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Cite as: [2002] EWCA Civ 19

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Hay v Konig & Anor [2002] EWCA Civ 19 (24th January, 2002)

		Neutral Citation Number: [2002] EWCA Civ 19
		Case No: QB.ENF/00/3544

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
(Mr Justice Gibbs)

Royal Courts of Justice
Strand,
London, WC2A 2LL

24 January 2002

B e f o r e :

LORD JUSTICE HENRY
LORD JUSTICE DYSON
and
MR. JUSTICE HARRISON
____________________

HAY
Respondent

- v -

(1) KONIG and (2) MOTOR INSURERS BUREAU
(2)Appellant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr D. Westcott and Miss C. Guthrie (instructed by Messrs Herbert Smith) for the Appellant
Mr M. Tillett QC (instructed by Messrs Thomas Cooper & Stibbard for the Respondent
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Justice Dyson:

This is the judgment of the court on an appeal against a decision of Gibbs J. dated 10 November 2000 whereby he awarded damages to the claimant against the second defendant for personal injuries suffered by him as a result of a road traffic accident on 14 August 1994 when, as a pedestrian, he was struck by a motor car driven by the first defendant. The first defendant was uninsured. The second defendant was therefore joined in the proceedings. A trial on liability took place on 26 February 1999 before Mitchell J. who found the first defendant 75% and the claimant 25% to blame for the accident. Gibbs J. assessed the damages payable by the second defendant at US$1,405,159 after having given credit for an interim payment. The second defendant now appeals against that assessment. The only issue on the appeal concerns the amount of damages awarded for the support likely to be required by the claimant in the future. That was the most substantial item of the claim, for which the judge awarded the claimant US$1,204,500, although there were some further more minor items relating to future care, treatment and equipment which resulted in the total award for future care of US$1,287,233. In arriving at his figure for the cost of future support, the judge started with a multiplier of 25.4 (based on a lifetime of care), and reduced it, for reasons that we explain later, to 22. The multiplicand was $ US 54,750.

The claimant’s case was that he required a supported “mentor” programme, which was recommended by his rehabilitation expert, Dr Deutsch, in order to offer him the highest level of independence combined with the supervision that was required to enable him to function outside his family environment. The particular programme recommended by Dr Deutsch was the Massachusetts Mentor Brain Injury Services programme (“the mentor programme”). That scheme of care and rehabilitation required permanent and continuing support of an average of three hours per day, with a 24 hours per day emergency call facility. The second defendant’s case was that the claimant’s need would be met by a short term intensive rehabilitation programme followed by occasional or periodic supervision through a case manager who would devote twelve hours annually to the claimant’s case. The judge held that the claimant needed the mentor programme. It is that part of the judge’s decision that forms the subject matter of this appeal.

The claimant is an American citizen who was 24 years old at the time of the accident. His home town is Townsend, Massachusetts, United States, but he was serving in the US Navy at the American Embassy in London in 1994. As a result of the accident, he suffered serious injuries which cut short his naval career.

The most severe injury was to the head and brain. He sustained a fracture to the base of the skull with underlying traumatic injury to the brain including damage to the frontal lobes. After emergency treatment at the Royal Free Hospital in London, he was transferred to a military hospital in Germany, and then to a hospital in the United States from which he was subsequently discharged on 12 September 1994. It was agreed at trial that the claimant would probably continue to live in the United States in the future.

As a result of his injuries the claimant suffered a change in personality and behaviour, reduced cognitive function, a mild right hemiparesis with right hemisensory deficit, loss of sense of smell and taste, mild impairment of hearing in the left ear and mild weakness of the left facial muscles. The damage to his frontal lobes resulted in impaired insight, impulsive behaviour and reduced organisational ability. The claimant also had problems with his left eye as a result of the left facial weakness although his vision remained good, and he suffered a fracture of the left tibia and fibula which resulted in a 15% permanent impairment of function of his left leg, although this may be improved to 10% by a subsequent operation. The left hemiparesis resulted in a clumsiness and loss of feeling and sensation particularly affecting his right hand, although fortunately he is left handed.

