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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 January 2017

Sir Robert Nelson :

1. On 14 December 2009 the Claimant was seriously injured in a road traffic accident on the A414 in Maldon, Essex. Liability has been admitted and this trial is for the assessment of the damages to which the Claimant is entitled.
2. There is a substantial dispute between the parties, particularly on the issue of future care. The Claimant was given leave to increase her schedule of loss by some £685,000 (excluding general damages) on 14 September 2016, one month before the trial.

The Claimant's injuries

3. The Claimant sustained multiple injuries, the most serious of which was a complex and severe comminuted fracture of the right lower leg and ankle, with consequential damage to the right great toe. She also suffered chest and rib fractures with soft tissue injuries, lacerations and contusions. There was also a right abdominal hernia which has been repaired, but remains symptomatic, and a mild traumatic head injury. The consequence of these serious multiple injuries has been the development of a substantial psychiatric disorder with mixed depression and anxiety.
4. The Claimant has undergone no fewer than six major operations for her leg injury and one for the attempted repair of her hernia. Initially there was external fixation across the right ankle after open reduction. Some six months later the external fixator was removed, the articular portion of the ankle fixed and a further stabilising fixator fitted around it. That fixator was removed some five months later and the following month, in July 2010, the abdominal hernia repair operation took place. In October 2010 a bone graft was carried out to the right ankle and again it was internally fixed. The fracture healed but with leg length shortening of about one inch and inward bearing of the bone. In May 2013 an operation took place to cure this deformity by way of realignment of the right ankle and removal of the metalwork. In September 2013 the external fixator was removed and finally, in October 2014, there was an operation to release the tendon on the right big toe.
5. The reason for the significant extent of surgery to the right ankle was the type and severity of the injury. The fracture was described in evidence as a Pilon fracture, which is as bad as it gets, and that this particular fracture was the most severe in that category. The Claimant's treating orthopaedic consultant, Mr Russell, said that her fractures were like a "vase being smashed". In their joint report the orthopaedic consultants described the injury as a displaced multi-fragmentary and intra-articular fracture of the distal tibia and fibula at the ankle.
6. In spite of the major and multiple surgical interventions the Claimant has been left with significant permanent disability. She has pain and greatly reduced mobility, mostly having to be aided by the use of one crutch or two crutches or, when outdoors, the use of a mobility scooter for walking any more than very short distances. The pain is a regular daily feature which is low-level at rest but rises to significant pain when weight-bearing or walking for more than about ten minutes. The accentuated pain is present for a period of several hours after walking short distances. The Claimant uses pain-relieving analgesic patches overnight and has found these helpful. She also experiences pain in her big toe.
7. Clearly, with this degree of disability the Claimant's ability to carry on her normal life is greatly affected in almost every sphere. She is predominantly housebound, though goes out on her mobility scooter in the company of her husband from time to time. She can take her scooter into a supermarket but finds it difficult to shop independently. She goes on shopping trips to Lakeside with her husband and to the local shops. She can no longer do housework or laundry, save for polishing, dusting and light housework; she cannot cook but, sitting down, can assist in the preparation of the meal by peeling vegetables or giving similar sedentary help. She cannot use her current bath or shower independently and needs assistance with dressing. Her ability to socialise is greatly reduced and normal holidays cannot be enjoyed as they were. She can no longer take her dogs for a walk, which was one of her favourite pastimes, save with her husband accompanying her, with her on her scooter. She could not do this by herself, as the dogs seek to get on to the scooter or run backwards and forwards in front of it.
8. The Claimant was an active sociable woman whose life has been significantly curtailed. Fortunately she has a very strong marriage and is given care and support by her husband. Her daughters are also supportive and have taken over the role from their mother of providing some help to the Claimant's 92-year-old father and their grandfather.
9. It is perhaps not surprising, in the circumstances of these serious injuries and impairment of her life, that the Claimant should suffer from major depressive disorder with anxiety and anger. Dr Turner, the psychiatrist reporting on behalf of the Claimant, said that it was possible that the conclusion of the case would help to some degree and that more energetic treatment would help some of her emotional difficulties, but nevertheless she would be likely to continue with clinically significant depressive symptoms for the foreseeable future. Both Dr Turner and Dr Greenwood, the psychiatrist on behalf of the Defendant, agreed that whilst her physical symptoms persisted, she was likely to have persistent depressive symptoms as well, associated with persistent anxiety.
10. The Claimant also sustained a mild head injury which has exacerbated headaches which she used to have prior to the accident. It is not the head injury, however, which appears to be responsible for some of the problems she has with memory and concentration, as that is more likely to be a function of her psychiatric problems.
11. The hernia was unsuccessfully repaired, in that a bulge at the hernia site where the mesh was unable to contract with movement has left her with pain when standing or attempting to lift. This may be helped by a properly fitted corset. She has had another hernia since the accident, but unrelated to it.
12. The Claimant has also been left with serious unsightly scarring which I looked at in court. She is now no longer capable of the full life which she led before the accident, cannot be as active with her grandchildren, and has lost intimacy with her husband.
13. The parties have agreed an intensive course of treatment and therapies, including toxin therapy for pain relief, further pain-relieving patches, intensive psychological therapy recommended by Dr Turner and Dr Greenwood, neurological treatment to alleviate her headaches, occupational therapy, and orthotics to provide her with appropriate footwear. The orthopaedic consultants consider that any benefit from orthotics is likely to be limited (B1/4). Mr Earnshaw, the orthopaedic consultant on behalf of the Defendant, said that he thought it extremely unlikely that the Claimant would need or benefit from further orthotics (B2/44), whereas Mr Herron, the Claimant's orthopaedic consultant, said (B1/97) that he expected orthotic and footwear modification would improve her functional capacity but would not allow her to become asymptomatic. The difference would be slight in the sense that she might be able to double the period of time she could weight-bear, but that would only mean increasing her weight-bearing capacity from ten minutes at that time to 20 minutes. In his evidence Mr Earnshaw said that he was not expecting any improvement in her orthopaedic condition or her functionality, but that orthotics, other than major braces, would be helpful, mostly for comfort rather than pain.
14. The orthotic experts, whose reports were agreed, were more optimistic. Mr Drake thought his less radical solution of custom-made footwear with sole plates and rocker soles would improve the Claimant's current symptoms and lead to improved mobility and Mr Collins, on behalf of the Claimant, thought that she would benefit from a custom-made pre-preg carbon fibre orthosis. Mr Drake said that if his solution did not reduce the Claimant's pain sufficiently, he accepted Mr Collins' suggestion. The cost of orthotic provision over the Claimant's lifetime has been agreed between the parties at £59,000.
15. On the psychiatric evidence, the conclusion of the litigation and the intensive therapy recommended may assist the Claimant in her anxiety and to some extent her depression, but it is likely that she will have persistent depressive symptoms and some persistent anxiety whilst her physical symptoms persist.
16. Karen Keen, the care expert for the Defendant, expressed the view that the intensive treatments and therapies which the Claimant was to receive after trial would help to improve her confidence and her ability to cope with life. This view was not shared by Sian Gouldstone, the care expert for the Claimant, who considered that it was too long after the accident now for any improvement to occur.
17. Having considered the evidence on this issue and having seen and heard the Claimant give her evidence, I conclude that there will be some limited improvement in the Claimant's mobility, her self-confidence, and her ability to cope with her serious disabilities. I deal with this issue in detail when considering the question of future care, but for the purposes of the assessment of general damages for pain, suffering and loss of amenity, I consider that the improvement that I find will occur will be real, and will increase her ability to stand, walk and move about, but the improvement will not be significant. She will therefore, in my judgment, be able to cope with life a little better when the litigation has been concluded and the intensive treatments and therapies and orthotics undergone, but I have no doubt that her disabilities and impairments remain serious.
18. A potential issue which arose in this case was whether or not the Claimant should have undergone a yet further operation on her leg, either to fuse the ankle or to replace the joint. The better option was the double fusion operation. Had this been carried out, it would have had about a 70% chance of success, Mr Herron said, reduced from the normal rate of 90-95% because of the Claimant's previous infections, her bone quality, and soft tissue being already affected. Success could result in the pain being removed or reduced with an increase in functionality, provided special shoes were worn. If the operation failed, amputation was a possibility, though only a small one, but there would be no relief from pain. The Claimant thought for some time about whether to have this operation and then decided that she should not do so. She told me in evidence that she made this decision partly on the basis of what her treating consultant, Mr Russell, had said to her, namely "Don't touch it with a barge pole".
19. The Defendant accepted that, in all the circumstances, the Claimant's decision not to undergo such an operation, even though it might, if successful, lead to a considerable improvement in her condition, was an entirely reasonable one. Mr Patrick Blakesley, on his behalf, nevertheless submitted that it was still the case that the Claimant might in fact undergo this operation at a later date and that the prospects of success in it should be taken into account when assessing her claim. Having heard the evidence, I am quite satisfied that the Claimant has made her mind up not to have an operation and whilst it is possible that she might change her mind in the future, I am clear in the conclusion that she will probably not, having undergone what she has already undergone with the six operations to her leg and the inevitable doubts that she will have about its possible success confirmed by Mr Russell's apparent pessimism. I have not, therefore, taken this mere possibility into account when assessing damages, but have disregarded it.

