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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		25 May 2007

1. This is a Claim for damages for the catastrophic injuries suffered by the Claimant when he was injured in a road accident on 21 September 2003 as a result of the First Defendant's negligence. The life of a very promising and talented schoolboy who was riding his bicycle home has been devastated by the criminally dangerous driving of the First Defendant, Mr McDonagh, who was travelling at well over 50 miles per hour in a 30 miles per hour zone while under the influence of crack cocaine. The First Defendant failed to stop, drove away from the scene and abandoned the vehicle. As he was not insured the Second Defendant ("MIB") has assumed responsibility. Primary liability is not denied. I will refer to 'the Defendant' except where specific mention of Mr McDonagh or MIB is required.
2. At the start of the trial, on the basis of a very careful and ably assembled Advice from Counsel, I gave the approval of the Court to the quantum of agreed items totalling some £2,905,500. Approval has also been given by the Court of Protection. This left three main issues to be decided :-

(a) Was there contributory negligence by the Claimant and if so what if any reduction should be made?

(b) How much should the Claimant recover for his future costs of care and case management?

(c) How much should the Claimant recover for the future cost of hydrotherapy?

I will deal first with the contributory negligence and then with damages.

Contributory negligence - facts agreed or not greatly in dispute

3. The Claimant Mr Adam Wakeling (who I will call "Adam" as he is so described in virtually all the papers) is a patient and sues through his mother Mrs Carpenter. He was, at the date of the accident on 21 September 2003, a 17 year old student at a sixth form college. He had done very well at GCSE, was expected to excel at A level and was also a talented musician who played three instruments.
4. At about 5.20 on a Sunday afternoon Adam was on his mountain bike starting the journey of returning from his girlfriend's parent's home on the Downs Estate in Amhurst Road in Hackney, London, to return to Brooke Road where he lived with his mother. Adam was alone and there is no evidence that he was in a hurry. The weather was fine and the roads were dry. Amhurst Road is, at this point, residential with houses and flats on either side. There is a 30 mile per hour speed limit. Adam needed to cycle up the steep incline of the driveway next to Blackdown House which is on the Downs Estate and then onto and across the pavement onto Amhurst Road. From the pavement he needed to cross the Southbound lane before turning right to cycle North towards his home. There are helpful photographs and plans of where the accident happened. There are spaces for vehicles to park on both sides of the road. At the time of the accident there was a white Transit type van parked immediately to the right of the exit from the flats. So Adam would have had to check that the road was safe to cross either before his line of sight was interrupted by the van or by stopping and, as the Defendant puts it, by treating the outside edge of the white van, which was about 2 metres wide, as though it had been the kerb.
5. Mr McDonagh was driving a blue Fiat Tipo approaching from Mr Wakeling's right, probably in the correct lane at a speed that reconstruction experts estimate between "high forties" and 57 mph. The Fiat struck Adam and his bike. It left locked offside and nearside tyre marks on the road surface, 28.7 and 27 metres long respectively. Adam was probably thrown by the force of the collision to a position some 30 metres from the beginning of the tyre marks. From a spot close to where Adam came to rest the vehicle created scratch marks on the road surface for a further 35 metres as it apparently pushed the bicycle, by then trapped beneath the car, along the road. The reconstruction experts agree that the first contact was between the car bumper and grille and Adam's right leg following which he went onto the bonnet, his head striking the windscreen. As his body continued to rotate from the impact Adam struck the roof as he went over the top of the car then fell to the ground.
6. Mr McDonagh did not stop but drove away from the scene and abandoned the car. He was eventually arrested for unrelated offences and initially pleaded not guilty to charges relating to the accident. Following the disclosure of DNA evidence Mr McDonagh pleaded guilty to dangerous driving, driving with no insurance and failing to stop. I have not seen the sentencing remarks of the Judge in the Crown Court but a transcript of Mr McDonagh's plea in mitigation concedes that "he was heavily dependent on crack cocaine" which had affected his skills on that day and that he had been "doing 20 over the limit", i.e. an admission that he had been travelling at 50mph at least.
7. The extent of Adam's injuries concerns damages rather than liability but I set these out now as they demonstrate the severity of the impact. Adam's injuries included

(a) An extremely severe diffuse axonal head injury with:

(i) haemorrhaging in the mid-brain;

(ii) subarachnoid haemorrhaging in and contusions of the left parietal lobe;

(iii) subarachnoid haemorrhaging in and contusions of the right frontal lobe;

(iv) bilateral frontal subdural haemorrhaging.

(b) Serious injuries to the spine including:

(i) a fracture of the posterior facet joint of the fifth/sixth cervical vertebra with the fracture line extending into the foramen;

(ii) a fracture of right transverse processes of the seventh cervical vertebra;

(iii) a fracture of right transverse processes of the first thoracic vertebra;

(iv) a fracture of right transverse processes of the second thoracic vertebra.

(c) A severe right brachial plexus injury.

(d) Multiple orthopaedic injuries including:

(i) Fractured right clavicle.

(ii) Fractured first right rib with associated haemopneumothorax.

(iii) A compound fracture of the right radius and ulna.

(iv) A fracture/dislocation of the pelvis with diastasis of the symphysis pubis and with fractures of the right sacro-iliac joint.

(v) Serious left knee injuries including a ruptured anterior cruciate ligament, a ruptured posterior cruciate ligament, a ruptured postero-lateral capsule, and a fractured medial femoral condyle.

Contributory negligence – the law

8. The relevant test is not in dispute and a legal issue, on the facts of this case, would arise only if I were to find that Adam had been to some degree at fault and I had then been concerned with an evaluation of the two separate aspects identified by Lady Justice Hale in Eagle v Chambers [2003] EWCA 1107, first the respective causative potency of what the parties have done and secondly their respective blameworthiness. The test is set out in Section 1(1) of the Law Reform (Contributory Negligence) Act 1945. The Defendant must establish on a balance of probabilities first that the Claimant was at fault, secondly that the fault was causative of the injury and thirdly that it would be just and equitable, once respective responsibility for the damage has been assessed, for the Claimant's damages to be reduced.
9. The Defendant claims that the collision was partly caused by Adam's negligence, alleging that he rode into the road from behind a van and into the path of the Fiat, failed to wait until the Fiat had passed before riding into the road, and failed to keep a proper lookout or to ensure it was safe to cross before attempting to do so. A further claim of contributory negligence based on Adam's failure to wear a cycle helmet was not pursued at trial.