In a memorandum agreed between Dr Gross and Dr Stern, the consultant neurologists instructed respectively by the claimant and the second defendant, it was stated that the claimant should be able to live independently provided that he has a degree of focused supervision. On that aspect they deferred to the care experts, Dr Deutsch (for the claimant) and Dr Katz (for the second defendant) who had specific knowledge of North American facilities. The memorandum stated that the claimant’s employability was likely to be limited to outdoor, manual, unskilled tasks that did not require significant interaction with other people in a confined area over a prolonged period. He would need supervision to undertake any consistent role and it was likely that difficulties would occur similar to those which had already been encountered.

The history of the claimant’s recovery since discharge from hospital is briefly as follows. He remained in the care of his family following his discharge from hospital. In April 1995 he obtained employment with a local landscaping company until June 1995, and then as a grounds custodian until September 1995. He next obtained a place on a full time agricultural course, but was unable to cope with its demands: he transferred to a part time course. In May or June 1996 he obtained work with Nationwide Security. In July 1996 he undertook temporary work for the National Parks Service. In September 1996, he obtained employment in a vehicle repair garage. But he left this in November 1996 because there was insufficient work for him to do. He then obtained employment as a security guard in a hospital until February 1997.

In May 1997 he obtained work in the State of Missouri as a parks ground keeper. This he did by driving himself to Missouri, crossing three states and using a route map and checking himself into hotels. It was a seasonal job. In October 1997 he started employment as a security guard for an organisation called UPS from which he was dismissed, essentially for insubordination. That was the only job from which he was dismissed. In November 1997 he obtained work washing dishes. This was followed by another temporary job as an assistant chef in December 1997.

In April 1998 he obtained work as a custodian in the US Embassy in Moscow where he remained for approximately two years. He worked there within a structured setting performing relatively menial work. He lived in a flat some distance away from the embassy and he got to and from work on the Metro. Many services were performed for him but he was able to cook and wash for himself.

Whilst there, he formed a personal relationship with a young Russian woman. She was initially unaware of the effect of the claimant’s injuries, and the relationship almost broke down due to his personality problems. But, after she came to know of the reasons for his behaviour, the relationship resumed and continued until the claimant’s contract in Moscow came to an end.

In April 2000 the claimant returned from Moscow. He said that it was clear to him before the end of the contract that he would not have been offered a renewal of the contract by reason of his awkwardness and particularly his inability to control his temper.

The judge summarised the evidence relating to the claimant’s employment record in the following way. He had done remarkably well having regard to the severity of his brain injury. He had been in employment for a large part of the time and had only been dismissed from one job, although he probably would have been dismissed from another job unless he had left voluntarily. His conduct whilst in Moscow, although it did not warrant dismissal, was such as to discourage his re-employment there. The level of work which he had obtained was menial, unskilled and often temporary. In many instances, the jobs were obtained through parental contacts, and, in one or two instances, sustained with the help of parental intervention. In virtually every job there had been a degree of difficulty due to the awkward features of the claimant’s changed personality, the main aspects being loss of temper and inability to control his response to events or behaviour which provoked him. The result was that he antagonised his colleagues and superiors. On the other hand, the quality of his work and his dedication to it had often compensated for, and at times overcome, the difficulties.

So far as the claimant’s social and family life is concerned, when he was in Missouri he socialised in a limited way with fellow workers who were housed in the same building. When he was in Moscow, in addition to his relationship with his girlfriend, he engaged in a significant amount of social activity with marines stationed there with whom he shared a common military background. With the exception of those periods, the claimant lived at home, and the judge described his family and social life as presenting a bleak picture. He had not retained any of his former friends, nor had he formed any meaningful relationships.

His mother, who had done as much for him as any concerned parent could have done, said that he was unable to control his temper. His outbursts were largely verbal and included foul language. On occasions they involved hitting out with and against inanimate objects, sometimes causing damage, although those episodes were now less frequent than they were previously. Her evidence was that the claimant seemed better in the period immediately following his return from Moscow, but the improvement was not sustained, although there were now few episodes of physical violence. There had never been any violence directed towards her personally or towards any other person. However she was in fear and tended to avoid confrontation with the claimant.

Since his return from Moscow he spent most of his spare time watching television, although he was also an avid reader. In such social dealings as he had with people outside his family, he did not display the same kind of violence towards inanimate objects as he showed within the home, nor did he do so at work. His outbursts at work were confined to verbal ones.