GENERAL DAMAGES FOR PAIN, SUFFERING AND LOSS OF AMENITY

20. Mr Paul Rose QC on behalf of the Claimant submits that an award of £90,000 is appropriate for pain, suffering and loss of amenity, and Mr Patrick Blakesley on behalf of the Defendant submits that the appropriate bracket is £65,000 to £75,000.
21. The Judicial College Guidelines give the court some help, but only limited help because of the multiple, complex and varied injuries sustained by the Claimant. Having taken those and all the matters set out above and the evidence and submissions into account, I assess the global figure for general damages for pain, suffering and loss of amenity to be £80,000.
22. I now turn to the Heads of Claim in the Schedule.
23. I approach the issue of care upon the basis that the law requires there to be full compensation, but that that compensation must remain fair, reasonable and just for the injured person and the defendant alike. Heil v Rankin [2001] 2 QB 272. As Mr Rose QC submits, the threshold for recovery for care for the Claimant is "beyond what (a husband) would anyhow have been doing for his wife" (Giambrone v Sunworld Holidays Ltd [2004] EWCA (Civ) 158).

PAST LOSS

Past gratuitous care

24. This case is unusual in that the care experts have agreed none of these items of claim. In making my own assessment, based upon the evidence of Sian Gouldstone and Karen Keen, and that of the Claimant and her family, I have been helped by Appendix 1 attached to the end of Mr Blakesley's closing submissions, which sets out the various periods and figures put forward for them by the respective care experts. It should be noted that the aggregate rate has been agreed rather than the basic rate, i.e. the more generous one, though some of the care provided in the latter stages before trial was given during normal working hours.
25. The second point to note is that Ms Keen used broader periods of care rather than Ms Gouldstone's specific periods. Thus she allowed periods of hospitalisation at a weekly rate rather than a daily rate. This meant that some of her figures were much higher than Ms Gouldstone's, though generally speaking her figures were lower. It should also be noted, however, that Ms Keen provided a more detailed breakdown of the time needed for help with daily activities. (B2/58)
26. As I will set out in more detail when dealing with future care, in spite of the criticisms which each counsel made of the other side's care expert, I found that both gave evidence which was of assistance on some issues.
27. As the hours of care put forward are, as both experts agreed, estimates, the court, having heard all the evidence, must make its own assessment, having taken into account the care experts' views, the family and all other relevant evidence.
28. Mr Rose submits that Mr Blakesley's table, Appendix 1, contains an error in that he has deducted from Ms Keen's figures 4 hours for care for the Claimant's father, whereas Ms Keen never made any allowance for this in the first place. I doubt that this comment is correct. It seems to me that Mr Blakesley has deducted the 3.5 hours which Ms Keen has allowed for dog-walking rather than any figure in respect of care for the Claimant's father. I take this into account when assessing past gratuitous care.
29. Each of the periods when the Claimant was in hospital should be assessed by reference to hours per day, as Ms Gouldstone has done, rather than Ms Keen's broader approach, save in relation to the first two periods, where both care experts set out hours per day. Wherever the Claimant has been in hospital, I accept Ms Gouldstone's assessment of hours per day.
30. I now turn to the other periods of care set out in Appendix 1. Both experts have varied their figures for past gratuitous care without a full explanation of the basis upon which that has been done. I reduce Ms Gouldstone's estimate of hours on the grounds that I do not think it represents the Claimant's reasonable needs at that time, and I have increased Ms Keen's estimate in the earlier periods because she had not made enough allowance for the intensity of care required, and in the later periods I formed the view that she had allowed insufficient time for access to the community. I consider these findings further in relation to future care.

12.1.10 to 23.6.10: Ms Gouldstone allows 53 hours per week, whereas Ms Keen allows 38 hours per week. This period of 23 weeks would have been very intense, with the Claimant having only just come out of hospital, but nevertheless I regard Ms Gouldstone's figures as being too high. 53 hours per week is over 7.5 hours per day, which in my judgment is excessive. Equally, Ms Keen's figure of 38 hours is insufficient. I assess the correct figure at 45 hours per week.

27.6.10 to 25.7.10: Ms Gouldstone puts forward 44 hours per week and Ms Keen 38 hours per week. Ms Gouldstone accepts that less care was needed during this, compared with the first period and I prefer Ms Keen's figure of 38 hours per week, which is what I allow.

29.7.10 to 6.10.10: Again the figures are 44 hours per week from Ms Gouldstone and 38 hours per week from Ms Keen. I prefer Ms Keen's figure and allow that.

12.10.10 to 31.12.10: The same figures of 44 hours per week and 38 hours per week are put forward and again I prefer Ms Keen's figure of 38 hours per week and allow that.

1.1.11 to 31.12.11: Ms Gouldstone puts forward 37 hours per week and Ms Keen 30.5 hours per week. By now the Claimant has become a little more mobile. I allow 33.5 hours per week.

1.1.12 to 31.5.12: Ms Gouldstone has allowed 37 hours per week and Ms Keen 26.5 hours per week. I allow 30 hours per week.

1.6.12 to 14.10.12: Ms Gouldstone has put forward 37 hours per week and Ms Keen 26.5 hours per week. I allow 30 hours per week.

15.10.12 to 28.1.13: Ms Gouldstone has allowed 23 hours per week and Ms Keen 15.5 hours per week. During this period the support worker, Andrea, was employed by the Claimant for 20 hours per week. I allow 15.5 hours per week.

29.1.13 to 8.5.13: Ms Gouldstone allows 23 hours per week and Ms Keen 15.5 hours per week. I allow 15.5 hours per week, noting that the aggregate rate increases during this period.

13.5.13 to 19.9.13: Ms Gouldstone allows 30 hours per week and Ms Keen 13.5 hours per week. I allow 13.5 hours a week.

29.9.13 to 23.10.13: Ms Gouldstone allows 23 hours per week and Ms Keen 13.5 hours per week. This is the last period during which Andrea is working. I allow 13.5 hours a week.

24.10.13 to 13.10.14: Ms Gouldstone allows 39 hours per week and Ms Keen 24.5 hours per week. Now that Andrea has left, I allow 28 hours per week.

14.10.14 to 30.11.14: Ms Gouldstone allows 42 hours per week and Ms Keen 24.5 hours per week. I allow 28 hours per week.

1.12.14 to 13.12.14: Ms Gouldstone allows 42 hours per week and Ms Keen 23 hours per week. I allow 28 hours per week.

14.12.14 to trial: Ms Gouldstone allows 35.5 hours per week and Ms Keen 23 hours per week. I allow 28 hours per week. I note that the aggregate rate increases twice during this period.

31. When dealing with special damage the parties asked me to make the appropriate judgments and they would then recalculate the figures. I have approached the judgment upon this basis.
32. The second issue to be determined under past gratuitous care is whether any deductions should be made.

(a) A 25% discount for gratuitous care

33. The practice of deducting 25-30% from gratuitous care, save in exceptional cases, to take account of the fact that tax or national insurance payable to a commercial carer does not arise when a relation provides the care, is well established. See Whiten v St George's Healthcare Trust [2011] EWHC 2066, Totham v King's College Hospital NHS Foundation Trust [2015] EWHC 97 and numerous other cases. Mr Rose QC submits that the judgment of Lord Justice O'Connor in Housecroft v Burnett [1986] 1 AER 332 at 343D states that a claimant would not wish a relative who had given up employment to look after him or her to be the loser, and that therefore the court would award sufficient to enable the claimant to achieve that result. The ceiling would be the commercial rate. Mr Rose submits that this decision establishes that the usual 25% discount does not apply where a relative has given up work. Whiten and Totham, cited above, are both cases where relatives had given up work and Housecroft v Burnett was considered. It does not seem to me that Housecroft v Burnett is authority for the proposition that no 25% deduction should be made in such a case. The point was not considered. The ceiling may be the commercial rate in recompensing a relative who has given up work, but it would be artificial to inflate the amount recoverable by reference to a sum which could never be paid to a relative, i.e. tax and national insurance.
34. If the claimant's reasonable need is care by a relative rather than commercial care, that need is satisfied by the payment of a sum in respect of care appropriate to the nature and type of care given. Tax and national insurance are neither relevant nor payable in the case of a relative who provides care. Furthermore, the rates for this case have been agreed at the aggregate rate, i.e. the more generous rate, and the full extent of care is therefore reflected in that. (See Whiten.)
35. I consider that 25% should be deducted from all gratuitous care awarded in this case.

