met, and that consenting to an unrealistic timetable put the Plaintiffs on a slippery slope. The defence solicitors then applied for an "unless" order: the Plaintiffs' solicitors wrote at length explaining the difficulty they were having, pointing out that Mr O'Hara had undergone a serious operation and enclosing a medical report, suggesting an alternative (less adversarial) approach to the problem, and pointing out that they had started the process of instructing Australian accountants. The defence solicitors continued to insist on an unless order, and submitted a draft, to which the Plaintiffs' solicitors responded that they obviously could not comply with the timetable, and would attend court to argue for a more realistic one. That letter was faxed to the defence solicitors on Friday, the application for the unless order being heard the following Monday. On that hearing, the Plaintiffs' solicitor failed to appear (giving no advance notification), and so the defence solicitor obtained the unless order (apparently without producing to the Deputy District Judge the letter which had been faxed through on the previous Friday). Unfortunately, the Plaintiffs' solicitor wrote saying that he would comply with the order so far as he could. Not surprisingly, bearing in mind that this was an exceptionally complicated personal injury claim amounting to several million Australian dollars, compliance was impossible, and so the defence solicitors issued an application to strike out the claim for non-compliance with the unless order. Both Deputy District Judge and Circuit Judge refused to do so, and so the Defendant appealed to the Court of Appeal.
The importance of this case is that it puts a very significant gloss on Hytec Information Systems Limited v Coventry City Council [1997] 1 WLR 1666. Lord Justice Ward set out in that case the seven guiding principles to the philosophy underlying unless orders, emphasising that such an order is one of last resort, not made unless there is a history of failure to comply with other orders, and, because it represents a last chance, failure to comply will ordinarily result in the sanction being imposed. Those principles were emphasised and upheld in Lownes v Babcock Power Limited [1998] P.I.Q.R. P253 and Hird v Milner Court of Appeal 5.10.98 (transcript).
Lord Justice Henry said in O'Hara that the Court in Hytec never intended or imagined that they were laying down the law for all factual situations, and he emphasised that the assumption underpinning Hytec is that the fact of an unless order shows that the judicially exercised patience of the managing Court has been exhausted, and that the Court, having considered the defaulting party's conduct, has concluded that the time has come for a final warning. That was not the case in O'Hara, because the judicial input into the making of the consent order and the unless order was marginal, and not properly informed (because the Plaintiffs' solicitor had not alerted the Court to the potential difficulties facing him).
Lord Justice Henry commended the Circuit Judge's approach as being entirely appropriate, and reflecting the spirit of the Civil Procedure Rules, saying that the philosophy reflected in them represents good practice. 23rd February 1999
BILL BRAITHWAITE Q.C.
M*** McF****NE
and
CLIFFORD SMITH & BUCHANAN (Solicitors)
CASE REPORT - Below-knee amputation
Mr M*** McF****ne was born on 29th July 1970 and so was 17 at the date of the accident on 2nd April 1998. He was 29 at the date of assessment before District Judge Holloway on 22nd September 1999.
The Claimant was a passenger in a car which hit a wall, and so he had an unanswerable case on liability. However, because his medical condition took many years to settle, his claim would not have come to trial on quantum until about 1999. His then solicitors advised him, in 1992, to accept a payment into Court of £10,655.00, which he did, that being 1.5% of his true claim. He sued those solicitors, and the assessment was theoretically against them, although it proceeded as the assessment would against the original driver.
The Claimant sustained multiple severe injuries to his left leg, foot and ankle, requiring a number of operations over many years, and leading to a below-knee amputation in November 1995, which had to be revised 13 months later. Despite that very difficult medical history, the Claimant started work as a van driver in September 1997, and he obtained his LGV licence not long afterwards.
Loss of Earnings
The District Judge (who is the President of the District Judges' Association) found that the Claimant would only be able to continue driving heavy goods vehicles until the age of 49 or so, and that he would have significant absences from work. Even though the Claimant is now earning, the District Judge found that there was a partial future loss of earnings until the age of 49. Osteo-arthritis is likely to develop, making employment generally more difficult, but nevertheless the Judge said that he did not see the Claimant as being permanently unemployed after the age of 50, although he would certainly earn far less than he does now.
