England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Underhill
[2009] EWHC 405 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/02/2010

Lord Justice Waller :

1. On 20^th June 2004 the appellant, when he was 22, was severely brain damaged in a car accident. The respondent did not dispute liability. Underhill J handed down a judgment assessing damages on 13^th February 2009. By that judgment he indicated in relation to the award for Future Care (by far the most significant aspect of the award) that he would be prepared to make a Periodical Payment Order in part; his refusal to make such an order for all future care rested on uncertainties which he had identified in the course of his judgment.
2. The judge's award was considerably less than that for which the appellant and his advisers had been contending, and whereas the advice given to the appellant on the basis of the sums claimed was that the court should be asked to make a PPO, on the hand down of the judgment the judge accepted that further advice should be sought. That advice was that on the assessment made by the judge the appellant should now seek a lump sum award. The respondent had at all times argued for a lump sum award, and in the result the judge was persuaded to make a lump sum award.
3. This is an appeal against both the judge's main judgment and his ruling that he would make a lump sum award dated 16th June 2009 (of which we have a note approved by the judge). The appeal against the judge's ruling on 16th June 2009 is of course contingent on the appeal resulting in the much higher award contended for by the appellant, and thus the focus of any argument is on the main judgment.
4. Mr David Wilby QC, supported by his junior Mr Paul Dean, in the grounds of appeal supported by a main revised skeleton argument and by a Supplementary Skeleton filed shortly before the hearing of the appeal, and in his oral submissions, devoted most of his energy to an attack on the judge's assessment in relation to future care. Mr Walker QC for the respondent also devoted most of his answers to this aspect.

Future Care

5. The appellant's case was that (a) the appellant needed 24 hour care in essence to control his behaviour made seriously worse as a result of his injury, and (b) that there were no prospects of any improvement in his cognitive or behavioural habits which would allow less than 24 hours of care in the future.
6. At the trial Mr Wilby's case that 24 hour care was needed was supported by his care expert Ms Jo Clark-Wilson. She did not support 24 hour care in her first report but in her second report and in her evidence at the trial she supported that need. The need for 24 hour care was also supported by Dr Bird, a neuro-psychiatrist, in his oral evidence.
7. The case that there were no prospects of improvement in behaviour was supported by a Joint Statement of Professor Beaumont and Dr Leng ( expert neuro-psychologists acting for the appellant and respondent respectively). It was also supported by Dr Bird's second report and his oral evidence and, albeit less dogmatically, by Dr Gross' oral evidence.
8. The main thrust of Mr Wilby's argument on the appeal was (a) that the judge was not entitled to disregard the Joint Statement of the neuropsychologists on the appellant's prospects of improvement, and (b) that having rejected the evidence of the defendant's care expert, Mr Blackshaw, as inadequately based on the medical evidence, ignored the recommendations of Ms Clarke-Wilson and made his own arbitrary assessment unsupported by any expert evidence.
9. In my view Mr Wilby's criticisms of the judge are unfounded and in some respects show a misunderstanding of the status of experts' evidence and, in particular, joint statements. The evidence of experts is important evidence but it is nevertheless only evidence which the judge must assess with all other evidence. Ultimately issues of fact and assessment are for the judge. Of course if there is no evidence to contradict the evidence of experts it will need very good reason for the judge not to accept it and he must not take on the role of expert so as to, in effect, give evidence himself. So far as Joint Statements are concerned parties can agree the evidence but (as happened in this case) it can be agreed that the joint statements can be put in evidence without the need to call the two experts simply because they do not disagree; but either party is entitled to make clear that the opinion expressed in the joint statement is simply evidence that must be assessed as part of all the evidence.
10. Much the same point can be made in relation to the evidence of Ms Clark-Wilson and the evidence of Mr Blackshaw. The views of these two experts were at different ends of a spectrum. Mr Blackshaw's evidence was to the effect that the claimant needed only a limited amount of care; Ms Clark-Wilson's view was that the claimant needed 24 hour care, not it should be said because he could not do things for himself but because he needed, in effect, a guardian; his behaviour was likely to be such that it was necessary to have someone constantly with him to protect third parties and protect the claimant from himself.
11. The judge did not accept either view. He thus had to make his own assessment of what care would be needed. The way he did that is criticised by Mr Wilby, who would suggest the judge fell foul of the rule which holds the judge should not become the expert, and involved the judge plucking figures from the air. I will have to examine that criticism with some care. The real question is whether there was evidence in the case which entitled the judge to form the view he did as to the care regime which would be needed by the claimant in the future, and whether his calculations were based on evidence.