Contributory negligence – evidence

10. Adam could not give evidence because of the injuries caused to him by Mr McDonagh's negligence. Even though contributory negligence can only be established if the Defendant proves it Mr McDonagh did not give evidence. Ms Gumbel QC has drawn the court's attention to cases about the drawing of adverse inferences from a Defendant's failure to give evidence in a civil case. Mr Methuen QC for MIB suggested that Mr McDonagh's absence makes no difference because his position is already conceded to be as bad as it could be on all relevant points. He might however have been able to state what happened when the car first came to a stop, an issue relevant to the question of the speed at which the car was travelling on impact. Furthermore cross-examination of Mr McDonagh about some of the points put forward in relation to contributory negligence by one expert, Dr Searle, may have been instructive. Of course the Court tries the case only on the evidence before it without speculating about what else might have been available. The absence of the Defendant merely highlights the paucity of evidence available to discharge the burden of proof.
11. There was one witness of fact on this issue, Ms Dawn Lansdown, who lives in Eastdown House, Amhurst Road and who was walking along the footpath between Blackdown House and Amhurst Road when she saw Adam cycling up to the junction. She was with her young son and daughter. Ms Lansdown noticed that Adam was standing upright on the pedals but had stopped peddling and was looking, according to her witness statement, left and right although in evidence she said that she could not remember him looking left. In cross-examination some emphasis was placed on the fact that in an earlier statement Ms Lansdown had mistaken the blue car for another one and had suggested that the driver, who she recalled as being of a different race from McDonagh had returned to the scene. She was also asked about a large container visible in one of the photographs which would it seems have affected her view and would have prevented her seeing the last few feet between the driveway and the edge of the pavement. Ms Lansdown was an honest and frank witness whose recollection was understandably limited. She probably did see Adam looking to the right standing on his pedals without continuing to turn them but it is unclear for how long he would have continued to do that or whether when he did so he had a clear view of what was coming down the road from the right.
12. Police Sergeant Paul Tydeman is an experienced and highly qualified Senior Accident Investigator for the North East London area. He carried out a careful assessment of the accident recording his findings, which took some time to finalise, in a Collision Investigation Report. The Defendant objected to the admission of some of Sergeant Tydeman's evidence as being "expert" but his main conclusions were not open to serious challenge. He concluded that Adam moved about 2.5 metres from the edge of the van to the impact and this would have taken between one and two seconds. He considered that the driver reacted promptly to Adam's movement striking him at or close to the beginning of the locked tyre marks. The marks were angled slightly to the right resulting in the car going into the "wrong" Northbound carriageway. The speed was between 48 and 56mph at impact. The car skidded for 28.7 metres but did not stop at the end of the skid marks. The cycle was trapped under the front of the car and pushed further down the road. The windscreen was pushed into the vehicle by the impact. Sergeant Tydeman concluded that if Mr McDonagh had been travelling at 30mph he could have slowed his vehicle almost to a stop before it reached the point where Adam was crossing his path and the accident might have been avoided. He considered that Adam either did not see the Fiat or looked and misjudged the speed of the oncoming vehicle. Amhurst Road has numerous potential hazards such as entrances to high occupancy dwellings. The fact that Mr McDonagh ignored these hazards indicated that his driving was well below an acceptable standard.

Contributory negligence – expert witnesses

13. The reconstruction evidence was, through no fault of those concerned, either inconclusive when the views of both experts were evaluated or of limited relevance to the crucial question of how far Adam checked the road effectively before moving out to turn right.
14. The Claimant's expert was Dr Bryan Chinn, formerly head of and now a consultant at the Vehicle Safety Department at the Transport Research Branch. Dr Chinn obtained a PhD from Brunel University and has chaired a number of committees and produced academic work in the areas of safety helmets, head injuries and accident investigation. He saw the Fiat's likely approach speed as 57mph with an impact speed of 55, adopting the same approach as Sergeant Tydeman. He considered that that speed was consistent with the damage to the car. In his view the impact location was probably 0.5 metres before the beginning of the tyre skid marks. Dr Chinn put the likely distance between the point at which Mr McDonagh first saw Adam and the collision spot as between 41 and 54 metres. Dr Chinn's own assessment of Amhurst Road is that the maximum safe speed was about 25 mph. On Dr Chinn's assumptions and conclusions if the Fiat had been travelling at or below 30mph the accident would almost certainly have been avoided. Dr Chinn produced research that has shown that pedestrians (and it is suggested, by analogy, semi stationary cyclists) tend to use distance rather than speed to judge if it is safe to cross. This can of course lead to grave misjudgement if a vehicle is travelling at a faster than expected speed.
15. Dr John Searle is a Chartered Engineer who obtained a doctorate at University College London while working at The Research Group in Traffic Studies. He has had a distinguished career at the Motor Industry Research Association of which he became Scientific Director. He has chaired a variety of committees and contributed numerous scientific papers. Dr Searle's analysis leads him to conclude that the Fiat was travelling at a speed in the "upper 40's". Dr Searle's expertise in the calculation of speed is probably greater than that of the other witnesses. In this case he had assumed that the Fiat had stopped, or nearly so, at the end of the tyre marks. The siting of the scratch marks and the fact that Adam came to rest close to the end of the tyre marks suggest that the car had not come to a stop at the end of the skidding, Against that Dr Searle points out that the skid marks were parallel at the point where they stopped thus suggesting that the Fiat had halted at that point. Dr Searle concludes that Adam and McDonagh were in each other's view for too short a time for either of them to take action by braking so Adam was struck at the speed at which the car had been travelling. Had the car been travelling at 30mph when a cyclist rode out the driver would still not have had any opportunity to do more than get his foot on the brake pedal. The expectation of injury for Adam in a 30mph collision, would have been more or less what he did sustain in this accident.
16. The last of Dr Searle's five conclusions is this:- "I do not think the Court will need me to note that a speed in the upper 40's is too fast to drive down Amhurst Road, or that it is hazardous to ride a cycle out from behind a transit van without looking. I mention this only because Sergeant Tyderman concludes that Mr McDonagh's driving fell well below an acceptable standard, but omits to draw a similar conclusion in respect of Mr Wakeling".
17. Dr Searle produced some helpful photographs to indicate that someone standing on the pedals of a mountain bike will have a line of vision slightly lower than someone standing up. His photographs also show that at points coming up the slope of the driveway to the pavement the line of sight will be obstructed by vegetation, brick, pillars and other obstacles. Dr Searle added the view that if Adam had looked out down the road from his bike rather than stopping at the white van to survey the scene this was contrary to the Highway Code, a point relied upon by the Defendant as I shall mention shortly.

