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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Warwickshire Justice Centre, Leamington Spa
		20/09/2013

Mr Justice Jeremy Baker :

1. Craig Streeter ("the claimant") was born on 9.8.90. On 1.9.04, when he was 14 years of age, he was injured in a road traffic accident when, as a cyclist, he was involved in a collision with a motor car being driven by Darren Hughes ("the first defendant"), who at that time was 35 years of age, (DOB 30.8.69). As a result of that accident the claimant suffered a spinal cord injury which has rendered him tetraplegic. The first defendant was uninsured, hence the involvement of The Motor Insurers' Bureau ("the second defendant").
2. On 5.8.11 the claimant commenced a claim against the first and second defendants for damages in respect of personal injuries, loss and damage caused by the alleged negligence of the first defendant arising out of the accident. The claim has been defended by the defendants, albeit the second defendant has had conduct of the litigation. Liability is denied, alternatively contributory negligence is alleged. Quantum of damages, if liability is established, is in dispute.

Liability

Evidence

3. The accident occurred at just after 18.00 on Wednesday 1.9.04 on Knolton Way, Wexham, near Slough. This comprises a single carriageway, with one lane of travel in each direction. It is agreed by all that it was a fine and bright early summer's evening. At that time the first defendant was driving his Renault 19 1.4 RN motor car, registration number K628 UKL in an easterly direction along Knolton Way. As he drove around a shallow right hand bend he approached the area of the road between the turning to Berryfields on his offside and Welden on his nearside. It was whilst he was in this area that the claimant, who had been riding his bicycle in a westerly direction along the near side pavement of Knolton Way, cycled onto the road and collided with the first defendant's motor car. As a result of this collision the claimant and his bicycle were thrown into the air and landed further down Knolton Way towards the junction with Welden. The first defendant bringing his motor car to a halt further down Knolton Way just passed its junction with Welden.
4. The emergency services attended the scene. PC Parratt, the police collision investigator, arriving at 19.50. By this time the claimant had been taken to hospital and a Vauxhall Astra motor car, which, at the time of the collision, was being driven by Renee Hoadley along Knolton Way in a westerly direction, had been driven from the scene. Otherwise, the remaining motor vehicles on Knolton Way were believed to have been parked in the same locations which they were at the time of the accident. These being a white Peugeot Boxer motor van and 2 motor cars parked along the grass verge on the north side of Knolton Way, together with a blue Ford Galaxy motor car and a series of other motor cars parked along the edge of the road on the south side of Knolton Way. There being a significant gap between the white van and the first of the 2 motor cars, an Audi motor car, and a larger gap accommodating a bus halting space between the Ford Galaxy motor car and the remaining motor cars. All of this being shown in a series of photographs which were taken by PC Parratt when he first attended at the scene, and which are to be found in the trial bundle of photographs.
5. PC Parratt subsequently placed 3 police markers on Knolton Way as shown in those photographs. There is no dispute that marker 2 is located where an area of blood was found, which is believed to be have emanated from the claimant's head and therefore indicates the location of where he came to rest after the collision. Equally there is no dispute that marker 3 is located where a piece of the registration plate from the Renault motor car was found, which is believed to be where it fell after the registration plate was broken in the course of the collision.
6. However, although the location of marker 1 is easily identified in the photographs, there is considerable controversy as to what it was intended to mark. It is contended on behalf of the claimant that it marks the actual location of the most westerly piece of glass emanating from the windscreen of the Renault motor car which was broken in the course of the collision. Thus the location of the piece of glass across the width of the road can be discerned. On the other hand it is contended on behalf of the defendants that it does not mark the actual location of any piece of physical evidence, but only marks the level along the road of the most westerly piece of glass emanating from the nearside headlight of the Renault motor car which was broken in the course of the collision. Thus the location of the piece of glass across the width of the road cannot be discerned. Although PC Parratt took close up photographs of the area around markers 2 and 3, he did not do so in relation to the area around marker 1, such that this dispute is not able to be resolved by reference to the photographs themselves.
7. The claimant has no recollection of the collision itself and was therefore not able to assist the court as to its circumstances.
8. The first defendant provided a brief first account of the collision to the police when they attended at the scene soon after it had occurred (Trial bundle page 306). He stated that he had been driving along the road at no more than 30mph, when he heard a loud bang and the windscreen of his motor car broke. He said that he had not braked before the collision as he hadn't seen the claimant on his bicycle prior to the collision. He said that he was insured to drive at the time.
9. The first defendant was interviewed under caution by the police on 25.10.04. In the meantime he had provided them with a certificate of insurance which purported to show that he was insured to drive at the time of the collision. Subsequent investigations revealed that this certificate was false and that the first defendant was uninsured at the time of the collision. At the High Wycombe and Beaconsfield Magistrates' Court on 11.4.11 he pleaded guilty to an offence of using a certificate of insurance with intent to deceive, contrary to S.173(1)(a) of The Road Traffic Act 1988, and was fined. However he was not prosecuted for any road traffic offence arising out of the manner of his driving at the time of the collision.
10. In the course of his interview, the first defendant said that if he had been doing any more than 30mph as he approached the scene of the collision he would have slowed down as he recalled a motor car approaching him in the opposite direction and there were motor cars parked on the offside of the road. He therefore gauged his speed at between 25 – 30mph and said that as he had been brought up on the estate and still lived there, he was aware of the need to avoid oncoming motor vehicles, by driving along the nearside of his carriageway and believed he had done so. He reiterated that he had not seen the claimant prior to the collision, as the first matter of which he was aware was the impact on the left hand side of his windscreen. He said that as a result of this he had moved his body to the right in order to avoid being hit with glass and had slammed one of his feet on what he thought was the brake pedal, but now realises must have been the clutch pedal.
11. The first defendant provided a witness statement to those representing the second defendants dated 10.9.10. He stated that he had been driving since the age of 17 and had only had one minor accident at the age of 18. He said that he was on his way to work and was travelling along Knolton Way at about 30mph. He said that he wouldn't have been doing any more than this, as not only is he aware that due to the presence of motor vehicles parked on the offside of the road oncoming motor vehicles often approach along the middle of the road, but he is aware that a number of children live in the vicinity. He said that as he approached the right hand bend in the road he began to slow down by taking his foot off the accelerator pedal. As he got to the gates to the old people's home prior to the offside junction with Berryfields he saw the oncoming motor car, so he moved over to the near side of his carriageway. He was travelling at about 25mph when, as he was adjacent to the white Peugeot Boxer motor van on the nearside grass verge, he heard a loud bang and he was showered with glass inside his car. It was at this point he moved his body towards the right and sought to put his foot on the brake pedal, but missed it and put it on the clutch pedal and therefore didn't manage to bring his motor car to a halt until he was just passed the nearside junction with Welden. He got out of his vehicle and saw that he had driven into a cyclist. After this a woman had approached him and told him that the collision hadn't been his fault.
12. In a further witness statement provided to those representing the second defendants dated 25.1.12, the first defendant said that at the time of the accident he was on his way to work at Heathrow Airport. He said that he was normally able to complete that journey in about 20 minutes and was not in any hurry as he was not due to commence work until 7pm. Indeed prior to the accident he had just called in at a local newsagent to purchase a newspaper. He believed that immediately after the collision, and as a result of twisting his body away from the direction in which the broken windscreen glass was falling on him, he must have put his left foot on the clutch pedal rather than the brake.
13. On 17.4.13 those representing the claimant made a Part 18 Request of the first defendant concerning, inter alia, whether he suffered from an eye defect at the time of the accident. The first defendant replied that he did so, in that as a result of an untreated childhood cataract he was essentially blind in his left eye.
14. In his evidence during the course of the trial, the first defendant explained that because he has had his eye condition since childhood, he is largely unconscious of it; such that he did not consider the need to inform any one about it during the course of these proceedings until he was asked about it by those representing the claimant. He said that it does not affect his ability to drive, nor does it affect his ability to carry out his job as a slinger-banksman working with cranes on construction sites. He stated that he has been informed by those who have been responsible for carrying out eye examinations upon him that it adversely affects his ability to assess distances. He also said that he may unconsciously compensate for his loss of vision in his left eye by swivelling his head round in a more exaggerated manner than someone who had vision through both of their eyes.
15. He accepted that he had lied to the police when he claimed to have insurance to cover his driving at the time of the collision. He stated that this was due to panic on his part at the scene of the accident. However he acknowledged that he had sought to bolster this lie by subsequently providing the police with a false insurance certificate.
16. He said that as he drove around the right hand bend he had maintained his position on his nearside carriageway. Upon seeing the oncoming car he had moved further to the near side of his carriageway and had then taken his right foot off the accelerator. He said that he had never placed that foot back on the accelerator. He acknowledged that he was aware, from growing up and living on the estate, of the potential hazards of children running and cycling out on the road from between parked cars. Indeed towards the end of his cross-examination he said that as a result of this he had his right foot hovering over the brake pedal. He said that it would be dangerous to drive along this road over the 30mph speed restriction and that he was doing less than this at the time of the accident. Immediately prior to the collision he stated that he had looked over towards his nearside and had then looked towards the oncoming motor car when the collision took place. He said that immediately after the collision he had mistakenly depressed the clutch pedal with his right foot, rather than as he had said previously, with his left foot. He said that due to his action of seeking to avoid the shower of glass caused by the impact on his windscreen he had struggled to maintain control of his car.
17. Renee Hoadley was the driver of the oncoming Vauxhall Astra motor car. Her account to the police at the scene soon after the collision was that as the claimant had cycled into the road, the first defendant wouldn't have had a chance to see him prior to the collision taking place; such that it wasn't the driver's fault.
18. She gave a witness statement to the police dated 8.9.04, in which she said that the first thing she recalled of the accident was when her car was positioned towards the front of a line of parked motor vehicles on the near side of Knolton Way and she heard a bang which caused her to look over towards the offside carriageway, where she saw a body in the air. She said that she noticed the first defendant's car swerving in the road before coming to a halt further down the road behind her. She estimated the speed of the first defendant's vehicle at about 40mph.
19. She provided a witness statement to those representing the second defendant dated 3.6.10. In this statement and in a subsequent one provided to them on 1.11.10, she said that she had seen the claimant's bicycle emerge from the offside pavement onto the road and into collision with the first defendant's motor car. She said that she only saw the front wheel of the bicycle emerge from between a gap between a parked white van and motor car on her offside, and that it was this front wheel which collided with the first defendant's motor car. She stated that following the collision she had reassured the first defendant that the accident was not his fault as she had seen what had happened and in her opinion he could not have avoided the collision. She went on to say that although she had previously told the police that she estimated the speed of the first defendant's motor car to have been 40mph, she would now prefer to say that it was more than 30mph. She made certain manuscript additions to the latter of these two witness statements.
20. Renee Hoadley provided a witness statement to those representing the claimant dated 6.3.12, in which she reverted to the account provided in her original written witness statement to the police, namely that she had not seen anything of events of the collision until she heard a loud bang and looked over to see the claimant fly up into the air. She added that after the first defendant had emerged from his motor car, he had informed her that he was tired as a result of having worked a long shift at work.
21. In evidence during the course of the trial, Renee Hoadley said that she had not seen anything of the collision until after she had heard a bang and had then looked up and saw the claimant up in the air. She said that the reason why she had said that she had seen an earlier stage of the collision in the witness statements provided to those representing the second defendants is that the individual taking the statement from her kept suggesting that she must have seen something of the events leading up to the collision. Moreover, he kept trying to suggest what would have happened if the first defendant had been travelling at different speeds, such that she went along with the suggestion that she could not have accurately assessed the first defendant's speed at 40mph. She acknowledged that she had made her initial assessment of the speed of the motor car mainly from observing it swerving through her rear view mirror after she had brought her own vehicle to a halt in the bus stop area on her nearside.
22. She agreed that after the accident she had told the first defendant that it wasn't his fault, as in her opinion no one driving along the road as he did would have been able to see the bicycle behind the white van before it emerged onto Knolton Way. She was insistent that after the collision the first defendant had informed her that he was tired as a result of having just returned from working a double shift. She said that the reason why she had not previously informed the police about this was because she didn't think that it would have been relevant. She eventually agreed that it was possible that her knowledge of the fact that the first defendant worked shifts may have come from previous conversations with him when he had come into the local newsagent where she was employed.
23. Leanne Hoadley is the daughter of Renee Hoadley, and was the front seat passenger in her mother's motor car at the time of the accident. In her witness statement to the police dated 10.9.04 she said that she had seen the front wheel of the claimant's bicycle emerge from between a gap between a white motor van and a motor car parked on her offside, which then collided with the first defendant's motor car. She said that as the claimant reached the edge of the pavement prior to the collision he hesitated slightly before emerging onto the road where the collision took place. The location of the collision being on the road near the offside kerb. She said that she was unable to say how fast the first defendant's motor car was travelling as she was not a driver. She said that in her opinion the first defendant couldn't stop in time because his vision of the bicycle would have been precluded by the presence of the parked white van.
24. She provided a witness statement to those representing the second defendant dated 15.6.10. She said that immediately before the collision, when the claimant emerged from between the two vehicles on her near side, he was leaning forward with his hood up. She said that the claimant landed on the same side of the road as that on which he had been struck. She said that immediately after the collision the first defendant's motor car had carried on travelling along the road and was swerving from side to side. She said that as a result of the post collision driving of the first defendant she estimated his speed to be at least 40mph. She concluded by saying that as far as she was concerned the first defendant could not have done anything to have avoided the collision as he would have been unable to see the claimant's bicycle.
25. In a further witness statement provided to those representing the second defendant's dated 1.10.10 she said that the claimant had not hesitated prior to emerging onto Knolton Way and into collision with the first defendant's motor car. She said that the motor car collided with the front wheel of the bicycle and that after the collision the claimant landed on the same side of the road as that upon which the collision took place. She said that after the accident she heard her mother inform the first defendant that it was not his fault. She added to this typed witness statement in manuscript her previously stated opinion that the first defendant's motor car was travelling at about 40mph.
26. In her evidence in the course of the trial, she initially said that she had noticed the claimant flash past as he was cycling along the pavement towards the white van, where he hesitated slightly before emerging onto the road. Subsequently she said that she had seen the claimant ride down Welden and turned right onto the pavement of Knolton Way. She said that this was not at an excessive speed. She believed that he was going to carry straight on, but then he suddenly turned down the gap in front of the white van and out onto the road. She went on to describe the claimant's slight hesitation as being either a momentary slowing down, or a slight pulling back on the handle bars prior to riding out onto the road. She said that at the moment of impact with the bicycle the near side edge of the first defendant's motor car was positioned within about 1' of the near side kerb edge, and that the claimant's bicycle collided with the nearside front of the motor car.
27. She accepted that she had been present when her mother had provided her initial witness statement to the police and had therefore known of her mother's estimation of the speed of the first defendant's motor car. However she said that this was not the reason why she had subsequently suggested a similar speed, it being based on her own opinion of the driving of the first defendant after the collision when he didn't immediately stop and swerved from side to side. This being informed by the fact that she was now a motor car driver. She said that she had made these observations of the first defendant's post collision driving, not when his motor car was approaching her mother's vehicle or going passed it, but only after it had passed their vehicle and she was looking backwards towards it. At the conclusion of her re-examination she suggested that the first aspect of the collision which she had witnessed was the claimant in the air.
28. Robert Aldridge resided on Welden and at the time of the collision was outside his house washing his motor car. In a witness statement provided to those representing the second defendants, dated 21.4.10 he stated that he saw the claimant, who also resided on Welden, emerge from his house on his BMX bicycle, ride down Welden where he turned right onto the pavement of Knolton Way and disappear from view. Then after a short period of time he heard a loud bang and looked towards the junction with Knolton Way where he saw the first defendant's motor car travelling across the junction at about 10 – 15mph before coming to a halt.
29. He gave a similar account in a subsequent witness statement provided to those representing the claimant, dated 10.5.10.
30. In his evidence in the course of the trial, he said that after hearing the loud bang, he had looked up and seen the first defendant's motor car being driven somewhat erratically and a bit fast across the junction with Welden.
31. PC Parratt made initial notes about his visit to the scene of the accident in a "Collision Information" form, (Page 342 of the trial bundle). In this marker 1 was described as being, "POI adjacent to white van…start of glass spread." He noted that there was "Continual glass shatter down road passed bike." The distance from "POI to blood in n/s kerb" to be 16.7 metres. This being marker 2. Marker 3 was described as being "Section of number plate" which was 4 metres from Marker 2. Furthermore from "POI" to where the first defendant's motor car was found was 86 metres. It was apparent from these notes and the photographs which he took that the majority of the damage to the first defendant's motor car was on the near side of the midline of the front of the vehicle. There were also 2 cleaning marks probably caused by moving contact with part of the claimant's body, running up the centre of the bonnet and to the rear centre of the roof. There were 2 holes on the front windscreen of the vehicle. One at the base of the windscreen and one at the top of it. The latter hole being positioned just to the near side of the midline of the windscreen. Blood and hair was found in this area. On examination the seat of the bicycle was missing and its front wheel was found to have been rotated in an anti-clockwise direction. There was a dent in the front of the cross bar, one on the offside front fork and scraping damage to the outer edge of the offside pedal.
32. In a written memorandum by PC Parratt to the CPS dated 22.10.04, he stated that "Other than damage to the vehicles, there was very little physical evidence at the scene. There were no tyre marks left from either vehicle. I found a shower of glass fragments, which started adjacent to a white van parked on the nearside verge. This would indicate the approximate point of impact."
33. In a witness statement provided to those representing the second defendant, dated 28.4.10 he stated that, "I found a shower of glass fragments, which started adjacent to a white van parked on the nearside verge – this would have indicated the approximate point of impact i.e. not after this position. This point is marked as 1 on photograph 4." He went on to say that, "I must clarify that point 1 on the pictures does not 100% represent exactly where the glass laid in that lane i.e. it could have been closer to the kerb."
34. In a further witness statement provided to those representing the second defendant, dated 28.2.12 he said that, "Flag 1 was not positioned so as to mark the point of impact with reference to the width of the road….Police Flag 1 would have been placed to identify the approximate position of the first piece of glass debris that I found within that lane…….It is possible that Police flag 1 was placed in line with the first piece of glass debris and therefore does not necessarily represent its exact position across the width of the lane but does represent the point along the length of the carriageway that the shower of glass first started…..Having viewed photograph 4, Police flag 1 appears to be adjacent to the front of the van which is representative of where the glass shower started."
35. PC Parratt, in his evidence in the course of the trial, accepted that between 2004 and 2010 he had no cause to recollect this accident. Such that in 2010 he didn't have a good recollection of his inspection of the scene until he had reminded himself of the written notes he made at the time of the accident. He accepted that markers 2 and 3 were used to indicate the precise location of where physical evidence was found at the scene. However he stated that it was his belief that marker 1 did not indicate the exact location of the first piece of glass which he found in a west – east search of Knolton Way, rather it indicated where along the length of Knolton Way the first piece of glass was found. Thus one could ascertain that the impact between the first defendant's motor car and the claimant's bicycle could not have occurred beyond a line drawn between marker 1 and the edge of the near side kerb. He believed that the measurement of 16.7 metres was taken from marker 2 to a point on the near side kerb opposite marker 1.
36. PC Parratt accepted that his witness statements could have been better expressed and that no mention of the source of the glass fragments was contained in his notes or memorandum. However he said that first piece of glass which he found on a west-east search of Knolton Way was from the broken near side headlight, rather than from the broken windscreen of the first defendant's motor car. Indeed he recalled that the majority of the glass on the road was from this headlight, as the majority of the glass from the windscreen was found inside the motor car. He said that glass fragments from a windscreen can be distinguished from glass fragments from a headlight, in that the former break into regular cuboid type pieces, whereas the latter break into irregular glass shards.

