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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Hiom v WM Morrison Supermarkets Plc [2010] EWHC 1183 (QB) (28 May 2010)
URL: http://www.bailii.org/ew/cases/EWHC/QB/2010/1183.html
Cite as: [2010] EWHC 1183 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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| ANDREW SEAN HIOM |
Claimant |
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| - and - |
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| WM MORRISON SUPERMARKETS PLC |
Defendant |
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Mr Shaun Ferris (instructed by Vizards Wyeth) for the Defendant
Hearing dates: 12 & 13 May 2010
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Crown Copyright ©
- On 27 May 2004 the claimant, Andrew Hiom, was knocked off his motor scooter by a car which unexpectedly did a u-turn across his path. Proceedings were issued in the County Court on 10 May 2007, and liability was accepted the next day. Because of difficulty in getting the issue of damages heard, the action was transferred to the High Court in London. The major injuries which Mr Hiom sustained were compound fractures to the tibia and fibula of his left leg. The fracture to the tibia did not properly mend until late in 2007, rather over three years after the accident. He also suffered back and neck soft tissue injuries, and received a blow to the head. He has not worked since the accident. He also claims that he has suffered psychiatric injury.
- Mr Hiom was born on 14 April 1967 and was 37 at the time of the accident. He is now 43. He was taken from the accident to Watford General Hospital where his leg was put into plaster. He remained in hospital. On 13 June an external fixator was applied. On 15 June it was noted that there was a risk that there might not be union of the tibia. At the end of June plastic surgery was carried out. On 5 July it was decided that he was fit to be discharged, and should be referred for physiotherapy. While he had been in hospital his landlord had secured possession of his flat and Mr Hiom had nowhere to go. He was forcibly discharged with the attendance of the police on 15 July. He was housed in a hostel where he had a room with a small kitchen and shared bathroom facilities. Some of the other occupants might be described as undesirables. It was a noisy and unpleasant place to live. It was a very difficult time for him. In November the leg was X-rayed and it was found that the fracture of the tibia had not united. A bone stimulator was recommended and a further operation was under consideration. The external fixator was removed. In January 2005 it was found that the fracture had not united and might be infected. On 24 June an operation was carried out to trim and graft bone and to nail the fracture. On 23 September an X-ray showed that the fracture had not united. In December the wound was found to be swollen and it was concluded that there was a risk of amputation and osteomyelitis if left untreated. Referral to a non-union specialist was recommended. By February 2006 the fracture had still not united. In June it was found that the infection had been eradicated. On 4 October 2006 at the Royal National Orthopaedic Hospital various procedures were carried out by Professor Marsh and a five-ring Ilizarov frame was fitted. That was a structure of rings held with vertical bars with pins from the rings protruding through the skin and flesh of the leg to hold the bone correctly. The gap was slow to close and there were problems with infections. In August 2007 it was found that the frame was ready to come off, but that was not done until 22 January 2008. Meanwhile infections had continued. He began physiotherapy in that April and it continued until June. He is left with substantial unsightly scaring to his leg including at the sites of the Ilizarov pins. During the whole of this period his leg gave him considerable pain, particularly during the time the Ilizarov frame was fitted. Because the leg had been little used his calf muscle is very much diminished. He has a substantial muscle on his right calf.
- Mr Hiom also suffered soft tissue injuries to his neck and shoulder, which caused him continuing pain. He suffered from headaches.
- In 2009 Mr Hiom arranged to be assessed by the Papworth Rehabilitation Centre near Cambridge and then spent 8 weeks resident there.
- Most of the reports are now somewhat dated, and it has not been as straightforward for me to assess Mr Hiom's present state as is usually the case in personal injury cases. On 25 November 2008 Mr Hiom was followed and filmed while he went to Harley Street to see Mr Gill, the Defendant's psychiatric expert. He rode by motor scooter to his father's house and they went by tube to London. He walked slowly using a crutch. On the way back to his home he put petrol into the scooter and went into the service station shop without using the crutch, and likewise into a public house which he visited afterwards. At Papworth he was advised that he should replace the crutch with a stick when he needed it. He has done that. He was also given a lift to fit into his left shoe to even his stance, his left leg now being shortened. He walks with a limp. He cannot walk long distances, and uses the stick when he needs to. His balance is less secure, and on stairs or steps he uses a hand to steady himself. He still suffers from pain in his leg and shoulder and neck, on some days worse than others. He has limited movement in his ankle. I will refer further to what he can do and cannot do as I deal with his particular claims for special damages. I will therefore take the issue of general damages for pain, suffering and loss of amenity last.
