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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/03/2010

Mr. Justice Teare:

1. On 29 October 2007 the Claimant, Jessica Brown, sustained a catastrophic head injury whilst being a rear seat passenger in a motor vehicle being driven by the Defendant. She is a protected party and has a professional deputy. Liability has been admitted on behalf of the Defendant. Since April 2009 Jessica has been an inpatient at the Brain Injury Rehabilitation Unit ("BIRU") at Frenchay Hospital, Bristol. She had been diagnosed as being in a persistent vegetative state but there is evidence that her condition is now slightly improved so that she is in a "low arousal state" albeit that there is still only "very basic interaction [and] only at a very limited level". It is common ground that when the issue of damages is tried the trial judge will make an order for the payment of a capital sum in respect of certain heads of loss and an order for periodic payments in respect of other heads of loss.
2. In Cobham Hire Services Limited v Eeles [2009] EWCA Civ 204 Smith LJ described the approach which a judge should take when applications are made for an interim payment in a case in which the trial judge may wish to make a periodic payments order:

43. The judge's first task is to assess the likely amount of the final judgment, leaving out of account the heads of future loss which the trial judge might wish to deal with by PPO. Strictly speaking, the assessment should comprise only special damages to date and damages for pain, suffering and loss of amenity, with interest on both. However, we consider that the practice of awarding accommodation costs (including future running costs) as a lump sum is sufficiently well established that it will usually be appropriate to include accommodation costs in the expected capital award. The assessment should be carried out on a conservative basis. Save in the circumstances discussed below, the interim payment will be a reasonable proportion of that assessment. A reasonable proportion may well be a high proportion, provided that the assessment has been conservative. The objective is not to keep the claimant out of his money but to avoid any risk of over-payment.

44. For this part of the process, the judge need have no regard as to what the claimant intends to do with the money. If he is of full age and capacity, he may spend it as he will; if not, expenditure will be controlled by the Court of Protection.

45. We turn to the circumstances in which the judge will be entitled to include in his assessment of the likely amount of the final judgment additional elements of future loss. That can be done when the judge can confidently predict that the trial judge will wish to award a larger capital sum than that covered by general and special damages, interest and accommodation costs alone. We endorse the approach of Stanley Burnton J in Braithwaite. Before taking such a course, the judge must be satisfied by evidence that there is a real need for the interim payment requested. For example, where the request is for money to buy a house, he must be satisfied that there is a real need for accommodation now (as opposed to after the trial) and that the amount of money requested is reasonable. He does not need to decide whether the particular house proposed is suitable; that is a matter for the Court of Protection. But the judge must not make an interim payment order without first deciding whether expenditure of approximately the amount he proposes to award is reasonably necessary. If the judge is satisfied of that, to a high degree of confidence, then he will be justified in predicting that the trial judge would take that course and he will be justified in assessing the likely amount of the final award at such a level as will permit the making of the necessary interim award.

3. In the present case an interim payment is sought in order to fund the purchase of suitable accommodation in which Jessica might spend periods of time with her parents and sibling and ultimately reside on discharge from BIRU. The cost of such purchase, together with the cost of an appropriate vehicle to transport the Claimant to and from BIRU and case management costs has been estimated at £777,500.
4. It has been submitted on Jessica's behalf that the capital sum likely to be awarded at trial (ignoring the notional capitalised value of periodic payments likely to be awarded at trial, in accordance with Cobham Hire Services Limited v Eeles [2009] EWCA Civ 204) is £1,040,000 less interim payments of £76,000, namely £964,000. It is further submitted that a reasonable proportion of that sum to be ordered as an interim payment would be £800,000.
5. This application has been described by counsel for the Defendant as premature. It has been submitted that no real need has been demonstrated for the purchase of the accommodation in question and that any interim award should therefore be assessed without reference to accommodation costs. Counsel has estimated the capital sum likely to be awarded at trial at about £215,000 less the interim payments already made of £76,000, namely about £140,000. Any interim award would have to be a reasonable proportion of that sum. If it is appropriate to include accommodation costs then the capital sum likely to be awarded at trial is estimated by counsel at £365,000. The Defendant has made an open offer to make an interim payment of £250,000, about two thirds of the likely capital sum.
6. There is no material dispute as to the sum likely to be awarded at trial in respect of general damages and past care assessed on a conservative basis. The Claimant has estimated £220,000. The Defendant has estimated £215,000.
7. The principal dispute between the parties is whether the Claimant has sufficiently demonstrated that the cost of accommodation is likely to be included in the capital sum awarded at trial. Some evidence was adduced on this topic on behalf of the Claimant. None was adduced in behalf of the Defendant.
8. The evidence relied upon by the Claimant was as follows:

i) In a report dated 28 April 2009 Professor Barnes, a consultant neurologist, expressed the opinion that "there is about a three year timescale for improvement" of injuries of the type suffered by Jessica. In the notes of a review meeting at BIRU dated 3 June 2009 Dr. Graham, a consultant in neurorehabilitation who is treating Jessica is recorded as saying, when asked how long Jessica would require inpatient based rehabilitation at BIRU, that Jessica "would benefit from at least a further six months of assessment/therapy before the Team was able to predict her longer term outcome and care needs". It was submitted on the basis of this evidence that Jessica ia likely to be ready for discharge from BIRU sometime this year, between now and about October 2010.

ii) Professor Barnes also stated, when dealing with Jessica's "long term prospects/accommodation" that in his opinion "she is a young girl and …..it would be entirely inappropriate for any consideration to be given to admission to long term nursing unit. Her parents are extremely keen for her to return to a family home, albeit that their present accommodation is unsuitable. ………….It would be entirely possible for Jessica to be nursed at home with an appropriate 24 hour care package and access to relevant therapy." It was submitted that this was evidence of a medical opinion to the effect that it was inappropriate for Jessica's long term care to be in a nursing unit and appropriate for her to be cared for at home (so long as the accommodation was suitable).

iii) By a letter dated 29 January 2009 Alison Woods, the Manger of BIRU, said that the team assisting with the rehabilitation of Jessica will work towards realisation of the ultimate goal of Jessica's parents, namely, that "they would like to take Jess home and care for her, with support, in their own home setting."

iv) Dr. Graham, who had been informed that an application was being made to the court "for interim funds to enable accommodation to be bought and adapted for Jessica with the ultimate goal of Jessica being discharged into a fully adapted home in the future", was asked whether Jessica was "medical (sic) fit and well enough to go home with her parents for short trips with the caveat of course at the home to which she goes is suitable and suitably adapted for her (sic)." He replied by letter dated 5 February 2010 and confirmed that "at present Jessica is medically fit and well to go to home with her parents for short trips on the presumption that wherever that is, it is, as you say, suitable adapted for her."

v) Steven Docker and Associates, Chartered Surveyors and Designers for the Disabled, have expressed the opinion that Jessica's present home is entirely unsuitable for her and that "ideally" she should be provided with a suitably adapted "true bungalow", that is to say, where all the accommodation is on one level. He has searched the market in the region of Weston-Super-Mare which is where "ideally" Mr. and Mrs. Brown would like to live and where accommodation is slightly cheaper than in the Yate area to the north of Bristol where they presently live. He has found a property in the desired area which will cost £637,500 to purchase, £240,000 to adapt and £65,000 in ancillary expenditure.