Expert evidence

37. There was expert evidence from two individuals concerned with accident reconstruction. These being Dr Chinn on behalf of the claimant and Mr Sorton on behalf of the defendants. The former's opinions being contained in a report dated 8.4.13. The latter's opinions being contained in reports dated 26.8.11 and 26.4.13. They also produced a joint statement dated 10.5.13.
38. Dr Chinn – in his first report studied the police photographs of the damage to the first defendant's motor car and the claimant's bicycle and concluded that at the moment of impact the bicycle was at an angle to the front of the motor car, and the leading edge of the front wheel of the cycle would have been in line with or just beyond the centre of the car. He concluded that the damage to the bonnet of the car would have been caused by impact with the claimant's right femur and the hole in the upper part of the windscreen would have been caused by impact with the claimant's head. He made measurements of the scene as best as he could reconstruct it and found that the distance from marker 1 and marker 2 was 19 metres.
39. It was apparent to him that there were no tyre marks shown on the police photographs from which he could make speed calculations, and so he decided to assess the impact speed of the first defendant's motor car by using "throw distance" calculations. In order to do so it was necessary for him to be able to identify the location both of the point of impact between the motor car and the cycle, and the post-impact position of rest of the claimant.
40. He assumed for these purposes that marker 2 represented the post-impact position of rest of the claimant on Knolton Way. He also assumed that marker 1 represented the location of where, on a post-impact west-east search of Knolton Way the first piece of glass from the motor car had been found, both across the width of that road and along its length. However he stated that in his opinion marker 1 did not necessarily indicate the point of impact between the car and the cycle, as research from Dettinger had shown that broken glass from motor cars which had been involved in collisions may be located at a distance beyond the point of impact. On that basis he calculated that the point of impact was about 2.7 metres before marker 1. Thus the distance from the point of impact to the post-impact position of rest of the claimant was 21.7 metres.
41. He then used "throw distance" research from Searle, Appel and Mukherjee to calculate that the likely impact speed of the first defendant's motor car was respectively, 43 mph, 41 mph and 40 mph.
42. Furthermore, on the assumption that marker 1 did represent the location of where, on a post-impact west-east search of Knolton Way the first piece of glass from the motor car had been found, both across the width of that road and along its length, he concluded that at the time of the impact the first defendant's motor car was straddling the centre line of Knolton Way. He measured the width of the road from the centre line to the near side kerb edge as being 3.3 metres, and provided his opinion that the claimant would have been visible to the first defendant on the near side pavement for a distance of not less than 1.4 metres up to the near side kerb edge. He provided his opinion that, because of lack of lateral displacement of the damage to the motor car caused by its impact with the cycle, the pre-impact speed of the cycle would have been slow, probably less than 5 mph. On this basis and assuming a 1 second reaction time, he concluded that had the impact speed of the first defendant been 30 mph, he could have avoided the collision by braking his motor car to a halt.
43. He supported his opinion that the impact speed of the first defendant's motor car was likely to have been in the region of 40 mph, by reference to his own view that an impact speed of at least this is required to break the plastic interlayer in laminated windscreens. Moreover research by Bellion indicated that in collisions involving pedestrians, damage to the upper part of a windscreen caused by impact with an adults head requires an impact speed of about 62 mph.
44. After completing his first report it became apparent to Dr Chinn that at the time of visiting the scene on the day of the accident PC Parratt had measured the distance from the point of impact to marker 2 as being 16.7 metres. Therefore in the joint statement he reviewed his throw distance calculations on the basis that the distance from the point of impact to the post-impact position of rest of the claimant was 19.4 metres being the sum of 16.7 metres plus 2.7 metres. Thus he re-calculated the impact speed of the first defendant's motor as 38.7 mph.
45. It also became apparent to Dr Chinn that upon post-collision examination of the first defendant's motor car PC Parratt had found a cleaning mark on the bonnet, in addition to the one on the roof. Dr Chinn believed that this supported his opinion that there had been no lateral displacement of the damage to the motor car caused by its impact with the cycle, such that the pre-impact speed of the cycle would have been slow, probably less than 5 mph.
46. In the joint statement Dr Chinn expressed the opinion that the angle of the cycle and the front of the motor car at the moment of impact was about 30 degrees. He agreed that the impact position of the first defendant's motor car would not have been such as to place the front near side headlight over marker 1. However, as he assumed that marker 1 was a piece of windscreen glass, he was of the opinion that the impact position of the first defendant's motor car would have placed that vehicle more than half its width on the offside of the centre line. He supported his opinion that the first defendant's motor car was straddling the centre line at the point of impact by indicating that in his view glass shards could be seen on the offside lane of Knolton Way on the police photographs. His analysis of the Dettinger research was that there was no significant difference in the behaviour of broken glass from windscreens and headlights.
47. Mr Sorton – in his first report described how he had visited the scene of the collision on 24.8.10 and measured the distance from the near side kerb edge to the centre line as being 3.18 metres. On a further site visit on 16.5.11 he carried out a survey of the speed of motor vehicles travelling along Knolton Way in both directions. He found that east bound vehicles travelled at a speed of between 22 – 36 mph, with the majority travelling at just under 30 mph.
48. He noted from the police photographs and the description provided by PC Parratt in his written collision information form on the day of the collision, that the majority of the damage to the first defendant's motor car was concentrated on the near side front of the vehicle. He considered that it was likely that the front wheel/forks of the claimant's bicycle impacted with this area of the car and that the hole towards the top of the windscreen had been caused by impact with the claimant's head. The leading edge of the cycle's front wheel having travelled no more than half way across the front of the motor car. He considered that the position of the cycle at the moment of impact was at an angle to the front of the car, otherwise the claimant's momentum would have carried him towards the offside of the car.
49. In the absence of tyre marks on the road surface Mr Sorton also decided to assess the impact speed of the first defendant's motor car by using "throw distance" calculations. However he cautioned that as the centre of mass of a pedestrian is likely to be lower than that of a cyclist, the results gained from a calculation based on pedestrian throw distance research are likely to exaggerate the actual impact speed of the motor car. He supported this opinion by reference to research carried out by Haight and Eubanks involving collision reconstructions between motor cars and static adult bicyclists, which indicated that similar throw distances are likely to be achieved by significantly lower impact motor car speeds.
50. In order to carry out these calculations it was again necessary for Mr Sorton to be able to identify the location both of the point of impact between the first defendant's motor car and the claimant's cycle, and the post-impact position of rest of the claimant. He too assumed that marker 2 indicated the post-impact position of rest of the claimant. However, in relation to the location of the point of impact between the motor car and the cycle, Mr Sorton differed from Dr Chinn, in that he assumed firstly that marker 1 only indicated the position along Knolton Way where the first piece of broken glass from the motor car lay, such that this glass was likely to have been positioned towards the near side kerb edge of the road and secondly that the piece of broken glass was likely to have emanated from the motor car's near side headlight.
51. On this basis Mr Sorton considered that it was inappropriate to assume that the location of the point of impact between the first defendant's motor car and the claimant's bicycle occurred at a position before that indicated by marker 1; such that the appropriate throw distance in this case between the point of impact and the post-impact position of rest of the claimant was 16.7 metres. On this basis the research by Smith and Evans indicated that a pedestrian based calculation would provide an impact speed for the first defendant's motor car of about 32.73 mph. Albeit that because of the cautionary matters he had previously identified and the Haight and Eubank research, he considered that whereas the speed would be likely to have been more than 20 mph, it would have been less than 30 mph.
52. In relation to the significance or otherwise of the location of the damage to towards the top of the windscreen of the motor car, Mr Sorton again advised caution. In that although with a pedestrian the location of the damage to the first defendant's windscreen would support a relatively high speed of impact, as the centre of mass of a cyclist will be higher than that of a pedestrian, a cyclist struck at the same speed as a pedestrian will be carried higher onto the windscreen. Furthermore, collision reconstruction research involving motor cars and bicycles is normally carried out with static cycles struck from behind. Whereas in the present case the claimant was moving predominantly towards the first defendant's car, such that he would have been carried up onto the car before he made full contact with it.
53. In so far as the lateral position of the first defendant's motor car at the point of impact, Mr Sorton considered that this was likely to have been wholly within the near side carriageway. He supported this view not only with his interpretation of the significance of marker 1, but also by other factors. Firstly that for the first defendant to have been straddling the centre line, he would have been on a collision course with the motor being driven by Renee Hoadley. Secondly, unless the first defendant at the point of impact was travelling at an angle across and towards the nearside of Knolton Way, the location of the post-impact position of rest of the claimant close to the kerb edge of the near side carriageway indicated that at the point of impact the first defendant's motor car would also have been positioned relatively close to the near side kerb edge.
54. Mr Sorton was of the opinion that due to the presence of the motor vehicles parked on the nearside pavement, the first defendant would have been unable to have seen the claimant on his bicycle until shortly before he emerged onto Knolton Way, a distance of perhaps 0.9 metres. On this basis and assuming that the first defendant's motor car was centrally positioned within the nearside carriageway and the cycle was at a 45 degree angle with the front of the car at the point of impact, he considered that the claimant would have been in the first defendant's view for about 3.5 metres prior to the point of impact. He considered that the pre-impact speed of the claimant's bicycle as it travelled down the west bound pavement of Knolton Way and emerged onto the road would have been likely to have been about 8 mph, equating this with the speed of an adult jogger. In these circumstances and assuming a reaction time of 1 second, the impact speed of the first defendant's motor car would have had to be in the region of 16 mph for the collision to have been avoidable.
55. In his second report Mr Sorton supported his opinion that the bicycle had travelled no more than half way across the front of the first defendant's motor car at the point of impact, by reference to the police photographs which he considered showed a black scuff mark positioned about half way along the car's front registration plate which was caused by the leading edge of the front wheel of the bicycle. This would mean that the registration plate itself was probably broken by impact with the axle of the front wheel of the cycle and that the impact mark on the front edge of the bonnet had been caused by impact with the front offside fork of the cycle. This latter conclusion being consistent with damage to the front offside fork of the cycle.
56. Mr Sorton produced a high resolution copy of one of the police photographs of the scene of the collision from which he concluded that the majority of glass fragments on the Knolton Way were contained within the near side carriageway. Thus supporting his opinion that the first defendant's motor car would have been positioned within the near side carriageway at the point of impact. The first fragments of broken glass being likely to have emanated from the broken near side headlight, as they would have had a shorter distance to fall than those emanating from the windscreen.
57. He stated that his interpretation of the research by Dettinger was that glass fragments are commonly found coincidental with the point of impact. He acknowledged that glass fragments from windscreens may be found beyond the location of the point of impact, but disagreed that this would apply to the same extent with glass fragments emanating from broken headlights, which are likely to fall at or near to the location of the point of impact due to the relatively smaller distance that they would have to fall.
58. He repeated his disquiet with the use of pedestrian throw distance calculations in cases involving cyclists, and indicated that the research carried out by Haight and Eubanks in relation to collisions between motor cars and cycles indicated that a throw distance of 16.2 metres was attained at an impact speed of about 21 mph.
59. Mr Sorton pointed out that the research carried out by Bellion was in relation to pedestrians, rather than cyclists, such that the caution previously expressed by him in relation to the significance or otherwise of the height of the impact damage to the front windscreen caused by the claimant's head applied to their conclusions. He noted that none of those hit by a motor car at the speed proposed by Dr Chinn survived. He also considered that the configuration of the front of the motor car is likely to influence the speed required to cause an impact between the front windscreen and the head of the individual involved in such a collision. He noted that the majority of the motor cars involved in the Bellion research were US models. Whereas the present case involved a European model. In this regard he referred to a considerable body of research papers which demonstrated that impact speeds substantially below 30 mph caused such impacts in collisions involving European models.
60. In so far as the impact speed of the claimant's bicycle is concerned Mr Sorton considered that at 4 – 5 mph it would be quite difficult for a cyclist to maintain his balance, such that he favoured his own assessment of about 8 mph.
61. In their joint statement Mr Sorton largely repeated those matters which he had set out in his second report.
62. Dr Chinn in his evidence in the course of the trial sought to support his general assertion of high speed by the first defendant on the basis that the seat of the bicycle had been twisted in an anti-clockwise direction, the post-impact position of the cycle and the finding of one of the claimant's shoes in a rear garden near the scene of the collision.
63. Although he initially stated that in view of the first defendant's evidence as to his apparent state of preparedness for hazards on Knolton Way a reaction time of 0.7 seconds might be applicable. He later reconsidered the matter and concluded that taking account of all of the circumstances the original 1 second reaction time would be more appropriate in this case.
64. He was asked about the research carried out by Dettinger and agreed that in order to be able to use his formula it was necessary to input an impact speed for the motor car. He said that in this case he had used a speed of 35mph. When he was questioned about this it became clear that if he had in fact used a speed of nearer 40mph, this would have produced a significantly longer measurement. He agreed that if this measurement had been used to calculate the throw distance in this case, then this would in turn have produced an unrealistically high impact speed for the first defendant's motor car.
65. He stated that in his opinion the damage to the bonnet of the first defendant's motor car offside of the nearside headlight was likely to have been caused by impact with the claimant's femur. He considered that the indentations in this area may have been caused by the configuration of the engine beneath the bonnet. He was unable to assist with how the damage to the bonnet of the motor car nearside of the nearside headlights had been caused. Save that it must have been by some part of the cycle, possibly the saddle. In so far as the curved black mark on the front registration plate of the motor car was concerned he had no explanation for this. However because he believed that at the moment of impact the cycle was further towards the offside of the motor car, it would not have been caused by the leading edge of the front wheel of the cycle. He was unable to assist as to how the damage to the edge of the nearside front of the bonnet of the motor car had been caused.
66. He remained of the view that at the point of impact the first defendant's motor car was straddling the centre line, seeking further support for this view from his opinion that the enhanced police photograph showed some glass fragments on the offside carriageway. Albeit he conceded that if the motor car had been swerving post impact then some distribution of glass fragments on that carriageway could be expected. He said that broken laminated glass breaks into shards rather than cuboid pieces.
67. Dr Chinn accepted that there was some distinction to be drawn between pedestrians and cyclists in relation to throw distance calculations. But then went on to assert that as the Searle research was based on Newtonian principles the results would be the same. It became apparent that the Mukherjee research did relate to cycles. However it also became clear that the graph which Dr Chinn had used to base his throw distance calculation was not in fact one produced by Mukherjee, but one produced previously by Otto. He accepted that he had used the line of regression on this graph to assess the impact speed of the first defendant's motor car, and that the graph and Mukherjee's research indicated that there was a wide variation in the results produced depending on the particular circumstances of the collision, including the location of the impact on the motor car, and the angle of impact between the motor car and the cycle. Dr Chinn said that in the present case because of the lack of evidence in regard to these variable factors, he had been unable to take these into account and so relied upon the line of regression on the graph.
68. Dr Chinn accepted that the Bellion research related to pedestrians rather than cyclists. Such that when their different centre of masses was taken into account the use of this research would be likely provide too high an indication of speed. Albeit he said that the configuration of the claimant and his cycle would be likely to provide a lower centre of mass than a normal cycle. In any event he said that this was why he had used this research only to support an indication of speed, rather than as a basis for its calculation.
69. He accepted that the Van Schijndel research relating to pedestrians and cyclists indicated that at the same impact speed a cyclist is likely to impact with the windscreen at a significantly higher location as compared with a pedestrian. Albeit Dr Chinn again asserted that the configuration of the claimant and his cycle would be likely to lessen this differential. He also accepted that this research indicated that because of the hinging mechanism of the neck of a cyclist involved in such a collision, a cyclist's head is likely to impact with the windscreen of a car at a significantly greater speed than that of a pedestrian struck by a car travelling at the same speed. Thus at the same speed of impact by a car, the head of a cyclist is likely to cause greater damage to the windscreen of a motor car than that of a pedestrian.
70. Mr Sorton in his evidence in the course of the trial considered that the damage to the bonnet of the car on the near side of the broken headlight was likely to have been caused by impact with the claimant's femur. He said that this and his previous opinions as to the cause of the other damage to the motor car supported the view that there had been some lateral displacement by the claimant from his initial impact position with the motor car and his subsequent impact position with his head towards the top centre of the windscreen. This indicated a higher rather than slower impact speed by the cycle, which supported his view that even with an angle of impact of about 45 degrees, the claimant was likely to have been travelling at about 8 mph rather than 4 – 5 mph.
71. In relation to the location of the point of impact, Mr Sorton said that the use of the Dettinger formula was inappropriate as it required knowledge of the speed of the motor car, which was unknown. Instead he preferred to acknowledge that there may be a limited degree of forward throw of the broken glass from the point of impact by considering the throw distance calculation to be a minimum figure.
72. He reiterated his disquiet with the use of pedestrian based throw distance calculations, and was aware that Searle himself had suggested that his own formula overstated the position in relation to cyclists. Moreover it was apparent from Mukherjee's research that unless the variables were known, the research produced an unacceptable range of results. Indeed he went on to stress that in any accident reconstruction one should be cautious in the use of throw distance calculations as there was a risk of overestimating speed.
73. He also reiterated his disquiet with the use of Bellion, and for the same reasons expressed his disquiet with research produced by Dr Ashton who had indicated that contact with the roof of a motor car by an adult pedestrian following a collision required a minimum speed of 37mph. Although he acknowledged that the configuration of the claimant and his cycle would be likely to result in a lower centre of mass than an adult cyclist, he did not consider that it was appropriate to use pedestrian based research in the present case because of the lower centre of mass involved in such cases.
74. He indicated that he had not seen any of the research apparently carried out by Dr Chinn as to the impact speed required to produce damage to windscreens. However his own experience informed him that impact speeds of 30mph may cause impact holes in laminated windscreens. In his experience the vast majority of pedestrians struck at 40 mph do not survive. He said that it was inappropriate to use throw distance calculations in relation to the bicycle itself as not only was there no research on it, but the friction/drag factor would be significantly less than that of a human body.
75. In relation to the appropriate reaction time, Mr Sorton accepted that in principle if the first defendant was aware of the potential hazard of children in the area then 0.7 seconds could be used. However he considered that in view of the fact that the first defendant was also facing the hazard of Renee Hoadley's approaching vehicle, a reaction time of 1 second would be more appropriate in this case.
76. He accepted that on an open rural lane a motorist may be tempted to cut a corner of a bend. However he disagreed that this was likely to be a temptation with the average motorist in an urban situation such as a residential estate. He accepted that in general, post-accident swerving was more indicative of higher rather than lower speed. He stated that a 45 degree angle of approach by the claimant, as he had put forward, would involve the claimant being in view for a slightly longer period than if the angle had been Dr Chinn's 30 degree. He indicated that in his opinion the enhanced police photograph of the scene showed a distribution of broken glass mainly along the nearside carriageway and that the small amount of glass further on along the offside carriageway was likely to be accounted for by post-impact movement of the motor car.

