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
		20/05/2011

Mrs Justice Sharp:

1. The Claimant, Arthur Mabiriizi, now aged 21, is a protected party and brings these proceedings through his litigation friend and mother, Miriam Magambo.
2. On 25 August 2007 the Claimant was the rear seat passenger in a VW Golf which was in collision with a bus on High Street South, East Ham. As a consequence of the collision, the driver and two of the rear passengers sustained fatal injuries. The Claimant sustained catastrophic injuries, in particular, a severe head injury leading to dense cognitive deficits.
3. Following the accident, the Claimant was an in-patient at the Royal London Hospital until October 2007. He was then transferred to the Newham Hospital until February 2008 when he was admitted to the Royal Hospital for Neurological Disability (RHND) at Putney. During his time at the RHND he was admitted to Addenbrooke's Cambridge for two separate periods in April and June 2008. While there the Claimant was assessed by the University of Cambridge Impaired Consciousness research group. The Claimant then returned to the RHND where, according to the Claimant's medical expert Professor McLellan in a report of the 27 July 2009, "despite an intensive programme of stimulation and therapy, Mr Mabiriizi did not achieve any further improvement in his level of awareness or responsivity".
4. On 7 April 2009 the Claimant was transferred home, to 95 Blaney Crescent, Newham, where he has remained since. He is presently provided with a 24 hour care package funded by Newham PCT. There is no suggestion that this will not continue. Blaney Crescent is a three-bedroomed, two storey property which the Claimant shares with Mrs Magambo, and his two younger brothers aged 20 and 16. Mrs Magambo rents it from the local authority. It is agreed to be wholly unsuitable for the Claimant's needs. Application is made on his behalf therefore for a substantial interim payment to enable him to purchase suitable accommodation.
5. The Claimant's condition is described as a 'low awareness' or 'minimally conscious' state. This is just above persistent vegetative state (PVS). He requires 24 hour care and his condition is permanent. He continues to have very heavy dependencies. He has incomplete spastic quadriplegia and is doubly incontinent. He is confined to a wheelchair he cannot operate himself.
6. The report of Professor D McLellan dated 15 October 2009 said:

"[The Claimant] has been fully investigated with the latest available technology at Addenbrooke's Hospital, where the findings have supported the clinical diagnosis of a low awareness state. He demonstrates a sleep-wake cycle. He has a vey (sic) limited range of physical responses to specific stimuli which implies a degree of cortical processing that may be associated with a restricted form of awareness. There is, however, no evidence of any understanding of his situation or of a wish to communicate with others and his attention is focused on objects moving in his line of vision, and upon manipulating an object held in his left hand. This appears to be restricted to the process of turning the object around in his hand without any other definable purpose.

He shows no behavioural sign of recognising family members or distinguishing between them and strangers, although it appears probable that there is sufficient cortical function for the visual cortex of the brain to be able to make a distinction between a familiar and unfamiliar face. At no time does he give any outward indication of recognition, pleasure or displeasure.

This situation is now likely to be permanent.

In the absence of any purposeful communication or any consistent indications of emotions that might indicate the presence of pleasure or displeasure, it is very difficult to define what resources should be made available to Mr. Mabiriizi in the future in order to maintain an optimal quality of life, given that his responsivity is unlikely to improve.

The fact that he does sometimes indicate the possibility of discomfort during, for example, defecation, implies that it is in his interests to be kept clean, well nourished and in a comfortable position, which in my opinion the current regime of care appears to be providing. I do not believe that any further or additional specific therapies are necessary in an attempt to change his behaviour as I do not believe that any further change is feasible."

