England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		The Courts of Justice Crown Square, Manchester M3 3FL
		14th November 2005

Mr Justice Christopher Clarke:

1. Leonie Lynn Duffield ("Leonie") was born on 11^th December 1986 at Furness General Hospital, Barrow-in-Furness. Because of an admittedly negligent delay in carrying out delivery by caesarean section she sustained serious brain damage at birth and suffers from a form of cerebral palsy. As a result she has severe impairment of mobility and severe cognitive and learning disabilities. Judgment on liability was entered on 9^th November 2004. Leonie's disabilities are such that she will require substantial care for life. The parties have agreed that her life expectancy is such that the appropriate lifetime multiplier is 31.4.

Introduction

2. The Damages Act 1996 section 2 (1), which came into force with effect from 1^st April 2005, empowers a court awarding damages for future pecuniary loss to order that the damages shall, wholly or partially, take the form of periodical payments, and obliges the court to consider whether to make such an order. On 5^th June 2005 the claimant obtained LSC permission to instruct a financial expert. The preliminary view of those advising the claimant, prior to receipt of the expert's considered advice, was that periodical payments in respect of the care costs would be in the claimant's best interests. Whether that is in fact so is dependant on the advice that the claimant receives, and may depend upon whether such payments are to increase by reference to the retail price index or the average earnings index. There is a significant difference between the two indices, the effect of which is cumulative. The choice of index is relevant since there is evidence that care costs have been rising at rates higher than RPI, no doubt at least partly as a result of the undersupply of competent carers.
3. At the pre-trial review on 10^th June 2005 I ordered, amongst other things, that directions in relation to issues arising under the Damages Act should be adjourned until the end of the trial. I did so for two reasons. First, I was informed that in a case in London – YM - Forbes, J. had tried the issue as to the appropriate cost of future care but adjourned the question of periodical payments for a hearing in the autumn of this year, which would address the issue of what index should be taken, and might well in practice resolve, or assist the resolution, of the issue of periodical payments in the present case. Second, the Claimant did not have either the necessary financial advice or the evidence of a labour economist.
4. In the event, the good sense of the parties has had the result that many of the heads of claim have been resolved by agreement. The parties have agreed, and I approve, the following amounts in respect of the following items:

	Head of Claim	Principal	Interest[1]
1	Pain and Suffering And Loss of Amenities	£ 162,500	3,152
2	Past Care	£ 135,000	74,250
3	Miscellaneous	£ 17,500
4	Care and Case Management	Not agreed save in respect of 2005/6 where £ 25,000 (excluding case management) is agreed
5	Accommodation	Not agreed
6	Physiotherapy	Not agreed
7	Speech & Language Therapy	£ 2,354
8	Aids and Appliances	£ 77,500
9	Transport	£ 82,500
10	IT	£ 40,000
11	Miscellaneous future Costs	£ 24,000
12	Occupational Therapy	£ 16,750
13	Earnings	£ 335,000
14	Receiver's Costs	Not agreed

5. So far as accommodation costs are concerned, the claimant has a very substantial claim. The family hope to obtain either a bungalow or a two storey building with a one storey attachment in which they and Leonie's carer (s) will live. The claim is for (a) the ancillary costs of purchase; (b) the adaptation of the dwelling to accommodate Leonie's special needs and (c) the financing costs as expounded in Roberts v Johnstone [1989] Q.B. 878 as explained in Wells v Wells (1999) 1 AC 345, 379 – 381^[2]. I adjourned the hearing of the accommodation claim in the hope that, when it falls to be decided, it may be possible to relate it to an actual building that has been, or is proposed to be, acquired. There remains, therefore, for decision at this stage the appropriate annual figure for Leonie's future care costs, i.e. the costs after mid July 2006 when she will leave school, in order that that figure may either be used to calculate, by use of a multiplier, a lump sum, or as the basis of an order for periodical payments.