9. Based upon this evidence it was submitted that it is more likely than not that (i) at some stage this year Jessica will be ready for discharge from BIRU, (ii) that there is a real need for Jessica to have purchased on her behalf accommodation which is suitable for her not only to visit her parents for short periods but also to live in and be cared for on a long term basis and (iii) that the bungalow identified by Docker and Associates is suitable accommodation for that purpose.
10. No evidence was put before the court on behalf of the Defendant. The reason was, I was told, that until Jessica had reached a plateau in her rehabilitation it was inappropriate to commission medical, care and housing reports because her needs could not be finally known until then. To commission such reports both for this application and for trial would be unnecessarily expensive. On the basis of the Claimant's evidence counsel for the defendant made the following submissions:

i) The medical evidence did not show that Jessica would benefit from being cared for in one place rather than in another place. There is no evidence that she can recognise her parents. The most that is said in a medical report dated 9 December 2009 is that she "is able to track individuals in her room from the mid-line to the left and to the right and up and down. With verbal prompts she will track a variety of objects when initially presented in the lower right quadrant of her visual field."

ii) At trial there will be an issue as to whether it is Jessica's best interests to remain in publicly funded accommodation (free of charge to her and, therefore, to the Defendant's insurers) or to live in private accommodation.

iii) In any event a bungalow is not necessary. There is no evidence that Jessica will ever be mobile and so in need of being able to move from room to room in a wheelchair. A "conventional" and cheaper house, suitably adapted, would therefore be reasonable. Further, the bungalow identified by Docker and Associates is not reasonable because of its size and the land and equestrian facilities attached to it.

iv) The purpose of the application is not to obtain a permanent home for Jessica but only one which she would visit for short periods. This was apparent from the witness statement of the Claimant's solicitor served in support of the application. Thus the proposed accommodation would be accommodation occupied by Jessica's parents and sibling and only visited by her from time to time. This made the proposed accommodation yet more unreasonable.