Bungalow
It was disputed that the Claimant needs a bungalow, part of the argument being that, once he is fitted with Dorset Orthopaedic Limbs, his mobility would improve substantially. Various different experts supported the need for a bungalow, and the Judge found that the medical evidence was entirely supportive.
Dorset Orthopaedic Limbs
It was the Claimant's case that he would obtain limbs from Dorset Orthopaedic. The Judge concluded that the real advantages of such limbs were that a lot of time could be spent by the prosthetist in making sure of a good fit, they look better, and, in this case, there would be a better foot absorbing vertical forces. The Judge said that the cost of such limbs was, in his view, disproportionate to the benefit, but nevertheless awarded the sum claimed.
Pain, suffering and loss of amenity
The Judge awarded £55,000.00, which is at the top end of the JSB Guidelines, and added that, having spent a lot of the past 40 years in personal injury litigation, in all capacities, he felt that a 50% increase was long overdue. This, of course, was a reference to the Law Commission recommendations.
The figures were as follows:-
| Pain, suffering and loss of amenity, including interest: | 65,450 |
| Past loss of earnings: | 97,500 |
| Past care: | 6,500 |
| Past miscellaneous: | 1,800 |
| Future loss of earnings:
from 49: |
42,000 97,500 |
| Disadvantage on the labour market: | 20,000 |
| Future care: | 50,000 |
| Dorset limbs: | 122,803 |
| Accommodation: | 166,690 |
| Equipment: | 10,000 |
| Incidental expenses: | 9,234 |
| Transport: | 35,000 |
| Total: | 715,243 |
Notes for practitioners:
1. The District Judge commented that Doctor Ernest Van Ross, the Claimant's lead consultant, was an impressive expert witness, and I agree. In my opinion, he demonstrated real expertise coupled with independence and neutrality.
2. There was a payment into Court on the evening before trial of about £400,000, and an offer on the morning of trial of £450,000.
3. One of the arguments put forward by the Defendants was that there had never been an award of more than about £400,000 for a below knee amputation, and it was emphasised (mischievously?) that Kemp & Kemp does not include a report of any such awards. As it happens, I obtained an award of about £800,000 for similar injuries in about 1997.
BILL BRAITHWAITE Q.C., is the Consultant Editor of Kemp & Kemp, and practises from Liverpool and London. He led James Rowley. They were instructed by Andrew Kirkpatrick of Hough, Halton and Soal, Carlisle.
COURT OF APPEAL
CHRISTOPHER JEBSON
and
MINISTRY OF DEFENCE
CASE REPORT
Drunken claimant suffers severe brain injury when he falls out of Army lorry The defence is that he is not owed a duty because he chose to get drunk.
On the 8th April 1995 Mr Christopher Jebson, who was born on the 24th December 1973 and so was then 21, was injured severely when he fell out of an Army lorry. His claim came on for trial of liability before Mr Justice Jowitt in May 1999, and failed. His appeal to the Court of Appeal succeeded. The case raises an area of great interest to those of us who frequently represent claimants in the Armed Forces, highlighting as it does the difficulties arising out of drunkenness.
The Claimant was a guardsman in the Grenadier Guards, and his company was being trained for a spell in Northern Ireland. Their commanding officer arranged for them to have a night out in Portsmouth, to "relax"; he arranged a lorry to take them there and back, and a driver was volunteered. On the way back, almost all of them were "plastered" (that being the word used by one of the NCOs present). There was a Lance Sergeant present, who had been out, but apparently he was not drunk; he was the "vehicle commander" required by regulations in addition to the driver of the lorry. He got into the front passenger seat, having checked the men into the back of the lorry, and they started on the journey back to barracks. No doubt because they were drunk, one or more of the men started to "show off" in the back, this being a canvas topped four tonne lorry, with an open back. There was a car with four girls in it behind them, and doubtless the temptation was too much. The men were standing on the tailgate, and one of the NCOs was trying to climb onto the roof of the lorry. The Claimant tried to stop him, but then himself started to try to climb onto the roof. Not surprisingly, but tragically, he fell onto the road and sustained severe brain damage.
