QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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JACK FARRUGIA (A Protected Party by his Mother and Litigation Friend LORRAINE FARRUGIA) |
Claimant |
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- and - |
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(1) STEVEN BURTENSHAW (2) THE MOTOR INSURERS BUREAU (in substitution for ZURICH INSURANCE PLC) (3) QUINN INSURANCE LIMITED |
Defendants |
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Nicholas Braslavsky QC (instructed by Lyons Davidson) for the Third Defendant
Hearing dates: 18th 21st March 2014
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Crown Copyright ©
MR JUSTICE JAY:
Introduction
The Remaining Issues
i) Life Expectancy. The Third Defendant has no expert evidence of its own on this issue but has sought, in cross-examination, to undermine the opinion evidence of Jack's neurologist, Dr Richard Hardie. I should explain that the life expectancy issue is only relevant should I conclude that Jack is not entitled to damages by way of periodical payments.
ii) Future Care and Case Management. The parties have compromised the claim for past care, but are considerably apart in financial terms but not in truth on issues of principle or approach as to the future. They agree that Jack needs 24-hour care but they are not agreed as to the level of daytime and night-time care. This is the most important issue in the case for me to resolve. There are other less important care-related issues which I am also obliged to address.
iii) Periodical Payments. Here, there are two issues for me to address. The first issue is whether I am satisfied that the continuity of payment of any periodical payments ordered to be paid by the Third Defendant is "reasonably secure". The second issue is whether periodical payments are appropriate and in the Claimant's best interests: Mr Heathcote Williams QC confines his submissions that they are to the issues of (i) damages for future care and case management, and (ii) damages for future Court of Protection and Deputy's Costs (as to which the parties are agreed on the amounts).
iv) Provisional Damages. The Claimant's case is that damages for future care and case management, whether awarded as a lump sum or as periodical payments, should be provisional or variable (as the case may be) to reflect the contingency that he might develop uncontrolled epilepsy.
Jack's Injuries
"1. On 7th November 2008 when 17 years old the Claimant suffered a very severe traumatic brain injury with skull fracture, as well as various thoracic injuries including pneumothorax, rib fracture and pulmonary contusion.
3. As a result of the index injuries, he was in a coma for more than a month and required intensive care, assisted ventilation and active measures to reduce extremely elevated ICP. He suffered recurrent epileptic seizures despite prophylactic medication. He needed a tracheotomy for more than 7 months, remained a hospital in-patient for more than 12 months, and was eventually discharged home more than three years after the index event.
4. Secondary to the index injury, the Claimant has been left with multiple neurological impairments. These include severe global cognitive impairment; generalised and partial seizures; abnormal eye movements; anarthria and aphagia, i.e. inability to speak and swallow; asymmetric spastic tetraparesis; and double incontinence. The previously identified soft tissue contractures have improved considerably and the intrathecal baclofen pump is no longer operating.
5. The Claimant still has profound communication and physical disabilities, is doubly incontinent, requires total nursing care, and remains totally dependent upon artificial PEG feeding for all his nutrition and hydration. His bladder has to be catheterised intermittently but regularly to ensure complete emptying.
6. Given the extent of his intellectual impairments, the Claimant has lacked sufficient mental capacity both to litigate and to manage his property and affairs ever since the index event. He cannot understand or retain information to any useful extent, and he has great difficulty communicating. On the strong balance of probabilities this will remain the case permanently.
7. He has continued to suffer a combination of focal post-traumatic and infrequent generalised seizures attributable to his brain injury despite taking three different anti-epileptic drugs. It is likely that he will continue to suffer lifelong epilepsy, and the probability of remission is very low indeed.
9. In addition he continues to be susceptible to complications of immobility including kidney stones and frequent chest and urinary tract infections requiring antibiotics and hospitalisation on two recent occasions.
10. There is no likelihood of any further spontaneous improvement in the Claimant's condition at this stage more than four years since the index injury. For the avoidance of doubt, the Claimant will never be capable of any remunerative work in the future.
11. It is entirely appropriate that the Claimant now has accessible accommodation with his mother and brothers, and that he is supported by a 24-hour care package. There will be a lifelong requirement for case management. He will probably always need 24-hour support to meet all his care needs and to ensure his safety.