Leonie

6. Leonie has, since April 1998, been at George Hastwell School on Walney Island in the Borough of Barrow-in-Furness. This is a small school. It has about 86 children between 2 and 19. They all have special educational needs. Leonie was transferred to it, upon a gradual basis, from the mainstream school that she previously attended. The school has been good for her and she has been happy there. Leonie will leave that school, and her education will come to an end, in July 2006, when she will be 19 ½. At that stage her care needs will change and by that date there will have to have been set up the care regime that will carry her through her adult life.
7. Leonie lives with her mother, stepfather and siblings. Her mother is Mrs Karen Jones ("Mrs Jones"). Her brother is Scott. He was born on 10^th October 1990, and is now, therefore, close to 15. Mrs Jones separated from her former husband in 1993, and in 1994 she met Benjamin Jones, to whom she is now married. He is the father of Molly, who was born on 19^th March 1999, and is now, therefore, nearly 6 ½. The family live at an address in Barrow. Mrs Patricia Horne, Mrs Jones' mother, also lives in Barrow but some distance away from the Jones family. Her husband – Mrs Jones' stepfather - was until recently a Councillor but he has had to retire on the grounds of ill health. She will have to look for work.
8. Leonie will always need a substantial level of care and protection and a high level of support. She walks with an uneven gait and is not very steady. If she has to cross a room she needs the support of the walls or the furniture. She walks, mainly on her toes, in a manoeuvre which requires a high degree of effort. She cannot walk for any significant distance. When mobile she is prone to fall. She can pull herself upstairs in a somewhat ungainly manner, alternately holding on to the banister and leaning against the wall; but she has to come down on her bottom. She is physically clumsy. Her speech can be quite hard to understand. She is deficient in many areas of day to day living skills. She can dress herself in loose clothing but has difficulty with putting on a bra and managing buttons because she lacks fine dexterity. She needs assistance to wipe herself clean after her toilet. She can make herself a cup of coffee but not carry it; make toast but not butter it. Her general level of functioning is, according to the report of a jointly instructed Consultant Psychologist, at or below the 5 to 5.5 year level. Her mathematical skills are of someone below 6. She has a full scale I.Q. in or below the lowest percentile. (i.e. the same or less than 1 in 1000 of similar age), giving her a mental age of between 6 and 9. She has a reading age of about 6. She can recognise a few simple words and can write her name but very little more (e.g. she cannot read a simple question and answer a basic question relating to it). Her understanding of language is that of someone below 6. She cannot use a computer on her own. She lacks the ability to initiate or plan any complex activity. Although she will gradually develop some skills leading to self care and participation in domestic chores she is most unlikely to be able to live independently or to be capable of open employment or managing her own affairs.
9. Most of the care that has previously been given to Leonie has been given by her mother, Mrs Jones. Care and assistance by others has only recently begun. Two people are currently involved – a lady who has been coming in from 7.30 to 9.30 and who is going to come in on two evenings a week from 4 to 8.30; and another who has been coming in for 2 hours in the morning. Understandably Mrs Jones, who is now 37, is pleased with the assistance she has received, and wishes to move on in her life from the position of principal carer that she has lovingly fulfilled for 18 years, to a position where much of that burden is passed to others. She recently began work as a "bank" nurse, initially working 2-3 nights per week at Furness General Hospital. At the time of the hearing she was working there 37.5 hours a week as a Clinical Support Worker on variable shifts. Her husband is a fireman, who at the time of the hearing worked nights.

What level of care?