(b) Carer's Allowance

36. It appears from the evidence of Mr Mehmetemin that Carer's Allowance of £58 to £61 has been paid to him for some time. Carer's Allowance is, as Mr Rose concedes, deductible in principle, but he states that it has not been pleaded and the Claimant objects to any late amendment. It should be noted that Carer's Allowance is payable where 35 hours of gratuitous care are being given.
37. Mr Blakesley does not seek to set off Carer's Allowance as such, even though he submits that he is entitled to ask for the court to take that step, but does use its payment as an alternative argument in relation to later past loss. I will deal with it in more detail then.

(c) Income Support

38. This has been paid to Mr Mehmetemin and his wife at a figure of £131 per week. The Defendant does not, however, seek to set it off against any part of the claim.

Past care for the Claimant's father

39. This has now been agreed in principle by the Defendant.
40. It appears from the evidence of the Claimant's daughters that the care for their grandfather was provided mainly during the week and usually during the day. On this evidence the basic care rate should be allowed, not the aggregate. The care provision is reduced from four hours to three hours per day from 31.5.12 by Ms Gouldstone because domestic assistance for one hour per week had been engaged at that time to help maintain the Claimant's elderly father at home. In fact that happened, as Mr Blakesley submits, in January 2011 in accordance with Sarah Ross's statement at para. 44 (A/337).
41. I therefore award care for the Claimant's father at four hours per week from the accident to 15.1.11 and then three hours per week thereafter at the basic rate, which should also be discounted by 25% for the reasons I have already set out.

Paid care

42. Agreed £16,062.

Loss of earnings

43. Agreed £71,178.

Accommodation

44. Agreed £2,822.

Equipment

45. Agreed £6,608.

Therapy

46. Agreed £28,508.

Transport and mobility

47. Agreed £4,209.

Holidays

48. The claim for the additional cost of holidays is in the sum of £5,522. The documents in support of this claim are set out at volume C tabs 27-31. The claim includes the cost of seat upgrades, the additional costs of hotels over self-catering accommodation, the additional cost of taxis, transporting of the scooter etc.
49. The Claimant accepted in evidence that before the accident she and her husband used to go on holiday twice a year, visiting Mr Mehmetemin's relatives in Cyprus, but also going to Greece or Turkey, staying in self-catering accommodation. This was not allowed for in the figure claimed and Mr Rose suggested deducting £522 for that and making the total £5,000.
50. Mr Blakesley, however, submits that this claim should be nil, because the money they would have spent on holidays and flights in any event before the accident exceeds the proper amount of the claim now made, and in particular no allowance had been given for the fact that the Claimant and her husband would have spent money on self-catering accommodation.
51. The family cost for the holiday in September 2011 of £4,505 included the cost of the Claimant's daughters, their husbands and the grandchild. That cannot be claimed and should be deducted. It appears that the Claimant's and her husband's share of this cost was £1,366. That adjustment reduced the gross cost of the four holidays taken since the accident to £4,783, rather than £7,922.
52. From that figure, Mr Blakesley submits, the cost of flights, not just over those holidays actually taken but over the whole period since the accident should be offset, and that amounts to a further £4,104 (6.84 years x £600). That produces a loss of £679 (4783 – 4104 = £679).
53. A further deduction, Mr Blakesley submits, should be made to allow for the fact that had the accident not happened, the Claimant and her husband would have gone on self-catering holidays to Greece or Turkey. There is no evidence of the cost of that, but, Mr Blakesley submits, it would clearly exceed £679.
54. I will deal with the additional costs of holidays in the future, of seat upgrades and additional expenses, later in this judgment, but insofar as special damage is concerned the Claimant has to prove an actual, not a notional loss. I accept Mr Blakesley's submissions and conclude that no loss has been established in respect of past holidays.

Cleaner for father

55. Agreed £4,290.

Gardening

56. Agreed £937.

Dog-walking

57. The Claimant enjoyed taking her dogs for long walks. After the accident a friend, Ann Main, visited once a week to walk the dogs and perform other household tasks for the Claimant. This commenced on 12.01.11, but it is not clear for how long it lasted. By the time of the Claimant's statement of 1.6.15 Ann Main's visits had reduced because her husband had become unwell (A/286 93). It appears from the same paragraph in the Claimant's statement that they did not see each other as much by that time, but used to speak on the telephone.
58. I consider that half-an-hour per week at the basic rate less 25% should be allowed for dog-walking by Ann Main between 12 January 2011 and 1 September 2015. The claim in the Schedule of Loss is, however, based on the Claimant's husband performing the task of dog-walking for his wife at 3.5 hours a week at the aggregate rate. Mr Rose submits that such a claim is recoverable in principle, but the Defendant resists it on the basis that dog-walking is an amenity for a family member rather than a service and no compensation is required here to put the Claimant back into the position she would have been in had she remained uninjured. Dog-walking by a family member is different to the service being provided commercially. The dogs were shared family dogs and there is no suggestion that Mr Mehmetemin found walking the dogs to be a burden. He and his wife, with her on her scooter, take the dogs out for a walk as well as Mr Mehmetemin taking them for a walk by himself.
59. There is, in my judgment, no reason in principle why such a service should not be provided by a relative in the same way as DIY is provided by a relative, and claimable. If there is a need to get someone else to provide a service which the injured person can no longer perform, and which has to be and is performed, the cost is recoverable whether it be commercial or gratuitous. That Mr Mehmetemin may enjoy walking the dogs (in the same way as a relative might enjoy gardening when forced to garden because of an injury to his wife) so that it might therefore be regarded as an amenity, does not prevent recovery, if he is carrying out this service for and instead of his wife when he would not otherwise have been doing so. In such circumstances it is a service he is performing, the need for which has been brought about by the accident.
60. It must, however, be taken into account that the Claimant and her husband go out together with the dogs and it would not be appropriate for there to be recovery of a notional cost for such a shared pleasure. It would also lead to the potential of double recovery, where the cost of gratuitous care would already be covering the costs of the husband accompanying his wife on trips outdoors.
61. The number of hours per week should be reduced from 3.5 to 2 hours to take account of shared dog-walking. I assess the claim at 2 hours per week x basic rate less 25%. There is no proper basis in my judgment for reducing or not making the deduction of 25%. The period I allow is from the date of the accident to trial, save for the period where Ann Main was walking the dog between 12 January 2011 and 1 September 2015, for which period half-an-hour should be deducted for Mr Mehmetemin walking the dog.