Contributory negligence – Defendant's submissions

18. The Defendant submits that damages should be reduced by 25% to take account of Adam's contributory fault. MIB says that it is clear that Adam went out into the road without stopping to look by the white van. MIB points out that whether one accepts Dr Chinn's or Dr Searle's assessment of the speed a driver would have had less than a second to react when Adam came out into the road from behind the van. At the point when Adam should have looked the car was probably less than 25 metres away but could not have been more than 45 metres.
19. The evidence of Ms Lansdown was inevitably somewhat vague, but clearly inaccurate given her original recollection about the colour of the car and similar matters. It was affected by the presence of the container which limited her view. If her evidence is accepted and Adam did look out then he would have been doing so too early and without the road sufficiently in view.
20. The Highway Code contains rules for pedestrians Paragraph 14 of which reads;- "14 parked vehicles if you have to cross between parked vehicles, use the outside edges of the vehicles as if they were the kerb. Stop there and make sure you can see all around and that the traffic can see you. Never cross the road in front of, or behind, any vehicle with its engine running, especially a large vehicle, as the driver may not be able to see you". Mr Methuen submits that whatever uncertainties there might be about what Adam was doing on the way to the kerb he failed to look when he got there in breach of the code. If he had looked he would certainly have seen the oncoming car and this human lapse on his part shows a want of care which the Court should take into account.

Contributory negligence – Claimant's submissions

21. The Claimant submits that the First Defendant was driving at 57mph intoxicated by cocaine and with his skills diminished. Adam was looking to his right as he cycled up the exit to the estate and is likely to have continued to look out in the manner seen by Ms Lansdown. Dr Chinn's photographs show that Adam would have had a good view down the road but those taken by Dr Searle are questionable. Adam almost certainly misjudged the distance because of the high speed of the car. Adam adopted a practical everyday approach to riding a cycle in London and should not be held to have been at fault. Ms Gumbel places some emphasis on the case of Burridge v Airwork Limited [2004] EWCA Civ 459. That case is a helpful illustration for a trial judge of the approach to adopt and what Lord Justice May says about "practical bicycling" is instructive. However Mr Methuen is right to submit that it is a case which turns on its facts which are different from those with which I have to deal. Ms Gumbel also relies upon three cases beginning with Powell v Phillips [1972] 3All ER 864 in support of the proposition that a breach of the Highway Code, if established, creates no presumptions of negligence calling for an explanation but is just one of the circumstances on which a party can rely in seeking to establishing the negligence of the other. Moreover Ms Gumbel submits that since the passage relied upon by MIB concerns pedestrians it has no application in this case.

Contributory negligence – conclusions of the Court

22. Despite the extensive expert evidence that was rightly brought forward by the parties by the end of the trial of this issue the question was a relatively straightforward one. It is for the Defendant to establish contributory negligence. There is no evidence from Mr McDonagh and the Claimant has been unable to tell the Court what happened. The only witness of fact is Ms Lansdown whose recollections are of limited help. This is understandable for there was no reason for Ms Lansdown to pay particular attention to uneventful matters in the period before a very sudden accident. I accept her evidence that when she saw Adam he was standing on his pedals, partly no doubt to go up the hill but also no doubt to look right down the road. Although doubt must remain it is likely that he would have continued to look down the road as he cycled towards the pavement. Adam was in no particular hurry. He was alone and not, for example, showing off with friends. He was alert and, unlike Mr McDonagh his judgement was not impaired by drugs or alcohol. He was experienced in the dangerous craft of cycling in London. I would have expected him to continue to look out. It seems clear that Adam did not look before moving out from behind the white van. If he had done he would have seen the oncoming Fiat. In those conditions it seems very unlikely that Adam would have come out from behind the van without having had a close look up the road beforehand. It would be contrary to the simple and deep instinct for self-preservation and the intuitive response which is quickly acquired by anyone of any age beyond early childhood when cycling on London's roads.
23. In these circumstances I do not need to make detailed evaluation of the expert evidence since there is little or no difference about these essential facts. The conclusions the experts draw from their evidence are necessarily somewhat speculative and thus less valuable than direct testimony of fact would have been. It seems to me however that it is likely that Mr McDonagh was travelling at the higher end of the estimated speeds. Dr Searle's estimate appears to be offset by the likely significance of the scratch marks and the position at which Adam landed. The fact that Adam's injuries could have been even more severe is equivocal. Dr Searle's estimate is lower than that freely volunteered by Mr McDonagh's counsel when mitigating in the Crown Court on the basis of instructions when his client did not give evidence. Such mitigation would be an unlikely forum for an unnecessary admission against interest.
24. Even if one accepts that Paragraph 14 of the relevant section of the Highway Code is of application to cyclists as well as pedestrians the provision has to be seen in context. First there are obvious dangers in someone who is pushing a bicycle taking an exploratory look from behind a van because retreat is much slower than it would be for a pedestrian. Secondly if it were a contravention of the Highway Code it would have to be seen in the context of what seems to me the likelihood of Adam having taken adequate steps to check the road before reaching the van. Thirdly any breach of the Highway Code is relevant but not determinative, as Ms Gumbel points out, Dr Searle's re-emphasis in evidence of his views of the significance of the Highway Code was beyond his role. Both experts were very helpful. In particular Dr Chinn's open mindedness and recognition of the possibility of his own fallibility were reassuring.
25. Although I conclude, looking at the limited evidence available, that Adam probably took adequate steps to look out before coming behind from the van but was deceived by the speed of the oncoming car the issue is whether the Defendant has discharged his obligation to show that Adam was in some respects at fault. That is an obligation which he, or rather MIB, has been unable to discharge on the evidence available. The claim for contributory negligence therefore fails.