10. The issue as to the appropriate level of Leonie's future care may be summarised as follows. The care proposed for her by Mrs Rosemary Statham, the expert witness called on her behalf, is that, under the aegis of a case manager, her day time care would be covered by two people each day, coming from a group of individuals, probably five in all at any one time, chosen as being suitable for Leonie, and employed by the Receiver on Leonie's behalf. They would be engaged for a set number of hours per day to be determined flexibly. In addition there would be separate sleep-in care i.e. an individual coming in to look after Leonie during the night. I call this arrangement "rota care". This care would be bought in by the case manager on behalf of the Receiver. The current case manager is a Miss Ann Jones who reports to Mrs Lynn Farrimond. Both are employed by Tania Brown Ltd, a company run by an experienced occupational therapist, which operates over the North West within a limit of 2 hours travel from the Wigan area, and manages the care of some 40 individuals, almost all of whom are brain injured, and 26 of whom have had cerebral palsy from birth.
11. The proposal put forward by Mrs Jan Preece, the expert called on behalf of the defendants, is that, again under the aegis of a case manager, Leonie should be looked after by carers provided by an agency, who will reside at her home. I call this "residential care". The resident carers would be members of a team of (probably) 3 individuals, who would work, typically, one week in three. Alternatively there might be two carers working one week on and one week off with a third carer covering for sickness and holidays. The suggested provider of such care is Complete Personal Assistance Ltd, a company based in Telford, Shropshire and a subsidiary of Complete Care Holdings Ltd. I propose to assess the suitability of what is proposed by what they have to offer ("the CPA care plan") and to describe them as "CPA".
12. There is a further issue as to whether or not expense may be spared because Leonie will, either for five days a week, or for some lesser period, attend at a Day Centre, or some similar facility, without a carer. The defendants initially suggested that Leonie would go to such a centre for up to 5 days a week and that her carer need not then attend. The contrary suggestion is that, whilst Leonie may go to a day centre as one of her activities, she will not go to a day centre for 5 days a week or anything like it, and certainly not 5 days a week for life, and that, if she does go, she will, in some cases need a carer with her.
13. The difference in money terms between the two approaches may be illustrated by the annual costs of implementing them. The figures from 2006 onwards are as follows:

Item	Claimants	Defendants
Case Management	6,750	2,643.75
Carers	77,920.20	47,432.84 5,973.76
Staff Expenses	2,688	3,640
Holiday costs	3,600	2,000
Training/Risk Assessment	1,000
Insurance	84	84
TOTAL	£ 91,958.20	£ 59,394.35

14. The exercise of calculating – now – an appropriate figure for the cost of care that may be necessary for very many years to come is not only difficult but, to some degree artificial. The Court is required to fix a figure that gives fair compensation in circumstances where the relevant care "package" has not begun to be delivered; and where the question of suitability of Day Centres for Leonie, or her suitability for (or willingness to attend) them, has not been tested. In the years to come her needs may change, either upwards or downwards in money terms. My task is, none the less to determine a fair figure for the annual cost of care that may sensibly be applied across the rest of Leonie's lifetime.

The test

15. Leonie has been physically and mentally injured as a result of the defendant's admitted negligence. No compensation can restore to her the health she was thereby denied. But any damages awarded to her should, so far as possible, put her into the position in which she would have been had the tort not been committed and she had not suffered the injury that was its consequence. That involves providing for the cost of such care as is requisite to ensure, so nearly as can be achieved, that she enjoys the independence, ability to use her faculties and capacity to enjoy life that she would have enjoyed if she were not handicapped. The funding of such care is the responsibility of the defendants. In the past care has been lovingly provided by Mrs Jones, and is the subject of the agreed award of £ 135,000 plus interest. I have no doubt that she will continue to provide care to Leonie to some extent hereafter. But, as I remind myself, she is under no legal duty to do so; and the damages should not be reduced on the footing – as Eady, J., put it in Biesheuvel v Birrell [1999] P.I.Q.R. Part 3 Q 40 – that she "can be relied upon as part of the care regime". Leonie's mother and stepfather will no doubt be in contact with their daughter in the normal course and, to the extent that they are, they may relieve the carers. But they cannot be constrained to do so and it would be wrong in the present case to assess damages on the footing that they will, particularly since Mr Jones is on nights and Mrs Jones has an uncertain shift pattern. Further Mrs Jones, who has devoted so much time to her daughter for over 18 years is entitled, both morally and legally, to have the relationship revert, so far as it can, to that of mother and daughter, not carer and charge. I, also, bear in mind that although there will be times when her family is willing and able to look after her, so that, to that extent, a carer may not be needed, it is not feasible to employ a carer on the footing that she will not be paid if the family are helping out. As Mrs Statham sapiently put it "You cannot dip in and out of wages".
16. In order to determine what level of care is appropriate it is necessary to assess Leonie's needs. These can be looked at on a number of different levels. At the most basic level it is necessary to secure her safety. She has impaired mobility and is at risk of falling. She has in the past fractured her right wrist (in 1993) and injured her nose twice through falling. When crossing the playground at school, with help, she falls about 2-3 times a week. She is not able to appreciate danger. She has a lack of coordination and fine control. She, therefore, needs someone to watch out for, and, to some extent, watch over her. She is a vulnerable person, particularly emotionally, who needs a lot of attention and stimulation. She has a degree of wilfulness, wanting things to happen in the way she wants. She is argumentative and frustrated that she cannot do what other girls do. If she is to flourish she needs carers who can respond to those characteristics and help her to do and achieve as much as is realistically possible, by herself, rather than doing everything for her. This will involve planning activities for her both in and out of the house, discussing and agreeing those activities with her, and enabling her to take part in them. She needs motivation and encouragement. To the extent possible she needs to get out into the world. Without careful advance planning she may become agitated, angry and even aggressive.