11. I accept that on the evidence before the court there appears to be some prospect that Jessica's period of rehabilitation in BIRU may come to an end sometime this year and therefore some prospect that the question of Jessica's long term residence may have to be addressed sometime this year. The evidence is not however particularly cogent. The question does not appear to have been the subject of a recent specific question to and answer from the medical team treating her. The evidence relied upon consists of two comments in two reports dated April and June 2009.
12. However, an application for an interim payment is not dependent upon a particular need being established for the payment. It is only necessary to establish a need when an applicant invites the court to take into account in its assessment of the likely capital sum to be awarded additional factors to those of general damages, past losses and accommodation in the circumstances described by Smith LJ at paragraph 45 of her judgment in Cobham Hire Services Limited v Eeles [2009] EWCA Civ 204.
13. I also accept that Jessica's parents wish her to be cared for on a long term basis at home by them with appropriate support. In so far as the witness statement of Jessica's solicitor suggests that the accommodation is for the purpose of short periods of stay only I am satisfied from the other evidence in the case that it is Jessica's parents wish that she come home permanently.
14. I further accept that the trial judge is likely to find that their present home is not suitable for that purpose and that alternative accommodation would have to be purchased and adapted for that purpose. Whether or not in principle a bungalow would be the appropriate type of accommodation will depend upon the evidence at trial. But if her state of awareness improves there seems to me much to be said for the argument that, athough Jessica might not be mobile, it is nevertheless reasonable that there should be the facility to move her easily from room to room. This would not be possible if her accommodation were downstairs whilst the parents' accommodation was upstairs.
15. However, there is and I am told will be at trial a dispute as to whether it is in Jessica's best interests for her to remain in publicly funded accommodation or for her to be cared for at home by her parents, with appropriate support, in suitable accommodation purchased and converted for that purpose. It follows that were I to accede to the present application and the funds were used for the purpose for which they have been requested I would effectively determine that question without the benefit of such evidence as will be adduced by both parties on that question at trial. Although the question would still strictly be one for the trial judge to determine there would be an "unlevel playing field", to use the metaphor adopted in Campbell v Mylchreest [1999] PIQR 17. That case indicates that an "unlevel playing field" is not an absolute bar to making the requested order but only a factor which I must take into account. It can only be ignored if the Defendant's argument is "plainly wrong".
16. I am unable to say that the Defendant's argument is plainly wrong. Although no evidence has been adduced by the Defendant the account of Jessica's condition given by Professor Barnes, namely, "a low arousal state", and his opinion that it is "now [April 2009] most unlikely that there will be much further progress" suggest that there is a basis for the argument suggested by the Defendant, namely, that the best interests of Jessica do not reasonably require that she be cared for at home rather than in publicly funded accommodation. Although Professor Barnes considers that admission of Jessica to a long term nursing unit would be "entirely inappropriate" it is not apparent that that opinion is based upon medical factors as opposed to the entirely understandable wish of her parents that she return to a family home.
17. There is now, arguably, evidence of some improvement. Medication has "promoted greater awareness of her surroundings. She is more alert and is observed to track objects and people……..opened her eyes and smiled throughout the recent BIRU carol service." However, there is no evidence that she recognises her parents. It is possible that if her awareness continues to improve and there is, for example, evidence that she recognises her parents the basis for the argument put forward on behalf of the Defendant will be eroded and there will be good reason to believe that it is in Jessica's best interests that she be cared for at home. But I cannot be sure that her awareness will improve. By contrast the trial judge will have evidence of Jessica's condition once she has reached a "plateau" in her rehabilitation.
18. I was troubled that counsel for the Defendant was not able to identify any publicly funded accommodation in which Jessica might reside after completion of rehabilitation if she did not reside at home. If there were no such accommodation then the Defendant's argument would be plainly wrong because there would be no alternative to her being cared for at home. However, it seems to me likely that there must be such accommodation within the NHS since persons with disabilities similar to those of Jessica but without the benefit of a claim against an insured defendant must be cared for within the NHS. The trial judge will have details of such alternative accommodation (its location, facilities, staff, standard of care, funding and reputation) and will be able to form a view of what Jessica's best interests reasonably require.
19. For these reasons the "unlevel playing field" is a factor to be weighed in the balance. It is a factor against taking accommodation costs into account at this stage. Another factor to be taken into account, and on the other side of the balance, is the factor that the Court is concerned with what is, in effect, Jessica's money; Stringman v McArdle [1994] 1 WLR 1653. The weight to be given to this factor may be substantial where the sum likely to be awarded at trial will substantially exceed the amount sought by way of an interim payment.
20. In considering the Stringman v McArdle factor in the context of the present case where a periodic payments order is likely, the Court can only have regard to the capital sum likely to be awarded at trial and not to the capitalised value of the periodic payments.
21. There is no dispute that the likely capital sum to be awarded in respect of pain and suffering and past losses, assessed on a conservative basis, will be of the order of £220,000. Although Smith LJ said in Cobham Hire Services Limited v Eeles [2009] EWCA Civ 204 that it will usually be appropriate to include accommodation costs in the capital sum I do not consider that I can proceed on that basis in this case, for there is, as I have said, a real dispute as to whether such costs will be awarded by the trial judge. The evidence at trial may or may not establish that Jessica's best interests lie in her being cared for at home by her parents with appropriate support. I have no confidence, and certainly no high degree of confidence, that the trial judge will include accommodation costs in the capital sum awarded at trial.
22. It was however common ground that the trial judge will be likely to award damages for loss of future earnings by way of a capital sum. This was not on the basis that he would wish to increase the capital sum to permit the purchase of appropriate accommodation (the circumstances contemplated in paragraph 45 of Smith LJ's judgment in Cobham Hire Services Limited v Eeles [2009] EWCA Civ 204) but because Jessica was only 15 at the time of her accident and had not commenced a working career. There was also a measure of agreement that an award assessed on such a basis would be in the region of £150,000 - £200,000. In these circumstances I am confident to a high degree that the trial judge will award a sum of about £175,000 by way of a capital sum in respect of loss of future earnings. Counsel for Jessica said that whilst such an award would be possible (and hence the common ground to which I have referred) he would argue at trial for a greater sum on the conventional basis of multiplier and multiplicand and that it should be awarded as a capital sum in order to ensure that there were sufficient funds to buy the desired accommodation. I cannot proceed on that basis because I have no high degree of confidence that the trial judge will proceed on that basis.
23. In his oral submissions counsel for the Claimant said that he was not inviting the court to consider whether any care costs would be included in the capital sum awarded at trial.
24. It follows that the capital sum likely to be awarded at trial, leaving periodic payments out of account, will be about £395,000 (£220,000 plus £175,000). A deduction would have to be made in respect of the interim payments already made, giving a likely capital sum of about £320,000. Such sum is much less than the sum sought by way of interim payment. The present case is therefore very different from Campbell v Mylchreest [1999] PIQR 17 where the sum sought by way of interim payment was substantially less than the capital sum likely to be awarded at trial.
25. It is plainly appropriate that I should make an order in Jessica's favour for an interim payment since the capital sum likely to be awarded to her is "her money". Such is the measure of agreement as to what that sum is likely to be on a conservative basis that I consider that about 75-80% is, in my judgment, a reasonable proportion of that sum to award by way of an interim payment. That is a sum in the region of £250,000 and, as it happens, the sum offered on behalf of the Defendant.
26. In case this matter be taken further and it is held, contrary to my view, that I ought to have taken into account the sum which is likely to be awarded in respect of accommodation costs at trial in the event that it were established that it was in Jessica's best interests to be cared for at home by her parents, with appropriate support, I would have assessed the likely capital sum to be awarded at trial in respect of such costs as follows:

i) The trial judge is likely to accept that in principle a bungalow would be the appropriate type of accommodation. I have already indicated why, in my opinion, this would be likely.

ii) Although the only suitable property so far identified has equestrian facilities it is likely that a more modest property, yet one suited to the needs of Jessica, would be found before the trial. I was told the trial might be two years away. Docker and Associates have stated that a suitable bungalow would cost in the region of £450,000 to £675,000. A conservative assessment of the likely cost is £560,000. Allowing £150,000 for the value of Mr. and Mrs. Brown's present property the Roberts v Johnstone calculation would be (£560,000 - £150,000) x 2.5% x 11.66, producing a figure of £119,515.

iii) Some discount would have to be made to give credit for the cost of purchasing accommodation which Jessica would have made in her lifetime. It is difficult to assess the effect of such discount but it may reduce the above figure to about £100,000. I am not persuaded that any of the other discounts suggested on behalf of the Defendant should be made. Even if the property would initially be used for short periods of stay rather than being used as a permanent residence immediately this would not reduce the cost of purchase.

iv) There would be legal costs, conversion costs, other ancillary costs and additional running costs which Docker and Associates have assessed in the sums of £40,000, £215,000, £65,000 and £70,000 respectively. These are only estimates and are likely to be challenged. Counsel for the Defendant gave his own estimate, doubtless based on his own experience as counsel in this type of case, at about £150,000 in total. My own forensic experience (albeit not in this field) suggests that the likely realistic figure is somewhere in between. On a conservative basis I would assess the likely further costs in the sum of about £275,000.

v) Thus the sum likely to be allowed in respect of accommodation costs assessed on a conservative basis would be in the region of £375,000 (£100,000 plus £275,000).

27. The total capital sum in respect of general damages, past losses, loss of future earnings and accommodation costs would therefore be, on a conservative basis about £770,000 (£395,000 plus £375,000), and after deduction of the interim payments already made, about £700,000. A reasonable proportion of this sum would be two thirds rather than 75-80% because I have much less confidence in it than in the sum likely to be awarded in respect of general damages, past losses and loss of future earnings. That would produce an interim payment of about £466,000, which would be insufficient to permit the purchase of the bungalow currently identified by Docker and Associates.
28. However, for the reasons which I have sought to express I do not consider that I can properly take into account or give significant weight to accommodation costs on this application. I will therefore make an order for an interim payment in the sum of £250,000.