This practice is moderately well-known generally, and is called "urban surfing".
The trial judge found that
it was reasonably foreseeable to the Defendants that, on an occasion such as this, at least some of the soldiers would return to the lorry for the journey back to camp in various stages of drunkenness
it was foreseeable that drunken men might well not sit sensibly during the journey, but might stand up and move about in the back of the lorry
being part of such a group of men might encourage some to be restive and foolish
it was reasonably foreseeable that, if this happened, the combination of the movement of the lorry and the effect of the alcohol might well cause a person to stumble or fall
in so doing, he could suffer injury of a kind which could range from slight to serious.
Robert Jay Q.C. for the Ministry of Defence argued that none of that foreseeability helped the Claimant, because there was no duty on the Defendants to protect the Claimant against the consequences of his own voluntary act in getting drunk, and his own foolhardy, reckless and voluntary conduct in climbing up onto the tailgate, and trying to climb onto the roof. It was accepted by the Defendants that, if they owed the Claimant a duty, an appropriate way to discharge that duty would have been to have supervision in the back of the lorry.
The Defendants relied heavily on Barrett v Ministry of Defence [1995] 1 WLR 1217. In that case, an off-duty naval airman at a shore base in Northern Norway engaged in a bout of heavy drinking and became unconscious. He was placed in his bunk in the recovery position, but was later found dead, having choked on his vomit. Up to the time that the deceased's colleagues assumed responsibility for him, by taking him to his bunk, he alone was held to be responsible for his condition. It was argued that Barrett was decisive against Mr Jebson.
The judge held that
there was a duty, by reason of the drunkenness of the Claimant and others, to supervise the passengers in the back of the lorry, and that
such supervision would have prevented the accident, but that
it was not reasonably foreseeable that, whilst the lorry was going at 40 to 50 mph, the Claimant "would go so far along the road of folly as to stand on the tailgate and try from there to climb on to the canvas top".
The judge distinguished Hughes v The Lord Advocate [1963] AC 837. That was the case in which a boy of eight fell into an unattended open manhole in the road, causing an explosion when a traffic lamp fell into the manhole with him, and broke. He said that Hughes did not assist the Claimant, because this was not a case of damage arising unpredictably from a foreseeable accident, but that the accident itself was not foreseeable.
We felt that conclusion was wrong, and were moderately confident of success on appeal on that point. However, the Defendants cross-appealed, arguing that they did not owe the Claimant a duty of care to safeguard him from the consequences of his own foolhardiness. In other words, they sought to put the case on the same basis as Barrett.
The argument in the Court of Appeal was fascinating. The initial impression was that this was one step too far for claimants. If you go out and get drunk, then you must take the consequences. However, the Army had arranged the trip, provided the lorry and driver, and could and should have anticipated that the men would be drunk and behave foolishly. They could have prevented the accident simply by arranging for the Lance Sergeant to sit in the back and keep order.
There was a moment of real human interest. The argument gradually swung in favour of the Claimant, and eventually the Court asked defence counsel if his case was that the duty on the Defendants should be assessed regardless of the fact that they knew that the Claimant was drunk. He was driven to agree that he was indeed putting that argument forward, and the whole court paused for contemplation, seeing, I thought, the essential weakness of the defence position.
The end result was that the appeal succeeded, but the trial judge's assessment of contributory negligence was not changed (I thought that a fair assessment of respective blame would have been 50/50, but the Court of Appeal felt that they had gone far enough by allowing the appeal, and were not prepared to alter the judge's view.
24th December 2000
BILL BRAITHWAITE Q.C.