7. It is submitted on the Claimant's behalf that there is nonetheless some evidence of progress.
8. Reliance is placed on an updated care needs assessment report of Kathy Kirby, of Maggie Sargent and Associates, the Claimant's care expert who revisited the Claimant on 26 November 2010. She says the Claimant now appears much more alert than at the time she undertook her first assessment in April 2009 (though it was the case that he was asleep when she visited on that occasion). Although he is unable to speak he is able to smile if somebody says something funny to him and even laughs if he sees something on TV that amuses him. He is able to show discomfort by screwing up his face and grimacing. Generally, she says he appears to be much more observant and moves his head and eyes in order to follow his carers around the room and can obey simple commands and instructions.
9. Professor McLellan saw the Claimant on 2 February 2011 and provided a letter for the purposes of this application. He says he was surprised to see the difference in the Claimant's responses. He is still very limited in his ability to communicate and tends not to initiate activity but he can obey some simple commands, usually relating to moving parts of his body, assist to a modest extent in personal procedures such as being dressed by his carers, can smile and laugh briefly in response to conversation and some elements of TV programmes and signal interest by facial expression. This does indicate a major increase in his legitimate need for regular stimulation and for active case management with more input to relieve his mother of having to give up so much of her time to care. But there is no convincing evidence of abstract thinking and no sign of a decline in mood that could indicate frustration or an understanding of his overall situation. Professor McLellan recommends a neuropsychological assessment of his responses in order to gain a more accurate picture of the Claimant's current level of understanding, which he suspects is "still very stimulus-bound and concrete in nature".
10. Primary liability has been admitted. Contributory negligence is raised against the Claimant on the basis that he was not wearing the seatbelt fitted to the vehicle. There is an admission that the Claimant was not wearing his seatbelt. It is agreed on the basis of the medical evidence relied on by the Defendant that this court must assume it will be found at trial that the Claimant's head injury would have been avoided if a seatbelt had been worn and that any damages to be awarded to the Claimant will be reduced by 25% in accordance with the principles laid down in Froom v Butcher.
11. By his application notice the Claimant asked for an interim payment of £1.78 million. It is now accepted on his behalf that this sum is in excess of anything the court could order. Instead he asks for £670,000 in addition to the voluntary payment of £30,000 already made by the Defendant, and deducted benefits which are likely to be in the order of £25,000.
12. It is common ground that the trial judge dealing with the issue of damages is likely to consider making a periodical payments order (PPO) and an order for the payment of a capital sum in respect of certain heads of loss, and therefore this case is one in which the approach described by Smith LJ in Cobham Hire Services Ltd v Eeles [2009] EWCA Civ 204, applies. This approach may be summarised as follows:

i) Where the pre-conditions of CPR Part 25.7 are met the court's power to order an interim payment, although discretionary, is not an unfettered one. No jurisdiction exists to order payment of a sum that is more than a reasonable proportion of the likely amount of the final judgment. (paragraph 30)

ii) In a case where a PPO is made, the final judgment is the actual capital sum award and does not include the notional capitalised value of the PPO award. This latter sum is irrelevant for the purposes of determining the level of any interim payment. (paragraph 31)

iii) In a case in which a PPO might be made, a judge should not normally attempt to speculate about how the trial judge might allocate the damages awarded in respect of future losses. As a rule, he should normally stop at the figure that he is satisfied will be awarded as a capital sum. This figure will normally only include special damages to date, general damages and appropriate interest. (paragraph 31 and 37)

iv) Where the court is satisfied that an accommodation award will be made at trial, the practice of awarding future accommodation costs as a lump sum is sufficiently well established to allow these sums to be included in the capitalised award. (paragraph 43)

v) The assessment of the above sums should be carried out on a conservative basis. (paragraph 45) But a conservative estimate does not necessarily mean the Court has to accept the Defendant's figures. (paragraph 35) Provided the assessment of the "likely" amount is conservative a "reasonable" proportion of that figure may be a high proportion (paragraph 37).

vi) Additional heads of future loss may be taken into consideration only 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 and accommodation costs. (paragraph 45)

vii) If a judge decides to adopt the approach set out at vi) above, he must be satisfied by evidence that there is a real need immediately rather than say after the trial for the proposed expenditure (whether it be accommodation, care or otherwise) and that the amount of money requested for such expenditure is reasonable. (paragraph 45)

viii) The judge must therefore be satisfied to a high degree that it is reasonably necessary for the amount sought by way of interim payment to be spent before the trial. (paragraph 45)