Increased heating

62. Agreed £1,368.

Extra food costs

63. The Claimant's husband worked as a chef at the West End takeaway restaurant in Chelmsford. He said that he was provided with his meals five days a week and that since he had had to give up work to look after the Claimant, costs of such food for him have been incurred, which otherwise would not have been. Mr Rose submits that such costs are no different from the costs which would be recoverable in a commercial care package with food and subsistence.
64. The Defendant contends that this alleged loss is irrecoverable. The loss is the husband's loss of a perk of his job and the Defendant owed the husband no duty of care, Mr Blakesley submits. The claim is too remote. See Kent v BRB [1995] PIQR Q42 at Q47.
65. Secondly, Mr Blakesley submits that there is no proof of the free provision of the food and no indication that it was considered within Mr Mehmetemin's tax returns as a benefit or otherwise accruing from his employment. Nor is there any evidence of the cost of food at home. The only document disclosed in relation to Mr Mehmetemin's employment is a letter from West End takeaway stating that Mr Mehmetemin was in full-time employment at West End and earned £360 per week. Mr Mehmetemin said he left tax entirely to his employers, knew nothing about it, and had not, and never had had, any records from the Inland Revenue or any documents relating to tax or national insurance.
66. There is therefore no evidence, other than that of Mr Mehmetemin, that food was in fact given by the employers or upon what basis. Thus it is not known whether the £360 per week included the value of food given. Nor is it clear whether tax was paid on either income or the perk if it was declared.
67. The Claimant submits that the remoteness argument is incorrect, as it is foreseeable that someone would be required to look after the Claimant, and if that were to be done by a private carer, the cost of their subsistence would be recoverable against the tortfeasor.
68. I am not, however, satisfied on the evidence that this loss has been proved. There is no evidence of what food was received, nor any evidence of what Mr Mehmetemin's food at home cost, save for a general estimate of £300 a month from Ms Gouldstone. Whether the perk was treated as being taxable, and if so how it was dealt with, is another matter which requires explanation. The whole issue is surrounded by too much doubt to enable the court to make a secure finding as to any loss or in what amount.
69. Furthermore I consider that the claim is too remote. Even if the cost of extra food for Mr Mehmetemin at home is incurred as a result of his enforced retirement to look after his wife, the loss remains his loss rather than his wife's loss. If it were to be argued that the cost of his food is increased household expenditure and therefore affects the Claimant as well as him, the claim would still relate to the loss of his perk. He is not a private carer and not entitled to a subsistence allowance.
70. I therefore reject the claim for extra food. I am not satisfied that it is proven; I consider it to be too remote, and further, I do not regard it as either reasonable or proportionate as between the Claimant and the Defendant.
71. The Defendant argues, in any event, that the Carer's Allowance which Mr Mehmetemin accepts he was in receipt of would extinguish this part of the claim. Deduction of Carer's Allowance is not pleaded, but if it was received it should be deductible and automatically deducted as was stated in Massey v Tameside and Glossop Acute Services NHS Trust [2007] EWHC 317. It was held to be deductible in that case even though the matter was not pleaded. Were I to have found such a loss I would have considered that the Carer's Allowance was deductible against the claim even though that issue had not been pleaded.

FUTURE LOSS

Future care and assistance

72. I consider the following issues:-

(i) Care needs at home and in the community, now and in the near future, taking into account pain relief treatment, therapy, physiological therapy, orthotics and aids and equipment which the parties have agreed should be provided for the Claimant over a period of several months after the trial.

(ii) The effect of the ageing process on the Claimant's needs.

(iii) Whether those needs are to be met by commercial or gratuitous care or a mixture of both.

(iv) The hourly rates applicable.

(v) Care for the Claimant's father.

(i) Care needs

73. The Claimant currently needs help with (a) washing and dressing, (b) preparation and cooking of food and drinks, (c) trips out of the house, including walking the dogs, shopping, socialising, car journeys, holidays, medical appointments and help with getting a mobility scooter set up for her to make such trips.
74. At present this help is provided by the Claimant's husband. The parties have agreed that over the next months the Claimant will undergo high intensity physiological treatment, neurological treatment, intensive occupational therapy, pain relief treatment and therapy. The costs of these therapies and treatments amounts to about £30,000.
75. There is also agreement that the Claimant should be provided with orthotics, i.e. specially made or adapted footwear. The costs of these amount in total to £59,059 over the Claimant's life. It should be noted that aids and equipment costing in the region of £86,640 are also claimed.
76. The issue which arises is whether the provision of such treatment, therapy, orthotics and aids will provide real assistance to the Claimant in the way that she manages and is able to cope with her disability so as to enable her to live her life more independently. The Claimant's main, but by no means only, problem is pain and lack of mobility, which restricts her activities and ability to move, and hence her independence. This, Mr Rose submits, will not be in any way diminished by these treatments, therapies, orthotics or aids.
77. It is clear, as Ms Keen conceded in her evidence, that the Claimant will never be able to achieve a high degree of independence, but in my judgment her overall condition, and more particularly her ability to cope with it, is likely to show some improvement after the conclusion of this litigation.
78. The psychological therapies recommended by both psychiatrists, though their prognosis is somewhat guarded because of her continuing physical symptoms and anger about the accident, may, in their opinion, improve her anxiety levels and to a lesser extent her depressive symptoms. It is important to note that her physical symptoms will inevitably persist, so that she will probably always have some persistent depressive symptoms and some persistent anxiety.
79. The Claimant has found the pain-relief patches, which she uses presently at night, to be effective. They last for 12 hours. The toxin therapy is aimed at giving further relief. The neurological treatment should assist in her headaches.
80. The probable effect of the orthotics is a contentious issue. The orthopaedic consultants both state that any further benefit from orthotics would be limited. Nevertheless it is clear in the evidence that I have already rehearsed under the heading of pain, suffering and loss of amenity that Mr Herron envisages improvement in her functional capacity (B/97), though such improvement would only be likely to increase her weight-bearing capacity from 10 minutes to 20 minutes, as it was at that time in June 2014. Mr Earnshaw's evidence also indicated that orthotics might assist her to be more comfortable, though doubts any increase in functionality.
81. The orthotics experts in their agreed report, however, expressed a much more optimistic view. Both Mr Collins, the Claimant's expert and Mr Drake, the Defendant's expert, agreed that the recommendations would produce an improvement in the Claimant's pain and improve her mobility (B1/13). They would not completely address her symptoms but would improve them.
82. The Claimant submits, in spite of agreeing the orthotic experts' joint report and £59,000 of orthotic treatment, that because of the orthopaedic consultants' view any improvement can only be marginal, not significant. Mr Blakesley for the Defendant contends that the orthopaedic consultants are dealing with improvements in the fracture site when expressing their views on the topic, whereas the orthotic experts are dealing with improvements in pain or gait, which in their professional experience provision of specialist footwear can provide.
83. The court has to take into account the evidence of both the orthopaedic consultants and that of the orthotic experts and consider whether it can be reconciled. It is not simply a case of the orthopaedic evidence trumping the orthotic evidence. In my judgment the evidence can be reconciled. Mr Herron accepts that orthotics "will improve her functional capacity but it is highly unlikely to allow her to be asymptomatic" (B/97). He envisages that this may enable her to mobilise over the same distance as she is doing currently but with minimal pain, or alternatively for her to double the period of time that she is weight-bearing from 10 to 20 minutes. Mr Earnshaw emphasised that he thought that any improvement would be "mostly for comfort", i.e. not excluding some improvement in pain.
84. The extent to which the Claimant's condition and her capacity to cope may improve and her confidence increase is a matter of dispute between the parties, affecting, as it does, the question of how much care the Claimant will continue to need. Ms Keen considers that as the Claimant increases in confidence after the various intensive treatments and therapies, and in particular occupational therapy and orthotics and aids and equipment have been provided, she is likely to become more independent. She envisages the Claimant being able to undertake short solo journeys on her mobility scooter to the shops and also, with the assistance of the taxi driver on a pre-planned journey, more extensive journeys to shops or to socialise by herself. Ms Gouldstone thinks that as seven years have elapsed since the accident, during which time the Claimant did not develop independence, she is unlikely to do so now, and that her functional skills will not increase.
85. On the basis of this evidence and the agreed orthotic evidence, taken as a whole, I conclude that there will probably be some improvement, both in pain levels and mobility, from the use of orthotics and other treatments and therapies, and that such improvement will be more than marginal but less than significant. It will in my judgment probably be sufficient to provide some improvement in the Claimant's enjoyment of her life, the freedom and confidence with which she can stand, move and walk, and her capacity to cope with her problems.

The care needs expressed in hours

86. Ms Gouldstone assesses current needs at 40 hours a week plus 3 hours domestic assistance. The 40 hours per week consist of 3 hours per day personal care and meal preparation and fetching and carrying and one extra hour for meal preparation, that is, 28 hours per week (7x4=28). She also allows 12 hours per week to access the community (28+12=40). This should be delivered, Ms Gouldstone says, by 24 hours of paid care (including 4 hours at the weekend) and 16 hours gratuitous care. When Bank Holiday pay and contingencies are included, a total multiplicand of £29,599.12 is reached until the age of 70.
87. Ms Keen has allowed for a transitional period of six months while the improvement she is anticipating is occurring, during which time there should be 12 hours agency care per week and 26.5 hours gratuitous care per week, i.e. a total of 38.5 hours per week.
88. After the initial period Ms Keen allows a total of 15 hours per week care, consisting of 7 hours per week washing and dressing, 7 hours per week provision of meals and drinks and one hour per week fetching and carrying. She allows nothing for access to the community after the six month transitional period apart from some help in shopping, delivered through the domestic assistance that she allows for. Ms Keen considers that the Claimant will be able to access the community on her own when she has undergone the treatments, therapies or orthotics and received the aids and equipment.