12. Because of his significant night care needs we consider that he should have at least one waking carer, and probably a second sleep-in carer. It is possible that his night care needs might reduce slightly over time. However, the Claimant's detailed future care needs should be the subject of a separate report by an appropriate care expert. "
Jack's Care Regime
i) Two daytime carers working 15 hours, from 7am to 10pm (first shift, 7am to 2.30pm; second shift, 2.30pm to 10pm).
ii) Two night-time carers working 9 hours, from 10pm to 7am (of these, 1 carer is designated as "waking carer", the other a "sleeping carer").
iii) An independently-appointed Case Manager, Mrs Mary-Ann Darlow.
The Lay Evidence
" I am woken up probably 3-4 times a week during the night to deal with Jack's bowel movements; they tend to happen between 4am and 5.30am. If I am on a night shift, I deal with it myself but it is very difficult. I do not like waking Joe or Tom to help me. If I work on my own it takes me in excess of an hour to clean Jack up, maybe longer if I have to change the bed sheets as well. Sometimes I have just cut his clothes off of him it has been such a mess. It is back-breaking work. If there are two of us then it takes no more than 15 minutes."
The Expert Evidence
"I assess that two carers continue to be necessary in this case because Jack is leading an active programme and is keen to do more such as being toileted during the day and getting out more. Unfortunately it is very difficult to recruit enough carers and Jack is not having the private therapy that he needs. He needs two carers at night because of having a bowel action at 4am or 5am. I understand that because of the problems with recruiting carers, Team Brain Injury have assessed him and have put together a costing for future care that will not account for the family in part of it."
"Jack needs two carers for all personal care, transfers, to provide spontaneity and flexibility for all activities, and exercise, and it is envisaged that in future he will be given the opportunity of being toilet trained. I note the risk assessment of Pamela Simpson, which confirms the need for two carers for positioning Jack in bed. I also note that the Team Brain Injury risk assessments allowed for two carers both in and out of bed.
I therefore continue to assess the need for two carers during the day and at night. At present I note that the neurologists agree that Jack will need one waking night-carer and one sleep-in carer. There is a need for ongoing waking night care at this stage, as carers need to check on him throughout the night because of his epilepsy, feeding, his medication and his continence. However in my experience it may be possible to reduce in future to two sleep-in carers if he is more active during the day."
"He is 6 foot 5 inches. He weighs 92 kilograms. He has an ability to hit out. I would be concerned with [just] one person"
Life Expectancy
Future Care
The Rival Contentions
"In approaching that task the Court should be mindful that whilst the compensation should be full it has to be proportionate which in the context of this case means that the compensation should provide care that meets all reasonable needs including foreseeable exigency That does not extend to speculative and/or unlikely possibility. Achieving that balance is to be determined by the Court on all the relevant evidence received but not by reference to theoretical constructs."
Conclusions on the Future Care Issue
"10. The basis on which damages are awarded at common law is not seriously in issue. Its history was traced by Stephenson LJ in Rialas v Mitchell [1984] 128 SJ 704, beginning with the statement of Lord Blackburn in Livingstone v Rawyards Co [1880] 5 App Cas 25, 39:
"Where any injuries is to be compensated by damages, in settling the sum of money to be given for reparational damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation."
11. The relevance of the Rialas case is that the issue was whether the tortfeasor was required to pay for a 12-year old boy to be cared for at home or whether he should live in an institution. That is a question similar to those in the present cases. On the facts of that case, the cost of caring for him in an institution was lower. Stephenson LJ stated that "what has to be first considered by the court is not whether other treatment is reasonable but whether the treatment chosen and claimed for is reasonable". O'Connor LJ stated:
"There may well be cases in which it would be right to conclude that it is unreasonable for a plaintiff to insist on being cared for at home, but I am quite satisfied that this is not such a case, and once it is concluded that it is reasonable for the infant plaintiff to remain at home then I can find no acceptable grounds for saying that the Defendant should not pay the reasonable cost of caring for him at home, but pay only a lesser sum which would be appropriate only if it was reasonable for him to live at home and reasonable for him to be in an institution."
Sir Dennis Buckley agreed with both the judgments and added a postscript as to the criteria by which reasonableness should be assessed."
Case Management and Subsidiary Care Issues
Periodical Payments
Variable Periodical Payments
"Finally I have been asked to comment upon the risk of him developing uncontrolled epilepsy. As I outlined in my recent report, his epilepsy already fulfils the criteria for drug-resistant epilepsy, and there must be about a 10% chance of control deteriorating further. However, with the appropriate provision of private neurological input and advice, I consider the risk would be reduced to no more than 2%. In most cases the development of uncontrolled epilepsy would require closer supervision and additional special needs."
Conclusion
Postscriptum