Damages- background

26. Before turning to the two main issues that divide the parties I need to set them in the context of the agreed damages and of the situation into which Adam has been placed.
27. The approved agreed damages are as follows:-

ITEM	AMOUNT
Pain, Suffering, Loss of Amenity including interest	225,000
Total of special damages inclusive of interest	116,000
Future Losses
Care & Case Management
Physiotherapy	75,000
Hydrotherapy
Speech & Language Therapy	270,000
Occupational Therapy	40,000
Aids and Equipment	200,000
Accommodation	725,000
Travelling Expenses	100,000
Assistive Technology	100,000
Earnings	600,000
Holidays	120,000
D.I.Y & Gardening	33,000
Miscellaneous additional expenses	71,500
Medical Expenses	50,000
Court of Protection & Receivership Costs	175,000
Education Costs	5,000
Total of future losses	2,564,500
Summary
PSLA	225,000
SDs	116,000
FLs	2,564,500
Total	2,905,500

28. The position in which Adam has been left is summarised in the Advice on Approval as follows:-

(a) a significant degree of insight into his condition (he is extremely distressed by the First Defendant's behaviour, the loss of his girlfriend, of his music, and of his home);

(b) extremely serious cognitive dysfunction (although with significant retained comprehension);

(c) severe physical limitations:

(i) He has no verbal communication ability.

(ii) He has no functional use of his right arm, hand or fingers.

(iii) His left arm, hand and fingers are substantially limited by spasticity and ataxia.

(iv) He has no useful function in his lower limbs.

29. More specifically the physical consequences of the brain injury include:-

(a) deformity of the cervical spine due to spasticity of the muscles on the left side;

(b) marked spasticity of the left arm with residual flexion deformity at the left elbow;

(c) poor postural/trunkal control due to spasticity;

(d) severe spasticity throughout both legs.

In addition, as a result of the injury to the right brachial plexus, which was severe, Adam's right arm and hand are functionless yet he experiences significant neurogenic pain in that arm.

Developments since the accident

30. After the accident Adam was admitted to the Royal London Hospital in a coma. After about a month he was transferred to the Homerton Hospital and after a further two months to the Royal Hospital for Neurodisability in Putney. He made gradual progress towards his current state. In March 2005 he returned to the Homerton Hospital and stayed there, except when having surgery to his ankles, until November. At that point he was moved to The Raphael Centre a specialist rehabilitation unit in Tonbridge, Kent.
31. Adam has made significant improvements since moving to The Raphael Centre and these are illustrated by updates to the statements of his mother Mrs Carpenter, and of Ms Allen, a highly qualified and experienced nurse who now runs a case management company and has been able to observe Adam since January 2005. Both Mrs Carpenter and Ms Allen gave evidence and, with the other witnesses, provided a helpful picture of Adam's condition and every day life.
32. Mrs Carpenter spends a substantial amount of time with Adam averaging perhaps 4 to 5 hours a day about 5 days a week sometimes less. Adam recognises his mother as well as other people but his short-term memory gets confused. He is sometimes very co-operative but on other occasions not. He is able to use his left arm to eat and drink small quantities at a time. The function of his left hand is limited by ataxia. He is encumbered by splints. He uses the thumb of his left hand to work a letter board which his mother or someone else holds up. In this way he can send short messages which his mother and others who know him well comprehend better and quicker than those who see him less often. He can communicate complex points sometimes with pockets of thought that are unrelated. Adam's communication is limited. He is not only unable to speak but non-verbal communication such as a gesture, bodily language and facial expression is barely available. Although Adam's intellectual ability and expertise with the letter board suggests that he will do well with computer assisted communication, progress has so far been slow. Adam is able to use computer games to some extent as well as a radio and a CD.
33. His left hand shakes when put under too much stress. He feels pain in his right arm and shoulder but has no movement. The right side of his body is emaciated. He can tolerate sitting in a wheelchair for lengthy periods, sometimes all day. He can stand in a standing frame for about half an hour with assistance. While in the wheelchair he can lift his legs below the knee. However his legs are subject to spasms and can get locked out of place. He is prone to slide down his wheelchair. Adam is relatively continent (although there have been recent signs of progress being lost). He moves his bowels after being lifted onto a commode by two helpers. He uses a bottle when urinating but needs assistance with this. Adam has a number of scars which are all healed. His senses of smell and taste have not been affected.
34. With a developing ability to communicate Adam expresses his unhappiness for his condition, his feelings towards Mr McDonagh and the loss of his girlfriend. On occasions Adam declines to co-operate, tries to lash out and understandably displays other "behavioural" signs resulting from his distress about his plight. But, these need to be seen in context. Adam also has a considerable commitment to making the best of things and a personality and a developed sense of humour which those who meet him, including those experts who have examined him for this case, find attractive and impressive. Adam has repeatedly made it clear that he wishes to have a degree of independence through living in his own home. He has contact not only with his mother but with his brother, sister and other members of the family. He is also committed to all the initiatives being taken to provide him with rehabilitation, therapy, education and recreation. He seizes these opportunities and works hard at them.
35. Adam's intellectual capacity is accompanied by an ability to initiate interaction and to express his needs and how they might be met. Professor Beaumont, Consultant Neuropsychologist, who was not in court as his evidence was not in dispute concluded that Adam "will be capable of playing some role in the management of his own care and be able to develop activities which are satisfying to him within the limits of his disability. However Adam's intellect is still impaired". As Professor Beaumont puts it he "continues with severe impairments in many aspects of his cognitive function, his retained memory capacity is severely impaired as is his capacity for thinking and reasoning."
36. With this broad summary of the very extensive and helpful material available about Adam's condition, all of which I have had regard to in forming views about the outcome, I turn to the main outstanding issues. There are ten experts for the Claimant and nine for MIB, the majority of whom it was unnecessary to call to give evidence. I will address explicitly only the reports and evidence which relate directly to disputed issues.