The evidence

Mrs Rosemary Statham

17. Mrs Statham is a registered occupational therapist with over 30 years experience in working with people with disabilities and a great deal of experience in case management. She is now the Practice Head of Home Assessment and Advisory Services Ltd, whose work includes the assessment and establishment of individual care programmes for people with disabilities. In her report, after setting out information about Leonie, she recommended the rota care to which I have already referred. The figure of £ 77, 290 is derived from an original figure of £ 81,630. The latter figure covered:

(i) the cost of two individuals during the day (14 hours in all) at, predominantly, £ 8 per hour; but with an additional £ 1.50 per hour for unsocial hours;

(ii) an additional payment of the same amount for 35 hours for the Team Leader, who would co-ordinate arrangements on the ground; and

(iii) 7 nights of "sleep-in" duty at either £ 48 or £57 at weekends.

It also included provision for time for staff training. The reduced figure includes a deduction of an estimated 8 hours per week when Leonie may be at a Day Centre or the equivalent and when the carers will not be required. The figure of £ 2,688 for staff expenses covers the cost of taking Leonie out on trips and visits. It represents a 20% reduction of the previous figure (£70 x 48 weeks = £ 3,360), to take account of the fact that an average of 8 hours out of the 40 hours in which such trips are likely to occur is assumed to be when Leonie is at a Day Centre or the like (32/40 x £ 3,360 = £ 2,688). The figure of 3,600 is a reduction from what was originally claimed to take account of the fact that Leonie may still go on family holidays when Mr and Mrs Jones would bear some of the care. The figure is 24 days per annum for 2 staff.

Mrs Jan Preece

17. Mrs Preece's recommended residential care package involves one individual working for a week at a time, rotating with other individuals who will do the same. She made this recommendation on the footing that Leonie's need for physical care was low but her need for general supervision, assistance and support was high. In the autumn of 2004 she rang Mrs Sherry Pickering of CPA, whose services she had not previously used. Mrs Pickering agreed that that package would be suitable, subject to carrying out an assessment herself. Mrs Preece had assumed that there would be parental input, relieving the carers for 4 hours a week. Mrs Pickering's view, after assessment, was that the CPA care plan was the appropriate plan for Leonie.
18. Mrs Pickering is a Business Development Manager (part of which job involves care assessment) employed by Complete Care Holdings Ltd. Her evidence explains a number of details about CPA and features of the CPA care plan:

(a) CPA employs about 589 carers of whom 15% come from outside the UK. Their target figure (so to enable them to expand) is 25% .These are people qualified in their own country who must meet registered nursing standards and have a good command of English. They attend a five day general induction course run by CPA. If required CPA provides additional training in language skills. If, when a client such as Leonie sees the carer, it is apparent that the placement can go ahead, the carer will have training in relation to acquired brain injury before starting.

(b) CPA had at the time of the hearing 177 clients, of whom 67 were the subject of residential care and 110 the subject of hourly care. 20 of the 177 had acquired brain injury, 96 had spinal cord injury and the remainder had other disabilities.