The evidence of the care experts

89. Each expert has changed her figures from time to time. Ms Gouldstone, for example, increased the hours from 35.5 hours per week between 14 December 2014 and trial to 40 hours per week at present without any apparent evidence of greater need on the Claimant's part. Ms Keen, for example (see Claimant's closing page 12), reduced the hours from 25 to 17 hours (B2/30), though this is in part when Andrea was working as a support worker for the Claimant.
90. Each is criticised by the other side's counsel. Thus Mr Rose says of Ms Keen that her optimism about the Claimant's possible recovery after intensive treatment is misplaced, and contrary to her own evidence that there was never going to be "a high degree of independence". Mr Rose submits that she has grossly underestimated the time spent in supporting the Claimant outside her home and her evidence is most unsatisfactory. She relied on second-hand evidence from taxi firms and did not know that scooters could not be secure within a cab or vehicle and that taxi drivers were not expected to lift in excess of 20 kilograms. She downplayed the need for assistance when shopping, swimming or socialising. Her evidence was, Mr Rose submitted, anecdotal and did not appear to understand that pain levels, the principal cause of the need for support, would not change. She relied on a disabled population as a benchmark instead of tortiously injured people. She did not make exact calculations of each period of loss in the past gratuitous loss, but made more broad inexact calculations.
91. Mr Blakesley submits that there was no proper basis for Ms Gouldstone to change her opinion about care needs from essentially gratuitous care to solely commercial care. This was a very substantial change leading to a large increase in the claim which was abandoned by the Claimant by the conclusion of the trial, when a mixed commercial and gratuitous model was chosen. Ms Gouldstone was not able in cross-examination to demonstrate how her estimates of time needed for helping the Claimant to wash and dress and prepare and cook meals could be justified.
92. There is merit in both sets of criticisms, although I found both experts helpful, experienced and knowledgeable in care expertise even though they came from different professional backgrounds. Ms Gouldstone trained as an occupational therapist and Ms Keen was a nurse who had also worked for social services. She did not, however, base her assessment on a 'social service' – lowest cost possible – possible approach. At present Ms Keen is the case manager of some eight cases, six of whom had serious lower leg injuries. Three of those used mobility scooters. Ms Keen was entitled in evidence to refer to these cases as part of her background knowledge of the problems the Claimant has and how others with similar disabilities have been able to deal with their problems. Such knowledge is general and does not provide any exact comparisons. It certainly does not avoid the need for the court to reach its conclusions on the individual facts of the Claimant's case, which is what I have done.
93. Each expert respected the other's opinions and Ms Gouldstone made it clear in her evidence that although she did not agree with Ms Keen's assessments on the Claimant's case, she recognised that they were within the reasonable range of an expert seeking to evaluate the case properly.
94. This is not a case where the court rejects one and accepts the other expert, but, as quite often occurs, where parts of each witness's evidence are found helpful.
95. On the question of whether, after intensive therapy treatments and orthotics, the Claimant would show some improvement in her condition and ability to cope with it and hence require somewhat less care, I found Ms Keen's optimistic view more compelling. I base this on all the medical, orthotic and care evidence, and in particular the evidence of the Claimant herself.
96. I found the Claimant to be a sensible woman who has endured a very considerable amount of pain and suffering with fortitude. She has already progressed to the point where she is able to do more than she could, albeit slowly. Thus she can now help to prepare food for meals, and can prepare light snacks and drinks, though she cannot carry them safely for any distance. She can move around the house with one crutch and without any support for short distances. She can do some light dusting and polishing and is independent in using the toilet. She goes out with her husband on her scooter, goes swimming once a week, and they take their two dogs out together for a walk. She uses an exercise bike several times a week.
97. I find that the substantial and intensive therapy, treatments and orthotics will enable her to stand for some 20 minutes without significant pain, present or delayed, and that she will move more confidently and feel more confident both indoors and outdoors.
98. I consider that the Claimant will develop the ability to go out on a scooter by herself once it has been got ready for her, but only for relatively short journeys, for example to the local shops. It is a common sight to see disabled people travelling by themselves on mobility scooters, with a basket or pannier attached for shopping. A drinks carrier can be attached, and crutches carried. I accept Ms Keen's evidence that many of her disabled clients with serious disabling leg injuries are able to travel by themselves on their mobility scooters. Whether a particular individual will be able to do so, however, depends entirely upon the facts of the individual case; namely, the nature of the injuries, the degree of disability, the restrictions and impairments that result and the personality and confidence of the injured person. It is on the basis of those individual matters that I have made the findings that I have in relation to the Claimant's use of her mobility scooter.
99. Whilst I accept that the Claimant will be able to undertake short journeys, for example to local shops, she will require assistance to enter them where there are not automatic doors. This will curtail, but not prevent, her ability to make local journeys.
100. I do not accept that the Claimant will be able to undertake longer journeys by taxi by herself. The evidence on this topic is insufficient to satisfy me that the Claimant, who cannot handle or prepare a scooter for use herself, will be able to get the help of a taxi driver prepared to lift, disassemble and load it into the back of his vehicle. In a world where services for the disabled and attitudes towards the giving of such services are improving, it is possible that at a non-busy time of the day a taxi driver willing to help might be found, but the evidence is not clear enough to establish any more than that as a possibility. Further, some scooters may exceed permitted weight limits.
101. For such longer or more involved journeys the Claimant must rely on help from her husband or an agency carer.
102. The Claimant still requires help with dressing her lower half. That situation may improve, but I consider it likely that she will need help if trying on some types of clothing in a shop.
103. What then is the proper assessment of the Claimant's future care needs? It is not clear upon what basis Ms Gouldstone increased the hours per week from 35.5 to 40, nor did I find her explanation of the hours needed for care in cross-examination to be convincing. She could not readily explain why the care needed to wash and be present to assist the Claimant to dress her bottom half, prepare and cook food, with her assistance in peeling vegetables and food preparation, and to fetch and carry would take more than three hours a day. There is no evidence that more than one major meal would be prepared per day and the time taken for preparing breakfast and the other meal would not take any significant time. Yet Ms Gouldstone allowed an extra hour, making a total of four hours a day including two hours for meal preparation and cooking.
104. I consider the current need for the care functions to be no more than three hours per day. This is less than the four hours per day that Ms Gouldstone estimates and more than the two hours per day, and one hour per week for fetching and carrying, which Ms Keen allows. I do not accept Ms Keen's evidence on the care needed to access the community. Ms Keen often allowed one hour, sometimes two hours, for this during past gratuitous care up to trial, and none after the treatments, therapies and orthotics and aids had been provided. That does not address the Claimant's problems. Nor do I accept Ms Gouldstone's evidence that 12 hours per week is required for access to the community. What is clear is that the Claimant does go out with her husband at present and needs to do so. In my judgment, she will continue to need him to accompany her on many of her trips in the future – even though I consider it probable that she will be able to undertake some short trips by herself. The Claimant goes to Lakeside, and to other shops, she goes swimming once a week, visits her father and occasionally socialises. She also attends and will in the future attend medical appointments. It is unlikely that she will be able to carry out any of these activities by herself save for visits to local shops. All such trips except local ones will require her to be accompanied by her husband or a support worker in order to be able to achieve them. In my judgment, seven hours per week is required to satisfy this reasonable need. This will allow one or two short trips a week and one or two longer ones, however the Claimant and her husband wish to organise it.
105. The appropriate level of care post-trial is, therefore, in my judgment an intensive period for six months, as Ms Keen sets out at B/105, and thereafter 28 hours per week (3 hours per day x 7 = 21 plus 7 hours per week access to the community = 28) until the benefits of the intensive treatment/therapies/ orthotics/aids are established. I estimate this to be a further six months, i.e. about one year from the date of trial.
106. Thereafter I consider it probable that the Claimant will have increased in confidence, and be able to move a little more freely and confidently, be able to stand and move for longer periods without pain, and be able to undertake short journeys to local shops by herself on her mobility scooter. Thus she will be able to cope with her disabilities better than she does now, albeit only to a limited extent and sadly without ever being able to achieve a high degree of independence. The improvement she will experience, however, will be sufficient to reduce to a small extent her care needs, from three hours per day to 2.5 hours per day, i.e. 17.5 hours per week care.
107. I do not, however, consider that the seven hours per week I have allowed for access to the community should be reduced. It may well be that with some increased confidence the Claimant will wish to go out more or on longer journeys and hence require more assistance for access to the community, but this will be counter-balanced by the occasions when she is able to go to local shops and for local journeys by herself on her mobility scooter.
108. The total number of care hours per week between trial and 1 January 2018, after the six months intensive therapy and treatments, is 28 hours (21 care plus 7 access) and the total number of hours per week after 1 January 2018, being the date when I envisage the limited improvements will have been established, is 24.5 hours per week (2.5 hours per week x 7 = 17.5 plus 7 = 24.5). The multiplier should be agreed between the parties for the period from 1 January 2018 to the date when the Claimant reaches 75, for the reasons which will become clear in the next section.