Issues

77. The particulars of claim made three main allegations against the first defendant, namely driving at an excessive speed, failing to keep a proper look out and straddling the centre line. In relation to the third of these issues it was alleged that had the first defendant driven within his near side lane then the accident would have been avoided. At court the claimant concentrated upon the first and third of these allegations. The reason for this became clear from the evidence of the two experts, namely that unless the first defendant's motor car had been straddling the centre line then, even at 30mph, the collision was largely unavoidable. Albeit there were particular circumstances in which the accident could still have been avoided. This was because if the collision had taken place when the first defendant's motor car was within its near side lane, he had significantly less time within which to have had the opportunity of seeing the claimant prior to the moment of impact. Whereas if he had been straddling the centre line, then assuming he was driving at 30mph or less he would have had sufficient time to avoid the collision.
78. This was obviously contrary to the claimant's pleaded case. However, the effect of it was that it became potentially crucial to the claimant's case that he was able to establish that the first defendant was straddling the centre line at the time of the collision. The other effect of this was that save in relation to the issue of the first defendant's defective eyesight, there was little cross-examination in relation to the second allegation, it being assumed that if the collision occurred in circumstances where it was avoidable, then it was implicit that there had been a failure to keep a proper look out.
79. The defendants denied these allegations and asserted that at the material time the first defendant had been driving along his near side lane within the 30mph speed restriction. In these circumstances it was submitted that the collision was unavoidable. In any event it was asserted that the first defendant had been keeping a proper look out. Therefore there was no negligence on the part of the first defendant, the cause of the collision being the action of the claimant who without looking rode straight out into the path of the oncoming motor car.