As regards future employment, the claimant’s case was that he should be able to remain in work for something like a normal working life span, but only if he had suitable permanent support. It was said on his behalf that failure to provide such support would lead to cumulative episodes of disruption and difficulty at work which would, in turn, result in what Dr Gross described as a “downward spiral”, rendering him unemployable. The main area of dispute between the parties concerned the degree of support needed to ensure that the claimant continued in employment. The issue of future employment was, therefore, inextricably linked with the scheme for future care and support.

The second defendant’s case was that the claimant would require little help and support to retain employment. Reliance was placed, amongst other things, on a statement of Mr Joslin, who had been the claimant’s supervisor in his last job with the Department of Environmental Management in Massachusetts. He had not known of the claimant’s problems at the time, and yet he found him to be a satisfactory employee whom he would be prepared to re-employ despite an incident of personality conflict with a fellow employee and a difference of opinion that Mr Joslin himself had had with the claimant, which he described as trivial.

On behalf of the claimant, on the other hand, reliance was placed on the temporary nature of the employments, their structured and undemanding nature and the difficulties that he experienced in them. They were said to follow an unsatisfactory pattern indicating an inability in the future to sustain employment without proper support.

These employment considerations are, therefore, material to the question of how much support would be required to sustain the claimant in continued employment. That, in turn, leads to the question of future care which forms the main issue in the case.

With that introduction, we can turn to the three grounds of appeal.

The grounds of appeal

On behalf of the appellant Mr Westcott advances the following grounds of appeal:

(a) The judge erred in that he permitted the fact that the claimant was a United States citizen who was likely to live in the US to influence his assessment of the claimant’s support needs;

(b) The judge identified a regime of support that was unsustainable on the evidence: in particular, there was no evidence sufficient to warrant the conclusion that the claimant required support for 3 hours per day in the medium to long term, and every indication that such a level of support would be a gross over-provision;

(c) The judge failed to reduce the multiplier sufficiently to reflect the evidence that the proper approach to the provision of care for the claimant was to establish him in the community, and in the medium term to withdraw support so far as that could reasonably be done.

The first ground

Mr Westcott accepts that the judge was entitled to take the fact that the claimant was likely to live in the United States into account when determining the reasonable cost of meeting his needs. But he submits that where he was likely to live was irrelevant to a determination of the needs themselves. Mr Westcott has produced a schedule of what he submits are comparable cases in the High Court to demonstrate that in no case where the disabilities of a claimant were similar to those of the claimant in the present case has a care award been made in a sum of the same order of magnitude as that which was made by the judge here. He relies on this schedule as support for his submission that the judge permitted the understanding that he had acquired from Dr Deutsch “of the fulsome support given in the USA to head-injured recipients of substantial awards in workers’ compensation or litigation cases to influence his assessment of the reasonable needs of the claimant” (we quote from Mr Westcott’s skeleton argument).

The judge was aware of the problems presented by the “American dimension” of the claim. At the very outset of his consideration of the issue of future care he said this:

“ 37. That leads naturally to the topic of future care. Here each side parts company with the other radically as to what the proper approach should be. But before summarising their cases there are some general points worth mentioning. The first concerns the American dimension of the claim. This dimension cannot affect the process of assessing the nature and degree of the claimant’s injuries, nor the assessment of the disabilities and handicaps arising from them, nor indeed the nature and extent of the claimant’s needs. However, the claimant will probably live his life in the United States of America and within that country is likely to be living in Massachusetts. The defendants do not of course suggest that it is unreasonable that he should do so, but the consequence is that at the very least the necessary services will have to be supplied at prices prevailing in Massachusetts. American prices for the relevant services are high, and within America costs in Massachusetts are apparently amongst the highest. The size of the care claim is therefore likely to be significantly greater than it would have been in England.