(ii) The effect of ageing

109. Although the contention that the Claimant will require more care as she ages was first raised only shortly before trial, and not considered by either Mr Herron or Mr Earnshaw in their reports or joint report, and then only when prompted by the Claimant's legal team, I am satisfied on the evidence that the point is valid.
110. Mr Herron and Mr Earnshaw both stated in evidence that pain in other joints from overuse, due to assisted and altered gait, may well occur and that the Claimant's already impaired gait may degenerate further, which might necessitate further care. Mr Earnshaw said that although it was not scientifically proven that additional stresses on other limbs would lead to deterioration, it was not unreasonable to make the connection. He did say in re-examination that in the Claimant's case, where standing and walking were much reduced, he would not expect any significant changes in her overall functionalities. On this issue I prefer the evidence of Mr Herron and Ms Gouldstone. I find that it is probable that the Claimant's functionality will deteriorate as she ages and that this is likely to lead to a need for extra care. Her gait is poor, she relies on crutches, and I am satisfied she is likely to be in greater discomfort and be less mobile when she gets older, even with the limited walking and standing she does.
111. The Claimant has claimed additional hours of care due to ageing from the age of 70, but I am not persuaded that this is the appropriate starting time. It is simply a "guesstimate" by Ms Gouldstone. The medical evidence does not suggest a rapid deterioration and I consider the appropriate start date should be when the Claimant, who is now 60, reaches 75. From that time I allow an additional seven hours per week. I prefer the estimate of the number of hours on this matter given by Ms Keen to that of the evidence of Ms Gouldstone.
112. The increased number of hours of 31.5 per week (24.5 + 7) should run from when the Claimant is 75 for her whole life. The extra hours will be incurred even when older age sets in. The parties should agree the appropriate multiplier, upon which there has been no argument in evidence and no figures before the court.

Domestic assistance

113. This is agreed by the Defendant at three hours per week. I do not know whether the multiplier and the hourly rate are also agreed. There is no evidence or argument before the court on this issue and the parties must, therefore, agree the figures.

(iii) Gratuitous/Commercial Care

114. The Claimant had a support worker, Andrea, who worked 20 hours per week, including domestic assistance, between 1 November 2012 and 20 October 2013, virtually one year. The Claimant said in evidence that she would like to have "an Andrea back" and that she had only ceased to employ her because she was short of money, but that she would wish her husband to continue providing her with personal care. Andrea had helped with the laundry, dog-walking and shopping trips and took the Claimant out to visit family and friends. This gave Mr Mehmetemin a break from caring for the Claimant (A/257 para 21).
115. After Andrea left in October 2013 the Claimant received interim payments of £56,500 between 15 January 2014 and 22 May 2015. Before that she had received £102,000 by way of interim payment. The Defendant submits that the Claimant could have afforded the support worker from the interim payment if she had been so minded, bearing in mind that her husband was, during part of this period, in receipt of £58 to £61 in Carer's Allowance and also £131 Income Support.
116. Mr Blakesley also relied on an application made by the Claimant on 14 January 2014 for an interim payment which sought to cover, inter alia, a support worker. Mr Rose was able, however, to show from his skeleton argument for that application that by the time the hearing took place the application was no longer to cover the cost of a support worker, as the then medical opinion from the Claimant's surgeon, Professor Saleh, was optimistic, and whether or not a support worker was needed was to be determined on later evidence, depending upon the Claimant's recovery. The application was made, not at that time to cover a support worker, but for other ongoing expenses. Whilst the Claimant did not engage a support worker after Andrea, but relied solely upon her husband for care, I am satisfied that if more money had been available she might have sought to engage one. I do not regard this as a probability because with the interim payments and Income Support and Carer's Allowance some help from a support worker could, it seems to me, have been supported had the Claimant regarded it as a necessity.
117. Nevertheless I accept that it is the Claimant's current intention, as she told me in evidence, to engage a support worker when she is in funds, to help her and relieve her husband from constant caring duties.
118. I am satisfied that the employment of a support worker, for a limited number of hours, is reasonable and necessary for the Claimant's continuing health and independence. She is, as Ms Keen said, very dependent on her husband. However, I am also satisfied that seven hours per week commercial care is sufficient to meet the Claimant's needs until she reaches 75. Thus, after the six month transition period, until 1 January 2018, the hours needed will be seven hours commercial and 21 hours gratuitous (total 28 hours) and from 1 January 2018 until the Claimant is 75 they will be seven hours commercial and 17.5 hours gratuitous care (total 24.5 hours).
119. From the age of 75 the Claimant's additional care of seven hours a week should be met in part by an increase in gratuitous care of two hours and in part by an increase in commercial care of five hours. Thus, from the age of 75 for the whole of her life, the necessary hours will be 12 hours commercial care per week and 19.5 hours gratuitous care per week (=31.5).

Hourly rates

120. It is agreed between the parties that the aggregate rate is applicable in respect of the Claimant's care. Varying rates are set out in Mr Blakesley's Appendix 1. The care is in fact given mostly during the day and on weekdays, so this is the more generous rate. I have already found that 25% should be deducted from the aggregate rate in the case of the gratuitous care provided by Mr Mehmetemin. This applies to all future losses as well as past loss. The evidence does not suggest any need to adjust the rate of deduction with the increased age of the Claimant and her husband.
121. The parties should agree the appropriate multipliers based upon the findings I have made and calculate the loss which arises.

Care for the Claimant's Father

122. This is now agreed in principle at three hours per week. I take the multiplier at 3.58 (the point between the parties' figures for this multiplier). The care is delivered at varying times in the day when the Claimant's daughters take their grandfather out or to see the Claimant. They also help with laundry and changing sheets, though there is now a domestic cleaner engaged on behalf of the grandfather. The appropriate rate in these circumstances is the basic rate, less 25%, i.e. 5.75. The claim is, therefore, 5.75 x 3 x 52 = 897 x 3.58 = 3,211.26. The parties should also calculate the ongoing three hours per week for domestic assistance for the Claimant's father, applying the same multiplier of 3.58.

Case Management

123. Agreed £15,500.

Future Treatment

124. Agreed £21,380.

Future Therapies:

Chiropody.

125. Agreed £4,821.

Occupational Therapy.

126. Agreed £7,309.

Physiotherapy

127. The orthopaedic consultants disagree on this aspect of the claim. Mr Herron accepts the Claimant's account that a small amount of physiotherapy assists her general mobility, but also accepts Mr Earnshaw's view that physiotherapy will have no effect on the Claimant's long-term prognosis. Mr Earnshaw does not consider that physiotherapy will provide any further benefit (B/1/8 joint report).
128. The Claimant's husband has been taught by the physiotherapist how to massage his wife's foot, which is an essential part of what the physiotherapy consists of. It helps to have the foot rubbed, the Claimant said in evidence.
129. Mr Herron said in evidence that physiotherapy could help to maintain her present state, whereas Mr Earnshaw said half-an-hour of physiotherapy per month could not provide maintenance treatment, and physiotherapy would not help, in his view.
130. I am not satisfied, in view of the evidence as a whole, that physiotherapy is reasonably necessary here, as opposed to something which the Claimant might wish from time to time to have. I prefer the evidence of Mr Earnshaw on the issue. Occasional physiotherapy will not help to maintain or improve the Claimant's condition and is not reasonably necessary. Furthermore, Mr Mehmetemin has been taught how to provide the necessary massage. I therefore allow nothing for physiotherapy.

Orthotics

131. Agreed £59,095.

Neuropsychology

132. Agreed £3,450.

Counselling

133. The consultant psychiatrists both recommended intensive neuropsychological treatment and ongoing review of medication by a consultant psychiatrist. The cost of obtaining these has been agreed. Neither psychiatrist recommended continuing counselling, though Dr Friedland commented that the Claimant found it helpful. Dr Turner noted it.
134. The Claimant said in evidence that her counselling sessions with Dr Jones, which had been very infrequent (A/174), were helpful. He calmed her down and dealt with her anger. She had ceased seeing him in 2014 because of lack of funds. In her evidence she said that she did not know whether, after she had completed the intensive psychological therapy, she would wish to go back to Dr Jones.
135. On these facts, Mr Blakesley submits that it would be inappropriate to award the cost of counselling, there being no evidence to suggest that it was needed or indeed regularly used.
136. Mr Rose submits that as the Claimant's anxiety and depressive symptoms are likely to persist, and she finds counselling sessions helpful, ongoing sessions are justified.
137. I do not consider that the evidence demonstrates a reasonable need for ongoing regular counselling sessions. They have not been used much by the Claimant even when she received substantial interim payments, sufficient to pay the one-off charges for counselling. Nevertheless I consider that a contingent sum should be awarded for this element of claim so that the Claimant can seek Dr Jones's help on an occasional basis, once or twice a year starting in 2018, for her continuing depressive symptoms and anxiety. Seeking to assist the resolution or amelioration of those problems, I allow the sum of £2,500 to cover such a cost on the basis that the need for occasional counselling will not arise every year, but from time to time over the next decade.