Discussion

80. Having reviewed some of the more salient parts of the evidence in this case, I now turn to its analysis. Reminding myself that where reliable eye witness and other evidence from the scene is available, expert reconstruction evidence, necessarily provided with the benefit of hindsight, should be approached with appropriate regard to its theoretical limitations.
81. As I have indicated the first major issue in this case was the lateral position of the first defendant's motor car on Knolton Way at the point of impact with the claimant's bicycle. On this issue I found the evidence of Leanne Hoadley to be compelling. In her witness statement provided to the police dated 15.9.04 she had made it clear that when the collision occurred, the first defendant's motor car was positioned on its carriageway "right near" to its near side kerb. In her two witness statements provided to the second defendant she indicated that post-collision the claimant had landed on the same side of the carriageway as that upon which he had been struck by the motor car. In her evidence at trial she said that at the point of impact, the front nearside of the first defendant's motor car was about 1' from the edge of the near side edge of his carriageway. It is apparent that she would have been in a position to make this observation and, save at one point, maintained a consistency of account. In re-examination she appeared to suggest for the first time, that she had seen nothing of the collision prior to seeing the claimant being thrown into the air. I am satisfied that this was wholly out of line with her previously consistent accounts and was likely to have been borne out of an understandable, yet mistaken urge to seek to assist the claimant. I am quite satisfied that her truthful and accurate account in relation to this matter was the one which she had provided until then.
82. There was no inconsistent evidence from Renee Hoadley on this point, who I am sure is a careful driver and was keeping a proper look out as she was driving along Knolton Way. If it was correct that she did not notice the first defendant's motor car approaching her, then the only real explanation for this was that he was driving along the nearside of his own carriageway; such that there was no need for her to have taken any special notice of him as he was not in a collision course with her. On the other hand if the first defendant had been straddling the centre line, then I am sure that she would have noticed him, as he would have been on a collision course with her and she would have had to take precautions to avoid the collision.
83. However, having heard Renee Hoadley give her evidence in the course of the trial, I consider it far more likely, as she said in the witness statements which she provided to the second defendant, that she had in fact seen the motor car and the cycle, albeit only momentarily, prior to the collision. Although in her initial witness statement to the police and subsequently she has maintained that she saw nothing of the collision, that witness statement was extremely cursory. Moreover I did not find her explanation in evidence, as to why she signed witness statements stating that she had seen the car and the cycle prior to the collision, convincing. Not only is it apparent that there were two separate occasions upon which she had signed these statements. But on the second occasion she signed a manuscript addition which identified the location as to where she had first seen the claimant prior to the collision. Moreover my clear impression of Renee Hoadley was that she is a forthright person who would be most unlikely to have signed these witness statements if they did not reflect her recollection of the events.
84. Indeed if she had not seen the respective positions of the car and the cycle prior to the collision, it is difficult to reconcile how she could have formed her expressed opinion that the first defendant was not at fault, as he wouldn't have had a chance to see the cycle prior to the collision. This opinion was not in my judgement one that was simply expressed at the scene to provide comfort to the first defendant. It was repeated to the police following their attendance at the scene and I am satisfied that it was one which expressed her genuine view of the matter, based upon what she had seen of the accident, including the pre-impact position of the first defendant and the claimant, namely that the first defendant's motor car was within his own carriageway.
85. The matter which apparently caused Dr Chinn to have assumed that the first defendant's motor car was straddling the centre line at the time of the collision was the evidence of PC Parratt in relation to marker 1. Whilst I accept that PC Parratt's subsequent witness statements could have been far more clearly expressed and may have introduced unhelpful confusion, it seems to me that his original notes made in the police progress log and subsequent memorandum are tolerably clear, namely that the point of impact was adjacent to the white van. Meaning that the start of the shower of glass fragments was next to the white van, rather than next to the centre line. Indeed this was the clear purport of the evidence provided by PC Parratt in the course of the trial. It is also supported by the fact that when PC Parratt measured the distance from "POI to blood in n/side kerb" at 16.7 metres, this was from a position adjacent to the kerb edge, rather than from marker 1.
86. I have no doubt that as with markers 2 and 3, where a particular piece of physical evidence is sought to be located and recorded the police will normally place the marker adjacent to that piece of evidence, such that photographs can be taken of it. However, I am not satisfied that this is such an invariable practice that it leads to the conclusion that marker 1 is the location of the first piece of glass found by the police both along and across Knolton Way. As PC Parratt expressed himself in his original notes, what he was purporting to show was the "start of glass spread." Which may also account for why, in contrast to markers 2 and 3, he did not provide a close up of marker 1, rather he photographed a general view in an easterly direction along Knolton Way which included marker 1.
87. Dr Chinn sought to reinforce his assumption that the first defendant's motor car had been straddling the centre line at the moment of impact, by suggesting that the enhanced police photograph provided by Mr Sorton showed glass fragments on the offside carriageway. In contrast Mr Sorton suggested that whilst there might be a small amount of such glass on that carriageway consistent with post-impact swerving from the nearside to the offside carriageway, the majority of the glass fragments were on the near side carriageway. Indeed in a distribution which suggested that the first defendant's motor car had been wholly within this carriageway and driving parallel with the near side kerb edge. Whilst I do not consider that from the photograph alone which I have seen it would be appropriate to reach any concluded view on this issue, from my observations the balance is markedly in favour of the interpretation placed on it by Mr Sorton rather than Dr Chinn. The latter having conceded in evidence that the presence of some glass fragments in the off side lane could be accounted for by the post impact driving of the Defendant.
88. Mr Sorton sought to reinforce his view that the more likely impact position of the first defendant's car was within his nearside carriageway, by reliance upon the post-impact position of rest of the claimant. In my judgement there is considerable merit in this point, in that as neither expert suggested that the claimant would have been subject to any significant post-impact lateral movement after his head hit the windscreen, the claimant's post-impact position is entirely consistent with him having been struck by the motor car whilst it was within the nearside carriageway. Consequently, unless the motor car was at an angle facing towards the nearside carriageway at the moment of impact, of which there is no evidence, the post-impact position of rest of the claimant would be inconsistent with the motor car straddling the centre line at that time.
89. It was suggested on behalf of the claimant that because the first defendant had approached the scene around a bend he may have cut the corner and was thereby straddling the centre line. It was also suggested that he may have compensated for his defective sight by avoiding the near side, causing him to straddle the centre line.
90. Save for the possible inference sought to be drawn from marker 1 there was no real evidential foundation for either of these assertions. I reject them in any event. Firstly it appears that with one exception in his teenage years, there is no evidence that the first defendant is anything but a reasonably careful driver. He knew Knolton Way as he lived on it at the time and was therefore aware of the likelihood of the presence both of motor vehicles parked on his offside carriageway and of oncoming motor vehicles, such that it is unlikely that he would have put himself in a position of potential danger by straddling the line. Secondly, I accept that as a result of his defective vision being of such longstanding, the first defendant compensates for this whilst driving by more exaggerated head movements, rather than avoiding the nearside and straddling the centre line. Had the latter been his practice it is likely that this would have caused a number of previous road traffic accidents. I also note that for a number of years he has maintained a responsible position as a slinger-banksman, which requires a considerable degree of visual acuity. In these circumstances I do not consider that his defective eyesight had any causative effect on this accident.
91. In conclusion I am satisfied that no sufficient inference can be gleaned from the evidence concerning marker 1 so as to provide doubt about the clear evidence from at least Leanne Hoadley, that at moment of impact the first defendant's motor car was within his own carriageway. This is consistent with the account provided by the first defendant. Indeed bearing in mind the presence of parked vehicles on his offside carriageway and the approach of Renee Hoadley's motor car, I am of the view that it is likely that the first defendant was not only driving within his own carriageway, but was also keeping relatively close to the nearside kerb, as Leanne Hoadley described in her evidence and the first defendant described in his witness statement dated 10.9.10.
92. The second major issue in this case has been the speed of the first defendant's motor car at the time of the collision. Although Renee Hoadley provided an initial estimate of this speed in her police witness statement of about 40mph, she signed two witness statements made on behalf of the second defendant stating that on reflection she would prefer to describe her estimate of speed as "more than 30mph." Once again I did not find her explanation for seeking to reject the contents of these two witness statements convincing. As I indicated previously there were two separate occasions upon which she had signed these statements. Also on the first such occasion a number of amendments had been made to the manuscript version, more than one of which appear to have been at her behest. Moreover, as I have previously indicated, my clear impression of Renee Hoadley was that she is a forthright person who would be most unlikely to have signed these witness statements if they did not reflect her recollection of the events.
93. More importantly I have very considerable doubts as to the ability of Renee Hoadley to be able to have made any meaningful assessment of the speed of the first defendant's motor car at the time of the collision. Firstly, it was clear from the evidence which she provided in the course of the trial that her assessment was based on what she had seen in her rear view mirror after bringing her own car to a halt in the bus stop area. Secondly, it was apparent that her assessment was in reality based upon the fact that at that time the first defendant's car was swerving from side to side.
94. Whilst I accept that in many circumstances, swerving from side to side is likely to be indicative of a higher rather than a lower speed, in the present case the first defendant provided an explanation for his loss of control of his vehicle at that time. Namely, that he had instinctively sought to jump away from the shower of glass caused by the impact with his windscreen and in the process had misplaced his foot on the brake and lost full control of his car. I have considered this explanation and the first defendant's evidence in general with care. I am of course conscious of the reprehensible aspect of his conduct in relation to his lack of insurance at the time of the collision and his subsequent conviction, involving admitted dishonesty in relation to it. However, apart from one particular matter which I will mention in due course, I found the first defendant to be a straight forward and honest witness and one whose account I was prepared to accept in relation to the significant matters in dispute in this case. In relation to this particular explanation I have no doubt that just as the collision has subsequently caused tragic consequences to the claimant, at the time I have no doubt it caused sufficient fright to the first defendant so as to have caused him to lose full control of his motor car in the manner which he described. In these circumstances, unlike many others, I do not consider that the fact that the first defendant failed to stop immediately after the collision and swerved before bringing his car to a halt just east of Welden, is indicative of excessive speed in this case.
95. In contrast, I regret that I consider that as the trial has approached Renee Hoadley, and indeed others, for entirely understandable reasons have sought to view certain aspects of their recollections in a manner which they considered would assist the claimant in establishing liability, rather than being a reflection of reality. In so far as Renee Hoadley is concerned, one of these was her explanation for the recanting of some aspects of the witness statements which she provided for the second defendant, namely pressure from the second defendant's representative. I reject this, considering that it was more likely to have reflected an acknowledgement of her inability to provide reliable evidence of excessive speed by the first defendant. I also reject her evidence that immediately after the collision the first defendant explained that he had just completed a long shift and was tired. This was not something which appears to have been mentioned until the witness statement which she made for the claimant. If it were true, and as its potential relevance would have been obvious to her, she would have been likely to have informed the police about it immediately after the accident. Moreover, the available evidence which I accept is that the first defendant was on his way to, rather than from work at the time of the accident, and that he had left sufficient time to complete the journey without having to drive at an excessive speed.
96. It is in relation to her assessment of speed that I consider that Leanne Hoadley has also been tempted down this path of understandable sympathy for the claimant's predicament. She declined to provide an assessment of the first defendant's speed to the police, on the basis that she was unable to drive at that time. However she has since then decided to do so, on the basis that she has now learnt to drive. I regret that I find this explanation unconvincing. I do not consider that it is in any way likely that an individual who was not previously able to make an assessment of driving speed on a particular occasion, would be enabled to do so in hindsight by subsequently passing the driving test. Certainly not with any sufficient degree of accuracy. Rather I consider that having been aware of her mother's earlier assessment, this has wholly informed her view of the matter. In any event, as with her mother, this was an assessment which was apparently based upon a view of the first defendant swerving as he proceeded to a halt behind the motor car in which she was sat.
97. The only other evidence from the scene, save for the lack of tyre marks on the road, came from Robert Aldridge. Although in his evidence he sought to suggest that the first defendant's car was being driven a bit fast. This has to be contrasted with his previous witness statement provided to the second defendant, wherein he said that the speed at the time he saw him go past the end of Weldon was between 10 – 15 mph. I do not consider that his evidence could properly give rise to an inference that the first defendant had, prior to this sighting, been driving at a speed in excess of 30mph along Knolton Way.
98. In the absence of reliable eye witness or other evidence at the scene, save for that of the first defendant, it is necessary to consider whether the claimant is in a position to establish excessive speed on the part of the first defendant by way of expert evidence.
99. In order to establish this Dr Chinn seeks to rely upon both the Dettinger research, in order to locate the point of impact and throw distance research which mainly, although not exclusively, relates to pedestrians.
100. I have concerns as to the application of the Dettinger research to this particular case. There is the issue raised by Mr Sorton as to its application in relation to headlight glass, rather than windscreen glass. In the present case although there must be a query as to PC Parratt's identification of the first piece of glass he found as being headlight glass, rather than windscreen glass on the basis of his mistaken impression as to the shape of glass from broken laminated windscreens, he was firm in his opinion that this piece of glass was from that source. Moreover, on the basis which I have found that the first piece of glass was relatively close to the near side kerb edge on Knolton Way, I accept Mr Sorton's view that this was more likely to have been headlight glass, as it would have broken first in time and have a shorter distance to fall onto the surface of the road. Indeed neither expert considered that there would be significant lateral displacement of glass fragments. Therefore although the Dettinger research appeared to suggest that the difference in the behaviour of glass from these two sources may not be particularly significant, I remain concerned for the reasons expressed by Mr Sorton that it may overstate the forward movement of this variety of glass.
101. However my main area of concern arises out of Dr Chinn's concession that in order to utilise the Dettinger formula, it is necessary to input a presumed vehicle speed. Such that if the input speed was in fact one of about 40mph, it would result in an unrealistically high impact speed when used in conjunction with throw distance calculations. In these circumstances, given the limited known parameters in this case, its use in my view involves an unacceptable degree of uncertainty and artificiality. Therefore I am of the opinion that the safer course is that taken by Mr Sorton to acknowledge a degree of forward movement by using the speed attained from appropriate throw distance calculations as a minimum.
102. Now that Dr Chinn has utilised the 16.7 metre distance between marker 1 and 2, it is the inclusion of the product of the Dettinger research which results in the main difference between the two experts in relation to the results of the pedestrian based throw distance calculations. Therefore as a calculation, and in the absence of the product of the Dettinger research, the appropriate figure is that provided by Mr Sorton of 32.73 mph, albeit this is to be regarded as a minimum.
103. However this is by no means the end of the matter for beyond this are the concerns raised by Mr Sorton as to the applicability of such calculations based on pedestrian research to the present case involving a cyclist. In this regard I am somewhat surprised that Dr Chinn made no mention of the research by Haight and Eubanks, as it is apparent from this and the Van Schijndel research in relation to a different aspect of this case, that cyclists involved in collisions with motor cars are likely to behave in significantly different ways to that of pedestrians. Such that in the context of throw distances, I accept that pedestrian based throw distance calculations are likely to significantly overestimate the impact speed of the motor car.
104. I appreciate that Dr Chinn also sought to use the Mukherjee research to support his opinion as to the likely impact speed in this case. However it became clear in the course of the trial that the graph which he relied upon from this research was in fact one which had been produced by Otto, and that one of the purposes of the Mukherjee research was to produce a critique of that earlier research resulting in a conclusion that coincided with Otto, namely that depending on the particular circumstances of the collision a wide variation in results is likely to be obtained. Such circumstances included the position and angle of impact. Although Dr Chinn has subsequently sought to provide some opinions on these latter parameters, he did not reanalyse his throw distance calculation in the light of them. Instead preferring to rely upon the line of regression. Having looked at the Mukherjee research I accept Mr Sorton's criticism of this approach, namely that it unfairly disregards the wide variation in possible results and consequently does not provide a sufficiently reliable basis for throw distance calculation in this case.
105. Dr Chinn himself acknowledged that the remaining evidence which he relied upon to support a higher rather than lower speed, indicated just that and did not provide a particular calculation of speed. In his evidence in the course of the trial he sought to rely upon the nature of the damage to the bicycle, the distance it had been thrown and the assertion that one of the claimant's shoes had been found in a rear garden. There was no firm evidential foundation for the last of these factors. Moreover neither that factor nor the location of the cycle was supported by any academic research. Indeed as Mr Sorton pointed out the difficulty with any extrapolation from any of the throw distance research is that cycles, and by extension shoes, are likely to behave in significantly different ways to human bodies. Amongst other matters, the drag mechanism in relation to such items will be very much less than that of human bodies, and are therefore likely to be projected further. In relation to the post-impact position of the handle bars, it did not seem to me that this indicated any particular impact speed. Certainly no academic research was relied upon in support.
106. However even where academic research was sought to be relied upon by Dr Chinn, there was a degree of selectivity, in that whereas the pedestrian based research of Bellion was relied upon, the cyclist based Van Schijndel research was not. This latter research was pertinent not only in relation to the implications which could be sought to be drawn from the location of the impact of the head on the car, but also the degree of damage it thereby caused. The former of which was likely to be at a significantly higher level and the latter of which was likely to be a significantly greater degree in cases involving cyclists compared with pedestrians who collided with motor vehicles travelling at the same speed.
107. I appreciate that the cyclist based research of both Haight and Eubanks and that of Van Schijndel involved adults, whereas in the present case the claimant was only 14 years of age at the time of the accident. Such that his configuration and that of his bicycle may have meant that he would have had a lower centre of mass than that of an adult cyclist. However I accept Mr Sorton's view that his centre of mass would not be as low as that of a pedestrian, such that it would be inappropriate to use pedestrian based research without an appreciation of the likelihood that it would produce significantly exaggerated results in this case.
108. Although Dr Chinn sought to support his own view as to excessive speed by reference to his own research of the amount of force required to break the plastic interlayer in laminated windscreens, this research was not made available for analysis by either Mr Sorton or the court. This was unfortunate as Mr Sorton's own experience was that such breakages can occur in impacts at speeds of only 30mph. In the absence of being able to make some meaningful assessment as to the accuracy and reliability of Dr Chinn's research it would to my mind be unfair to use Dr Chinn's view upon this matter, in preference to the experience of Mr Sorton. A further matter of some note was Mr Sorton's evidence, which was not sought to be contradicted, was that the vast majority of pedestrians struck at 40mph do not survive. In contrast to the position in this case.
109. In these circumstances I consider that it was appropriate for these limitations in the use of pedestrian based research to be properly taken into account in this case. In my judgment Dr Chinn failed to do so and this is likely to have resulted in a significant over assessment of the impact speed of the first defendant's motor car by him. In contrast Mr Sorton's assessment, which took proper account of these limitations, has in my judgement resulted in a more accurate assessment of the impact speed of the first defendant's motor car. In these circumstances, and bearing in mind the significant exaggeration which is likely to be effected by the use of pedestrian based throw distance calculations, I am not persuaded on the balance of probabilities that the first defendant was driving his car at a speed in excess of the 30 mph speed restriction along Knolton Way when his motor car was involved in a collision with the claimant riding his bicycle. This being consistent with the evidence of the first defendant which I accept, that at the time of the collision he was driving his motor car along Knolton Way at no more than 30mph.
110. Of course the fact that a motorist may have adhered to the relevant speed restriction may not be sufficient to absolve him of liability if the circumstances indicate that a lower speed was required for him to be able to safely negotiate the road. However the claimant has not sought to submit that a lower speed was required and none of the witnesses have sought to suggest otherwise. Whilst appreciating the presence of parked vehicles in a residential area may cause potential problems with visibility, they were not in my judgement such as to have required a lower safe speed in the present case.
111. Reflecting the approach that was adopted by the claimant in the course of the trial the third issue may be dealt with more succinctly, namely whether the first defendant was keeping a proper look out. In this regard I accept the evidence of the first defendant that as he was approaching the scene of the collision, he did look towards his near side prior to turning his attention to the oncoming car being driven by Renee Hoadley. I consider that in the circumstances of this case, the first defendant discharged his duty to keep a proper look out, as there was no sufficient reason why he would have been under an obligation to have done more having regard to the presence of the oncoming motor vehicle which was overtaking the line of parked cars on the near side of its own lane. Indeed it was not submitted otherwise by the claimant.
112. There were other issues raised in this case, one of which, as the evidence of the experts developed, became of particular significance due to its potential affect upon the issue of avoidability of the collision. This was the likely speed of the claimant's bicycle leading up to and at the moment of impact. Clearly this was not susceptible to throw distance calculations. It is in this regard that the position of the claimant at the moment of impact is of significance, which in turn is informed by the cause of the damage to the first defendant's motor car.
113. Although in his first report Dr Chinn stated that the leading edge of the front wheel of the cycle would have been in line with or just beyond the centre of the car, in his evidence he appeared to seek to place the cycle somewhat further to the offside of the midline. He thus concluded that there had been no lateral displacement by the claimant as evidenced by the head impact with the windscreen being in appropriate alignment with the femur damage to the bonnet of the car to the offside of the near side headlights. Thus supporting a pre-impact cycling speed of 5mph.
114. However in my judgement the physical evidence of the damage as described in the police progress log and shown on the police photographs, clearly supports the opinion of Mr Sorton that, although within the edges of the motor car, the claimant was towards the near side of the front of the motor car at the moment of impact. The black circular mark on the registration plate appears most likely to have been caused by the leading edge of the cycle's front wheel. A mark for which Dr Chinn had no explanation. Moreover the mark on the front of the bonnet appears to be consistent with having been caused by the nearside front wheel fork of the cycle which had itself been damaged. This would in turn favour the location of the femur impact with the car as being above and to the nearside of the broken front nearside headlights, where an area of diffuse damage is evident. An area of damage which again Dr Chinn was initially unable to explain, before proffering the suggestion that it might have been caused by impact with the saddle. In view of the fact that the cleaning mark on the bonnet could have been caused by one of the claimant's arms, it does not appear to me that this favours one expert's view over the other.
115. On the basis of Mr Sorton's opinion as to the likely cause of the impact damage to the car which I accept, this would result in there having been some element of lateral displacement of the claimant's body, which in turn would favour the higher cycle speed assessment provided by Mr Sorton of 8mph.
116. In my view this also chimes with practical experience, in that a speed of 4 – 5 mph is one where some difficulty may be experienced with keeping balanced, whereas an adult jogging speed of around 8mph may well be considered to be a more typical cycling speed in the circumstances of this case.
117. I have given consideration to the evidence of Leanne Hoadley. If it is correct that she saw the claimant riding down Welden, then her evidence of lack of excessive speed has to be considered. However on the basis that 8mph could not reasonably be described as being excessive for a bicycle, I do not consider that this detracts from an assessment of his likely speed as being about 8mph. Indeed it seems to me that had the claimant been travelling at only 4 – 5 mph, then as this is a particularly slow cycle speed, it might well have been anticipated that an observer would have noted it. This would apply with equal force in relation to the evidence of Robert Aldridge on this point.
118. Leanne Hoadley has been somewhat inconsistent in that aspect of her evidence relating to whether the claimant hesitated slightly before emerging out onto the road. Undoubtedly if he did so, it was either not for the purpose of checking to see if it was safe to emerge onto the road, or if it was then he did so inadequately. In any event she gave evidence that this hesitation did not bring the cycle to a halt, rather she described it at one point as being a momentary slowing down of his speed, and at another point as him bracing himself in order to proceed from the pavement onto the road. In my judgment neither of these descriptions are sufficient evidence of any significant slowing down by the claimant to cause me to reduce my assessment of his likely riding speed of about 8mph.
119. Although in the course of the evidence both experts considered various estimates of the reasonable reaction time which was applicable to the first defendant, ranging from 0.5 – 1.5 seconds, in the end both considered that a 1 second period was the most appropriate. In that although knowledge of the risks of potential hazards such as children may reduce the period, equally the presence of a further hazard, namely Renee Hoadley's oncoming motor car, may increase the period.
120. It is correct to note that at one point in the course of being cross-examined, the first defendant suggested that as a result of his knowledge of the potential risk of children in the area, his right foot was covering the brake pedal. In contrast to the remainder of his evidence this is the one area of his evidence which I found to be unconvincing. It appeared to me that it was likely to be borne out of a desire to suggest something which he considered the court would wish to hear, rather than either what had actually happened or what was reasonable to expect a driver to be doing on Knolton Way. In these circumstances I am of the view that a reasonable driver reaction time in this case was 1 second.
121. I have found it far more difficult to reach any concluded view in relation to a further matter of detail, namely the angle at which the cycle approached the car and impacted with it, which in turn dictates the distance if any over which the cycle would have been visible to the first defendant prior to the collision. With respect to the two experts there did not appear to be any particular science upon which their respective views could be properly assessed. Ultimately because of my findings in relation to the more prominent features of this accident, liability will not rest upon the resolution of these matters.
122. What is agreed in relation to the angle of approach is that it was not at 90 degrees otherwise the claimant would have landed towards the offside of the first defendant's motor car. The difference between the experts is 30 degrees for Dr Chinn and 45 degrees for Mr Sorton. In terms of avoidability the 45 degree angle is in fact more favourable to the claimant, due to the longer distance the claimant would have been visible on the road prior to the moment of impact. Moreover it has a degree of rational compromise as being equidistant between 0 and 90 degrees. Thus in the absence of any other manner in which this could be sensibly resolved, it may be considered that this is the more appropriate angle.

Conclusion

123. On the evidence which I heard in this case I am satisfied that at just after 6pm on 1.9.04 the first defendant was travelling to work at Heathrow airport. He was not in a hurry and had just visited a local shop to purchase a newspaper. As the first defendant was driving along Knolton Way he was doing so both within the speed restriction and within the nearside carriageway, in circumstances where a lower safe speed was not required. As the first defendant approached the scene of the collision he had already looked towards his nearside, before turning his attention to Renee Hoadley's oncoming car. At that point the claimant riding his bicycle emerged from behind a white van parked on the nearside verge and into the path of the first defendant's motor car. A collision then occurred which in my judgement the first defendant had no reasonable opportunity of avoiding, as a result of the presence of the white van parked on the nearside verge which had obscured his view of the claimant.
124. As I indicated at an earlier stage of this judgment it emerged during the course of the evidence that there were certain limited circumstances in which the collision could have been avoided despite the first defendant travelling within his own lane. However as a result of my findings in relation to the likely speed of approach of both the first defendant's motor vehicle and the claimant's cycle these circumstances do not pertain. Moreover, as I have made clear in this judgment, the first defendant was keeping a proper look out. In these circumstances the claimant has failed to establish liability in this case.
125. I appreciate that these findings will be extremely unwelcome to the claimant, his family and friends. I am only too well aware of the implications for him, given the devastating injuries which he suffered in the accident. I trust that he will accept my assurance that as a result I have given the evidence the utmost scrutiny and have reached this conclusion with very considerable reluctance. However I do not consider that the evidence reasonably permits any other conclusion, which is one that on this occasion echoes the views of at least one of the eye witnesses present at the scene.

Assessment of damages

126. Having heard the evidence and argument in relation to quantum, it is appropriate that I turn to deal with this aspect of the case.
127. In doing so I bear in mind that the Court of Appeal in Heil v Rankin and others [2001] 2QB 272 made it clear that,

"……the aim of an award of damages for personal injuries is to provide compensation. The principle is that 'full compensation' should be provided. ……This principle of 'full compensation' applies to pecuniary and non-pecuniary damages alike. …..The compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the defendant, and it must not be out of accord with what society as a whole would perceive as being reasonable."

Medical evidence

128. The claimant relies upon the evidence of Mr BP Gardner, Consultant Surgeon in Spinal Injuries, who has prepared reports dated 14.7.08 and 20.8.12. The defendants rely upon the evidence of Mr AM Tromans, Consultant in Spinal Injuries, who has prepared reports dated 15.9.10 and 12.10.12. There is also a joint report from these two doctors dated 2.5.13.
129. It is agreed that as a result of this accident the claimant suffered a burst fracture of C4 and a wedge fracture of C5, resulting in a spinal cord injury ("SCI"). He also suffered a fracture of the mid-shaft of his right femur together with various soft tissue injuries to his body. The fractures were fixed under surgery at hospital where he remained for about 2 months, following which he was transferred to the National Spinal Injuries Centre at Stoke Mandeville. The claimant remained there, save for a short unsuccessful stay at home over Christmas, for a further period of 8 months. Whilst at hospital he developed a pneumothorax and a tracheostomy was performed. He also developed pneumonia. Over the Christmas period he suffered respiratory arrest and was obliged to be returned to hospital for ventilation. There a kidney stone and bladder stones were discovered on ultrasound investigation. Whilst at Stoke Mandeville further such stones were discovered and he suffered a popliteal deep venous thrombosis. He also developed some hypersensitivity over the dorsum of his fingers and thumb, which has now resolved.
130. The SCI has resulted in the claimant being tetraplegic, with the last normal sensory level on both sides being C4, whilst he is motor complete at C6 on the right and C5 on the left. Although he does have some return of sensation below the level of the injury, this is not sufficient to place him in the Frankel/ASIA B category or for him to be regarded as sensory incomplete.
131. As a result the claimant's urine drains through a suprapubic catheter and manual evacuation of his bowels is required. He has episodes of autonomic dysreflexia which are normally caused by problems associated with his catheterisation. Two such episodes were sufficiently acute to require hospitalisation for short periods. He has had a number of urinary tract infections. He experiences muscle spasms which are troublesome, particularly at night when they cause his legs to stiffen into awkward positions which require to be repositioned by his carer. Pressure sores have arisen on occasions, which have been successfully treated. He has a thoracic scoliosis causing his head and neck to tilt. He has no sensory sexual function. He has developed increasing stiffness and aching in his left neck and shoulder. He takes Paracetamol to relieve these symptoms.
132. As a result of his condition the claimant requires assistance with most aspects of his daily life. He is hoisted from his bed to his wheelchair and likewise to the shower and commode. Thereafter his mobility is dependant upon his wheelchair. With assistance and some difficulty he can wash his upper body and teeth, shave and feed himself. At present he is dependant upon others for transportation by car.
133. In the future he may require upper limb reconstruction and surgery to deal with his scoliosis. His ability to father children will be dependant upon the provision of specialist fertility services. He is unlikely to be able to enter gainful employment to any significant degree. There are likely to be complications associated with his SCI from time to time in the future and these will require to be managed preferably at Stoke Mandeville. In this regard there is likely to be some short fall between his clinical needs and NHS provision. The claimant is at risk of developing a syrinx and the overall risk of significant deterioration from this is 1.5%.