(c) The carers are employed by CPA and must opt out of the Working Time Regulations; the residential carer is entitled to a 3 hour stand down time each day; and her "active" hours were intended to be 8 per day (the number of hours for which the carer is told she will be working).

(d) Mrs Pickering was assuming that a typical day would be one in which the carer would get up at (say) 0700 before Leonie woke at 0730 and that Leonie would go to bed at about 2100. In fact she now usually goes to bed at around 2200. If Leonie wanted to go out in the evening the carer would be entitled to a further break during the day to be provided by a relief carer.

(e) At one stage of her evidence she told me that the carers would expect to be undisturbed through the night but later qualified that by saying that they expected to get up once a night, for instance to put back bed covers or provide liquid.

(f) In her statement of 6^th June 2005 she had assumed that Leonie would probably go to a day centre during the weekdays, and that, if she did, she would be out of the house for up to six hours each day and would not need a carer during those hours. If that was not to be the case the rate would have to be increased to allow for the 3 hours respite per day.

19. Mrs Statham identified a number of difficulties with what was proposed which accounted for her rejection of it as a suitable arrangement for Leonie. I do not propose to enumerate them one by one since the extent to which I accept them will be apparent from what follows.

Conclusion

20. I have reached the clear conclusion that, subject to one further consideration, the care programme recommended by Mrs Statham is what is required and that the one recommended by Miss Preece is not appropriate. I have reached that conclusion for a number of reasons:

(a) The CPA care plan assumes that the carer will be "on duty" for something like 14 hours less a 3 hour break (unless Leonie goes to a Day Centre without her) but with only 8 "active hours". These are extremely long hours. The carer will in fact be responsible for Leonie all the time, and she will be on call at night. I do not believe that Leonie will receive the care and attention which is necessary if those looking after her have to work on that basis. In all care arrangements there is a risk that the carer, however well intentioned, may lose interest in or "give up" on the person for whom they are responsible because of the strain of the job, exhaustion (mental or physical), or other reasons. The CPA care plan seems to me to involve a significant risk of that happening. I do not regard it as a plan which is likely to be conducive to achieving the best for Leonie. That concern is heightened by the fact that if the carer is working one week on and two weeks off she will probably need to work for other clients in one or both of the two weeks off in order to earn a living wage.

(b) Under the CPA care plan the carers are to be paid between £ 55 and £ 75 a day depending on the individual. At 11 (14-3) hours a day that is equivalent to between £ 5.00 and £ 6.82 per hour, although it is agreed between the experts that the appropriate rate for a carer is either £8/£9.50 or £ 8.50 an hour. These are low rates, not much above the minimum wage. The combination of long "on duty" hours, low wages, and 24 hour responsibility is not likely to provide the required support for Leonie, nor is the rate of pay calculated to ensure that carers of an appropriate calibre are used. Even if, as Mrs Pickering suggested, there were only eight "active hours"^[3] the hours worked would comfortably exceed the 48 hours prescribed by the Working Time Regulations, from which it is currently possible to contract out, a situation that may well not last indefinitely

(d) The CPA plan has very little flexibility since the same individual is fulfilling the care task every day and all week.

(e) I have considerable concerns about the management of Leonie's care under the CPA plan. Under the plan proposed by Mrs Statham there is a Case Manager, employed on behalf of Leonie. There are two carers per day and a sleep-in carer. One of the day carers is the Team Leader, who can coordinate matters on the ground. Under the CPA plan there will also be a Case Manager employed on behalf of Leonie, and one individual carer per week. There is a line manager in Blackpool ("the independent living manager") and at the top of the line there is Mrs Pickering in Leek, Staffordshire. But the case manager cannot give directions to the carers or arrange cover if a carer is needed. There is no equivalent of the Team Leader.

(f) The plan recommended by Mrs Statham provides £ 1,000 per annum for training of carers arranged by the Case Manager together with 87 hours of pay for carers' training time, which would obviously cover not only new practices but training new carers. The CPA care plan does not incorporate anything as specific as that.