Future Extra Costs:

Decorating and DIY

138. Agreed £7,363.

Gardening

139. Agreed £2,361.

Dog -walking

140. I have already found that this part of the claim is recoverable in principle. The continuing loss I assess at two hours per week at the basic rate less 25% for the Claimant's husband to take the dogs out when he does so on his own. There is no evidence that the Claimant is likely to return to work and no proper basis for adding commercial care for this element of claim.
141. The current basic rate less 25% is £5.75 a week. It is unlikely that the dogs will survive the whole of the 15 year period to the time when the Claimant reaches 75. I have, therefore, reduced the multiplier of 12.11 to 10. This produces a loss of £5,980 (5.75 x 2 x 52 x 10).

Increased Heating

142. Agreed £1,211.

Extra Food Costs

143. I have found in relation to the claim for past extra food costs that it is not recoverable. I am not satisfied that no loss has been proven; it is in any event too remote and neither reasonable nor proportionate. There can, therefore, be no claim for future extra food costs.

Driving Lessons/Mobility and Transport Costs

144. The claim includes an item for £460 for the cost of driving lessons for Mr Mehmetemin, who, it was intended, would be able to drive his wife around when he had passed his test. If he were to be able to do so, this would have the effect, the Defendant submits, of reducing the claim for the future cost of taxis. When Mr Mehmetemin gave evidence, however, he said that he gave up driving lessons as he felt he would be too old to learn to drive. He is now 59 years old.
145. It appeared that this evidence, emphatically given, was a surprise to the Claimant and her legal team, though it was known to Ms Gouldstone, who records in her report of 6 November 2015 that Mr Mehmetemin was struggling to learn to drive and had given up his lessons.
146. The claim for driving lessons was pursued at trial until this evidence was given, and the Claimant's claim had been put forward on the basis that the only reason driving lessons had not been taken was the fact that there were no funds for its cost. Mr Blakesley submits that in these circumstances the court should find that Mr Mehmetemin will in fact probably pass his driving test at a later date.
147. Nevertheless, I formed the clear view that Mr Mehmetemin found driving very unnerving indeed, had a serious lack of confidence in his ability to drive and would not start driving lessons again. There remains, of course, the possibility that he will re-start at some future date, when the inconvenience of waiting for taxis strikes home, but I am clear in finding that the probability is that he will never find the confidence to do so.
148. The consequence of this finding, as Mr Blakesley states in his closing submissions, is that the claim for future cost of the provision of taxis is reasonable. The Defendant accepts that the figure of £100 per week for taxis is a reasonable figure (it is fully costed at B/1/227) but submits that a reduced multiplier should be applied as the Claimant would probably have made use of taxis in any event as she aged. There is some force in the submission, though, as the Claimant would probably still have been driving well into her late 70s, given good health, the multiplier should only be reduced by a small amount to allow for increased use of taxis. I find that the multiplier should be reduced from 12.11 claimed by the Claimant to 10, thereby making the total claim £52,000 (10 x £5,200 p.a.).

Aids and equipment

149. There are 26 items of aids and equipment sought in the Claimant's schedule of loss. Virtually none of these have been agreed. I refer to them by reference to their order and description in the Claimant's schedule:

1 Level access shower. This item has been withdrawn.

2 Stair lift. I understand that a stair lift has already been fitted but, whether it has or not, I am satisfied on the medical evidence that it is necessary. The Claimant will not be able to negotiate stairs safely without the provision of a stair lift. I award the amount sought of £5,070.

3 Stair lift maintenance in the sum of £3,906.

4 Perching stool. This is one of a number of items where the care experts agree that the item is necessary, but do not agree on its proper cost. There has been no evidence before the court, either written or oral, relating to this issue and there is, therefore, no proper basis upon which the court can choose one costing rather than the other. The only appropriate action in the circumstances is to split the difference between the two. Where I indicate that this should occur, the parties should carry out the necessary calculation.

5 Shower stool. This is agreed and I allow the figure of £293.15.

6 Small aids. These are agreed, but the cost is stated in the Claimant's schedule at £310.80, and £179.99 in Ms Keen's comments in the joint report. The figures should be checked and the difference split.

7 and 8 Riser recliner chair and maintenance. These are agreed and the costs assessed similar. I allow £4,082 in respect of the chair and £1,953 for maintenance.

9, 10 and 11 Profiling bed, maintenance and mattress.

The need for this item is agreed, though there is a dispute as to whether the mattress needs to be replaced every five years. The difference in cost should be split in relation to the profiling bed and its maintenance. £350 additional should be allowed for the first mattress and thereafter no further cost unless the parties agree that such a mattress would cost more than the ordinary mattress the Claimant would have replaced in any event.

12 and 13 Care alarm system annual rental.

This item is agreed, but there is a difference on cost. That difference should be split by the parties.

14, 15 and 16 Manual wheelchair, maintenance and insurance.

Ms Keen expresses the view in the joint report (B1/47) that the Claimant does not use a wheelchair, there is no reason to suppose that she will need to do so in the future, and medical opinion does not support the need for a wheelchair. Ms Gouldstone expresses the view that there will be occasions when the Claimant will be unable to use her scooter and a lightweight wheelchair should be easier for her husband to push.

In fact, on the evidence before me it was said that a wheelchair is not used by the Claimant at present because her husband, who is a slight man, finds it very difficult to negotiate and manoeuvre the Claimant in a wheelchair. I consider, however, that a lightweight wheelchair is both suitable and appropriate for the Claimant's needs. She will be able to use it when her scooter is unavailable and on other occasions when her scooter cannot be used and she needs to move more than a very short distance outside. I allow the sum of £3,608 for the wheelchair and its replacement, £1,953 for its maintenance and £976.50 for its insurance.

17, 18, 19, 20, 21, 22 and 23 Scooter, maintenance, insurance, lightweight scooter maintenance and insurance and scooter storage.

The Claimant at present has a lightweight scooter which can be dismantled into five pieces and transported in a car, as well as a more conventional scooter. In his submissions Mr Rose points out that both have been agreed in the past costs in the counter-schedule. He submits that the Claimant plainly needs each item of equipment, not least should one or the other require repair or maintenance. Ms Keen, however, allows for a lightweight scooter only (B2/78) and submits that only one scooter is required, but that a service provision should be introduced for the scooter to eliminate difficulty caused by breakdown. A figure of £250 per annum for life is suggested, though the maintenance cost of a lightweight scooter is set out as £100 p.a. in the Claimant's schedule of loss. As to scooter storage, this was omitted from Ms Keen's report, but she accepted the need for it in the joint report (B1/48) and reiterated this in evidence. She questioned Mr Gouldstone's estimate of £1,900 for the cost of storage, suggesting that a figure of £700-£800 would be sufficient.

I allow the cost of one scooter, the lightweight scooter, at items 20, 21 and 22, together with appropriate maintenance provision. Should this scooter suffer a breakdown or need to be serviced, the Claimant can use the wheelchair whilst her scooter is unavailable. To have an ordinary mobility scooter at an overall cost of £16,673 in case it might be needed is neither reasonable nor proportionate, even if such a scooter has a somewhat greater battery power and hence distance.

The Claimant's figures of £700 for the scooter, £1,953 for maintenance and £1,464.75 for insurance are the sums I will allow. Mr Blakesley's proffered figure for service (maintenance) is much higher than that set out in Ms Keen's report at B2/78 and I do not adopt it. As to scooter storage, I allow £1,450.

24 Mangar emergency lifting cushion.

The cost of this item is pleaded at £1,100. Ms Gouldstone says that it is needed because of the increased risk of falling if the Claimant's mobility deteriorates as she ages. Ms Keen does not consider that this will be needed, as the Claimant has not been prone to falling. She states that there is no evidence that the risk of falls will increase.