Pain, suffering and loss of amenities

134. I do not accept the submission made on behalf of the defendants' that because the claimant has some limited arm function, he is in a "halfway house" between tetraplegia and Paraplegia for the purposes of the assessment of damages for pain, suffering and loss of amenities. Whilst it may have some affect upon the level of such damages, in my judgment the extent of the claimant's injuries and consequential disabilities place him firmly within the tetraplegic category. The current Judicial College guidelines indicating a bracket of between £232 000.00 – 288 500.00. It is of relevance that the claimant has developed some stiffness and aching in his left shoulder and neck. Although more recently these symptoms have lessened, which may be due to some falling off in his attendance at wheelchair rugby, I accept the evidence of the claimant that he is likely to be resuming his interest and participation in this sport, such that the associated symptoms are likely to resume and persist. In these circumstances I consider that the appropriate award in this case would be £260 000.00. There will be provided interest on this sum at the rate of 2% per annum from the date of service of the claim form on 18.11.11, being an aggregate rate of 3.19% up to 24.6.13, namely £8 294.00.

Loss of life expectancy

135. The main area of dispute between the doctors is in relation to the effect of the claimant's SCI on his life expectancy. In this regard it is important to bear in mind that the SCI has an indirect, rather than a direct affect on this matter. In that the SCI may give rise to future complications, particularly chest infections and the like, which are likely to compromise his future health and survival. Moreover, any figure which is provided is of course only an assessment of the future, such that an individual may survive for a shorter or longer period.
136. In his first report, Mr Gardner stated that the average low cervical complete tetraplegic of the age of the claimant, then 17, can expect to live for 65% of the remaining expected years of life, as compared with a sensory incomplete low cervical tetraplegic, who can expect to live for 80% of those years. He referred to research carried out by Krause to the effect that a complete tetraplegic who is engaging positively in life, has a good medical history and has the benefits of compensation can expect to live for 80% of those years. Dr Gardner concluded that balancing the various factors relevant to the claimant, he would expect him to live for between 75 – 80% of the remaining expected years of his life.
137. In his second report, Mr Gardner referred to recent research carried out by Middleton, which indicated that the average low ABC cervical tetraplegic can expect to live for 74% of the remaining expected years of life. He noted that there had been both positive and negative factors relevant to the claimant's life expectancy, such that he concluded that he would expect the claimant to live for 75% of the remaining expected years of his life.
138. In his first report, Mr Tromans referred to research carried out by Strauss which indicated that a C5 tetraplegic can expect to live for 59% of the remaining expected years, whereas an incomplete C5 tetraplegic can expect to live for 70% of those years. He also referred to research carried out by Yeo which indicated that the appropriate figure in this case would be 69%. He concluded that balancing the various factors relevant to the claimant, he would expect him to live for 75% of the remaining expected years of his life.
139. In his second report, Mr Tromans made reference to the same research and concluded that he would expect the claimant to live for 65% of the remaining expected years of his life.
140. In their joint report, Mr Gardner stated that the Yeo research has been superseded by the more recent research carried out by Middleton. Mr Tromans pointed out that both of these studies were carried out in Australia, whereas the research carried out by Frankel was carried out in the UK. Moreover research by Strauss in the US, indicated that a complete C5 tetraplegic can expect to live for 59% of the expected remaining years.
141. In evidence it was apparent that Dr Gardner considered that the main factor which determines the life expectancy of a tetraplegic is the function of the diaphragm; those with good respiratory function being likely to have a significantly longer life expectancy, than those with a poor one. In this regard he considered that the claimant has good function of his diaphragm, such that for these purposes he should be considered to be a low cervical tetraplegic.
142. He considered that there are a number of other positive factors beneficially influencing the claimant's life expectancy above the average, including his positive mental attitude to life, his good medical history, his involvement in physical exercise, his family support and, if he gains compensation, the benefits of his higher socio-economic circumstances. Moreover he was of the opinion that although the amount of lower body sensation experienced by the claimant is insufficient to place him in the average Frankel/ASIA B category, it is sufficient to have a significantly positive effect upon his life expectancy.
143. In relation to the various research papers, Mr Gardner stated that although Frankel was carried out in the UK it is now of some age and didn't take into account the effect of the retention of sensation as a factor affecting life expectancy. He stated that Strauss was research carried out in the US and that there were various factors why he did not consider that its results can be properly applied to the UK. These factors being: firstly, in the US medical treatment largely depends on the ability of the person to pay, in contrast to the situation in the UK where medical need is the criteria; secondly, the aftercare of those with SCI tend to be treated in their local hospitals, whereas in the UK such persons are referred back to the original hospital who treated the person for their SCI; thirdly, in the US there is extremely limited initial training for life provided after the occurrence of the SCI, some 21 days or so, in contrast to the UK where a far more extensive period of training is provided. Mr Gardner stated that the combination of these factors was likely to have a detrimental effect upon the long term life expectancy of those with SCI in the US, as compared with those in the UK. In this regard it was important to bear in mind that in relation to life expectancy, the ability of an individual to take appropriate precautions against the complications which arise following SCIs and to be able to obtain swift and informed expert treatment for any such complications were key determinative factors.
144. Mr Gardner stated that in contrast to the US, the Australian health care system was far more akin to that in the UK, such that the Middleton research could be properly applied to cases in the UK. He acknowledged that it appeared from the Middleton research that there had been a degree of plateauing in relation to tetraplegics. However in contrast to the US there didn't appear to be any deterioration. He considered that the UK experience was much more likely to be similar to that of Australia, as opposed to that of the US.
145. Mr Tromans agreed that in forming his opinion he had not given credence to the socioeconomic factors considered in the Krauss research. Moreover he accepted that in the US it was the post-accident care afforded to SCI patients that was likely to have influenced the poor life expectancy results indicated by the Strauss research. However he questioned whether it was appropriate for the results of the Middleton research to be applied to cases in the UK, as this research was carried out in Australia.
146. Mr Tromans was asked about the alteration of his opinion as to the appropriate percentages as provided in his first and second reports, being 75% and 65% respectively. He stated that he believed that this was a typographical error. Albeit at a later stage of his evidence he appeared to suggest that it had been an error of calculation. He accepted that the claimant had good respiratory function. Moreover that there were other positive factors, including, the claimant's positive mental attitude to his condition and the lack of significant complications to date, such that the claimant would be likely to live longer than the average person in his position. Although he did not say so in terms, it appeared that he didn't consider the retention by the claimant of some sensation below the level of the injury to be a particularly influential factor in determining his life expectancy.

Discussion

147. In so far as the assistance that can be gained from academic research is concerned, for the reasons advanced by Mr Gardner I accept that the Australian based research is likely to have more relevance to this case, than that carried out in the US. As it is the complications arising out of a tetraplegic's condition which give rise to the loss of life expectancy, so the difference in the prevention and treatment of these under the two health regimes is likely to influence the degree of that loss. In this regard the evidence I heard about the various health regimes leads me to believe that the UK system is more akin to the Australian model, than that operating in the US. Such that the more recent Middleton research is likely to be of the most relevance in this case.
148. Furthermore it does appear to me that there are a significant number of factors which are likely to have a positive influence upon the life expectancy of the claimant. These include his very positive mental attitude to his circumstances, a matter which I have witnessed in the course of this trial; his good medical history to date; the amount of physical exercise which he has undertaken to date and is likely to undertake in the future; the generous support of his family; his good respiratory function, and; the retention of some lower level sensation. I also accept from the Krause research that positive socio-economic circumstances are likely to have some beneficial effect, such that on the basis that the claimant was to receive compensation, this would be a further factor to take into account.
149. In these circumstances I prefer the opinion of Mr Gardner and accept his assessment of life expectancy in this case, which I find to be 71.65 years. On this basis it is agreed the appropriate full life multiplier for the purposes of calculating damages awards will be 28.39.

Accommodation

150. The claimant presently resides in local authority accommodation with his father and his partner, at 7, Welden, Wexham, near Slough. This is a 3 bedroom house on two storeys. It is agreed that this house is unsuitable for his present and future needs and that he will require alternative accommodation.
151. In his first witness statement the claimant said that he would like to move to Aylesbury so as to be near to Stoke Mandeville, such that when complications arise in his condition, he would be able to access their expert medical assistance immediately. In his second witness statement he gave a recent example of the difficulties that can arise, when he was provided with inappropriate treatment for autonomic dysreflexia at his local hospital in Wexham in January 2013. He also raised concerns about his feelings of insecurity and vulnerability arising out of a spate of recent thefts and damage caused to his Motability vehicle whilst it was parked at his home overnight.
152. In his first witness statement the claimant described that when he tried hydrotherapy when he was an inpatient at Stoke Mandeville, he did not like the sensation of the water on his body as he went into and out of the pool. This being due to some hypersensitivity which he was experiencing at the time. However he said that he would like to try it once again as he doesn't suffer from this anymore and indeed really enjoys the sensation of water on his skin when he showers. In his evidence during the course of the trial he acknowledged that he had not been in such a pool since his initial period as an inpatient at Stoke Mandeville. He acknowledged that he could have gone to a public pool such as the one at Stanmore, but said that he would feel embarrassed by his condition. According to the evidence of Michael Streeter it takes about an hour to drive to Stanmore from Slough, which is about the same time it takes to drive to Stoke Mandeville. Although I heard no evidence upon this point I anticipate that it takes no more than an hour to drive from Stoke Mandeville to Stanmore. The latter being the venue for one of the wheelchair rugby clubs.
153. In her second witness statement Nicola Lewendon confirmed that the claimant loves being in the shower. In her evidence in the course of the trial she said that sometimes he would sit in it for 20 minutes or so.

Medical evidence

154. In his first report Mr Gardner said that the claimant will require to be provided with bungalow type accommodation with all the necessary adaptations for ease of movement around the house and its use by someone with the claimant's level of disability. In addition to a reception room he would require a separate room to carry out his own special interests and use his special equipment. The latter being stored in a separate room. The claimant would require a separate bathroom. Moreover the independent carer should be provided with her own apartment, incorporating a separate entrance, bathroom, kitchen and bed-sitting room. Air-conditioning would be required as a result of his impaired temperature control. Mr Gardner noted that when at Stoke Mandeville the claimant didn't like the sensation of hydrotherapy.
155. In his first report Mr Tromans agreed that the claimant would require suitably adapted single storey accommodation. He agreed on the need for a separate room for the claimant to use his exercise equipment which would be required to be stored separately. The claimant would require a separate bathroom and the independent carer would require the type of facilities envisaged by Mr Gardner. Air-conditioning would be required. In his second report Mr Tromans said that he didn't believe that a hydrotherapy pool would be of any medical or other benefit. In that a bath can achieve the same results in relation to pain and spasm management. Moreover, joint mobilisation in this case would be better achieved on dry land.
156. In their joint report neither doctor considered that a hydrotherapy pool would be required, Mr Gardner relying on the claimant's previous dislike of it and Mr Tromans saying that he saw no indication for one, such benefits as there were could be accommodated within an enlarged bath type facility. In his evidence in the course of the trial, Mr Gardner said that if the claimant's attitude towards hydrotherapy has altered then he may benefit from it. In that he is likely to get better joint mobilisation in such a pool as compared to a bath. Moreover there is the benefit gained from socialisation.
157. There was written expert physiotherapy evidence from Jo Armstrong in her report dated 20.3.13 that hydrotherapy can be a very useful medium in which an individual with SCI can carry out resisted exercises without giving rise to undue strain on the joints.

Expert accommodation evidence

158. The claimant has relied on the evidence of Mr Valentine who has provided reports dated 8.7.10 and 21.2.13. The defendants have relied upon the evidence of Mr Roberts who has provided a report dated 6.1.13. They have both contributed to a joint report dated 18.4.13.
159. In his first report Mr Valentine proposed the purchase of a 5 bedroom, 2 reception room bungalow in the Aylesbury area, which he considered would cost between £450 000.00 – 650 000.00. He considered that the claimant would require approximately 147 sq m of accommodation, which together with circulation and the need for flexibility could be increased to about 190 sq m. On the basis that any such property would require to be extended and altered to provide this accommodation, he considered that the size of the extension would be in the region of 64 sq m, which he considered that this would cost about £388 000.00. In addition a hydrotherapy extension would cost about £176 000.00.
160. In his second report Mr Valentine maintained his view of the likely purchase price of the alternative property. However in the light of the current evidence he now considered that the claimant would require approximately 163 sq m of accommodation, which together with circulation and the need for flexibility could be increased to about 210 sq m. Therefore the size of the required extension would be in the region of 83 sq m, which he considered would now cost about £559 000.00. The cost of providing a hydrotherapy extension would now be about £216 000.00.
161. In the joint statement Mr Valentine again maintained his view of the likely purchase price of the alternative property. However in the light of the current evidence he now considered that the claimant would require approximately 187 sq m of accommodation, which together with circulation and the need for flexibility could be increased to about 210 sq m. Therefore the size of the required extension would be in the region of 83 sq m, which he considered would now cost about £469 000.00. The previous higher figure having apparently been a formatting error. The cost of providing a hydrotherapy extension was maintained.
162. Mr Roberts considered that to purchase a 4 – 5 bedroom bungalow type property in the Slough area would cost between £375 000.00 – 499 950.00. In the Aylesbury area a similar property would cost between £489 950.00 – 550 000.00. He did not provide an assessment of the square metreage of accommodation which would be required by the claimant rather he provided a description of the type and number of rooms that would be required. He provided his estimate of the likely costs of extending and altering such a property on the basis that, "It must be recognised that adaptation costs for existing buildings are only very broad estimates, based on relatively little information and could therefore vary significantly were any of the identified properties pursued. Experience of such exercises nonetheless suggests that the estimates are generally reflected in actual costs in such cases within a reasonable margin of variation." Having selected 10 properties, the average extension and alteration costs was about £122 000.00. This figure did not include the cost of providing air conditioning, a full new wheelchair adapted kitchen and other "finer details." Moreover Mr Roberts provided higher estimates if the cost of the provision of a hydrotherapy pool was required.
163. In their joint statement Mr Roberts provided an assessment of the square metreage of accommodation which would be required by the claimant, namely 101.5 sq m, which together with circulation and the need for flexibility could be increased to about 128 sq m.
164. In his evidence in the course of the trial Mr Valentine considered that with the exception of one of the properties selected by Mr Roberts, namely that in Wendover, none of the other properties were suitable as the plots on which they stood were too small. He considered Mr Roberts' estimates of costs for alterations and extension to be too low. However he conceded that the necessity for all of his own costs being required depended upon the size of the property that was purchased. This being on the basis that the larger the property that was purchased, the less extension costs would be required. He accepted that the only way of providing an accurate assessment would be for it to be based on a particular property. He also accepted that the costs of maintaining the new property as compared to the former one might best be calculated on a square metreage basis. If an enlarged bath type facility was provided within the claimant's home, rather than a separate hydrotherapy pool, then the reasonable costs of provision of the former facility would be about £13 000.00 – 16 000.00 for the bath itself, together with extra building costs of about £12 000.00 – 15 000.00.
165. In his evidence in the course of the trial Mr Roberts considered that his assessment of the extension and alteration costs are likely to be more representative of the actual costs as they have been assessed on the basis of particular properties. He conceded that Mr Valentine's costings were likely to be accurate in relation to each component, but pointed out that depending upon the size of the property selected, many of the components may not actually be required. In his experience his own overall estimates were accurate to within 5% or so.