38. However, the matter goes further than that. The level and quality of care services and the way in which they are delivered may vary as between Massachusetts and England. There are of course wide variations within the United Kingdom itself, as the evidence has confirmed. However, the evidence also suggests that there are approaches to the provision of care adopted in Massachusetts which are not to be found in the same form in the United Kingdom. Both Dr. Gross and Dr. Stern acknowledged the point by saying that in determining the appropriate care arrangements for the claimant, they would defer to the United States care experts. The consequences of their agreed approach is again that care arrangements considered reasonably necessary in the American context may be more expensive than the equivalent in England. The reality of this is substantially accepted on the defendants’ behalf. Such acceptance is implicit in the instruction of Dr. Katz as a rehabilitative care expert from the state of Massachusetts.”

Mr Westcott concedes that this was a correct self-direction, and he was plainly right to do so. The judge clearly (and correctly) stated that the American dimension was irrelevant to the assessment of the nature and extent of the claimant’s needs. He also said that he was entitled to have regard to the “approaches to the provision of care” in Massachusetts. In our view, he was correct in this regard. In deciding what care provision was reasonably required to meet the claimant’s needs, the judge was plainly entitled to take into account what provision was available in Massachusetts. As we have said, none of this is criticised by Mr Westcott.

It follows that the second defendant does not contend that the judge misdirected himself as to the proper test to be applied in determining the nature and extent of the claimant’s needs. Its real complaint is that he must have misapplied the test when he came to consider the evidence and make his findings of fact. The paragraphs of the judgment in which the judge made his key findings as to the claimant’s needs are the following:

“69. Dr. Deutsch’s evidence was of central importance. His expertise and depth of experience are undoubted. His written evidence is extremely detailed and carefully set out. Despite all this, I confess that before I heard him I was more than a little sceptical of his views. Acceptance of all his costed items of care as necessary would seem at first sight hugely and disproportionately expensive. One also tends, perhaps unfairly, towards a scepticism in relation to lengthy care experts’ reports in general. However, having heard him, I was greatly impressed by the care and skill with which he had assessed the particular needs of the claimant and tailored the suggested participation by the claimant in the selected programme to those needs. I was also impressed by his willingness under cross-examination to engage in constructive debate and where appropriate make concessions about which items were not absolutely necessary and which could perhaps be regarded as in the luxury category. His evidence was not wholly without flaws. For example, there remained an ambiguity which was not wholly satisfactorily resolved as to how his recommendation of three hours per day coincided with a daily costing of $225.

70. With one or two minor exceptions, however, I accept the main thrust of his evidence to the effect that it is necessary in order for the claimant to be placed in anything like the situation he was before the accident to have a continued and structured system of support and advice on which he can rely. The claimant’s altered personality and reduced insight does, I accept, make it inappropriate to contemplate a withdrawal of such a system after a few weeks or months transition. At first sight three hours a day might have appeared to constitute over-provision. It would have done so if one contemplated care workers or specialists spending that amount of time in the claimant’s company each day. But that is plainly not the intention. The period of three hours is the total of time to be devoted by the team as a whole on average, not only advising the claimant but making appropriate arrangements and counselling, support and advice of all kinds. I do not consider that excessive, especially when one takes into account the time and effort his mother has been expending on his behalf and further when one takes into account that when away from the home since the accident he has been living in structured environments which necessarily involve the provision of a number of basic services to him by others. In contrast, from now on he will be living on his own independently in an apartment.”

There is nothing in either of these paragraphs to indicate that he was allowing the American dimension to influence his conclusion as to the nature and extent of the claimant’s needs. On the contrary, the judge referred to the care and skill with which Dr Deutsch had “assessed the particular needs” of the claimant, and tailored the suggested participation of the claimant in the selected programme “to those needs”. At paragraph 70, he said that he accepted that it was “necessary” for the claimant to have a continued and structured system of support and advice on which he could rely.

On analysis, therefore, the only way in which Mr Westcott can show that the judge misapplied the test that he had set for himself is to persuade us that the regime of support advocated by Dr Deutsch and accepted by the judge was unsustainable on the evidence. But that is the second ground of appeal. We reject the first ground of appeal.