The joint statements

12. I will deal with this criticism first. In relation to the joint statement of two neuropsychologists, that statement was heavily relied on by Mr Wilby before the judge. Indeed he made the point to the judge he sought to make on the appeal that it was a joint statement from the relevant experts which bound the judge as to the conclusion he should reach. The judge did not accept that submission; he appreciated the evidence was important; his view was, however, that it was only part of the evidence before him. All this appears from paragraph 54 of the judgment where the judge said this:-

"The first point that Mr Wilby made by way of response to the case advanced by Mr Walker was that the principally relevant specialist expertise in this case was not neuropsychiatric or neurological - that is, the specialities of Dr Upton and Dr Foster - but neuropsychological, and thus that the issue of any further possible improvement was effectively concluded by the agreed terms of the joint statement of the neuropsychological experts, Professor Beaumont and Dr Leng. I do not agree. In the first place, while I acknowledge that the neuropsychological opinions are of great importance, I was not persuaded that the issue in question was one on which a neurologist or neuropsychiatrist was unable to express a valid opinion. Clinicians do not operate in impermeable boxes. Although Dr Upton is a neuropsychiatrist by speciality, his particular clinical expertise is in the care and treatment in the community of patients with brain damage; and he told me that the nature of his practice meant that he had very considerable experience of the kinds of regime which he believed should have been implemented in the present case but had not been. Thus the agreed evidence of the neuropsychologists represents only part of the relevant evidence before me. In circumstances where there was clearly a dispute on this question, it is perhaps less than ideal that I did not hear live evidence from Professor Beaumont and Dr Leng. A joint statement is always a helpful document, but it is in the nature of things something of a summary."

13. It is right also to quote the footnote to the last sentence:-

"In his written closing submissions Mr Wilby said that if I thought it necessary there should be an adjournment to allow Dr Leng and Professor Beaumont to be called. He did not repeat this suggestion in his oral submissions, but in any event I do not believe that it would have been proportionate or in the interests of justice to take this course. I was able to obtain a reasonably good understanding of their views from their reports, which were before the Court, and their joint statement, all of which I have read carefully."

14. It is important to stress that those representing the defendant had made clear that the Joint Statement was not "agreed" evidence. It thus fell to be treated as part of the evidence as the judge said. It was a matter for those representing the claimant to decide whether the Joint Statement should become evidence on that basis or whether they wanted the two experts called. They took a perfectly understandable decision that the Joint Statement should go in and the experts need not be called.
15. To suggest for the first time in the closing submissions that the trial should then be adjourned in order to allow the two experts to be called was unlikely to succeed and, unsurprisingly, it was not pursued orally.
16. The judge's approach, as demonstrated by paragraph 54, seems to me to be entirely correct.
17. Furthermore to suggest, as Mr Wilby did, that the judge ignored the Joint Statement is not fair. That is clear from the fact that in paragraph 54 he recorded its importance. In addition having quoted it almost in full in paragraph 9, he further quoted again from it in paragraph 50. He also recorded there the other evidence that supported the view that there was no prospect of improvement saying this:-

"Evidence to broadly the same effect was given by Dr Gross and Dr Bird. Dr Gross told me that he did not accept that on the balance of probabilities the Claimant's behaviour and capacity would improve: he emphasised that the fundamental problem was structural brain damage and that, although a degree of improvement in function was possible after 4½ years, it was unlikely. It was Dr Bird's view that the very limited success of the regime introduced by Mr Lamb over the previous two years meant that no further progress could be expected."