LW
v
B**** HEALTH AUTHORITY
CASE REPORT
Severe brain damage caused at birth
Very severe behavioural problems
Trial on all aspects of compensation
£5 million award
LW was born on the 7th February 1974. She was an undiagnosed twin, and so there was unacceptable delay in delivering her, causing hypoxic damage to the brain, resulting in athetoid cerebral palsy. She commenced proceedings in 1995, and judgment was entered by consent in 1998 (the admission of liability having been made only a few weeks before trial of the liability issue, and only after the Claimant had been tested to the limit by offers to settle liability at a lower percentage). Her damages claim was tried by Mr Justice Holland in October 2000, and he gave a preliminary judgment that month. He awarded the following sums; I have added my comments under the various headings.
Pain, suffering and loss of amenity
The Claimant has athetoid cerebral palsy which affected her physically in all aspects of her life, including speech. There was some dispute about the extent to which her intellect had been affected, but the judge found that there was significant preservation of her intelligence. The dominating feature of the Claimant's disability, though, was her behaviour. It had affected her all her life, and had challenged all who had dealt with her. There have always been outbursts of verbal and physical aggression, the latter extending to stabbing care staff and herself; self harm has been prevalent feature over the years, as has been damage to property, and one of the worst aspects has been the unpredictability. A nearly full life expectancy was predicted. The effect of the behaviour has been that the Claimant has become isolated, and her world is one of constant supervision by day and confinement at night (there has to be a system of alarm sensors to alert the night-time carer to the Claimant being out of bed, partly for fear of attack).
I submitted that this was nearly as bad a case as one would expect to see, because although one could imagine various aspects of a catastrophic disability which this Claimant did not present (such as chronic, intense pain), it is not usual to meet all possible handicaps in one person. The judge awarded œ160,000, which I thought was on the low side; a client of mine with a life expectancy of only about 20 years was awarded œ180,000 recently, and he had none of the behavioural problems, and probably no significant pain.
The first of many issues raised by the Defendants was whether the Claimant's problems were caused by organic brain damage (as asserted by Dr Martyn Rose and Dr Peter Eames), and therefore would not improve, or whether current clinical treatments for challenging behaviours probably would reduce the challenging behaviours so that her life would be improved substantially. This theory was put forward by Professor Murphy, who considered himself and his team to be the last word in the treatment of challenging behaviour problems. He was not prepared to give weight to the opinions of our experts (who are both enormously experienced in such problems), nor to the experience of this patient gained over more than two years by the treating psychologist (Miss Ann Cullington, who gave evidence excellently, demonstrating a sensible and balanced view). The judge preferred our evidence, which had an impact on damages for pain and suffering.
PAST LOSS
Travel 29,000
Parents' care 50,000
School fees of the Claimant's brother 12,600
The Claimant's parents had to send her brother to a private school because they were having so much difficulty with her; despite the Defendants' arguments, this extra expense was allowed. Care 196,228
£196,000 had been paid to an agency, and the Defendants offered an indemnity for a further œ160,000 which had been incurred, part of which had been paid but could not be proved with ease, and part of which the Claimant might never have to pay due to contractual problems caused by poor documentation at the agency.
| Psychotherapy | 5,525 |
| Accommodation | 28,000 |
| Earnings and pension | 75,000 |
| Transport | 25,000 |
FUTURE LOSS AND EXPENSE
| Care | 3,269,496 |
All possible objections to this head of claim were raised by the Defendants. The annual cost is £135,000, and the history demonstrated that this was a sensible and reasonable package. There were extensive care diaries and assessments prepared by the carers, and various different approaches had been tried previously, without success. We called the team leader, who gave a vivid account of how difficult it was to look after the Claimant. Mrs Maggie Sargent was the expert, and she gave evidence excellently, as usual. The Defendants' expert was Ms Joanna Douglas, whom I had not come across before. She wrote her report without visiting the Claimant, which I thought, and still think, is unacceptable. In my opinion (and I emphasise that this is only an opinion), she gave her evidence appallingly. Her written report gave the impression of extensive experience, but in fact it appeared that she had none. She had costed the care package at about £86,000 in her report, but it appeared in oral evidence that, by the time her mistakes (admitted by her in cross examination) had been corrected, her package would cost nearly as much as ours.