The second ground

As has been seen, the judge explained in paragraphs 69 and 70 of the judgment why he accepted the evidence of Dr Deutsch that the claimant required the mentor programme, with its provision of continuing support for an average of 3 hours per day and the availability of 24 hour emergency on call support. At paragraph 72, the judge also explained why he rejected the evidence of Dr Katz, who considered that the claimant’s future would be adequately secured by a regime of periodic, though infrequent, specific vocational, psychological and other services overseen by a case manager devoting 12 hours per annum to the case. The judge said that Dr Katz’s assessment of the seriousness of the claimant’s position suffered as a result of his decision not to interview the claimant’s mother. Although this was an understandable decision, it was likely to have given “too optimistic a colour” to Dr Katz’s views. The judge concluded that the provision proposed by Dr Katz was inadequate “having regard to the claimant’s permanent and irremediable difficulties”. Mr Westcott does not challenge this rejection of the evidence of Dr Katz.

But Mr Westcott submits that the judge should not have accepted Dr Deutsch’s evidence. He says that Dr Deutsch gave no satisfactory explanation to justify the requirement of 21 hours per week in the medium and long term. He points out that there was considerable evidence of what the claimant had been capable of doing for himself since the date of the accident. We have referred to some of this earlier in this judgment. But as Mr Tillett QC points out, Mr Westcott’s recital of what the claimant had been able to achieve since the accident fails to recognise that many of the jobs were arranged with the help of his family; where difficulties were caused by his changed personality, the jobs were sustained by parental intervention; and generally substantial care and assistance was provided to him by his mother.

Moreover, there was evidence to the effect that the claimant would need assistance setting up his accommodation, dealing with his rent and utilities and with his finances. He would need to be encouraged and prompted to participate in, and sometimes to be accompanied to, social events. He would also need vocational support (which was costed separately by the judge) and case management (claimed, but not costed by the judge, separately). But, submits Mr Westcott, no evidence was adduced to show how much time would be required per week in respect of any of these elements of support. He says that the mentor programme is aimed at persons suffering from far more severe disabilities than the claimant.

Mr Westcott makes a further point. In his 1996 report, Dr Deutsch specifically stated that the 24 hour emergency support facility provided by the mentor programme was a service that the claimant required, and yet when he prepared his update of the report in 2000, he removed this passage from the text. In the course of cross-examination, Mr Westcott suggested that this showed that Dr Deutsch did not consider that this emergency service was necessary. Dr Deutsch disputed this: see page 230 of the transcripts. He said that the claimant “always needs the availability to call upon somebody when he requires it”. He could not say why he had omitted the reference to the 24 hour facility, but it was an inherent part of the mentor programme. He was in no doubt that the claimant was in need of the mentor programme, and the 24 hour emergency service was an integral part it. In our judgment, the judge was entitled to take the view (as he must have done) that there was no significance in the fact that Dr Deutsch omitted the reference to the 24 hour facility in the update of his report in 2000.

It is important to appreciate that an essential feature of the mentor programme is that it is preventative. It is designed to anticipate problems and to show a participant how to avoid them, rather than to react to difficulties after they have occurred. Dr Deutsch explained why a preventative regime is particularly important for a person suffering from frontal lobe deficit. The provision of a minimum of 21 hours support per week would not necessarily involve the claimant in spending 21 hours each week in the presence of members of his support team. The 21 hour provision includes not only contact between the care team and the client, but also contact “behind the scenes” between a member or members of the team and, for example, employers, landlords, service providers and anyone with whom the client is likely to have contact.

Mr Westcott does not dispute that the judge was entitled to accept the evidence of Dr Deutsch that the claimant reasonably required the support of the mentor programme for the first 18 months. It seems to us that Mr Westcott’s acceptance that the judge was entitled to accept this part of Dr Deutsch’s evidence undermines his argument on the second ground of appeal. This is because Dr Deutsch was no more and no less able to justify with precision and in detail for the first 18 months his advocating the degree of support provided by the mentor programme than he was for the period thereafter. Dr Deutsch gave evidence for a considerable period of time. His support for the mentor programme was closely tested in cross-examination by Mr Westcott. For the reasons that he gave, the judge was impressed by Dr Deutsch and was not impressed by Dr Katz. It seems to us that Mr Westcott’s real complaint is that, although the judge was entitled to and did accept the evidence of Dr Deutsch, he did not sufficiently reflect the evidence of Dr Deutsch that the claimant would or might have a somewhat reduced need for the mentor programme after the first 18 months. But that is an issue which arises under the third ground of appeal.