Life expectancy/multipliers

37. I do not need to evaluate the evidence on this subject since at trial a multiplier of 28 was agreed.

Multiplicand for care and case management in Adam's own accommodation

38. MIB accepts an obligation to compensate Adam on the basis that his wish to live in his own accommodation is met. Having been shown some of the relevant authorities I consider that this was an appropriate concession by the lawyers since the Court would otherwise inevitably have concluded that Adam had the right to his own accommodation. The dispute is limited to how much that care and case management will cost. Adam's case, based on the assessment of Ms Sargent, produces a cost of £215,217 per annum plus an extra £2,400 for initial case management in the first year. The figure for MIB is £118,956 plus an extra £2,700 in the first year, based on the report of Ms Makda. Although the experts differ on some 14 items the most significant are about the number of hours of day and night care per week. Ms Sargent proposes two carers throughout the day and at night recommends a waking carer in addition to one who sleeps-in. MIB proposes one full-time carer during the 14 hours of day time with a second carer for 6 of those hours. At night MIB proposes a sleep-in carer but with an allowance for a waking carer for four weeks a year to cover potential illness or other emergency.
39. The question of hours is not simply a choice between the views of competing experts. There is no dispute that Adam requires two carers for all transfers and will continue to do so for the rest of his life. Dr Foster, MIB's own neurology expert, says this:-

"While Mr Wakeling has clearly made significant progress at the Raphael Centre, any further improvement, whilst it may improve Mr Wakeling's quality of life, will not affect his level of dependence in my view. He will remain a wheelchair user and will never be able to transfer independently. He will require a hoist for transfers indefinitely. He will require a 24 hour care package. While I would defer to care expertise in this regard, he will require two carers for his waking day and probably one waking and one sleeping night carer overnight because of his requirement for turning...."

Adam's neurology expert, Professor Barnes, shares that view and concludes, again subject to a care expert's assessment, that two carers will be needed for transfers and that there will be a requirement for sleeping and one waking carer at night mainly so that he can be turned every 3 hours or so. This picture is consistent with the assessments carried by The Raphael Medical Centre, where Adam currently lives, which concluded that "Adam requires two nurses for his transfers. He also requires two staff for moving and handling in bed". The Centre records that Adam's skin is very sensitive and needs special attention, particularly in areas where he wears splints on his limbs. As a result he needs to be turned at night every 3 hours and re-positioned during the day for the same reason. The need for two day time carers was also expressed by Ms Jill Allen the case manager who has worked with Adam for the last two years. Ms Allen is an experienced professional who was introduced to Adam and his family through the kindness of MIB.