18. The judge then examined the evidence in the other direction. He recorded the criticisms of the regime in place up to the time of the trial and recorded Dr Upton's disagreement with Mr Bird in these terms:-

"Given appropriate treatment, Dr Upton expects further improvement. Dr Upton considers that the level of support worker time is too high and detrimental to [the Claimant's] function and recovery. Dr Upton considers the Claimant will always need support (to support domestic function, structure and activities and maintain independent living skills) but that this level will be significantly lower than the current level."

19. He recorded a similar view being expressed "though less fully developed" by Dr Foster who believed that although the brain damage was irreparable "it was nevertheless possible for the claimant to achieve behavioural change through "modelling"- that is by being put in an environment in which he could be steered into "structured purposive activities". [See paragraph 51 of the judgment]
20. He set out a letter from Dr Maddicks recognising that the positive tone must be read with the heavy qualifications but accurately suggested that the "letter plainly opens up the possibility of further treatment." [See paragraph 52].
21. The judge then weighed up the evidence in paragraph 56 and 57 and concluded that with the opportunity of a "reinvigorated regime" there was a prospect of improvement. It is this conclusion that led the judge, in relation to his assessment for future losses, to allow for a period of 3 years of "an intensive level of support". [See paragraph 109 of the judgment].
22. It is however important to recognise that the above finding did not affect the judge's assessment of what would be required in the future after that period of three years. In paragraph 110 he said this:-

"It cannot of course be known what degree of improvement in the Claimant's independence and behaviour a reinvigorated regime will in fact achieve, if indeed it is introduced, though I have found on the balance of probabilities that it will achieve some. But, whether there is any improvement or not, I do not believe that it is likely to be necessary or reasonable for such an intense level of support to continue at the end of the three-year period that I envisage. Whatever the outcome, I do not believe that he will need or will realistically benefit from support at the current level on a long-term basis. That level of support is, as I have held, justifiable only for rehabilitative purposes, and what rehabilitation is possible should have been achieved by the end of the period. The criterion thereafter will be what is necessary in order to enable him to function as well as possible having regard to his disabilities as they are likely to be at the end of the period of three years. The level of care necessary for that purpose may vary at different stages of his life: the situation is not comparable to that of a claimant who has suffered catastrophic brain damage such that he needs constant care. However, it is impossible to predict the kinds of fluctuation that may occur. My best judgment is that the Claimant will need at least six hours care per day (i.e. 42 hours per week); but that is a minimum level, and it may be that a higher level of care will be needed for substantial periods of his life. The length of those periods, when they will occur and the amount of extra hours that may be required is wholly unpredictable; but in my view the mid-point of all the possibilities could best be expressed by allowing a 50% uplift on the minimum level, so as – subject to the points discussed below – to award damages on the basis of a care requirement of nine hours per day (63 hours per week). I note that that allowance is in fact in line with the original assessment of Mr [Ms] Clark-Wilson: it is only the subsequent increase in her figures that I have been unable to accept. It is considerably more generous than the assessment of Mr Blackshaw; but I am bound to say that I did not feel that his evidence was adequately based on the medical evidence as to the Claimant's condition or indeed on any relevant personal experience in managing cases of this character."

23. The judge was thus saying that even without any improvement it would not be necessary to have 24 hour care, as assessed by Ms Clark-Wilson, but his assessment is considerably more generous that that of Mr Blackshaw. In his criticism of this assessment Mr Wilby recognised that his point relating to the non-acceptance of the Joint Statement no longer had any material relevance. In this instance he submitted that the judge's conclusion was against the weight of the evidence, and involved the judge snatching figures from the air.
24. It is important see how the judge reached the conclusions he did in paragraph 110. The starting point was his assessment of the claimant's claim for care prior to the trial. Mr Wilby's submission was that the claimant's behaviour created such risks for himself and for others that he needed a minder throughout the day and at night. Thus the regime in place by the time of trial involved night sleepers being necessary on the nights that the Claimant went out drinking to look after him. As the judge recorded reliance was placed on certain episodes of violence that had occurred in the past.
25. The judge then said this at paragraph 73 and 76:-