(g) In short there seems to me a real risk that, under the CPA programme, Leonie will be looked after by carers who are overworked, and not well paid or sufficiently trained and, possibly, with an imperfect command of English.

(h) Leonie is now nearly 19. She may well want to go out in the evening until late. Whilst that would be possible under the CPA programme, it does not fit in very easily with it.

(i) I am sceptical of the proposition that the CPA care plan would more closely replicate normal life. The reality is that Leonie's life is not and never can be entirely "normal"; and it seems to me that she is more likely to come closer to a properly organised and fulfilling life and to maximise her potential under the regime proposed by Mrs Statham

21. I should make it plain that in reaching the conclusion that a CPA care plan is not right for Leonie, I do not intend any denigration or criticism of CPA, who – I do not doubt – can and do provide a good service.

Day Centres

22. One of the issues that has arisen is the extent to which Leonie may be able to attend a Day Centre, particularly since the Defendants' initial calculations proceeded on the footing that Leonie would go to a Day Centre for five days a week. Mrs Martin, who is the Deputy Head of George Hastwell School and who had taught Leonie for several years, said of the availability of appropriate Day Centre provision in the area, I have no doubt accurately, "We do not have a lot of options sadly". Mrs Lynn Farrimond, who is in overall charge of Leonie's case management, investigated a number of Day Centres, and gave evidence about them as did Mrs Statham. I set out below my conclusions in relation to the suitability or otherwise of those centres:

(a) Jubilee House Day Centre is located in the centre of Barrow. 30 years ago it used to be a residential care home. It caters mainly for those with learning disabilities who have mental health problems (about 16 in number). No one under 25 currently attends and the main age range is between 30 and 75. I do not regard this as an appropriate centre for someone with Leonie's needs.

(b) Mill Lane Day Centre is situated on Walney Island, a short drive from the centre of Barrow. The building was purpose built about 40 years ago and caters primarily for adults with learning disabilities in the medium to high range. Some have challenging behavioural problems, which Leonie might find frightening. The Centre supports about 135 individuals with an age range from 19 to 65. I doubt that the Centre would be suitable for her. Mrs Farrimond described it as rather like an old fashioned school and Mrs Statham told me she was shocked to see that there were still centres like it, although it is right to say that it is the staff that run it who matter more than the buildings. If Leonie were to go she would need to have a carer with her if she was to gain any benefit from the activities there.

(c) Chatsworth Crafts is an organisation that provides workshops for woodwork and other crafts with opportunities in reading, writing and IT. There are currently some 60 people who attend, with a maximum of 45 at any one time. They tend to dip in and out of activities. It is a possible place for Leonie but she would need a helper.

(d) Community Action Furness is a charitable organisation which organises a number of projects aimed at improving the quality of life for young people of all backgrounds and abilities, including those with moderate learning difficulties. One group is a "Shine^[4] Group" which meets 3 days a week between 9.30 and 1200 and between 1300 and 1500 for art and craft activities. One half day session per week might be suitable for Leonie. A carer would be needed to get her there and collect her. Leonie might get something from this group, particularly from the social association that it could provide, although she would probably find her want of dexterity frustrating.

(e) Community Action Furness also operates Eureka Catering which involves working along outside caterers making or serving food in a community café. Leonie's physical limitations would probably rule her out for this and she would need 1:1 assistance.