40. There is no dispute about the reasons why Adam needs two carers at times. He is some 6 foot 3 tall and prone to involuntary movements and spasm. He may need to be placed on his commode at short notice. When occasionally incontinent he needs washing and changing. His painful right arm needs to be protected while being moved and is sometimes prone to lash out aggressively through frustration. In order to meet his requirement for a full and active life, without which he is prone to become agitated, Adam needs access to a wheelchair, computer station and a variety of other equipment which he will wish and expect to be able to be moved to within reason when he wants. Ms Sargent and Ms Filson, Adam's physiotherapy expert, consider that he needs two carers when being carried in a vehicle, one driving and the other dealing with re-positioning and other needs during a journey. Ms Makda considers that with the right equipment only one carer is needed at least on short journeys.
41. There is also limited disagreement about the position at night. Adam's need to be re-positioned every 3 hours or so for comfort, postural management and skin integrity is broadly accepted. It is not disputed that Adam needs to be positioned with cushions and blocks which have to be removed and replaced when he is turned. Similarly it is accepted that Adam sometimes has incontinence accidents at night requiring the bed to be changed. Ms Allen and Ms Sargent say that this cannot be achieved by one carer using the glide sheets proposed by Ms Makda.
42. Ms Sargent is a registered general nurse with 28 years experience of patient care. She has wide experience of injuries of this kind and is at present a director of a national care consultancy which offers care management services for clients with profound disability. She has visited Adam on various occasions since June 2005. Her recommendation as regards hours of care at day and night are disputed by Ms Makda. Ms Makda is also a highly experienced care and occupational therapy expert who now works for Care Providers Limited. Her initial training was as an occupational therapist. Ms Makda accepts that Adam will require two carers for all moving and handling tasks during the day time but believes that all re-positioning in his wheelchair and bed can be undertaken by one carer making use of the range of equipment that has been recommended including a specialist turning bed, a reclining wheelchair and the use of glide sheets. A tilt in space wheelchair at an angle with safety belts should prevent Adam from slipping out. For this reason she recommends a second day time carer limited to 6 hours a day. She accepts however that two carers are needed for lifting and hoisting. In cross-examination she also accepted that the 6 hour figure might need to be adjusted upwards. Ms Makda was asked how Adam was to be transferred during periods of time when only one carer was available. As regards education, recreation and physiotherapy Ms Makda thought this could be accommodated within the 6 hour regime particularly once Adam was at home and the timetable would be organised to suit him not to fit in with the requirements of an institution caring for a number of different patients. When asked what was to happen should Adam have an incontinence accident or need the commode outside the 6 hour period Ms Makda felt this need could be accommodated by regular habits and an organised diet.
43. As regards the position at night Ms Makda felt that with a turning bed programmed to provide pressure relief as required, and any other needs could be provided by one carer. She felt that the practice of turning Adam every 3 hours was to a degree hospital routine rather than a specific need for Adam. Ms Makda noted that Adam generally does not wake up at night and that there was no need to disturb him. It was on the basis of Ms Makda's evidence that Mr Methuen for MIB submitted that Adam's claim depended upon an unnecessarily cautious approach. Once Adam develops his own settled routine outside the standardisation of an institution matters of behaviour should become less and diet more constant. The provision of equipment particularly as regard bed, mattress, wheelchair and splints should make a significant difference and Ms Makda's occupational therapy experience gives her views particular weight. The proposals put forward on Adam's behalf were likely to result in demotivated carers often having very little if anything to do.
44. Ms Gumbel contrasts Ms Makda's evidence with the other assessments to which I have referred, discounts the unproved advantages to be provided by new equipment and places particular emphasis on the need for Adam to take part in all the activities he can, something which he strives to do at present. Restricting Adam's care regime in effect to 6 hours a day will restrict his quality of life and his independence.
45. The legal approach is not in dispute having been restated by the House of Lords in Wells v Wells [1999] AC 345 carried through by the Court of Appeal in Sowden v Lodge and Crookdale v Drury [2005] 1 WLR 2129. The Court of Appeal in effect reiterated the principle that the court is first concerned not with whether other identified treatment is reasonable but whether that chosen by the Claimant is reasonable recognising that a Claimant or those looking after him are entitled to make a choice. This is an aspect of the basic principle that a Defendant is obliged to put the Claimant back so far as money can, into the position he would have been in but for the negligence.
46. In my view the answer is clear. Adam will never enjoy more than a few fragments of the existence he had before and could have looked forward to. There is no doubt that Adam would survive and might be content for a good proportion of the time should the regime proposed by Ms Makda be in place. He would however be subjected to considerable constraints on his activity and restrictions on the time of day when he could have access to facilities he needs or would enjoy. From time to time he would be beset by embarrassing incontinence accidents. The six hour allowance for two carers proposed by MIB would not extend much beyond what was needed to get Adam up in the morning and to put him to bed at night. Similarly Adam would survive and no doubt be alright for a lot of the time with the one sleeping carer proposed by Ms Makda. But that is not the point. The obligation upon the Defendant is to provide not simply what is necessary for Adam to survive but what he reasonably requires to have proper access to the very limited opportunities available to him. In order to provide Adam with what he reasonably requires it may well be that from time to time the provision of care available is not utilised to full capacity. But that potential waste of resource is something the Defendant should bear given the manifest unfairness to him of having to save money by imposing unnecessary restrictions on his enjoyment of a very limited life. Every case turns on its own facts but I am reassured that my approach appears to be consistent with that taken by Mr Justice Lloyd Jones in A v B NHS Trust [2006] EWHC 1178.
47. The overall picture of Adam's needs and requirements presented by the Claimant is a fair one and supported not only by its experts, but to a degree by the Defendant's experts and also by the approach of The Raphael Centre. The view of the Defendant that any limitations on their approach can be overcome by, for example, extending the 6 hours is attractive only in a sense of providing an opportunity for compromise. Extending the hours when two carers are available during the day progressively reduces the problem but never eliminates it.
48. The Defendant's proposal for the night time involves some risk and does not reveal the Claimant's approach as extravagant or unreasonable. Adam does not just turn in at night but needs to be carefully arranged with cushions and blocks and his splints have to be adjusted. His skin is vulnerable. He has accidents with continence. All these problems are current and real as the records of The Raphael Centre (where two carers attend to Adam at night) establish. The evidence indicates that the turning and other assistance requires two people. Other contingencies may arise at any time requiring two carers, and Ms Makda's view that this large man can be properly cared for by one carer assisted by a range of equipment seems optimistic.
49. I therefore consider that both the day time and the night time proposals made on behalf of Adam are reasonable.

Future Hydrotherapy

50. Although it is common ground that hydrotherapy is a legitimate requirement for Adam there is a difference between the parties about how this should be provided. MIB suggests that Adam can reasonably obtain hydrotherapy in a public pool but it is claimed on his behalf that he requires his own pool at home. I explain briefly what the process involves and what it means to Adam as this is relevant to deciding between the different regimes proposed.
51. Ms Gumbel cites medical literature which explains the importance of hydrotherapy as part of a multidisciplinary rehabilitation programme to avoid the development of muscle contractures and joint changes. Professor Barnes and Dr Foster agree that hydrotherapy is useful and that Adam should benefit from it. Mr Renju Varghese, the Physiotherapist who currently treats Adam, testifies to the benefits of hydrotherapy. He explains a process by which Adam is brought to the pool in his wheelchair. Two carers transfer him to a trolley via a hoist. He is laid flat on his back on the trolley, changed, showered and placed in the pool. Once in the pool the trolley is removed and Adam is secured using floats before spending half an hour in the pool. The exercise sessions are staggered but between these Adam is encouraged to float using the floats. He is also encouraged to stand which he can do for 10 minutes without support. During that process his position is adjusted and efforts made to overcome his scoliosis. Mr Varghese says:

"Adam really seems to enjoy the pool. Prior to his injuries he was a lifeguard. Adam never says he is tired and never says he wants to get out. He fully participates in all the exercise programmes".

Adam is then hoisted out of the pool using the trolley, showered, dried, dressed and lifted back into his chair.

52. The evidence on Adam's side is principally that of Ms Filson, a highly qualified and very experienced physiotherapist. She has been in practice since 1978 and closely involved in treating acute and chronic patients ever since. She has extensive experience as an expert witness. It is her view that Adam would benefit from continuing to be immersed in warm water on a regular basis, if possible every day. The benefit of exercise in the water would include requiring Adam to stand up with consequent benefits for his lungs, kidneys and bones. In her view the benefits of aquatic physiotherapy include relaxing a patient for the whole of the rest of the day. She proposed a pool large enough for Adam to move about in with support from two carers, say 10 feet by 8 feet and 4 feet deep, with water temperature maintained at between 32 and 34 degrees C. The pool would need an overhead hoist. She accepted that physiotherapy would require a physiotherapist who could be brought in to assist but some of the therapy could be carried out by trained carers. Her overall view is that :-

"if an appropriate facility is not available to him locally, i.e. either at his current residential placement or close to his new home, then I believe it would be reasonable to allow costs for installation of a hydrotherapy pool …".