13. There are therefore, as Mr Donovan for the Claimant submits, two stages: the first task for the court is to ask what is likely to be awarded for the heads of damage which are bound to be ordered as lump sums (Eeles stage 1). If the interim judge can confidently predict the trial judge will capitalise additional elements of future loss so as to produce a greater lump sum award, then a larger interim payment can be justified; but there must be a real need for the interim payment requested. In the context of accommodation this means satisfying the court that there is a real need for the new accommodation now (as opposed to after the trial) and that the amount of money asked for is reasonable (Eeles stage 2).
14. The figures used by the parties changed somewhat during the course of the hearing itself and indeed afterwards. I propose to use therefore, a schedule or comparative analysis of the parties' figures produced after the hearing by Mr Hunter QC for the Defendant and agreed with Mr Donovan which reflects, though not entirely, a handwritten one he produced during the course of the hearing itself. As to figures there are differences as to the likely value of the claim for PLSA, as to past losses to trial, and loss of earnings. Most significantly as to principle, there is a substantial issue between the parties as to whether accommodation costs should be included at all.

PSLA

15. There is no dispute as to the correct Judicial Studies Board guideline bracket (2(A) (a) 'Very severe brain damage' (£185,000 - £265,000)). The level of award within the bracket is affected by degree of insight, life expectancy and the extent of physical limitations. The Claimant's figure is £185,000, the Defendant's figure is now £150,000 (it was £120,000). It is accepted for the Claimant that his life expectancy is foreshortened and his insight may be limited. However, it was said, at least about the Defendant's figure of £120,000, that it was too low because it was expressed to be for loss of amenity only when that is not the Claimant's true state especially given the latest evidence (see paragraphs 8 and 9 above). Assessing the matter on a conservative basis, the appropriate figure under this head in my view is £150,000, plus interest of 2 per cent per annum from the date of accident to trial (just over 5 years on the Claimant's estimate) of £15,000.

Past losses to date of trial

16. It is now accepted on behalf of the Claimant that the original claim for £455,000 is unsustainable because of the Claimant's PCT funding. I accept the Claimant's revised figure of £48,750 as the likely amount the trial judge will award on a conservative basis. An amount of £20,000 was conceded by the Defendant for past out of pocket expenses and gratuitous family care; then revised upwards to £30,000. The figure of £30,000 is accepted on behalf of the Claimant subject to an upward adjustment to £48,750 to reflect a difference between the parties as to trial date and costs of care management. Mr Hunter did not address either of these points discretely; though I note there was no dispute that the date of accident to trial would be just over 5 years for the purpose of calculating interest on PSLA. I propose to use the Claimant's notional trial date of October 2012 (though it may be a touch pessimistic, I consider it more realistic than the Defendant's notional trial date of August 2011). Therefore, 3.5/2.4 x 30,000 = £43,750. As for the second point, both sides accept Mrs Magambo should not have to act as case manager (see in particular paragraphs 2.66 to 2.68 of Ms Kirby's report). So it is said a sum for paid case management under this head needs to be included at this stage. I agree. The figures allowed for in the care experts' reports from each side differ. Ms Newcombe (for the Defendant) allows £2669 for the first year, and then £1602 per annum. Ms Kirby for the Claimant allows for £15,000/£12,000 per annum. Using Ms Kirby's figures Mr Donovan submits a further £5,000 is reasonable; and in my view, it is appropriate to include a figure of that order.