"73. Mr Wilby also relied on the expert evidence, principally of Dr Bird. Dr Bird described the Claimant in his oral evidence (though not in his report) as "a very dangerous young man". He said that he needed someone with him all his waking hours; and when Mr Walker asked him about the provision of care at night he responded that "anything can happen at night" and repeated that the Claimant was "a very significant risk to himself and others if he is left unattended". Dr Gross – perfectly appropriately in view of his field of expertise – was less full and explicit on the subject of the degree of care which the Claimant required; but he too referred to the need for the Claimant to be "contained" and commented that that would be difficult if he was without support for large parts of the day. Mr Wilby also referred to the fact that Ms Clark-Wilson in her later reports modified her original position and recommended 24-hour care, and on one view of the matter it is her evidence, as the "care expert", which is central. As to that, however, in a case of the present kind the care experts are doubly dependent on the input of others – that is, on the medical experts as regards the extent of the injury and the prospects of treatment and improvement, and on the Claimant's family and support network for evidence of his capability and needs. On those I am in a good position to form my own views.

. . .

76. I do not therefore accept that the Claimant needs seven-day-a-week 24-hour care for the sake of his own safety or that of others. In fact, it is to be noted that no-one has so far really proceeded on that basis; nor has any medical witness save Dr Bird asserted such a need. Some of the incidents of violence described date from the very beginning of the period with which we are concerned – and the Claimant was of course known to have acted violently towards his mother and his grandfather in the earlier period; but it was not thought necessary initially to afford 24-hour supervision. And even now there are substantial periods of time when the Claimant is on his own, either on weekday evenings, or when a support worker is for one reason or another unable to come or is dispensed with. I note too that it was many months after the "glassing" incident that the idea of the Claimant having support on week-end nights first emerged. The change of approach between the original and later reports of Ms Clark-Wilson is in my view based on inadequate material."

26. The above being the judge's view so far as past care was concerned it was the judge's view that the regime in place pre-trial could only be justified to attempt to achieve the goal set by his case manger Mr Lamb which was "For Joey to maximise his independence and engagement in the areas of looking after himself, leisure, and employment, with the correct amount of support." The judge summarised Mr Lamb's recommendations under three heads in paragraph 21 under care and management, accommodation (a need to move) and specific therapy.
27. The judge's view was that the regime originally in force of 14 hours a day, six days a week (i.e. 84 hours and no weekends or nights) was "reasonable, on the basis that, at least in the early stages and with a move to a new home, he would benefit from very extensive support" [see paragraph 78]. He was also not prepared to disallow at this stage the extension which had come about of including Sundays, but he was of the view that any support for going out at night should come from the carers doing the 14 hours a day and that nights, to which the regime had been extended, was not justified.
28. The claimant did not appeal that conclusion of the judge and logically that must be inconsistent with a claim that 24 hour care was the right answer for the future, but I will assume that was simply an oversight.
29. The important point to emphasise is that the judge's view as to the appropriate care regime appears, from his conclusion at paragraph 74 and 76, to be based primarily on the view of Dr Upton, supported by Dr Foster. He emphasised also in paragraph 76 how the change of approach of Ms Clark-Wilson between her original report and her later one was, in his view, based on inadequate material.
30. So far as the evidence of Ms Clark-Wilson and Mr Blackshaw given at the trial was concerned, he had rejected both. He therefore had to make an assessment of what he considered would be reasonable, appreciating that fluctuations might occur; his answer was 6 hours a day minimum, but because there might be periods when more was needed, he applied an uplift and then cross-checked his calculations against Ms Clark-Wilson's original assessment.
31. The judge then provided for a discount against certain possibilities. Two of the possibilities (the risk of being sent to prison and being committed under the Mental Health Act when carers would not be needed) the judge concluded were small but not wholly negligible. The possibility that the claimant would dispense with all or some carers was a greater possibility. In relation to that possibility the judge's conclusion was that "I do regard it as entirely possible that he will make sufficient difficulties that some kind of compromise will have to be put in place under which he has less support than . . . his case manager believes appropriate".
32. Because the claimant was not a person who needed constant care to eat, sleep, and get about which could provide a mathematical calculation as to hours per day, the judge had a difficult task. In my view his method of calculation is not open to the criticism he was snatching figures from the air and he, in my view, had ample evidence on which to base his views. His assessment had, of necessity, to be somewhat broad brush and ultimately the discount he applied for what appeared to be a real possibility was not, as it seems to me, ungenerous to the claimant.
33. Looking at the matter overall, the judge concluded that a period of intensive care might help the claimant's quality of life, and he awarded the costs of the pre-trial regime on the basis that that should have supplied that intensive period; because the pre-trial regime had not achieved the successes that the judge thought was possible, he awarded a further three years of intensive care; but his conclusion was that, even if there was no improvement, ultimately the amount of care he should award for the future was on the basis of 8 hours a day over 7 days a week. That conclusion was based on his view of the evidence, particularly that of Dr Upton, and was a conclusion he was entitled to reach.
34. I would thus reject Mr Wilby's attack on the judge's assessment of loss for future care.
35. The claimant also appealed two other matters - the reduction in the multiplier from 25 to 10 in relation to use of a gym, and the general damages assessed by the judge at £140,000.