53. That view is taken forward by Ms Allen, the actual Case Manager, who has researched the availability of hydrotherapy in the Brighton area where Adam proposes to live. Her conclusion is simply that the six potential public pools are either likely to be too far away, or have hoists which are either inadequate or non-existent, or for other reasons be inaccessible to Adam. Ms Allen presented a rather bleak picture of Adam being driven some distance to have the benefit of therapy in a pool all or much of which would be lost in the discomfort of the journey home, particularly in winter.
54. The MIB's expert is Mrs Ruth Obeten, a Chartered Physiotherapist of considerable standing and experience. She observes that

"Adam is said to enjoy exercising in warm water, and this seemed to be so when I watched him in the pool at the Raphael Centre"

and she recommends that provision be made to allow him to attend a local pool for hydrotherapy for 16 sessions per year. In this way he would have weekly hydrotherapy for the four summer months and there would be less likelihood of him catching a chill by having this treatment during the winter. She recommends that this take place in an established pool where there will always be professional personnel and proper pool maintenance. As she puts it:-

"This will ensure that his time in the pool will have a purpose and be spent constructively as well as for enjoyment".

She doubts the feasibility of finding a physiotherapist and another person with the necessary training experience to go to a domestic pool regularly over many years. She has doubts about pool maintenance at home and suggests that the social aspects of going out for therapy are important. She has concerns about hygiene and maintenance with a pool at home. Having regard for the need and wellbeing of both Adam and his carers her view is that he should attend a good sized, well maintained pool where he can exercise with the help and supervision of appropriately qualified and experienced therapists. It is common ground that the hydrotherapy will involve two people in constant attendance upon Adam - although MIB's experts considered that one of these should always be a qualified physiotherapist.

55. Mrs Obeten helpfully produced a list of five pools in the Brighton area providing hydrotherapy and she and Ms Filson were examined and cross-examined about the facilities provided by each, in particular the nature and availability of the hoists and the length of the journeys involved. Although both witnesses did their best to help, this does not seem to me a useful exercise. The information available to each was second-hand, and of limited help since we do not yet know precisely where Adam is to live. Mrs Obeten agreed with Ms Filsen about the nature and benefits of aquatic physiotherapy. She considered that the extent of pool maintenance had been under-estimated. She felt that once Adam was living in his own home hydrotherapy would not loom as such an important matter. It would be pleasant for him to go out to do hydrotherapy in the summertime and there were always other forms of exercise available.
56. The cost of installing and maintaining a pool in Adam's house is not in dispute and forms part of MIB's case as it submits that the expense is disproportionately high. The agreed cost of installation is £132,817 from which is deducted £15,000 for capital enhancement leaving £117,817. Annual maintenance is agreed at £4,000 which with the agreed multiplier reaches, as I understand the position, a total of £224,222.
57. The submissions of the parties reinforce the views expressed by their experts. Ms Gumbel emphasises what she sees as the illogicality in recognising that hydrotherapy is beneficial in the summer months but denying it to Adam in the winter. Mr Methuen emphasises the availability of expert professional help constantly in a public pool and the attractions of a larger facility without maintenance problems providing a constructive outing for Adam on a regular basis.
58. The issue, again, is not which of these competing regimes is the most reasonable or suitable, but whether the choice made by and for Adam is a reasonable one and not extravagant. The therapeutic benefits to Adam of a pool are common ground and, on the evidence, the more readily and frequently available this facility is the better it will be for Adam's health and morale. He was an outdoor person, a surfer and a keen swimmer. It seems to me unreasonable to restrict his access to hydrotherapy to the summer months. I am not convinced that maintenance of a pool at home will be a problem. Adam and those helping him are able to provide for outings and for social contact when they seek it without the need to travel to a public pool. Ms Gumbel's arguments seem to me compelling, apart from the suggestion that it would be unreasonable in principle for Adam to return to an institution for hydrotherapy.
59. Mr Methuen properly submits that there is a need for proportionality in the costs to be incurred and reminds the Court that a Claimant is not permitted inappropriate luxuries which, but for the accident, he would not have enjoyed. This is, however, not a case of a Claimant receiving a large swimming pool in his garden which he could not otherwise have aspired to or of unanticipated wealth accruing to close relatives which one sometimes sees in US cases. Hydrotherapy is a need and also a legitimate pleasure for Adam. It is not unreasonable for him to have hydrotherapy reasonably on demand. If this small pool serves a social function because, for example, a young relative might join Adam in the water on an occasional visit, that does not make the facility extravagant.
60. In the circumstances of the severity of Adam's injuries and the real benefits which hydrotherapy will provide there is nothing unreasonable or extravagant about this aspect of the claim, expensive though it is. It is a facility which will provide essential treatment and a degree of pleasure. Adam has very few pleasures. But for the Defendant's negligence he would have had many.
61. If the answer to this issue had been dependent upon the proximity and suitability of public hydrotherapy facilities I would have required additional and more detailed evidence before reaching a useful view.