Accommodation costs

17. There is no difference between the parties at this stage on the figures. Using the figure of £590,000 for purchasing suitable accommodation put forward by the Defendant's expert as the Claimant is prepared to do, produces an agreed Roberts v Johnston calculation of £265,582.
18. There is however a fundamental difference between the parties as to whether the accommodation costs should be capitalised and included in the calculation of the interim payment at all.
19. At trial it will be said for the Claimant that he should be in his own adapted accommodation. The Defendant says that a residential setting will more properly meet the Claimant's long term needs. But in any event, this will be an issue for the trial judge and not one that can or should be resolved at this stage. Moreover, unless the Claimant can say at this stage that a trial judge is certain to award him the cost of his own accommodation, the application as presently advanced must fail.
20. Mr Donovan makes the following submissions. By the time of the trial (whenever it may be) the Claimant will have been cared for at home for substantially the whole period since his return from Putney. The trial judge will be reluctant to uproot the arrangement and put him into residential care, possibly a long way from East Ham in a place where the Claimant would not be in familiar surroundings or with the familiar faces (including the care team) to which and whom he has become accustomed over several years. In this case (unlike that of Campbell v Mylchreest [1999] PIQR Q17) there is not one expert who supports the need or desirability of the Claimant being removed from his home and placed in residential care. Ms Newcombe accepts that the present care package is adequate. She includes the residential care option only in the event that home circumstances may change and recommends residential care "if Mrs Magambo is no longer available to provide support for her son."
21. The issue of "the level playing field" is irrelevant because the game is already all but over. There is no realistic prospect of the position changing between now and the trial barring calamity. Mrs Magambo believes that being in familiar surroundings has helped the Claimant and she wants to keep him at home. She herself is fit and well; and if the Claimant dies around the age of 37 in line with current expectations, she would only be 62.
22. It is further said that the Defendant's arguments are even less tenable given the improvements in the Claimant's awareness and interactivity. Mr Donovan accepts that if there is truly no difference to the Claimant if he is in residential care or at home, then costs may have a bearing, no matter how harsh that might be from the family's perspective. But he says, on the latest evidence, the Claimant can no longer be described as "wholly unaware of his surroundings" as described in the Counterschedule. Furthermore, the residential placement proposed by the Defendant at Treetops in Colchester would be unsuitable because it is much too far away.
23. In summary, the argument that the Claimant's care and accommodation needs should be met by being uprooted from his family and placed in a distant residential care home is one which it can be confidently predicted, the trial judge would reject. Thus, there is no reason why accommodation costs cannot be included in the Eeles stage 1 calculation. But he says even if I am against him on the level of confidence, it is clear (see Campbell) that the concern on the Defendant's side about the level playing field, is only one factor to be weighed in the balance against the converse need of the Claimant not to be kept out of his money (see Stringham v McArdle [1994] 1 WLR 1653). But as it is, given the paucity of evidence re the movement of the Claimant out of his home into residential care, it is a factor to which I should give no or no negligible weight.
24. The Defendant does not accept that the Claimant's claim for future care costs should at this stage be assessed on the basis that he is to be cared for in his own home. The issues relevant to the question are said to be (i) the Claimant's awareness of his own environment; (ii) the additional benefit of a home care package having regard to the significant difference in costs. The cost of a home care package is said to be £129,000 by the Defendant's care expert, or £270,000 by the Claimant's care expert, whereas the cost of a suitable residential placement is £75,000. Where both regimes would meet the reasonable needs of the Claimant, it will be for him to demonstrate that the higher costs should nonetheless be awarded (see Rialis v Mitchell (1984) The Times 17 July CA) and (iii) the availability of high quality residential accommodation.
25. It is submitted for the Defendant that the legal question for the trial judge in relation to future care will be what are the Claimant's reasonable needs and what sum of money is required to meet those needs. The factors which will inform the court's decision about those reasonable needs include the Claimant's awareness of his surroundings and who is looking after him, whether he is oriented in time or space, and whether he can express a preference or desire to be in an individual dwelling. Here it is said, notwithstanding the updated evidence, there has been no material change in the Claimant's condition. He is generally unresponsive, shows no purposive behaviour, understanding or self-awareness. He is unaware of his surroundings, his family, those providing for his care or the setting of his care. He has no sense of his environment and is unaware as to whether he is in a hospital, nursing home or his own home. He is not orientated in time space or person. He cannot make choices, communicate any preferences and any reaction to stimuli is concrete and at the most basic level.
26. The following further points are made for the Defendant. There is a significant difference in the cost of a home care regime compared to an equivalent residential placement. In those circumstances, notwithstanding the natural wishes of the family, where there is a significant difference in cost between residential care and a home care regime, there will be an evidential burden on the Claimant to demonstrate why the court should award as damages the higher costs of a home care regime. Further, although it is emphasised for the Claimant that the trial judge would not wish to alter the status quo and remove the Claimant from familiar surroundings and carers he knows, in fact the care package now proposed for the Claimant would itself result in a change to the status quo involving a new home, private (different) carers and it excludes any care involvement by his mother. The distance of any residential placement from the family is also a matter which would need to be addressed by the trial judge on the evidence taking into account the Claimant's reasonable needs.
27. The Defendant submits if the court were to award a sum by way of an interim payment allowing for the acquisition of a home and the setting up of a care regime, this would significantly affect the level playing field. This is a factor to be taken into consideration in the exercise of the court's discretion, as is the fact that the court is considering what is in effect the Claimant's own money. See Campbell and for example, Brown v Emery [2010] EWHC 388.
28. My conclusions on this issue are these.
29. This part of the argument does not depend on a particular need being established for the payment. Nonetheless I entirely accept that the trial judge is likely to find that the Claimant's home is not suitable for his needs. But at trial there will be a dispute about whether the Claimant should be in his own adapted accommodation or whether a residential setting will more properly meet the Claimant's long term needs. If therefore I were to accede to the application and the funds were used to purchase alternative accommodation, it would follow that I would effectively determine that question without the benefit of such evidence as would be adduced at trial. Although the question would still be one for the trial judge to determine, there would then be an "unlevel playing field". This is a factor which must be taken into account since it can only be ignored if the Defendant's argument is plainly wrong.
30. I am unable to say the Defendant's argument that the best interests of the Claimant reasonably require him to be cared for in residential accommodation rather than at home, is plainly wrong, and certainly not with the requisite degree of confidence. The desire of Mrs Magambo that the Claimant should continue living with her at home, rather than in a residential placement, even though he is now an adult is completely understandable. But it seems to me the trial judge will be in the best position to form a view as to what the Claimant's best interests reasonably require, and possibly after the further testing to which Professor McLellan refers. It may be then the Claimant's condition will be found to have improved sufficiently to undermine the Defendant's argument that (in summary) where he is makes no difference to him. But I cannot be sure of that at this stage. The "unlevel playing field" in my view is therefore a factor to be weighed in the balance against taking accommodation costs into account at this stage.
31. Bearing all these matters in mind, I do not think it appropriate to include accommodation costs in the capital sum for the purposes of the assessment of the likely amount of the final judgment. The aggregate "Eeles stage 1" sum in my view, is therefore about £100,000. The relevant calculation is as follows. Allowing a sum for PSLA and past losses of £213,750, deductions first of 25 per cent for contributory negligence, and then of £30,000 for benefits, results in a sum of £130,312.50. I see no reason why a very high proportion of that sum should not be awarded bearing in mind a conservative approach has been taken to assessment. After deduction of £30,000 already paid as interim payment this results in a sum of about £100,000 (£100,312.50).