Discussion

166. I have concerns about the evidence of Mr Valentine, in that although his individual costings have not been the subject of particular criticism, as he has not provided costings based on a particular property, there is a risk that if I accept his evidence in full the claimant would be significantly overcompensated, given that, for example, the High Wycombe property contains most of the square metreage that is suggested by him as being required for the claimant's reasonable needs. His evidence would have proved far more useful if he had provided a costed example of one or more of the houses he had selected. In those circumstances some meaningful assessment of the likely costs of providing the extra accommodation for the claimant could have been made. I appreciate that as Mr Roberts has provided his estimates on the basis of a lower assessment of the amount of accommodation that the claimant reasonably needs, there is a risk that if his evidence is accepted in full the claimant may be undercompensated if more accommodation is reasonably required. However this matter apart I was impressed with his depth of experience in estimating the cost of the provision of extra accommodation and facilities for individuals in similar circumstances to that of the claimant. I am not prepared to accept Mr Valentine's criticism that Mr Roberts' estimates were too low for the extent of the accommodation upon which it was based. Indeed I accept his evidence that his estimate was likely to be accurate to within 5% or so.
167. In these circumstances it seems to me that, in order to overcome the risk of under compensating the claimant which I have just identified, the most appropriate way in which to approach the assessment of this aspect of damages is to firstly consider the extent of the accommodation which the claimant reasonably requires. In my judgement if was not for the accident, it is likely that the claimant would in due course have purchased a three bedroom property to accommodate himself his partner and 2 children. As a result of the accident, whereas I consider it likely that the claimant will, with appropriate assistance have 2 children, he will also require an escape bedroom for his partner and a further bedsitting room for his carer. However I am unconvinced as to his need for either a second reception room, given the fact that he will have a separate therapy/activity room, or for a separate meetings/duty room for his carer. The latter person having a sufficient degree of privacy and separation from the claimant and his family by the provision of his/her own bedsitting room, kitchen/laundry and bathroom.
168. On that basis, firstly an adjustment to the figures provided by Mr Valentine in the joint statement is required, so as to reduce the overall accommodation needs of the claimant to about 178 sq m.
169. Secondly as Mr Roberts provided his estimate of costs for the required alteration and extension works on the basis of 128 sq m, a percentage adjustment to his average figure of £122 000.00 is required to reflect my assessment of the larger accommodation needs of the claimant. Thus providing a figure of approximately £170 000.00.
170. Thirdly, as certain items were not included in Mr Robert's estimate it will be necessary to add those items which were not covered but which in my judgement are reasonably required by the claimant, namely the costs of providing air conditioning and a new wheelchair adapted kitchen. The former on the basis of the medical evidence of the difficulties suffered by the claimant in his body regulating its own temperature. The latter on the basis of his reasonable wish to take a more active part in providing for his own and others drinks and meals. Taking the costings from those provided by Mr Valentine, these amount to approximately £32 000.00 inclusive of VAT@ 20%. Thus providing a sum of £202 000.00. Bearing in mind that this figure does not include the "finer details" mentioned by Mr Roberts and taking account of his own contingency figure of 5%, in my judgement an overall contingency of 10% would be appropriate, providing a total figure for the alteration and extension costs of £222 200.00.
171. This figure does not include any element in relation to the provision of a hydrotherapy pool for the claimant. I accept the evidence of the claimant that his initial dislike of the hydrotherapy pool at Stoke Mandeville arose out of the sensation of water on his skin, that this has now resolved and he positively enjoys the sensation of water on his skin, such that he would like to return to using a hydrotherapy pool. However although I appreciate that in a public pool such as at Stanmore he may have understandable and lasting feelings of embarrassment due to his condition, in my opinion these are lessened at Stoke Mandeville. In these circumstances given the history of his use of hydrotherapy facilities to date, whereas I consider it likely that he will return to use the Stoke Mandeville facilities with a reasonable degree of regularity, I do not consider that it would be at such a level as to justify the provision of a hydrotherapy pool at his home, rather than an enlarged bath type facility as envisaged by both doctors. In reaching this view I have also taken into account the medical evidence, that whereas both doctors considered that pain and spasm management would be aided by either type of facility, only Mr Gardner considered that joint mobilisation would be particularly aided by a hydrotherapy pool. Albeit this has some support from the physiotherapy evidence. Although I accept Mr Gardner's view that socialisation is a further benefit of the use of hydrotherapy facilities, this would of course only apply to facilities where others are likely to be present, rather than an argument in favour of private facilities within the home.
172. In these circumstances although this evidence will have a bearing on the area in which it would be reasonable to require the claimant's home to be located, it is not sufficient to require the provision of a hydrotherapy pool at the claimant's home, rather than the enlarged bath type facility. However I do consider that the medical evidence is such that the latter type of facility is reasonably required to be provided to the claimant, such as to justify a further sum of £28 000.00 on the basis of Mr Valentine's evidence as to its likely costs.
173. I am conscious that although it is necessary to take into account the claimant's views of his preferences in relation to his future requirements, it is necessary for me to reach a judgement based upon all the available evidence as to what is required to meet his reasonable needs. In this regard the claimant has expressed the view that he would prefer to reside in the Aylesbury area, rather than in Slough, on the basis that Stoke Mandeville is situated in the former area and he feels vulnerable in the latter area. On the basis of the evidence I have heard in this case, I consider that this is a reasonable view for the claimant to have taken as to what is required to meet his reasonable needs, rather than simply a desire to reside in what may be considered to be a more desirable area. In this regard no one factor is compelling, but in combination they are sufficiently persuasive for me to reach this view.
174. The factors I have taken into account include the view of both doctors that not only will there be likely to be ongoing symptoms and complications arising out of the claimant's condition, but his life expectancy is likely to be enhanced by the manner in which these are treated. In this regard it is often preferable for the individual to be treated at the hospital which provided his original care, as they not only have a depth of knowledge of the individual concerned, but a specialist centre, such as Stoke Mandeville, is likely to have specialist expertise available to it. The claimant was able to provide a recent graphic example of the differential in care which he experienced at his local hospital, prior to obtaining alternative treatment at Stoke Mandeville. Secondly, as I expressed earlier, I am of the view that the claimant is likely to return to use the hydrotherapy facility at Stoke Mandeville in the future. In addition to the benefits that this may have in relation the relief of some of his symptoms, it will undoubtedly have the added psychological benefit of enhancing his socialisation. Whilst I appreciate that in regard to both of these factors Slough is not a prolonged distance from Stoke Mandeville, in relation to his ongoing need for medical treatment, recent experience has shown that in an emergency, it is the local hospital to which he is likely to be taken and his level of use of the hydrotherapy facility is such that it would be reasonable for him to be within its locality.
175. A third factor which I have taken into account is the evidence of vandalism and crime which he has experienced, in that whereas no doubt crime does take place in all areas, it would appear that in his present area it has been a particular problem. Although this is something which it would be reasonable for many individuals to withstand, the claimant's level of vulnerability arising out of his present condition is such that I consider that this is a proper factor to take into account in this case. Although I have not heard evidence as to the comparative crime rates in the Aylesbury area, I have no reason to believe that they are above the average, nor have I heard evidence that it is likely to afford the claimant with the level of problems he has experienced to date. A fourth factor is that having regard to the comparative costs of providing a property in these areas, the differential is not such that it is likely to afford injustice to the defendants. A fifth factor is the evidence of Mrs Gough that because of the presence of Stoke Mandeville within the Aylesbury area there is a ready supply of well trained carers available, such that recruitment of good quality care staff is facilitated.
176. In my judgement it is reasonably necessary for the claimant to relocate to the Aylesbury area, such that taking into account the evidence I have heard in relation to property prices within this area the likely cost of provision of a property within this area would be £550 000.00.
177. In relation to the evidence necessary to carry out the Roberts v Johnstone calculation, it is contended on behalf of the claimant that but for the accident he would have been likely to purchase a property for about £90 000.00, whereas the second defendant suggests a figure of about £100 000.00. Furthermore whereas Mr Valentine estimates that the value added by the alterations will be about £70 000.00, Mr Roberts provides a figure of between £30 000.00 – 40 000.00. In relation to the value added by the alterations, it is necessary to bear in mind that Mr Valentine's figure is no doubt influenced by the far larger alteration costs which he estimated and which have not been allowed. Albeit I recognise that Mr Roberts' lower square footage has been increased. In these circumstances I consider that the appropriate figure for the value added by the alterations is £40 000.00. Taking into account the claimant's likely circumstances and the current property climate, I consider that he would have been likely to have purchased a property in the region of £90 000.00.
178. Therefore the total capital asset is £590 000.00 (£550 000.00 + £40 000.00), resulting in an additional capital cost of £500 00.00 (£590 000.00 – £90 000.00). The appropriate award is therefore £354 875.00 (£500 000.00 x 2.5% x 28.39).
179. There will inevitably be some additional running costs involved in the new accommodation and the extent of which is again a matter of dispute between the parties. In relation to the provision of heating and electricity figures of £1 746.88 and £456.23 respectively are put forward by the claimant and the defendants. In their final submissions the defendants offered a composite figure of £750.00. Once again it will have to be borne in mind that Mr Valentine's figures will be based upon the larger square metreage which he had claimed. Having said that the figure suggested by the second defendant is in my judgement likely to result in an underestimate, in view of the larger square metreage which was considered necessary over and above that originally provided for by Mr Roberts. In these circumstances I consider the appropriate combined annual figure should be £1 500.00.
180. I do not consider that any allowance for additional telephone charges should be allowed on the basis that not only do most individuals use mobile phones but the alternative accommodation and its use is not necessarily going to involve extra phone usage.
181. A modest amount of extra water charges is appropriate in the annual sum of £100.00. The competing additional maintenance costs are £2 911.00 for the claimant and £1 645.00 for the defendants. Once again Mr Valentine's estimate will have been based upon the larger square metreage, whereas Mr Roberts' will have been based on the smaller. As I indicated additional square metreage to this latter assessment was considered to be necessary, such that I consider that the appropriate annual sum is £2 000.00. The additional costs of window cleaning and gardening sought by the claimant are £360.00 and £960.00 respectively. The first defendant offers a composite figure of £1 100.00. I consider the more reasonable figure to be the latter for the reasons already given.
182. The competing costs of additional insurance are £542.41 by the claimant and £95.00 by the defendants. Similar reasoning applies in relation to these items such that I consider the reasonable annual allowance for this item is £250.00. In relation to the additional council tax charges the competing estimates are between £302.52 - £605.04 by the claimant, and between £151.00 - £455.00 by the defendants. Approaching this matter in a similar manner I consider that the appropriate extra annual costs is likely to be £400.00.
183. The total of the increased annual costs of residing in and maintaining the new accommodation will be £5 350.00. The appropriate multiplier is 28.39, resulting in an award of £151 886.50.

Loss of earnings

184. In his evidence the claimant stated that prior to the accident he was going to pursue a university education and wanted a career associated with sport. He said that he would now like to pursue an Open University education and thereafter would either like to become a wheel chair rugby coach, which may well be an unpaid position, or pursue a career in web design. He said that he has already provided 3 organisations with his web design work. He said that although this was done on an unpaid basis, he believes that he could build up a self employed business in it.
185. It was evident that prior to the accident the claimant was extremely keen to pursue a career associated with sport, and the evidence of Philip Binge was that the claimant had a real talent for sport. It is always difficult to accurately assess the academic abilities of someone who has been injured at a relatively young age, due to the impact of the injuries and their consequential effect on the individual's life as a whole. The claimant has been able despite these difficulties to obtain 3 GCSEs and 2 A levels. In so far as one can make any assessment from an individual's oral evidence, it appeared to me that these qualifications are unlikely to have been a true reflection of the claimant's pre-accident academic potential. He certainly gave the impression of being graduate material, albeit for those courses which do not require the higher academic entry qualifications.
186. Although the claimant considers that he could establish a viable website design business, his only clients to date have been those who have received the benefit of his unpaid services. His interest in pursuing rugby wheelchair coaching is a career option which appears to be unlikely to be remunerative. Moreover, the medical evidence is pessimistic as to the claimant's ability to pursue gainful employment to any significant degree.
187. It was submitted on behalf of the claimant that his past loss of earnings claim should be based on a figure which took into account the average graduate starting salary for physiotherapists which in 2011 was £21 176.00 gross, the starting salary for those with business studies degrees which was £21 329.00, those with a degree in computer studies which was £22 311.00 and those with degrees in hospitality, leisure, recreation and tourism which was £ 17 811.00. Thus a gross annual figure of £20 000.00 was put forward, equating to a net figure of £15 962.00.
188. In so far as his future loss of earnings is concerned it is submitted on his behalf that this should be based on the mean gross average earnings for all employees, which in 2011 was £36 415.00 gross, which equates to net figure of £26 719.00. Thus a multiplicand of £25 000.00 is claimed.
189. The defendants contend that the appropriate earning level for the claimant, both for his past and future earnings claim, should be based upon the midpoint of the average gross level for sports coaches, instructors and officials being £23 558.00 and that of a fitness instructor being £16 817.00. Thus the defendants put forward the net figure for the former of type of employee as being reasonable namely £18 440.00. However they also contend that as a web site designer the claimant has an earning potential of about £7 500.00. Albeit they contend that this should only be taken into account for half of the multiplier period.
190. In so far as multipliers are concerned it is submitted on behalf of the claimant that for past loss of earnings a figure of 1.75 is appropriate, whereas the defendants submit that a figure of 1.5 is appropriate due to the vagaries of obtaining employment. As to the future, the multiplier is now an agreed figure of 24.15, based on a retirement at the age of 67.
191. In my judgement if it had not been for the accident the claimant would have studied at degree level, albeit not in a discipline which required the higher academic entry qualifications. Thereafter I consider it likely that he would have pursued a career in sport. Although it is difficult to say with any degree of precision the capacity in which he would have pursued such a career or to what level, I consider it likely that it would have exceeded that of a coach or instructor. In relation to his future earning capacity, although he may seek to pursue remunerative website design contracts, in reality I consider it unlikely that this will be achieved to any meaningful degree. More likely is his pursuit of wheel chair rugby coaching which appears to be non-remunerative.
192. In relation to past loss of earnings, I accept that in the economic climate which pertained at the relevant time it is unlikely that the claimant would have obtained employment straight away, thus the appropriate multiplier is 1.5. In my judgement the appropriate multiplicand being one based on a figure towards the lower end of the spectrum of graduate starting salaries provided on the claimant's behalf, namely £14 500.00 net. Therefore past loss of earnings are £21 750.00.
193. In relation to future loss of earnings I consider that given his likely pursuit of a career in sport it is unlikely that he would have achieved average gross earnings for all employees. Equally however his earnings would have been likely to have exceeded those of a sports coach or instructor. Unfortunately I have been provided with only limited evidence of other average earning levels, such that I propose to reach a figure by gauging an appropriate point between these two extremes, namely a net figure of £22 750.00. In view of my previous finding, I do not consider it would be appropriate to make any discount from this figure for any residual earning capacity as in my judgement he has none. Therefore taking into account the agreed multiplier of 24.15, future loss of earnings are £549 412.50.

