QUEEN'S BENCH DIVISION
Strand, London, WC2A 2 LL |
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B e f o r e :
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MARK VICTOR FLANAGAN (By his litigation friend KAREN SUZANNE GREEN) |
Claimant |
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- and - |
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GRANT ALEXANDER BATTIE |
Defendant |
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Mr Steven Snowden QC (instructed by Kennedys Law LLP) for the Defendant
Hearing dates: 2 November 2017
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Crown Copyright ©
Master Davison :
Introduction
- Report of Dr Liu (neurologist) dated 14 June 2016
- Witness statement of claimant's solicitor dated 16 October 2017
- Immediate needs assessment of Case Manager, Mr Alan Wright, dated 3 February 2017
- Case management progress report of Mr Wright dated 26 July 2017
- Witness statement of Mr Wright dated 11 October 2017
- Report of Dr Sembi (neuropsychologist) dated 30 June 2017
- SMART report of Dr K Elliott dated 11 August 2016
- Speech and Language Therapy report of Dr Taylor-Goh dated 30 June 2017
"If it is the opinion of his treating team that he can be supported well in the community then I would absolutely support that his own accommodation must be sought immediately and a comprehensive support package, including 24 hour care with support workers, needs to be put in place immediately. If this cannot happen within a short period then, in my opinion, it is appropriate to consider that he be moved to another specialist brain injury centre who are able to meet his needs for multi-disciplinary neurorehabilitation more appropriately as a matter of urgency."
The law governing interim payment applications
"43 The judge's first task is to assess the likely amount of the final judgment, leaving out of account the heads of future loss which the trial judge might wish to deal with by PPO. Strictly speaking, the assessment should comprise only special damages to date and damages for pain, suffering and loss of amenity, with interest on both. However, we consider that the practice of awarding accommodation costs (including future running costs) as a lump sum is sufficiently well established that it will usually be appropriate to include accommodation costs in the expected capital award. The assessment should be carried out on a conservative basis. Save in the circumstances discussed below, the interim payment will be a reasonable proportion of that assessment. A reasonable proportion may well be a high proportion, provided that the assessment has been conservative. The objective is not to keep the claimant out of his money but to avoid any risk of overpayment.
44 For this part of the process, the judge need have no regard as to what the claimant intends to do with the money. If he is of full age and capacity, he may spend it as he will; if not, expenditure will be controlled by the Court of Protection.
45 We turn to the circumstances in which the judge will be entitled to include in his assessment of the likely amount of the final judgment additional elements of future loss. That can be done when the judge can confidently predict that the trial judge will wish to award a larger capital sum than that covered by general and special damages, interest and accommodation costs alone. We endorse the approach of Stanley Burnton J in the Braithwaite case [2008] LS Law Medical 261 . Before taking such a course, the judge must be satisfied by evidence that there is a real need for the interim payment requested. For example, where the request is for money to buy a house, he must be satisfied that there is a real need for accommodation now (as opposed to after the trial) and that the amount of money requested is reasonable. He does not need to decide whether the particular house proposed is suitable; that is a matter for the Court of Protection. But the judge must not make an interim payment order without first deciding whether expenditure of approximately the amount he proposes to award is reasonably necessary. If the judge is satisfied of that, to a high degree of confidence, then he will be justified in predicting that the trial judge would take that course and he will be justified in assessing the likely amount of the final award at such a level as will permit the making of the necessary interim award."
The submissions of the parties
The claimant's case
Item | Value |
General damages for pain, suffering and loss of amenity | £200,000 to £250,000 |
Past losses | £93,000 |
Total past losses (say) | £318,000 |
Future losses | |
Accommodation (Roberts v Johnstone type award) | £100,000 |
Accommodation (Adaptation costs of £100,000 and annual additional running costs of £5,000 per year) |
£175,000 |
Therapies (£24,000 per year) | £360,000 |
Holidays (£10,000 per year) | £150,000 |
Transport (£10, 000 per year) | £150,000 |
Equipment (£10,000 per year) | £150,000 |
Car | £65,000 |
Court of Protection / Deputy (£10,000 per year) | £150,000 |
Total future losses | £1,300,000 |
The defendant's case
Discussion
Conclusion