Capitalisation of other heads of future losses

32. As I have said, it is common ground that the Claimant's home is wholly unsuitable for his needs. It is clear from the evidence that the property is unsuitable both in terms of space and adaptations. For example, there are major difficulties in moving the Claimant in his wheelchair, so he is effectively confined within four walls. In addition, the carers and the family have to share living and bathroom facilities.
33. In those circumstances Mr Donavan submits the Claimant has an urgent need for suitable accommodation, and there is no valid reason why the Claimant, his family and carers should be forced to remain in cramped unsuitable accommodation until a final resolution of the proceedings. He submits the court can be satisfied to a high degree of confidence that expenditure of the approximately £670,000 sought is indeed reasonably necessary and that the trial judge will take the course of capitalising all non-care future losses.
34. He submits it is virtually inconceivable that the trial judge would make a PPO for any head of loss save care and case management for a number of reasons. The Claimant will not be obtaining 100 per cent of his damages, and so his need for flexibility and a sizeable contingency fund will be of particular weight. His life expectancy is broadly agreed. The life expectancy risks for the Claimant in relation to non-care heads are relatively insignificant. It is, in any case rare for PPOs to be made for non-care heads; extremely so with sub-100 per cent liability. Thus he submits the court can have the requisite high degree of confidence that future non-care losses can be capitalised and the trial judge will endorse the capitalisation.
35. The Defendant's primary position on this issue is as follows. It is not disputed that the Claimant's home is unsuitable for his needs. But the starting point is the aggregate sum for Eeles stage 1, which is way short of the £670,000 the Claimant now says is required to purchase a suitable property.
36. There is no dispute about the figures claimed in respect of future losses (save for those of loss of future earnings) for Aids and Equipment, Therapies and Court of Protection costs. But in order for the court to reach the conclusion that it would be appropriate to then capitalise these (additional) items it has to be satisfied there would be some purpose in it doing so. See Cobham v Eeles at paragraphs 44 and 45. In this case there is none, because even if the court were to capitalise the whole of the Claimant's non-care future losses (a position Mr Hunter described as unprecedented) the sum thereby obtained would be insufficient to achieve the purpose for which the court was being invited to award those sums now (that is they would be insufficient to enable the Claimant to purchase a property which meets his needs). If the court nonetheless included capitalised future losses in an interim payment, the court would thus have tied the hands of the trial judge for no discernable purpose. Mr Hunter submits this is not merely a sterile analysis because it must be borne in mind, even in a case where life expectancy is agreed by the experts, there is nonetheless the prospect that the Claimant will live longer; and this is a factor the trial judge must consider when making provision for the Claimant's needs by PPOs over a lifetime.
37. I turn now to the figures.