Past and future care

194. Although the claimant acknowledged the enormous assistance provided firstly by his father and more recently by his partner in caring for him, in his second witness statement he said that he would prefer that in future his care was provided from an independent source. This would allow him to have a more normal relationship with his partner, with whom he hopes to have children in due course. In evidence he stated that he anticipated this alteration in their arrangements would take place in the next two years. He said that he would prefer the independent carer to be available at night time when he requires his legs repositioning after a spasm, so as not to disturb his partner.
195. He said that he would like to be able to drive a motor car himself, rather than always being the passenger, which would enhance his independence. Although he thoroughly enjoyed playing wheelchair rugby, he said that he has more recently had a break from it, but intends to return to it. He used to participate in this sport about 3 times per week and did so to a very high standard. His father was integral to his ability to pursue this sport and became involved in its management.
196. In her second witness statement Nicola Lewendon confirmed that she and the claimant would like to have children. She offered to continue to provide care for the claimant until that time. Thereafter she would defer to the claimant's views concerning his own care.
197. The agreed medical evidence is that the claimant will require full time care with most of his basic needs. His transfers will require to be hoisted. The question of the number of persons required to be involved in transfers was essentially a matter for the care experts. Both doctors agreed that there would come a time when instead of a sleep in carer at night, an awake carer would be required. Mr Gardner considered that this would be when the claimant was aged about 60. Mr Tromans considered that this may not be required until he was older. The claimant will have future physiotherapy and occupational therapy needs. He should be able to drive a suitably adapted vehicle. He will require regular podiatry. There was likely to be a need to pay for some of his future medical care as not all of would be met by the NHS. The annual cost of providing this care would be about £3 000.00/3 200.00. Mr Gardner considered that upper limb reconstructive surgery may well be required in the future which is likely to cost about £20 000.00. The claimant will require a variety of wheelchairs for domestic, outdoor and recreational use. He also stressed the importance of independent carers being provided to individuals, so as to promote as far as possible a normal family life.
198. Expert evidence as to the claimant's reasonable care requirements was available on behalf of both parties. Mrs Cootes provided evidence on behalf of the claimant in two written reports and a joint statement dated respectively 31.8.10, 28.3.13 and 29.4.13. Whilst Mrs Gough provided evidence on behalf of the defendants in a written report dated 18.4.11 which was updated in November 2012 together with the joint statement dated 1.5.13. They both gave oral evidence in the course of the trial.
199. The history of the provision of care to the claimant was that after an initial period of care provided by the family, this had essentially been provided by the claimant's father up until more recently, since when this has largely been performed by the claimant's partner, albeit with some continuing assistance from his father. It was agreed that if and when this situation altered and independent carers were employed by the claimant, in addition to a main carer, there would need to be a second carer in the mornings and evenings to assist the claimant in getting up and going to bed. There would also need to be a sleep-in night carer. However it was acknowledged that there would come a point when a waking night carer would be required.
200. In relation to past gratuitous care provided initially by the family and now by the claimant's partner, although there was no issue as to the time expended by them, there was an issue as to the basis upon which this should be compensated, up until the date when provision was made from the Independent Living Fund and Direct Care payments. Mrs Cootes based her figures on the local authority aggregate rates, whilst Mrs Gough based her figures on the rates paid to agency rates paid to carers. During the course of final submissions it became apparent that there was no issue as to the appropriate amount of the claim to which the claimant was entitled under this head, namely (£147 770.95 less 25%) £110 828.11. The figure based upon Mrs Gough's assessment.
201. In relation to the claim for travel expenses during this period, once again there was no issue as to the mileage covered by the family in visiting the claimant in hospital, namely 17 212 miles. However there remains a dispute in relation to the appropriate rate at which this should be compensated. On behalf of the claimant 40p per mile is claimed. Whereas on behalf of the defendants 20p per mile is offered, on the basis that the vehicles were already owned and the additional mileage will not materially add to the existing standing charges. In my judgement the former rate is more likely to properly take into account the extra wear and tear upon the vehicle, which in turn is likely to accelerate both the need to expend further sums on remedial works and the loss in value of the vehicle. In those circumstances, whilst a compromise figure of £5 163.60 based on 30p per mile is proffered on behalf of the claimant, I consider that the appropriate rate is that of 40p per mile, such that the figure for this head of damage is (17 212 miles @40p per mile) £6 884.80.
202. Certain miscellaneous expenses have been incurred by the claimant whilst he has been cared for at home, which have not been met from other sources, namely extra heating whilst at his home, incontinence supplies and additional laundry expenses. Once again whilst the justification for these extra costs is not disputed, the rate at which the latter of these two costs should be compensated is in dispute. In relation to the incontinence supplies, the claimant seeks £250.00 per annum since the date of discharge from hospital, whilst the defendants offer £156.00 per annum. In relation to the additional laundry costs, the claimant seeks £273.00 per annum since the date of the accident, whilst the defendants offer £50.00 per annum. There is little material upon which to reach a conclusion about these differential rates. Thus on this occasion I am minded to mediate between the two disputed figures. Therefore in relation to additional heating costs the claimant will be entitled to the agreed figure of (406 weeks @ £10.00 per week) £4 060.00. In relation to the incontinence supplies (7.8 years @ £203.00) £1 583.40. In relation to the additional laundry costs (7.8 years @ £223.00) £1 739.00.
203. In relation to past losses, interest at half the special account rate from the date of the accident will be awarded being an aggregate rate of 15.13% up to 24.6.13 (£146 845.31 @ 15.13%) £22 217.69.
204. In so far as future care is concerned Mrs Gough had originally provided details of three different types of care regimes. The first being a continuation of the present situation whereby the family provided the care, but supplemented by part time paid carers provided through an agency. The second being full time directly employed paid carers. The third being the provision of a paid residential carer, supplemented by part time paid carers provided through an agency. In contrast Mrs Cootes had provided details of only one type of care regime, namely full time directly employed paid carers. It became clear during the course of her evidence that Mrs Gough was not advocating that any one of the different type of care regimes should be preferred. Moreover during the course of final submissions the defendants largely accepted the claimant's position that, after a period to allow for the continuation of the family based care regime, it was likely that the care regime which was the most suitable in the circumstances was that of the directly employed full time paid carer. It was the opinion of both experts that transfers were required to be undertaken by two carers and that there would come a time when instead of a sleep in night carer, a waking night carer would be required.
205. In relation to the care regime involving directly employed paid carers, there were a number of differences between the respective experts' proposals. These included firstly the time when increasing care needs would be required was largely based upon the differing opinions of the two doctors, supplemented by the experts' own views. So Mrs Cootes provided for only one alteration, namely the provision of a waking night carer from the age of 60. Whereas Mrs Gough provided for increased hours for the second carer from the age of 50, with the provision of a waking night carer in the last 5 years of life. Secondly there was a difference in the carers' pay rates of around £2.00 an hour. Mrs Cootes being higher than Mrs Gough. Thirdly there was an initial difference of an hour a day in the hours to be undertaken by the second carer. Fourthly there was a difference in the amount of training required, Mrs Cootes providing for more than Mrs Gough. Fifthly there was also a difference in the rate of pay for bank holiday working.
206. In evidence Mrs Cootes accepted that she hadn't been a case manager since 2008. She also accepted that Mrs Gough had researched the rates of pay applicable to those who provided care within the Slough area. However she believed that these rates were rather low and certainly less than the ones the company she worked for paid to its carers. She also considered that in her experience carers were paid double time for working during a bank holiday. She believed that it was beneficial to have extra training for the carers, but conceded that the supervision element was largely done on the job. Mrs Gough in evidence stated that she was at present a case manager and had been for many years. She said that her assessment of pay rates for carers was based not only upon her experience as a case manager involved with directly employed carers, but was also the product of research she had carried out into pay rates within the Slough area. In cross-examination she said that these rates were largely comparable to those within Aylesbury, where there was a good supply of well qualified and experienced carers as a result of the proximity of Stoke Mandeville Hospital. She considered that although a second carer would be required for transfers both at night and in the morning, the amount of time putting someone to bed is less than is required to get someone up, washed and dressed in the morning. She considered that the amount of training provided for in Mrs Cootes proposals was in excess of what was reasonably required.
207. Whilst acknowledging the very considerable care commitment which has been provided to date by both the claimant's father and latterly Nicola Lewendon, I am of the opinion that the claimant's wish to be cared for by independent carers is a reasonable one which should be respected. The claimant's father has already sacrificed a considerable number of years to care for his son. Moreover, although it is to be hoped that the claimant's relationship with Nicola Lewendon prospers, this cannot be guaranteed and in any event will be promoted by her being able to fulfil her role as a partner, rather than making it secondary to her role as a carer. Moreover I see no reason why the implementation of the new regime involving independent carers should be delayed. I also consider that the claimant's choice of having directly employed paid carers, rather than a resident carer with agency based part time carers is reasonable and should be respected. Indeed it is not one that was seriously challenged by the defendants.
208. In so far as the time at which a change from a sleep in carer to a waking carer will be required, I accept the evidence of Mr Gardner that this is likely to be around the age of 60. In contrast Mr Tromans did not provide firm evidence upon this matter. However in so far as the two care experts are concerned, I was on balance more impressed with the evidence of Mrs Gough, as opposed to Mrs Cootes in relation to the provision and costs of future care staff. In contrast to the latter, Mrs Gough gave measured and reasoned opinions on all that was asked of her, and did not appear to be advocating the interests of the defendants. She clearly had a depth of both past and current experience as a case manager, and had supplemented this with relevant research. Moreover her opinions in relation to both the amount of time required for the second carer and the amount of training required to be provided appeared to be based upon common sense.
209. In these circumstances, I am of the view that the assessment for damages for future care staff should be based upon the costings provided by Mrs Gough. Albeit that the time at which a waking carer will be required will be when the claimant reaches the age of 60. Therefore up till then the annual figure will be £97 340.00, and thereafter it will rise to £128 264.00. To these figures should be added annual training and insurance costs of £1 135.00.
210. There are a number of allied heads of damages which are claimed on behalf of the claimant, namely the annual costs of providing domestic help, a gardener/handyman, a window cleaner and a decorator. The basis for these being that but for the accident these are jobs which would have been fulfilled by the claimant. In relation to each of these items I accept that in principle but for the accident it is likely that the claimant would have fulfilled some part of these tasks.
211. In relation to the provision of domestic help Mrs Cootes puts forward the figure of £450.00 on the basis of a thrice yearly deep clean. Mrs Gough makes no allowance on the basis that the carers will be providing daily cleaning to the areas used by him. I consider that the latter opinion is correct in that it is unlikely that the claimant would have contributed any more by way of cleaning than that which will be provided by his carers.
212. In relation to the provision of a gardener/handyman, Mrs Cootes costs this on the basis of employing someone for 5 hours per week every week at the rate of £15.00 per hour. Whereas Mrs Gough costs this on the basis of employing a gardener for 2 hours over 39 weeks a year at the same rate, but with an extra £250.00 per annum for a handyman. In my opinion whilst I consider that 5 hours each week is more than the claimant would have undertaken, I also consider that the opposing basis is an underestimate, especially in relation to the contributions to DIY. In these circumstances I consider that damages under this head should be provided on the basis of 3 hours each week at the rate of £15.00 per hour, namely £2 340.00 per annum.
213. The window cleaning cost which is sought is based on a figure of £10.00 per month. No allowance has been provided for by the defendants on the basis that the claimant would have employed a window cleaner in any event. On balance I consider that this is a task which the claimant may well have undertaken. The figure claimed is a reasonable one and therefore damages should be awarded under this head, namely £120.00 per annum.
214. The assessment of the claimant's contribution to the costs of decorating are respectively assessed as being £450.00 or £439.44 per annum. The former is a reasonable one and should be allowed, such that damages should be awarded under this head of £450.00 per annum.
215. There will also be the continuing provision of incontinence supplies and additional laundry costs, previously assessed on an annual basis of £203.00 and £223.00 respectively.
216. The total figure in respect of these allied heads of damages is £3 336.00. The appropriate multiplier is 28.39, resulting in an award of £94 709.04.

Case Management

217. There was a difference of approach between the two care experts in relation to the case management of the claimant's care needs. Essentially Mrs Cootes had provided for intensive front loaded management, and thereafter a relatively light touch regime. Such that whereas the first year of this regime was costed at £22 548.00, after the first 5 years the annual cost decreased to £3 283.00. In contrast, although Mrs Gough provided for a slightly enhanced first year figure of £10 952.00, thereafter she made provision for the cost of management in the annual sum of £9 714.00. In the event both parties have sought to adopt the case management costings provided by Mrs Gough. In these circumstances and given my previously expressed preference for the evidence of Mrs Gough it is her costings which should form the basis for the assessment of damages for the cost of future case management in this case.

Periodical payments

218. During the course of the hearing of this case the issue arose as to whether future care and case management costs should be provided by way of a lump sum payment or a periodical payments order pursuant to s.2 of the Damages Act 1996. I heard argument upon this issue. The claimant expressing a preference for the former type of damages, and the defendants expressing a preference for the latter type of order. I was also referred to Thompstone v Thameside & Glossop NHS Trust [2008] EWCA Civ 5.
219. However in the course of final submissions a joint proposal was put forward by the parties that this issue should be adjourned to be determined after the issue of liability had been decided. This being on the basis that in the event of primary liability being established against the first defendant, it was almost inevitable that contributory negligence would also be established against the claimant. In these circumstances both the parties and the court would be in a better position to be able to make a proper assessment of this issue once the overall level of damages if any were known. Having considered the matter I agreed that this was a sensible approach and therefore adjourned this issue until liability had been determined.

Fertility treatment and Childcare

220. Nicola Lewendon is clearly an exceptional individual. The claimant is no doubt aware of this which provides one of the reasons for the stability of their relationship which I consider is likely to endure. I accept entirely that they wish to have children together, and that medical assistance will enable them to do so. I also accept that they are likely to wish to have 2 children, rather than just one.
221. In order to have children it is likely that medical intervention will be required. According to the evidence of Mr Tromans' this is unlikely to be funded by the NHS and will be in the region of about £15 000.00 – 20 000.00 per live birth.
222. As a result of his present condition the claimant will be unable to provide the level of care for those children which he would have done but for the accident. In those circumstances a claim is made on his behalf for damages based upon the cost of additional child care that would have been provided by him. The additional cost is calculated on the basis of the provision of 18 hours additional assistance per week @ £9.24 per hour over the initial 4 year period of each child's life. This being a period of 8 years, a Table 28 multiplier for a term certain of this length provides for 7.26, resulting in a figure of (18 x £9.24 x 52 x 7.26) £62 789.12.
223. The defendants do not dispute these assessments or calculations, but queries the likelihood of the claimant having one let alone two children. Such that some allowance should be made in relation to these figures so as to take into account the uncertainty surrounding this head of claim. In these circumstances it is contended on behalf of the defendant that a figure of £30 000.00 would be more appropriate to cover the cost of fertility treatment and that the figure of £40 000.00 would be more appropriate in relation to subsequent additional childcare costs.
224. Whilst I acknowledge that there are always uncertainties in relation to the parenting of children, and that the claimant's condition is of relevance, I do not consider that the likelihood of the claimant having two such children is very much less than the level of uncertainty involved with any couple of their respective ages and circumstances. Moreover I consider that the basis of the calculation of the childcare costs is relatively modest, given the level of assistance that the claimant would have been likely to provide had it not been for the accident. In these circumstances whilst I consider it appropriate that some allowance should be made to reflect this degree of uncertainty, I consider that it should not go to reduce the awards below a figure of £30 000.00 and £55 000.00 respectively.

Transport

225. It would appear that neither the claimant nor the defendants had prepared particularly well for this aspect of the claim, despite the agreed medical evidence that the claimant should be able to drive a suitably adapted vehicle. The claimant's second witness statement included a quotation for the purchase and adaptation of a Chrysler Voyager motor vehicle from Steering Developments Ltd dated 1.3.13. The purchase price of the vehicle being £30 885.00, conversion costs to the vehicle being £35 600.00 and driving adaptations being £42 785.00 totalling £109 270.00. There followed the provision by the defendants of quotations annexed to a letter from Mrs Gough dated 10.5.13, which included one from DS & P Mobility for the purchase and adaptation of a VW Caravelle motor vehicle in the total sum of £86 095.00. This was countered by the claimant with a letter from Peter Roake, specialist in vehicle and wheelchair assessments, dated 23.5.13.
226. Ultimately the defendants contend that damages for this aspect of the claim should be awarded on the basis of the present situation continuing into the future, namely the provision of a VW Caravelle converted for use by the claimant as a passenger based on a purchase cost of £39 290.00. Although there has been no detailed driving assessment of the claimant, my understanding of such an assessment is that it would provide further assistance with the precise nature of the adaptations required rather than being decisive as to whether the claimant would be able to drive suitably adapted vehicle. The latter ability being a matter of agreement between the joint medical experts. In these circumstances and given the claimant's understandable and reasonable wish to gain some further measure of independence by driving himself, I consider that this aspect of the claim is recoverable.
227. Furthermore, although I bear in mind the lack of the defendants' ability to cross-examine Peter Roake and the lateness and informality of the way in which this aspect of the evidence was introduced by the claimant, I consider there is merit in his observations in relation to the relative advantages of the Chrysler Voyager. Including its lower centre of gravity, given the nature and extent of the claimant's disability. I was also concerned as to his observations as to the reliability of the adaptation mentioned in the quotation provided by the defendants. I also bear in mind when considering the overall reasonableness of the claimant's claim under this head, the provision of the higher cost of the alternative vehicle which it is conceded the claimant would have purchased but for the accident, namely £18 000.00.
228. In these circumstances, in addition to the initial purchase cost of the Chrysler Voyager vehicle of £66 485.00 less the initial purchase price of an alternative vehicle of £18 000.00, being £48 485.00, I agree with the claimant's approach to the additional future costs of providing such a vehicle, namely the sum of £151 060.00. This being based on a figure of £230 566.00 (proportion of purchase price lost at each replacement 0.68 being £45 209.00 x 5.1 ascertained from Table A5, 2.5%, 5 yearly on a multiplier of 48.9 years) less £61 506.00 (proportion of purchase price saved at each replacement 0.67 being £12 060.00 x 5.1, as above). In addition there is the initial and future driving adaptation costs of £260 989.00 (being £42 785.00 x 6.1). Thus resulting in a total award under these heads of £460 534.00.
229. As both the claimant and Nicola Lewendon were both likely to have learnt to drive regardless of the occurrence of the accident, I do not consider that any award of damages is recoverable for the cost of providing either of them with driving lessons. However there are likely to be increased insurance costs given the nature of the new vehicle and the circumstances in which it is to be driven. No evidence has been forthcoming from the defendants. However the claimant has provided evidence of quotations for annual premiums of £9 583.78 and £8 113.96, as compared with a suggested figure of £965.00 in relation to the cost of providing insurance for the type of vehicle which the claimant would have driven but for the accident. Bearing in mind the claimant's age this latter figure appears to be low. Moreover the former figures do not take into account the likelihood of significant reductions in these premiums over the years to take into account the claimant's increasing experience and no claims bonuses. At present the claim for this aspect of damages is in the sum of £224 025 00 (being based on an annual premium of £8 856.37 less £965.00 = £7 891.00 x a life multiplier of 28.39). However taking into account the matters to which I have referred, I consider that a reasonable award under this head to be £112 012.50, being 50% of the sum claimed. In so far as additional running costs are concerned the multiplicand of £737.00 is not in dispute. Therefore bearing in mind my conclusion in relation to life expectancy, the appropriate multiplier is 28.39 producing an award under this head of £20 923.00.

Therapies

230. The need for occupational therapy is agreed. However the basis for the cost of its provision was not until recently agreed. Initially the claimant relied upon Mrs Cootes who considered that there would only be a need for an initial period of therapy sessions, whereas Mrs Gough provided for ongoing sessions. The former provided a total cost of £5 265.00, whilst the latter provided for annual costs of £460.00. It seems that for no particularly principled reason, save that Mrs Gough's assessment provided for an enhanced award of damages under this head, the claimant has ultimately sought to rely upon her assessment of the likely costs of providing this type of therapy. On this occasion I can see no particular reason to demur from the figures put forward by Mrs Gough, such that based upon an multiplier of 28.39, the award under this head is £13 059.00.
231. The need for physiotherapy is agreed, but the need for hydrotherapy is disputed by the defendants for the reasons set out in an earlier part of this judgement. The defendants have not provided any expert evidence in relation to the extent and costs of provision of these therapies, whereas the claimant has done so in the form of the report from Jo Armstrong dated the 20.3.13, who was not required to attend for cross-examination. As I mentioned earlier, I do consider that the claimant is likely to gain some albeit limited physical benefit from hydrotherapy, albeit not such as to justify the provision of his own hydrotherapy pool. Moreover I do consider that he is likely to gain from the socialisation that will be afforded by the use of such a pool with others, such as that at Stoke Mandeville hospital. Thus I consider that there will be an initial justification for the provision of hydrotherapy sessions. However I note that thereafter such sessions are costed upon the basis that only a carer will be required to attend with the claimant. In those circumstances, as is acknowledged by the claimant, these costs will be included within the award for future care. Over and above this aspect of the claim, I consider that both the extent of and the costs of the provision of these therapies appears to be reasonable. Albeit I note that the charges for hydrotherapy pool use is based upon those at a public facility at Teddington and I have no reason to believe that any such charges would pertain at Stoke Mandeville hospital. In these circumstances I have assessed this aspect of the award on the basis of an allowance of £2 600.00 to cover the initial provision of both physiotherapy and hydrotherapy. Thereafter an annual cost of providing physiotherapy of £2 000.00, being the sum £56 780.00 based upon a multiplier of 28.39. Thus the total award under this head is £59 380.00.
232. It is agreed that there is a need for ongoing chiropody. The difference between the parties is so minimal that using a multiplier of 28.39 I assess the award under this head at £7 381.00.