- Before I come to Mr Hiom's claim for loss of earnings I need to deal with the psychiatric evidence and as to Mr Hiom's present emotional and mental state. Dr Britto, consultant psychiatrist called on behalf of Mr Hiom, considered on the basis of symptoms following his accident that Mr Hiom had suffered an episode of post-traumatic distress disorder, and that he was now suffering from dysthymic disorder. Dr Gill, consultant psychiatrist called for the defendant, disagreed with both diagnoses. He described Mr Hiom's state in the months following the accident as 'a natural degree of emotional upset'. He did not record the symptoms following the accident and his hospitalisation which Dr Britto had recorded on the relation of Mr Hiom. That would seem to be an important distinction between them, and at least part of the explanation for their differences. In a borderline case it seems to me that it is difficult for a psychiatrist to judge whether, years before, a patient's symptoms were sufficiently serious for him to meet the clinical description of PTSD. Mr Hiom certainly became depressed in the sense that the word is used outside the psychiatric profession, and received medication from his doctor for it. I think it more likely than not that Dr Britto is correct diagnosing the condition, but it was at the mild end of the scale. I will return to this when I come to special damages and treatment.
- The two psychiatrists did not consider two other aspects of Mr Hiom's current state. First, he has become socially isolated and sees only his father. He spends many of his days in his flat and seldom goes out. Secondly, he has very little initiative or motivation. He can only take steps to better his situation with the help of positive guidance and assistance. Even then it may be uphill. These matters emerge from the Papworth reports and from TICCS papers. It is difficult to assess how far these two probably associated factors have been contributed to by his accident. I think that both features were present in his life at the time of the accident and would have grown more marked over the years in the absence of the accident, but the accident and his disability and the state of his leg have made them rather worse than they would otherwise have been.
- Mr Hiom's major claim for special damages is for loss of earnings. His claim is put on the basis that at the time of the accident he was about to take over his father's handyman business, which would have brought him in £15,000 a year. However a comparison of the various statements made by Mr Hiom as to his employment history shows that he cannot be relied on as to his employments and plans prior to the accident. The Revenue have no record of any employment after 1990. I find that it is likely that between about 1997 and 2001 he worked for Southern Fried Chicken in Chesham on a part time basis, and was paid in cash. He then worked for a firm or company called Matthews & Brown, which was connected with steel. He worked as a labourer on a part time basis and was paid in cash. This work ended in mid 2003 at the latest, as he said in evidence. The statement in paragraph 3 of his witness statement that he was still working for the firm immediately before the accident was a straightforward lie. For a substantial period before the accident it appears that he was receiving housing benefit and job seeker's allowance. However there was no documentation as to that: it was something which emerged in his evidence. He was also helping his father with small maintenance jobs which his father had. His father was 70 at the time of the accident and retired. He was not paying tax. I do not think that the business was bringing in anything like the £15,000/20,000 which Mr Hiom senior estimated in his witness statement. Having heard him, I think it probable that he was making something closer to £5,000. He had considered that his son might take over his clients at some point, but there was no plan as to that.
- It was submitted that Mr Hiom was in part himself to blame for the long time it took for his tibia to recover. In September 2005 surgery was postponed, which was undertaken in June 2005. In September 2007 it was proposed to remove the Ilizarov frame, but that did not occur until January 2008. It was submitted for the defendant that each postponement was due to Mr Hiom's unreasonable behaviour, and that his recovery was thereby delayed for a year. Mr Hiom said in evidence that the postponement was initially because he had arranged to go and stay with his aunt in one case, and with a friend in another. Those were curious explanations. I have concluded that in respect of 2005 I should not be satisfied that Mr Hiom was at fault. The documents suggest that he and his GP were not informed of the date. But I do find that Mr Hiom was at fault in 2007. I refer in particular to the case manager's progress report for 29/11/2007 to 08/01/2008. He thereby delayed his recovery by 6 months. He also failed to keep in touch with the case manager after April 2008, and he has not received the physiotherapy for his shoulder and neck which had been recommended.
- I have first to determine Mr Hiom's loss of earnings to date. There is very little foundation for a finding as to his likely earnings over the six years if there had been no accident. I think that the most that can be established on the balance of probability is something between £3,000 and £4,000 a year, and so I take an average of £3,500, which represents his loss. But 6 months should be deducted because he has delayed his recovery by 6 months as I have set out.