The third ground

Mr Westcott submits that the judge failed properly to take account of the evidence that the correct approach to the provision of care for the claimant was to establish him in the community in the short term, and to withdraw support in the medium term so far as that could reasonably be done. As we have said, the judge reduced the multiplier from 25.4 (based on a life time of care) to 22. This reduction was made to reflect two factors. These were (a) that the element of the mentor programme that related to his needs for support in respect of his employment would no longer apply once he retired, and (b) that whilst permanent support would be needed, the amount of that support was more likely to decrease rather than increase over the years: see paragraph 73 of the judgment.

Mr Westcott bases his argument largely on the evidence of Dr Deutsch. At page 256, Dr Deutsch said:

“ We know that when we withdraw structure entirely the learning curve drops to zero very rapidly. Now, if I can go a step further and your question were also to imply that if we had a stable supported environment within which he’s functioning well, can we then begin to back off somewhat – see if it works, perhaps back off a little bit more, see if it works, till we find the point where we give him the least support with the greatest stabilisation, I’ll give you an unequivocal “yes”, which is one reason why we talk about ranges of cost of care. What’s the minimum the programme would cost and still give him sufficient support? That’s why we normally use ranges and I have that range.

Q. Putting aside the question of ranges, we are obviously agreed about the theory of it. You give support to an appropriate position and then as you can properly you withdraw it.

A. We are absolutely, as long as you recognise that there may be intermittent periods in his life, through no fault he gets laid off from a job he’s now had for five years and it’s very, very frightening to anyone, but even more so in this situation, where you may have to bring that support back. That’s something you need to recognise, but otherwise I’d say we probably are in agreement generally with respect to that.”

At page 258F, he said that “at the beginning”, the claimant would certainly need support at the rate of 3 hours per day every day, but added:

“ I think you are looking at a minimum – and part of this depends on how well he stabilises in the … We are looking at a minimum of 12 to 18 months before you are going to see the kind of stabilisation that would allow you to consider any kind of step back from that.”

At page 295, he was asked to comment on Dr Katz’s proposal that the support should be substantially reduced after a relatively short time. He replied:

“ A. Okay, well, I think in essence it’s an answer I’ve already responded to because I think it depends a great deal on the assumption that this individual’s ability to learn and be largely the primary person responsible for maintaining the programme that’s been set up will be something that could be ongoing into the future, and I suggest to you that, as you start to reduce the level of support, you’re going to see a drop in the learning curve. So, although, you know, if the mentoring programme started out at as much as four hours and dropped to two, you know, I could recognise and accept that and, thereby, drop to the bottom of the range that I had given. I could accept that as being more plausible but in this instance I think what you’d see is an individual who might benefit well from the support, albeit considerably less than I think is needed, but I think the less you give him the rate of the likelihood that that learning curve is going to drop rapidly to zero after you withdraw support or you bring it down to such a minimal level.”

The judge recorded the effect of the evidence of Dr Deutsch in these terms:

“Dr Deutsch was prepared to concede that some of the services might be withdrawn in the future at a time when the claimant was coping better, though equally there would be times when crisis management was needed”.

The problem is to know how far Dr Deutsch’s “concession” went. His evidence was not precise. That is hardly surprising having regard to the nature of the claimant’s disability and the uncertainty of how he would be able to cope with the vicissitudes of life. We have found his answer at page 295 particularly difficult to interpret. But it seems to us that a fair interpretation of his evidence is as follows. It was reasonable to suppose that it might be possible to reduce the care after a time. A reduction could be considered after a minimum period of 12 to 18 months. The aim would be to find the point at which the claimant is given the least support necessary to achieve maximum stabilisation. In his answer at page 295, Dr Deutsch seemed to be accepting that 2 hours per day might be sufficient, but it is not altogether clear. There might be periods when any reduction in support would have to be reversed, if, for example, the claimant lost his job. But, no doubt, there might be other stressful circumstances which would also require the level of support to be increased.

Mr Tillett submits that the rationale behind the judge’s discount of the multiplier from 25.4 to 22 was that certain aspects of the regime would not be required when the claimant stopped work. Mr Westcott’s riposte is that, if that is correct, the judge made no discount at all to reflect the fact that Dr Deutsch conceded that there could be some withdrawal of support in the long term. We think that it is clear from paragraph 73 of the judgment that the judge did not base his discount only on the fact that there would be less need for support once the claimant stopped work. As we have already said, although he took that factor into account, he also relied on the evidence of Dr Deutsch that the amount of support that was needed was likely to decrease for more general reasons.

