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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Owen v Brown [2002] EWCA Civ 1197 (29 July 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1197.html
Cite as: [2002] EWCA Civ 1197
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CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Silber)
The Strand London Monday 29 July 2002 |
||
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE LATHAM
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| MARK RICHARD OWEN | Claimant/Respondent | |
| and: | ||
| CHARLES GEORGE ROSS BROWN | Defendant/Applicant |
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The Respondent did not appear and was not represented
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Crown Copyright ©
- LORD JUSTICE LATHAM: This is an appeal from a judgment of Silber J given on 27 May 2001, in which he awarded the claimant a total of £3,915,235.70. The claimant had suffered a tragic accident on 13 September 1996, when his motorcycle was struck by a tractor which was turning across his path. The seriousness can be imagined from the size of the award. He suffered catastrophic injuries.
- He was 20 years 8 months old at the time and he is now 26. He suffered a severe head injury which has caused significant memory loss and a personality change. He suffered a complete sensory and motor paraplegia at T6 with resulting paralysis, back pain, spasms, and a continual burning pain in both buttocks. He sustained an injury to the brachial plexus as a result of a wound to the chest which has resulted in complete paralysis and loss of sensation in the left upper limb, and also for a time resulted in very severe pain, which has fortunately been moderated by surgical treatment.
- The only element of the award about which complaint is made to this court is the award for nursing care, which was essentially an issue between two-well known experts, Mrs Maggie Sargent and Mrs Maureen Bingham, who each gave their assessment of the appropriate level of care and the cost of the level of care which they assessed. The difference between them was in two significant respects. There is no doubt that Mrs Sargent considered that the claimant required substantially greater care, particularly in the evenings and at night, than Mrs Bingham. Secondly, Mrs Sergeant considered that the right level of costing should be based upon hourly rates for carers, essentially because of her conclusions as to the level of care required, whereas Mrs Bingham considered that a weekly rate would be appropriate for the care package which she envisaged.
- The judge preferred the evidence of Mrs Sargent. In a careful passage in his judgment he gave seven separate reasons for preferring Mrs Sargent. (1) He considered that Mrs Bingham's estimate of the requirements of the claimant's carers did not take account of the true nature of the demands made upon them by the claimant. In a substantial passage he explained the difference between the approaches of the two, and why it was that he did not accept Mrs Bingham's assessment. He concluded that Mrs Sargent's assessment was accurate, reasonable and proportionate. (2) He concluded that the rates suggested by Mrs Sargent, which were based upon the rates of a company called Complete Personal Assistance Ltd, were appropriate rates, having been charged by that company to over 100 clients, 80 per cent of whom were funded by the Health and Social Services. He considered that that was substantial support for the conclusion that this was indicative of the appropriate market rate for the care services required for this claimant. (3) He considered that Mrs Sargent had persuaded him, not only by reason of the evidence as to how many clients were being cared for in this way, that generally speaking hers were market rates. (4) Mrs Bingham had costed her rates on the basis that the claimant went to bed at 8.00 pm, but that was manifestly not correct. (5) There was a problem of transfer during the day which required assessment, which Mrs Bingham had not taken into account. (6) He considered that Mrs Bingham's experience was less extensive than that of Mrs Sargent in relation to these particular types of patient, and he was not satisfied that she had, when dealing with the weekly all-in fee, been able to persuade him that that was being applied to patients who were in the same situation as the claimant. (7) He did not consider that the way Mrs Bingham gave her evidence inspired him with confidence.
- In the light of that extensive and careful analysis of the evidence of the two competing experts, it is a difficult task for Mr Godsmark to persuade us that the judge was wrong. He tries to do so essentially on one basis and one basis only: he says that Complete Personal Assistance Ltd in their brochure identify a charge for live-in care on a daily basis, and there was no evidence from that company which could help the judge to determine the extent to which that level of care envisaged by the daily rate might or might not have been appropriate for this claimant. Apparently the judge had been troubled about the fact that there was no evidence from Complete Personal Assistance Ltd at some stage during submissions. When the judge himself refused permission to appeal, it is said that he again indicated that he was in some way side-stepping the issue, which was the criticism made that Complete Personal Assistance had not given evidence. I for my part do not consider that he indicated that he was side-stepping it. It seems to me that in the terms in which he refused permission to appeal he was indicating that he had, in the absence of that evidence, nonetheless been able to come to clear conclusions in relation to the appropriateness of hourly rates. That was as a result of Mrs Sargent's evidence and, in particular, the conclusions that he came to in paragraph 104 of his judgment, which indicated to him that hourly rates were appropriate for this type of claimant, with the needs that this claimant had indicated, and that the hourly charges were themselves reasonable.
- It seems to me that the judge adequately and fully dealt with the issues which were raised before him and that the judgment cannot be impugned.
- I would refuse this application.
- LORD JUSTICE SIMON BROWN: I agree and add only that I regard the entire judgment as a tour de force for which the judge should be commended.
Monday 29 July 2002