| Accommodation | 90,000 |
| Aids and equipment | 147,000 |
| Loss of earnings | 450,000 |
I thought we had really strong evidence on this head of damage. The Claimant's twin sister is earning about £48,000 a year, her brother, who is two years older, is on about £45,000, and her father retired recently from a salary of about £100,000. The judge used that dreaded phrase "broad brush", and reduced the claim from almost a million pounds to £450,000. He did this by using a random multiplicand of £30,000 a year, and reducing the multiplier from a full work multiplier to 15.
| Transport | 20,000 |
| Gardening and DIY | 20,000 |
| Decorating | 5,000 |
| Holidays | 40,000 |
| Psychotherapy | 25,000 |
| Psychiatric care | 10,800 |
| Physiotherapy | 5,750 |
| Speech therapy | 23,539 |
| Case management | 96,000 |
Some elements of the claim were left outstanding. There was a calculation of interest from the date of birth to the date of trial. The Defendants asserted that there had been delay, but of course good litigation practice for claimants is to assess when would be the best time for the court to make an accurate assessment of the true nature of the present and future disability and handicap, and to try to bring the case on for trial at that time. There have been several cases reported over the last few years in which judges have adjourned specifically for that purpose. This had not been done here, but there is nevertheless an argument for delay. Court of Protection or private trust fees had not been calculated. There has now been agreement on these issues. Taking those elements into account, and adding the indemnity for half of the past care payments outstanding as described above, the total award was about œ5 million; is that the second highest award ever in this country, and the highest for clinical negligence?
TOTAL AWARD £4,784,567
14 December 2000
Low speed car crash causing severe whiplash injury
Allegation of dishonesty against Claimant
Quality of expert evidence
Video evidence
1. Mrs S B was born in 1960 and so was 35 at the date of the accident in 1996. She is now 40.
2. On the day of the accident the Claimant was driving home from work when the Defendant drove his car into the back of hers. She sustained a whiplash injury to the neck. She felt pain effectively immediately, but drove home. She went to work the following day, but visited her G.P. that evening. She continued at work for a week, and then returned to see her doctor. Since then she has suffered with disabling neck pain, and has been unable to continue in her job as an administrative manager.
3. Judgment was entered in 1998.
4. The main issue in the case was whether the Claimant was an honest witness who was telling the truth about her disability and handicap. The defence solicitors alleged almost from the outset that the Claimant was being dishonest. They started videoing her in October 1997, and continued through 1998 into 1999. In February 1999 they served 199 Interrogatories, aimed at uncovering inconsistencies, exploring how she was able to obtain a mortgage (if she was unable to work, as she alleged), and enquiring about all sorts of other aspects of her life. Their attitude may have been dictated by their failure to understand that severe whiplash injuries are nowadays the subject of legal, as well as medical, expertise; they did not seem to have any comprehension of how disabling a severe whiplash injury can be. They certainly did not seem to consider that it was possible that a respectable woman, who previously excelled at tennis and three day eventing, and who was employed full time, might be genuine. Nor did they appear to find it odd that she should remain out of work for years, and appear to give up her sports and hobbies; they insisted that the whole presentation was a fraud. Unfortunately, many insurers and their legal teams adopt the same approach, and proceed on the basis either that severe whiplash does not exist, or that there must be a substantial element of exaggeration
5. The Defendants obtained videos of the Claimant in 1997, 1998 and 1999. Their original, ridiculous intention was that they should disclose them only 10 days before trial. That seems to me to exemplify their attitude. The district judge ordered immediate disclosure. We called for "discovery" of all the usual video documentation, namely surveillance logs, reports to insurers and defence solicitors, invoices ditto; nothing was produced, and so we insisted that all the operatives who took the videos should attend for cross examination. The object, of course, is to discover how often they had watched her, but seen nothing (times when these clients often say they are stuck at home in agony). Interestingly, one of the enquiry agents had destroyed all his documents, apparently because the previous defence solicitors had told him that the case had settled! Of course the defence solicitors would have had copies, but despite our request for them six months before trial, when I called for them during my cross examination they were too difficult to find. One of the enquiry agents had concealed the true extent of his investigations (possibly innocently); we knew that one of the videos was not complete, because it showed a date on which his statement was silent; he therefore had to admit that there had been other occasions when he had watched the Claimant without seeing her. None of the documentation was ever produced, but of course by then the damage had been done to the credibility of the videos.