Aids and equipment

233. During the course of the hearing a number of schedules involving aids and equipment were produced. After the conclusion of the adjourned hearing of this case a final "Aids and Equipment Summary" was produced which as I understand it sets out the full extent of the items claimed by the claimant and indicates those items which have been agreed by the defendants. In these circumstances, having heard the evidence upon these matters and in the light of the sums involved, I do not believe that it is necessary to consider the agreed items in any more detail than identifying them. The only area of disagreement in relation to the assessment of damages based upon those figures being the appropriate multiplier. As I have already dealt with the issue of life expectancy, the final assessment of damages will be based upon it.
234. The agreed items are as follows: E-motion wheels at £3 995.00 per item, to be replaced every 5 years. The appropriate multiplier is 6.1, resulting in an award of £24 370.00; Reclining arm chair at £2 165.00 per item, to be replaced every 15 years. The appropriate multiplier is 2.5, resulting in an award of £5 413.00; Shower chair at £482.00 per item, to be replaced every 10 years. The appropriate multiplier is 3.24, resulting in an award of £1 562.00; Wispa manual hoist at £901.00, to be replaced every 10 years. The appropriate multiplier is 3.24, resulting in an award of £2 919.00; Maintenance of the Wispa manual hoist each year at a cost of £75.00 per annum. The appropriate multiplier is 28.39, resulting in an award of £2 129.00; Wall mounted toilet rails at £338.00 per item, to be replaced every 8 years. The appropriate multiplier is 4.18, resulting in an award of £1 413.00; Shower screen at £282.00 per item, to be replaced every 10 years. The appropriate multiplier is 3.24, resulting in an award of £914.00; Washable sheets at £81.84 per item, to be replaced each year. The appropriate multiplier is 28.39, resulting in an award of £2 323.00; Pressure relief mattress at £189.00 per item, to be replaced every 3 years. The appropriate multiplier is 10.03, resulting in an award of £1 896.00; Drinking straws at £10.00 per item, to be replaced every year. The appropriate multiplier is 28.39, resulting in an award of £284.00; Electric toothbrush at £29.62 per item, to be replaced each year. The appropriate multiplier is 28.39, resulting in an award of £841.00; Dycem mats at £66.40 per item, to be replaced every 5 years. The appropriate multiplier is 6.1, resulting in an award of £405.00; Clos-o-Mat toilet, including installation, at £5 049.70, to be replaced every 15 years. The appropriate multiplier is 1.5, resulting in an award of £7 575.00; annual maintenance of the Clos-o-Mat toilet at £305.00. The appropriate multiplier is 28.39, resulting in an award of £5 110.00.
235. The remaining items on the Aids and Equipment Summary are disputed by the second defendant either as not being required at all or in such quantities. Clearly the claimant will require a variety of wheelchairs for different usages. At the moment his wheelchairs include a Tilite wheelchair which is slightly too small. Although he has sold his former rugby wheelchair he would like to resume this sport. These latter wheelchairs receive a lot of wear and tear. According to the claimant they require to be changed every couple of years. It is asserted on behalf of the claimant that he requires 2 Tilite wheelchairs at any one time, so as to cover periods of time when one of them is unavailable whilst being maintained. However, the defendants contend that this is unnecessary as not only will the claimant have other wheelchairs that he can use, but reliance is placed on the evidence of Mrs Gough that those responsible for maintenance of these wheelchairs provide a replacement whilst maintenance takes place. I accept the evidence of Mrs Gough on this point and whilst it will be necessary to provide the claimant with one Tilite wheelchair, two will not be required at any one time. The cost of such a wheelchair is £2 500.00. It will require to be replaced every 5 years. The appropriate multiplier is 6.1, which produces a figure of £15 250.00, from which a deduction of £1 000.00 will be required for an NHS contribution for one new Tilite wheelchair which it is understood the claimant is to receive, resulting in an award of £14 250.00. The annual maintenance charge for this type of wheelchair is £170.00. The appropriate multiplier is 28.39 resulting in an award of £4 826.00. Although the claimant has used ankle straps in the past, he is not currently using them, save occasionally on rough ground. However with advancement of his condition I consider that there is a real chance that he may resume their use in the future, such that an award based on 50% of that originally suggested appears to me to be appropriate. The original provision was based on a cost price of £50.00 each, to be replaced every 2 years. The appropriate multiplier being 14.72, resulting in a figure of £736.00, of which 50% results in an award of £368.00.
236. In addition to this type of wheelchair I consider that it is highly likely that the claimant will resume and continue his interest in wheelchair rugby for a significant period of time. Although this activity may be associated with some increase in his symptoms of pain and discomfort in his shoulder, I consider that such is his aptitude and interest in sport, that given his fortitude it is likely that he will continue this activity despite these difficulties. In these circumstances it would be reasonable to provide him with 5 such wheelchairs for this activity, rather than the more modest provision suggested by the defendants. Each of these wheelchairs cost £2 500.00, resulting in an award of £12 500.00. The annual maintenance for these will cost £85.00 over the next 20 years. The appropriate multiplier is 15.78, resulting in an award of £1 341.00.
237. Although it is agreed that the claimant requires a powered wheelchair, there is a difference of approach as to how this should be provided. Mrs Cootes puts forward a Lifestand powered wheelchair from Permobil, which would enable the claimant to stand and can be used both indoors and outdoors. Whereas Mrs Gough suggests the provision of both an Invacare Storm powered wheelchair for indoor use, and an adventure powered wheelchair for off-road leisure activities. The claimant was quite clear in his preference for the former type of wheelchair, as he considers that he benefits both physically and psychologically from the independence which a standing type of wheelchair provides for him. Although there are some differences of opinion as to the physical benefits of such a wheelchair over a standing frame, there appears to me to be undoubted psychological benefits and I consider the claimant's preference to be reasonable in the circumstances. The cost of such a wheelchair is £14 500.00 and requires to be replaced every 5 years. The appropriate multiplier is 6.1, resulting in an award of £88 450.00. A tie down facility for travel purposes costs £149.00 each which requires replacement every 2 years. The appropriate multiplier is 14.72, resulting in an award of £2 193.00. The annual servicing of the wheelchair and the provision of parts costs £550.00. The appropriate multiplier is 28.39, resulting in an award of £15 615.00. I heard no evidence from the claimant that he used any cushioning in his rugby wheelchair. However it is agreed that a Varilite Zoid PSV cushion will be required for his main wheelchair, which will cost £466.00 each. I consider that it is more likely that it will be required to be replaced at 2 year intervals. The appropriate multiplier is 14.72, resulting in an award of £6 859.52.
238. The claimant would very much like to have a powered hand bike. He has already had a trial of one and enjoyed it. I consider that given his pre-existing interest in sport and cycling that the provision of such a bike is a reasonable one. The cost of such a bike is £3 100.00 and would require to be replaced every 10 years. The appropriate multiplier is 3.24, resulting in a figure of £10 044.00. However as the claimant would have been likely to have purchased at leas one reasonable cycle for himself had it not been for the accident, I consider that a deduction from this figure should be made of £1 500.00, resulting in an award of £8 544.00.
239. A claim is made for the provision of telescopic ramps to assist with locations which do not have wheelchair access. I heard no evidence from the claimant as to any difficulties which he has encountered in accessing any locations. Moreover the increasing provision of wheelchair access to buildings makes the necessity for the claimant to own such a ramp a decreasing likelihood. In these circumstances I do not consider that provision for such a ramp would be reasonable in this case.
240. It is agreed that provision should be made for a specialist type of bed and mattress for the claimant. There is in reality little difference between the competing schemes by which this should be supplied. On behalf of the claimant it is suggested that a 4' bed should be provided for the claimant alone with an attached standard divan for his partner. Whilst the defendants suggest a double bed with profiling on one side. As to the need for a specialist type of mattress in later life, this is largely agreed. Although the time at which this may be required is in dispute, as is the quality of the mattress which will be required. I consider that there is a benefit in the claimant being provided with a wider than average bed for himself, with a single attached divan for his partner, as it will allow both of them a necessary degree of independence from any difficulties which the claimant may experience with sleeping and turning. Moreover the suggested compromise of the time at which a specialist mattress is required appears reasonable, namely 50 years of age. Furthermore sleep being of such a fundamental benefit to good health, I consider that the better quality mattress is a reasonable requirement. In these circumstances the following provision will be allowed, subject to an agreed deduction of £600.00 for the cost of the bed which the claimant would otherwise have purchased: Theraposture double bed with adjustable frame costing £4 425.00, to be replaced every 15 years. The appropriate multiplier is 2.5, resulting in a figure of £11 062.50, less £600.00, leaving an award of £10 462.50; a mattress which costs £640.00 and its replacement, resulting in an award of £1 178.00; annual maintenance of the bed costing £100.00. The appropriate multiplier is 28.39, resulting in an award of £2 839.00; the cost of a standard divan, resulting in an award of £450.00; a specialist Beaufort mattress costing £2 250.00, to be provided after the claimant has reached 50 years of age and which will require replacing every 5 years thereafter. The appropriate multiplier is 2.03, resulting in an award of £4 585.00.
241. Hoists will clearly be required for assisting with the lifting of the claimant. There is agreement between Mrs Cootes and Mrs Gough as to the need for two fixed hoist systems within the home. Clearly these will not only be required to be supplied but to be installed within any new property. In this regard there is a difference of approach between Mr Valentine and Mr Roberts. The former has costed out these items individually, whereas it is said by the latter in their joint statement that the cost of "a hoist system" is included in the overall costs figures which he had provided. This was not a matter which was explored with Mr Roberts in evidence. Moreover I note that the provision of a hoist system was not a matter which was specifically mentioned by him in his original report. In these circumstances I have some concern as to whether his overall costings which I have accepted do in fact cover the provision of two fixed hoists. Therefore I consider that, in order to avoid the risk of under compensating the claimant, whilst not overburdening the defendants, it will be appropriate to allow for the extra cost of supplying and installing one further hoist. This being the Arjo Maxi-Sky 600 X-Y Track at a cost of £10 318.02. This will require to be replaced every 10 years. The appropriate multiplier is 2.24 resulting in an award of £23 112.00. This hoist and the other one included within Mr Roberts' estimate will require annual maintenance at a combined cost of £610.00. The appropriate multiplier is 28.39, resulting in an award of £17 318.00. I would add that the air conditioning provision which was previously allowed will also require annual maintenance at a cost of £354.00. The appropriate multiplier is 28.39, resulting in an award of £10 050.00. The annual cost of replacing slings for these two hoists will also be required. This cost of the slings for each of the hoists is £150.00. The appropriate multiplier is 28.39, resulting in a combined award for the two hoists of £8 517.00.
242. The claimant having been provided with both fixed hoists and a Wispa mobile hoist, I do not consider that the evidence exhibits a sufficient justification for the provision of a further compact hoist, such as the Birdie one suggested by the claimant.
243. It is agreed that both utensil straps and plate guards are required by the claimant, the only difference is the cost of their provision and their replacement regime. The former is costed by the claimant at £10.00 per annum, and £2.99 per annum by the defendants. The latter is costed by the claimant at £16.90 every 2 years, and £4.95 every 3 years by the defendants. In view of the modesty of the amounts involved and there having been no exploration as to the competing advantages of these items in evidence, I propose to mediate between the two extremes. The former will attract an award of £180.00, and the latter an award of £150.00.
244. I consider that Mr Roberts' estimate as to the overall costs of extension and adaptation is likely to have included such relatively standard items as a Neatdek shower floor, a Phlexicare body warmer and an internal intercom. However, as I do not necessarily consider that it included an auto control for the garage door, and as this is an item which I consider is reasonably required by the claimant, a further award should be made in respect of it. The amount of which is based on a cost price of £2 748.90. There will be a need for its replacement every 10 years. The appropriate multiplier is 2.24, resulting in an award of £6 158.00.
245. There are a number of items of physiotherapy equipment which have been identified in the main by Jo Armstrong as being required by the claimant. There is also evidence in the form of an invoice from Cyclone Mobility dated 28.3.13. As I have already mentioned there is no counter evidence in this regard from the second defendant in relation to this aspect of the case and having considered the items in question, in relation to their necessity and overall cost, I have concluded that they should form the basis of a recoverable head of damages. The items in question are: a neurological treatment plinth at £990.00 per item, to be replaced every 15 years. The appropriate multiplier is 2.5, resulting in an award of £2 475.00; an FES arm and leg bike at £19 490.00, to be replaced every 10 years. The appropriate multiplier is 3.24, resulting in an award of £63 148.00; Cable for the bike at £400.00 per item, to be replaced every 5 years. The appropriate multiplier is 5.1, resulting in an award of £2 040.00; an RT 60 (6 channel) stimulator at £5 000.00 per item, to be replaced every 10 years. The appropriate multiplier is 3.24, resulting in an award of £16 200.00; annual monitoring and support of the Stimulator at £1 067.00. The appropriate multiplier is 28.39, resulting in an award of £30 292.00; Stimulation pads at £700.00 per item, to be replaced annually. The appropriate multiplier is 28.39, resulting in an award of £19 873.00; Multi-gym at £5 095.00 per item, to be replaced every 20 years. The appropriate multiplier is 1.98, resulting in a figure of £10 088.00 from which it would be reasonable to give credit for the cost of gym membership which the claimant may otherwise have expended, namely the sum of £5 681.00 (£30.00 per month for 20 years, being £360.00 x a multiplier of 15.78), resulting in an award of £4 207.00; Gripping aid for the Multi-gym at £93.00 per item, to be replaced every 10 years. The appropriate multiplier is 6.1, resulting in an award of £567.00; Clearway cough assistor at £3 500.00 per item, to be replaced every 10 years. The appropriate multiplier is 3.24, resulting in an award of £11 340.00; annual servicing of the cough assistor at £162.00. The appropriate multiplier is 28.39, resulting in an award of £4 599.00.

Holidays

246. It would appear that since the date of the accident the claimant has been skiing in Sweden with an organisation known as The Back-up Trust. He has also travelled to Switzerland and Ireland with his wheelchair rugby team. The former organisation is a charity which assists those with spinal injuries to go on holidays. However there is a charge for such holidays such as the skiing trip which it is understood is currently in the region of £999.00.
247. The claimant understandably and reasonably would like to travel abroad. Indeed he would like to take up skiing on a regular basis. However when he does so, there will inevitably be further costs involved including the need to upgrade any flight seating in order to accommodate him. There is likely to be excess baggage charges in relation to some of his necessary equipment. He will have to travel with at least one or more carers in addition to Nicola Lewendon.
248. Mrs Cootes assesses the claimant's needs as including the provision of accommodation and expenses for 4 carers required for a period of 4 weeks, which she costs out at £75.00 per day. She also provides for the upgrading of 2 economy class aircraft seats to club class for 3 holidays per year, one long haul and 2 short haul. There is also a provision for larger car rental, excess baggage and additional equipment hire. The second defendant does not challenge the costs of these additional items, but points out that a trip with The Back-up Trust is currently costed at about £999.00 per trip which would not require any further expense. In addition to this annual sum, it is submitted that a further annual sum of £2 500.00 should form the basis of such an award. This latter figure is not based on detailed costings but upon what is said to be an overall assessment of reasonable needs.
249. In my view the question as to what is reasonable provision for the claimant under this head must take into account what it is likely the claimant would have done had it not been for the occurrence of the accident. I assess this as being likely to have been limited to an annual 2 week Summer holiday in Europe, perhaps varied from time to time with either its replacement by a long haul trip or an additional long weekend away or skiing trip abroad. Thus it appears reasonable to me to base the main aspect of the award under this head to the extra costs involved in a two week European holiday. The extra costs involved in occasional long haul trips or the like being provided for by an additional annual sum based upon the cost of a skiing holiday with The Back-up Trust.
250. In these circumstances, based upon the figures provided by Mrs Cootes, the extra accommodation and expenses for 2 carers for a 2 week holiday is £2 100.00 (14 x £75.00 x 2). The upgrade of 2 economy seats to club class is £250.00. The larger car rental for 2 weeks is £700.00. The excess baggage charges I assess at approximately £168.00. The allowance for additional equipment will be about £500.00. Thus the additional annual costs of the 2 week European holiday will be £4018.00. In addition there is the annual cost of The Back-up Trust ski trip at £999.00. The total award under this head is therefore £142 432. 63 (£5 017.00 x a multiplier of 28.39).

Medical treatment

251. The evidence from both Mr Gardner and Mr Tromans is to the effect that there will inevitably be a shortfall between the claimant's medical needs and its provision by the NHS. In this regard their assessment of the likely annual costs involved is between £3 000.00 - £3 200.00. In the absence of a discernable rationale to distinguish between these two figures I consider that it is reasonable to take the mid-point, such that the appropriate award will be £88 009.00 (£3 100.00 x a multiplier of 28.39).
252. Mr Gardner provided opinions in regard to three further possible aspects of such an award. The first was a sum to reflect the possibility of correcting deterioration in the claimant's scoliosis. The second was an allowance for treatment related to possible new developments in treatment which might not be available on the NHS. The third is the likely cost of upper limb reconstructive surgery which was assessed at about £20 000.00. Having reviewed the evidence upon these matters, it is apparent that the first of these is no longer pursued as it is acknowledged that any such corrective surgery is likely to be borne by the NHS. The second matter was with respect somewhat speculative in nature and not in my judgement a sufficiently firm basis for an award of damages under this head. However in contrast, the upper limb reconstructive surgery recently assessed as likely to cost in the region of about £20 000.00 is both sufficiently firmly based on the evidence of Mr Gardner and reasonable in its provision as to be an appropriately reflected in an award under this head of damage. Thus the appropriate award will be £20 000.00.

Provisional damages

253. Both Mr Gardner and Mr Tromans agree that the claimant has a lifetime risk of requiring increased help as a result of developing a syrinx, which is assessed at 1.5%. In these circumstances I have assessed and awarded damages on a provisional basis.