Mr Westcott submits that the judge should have awarded damages on the following basis. Ignoring the first 9 weeks evaluation course, he suggests the full mentoring programme for 18 months; 3 hours care, 3 days per week during the next 3 years; and for the balance of the claimant’s life, 5 hours per week plus 26 hours per year (for contingencies). In a table annexed to his skeleton argument, he arrives at a figure for damages of $434,963. This approach to damages was not, of course, advanced on behalf of the second defendant to the judge, since its case at that time was wholly different.

Mr Westcott has drawn our attention to Goldfinch v Scannell [1993] PIQR 143, a decision of this court. In that case, the judge had awarded the plaintiff damages which included a sum calculated on the basis that she needed a full-time carer to live with her in her home. Glidewell LJ said at page 152 that the issue was whether it had been shown that it would be necessary to have somebody permanently resident in the plaintiff’s home. He said that the evidence before the judge did not prove that the plaintiff had need for a living-in carer. There was evidence from a Mrs Gipson that part-time care 4 hours per day would be sufficient which Glidewell LJ thought was “a perfectly proper approach”. Staughton LJ said that there was uncertainty as to what the plaintiff reasonably needed by way of care in the future. He said that in the circumstances of that case the proper solution was to make an award based on at least the degree of care that the plaintiff would certainly need “on a generous scale, and then add some amount for the contingencies that may occur”. He said that the figures put forward by Glidewell LJ achieved that result.

Mr Westcott submits that the application of the approach articulated by Staughton LJ should lead in the present case to a result along the lines of that for which he contends. The assessment of damages in cases of uncertainty is always difficult. The court must do its best on the material available to arrive at a figure which it considers will compensate the claimant for the future costs that he or she will reasonably incur as a result of the defendant’s negligence. It must always be borne in mind that the burden is on the claimant to prove the loss on a balance of probabilities. We do not think that Staughton LJ was propounding a principle as to the proper approach to the assessment of damages in cases involving uncertainty. But there are no doubt many cases in which the approach he put forward is useful.

It seems to us that the judge did not sufficiently discount the multiplier in this case. As so often in cases such as this, the matter is essentially one of impression. The question of what is an appropriate discount to reflect the uncertainties of which Dr Deutsch spoke does not admit of resolution by anything approaching scientific proof. But in our view, a discount of about 12% over a lifetime was plainly insufficient. We consider that a discount of 3 years would have been justified solely on the basis that aspects of the regime would cease to be required once the claimant stopped work. But it is plain from Dr Deutsch’s evidence that it was possible, if not likely, that there would be considerable periods during the claimant’s life when he would not need more than 2 hours care per day in any event. We recognise that this court does not lightly interfere with the assessment of a multiplier by a trial judge, at any rate in cases (such as this) where the assessment involves a particularly difficult exercise of judgment. But since the judge based his discount entirely on his interpretation of the effect of the evidence of Dr Deutsch, this is not one of those cases in which we have to pay particular deference to the judge’s assessment. Indeed, we are possibly better equipped to interpret this aspect of Dr Deutsch’s evidence, since we have a full transcript of what he said. The judge only had his notes. Since his evidence was somewhat difficult to interpret on this point, this is a matter of some significance.

In our judgment, the judge should have made a substantial discount to reflect the uncertainties of the case and the matters to which we have referred. We think that the multiplier should be reduced to 17 years. This is based largely on the fact that Dr Deutsch appears to have been willing to concede a figure of 2 hours per day and the fact that, once he ceased work, the claimant’s needs would be reduced in any event.

Conclusion

In the result, therefore, the appeal succeeds to the limited extent indicated on the third ground. The sum of $ US 1,204,500 awarded by the judge for future support costs was calculated on the basis of a multiplicand of $ US 54,750 per annum. The reduction of the multiplier from 22 to 17 means, therefore, that, taking account of the finding of contributory negligence, the total award of $1,513,159 should be reduced to $1,307,846.