6. We asserted that the Claimant was an honest woman now, as she always has been, and that she was a person of good character in the most literal sense of that phrase; we sought leave to adduce the evidence of 24 witnesses to that effect, including her G.P. The District Judge, no doubt besotted by the current judicial teaching that all considerations must be subordinated to cost, refused leave for 24 witnesses, and allowed two, apparently for the purpose of showing the Claimant's "prowess" at tennis and riding. He seemed to have no perception that the defence solicitors had mounted a vigorous attack on the Claimant's honesty and character, and that she should be entitled to defend herself equally vigorously. If he had analysed the issue correctly, he would have realised that, if the defence considered the matter sensibly, they would either have to allege a vast conspiracy against all the witnesses or, much more probable, would agree the evidence and abandon their attack on the Claimant's character. Possibly because the District Judge allowed only two witnesses, the judge on appeal permitted only eight. Of course the end result of the District Judge's attempt to save money was to increase the costs, but that seems to be moderately common at the moment. Another possible effect was that the defence team still thought that they could and should attack the Claimant's character, and her witnesses (who variously said that she was an honest and genuine woman, who had been disabled by the whiplash injury). They were undeterred by the fact that one of the witnesses was the Claimant's G.P., who had seen her on 60 or 70 occasions in his surgery, and who had also observed her out and about in the small town where she lived; he watched the videos, and still maintained that she was genuine. So did another G.P. (not the Claimant's), and various other respectable people.
7. The result of all this was that, instead of making a sensible offer, the defence solicitors decided that they would put the Claimant through the legal mincing machine. They took her case to trial, apparently supported by a respectable neurosurgeon, video evidence, and some other peripheral evidence, all aimed at showing her dishonesty.
8. A practical point which is always relevant to consider is that lay evidence can have a profound impact on the presentation of a claim. It does not have to be the G.P., but I have a small, general rule that, if a claimant can get his or her G.P. to give evidence in support, they are probably genuine, and will probably succeed on the issue of honesty.
9. One particularly interesting feature of the medical evidence was that the Defendant's neurosurgeon had been asked by the defence solicitors (one of the large, national firms) to delete the part of his report which set out his observations on two sequences of video recordings of the Claimant. He did so, apparently believing the explanation given, namely that the defence solicitors did not want to alert the Claimant to the fact that she was being watched. Some months later he wrote a further report in which he said "I have now (my underlining) been supplied with" videos, on which he then commented. Reading that report, one would never have guessed that he had commented previously on two of the videos. What made the position even worse, though, was that he had changed his comment completely; when he first saw the two videos, he said that they did not change his opinion, and that opinion did not include an allegation of dishonesty. On the second occasion, he said that they, together with the later ones which had been shown to him, made him think that the Claimant was exaggerating her symptoms; that was the reverse of the first opinion. Of course one has to remember that doctors are not always familiar with our systems, but one of the effects of the Woolf "reforms" is that doctors are finding that they are expected to know more about the reporting process. It is more common now to see doctors refusing to alter their reports. I felt that the end result of the alteration of the original report, coupled with the potentially misleading wording of the second report, and the complete reversal of opinion, was profoundly unsatisfactory. I think the judge must have been of the same opinion; at one stage (without having heard any evidence from the defence solicitors) he used the phrase "sharp practice".
10. From a practitioner's point of view, it may be worth emphasising that it is always cautious to check, by delicate cross examination, that there was not a different version of a report, or a side letter dealing with relevant matters not thought fit for general consumption.