Future loss of earnings

38. The Claimant submits, adopting a broad brush approach, that a figure of £250,000 is realistic. The Defendant submits one of £194,931 is generous. The difference is explained by a difference in the multiplicand. The Claimant submits £17,900 is too low. The evidence is that the Claimant was a very good student who would have passed his BTEC National Diploma in IT and gone on to degree studies. His earnings as an established software engineer (the kind of position he might have attained by his early 30s) would have been around £47,000- £50,000 gross. In addition it is said the Claimant's foreshortened life expectancy means he has a 'lost years' claim (albeit this is not presently pleaded) which would justify a modest increase in the earnings multiplier (see Hunt v Severs [1993] QB 815, CA). For the purposes of this argument however I will leave this latter factor out of account, because a 'lost years' claim is not currently pleaded, though it may be a matter for the trial judge in due course.
39. It is submitted by the Defendant that its position is reasonable. It has accepted the Claimant's suggested likely earnings. It has not factored in increased earnings in the Claimant's later career because his loss of earnings claim is predicated on the basis he would not have had a career beyond his 30s. Moreover, the Claimant's figures also do not make deductions for the costs associated with generating income normally calculated as 10 to 15 per cent.
40. Looking at the matter broadly, and, assessing the matter on a conservative basis, in my view, the sum of £200,000 is the appropriate figure here for loss of earnings.
41. As I have said there is no disagreement on the figures for Aids and Equipment, Therapies and Court of Protection costs. The total capital sum for future losses, including the sum of £200,000 for loss of earnings is then £432,500 which after the deduction of 25 per cent for contributory negligence amounts to £324,375. I am not persuaded for the reasons given by Mr Hunter, that this court should capitalise all future non care heads of loss.
42. But in the event, the total capital sum of £100,000 for PSLA and past losses plus the capitalised sum for all future heads of loss of £324,375 amounts to £424,375. This figure comes nowhere near the sum claimed of £670,000 required on the Claimant's evidence to purchase accommodation which is suitable for his needs, without taking account of the Defendant's contention that only a reasonable proportion of that sum should be awarded at this stage. It is not suggested that the court should make an interim payment in such a (lower) sum, though no doubt the parties can restore the matter for further argument if it is felt it is appropriate to do so. As it is however, the Claimant's application for an interim payment of about £670,000 is refused.
43. I must add however that I have been troubled by the fact that the Claimant will therefore be left in unsuitable accommodation for an uncertain period. Mr Hunter suggests the court need not be troubled by that scenario since the Defendant would be prepared to fund suitable rented accommodation for the Claimant and his family, as a temporary measure pending the resolution of the contentious issues, in particular as to whether the Claimant should be moved to residential placement for the long term, or a house should be purchased suitable for his needs. It is said specifically that the Defendant has no objection to providing voluntary interims provided that they relate to a reasonable amount of past losses including PSLA. I do not know whether this would be acceptable to those acting on behalf of the Claimant. It seems to me however a far more satisfactory course is for the parties to endeavour to bring the matter to trial as soon as is possible with a view to the trial judge resolving the substantial issues still between the parties on damages; and if those steps have not already been taken, a directions hearing should now be fixed as soon as possible to enable this matter to be progressed to trial.