Other Care Issues

62. There are differences between the care experts about a number of less significant matters. Miss Sargent proposes that the package should be costed for 59 weeks a year whereas Ms Makda proposes 58 weeks. I do not rehearse the detailed arguments on this point because it seems appropriate for the Courts to adopt a consistent approach on this issue so I opt for 58 weeks following other Judges, most recently Sir Rodger Bell in Iqbal –v– Whipps Cross University Hospital [2006] EWHC 3111 (QB).
63. Miss Sargent has costed rates as those currently being paid by local Case Managers for experienced carers with clients with particular needs. Miss Sargent's rates are reduced from her initial estimates which were based on the assumption that Adam would live in Kent. Ms Makda who has similar experience points out that the rates are influenced by local large employers such the NHS and Social Services. Her own first figures were drawn from London rates. She also points out that judgement of reasonable pay rates for night sleep-in carers is not easy because this is an exceptionally limited market. So we do not have a clear picture of what actual costs will be in Brighton.
64. Both experts were clearly telling the truth about their own experience of current rates but neither, so far as I can tell, has produced underlying data. It is thus difficult for the Court when having to make the choice between the figures to do so in a properly informed and reasoned manner. Where the difference is a limited one, for example between £50 and £57 for sleep-in night care on weekdays I will split the difference and fix a rate of £53.50. Similarly the differences between the experts on the hourly rate for day care are £1 an hour at weekends and 50p during weekdays. I split the difference here too without much hesitation and fix these at £9.25 and £10.50. In the other categories, sleep-in night care at weekends where the difference is between £66 and £55, waking night care during weekdays where the difference is between £95 and £80, and waking night care at weekends where the difference is between £110 and £90 the divergence is more marked. On these I incline to the view that Ms Sargent's figures, reduced once and based on current rates being actually paid, are likely to be more reliable that those of Ms Makda and I fix them at £60, £90 and £105 respectively. These are, for the reasons, given broad assessments and if either side wishes to challenge them and produce more documented evidence on rates they are free to do so, by some process to be agreed or determined by me.
65. There is also a difference about the annual cost of case management. Miss Sargent assesses the first year as involving 150 hours at £75 per hour (a slightly lower rate than that put forward by Ms Allen which is £80 per hour). Ms Makda suggests 80 to 90 hours at £70. It seems to me that Miss Sargent is more likely to have the right end of the range as Ms Makda appeared to go up in cross-examination to something over 100 hours but then, apparently, down to less than half that on re-examination. In cross-examination Ms Makda accepted that the number of hours that she had allowed was conservative and I will assess the annual cost of case management on the basis of 130 hours at £75 per hour.
66. For future years Miss Sargent has assumed 120 hours at £75 per hour whereas Ms Makda worked on a basis of about 60 hours at £70 per hour. Ms Makda accepted that the first year would probably require about 30 hours more management than subsequent years. I will assess this item as requiring 105 hours at £75 per hour.
67. There is also an issue of the date from which the cost of the care regime should be calculated. Adam's mother gave evidence that she is actively seeking to identify a house and would hope to move by September. It was recognised that carers would need to be recruited and paid from about four weeks before that time although they would need to be identified earlier. This led Ms Gumbel to propose a five month period from the end of March 2007 for the start of the care regime. The evidence about how long it would take those assisting Adam to find a house and then convert it was necessarily sketchy and speculative. In the ordinary way it would be surprising for those helping Adam, who at the time of the Hearing had not identified a property, to find one, buy it, plan its alteration and adaption, and then carry that out all within a few months. Broad experience suggests that it is unlikely that this project will be completed before the early part of next year but I will review the position when judgment is handed down.

Statutory Funding

68. Adam's placement at the Raphael Centre is paid for by the City & Hackney Community Health Primary Care Trust at a cost of about £2,800 per week. This Rehabilitation Placement ends with his discharge from the Centre when a panel will consider whether his needs are primarily health or social care, a decision which will determine the proportion of funding from the NHS and from a Local Authority. As a result the Court is not able at present to determine what if any deduction should be made from the future care claim for the statutory funding Adam is likely to receive. MIB suggests two alternative approaches. First, the MIB would fund the full care package in return for Adam's agreement to claim statutory funding and to pay what he receives to MIB. The alternative is to adjourn this issue until the future likely level of funding is known. In the meantime MIB would make interim payments for the full amount of the package. Mr Methuen relies upon Crofton –v- NHSLA [2007] EWCA Civ 71. That case was concerned with the extent to which, if at all, damages for personal injury should be reduced to reflect payments, known as "direct payments", that a Council would or might make to the Claimant towards his care costs. The Court of Appeal held that if a Council would make direct payments these should be taken into account in the assessment of damages. So if a Court is satisfied that a Claimant will seek and obtain payments which will enable him to pay for some or all of the services for which he needs care, those should be taken into account in the assessment of loss. However that exercise requires the Court to take into account risks, uncertainties and limitations about the receipt of direct payments.
69. Ms Gumbel's position is that this item of the claim should fail because it has not been pleaded by MIB or backed up with evidence. So far as NHS provision is concerned she submits that Adam is entitled as a matter of right to decline this and to do so without any risk to her claim for damages because of the effect of Section 2 (4) of the Law Reform (Personal Injuries) Act 1948. As regards Local Authority funding Ms Gumbel submits that there is no evidence from MIB that this will be available to Adam and she invokes the following observation by Lord Justice Dyson at Paragraph 96 of Crofton:-

"We would accept that there may be cases where the possibility of a claimant receiving direct payments is so uncertain that they should be disregarded altogether in the assessment of damages. It will depend on the facts of the particular case."

70. It is not yet clear what Adam's approach to seeking direct payments will be or what may become available if funds are sought. As things stand it seems to be that MIB's approach is a sound one. There is no reason not to adjourn this issue until after the picture has become clear. If Adam leaves the Raphael Centre soon, as he is due to, that adjournment need not be a long one. I am, however, prepared to hear further submissions on the point when handing down this Judgment.

Periodical Payments

71. I understand it to be common ground that this issue should be postponed until after The Court of Appeal has given Judgment in the case of Thompstone.

Conclusion

72. Adam's claim will not be reduced for contributory negligence. His care claim will be compensated for substantially on the scheme which he proposes. Adam's claim for hydrotherapy also succeeds. I have also decided some of the smaller issues, leaving others for decision at the handing down of this Judgment, and subsequently. I shall be grateful if Counsel will let me have:

(a) An agreed joint note of typographical and other similar errors.

(b) A joint note setting out a calculation of the amount of the damages following the decisions in this Judgment, setting out what is agreed and what is not.

(c) A short note from each side indicating what they seek and why at the handing down of the Judgment.

73. Finally, I thank Counsel and solicitors for both sides in this case for the formidable ability and thoroughness with which it has been prepared and presented.

GH008615/SCW