It is correct to say that the Claimant has not so far been prone to falling, no doubt because she is cautious. Mr Herron does, however, say in his report, at B1/95, that her proprioception and balance on the right side are both exceptionally poor and she is unable to balance on the right side at all without the need to stable herself on external surfaces. Such a condition is bound to increase the risk of falling and I consider it appropriate that the emergency lifting cushion is provided. I allow £2,629 for this item for the cushion and its replacement.

25, 26 Mobility aids and replacement.

These are agreed. I allow £352.24 for the mobility aids and £97.65 for replacement.

150. Because the housing association will not permit adaptations to the bath or shower, this item of claim has been withdrawn. Such adaptation, however, would greatly assist the Claimant when having a shower or bath if, as Ms Keen suggested, the housing association would be prepared to permit the adaptation on the basis that, before Mr and Mrs Mehmetemin ceased occupation, the bath/shower was put back in the same condition that it had been before adaptation. No such claim has been made, however, and nothing is therefore allowed for it.

Holidays

151. I have no doubt that the cost of holidays has increased as a result of the Claimant's injuries. She requires a seat with extra legroom and the cost of extra taxis for transfers to and from the airport, as buses will not take scooters, and getting about whilst on holiday. These points are both conceded by the Defendant.
152. Ms Keen raised in her report of October 2015 the question of additional costs incurred due to the accommodation needs of changing from self-catering to staying in hotels. B2/82. She allowed £1,000 to cover such costs for two holidays each year. Ms Gouldstone, who had not initially put any such claim in her report, has adopted Ms Keen's suggestion, and Mr Rose has now adopted it in his closing submissions.
153. Mr Blakesley does not accept that there will be any extra accommodation costs over and above what they would have incurred anyway on their holidays to Greece and Turkey.
154. The Claimant also claims the cost of taking a carer on holiday with her. Mr Blakesley contends that this is not a recoverable item, as the Claimant is most unlikely to take a support worker with her on future holidays, not having done so so far in the years after the accident.
155. (i) Extra legroom

The only evidence of the actual cost of upgrade is what the Claimant paid on 1 October 2013 for two front seats to Thomas Cook, i.e. £20. C/172. Ms Gouldstone puts forward a figure of £64, but I have not seen any supporting documents for that. I allow £20 p.a. for two holidays, i.e. £40, to which the multiplier of 12.11 is to be applied. The total is £484.40.

156. (ii) Cost of taxis

The cost of transfers by taxi and of taxis used while on holiday is estimated at £300 p.a. by Ms Gouldstone and £170 (I assume per holiday) by the Defendant. I allow £300 p.a. x 12.11 = £3,633.

157. (iii) Extra cost of accommodation

There is no evidence to support this, save for the estimate of Ms Keen adopted by Ms Gouldstone and Mr Rose. There is, as Mr Blakesley submits, no evidence of any additional cost of staying in a hotel instead of self-catering accommodation. There may be either no loss, minimal loss or a more substantial one, but without the evidence it is not appropriate for the court to make a finding that such a loss exists. Furthermore it is not known how many of the two holidays a year which the Claimant and her husband used to take would have been self-catering.

158. (iv) Taking a support worker on holiday

The Claimant has not taken a support worker with her on holiday since the accident. The reason she gave for wishing to do so in the future in her evidence was that it would give her husband or family freedom to do their own thing and not to be tied to her. Thus, for example, she said her husband would be able to go fishing.

159. The fact that no support worker has been taken on the four holidays the Claimant has had up to trial is not decisive but, given the fact that she received substantial interim payments and her husband was in receipt of Carer's Allowance, it is a fact which suggests that such help on holiday has not been found to be necessary.
160. More importantly, I conclude on the evidence that the Claimant does not in fact need a support worker on holiday. Her husband or family do not have to be with her all day. She can read, sit or lie, in or out of the sun, whilst her family take time to do things by themselves. She has sufficient independence to be able to do that and will in my judgment continue to be able to do so in the future. I therefore reject the claim for the cost of a support worker on holiday.
161. The extra holiday costs are therefore:

a) £484.40 seat upgrade

b) £3,633 extra taxis

Total: £4,117.40

SUMMARY

Summary of damages awarded, or agreed, and items to be further calculated by the parties upon the basis of the findings in this judgment

GENERAL DAMAGES

PSLA

£80,000

PAST LOSS

Past gratuitous loss		To be calculated (TBC) by the parties on the basis of the findings in his judgment
Care for the Claimant's father		Basic rate less 25%, 4 hours per week to 15.1.11, 3 hours thereafter
Paid care	£16,062	Agreed
Loss of earnings	£71,178	Agreed
Accommodation	£2,822	Agreed
Equipment	£6,608	Agreed
Therapy	£29,508	Agreed
Transport and mobility	£4,209	Agreed
Holidays	Nil
Cleaner for father	£4,290	Agreed
Gardening	£937	Agreed
Dog-walking		(i) Ann Main half-hour per week 12.1.11-1.6.15 basic rate minus 25% (ii) Mr Mehmetemin 2 hours per week at basic minus 25% from accident to trial, reduced to one-and-a-half hours per week from 12.1.11-1.6.15
Increased heating	£1,368	Agreed
Extra food	Nil
Clothing	£1,338	Agreed
Case management	£7,781	Agreed
Orthotics and miscellaneous	£1,500	Agreed
Subrogated claim	£8,826	Agreed
Interest	TBC

FUTURE LOSS

Care (a) 6 months transition (b) Post transition period to 1.1.18 (c) 1.1.18 to Claimant's 75th birthday (d) 75th birthday to whole life	£11,459	28 hours per week, consisting of 7 hours commercial and 21 hours gratuitous (aggregate rate minus 25%) 24.5 hours per week, consisting of 7 hours commercial and 17.5 hours gratuitous (aggregate minus 25%) 31.5 hours per week, consisting of 12 hours commercial and 19.5 hours gratuitous (aggregate minus 25%)
Domestic assistance	£35,037
Care for Claimant's father	£3,211.26
Domestic assistance for Claimant's father		TBC
Case management	£15,500	Agreed
Future treatment	£21,380	Agreed
Therapies Chiropody Occupational therapy Physio Orthotics Neuropsychology Counselling	£4,821 £7,309 Nil £59,095 £3,450 £2,500	Agreed Agreed Agreed Agreed
Future extra costs Decorating and DIY Gardening Dog-walking Increased heating Mobility and transport costs Aids and equipment Future loss of earnings Loss of pension Future holiday costs	£7,363 £2,361 £5,980 £1,211 £52,000 £47,840 £27,816 £4,117.40	Agreed Agreed Agreed TBC by the parties on the basis of my findings Agreed Agreed
TOTAL

162. If any point arises on the matters to be calculated by the parties in accordance with my findings in this judgment, I will deal with the matter by way of written submissions, but urge the parties to reach agreement on all matters where it is possible to do so.

20.1.17

ADDENDUM

163. The parties have now agreed the final calculations, based upon my findings above, and these are as follows:
Final Table of Losses

General Damages	Heading	Court
3	PSLA	£80,000
4	Interest	£6,920
Past loss	Subtotal generals	£86,920
5(i)	Gratuitous care	£76,249.08
5(ii)	Paid care	£16,062.00
(iii)	Loss of earnings	£71,178.29
(iv)	Accommodation	£2,822.00
(v)	Equipment	£6,608.00
(vi)	Therapy and healthcare	£29,580.00
(vii)	Mobility and transport	£4,209.00
(viii)	Holidays	£-
(ix)	Cleaner for father	£4,290.00
(x)	Gardening	£937.00
(xi)	Dog walking	£3,733.62
(xii)	Heating	£1,368.00
(xiii)	Extra food	£-
(xiv)	Clothing	£1,388.00
(xv)	Case management	£7,781.00
(xvi)	Orthotics and miscellaneous	£1,500.00
	Subtotal past losses	£227,705.99
6	Interest	£1,034.17
7	Subrogated claim	£8,826.00
Future Loss	Total past losses and interest	£237,566.16
8, 9	Gratuitous and paid care	£334,731.00
10	Case management	£15,500.00
11	Treatment	£21,380.00
12	Therapies	£77,139.00
13	Extra costs	£16,915.00
14	Aids & Equipment	£41,868.49
15	Loss of earnings	£47,840.92
16	Pension	£27,816.00
17	Mobility and transport	£52,000.00
18	Holidays	£4,117.40
	Total future losses	£639,307.81
	Total	£963,793.97

164. Accordingly, I give judgment for the Claimant in the sum of £963,793.97.

26.1.17