- Mr Hiom's schedule of loss was on the basis that he would go to university as a mature student to study a technical subject. I am satisfied that this is not a practical option. Papworth found that he needed formal instruction in all three basic skill subjects, which the report later listed as literacy, numeracy and IT skills. Mr Hiom accepted that was so in evidence. It was also readily apparent while he was in the witness box that he does not have the intellectual ability to benefit from higher education. Mr Hiom had quite unrealistic ideas as to what he might do, including becoming a commercial pilot, but it seems he may now with advice have become realistic. He cannot now do the labouring work he did formerly, nor the maintenance work that his father did, though light jobs should not be beyond him if he continues to exercise his leg. He might do work similar to that which he did at Southern Fried Chicken. He is disadvantaged by the weakness of his leg, and that will remain - though it should lessen.
- If there had been no accident, the probability is that Mr Hiom would have drifted on as he was before doing a little casual work and receiving benefits. If he takes advantage of the help that is now available to him, he will have a substantial chance of getting full-time employment. In that event he will be better off than if he had carried on as before. He said that he was keen to get a job. I have reluctantly come to the conclusion that there is no mathematical basis on which I can access a future loss of earnings. I think that he should have something to reflect the fact that a person with a leg like his is disadvantaged in getting work. I do not accept that he is disabled within the meaning of the Disability Discrimination Act. His leg is gradually improving, and the orthopaedic expert, Mr Goodier was of the view that discomfort in the leg would in due course become minimal. But it will remain a damaged leg. So I have concluded that a Blamire award – Blamire v South Cumbria Health Authority [1993] PIQR 1, should be made. £25,000 seems appropriate to the circumstances.
- There is a claim for future care by his father. Past care has been agreed. I think that the future care required is minimal. I allow one hour per month over the next 18 months, after which help should no longer be necessary. It should be discounted in the usual way as it is provided by a relative. I do not consider that after that Mr Hiom should be materially disadvantaged in what he can do in his home.
- There is a claim for fitting an automatic clutch to Mr Hiom's motorcycle which he has currently bricked up in a garage. He has recently bought himself an automatic Porsche Boxster. So he has that as well as the scooter to which I have referred. He has not tried to ride the motor cycle, and with the Porsche at his disposal it is doubtful if he will do so. Further, I am not satisfied that with time and further exercise and improvement he will not be able to operate the gears with his left foot. I disallow the claim.
- I do not consider that Mr Hiom will require help with decorating, nor that he has future need for special equipment. I do not think that there is need for further orthopaedic consultations.
- Mr Hiom claims the cost of his attendances at Papworth in 2009. This is challenged on the basis that any such course should not have been residential. The case manager's progress report for 07/06/2008 to 11/07/2008 stated that 'A residential course would be appropriate for Mr Hiom as it would address his motivation.' I accept that initially a residential course was appropriate given Mr Hiom's particular personal difficulties which have been exacerbated by the accident and its consequences. So he should receive the costs of his involvement with Papworth incurred to date. I do not think that further residential treatment at Papworth is required. Nor do I consider that he requires cognitive behaviour therapy as recommended by Dr Britto. He has effectively received that from Papworth already. I do consider that he will need further assistance towards getting into work, and I am doubtful if what is available from a job centre will be adequate for this man. So I am going to allow a lump sum for that assistance, in whatever form he and his advisers consider best, in the sum of £2,000.
- A number of other heads of special damages have been agreed between counsel, and I need not refer to them.
- I return to the award for pain, suffering and loss of amenity. In addition to the physical injury which Mr Hiom carried until the fracture finally united as a result of Professor Marsh's skill and the Ilizarov frame, Mr Hiom suffered very considerable pain over that period and had no real use of his leg. It was submitted for Mr Hiom that the case came within paragraph (L)(b)(iv) of the Judicial Studies Board Guideline on General Damages in Personal Injury Cases, 9th edition, being a severe leg injury, category moderate, where the range £17,750 to £25,000 is suggested. It was submitted for the defendant that it came within the next category down, (c), less serious leg injuries, £11,500 to £17,750. I consider that all in all it comes within the higher range. I have also to take account of the injury to his neck and shoulder, his psychiatric injury, and the exacerbation of his mental state which I have described. I therefore conclude that an award of general damages of £24,000 is appropriate.
- I trust that these findings will enable counsel to make the further calculations which will be necessary for incorporation into an order.
Mr Justice Jack :