The gym multiplier

36. At paragraph 126 of his judgment the judge said this:-

"I also consider it likely, and beneficial in view of his condition, that he will continue to belong to a gym and use an instructor for some years to come. But that is not certain, and I certainly do not accept that he will do so for the rest of his life. The Claimant recognises the latter point, to a limited extent, by suggesting a reduced multiplier of 25; but in my view that wholly under-estimates the chances that, for a variety of reasons, this expenditure may not be incurred. I will allow a multiplier of 10. That gives a figure of £13,380."

37. Mr Wilby submitted that a 10-year multiplier assumes that the claimant will cease using the gym at 40. The judge however was not simply saying that the gym will be used regularly and then cease at a certain age. He was saying that there is a variety of reasons why the gym may not be used at whatever age the claimant may be.
38. He was in the best position to make that assessment, and I would reject Mr Wilby's suggestion that this reduction was simply arbitrary.

General damages

39. The judge dealt with this from paragraphs 59 to 62. He quoted from the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases (9thed). That enabled him to identify the ranges for "Very severe Brain Damage" £180,000-£257,750; "moderately Severe Brain Injury" £140-£180,000; and "moderate Brain Damage" £58,000-£140,000. Cases falling within the second bracket are characterised as he said, as follows:-

"The injured person will be very seriously disabled. There will be substantial dependence on others and the need for constant professional and other care. Disabilities may be physical, for example, limb paralysis, or cognitive, with marked impairment of intellect and personality."

40. The third bracket as again he identified has regard to the same factors where "the degree of dependence is markedly lower".
41. The judge concluded the claimant's case fell near the boundary between the second and third brackets.
42. The judge also referred to two authorities, one awarding £150,000 and the other £125,000. Mr Wilby would suggest that the claimant in this case should be compared to the claimant where £150,000 was awarded in 2004 (£180,000 by 2009) to (on Mr Wilby's submission) "a less severely damaged person." He criticises the judge for his view that "Those cases confirm that my award is in the right bracket, but I do not find them of assistance in establishing the precise figure: nice comparisons of degree of disability suffered by claimants in different cases is rarely a worthwhile exercise."
43. Mr Walker QC submitted that the judge had understood and applied the Judicial Studies Guidelines and submitted that actually this claimant is more analogous to the claimant where only £125,000 was awarded.
44. It seems to me that the judge has placed this claimant at exactly the right place in the scale. He has cross checked against the authorities to see whether they confirm he is in the right bracket. He is not required to do a detailed analysis of each authority particularly where each side is suggesting that one rather than the other is closer to their case.
45. I would dismiss the appeal.

Lord Justice Laws :

46. I agree.

Lord Justice Etherton :

47. I also agree.