23. I am in no doubt that it is wholly unrealistic to suppose that Leonie could or should attend at a day centre for 5 days a week so as to relieve her carers from the need to look after her when she does. At the same time I believe that she will be able to make some use of day care facilities. In the absence of any further or better estimate I accept the evidence of Mrs Statham, whom I found an impressive witness, that Leonie will probably have a pattern of "dipping in and out" of Day Centres, or the like, that would save 10 care hours per week over 46 weeks, but that there may be periods, whose duration is unpredictable, when she may not be prepared to attend for reasons which she may or may not explain. She has already reacted strongly against going to courses at Furness College without being prepared to say why. I also accept the submission that it would be appropriate to take an overall figure of 8 hours to allow for the fact that there may be periods when Leonie does not attend at all.
24. The further consideration to which I referred in paragraph 21 is this. Mr Feeny on behalf of the defendant submits firstly, that the claim for paid night care, which forms part of the package recommended by Mrs Statham, is unreasonable. It amounts to at least £ 18,408 per year in circumstances where Leonie is in all probability to be going to be living with or close to her family for many years. The claim in relation to accommodation is put forward on that footing. Mr Feeny suggests, first, that it is unlikely that, once any damages are awarded, £ 18,000 + a year will in fact be spent on such care. He contrasts the present with the Biesheuvel case where the facts were very different, the claimant being 68 with severe physical needs and where it was uncertain whether his partner would be with him for ever. Second, although Leonie's family are not bound to look after her, and the damages should not be calculated on the basis that they are under any such obligation, in practice they will do so and the damages should reflect that fact. It is not reasonable, he submitted, that the claimant's advisors should at one and the same time put in a claim based on providing a family unit together with a claim for future care that assumes no family contribution to such care. Accordingly he proposes a reduction of 35 hours per week for 46 weeks a year to cover both Day Centre and family involvement. If one takes account of both of these points the resultant figure is as follows:

Carers	£ 46,781.88
Case Manager	£ 6,750
Staff Expenses	£ 2,900
Holiday Costs	£ 4,200
Training/Risk Assessment	£ 1,000
Insurance	£ 84
Total	£ 61,715.88

Night time care

25. There is no doubt that Leonie cannot be left alone in the house at night, but the evidence as to how much care she needed during the night was not entirely consistent. Mrs Jones, who, I am sure, is not someone to over emphasize the amount of care needed, told me at one point in her evidence that Leonie will shout for her if she is cold or wants a drink and that she will go and put the covers back in place or give her a drink. Leonie cannot put the covers back herself, so that if she goes to the toilet someone must do this for her. Mrs Jones said that the amount of times this happened varied but it was about twice a week, although she also said that Leonie did not sleep through generally. In re-examination she estimated that 5 nights out of 7 Leonie needed something at night and that she would have to go in 1 or 2 times a night for that purpose. I accept that the care needed is something of that order of magnitude, albeit that I have the impression that that estimate is probably a little on the high side.
26. Whilst I see the force of the submissions made on behalf of the defendant I do not accept them. If Leonie was whole, she would not need, as she does, someone to get her up in the morning or put her to bed at night; or someone to see to her in the night when she needs help. She would be, in these respects, independent of her family; and they would not have to look after her, or see that she was looked after, in this way. I consider that an award of damages should put her, so nearly as one can, in a position where she is not dependent on her family for help and they are not morally beholden to her, as would be the case if I were to accept that her care package should be that recommended by Mrs Statham but with the night time care element stripped out of it. In addition I cannot assume that Mrs Jones will be available indefinitely throughout Leonie's life.
27. Nor do I accept that there is an unacceptable incongruence between the accommodation and future care claims. The accommodation claim does not involve the defendants paying for the family's accommodation. It provides a measure of compensation for the additional transactional and financing costs of the accommodation that will be incurred in order to deal with Leonie's needs, and is put forward on the basis that Leonie will be close but independent.
28. It follows that, in my judgment, the appropriate annual figure for future care costs from July 2006 onwards is that which appears in the second column of the table at paragraph 13 i.e. £ 91,958.20. The logical consequence of that will be that the case management costs for the year to July 2006 will be £10,427.50 for the first six months and £3,375.00 for the second making a total of £13,802.50.
29. I will hear Counsel as to the appropriate form of order.

Note 1   These figures were agreed up to the trial date and will need to be taken forward to the date of judgment.    [Back]

Note 2   In the event of periodical payments being ordered the Claimant seeks to invite the Court to reconsider the application of the Roberts v Johnstone formula in circumstances where there is not a significantly large enough future damages fund to draw upon to finance the purchase of the new dwelling upon the sale of the old.    [Back]

Note 3   If the work is treated as extending only over 8 hours the figures are £ 6.875 and £ 9.375    [Back]

Note 4   Supportive and Helpful Non-threatening Environment.    [Back]