11. A secondary issue, based on the allegation of dishonesty, was whether this Claimant was, or could realistically have been, suffering from the effects of a whiplash injury at the time of trial. She certainly gave the impression of being crippled by pain, and it was her case that she had suffered from the effects ever since the date of the accident. She had never said that she was completely incapacitated, and for example had gone back to work for a week immediately afterwards, had competed in horse events, had played tennis briefly (she had been of a very good standard before the accident), and had improved occasionally in the first couple of years. The defence neurosurgeon asserted in one of his reports (disclosed to us two days before trial, although it had been written months earlier) that, because the crash was at a low speed, therefore the Claimant could not have suffered a whiplash injury of sufficient severity to give rise to symptoms lasting all this time, and having such a devastating effect. He quoted two medical papers which appeared to give credence to his theory, emphasising that one of the papers had won an award. Fortunately, I had advised the Claimant earlier in the proceedings that she would only win her case if she was supported by a top quality medical opinion with real knowledge of whiplash injury. Professor Michael Barnes and I edited a book a few years ago (Medical Aspects of Personal Injury Litigation, published by Blackwell Science) in which he had written the chapter on whiplash injury. As he spends nearly all his time as a neurologist dealing with rehabilitation and muscle spasm, he seemed well suited as an expert. He also has the advantage of being fair-minded. He reported, and gave evidence at trial. I submitted to the judge that he was unlikely to hear more impressive evidence given by an expert in a personal injury action. I thought Professor Barnes was utterly convincing, and it was so supportive to be able to demonstrate that all the opinions expressed by him in evidence were genuinely held, because they also appeared in his chapter in the book. The defence neurosurgeon had attempted to dismiss the chapter as a mere "review", as distinct from original research, but he then had to concede that the whole purpose of a medical review article was to set out the range of opinion on a topic, and then to try to explain where the middle line of respectable opinion would lie. As that was exactly what Professor Barnes had done in the chapter, the defence neurosurgeon eventually had to agree that the chapter was excellent. Unfortunately for him, the chapter demonstrated that the opinion he expressed was unfounded, and on the fringe of respectable medical views. There was in fact a clear reference in the chapter to the fact, which is generally accepted, that you can have a severe whiplash injury from a low speed impact. In addition, there had been clear criticism of the methodology used in both the articles produced by him. On any view, he was producing medical papers which were not representative of the middle line of medical thinking, but he did not alert the court to the fact that he was being so selective. His evidence was rejected by the judge.
12. The Defendant was called to prove that the impact was at a slow speed. He honestly said that the best estimate was that it happened whilst he was in first gear (in a traffic jam on the M6). This was interesting because the defence neurosurgeon had accepted without question that the speed was 10 mph or less; I think that demonstrates an attitude of mind. Instead of thinking to himself that this previously honest woman might be genuinely disabled, and that therefore the low speed might not be accurate or crucial, he started instead from the notion that the speed must have been low, that such speed could not have caused the whiplash injury, and that therefore the Claimant was exaggerating her symptoms.
13. Last week, as I write this, the Master of the Rolls was urging courts not to accord inappropriate respect to doctors. This case was a perfect example; the judge was not keen on me attacking a neurosurgeon vigorously, but it soon became apparent that his evidence was not of sufficient quality. In severe whiplash injury claims, it is important to remember that a first rate expert is essential; it is not sufficient just to go to the treating orthopaedic surgeon, or the one who does all the broken legs; what is needed is an expert on whiplash injury, who knows about current research, and can discuss the many difficult areas with real expertise. It is tempting to think that low speed impact cannot cause severe injury, but nothing could be further from the truth in whiplash injury. However, without Professor Barnes I would have been unable to persuade the judge that this respectable neurosurgeon was so very wrong.
14. As is becoming increasingly important in personal injury litigation, specialist knowledge in whiplash injury can make the difference between success and failure. If the allegation is that an apparently minor accident, and an equally minor injury, have caused lasting disability and handicap, then a real expert will be necessary.
24th January 2001
BILL BRAITHWAITE Q.C., who practises in brain and spine injury from Liverpool, Manchester and London.
